has been alway Practis'd by our Law where the Absence was Wilful and we all know it is so too by the Laws of Scotland P. 54. And I hope no one will imagine that the Dr. was detain'd in Holland against his Will. And as I have already advis'd our Author out of Tenderness and Respect so it is still my opinion That it would have been a wiser Reflection upon his Case to consider that by the King's Laws every one of his Subjects is warranted to seize on such Offenders in what manner soever then to reflect upon nothing else but the Justice of the Court that Condemned Him and the Memorial of His Majesty that demanded the Dr. And this Transaction is not an antiquated President that our Fathers have told us but what we have seen with our Eyes and heard with our Ears tho' I cannot hear that the * The Attempt that was made since upon another Person at the Hague was of another nature and of which they might with more reason complain States ever return'd us any publick Remonstrance against it as a Breach of Priviledge upon the Law of Nations And why Because by the King's Laws every one of his Subjects was warranted so to do I could carry this view of History further notwithstanding the Dr's severe Droll on the Envoy's Memorial of Dead or Alive to aggravate his pretended danger and tell him of Subjects that have executed their Prince's Justice when he has been but in bad Circumstances to demand it and the Dr. has heard of Attempts upon an Askam a Lisle and a Dorislaws but ill Practises must never make good worse Proceedings and such a Revenge as no Nature will allow can never be justify'd by a Law of Nations so that his fears are as idle and needless as his aspersing His Majesty for it are most vainly Seditious The best that he can make of these Circumstances that affect him is to be a better Subject to his natural Prince and then he 'l need no Protection from any other Lords And now to conclude with what His Majesty's Memorial might well do too * That the States ought Vid. Vindic. of himself p. 3. to punish both him and his Printer The deference that was due to their Lordships from any of the Subjects of the King of Great Britain is as Temporal too I hope as the Dr's Allegiance that he has transferr'd to them and we are bound to retain no longer a respect than they are found to continue that firmness of Alliance which as I may well say now has been too much violated So it might have been wish'd by both sides the Dr. had never brought it to so much as a Dispute and tho' out of an humble regard to their Government I do not presume to prescribe Measures to their State I do not pretend to tell the States what they ought to do yet I may I hope with all Humility tell them what the States have done 1. These High and Mighty States of Holland and West-Friestland to the Protection of which the Dr. Vid. Six Pap. pag. 50. does so zealously recommend himself did in the Reign of Queen Elizabeth †Vid. Reidan Annal. Belg. Lib. 6. Anno 1587. decree death to such as should in Libels and Reflections dare to revile Her Majesty And I did not doubt but that their Lordships would have been as tender of the Honour of Our Present Prince as their first Ancestors were for that of his Predecessor especially if they had consider'd him under a more August Title and much more extended Dominion and that their Queen of England may with Modesty be stiled a less Monarch than the King of Great Britain 2. There is an old Edict as I am well inform'd and that still in force a solemn unanimous Act of the whole States Generals united which condemns to perpetual Imprisonment all Persons Aliens as well as Subjects who shall in their Dominions by Writing or Printing publish any Letters or Libels to the defamation of His Majesty the KING of Great Britain 3. By Virtue also of this ancient Decree did a learned and ingenious Minister of the late King Sir W. T. then residing at the Hague cause the Sieur John Rothe and one Mr. Byer Brother to the Book-holder of the Dutch East-India Company with their Printer to be seiz'd Sir John was clapt up in the Rasphouse the other in Anno 1676. the Stadthouss at Amsterdam where they are said to be still Prisoners notwithstanding they were Natives and that is more than naturaliz'd and related to men of more Power and Wealth than our Author can pretend to This I have had attested to me by some men of Understanding and one of them one of the King's Subjects that seiz'd them so that by their own Laws as well as the King 's they were warranted to do so and the States bound by their own Presidents to punish both Him and his Printer The Original Libels for which they prosecuted both the Author and the Printer I have ready to produce and it was not alone the Prince of Orange's Cause that occasioned their Prosecution but * Vid. Eenige Sware beschuldinge tegen de Prince van Orange c. p. 2 7. p. 2. Dat de Prince c. consuleert over de wictigste saken dese Republiik Met syn Ooms ' den Koningh van Engelandt en den Hertogh Van York p 7. Dat de Staten even Van de Prince Misbryiickt en qualiick gehandelt worden al 's het Parlement in Engelandt van hare Koninck His late Majesty the Present * King and the Government of England being all Libell'd in the same Reflections animated our King to demand Satisfaction also for Himself since the same Author had represented Him and His Royal Brother as so many Conspirators with the Prince and reflected upon His Majesty as betraying and usurping upon his Parliaments after the same manner that His Highness did Design upon their States These High and Mighty States did then think it their Duty to do Justice to His Majesty of Great Britain and to His Present Majesty though then without a Crown who might I hope as well expect it from them now while He wears one They publisht their Placaets then against such an Author and his Printer both them and their Orders I have by me to shew look't upon them and term'd them too lying scandalous and Seditious Pasquils †Vid. Their Placaet printed too by Mr. Fagel's Scheltus at the Hague 1676. promis'd Three Thousand Gu'lders for the Discovery and bringing the Author to Justice and Two Thousand to any one that should detect the Printer But Time has shown us now the reason why these High and Mighty Men could not comply with His Present Majesty in punishing Dr. B. or his Printer †vid. Miinheer Fagel's Missive printed by the same Scheltus tho' they thought so much my self to deserve it These Libels were avow'd only to facilitate this Invasion and
5. 1 6. Divest himself at his †So also say our own Laws Vid. Dr. Storys Case ut Supra Dyer 300. Will and Pleasure of this original relation he has to his Prince and place of Nativity no tho' he assumes unto himself another For the assuming a pretended Origination and naturalizing is no more does not extinguish that natural one which in reality he must ever retain neither by * Neque mentiendo neque recusando Patriam veritatem mutare potest Zouch ibid. falsly renouncing of his Country from which he had his birth and original can he change the Truth and Nature of the thing And this was so loyally learnedly and judicially resolv'd in the very same words in the recited Case of Dr. Story by all the Judges in Queen Elizabeth's Reign who is celebrated even by our Author and others for employing none but men of the greatest Understanding in the State that it must supersede all Objection and if the Civil Law will not by our own Municipal Resolution of the Judges of the Land Dr. Bur must be silenced and convicted even from a Process in the * 13 Eliz. Reformation and an Historical Consutation out of Mr. Fox These Imperial Laws do so expresly oppose our Author's Expositions that they call him a †Transfuga est qui ab Repub Defecit Deficere dicuntur qui ab his quorum suo imperio sunt desciscunt D. 4. 5 5. Fugitive that falls off from his Country and Common-wealth and this Defection they define to consist in renouncing their Obedience to that Government under which they were born and this Native in the Phraseology of their Law they call an * Originarius Incola in eo differunt qued ille perpetuus hic pro tempore subditus exsistit Zouchaeus Elem. Jurisp p. 4. Sect. 2. Original a term which our Antagonist is no Stranger to having naturaliz'd it into his Works but the sense of it here signifies a natural born Subject whom Civilians say differs from an Inhabitant and adventitious one in this that the one owes a perpetual subjection and the other but a Local and Temporal one and this perpetual Obedience that is so inseparably requir'd from what has been said does appear unalienable and what course our Author has taken to translate it cannot apprehend if it be so transfer'd as for the concern and sake of his Cause more than from any Conviction from his Reason he would perswade himself to believe then whenever there should happen to be any breach between those Crowns or States that were at present in good Amity and Correspondence Such Deserters are by their own Conclusions qualify'd to fight their own Prince and Invade their own Country and perhaps for that end our Author maintains the Paradox of this rebellious Position for Allegiance being once renounced by him as well as Passive Obedience there remains nothing but to exercise an Active Valour and the verifying his being a Rebel even in his own sense a Man that has born Arms against his Prince Vid. Vind. p. 4. For where Obedience and Birth is translated there remains no Obligation and ty to Duty or Relation but I am afraid should such Expositors upon their Allegiance by the fortune of the day be made Prisoners of War they were not to be treated as Common Enemies but as so many Rebels and Fugitives It will be too late for them then to have recourse to the Postliminium of the Romans when they have made themselves Renegadoes when they have renounc'd their Allegiance by so solem an Act as their own hand writing they cannot return themselves again to their former Rights and Priviledges they may be receiv'd indeed as Civilians say but then it must only be to punishment and upon these Principles I suppose the Laws of Scotland proceed when it makes such a Renuntiation Capital Captive Enemies that are taken in the Act of Hostility have generally by the Laws of Arms Quarter allow'd and Liberty to depart which is more or less observ'd according to the dealing they meet withal from one another but should one be found that by a voluntary abjuration has renounc'd his King Country amongst their Enemies either in Arms or without in Camp or in City he is to be put to Death as a Deserter and Fugitive and this is confirm'd by constant practise as well as warranted by all Law and where the person owns his Allegiance actually translated he makes himself the same Criminal as if he were in League with his Princes Enemies though that is a Circumstance that will much aggravate the Crime and the being under the Protection of his Friends and Allies * Vid. Grotius Lib. 2. c. 21. only hinders the Prince from entring their Territories with an Army to demand him but that cannot debar him from his right of demanding his punishment or Dedition So much for what Civilians say in this matter and it may not be improper to superadd what common Lawyers upon the Case have resolv'd my Lord * Vid. Calvin's Case Coke to this purpose observes that natural Allegiance being an Act and Habit of the mind it cannot be confin'd within any place and from thence would infer that his Countryman Calvin in his Controverted Case could not be said when he was in England he ow'd the King of Scots no natural Obedience and that natural Leigance should have any respect to a Local one was an insufficient Plea and upon the whole it was concluded that a natural * Vid. His Vind. pag. 4. Nullis claustris Coercetur nullis metisrefraenatur Allegiance could not be ‖ Vid. id Calv. Case Jura naturalia sunt immutabilia constrein'd with any force or confin'd within any limits it is concluded there that this Allegiance is due to the King by the Law of Nature that this Law of Nature was long before any Municipal one of the Land and that it is part of our own Law and must be for ever immutable and what is due by the Law of Nature a Moral * Vid. Aristot 5. Ethicor. Heathen will not say can be translated and transfer'd and therefore this Allegiance could not be deny'd to be due even to Tarquin though there were then no Civil Institutions among the Romans that confin'd it being before Papirius had reduc'd any into Writing and if with the permission of this most Polemical Divine I may be allow'd to attempt upon his Province those inculcated Texts of being subject to the higher Powers and that not only for fear but for Conscience sake seem to me to have a more immediate respect to those that are their Natural Princes and to the Law of Nature which did most conscientiously oblige them more than any fear of Municipal ones and Civil Institutions I agree with our Author that the point of Naturalization Vid. Vind. p. 5. is an Universal Practise and the right of granting it is inseparable from Soveraign Power so
and that aggravated when the Persons were Military men that Zonoras discoursing of King Lazus who had Revolted from the Persians to the Romans makes it a Just Cause of War between those Romans and the Persians because the Roman General had drawn over unto himself the Subjects of the King of Persia This is granted too by the Learned Grotius and he insists * Lib. 2. c. 5. sect 24. Lib. 3. c. 20. sect 41. several times upon the same Passage for a President His Majesty's Memorial almost in the same words expresses the Saying of Sabinus That though every man has this natural Liberty or the power to make himself a Member of what City he pleases yet he cannot of the Right of Dominion after another has been introduced and therefore Grotins adds the authority of Paulus That by the Laws of the Romans all Fugitive Servants were liable to the right of Reception whom their Masters can over claim and they must still remain their Servants and that it is the greatest Injury to detain them from their Service And certainly then the Soveraign will have as great a Right to that of his Subjects So that it is indeed somewhat to be admired to see so lately the Laws of Nature and Nations alleadg'd to Justifie a Matter to which they both are so plainly repugnant and by those very People against whom their own most applauded Author is the best of Advocates and who plainly Lib. 3. c. 9. sect 11. tells us too in another place * Ibid. lib. 3. c. 20. That it is unlawful to receive such as are bound either by Oath or otherwise to perform any Service or Duty to another Prince and since their Lawyers tell them so it will not be Improper to look a little into our Law and see what that tells us By the Stat. of Hen. 7. * 11 H. 7. Calvin's Case Jac. 1. and the Resolution given in K. J. 1. it is Plain the King of England cannot be depriv'd of the Service of any of his Subjects who are bound to serve him in Peace as well as War both within the Kingdom and without that natural Allegiance is unalterable and unseparable whatever Liberty of Translation Some may pretend to and by a particular Act of Parliament of K. James as upon another occasion was before observ'd the Serving of Foreign 3 Jac. c. 5. 3d. Inst c. 23. Princes with a Translation of Allegiance is particularly provided against by the requiring an Oath of Obedience before they go over and making it Felony to go without And What can be imply'd from this but their Obligation to return when call'd and commanded And this is extended by the Comment of my Lord Coke to a going over without serving or to Domestick Service as well as Military The whole Design of the Statute seems directed more especially against Souldiers entring into Foreign Service and by a more particular Branch of it binds them * Vid. Form of the Obligat not only to take their Oath of Obedience but also to give two sufficient Sureties And it was a Case once that came into Question * Dyer 298. Whither the going only to live out of the Kingdom without Leave were not a Contempt and an Offence punishable and to be construed as a Desire to withdraw his due Obedience And 't is plain that Queen Elizabeth whose Memory the States ought to Reverence as well as our Author after She had given Leave of Absence in a Foreign Service for some Years upon a Refusal to return on the sending her Privy Seal that Commanded it upon their Allegiance Id. fol. 375. B. proceeded against the Persons as Fugitives seizes confiscates and sells their Estates and Inheritance If these then are the Laws of England if this has been resolv'd in the Reign of a Princess whose Proceedings no Protestants will dispute His Majesty's Envoy might well declare The King could Recall His Vid. the King's Men orial Subjects by his Royal Proclamation or his Letters of Privy Seal and that they were bound to Obey those Orders upon very severe penaltys and the Memorials of the Marquiss may with the Wiser part of the World be thought to contain a great deal of sense and reason notwithstanding that our Author has endeavour'd to Vid. Vindic. p. 3. 4. represent most of them so absurd and ridiculous But then all Doubt is excluded and out of doors by a general consent and accord of all Statesmen and * Vid. Ibid. ut Supra Grotius in particular where it is decided by those Obligations that arise from Articles Contracts and Agreements and to this those that have contested it so much by their own Consent and Resolution are bound and have concluded themselves so that since a solemn Capitulation has been produc'd and which we need not insist on to make out since so publickly known The Proceedings of His Majesty's Minister of State which our Author has undertaken to reflect on and ridicule will appear to all understanding People to be founded upon the Principles of natural Justice common Equity National Laws and private Stipulations And 't is too plain now for what ends His Majesty has been deny'd in so just Demands which must redound with all impartial People as much to his Honour as to their Shame and a successful piece of Injustice has just as much Equity as a prosperous Villany has to be entituled to the specious Name of abused Virtue But setting aside the unanswerable Argument of the Earl of O's Convention and Agreement in 78 I cannot see but the Contenders against it and these asserters of this Natural Liberty had long before concluded themselves by their own Act in the Articles of two several Treaties that of Surinam in 67. and the other signed at Westminster in 73. for though by the first it was stipulated upon the Place that instead of this agreeable natural Liberty all the King's Subjects were to have the Liberty to remove themselves after the transferring of the Place to some other Plantations under His Majesty's Obedience which I hope imply'd that their Allegiance was not to be Translated no not with the Soil it self this was thought then so agreeable to Nature that it was admitted immediately as an Article tho' it may be well remembred how those promises too were kept the King's Subjects indeed were kept and detain'd contrary to that very Treaty and this Detention acknowledg'd unjust by themselves in the 5 Article in 73 and that it should be lawful at any time for His Majesty to send Ships for his Subjects and that they have leave to depart with all that belong to them and that they themselves were to assist them in their return and this was granted by themselves to Grobbendonck at the business A. D. 1629. of Bois le Duc where they could not detain the King of Spain's Subjects for theirs much less than the K. of Englands And to which I shall only add
Forreigners that do all things rather rashly inconsiderately and out of ignorance of the Laws But even this is not excusable where such a City or Community shall connive at any Fugitives or Forreigners committing such a Crime who must there Contract the Guilt by Imputation for not having hinder'd it before it was committed to this does he apply the Arguments of Cicero against Piso of a Consul that permits others to offend of the saying of Salvian That he that has a power to prohibit an ill Act and omits it does in effect command it and that Soveraign Princes who are able to prohibit Crimes approve them if they permit them to be done and who are bound to take care that others offend not And another of St. Augustine himself That he that does not in such cases resist and oppose seems to give his consent and this being a piece of Divinity that interferes with the Politicks as Grotius observes our Author * Vid. Vind. pag. 7. I hope will pardon this little Digression out of the Province he has put upon me And for the Roman and Fabian Laws of Masters being punisht for the permission of their Servants Faults Parents for their Childrens knowing of the Commitment and being able to restrain it both which are too apparent in this Contested point all these Cases arising only from Natural Equity or Religious Rules and Observances are all by their own Statesman and a Vid. Grotius ut Supra most Learned one too apply'd by a parity of reason to Princes and their Subjects their Kingdoms or their Common-wealths King David in the business of Rabbah and the Ammonites made it the Crime of their City for not hindring those Indignities done him by some their Inhabitants And if we may venture once more upon our Authors Province St. Chrysostom in his Oration involves De Stat. Orat. 1. all the Inhabitants of Antioch in the Crimes of the Statues because though committed only by a few it was not punisht by the Community which general Imputation he says could have been avoided had the Offenders been expelled the City After so Sacred Authority it would be superfluous to add any Examples from such History as is call'd prophane but Politicks as our Author says being more our peculiar Province we may expatiate a little further upon some Presidents drawn from the Practise of the Ancient Governments among the Greeks and Romans as not improper for this place seeing the most modern Constitutions and most renowned States and Republicks do commonly take their Measures from them Thus the Grecian Princes were Condemn'd for not delivering up of their Iphigenia and Polybius blames the Aetolians mightily who while they would not willingly appear Enemys to Philip yet suffer'd some of their Subjects openly to act against him and when the Queen of the Illyrians would have excus'd her self to the Senate of Rome that the Depraedations of some of her Subjects were done without her Knowledge or Approbation she was answer'd that no Prince could plead ignorance of what was frequently and publickly done and that she was answerable for not forbidding that injury to her Allies which she must be presum'd to know Our Authors most Injurious Reflections on the King and his Government have been repeated often Publisht and openly own'd so that there is but little need of that proof that may be desir'd and I wish there were less too for these Unhappy Applications Those that tell us * Vid. Resolution of the States Generals That it is such an agreeable thing to nature That he who is born free should have the liberty of setling himself wheresoever he shall think it most advantageous for him I fear will find too from what has been here said that the Laws of Nature and Nations as agreable as they represent them are utterly against the transferring all Allegiance after a Dominion introduc'd I confess such a Notion is agreable to Nature had we no other Common-wealth but that of Mr. Hobs and there would be no need of insisting upon Articles of Peace when we were bound to be in no other State but that of War. * De Jure Bell. L. 2. c. 5. Sect. 24. Grotius himself upon this point of natural Liberty though he gives it as great a Latitude as any of his Countrymen can desire cannot extend it beyond the Restrictions of all Municipal Laws and therefore grants that in some Countrys it is not lawful to renounce their Nation or forsake their City and mentions for an Example that of Mosco and though by the late Laws among the Romans any Citizen might remove his Habitation to another City yet was he still oblig'd to execute such Offices as should be impos'd on him where he first dwelt a special Proviso by those Laws to compel him to pay his wonted Contributions neither were they to depart out of all their Territories without leave but even that Author when he has made this Natural Liberty to be much restrain'd by Municipal Law concludes that it is not so agreable even to Nature and that no number or great Companys of Subjects can be allow'd to desert their Country though some particular Persons may and to Cap our Authors Allegory on the Dispensing Power of the * Reflect 1 part p. 5. Dutch Dikes and the difference of pulling of a flower and breaking an Hedge this Author applies to this Case too that it is one thing to draw water out of a River and another thing to turn the Course of it So that although this Translated Allegiance and Naturalization were so agreeable to Nature in the particular Person of Dr. Burnet yet from the resolution of this their own Lawyer and most excellent Statesmen it is the most disagreeable thing in the World to extend it to so many Regiments and whole Companies for as he wisely concludes from the necessity of the end which by all moral Maxims must create a right by the same Parity of Reason such an unbounded Liberty of settling one's self might be extended to a greater Majority even to the Dissolution of the whole Civil Society And to this I might add That the Consideration that ought to have been had upon some * Vid. The Dutch Answ to the King 's Memorial Resolutions some People have of late given of Our Subjects that were demanded being all Souldiers as well as such a number of People did make such a general Naturalization more disagreeable to Nature since Souldiers must be naturally suppos'd and that in Peace as well as War to be more immediately requisite to the Conservation of a Government than a single Person whose Profession it is not to bear Arms or only a particular Champion at the Pen that under the Obligations of the Gospel of Peace does only disturb the State and would make the Church it self too truly Militant And so highly Injurious has this assuming the Subjects of another Prince been ever resented especially when in Great Bodies