their Parents Vid. Preface to his Observations on Aristotle 's Politicks since the Author in another place affirms that at first a Childe a Slave and a Servant were all one without any difference I see no divine Charter in Scripture of any such absolute despotick power granted to Adam or any other Father The Author in his Observations on Grotius de Jure belli c. founds this dominion of Adam over the Earth and all Creatures therein on Gen. 1.28 and quotes Mr. Selden in his Mare Clausum where he says That Adam by donation from God was made the general Lord of all things not without such a private dominion to himself as did exclude his Children c. From which words I do not conceive that Adam's absolute power over his own Off-spring can be made out for the words are spoken as well to the Female as Male of Mankind Be fruitful and multiply and replenish the Earth and have dominion over the fish of the Sea c. and over every living thing that moveth in the Original creepeth upon the face of the Earth By which words Adam hath no power conferred upon him over his own Children when he should have them These words implying no more than a conferring of a power by God on Mankind under these words of Male and Female and was not at all personal to Adam or Eve alone whereby they might subdue or tame the Brute Creatures for their use not comprehending those of the same kind with themselves since the general words extend no farther than to every living thing that creepeth upon the Earth nor does Gods grant of the Creatures to Noah comprehend more than this Onely God there gives man a priviledge to kill the Creatures for Food which Adam had not Which shews that Adam was so far from having any such power of Life and Death over his own Children that he had it not so much as over Brute Creatures Since if he had this power as a Monarch it is highly probable that being the Father of all Men in the world and having by the murder of Abel not onely lost a Son but a Subject it had been his Right alone to have punished Cain the Murderer Whereas we finde Cain Gen. 4. v. 14. upon his conviction of the Murder telling God that every one that findeth him should slay him and therefore v. 15. God set a mark upon Cain lest any finding him should slay him From whence we may infer 1. That it was a Law of Nature then that Murder was to be punished 2. That this Right of punishing did not belong to Adam as a Father alone so as to have power of Life and Death over his Children since the Text does not mention that he was afraid his Father should put him to death but every one that met him Neither does God set a mark upon him to secure him from Adam but from any body else that should light on him From whence it follows that if Adam had no more right by Gods concession to take away his Sons life for the murder of his Brother which is one of the greatest offences he could commit than any other of his Brethren or Kinsmen there is no reason why he should have it in any other case And as for what the Author says That this Lordship which Adam had over the whole World the Patriarchs by a Right descending from him did enjoy which was as large and ample as the absolutest Dominion of any Monarch which hath been since the Creation I cannot understand how this Right derives it self from Adam For he tells us but a little before p. 12. That Civil Power not onely in general is by divine Institution but even the Assignment of it specifically to the eldest Parents Therefore granting that all the Patriarchs from Abraham to Jacob's twelve Sons inclusively assumed a power of Life and Death over their own Families 1. I desire to know how this Right can be derived from Adam for the Right of supream Monarch of the world descending upon the eldest Son of Adam whom we will suppose to have been Seth since Cain might forfeit his Birthright this power of Life and Death could onely be truly vested in the eldest Grandchild or descendant from Seth which I suppose the Author means by eldest Parents or else he talks nonsence And that Abraham was this eldest Grand-son of Seth will be hard to prove since it is not apparent from Scripture whether Shem or Japhet were the eldest Son of Noah or Abram or Nahor the eldest Son of Terah And the Fathers and ancient Commentators on this place are divided in their opinions concerning this point And it is plain from divers places in Scripture that the eldest Son is not always first named But supposing that Shem was the eldest Son of Noah it does not appear that Arphaxad from whom Abram descended was his eldest Son since the Scripture does not undertake to give us the names of all the Sons of Shem but onely of Arphaxad as his name was necessary for the deriving of the Genealogy of Abraham the Ancestor of the Jewish Nation But if any man will answer as the Author does p. 21. that this right Heir of Adam coming by length of time to be lost this supream Kingly power became devolved to all independent Heads of Families then this Right of Adam as Lord and King of the whole World as the first man must certainly be extinct since none but the true Heir could have a Right to that according to the Author's principles So that this power of Life and Death which the Author will have the Patriarchs to have exercised over those of their Family must belong to them either as Fathers or else as Masters or Heads of their particular Families and not as Heirs to Adam But since the Author seems to found this Power of Adam upon Mr. Hunton's concession See Anarchy of a limited Monarchy p. 264. That it is God's Ordinance that there should be Civil Government because Gen. 3.16 God ordained Adam â—o rule over his Wife and her desire was to be subject â—o his and that as hers so all theirs that should come â—ut of her First all Expositors look upon these words â—s respecting only a Conjugal and not Filial Subâ—ction Neither were they spoke in the state of Naâ—ure or Innocence but after the Fall Neither for all â—hat did Adam or any other Husband by these words â—cquire an absolute Authority over the Life of his â—ife in the state of Nature so that she hath no â—ght left her to defend herself from the unjust violence 〈◊〉 rage of her Husband Therefore since this Power 〈◊〉 Adam over Eve and her Children cannot be preâ—nded to belong to him as a Father but as a Master 〈◊〉 a Slave and those that shall be descended from her 〈◊〉 were worth while to enquire what Power a Father 〈◊〉 Master of a Family can claim separate from any â—ommonwealth as we will suppose
Sons of Esau and Ishmael are reckon'd as so many independant Princes or Dukes and Lords of distinct Territories without any Superiority in the eldest Son who ought by the Authours Principle to have been absolute Lord over the rest And if these could divide themselves into as many distinct Governments as there were Sons Why might not they do so in infinitum And then there could never be any common Prince or Monarch set over them all but by Force or Conquest or else by Election either of which destroys the notion of the Natural Right of Eldership And as for the places he brings to prove it 1. Gods words to Gain concerning Abel will not do it His desires shall be subject unto thee and thou shalt rule over him For first this might be spoken only personally to Cain and not to give a Right to all Eldest Sons Secondly the words do not signifie an absolute Despotick Power but a ruling or governing by perswasion or fair means as when a man is ruled that is advised by another in his concerns Then as for the blessing upon Jacob by his Father Isaac Be Lord over thy Brethren and let the Sons of thy Mother bow before thee 't was never litterally fulfilled For Jacob was never Lord over Esau who was a Prince of Mount Seir in Jacob's life-time whilst Jacob was at best but Lord of his own family And as for bowing and other Rights of Superiority we read Gen. 33.3 that Jacob at his Interview with his Brother Esau called him Lord and bowed seven times to the ground before he came to him So that this Text is no more than a Prophecy to shew why the Jews or descendents of Jacob should have Right in After-times to rule over the Edomites or Posterity of Esau Lastly this Example makes against the Authour for it seems it is not the Eldest Son but whom the Father pleases to appoint is Heir after his death Since here Esau looses his Birth right by his own act but chiefly by his Fathers Will. Yet if after all some will urge from the Principles I have laid down that it seems more to conduce to the happiness and peace of Families and in that to the great end I have before laid down the common good of Mankinde rather to allow this absolute Power of Life and Death to Parents over their Children and an absolute Subjection to them as long as they live since Parents do usually take that care to breed up their Children and to have that tender Affection towards them that they will seldom take away their Lives or sell them for Slaves or keep them so themselves unless there be very great cause of which the Father only ought to be Judge since it being the nature of most Children to be apt to contradict and disobey their Fathers commands or perhaps resist them pretending they would kill them when they only go about to give them due correction And since most young people hate restraint and love to be gadding abroad they having a Right by these Principles to judge when they are able to shift for themselves would take any slight pretence to run away from their Father assoon as they were grown pretty big and so perhaps leave their Parents in their old Age when they had no body to take care of them whereby nothing but confusion and quarrels would happen in Families great mischief to the Parents and often ruine to the Children who being often opiniatred and self-will'd would think better of their own abilities than they really deserved And therefore divers Nations seeing these great Inconveniencies did by their Laws leave Parents the Power of Life and Death over their Children Such were those the Author instances in the Persians See Patriarcha p. 38. chap. 2. Gauls and many Nations in the West-Indies And the Romans even in their Popular State had this Law in force Which Power of Parents was ratified and amplified by the Laws of the XII Tables enabling of Parents to sell their Children three times And the Law of Moses gives full power to the Father to stone his disobedient Son so it be done in presence of a Magistrate And yet it did not belong to the Magistrate to inquire and examine the justness of the cause but it was so ordained lest the Father should in his Anger suddenly or secretly kill his Son To all which I answer that since this Argument quits the natural Power of a Father by Generation and only sticks to the acquired one of education and appeals to the common good of Mankinde I do acknowledge it is a better than any of the rest Yet I think it is not true that Parents in the state of Nature would more seldome abuse their power than Children would this Natural Liberty I here allow them of defending and providing for themselves in cases of extreme Danger and Necessity For this Temptation to do ill is greater on the Fathers side than that of the Children For they looking on themselves as having an absolute and unquestionable power over them and that they may deal with them as they please are apt to think themselves slighted and disobeyed by their Children perhaps on very light occasions and their Passion often rises to that height as not considering the Follies and Inconsiderateness of Youth that they may if Cholerick or Ill-natur'd strike them with that which may either kill them or else cripple or maim them and perhaps out of an immoderate Anger or being weary of them murder them on purpose And Fathers being more apt as having oftner occasion to be angry with their Children than their Children with them it is evident to me that in the state of Nature where there is no Magistrate to keep the Father in awe Fathers will be as apt to kill or maim their Children as Children their Parents And if the Fathers as I said before are intended for the good and preservation of their Child and that where their Right ceases the Childrens Right to preserve themselves takes place It seems to conduce more to the general good of Mankinde that the Children should make use of this last refuge of defending themselves when they cannot otherwise preserve their Lives and Members than that Fathers should have such an absolute Right to deal with them as they pleased without any power in the Children to resist or defend themselves So likewise Fathers being so much older understand their own advantage better than their Children and being somtimes more ill-natur'd and often by reason of their Age more covetous than they may be tempted to sell their Children for Slaves whereby they may fall into a condition worse than Death itself and may not the Son then endeavour to run away or use all lawful means possible to escape so great a misery Or if the Father will keep his Son as a Slave all the days of his life without any hopes of ever being free For when the Father dies the Son according to this
in Reuben to have spoke thus since he knew his Father had power to slay his Sons if he thought fit whether he gave him such an authority or not But if it be replied that Jacob when his Sons married might set them at liberty and so give them power of Life and Death that is make them absolute in their respective Families This is gratis dictum and no proof brought of it out of Scripture and therefore may as well be otherwise Nor is it likely that Jacob should thus manumit his Sons since it is apparent they did not then set up distinct Families for we finde Jacob still commanding them as Head of the Family to go down and buy Corn in Egypt saying Go down and buy us that is the whole Family whereof they were Members a little food And yet these Sons did not think their Fathers command so absolute but that they tell him plainly they will not go down unless he send Benjamin with them As for the other Examples of Abram's exercising the full power of a Prince in making War and Peace I will not deny that the Heads of separate Families being out of Commonwealths have many things analogous to them though they are not Commonwealths themselves And the reason why I do not allow them to be so is because the ends of a Family and a Commonwealth are divers and so many parts of a Monarchical Empire are not to be found in Families yet the Heads of such Families may notwithstanding exercise a power of Life and Death in great Offences and also of making War and Peace And this being for the good of the Family they govern and by their implyed consents no body will contradict him in the exercise of this power But this being matter of fact does not prove an absolute and unquestionable Right in the Father of such a Family of doing whatsoever he please and that no Member of the Family hath power in any case to contradict his will for it is rational to conceive that this Father of a Family having had an authority over his Children and Servants born perhaps in his house from their very Infancy and if he be a wise and a good man and hath carried himself as a good Father or Master ought to do toward them should even by their consents as knowing none more worthy than himself retain the exercise of that Authority after they are gown up to be men in which he cannot be contradicted without disorder and mischief to the whole Family So that indeed this submission of the Children and Servants is by a tacite consent to obey the Father or Master in all things tending to the common good of the Family But this proves not this absolute despotick power the Author contends for but onely the most reasonable way of acting for the Families good and whilst the Father exercises this Authority onely for that end which when he transgresses his Right to govern ceases for if this Author would have but considered the state of some parts of Africa he should have found that where the Father will exercise this absolute power and sell his Children for slaves the Children make as little scruple where they are strong enough to put the same trick upon their Fathers Nor can they be justly blamed for so doing until any man can shew me that the Father hath some better Right than meer Custom or Power I shall now proceed to the consideration of those other places he produces out of Scripture for the natural Right of Fathers to be Kings over their Descendants Patriarcha p. 16. First As for the example of Nimrod that makes against him for here the Grandson of Ham who ought to have been a Servant to the Children of Shem and Japhet interrupting this Paternal Empire domineers and tyrannizes not onely over his own Family but the Descendants of the elder Brethren But Sir Walter Rawleigh of which opinion the Author himself is will have him to be Lord over his own Family by Right of Succession but to enlarge his Empire against Right by seizing violently on the Rights of other Lords of Families But however after the confusion of Tongues the Author will have it revive again and the distinct Nations thereupon erected were not confused Multitudes without Heads or Governours and at liberty to chuse what Governours they pleased but they were distinct Families which had Fathers for Rulers over them whereby it plainly appears that even in this confusion God was careful to preserve the Fatherly Authority by distributing the diversity of Languages according to the diversity of Families For so it appears by the Text Gen. 10.5.20.22 But these places will not prove what the Author quotes them for viz. the Monarchical or Kingly power of Fathers for neither does the Scripture or Josephus mention that this division of the World by Noah's Posterity was performed by the Fathers of these Families as absolute Monarchs but it rather seems that their Children and Descendants followed them as Volunteers as retaining a Reverence and Affection to their persons for their great age experience and care of their Families Which * Sir Will. Temple's Essay of Government p. 67. an ingenious modern Author conceives to be the natural original of all Governments springing from a tacite deference to the Authority of one single person And of this opinion is excellent Pufendorf And of this kind were those first Kings which Aristotle calls Heroical whom the People did obey of their own accord because they deserved well of them and either by teaching them Arts or by warring for them or by gathering them together when they were dispersed or by dividing Lands among them Secondly If it were true that these Fathers of Families were so many absolute Kings yet it quite destroys the Author's Hypothesis who will have but one true Heir to Adam who if he could be known had a natural Right to be Monarch of the whole world And though Kings now Patriarch p. 19. are not the natural Parents of their Subjects yet they all either are or are to be reputed Heirs to those first Progenitors who were at first natural Parents of the People and in their right succeed to the exercise of Supreme Jurisdiction and such Heirs are not only Lords of their own Children but also of their Brethren and all others that were subject to their Fathers Whereas we see here no such right of Eldership observed neither among the Sons of Noah nor their descendants but every one as appears from the words of the Text was an independant Head Leader of his own Family by these were the Isles of the Gentiles divided c. and by these viz. the descendants of Shem were the Nations divided c. So likewise the other places he brings concerning the Sons of Ishmael and Esau do destroy the Authours notion of an Heir to the Authority of the Father or that any Son is more Lord of his Brethren than another For all the
Scripture do best serve his turn So that I believe he did not either negligently or ignorantly avoid settling this point because he might still have a hole left to creep out at or else because he could do it no better than the Instances he brings would permit He says Direct for Obedience pag. 68. A Son is always to live under the subjection of his Father unless by Gods immediate appointment or by the Grant or Death of his Father he become himself possess'd of that Power to which he was subject By which words he seems to imply that this Power is to descend to the Eldest Son when his Father dies So likewise in this Treatise we are now upon P. 12. he says Civil Power not only in general is by Divine Institution but even the assignment of it specifically to the eldest Parents By which words I suppose he means if any thing eldest Sons though I know not why he should limit it to Parents for methinks it were very hard the eldest Son should forfeit his Right in case he were not a Parent when his Father died So likewise he tells us P. 19. That these Heirs of this Fatherly Power are not only Lords of their own Children but also of their Brethren and all others that were subject to their Father Yet tells us not plainly which of the Sons is Heir only says a little before That when God made choice of any special Person to be King he always intended that the Issue also should have the benefit thereof Though this general Rule was false in the case of Saul whose Children were disinherited by God to establish the Crown upon David and his Line So uncertain things are Instances drawn from Scripture without any due consideration of the Reason of them But to return to the subject I grant that it is not impossible but from the command of a Father of a Family who hath divers other Families under him there may spring a Civil Government though the Fatherly Authority doth properly regard the Education of the Children and the Masterly Power to encrease Riches And though it is not changed barely by the great number of Children or Servants yet the difference between them is not so wide that there can be no transition from one to the other unless a new Right of Soveraign Majesty be produced by God For if a Father of a Family being provided of a great stock of Children and Slaves will by way of Manumission permit them to enjoy their own Goods and Families apart on that condition that they submit to his Government for their common Security I do not see what is wanting to the making him a Prince if he have strength sufficient to perform the ends of a Commonwealth But he dying and nominating a Successour if his Sons will consent to him and confirm his Will they may if they please if not all of them as in an Interregnum may appoint what sort of Government they will have for the future Nor will the Law of Nature be violated if the youngest Son having most Votes should be elected in his Fathers stead I should be glad any man could demonstrate to me from the Laws of God and Nature that Adam's eldest Son was by the Right of Eldership to be Lord over his Brethren without their Election or Consent when their Father died Indeed the Jewish Law allow'd a preheminence to the Elder Brother and that he should have a double portion and be reverenced by all his Brethren exprest by this Phrase of Let thy Mothers Sons bow before thee But this proves not that as Eldest Son he had therefore a Right of exercising all that Authority upon the Death of their Father over his Brethren which his Father had before Neither had Jacob any such Right over Esau though he sold his Birthright or the eldest or any other Son of Jacob any such Right over his Brethren for certainly God would not have abrogated it if they had So that Jacob's Authority as a Father ended with his Life and for any Despotick Propriety or Dominion over them I have already proved that the Father has none in the state of Nature Yet admitting he had the Children notwithstanding would have been free at his Death For Servitude being a mere personal Duty due only to the person of him that acquired this Slave when the person dies to whom he owed this subjection the Slave is free in the state of Nature unless the Lord of this Slave transferr'd his Right in him to another in his life-time a mans Person not being like a brute beast to be seiz'd by whoever can lay hold of him he hath no longer any obligation to serve his Children unless he will make himself their Slave of his own accord But if it be answered that the Father may bequeath this Right of Dominion over his Children at his Death by his Will to which of his Sons he pleased and that he that is so constituted by their Father is Lord over all the rest of his Brethren and endeavour to prove this from Genesis the 9. vers 25 26 27. where Noah cursing Canaan because Ham his Father had derided his nakedness says He shall be a Servant unto his Brethren I desire you would take notice that this Answer quite gives up the Natural Right of the Heir or Eldest Son 2. I suppose this rather was a Prediction or Curse to be fulfilled in Canaan's Posterity than upon himself For first this Right was not given as it ought to have been over the Person of Ham the Offender Observat on Grotius p. 49 50. whom this Authour allows to have had an equal share with his Brethren in the division of the World and so to have been in all Prerogatives equal with them Neither doth he give this Right to one of them bâ—… to both alike saying both of Shem and Japhet that Canaan should be their Servant which could not be meant of his person since that could not be divided by them both who were like to live at so great a distance therefore it can onely signifie that his Descendants should be slaves to the others And several Commentators upon this place do suppose that Moses related this Curse of Noah upon Ham onely to shew the Jews the Right they had to make slaves of the Canaanites because they were descended from Canaan And as for the Right of bequeathing slaves by Testament it is much disputed whether by the Law of Nature Testaments have any force in this case those that have written of it being much divided about it in the state of Nature since all Propriety in that state being but Occupancy or Possession which ceases with the life of the Occupant Therefore since a Testament commences onely from the Testators death who as soon as he died lost his Right in the Goods bequeathed since the dead can have no interest in any thing neither can the Legatee sustain the person of the Testator since this
have survived his Father If he say that Adam might leave it to Seth by Will this is gratis dictum and it lies upon him to prove that Adam made a Will or if he did how it could bind his true Heir If he say that Seth ought to succeed and govern his Brethren as being nearer in bloud to Adam what reason was there that the eldest Son's son should be punished and lose his Birthright for that which was not his fault but misfortune viz. that his Father was murdered before his Grandfather died Nor could Seth claim being elder and consequently wiser than his Nephew for his Nephew must be older since Seth was not born until after Abel was killed But if it be affirmed that the eldest Son of Abel ought to succeed and represent his Father I ask by what Law If it be replied that it is to be supposed that Adam if he had made a Will would rather have had his Grandson succeed him than his younger Son this is gratis dictum and were to affirm that the Right of governing is bequeathable which I have already confuted But if it be said that this Son of Abels should succeed because he represents his Father I would ask them by what Law this Right of Representation should take place before propinquity of Bloud or how could the Fathers expectation onely confer a Right to his Son in that which the Father was never possessed of So that there being equal Reasons on both sides and neither Law nor Precedent in the case there remained no way to decide this Controversie but either Combate or the Judgment or Arbitration of the rest of Adam's Descendants I suppose the Author will not allow the former sufficient to confer a good Title since the best Title might have the worst success in that Appeal to the Sword If he allows the latter then this hereditary Monarchy of Adam became Elective and depended upon the Will of all the Heads of the Families which descended from Adam For it is not likely in so doubtful and material a point as who should govern any of them would lose the priviledge of giving his Vote And if so this Right of Succession depended upon their Wills which might give it to which of the two Competitors they liked best and this being once done might for quietness pass into a Custom or Law for the future And that this Right of Representation where the Son dies before his Father cannot be decided by the Law of Nature or Reason alone is evident in that divers Nations or distinct Tribes of People have had different Customs about it and have established this Right of Succession divers ways For though the Roman or Civil Law allow of this Right of Representation yet the Germans and all Nations descended from them did not admit it until very lately See Grotius de J. B. Li. cap. 7. which shews there is nothing but Custom in the case And upon this pretence the League in France admitted the Cardinal of Bourbon King by the name of Charles the X before his Nephew the King of Navar his elder Brothers Son who died before him And that this difficulty who shall succeed the Uncle or the Nephew hath still perplext mankind in all Countries where the Succession hath not been settled by positive Laws or long Custom which is but the continued Will of the People may appear by those different Judgments that have been in all Ages made on this matter for when there arose a Controversie between Areus Son of Acrotatus eldest Son to Cleomenes King of Lacedaemon and Cleomenes the second Son of the said Cleomenes the Senate adjudged the Royalty for Areus against Clomenes But in Spain Mariani l. 13. c. 3. after the death of Alphonso the V King of Castile the States of Spain acknowledged his younger Son Sancho to be King and put by Ferdinand de la Cerda the Grandson to the late King by his eldest Son though he had the Crown left him by his Grandfathers Will. And when Charles the II King of Sicily died Vicerius in Vita Henry 7. and left a Grandson behind him by his eldest Son surnamed Martel and a younger Son called Robert the matter being referred to Pope Clement V he gave judgment for Robert the younger Son of Charles who was thereupon proclaimed King of Sicily And it seems Glanvil who was Lord Chief Justice under Henry II makes it a great Question who should be preferred to the Crown the Uncle or the Nephew So that it was no strange thing for King John to make himself King before his Nephew Arthur since it was a moot point among the Lawyers of that Age who ought to succeed And where no Power could intervene it was decided by War and sometimes single Combats which Historians mention to have been waged between Uncles and Nephews contending for the Principality and not onely in this case but in all others where the Succession of the Empire is not settled by such Laws or Customs it lies continually liable to be disputed between the Sons or Grandsons of the last Prince nor can ever be decided but by the Sword Of which there is an Example in one of the greatest and most absolute Monarchies in the world viz. the Empire of the Mogul where for want of settling the Succession at first by a positive Law See Bernier's Travels 1 part and Tavernier Lib. Sir Tho. Row's Embassie Purchas part Terrey's Relation of Indostan and making the Raias Omrahs or great Lords give their consent to it and swear to observe it and so have made and ascertained it as an inviolable Custom as it is in the Ottoman Empire now upon the death of an Emperour though he declare by his Will who shall be his Successor yet the Grandees who are so many petty Princes and lead the People under their Command after them as they please do not think themselves at all obliged to observe it much less to set the Crown upon the eldest Sons head but every man is for that Son of the last Mogul whom they like best that is him they conceive will suit best with their interests and designes Nor do the Brothers think themselves at all obliged to yield to their eldest Brother whom they are assured will put them to death or make them perpetual Prisoners So that every one provides for himself and makes his Party as strong as he can by Gifts and Promises among the Grandees against his Fathers death Nay lately this prize hath been played among the Sons even in their Fathers life-time as in the case of the late Sha-Jehan who lived to see all his Sons killed and his person made a prisoner by his youngest Son Aureng Zebe who is for ought I know Mogul at this day And if any man thinks this onely an Evil peculiar to this Empire and not to others let him but read the Histories of the several Revolutions and Changes in all Moorish and Eastern Monarchies
Geneva Discipline have built this perilous Conclusion That the People or Multitude have power to punish or deprive the Prince if he transgress the Laws of the Kingdom And for this quotes the Writings of divers Jesuits How far this Tenet deserves the Author's Censure and is liable to the Conclusions he says some have drawn from thence since the truth or falshood of Propositions does not depend upon the men that have made use of them I shall consider hereafter now confining my self onely to examine the Reasons he brings either in this or any other of his Treatises to overthrow this Opinion And if they prove weak and insufficient for the end the Author designed them some Friend of his or his Tenets had best finde out others which if they prove and appear evidently true I shall then rest satisfied and acknowledge my self absolutely convinced In the mean time I shall now give you the Author's Hypothesis all at once in his words that you may judge whether I deal fairly with him or no. P. 5. To pass over therefore his Cautions which are honest and sober I shall come to what he observes upon several passages of Bellarmine And though he does not quote the places from whence he took them yet I hope he hath dealt fairly with him Though I shall not take upon me to defend the contradictions or false consequences either of this or any other Author since I onely observe the onely Answer which p. 11. Sir R. F. gives Bellarmine's Argument for the natural Liberty of the People is out of Bellarmine himself whose words are these If many men had been created together out of the Earth they ought all to have been Princes over their Posterity In which words the Author says we have an evident confession that Creation made Man Prince of his Posterity And indeed not onely Adam but the succeeding Patriarchs had by right of Fatherhood Royal Authority over their Children Nor dares Bellarmine deny this That the Patriarchs saith he were endowed with Kingly power their deeds do testifie for as Adam was Lord of his Children so his Children under him had a Command and Power over their own Children but still with a subordination to the first Parent who was Lord Paramount over his Childrens Children to all Generations as being the Grandfather of his People Which conception of Bellarmine though it may destroy his Argument for natural Freedom yet I conceive that it does not destroy the necessity of supposing all the Kingdoms and Commonwealths now in being in the world to have had their beginning from Conquest or else from the Consent or Institution of the People who began it as I shall endeavour to prove more at large But from this concession of Bellarmine's the Author taking this as a yielded point proceeds thus P. 12. I do not see how the Children of Adam or any man else can be free from Subjection to their Parents And this Subjection of Children being the Fountain of all Regal Authority by the Ordination of God himself it follows That Civil Power not onely in general is by Divine Institution but even the Assignment of it specifically to the eldest Parents Which quite takes away that new and common distinction which refers onely Power Vniversal and Absolute to God but Power Respective in regard of the special Form of Government to the Choice of the People P. 13. This Lordship which Adam by command had over the whole World and by right descending from him the Patriarchs did enjoy was as large and ample as the absolutest Dominion of any Monarch which hath been since the Creation For Power of Life and Death we finde that Judah the Father pronounced sentence of death against Thamar his Daughter-in-law for playing the Harlot Bring her forth saith he that she may be burnt Touching War we see that Abram commanded an Army of 318 Souldiers of his own Family and Esau met his brother Jacob with 400 men at Arms. For matter of Peace Abraham made a League with Abimelech and ratified the Articles with an Oath These Acts of judging in capital Crimes of making War and concluding Peace are the chiefest Marks of Soveraignty that are found in any Monarchy And not onely until the Flood but after it this Patriarchal power did continue as the very name Patriarch doth in part prove The three Sons of Noah had the whole World divided amongst them by their Father for of them was the whole World overspread according to the Benediction given to him and his Sons Be fruitful and multiply and replenish the earth Then he proceeds upon a vulgar Opinion p. 14 15. That at the Confusion of Tongues there were 72 distinct Nations erected not as confused Multitudes without Heads or Governours but they were distinct Families which had Fathers for Rulers over them whereby it appears that even in the Confusion God was careful to preserve Paternal Authority by distributing the diversity of Languages according to the diversity of Families And for this he quotes the Text Gen. 10. v. 5. Speaking of the division of the Isles of the Gentiles among the Sons of Japhet it follows v. 5. These are the Families of the Sons of Noah after their Generations in their Nations and by these were these Nations divided in the Earth after the Flood So that though the manner of this Division be uncertain yet it is most certain the Division it self was by Families from Noah and his Children P. 16. As for Nimrod's being King over his own Family by Right and over other Families by Usurpation and Conquest and not by Election of the People or Multitude he gives us Sir Walter Rawleigh's opinion that it was so which I think is no better a proof than if he had given us his own but if it were true it proves no more than that this Patriarchal Right could not long continue since it was usurped in the Grandchild of Ham the fourth discent from Noah But he proceeds thus As this Patriarchal Power continued in Abraham Isaac and Jacob even unto the Egyptian Bondage so we finde it amongst the Sons of Ismael and Esau it is said These are the Sons of Ismael and these are their names by their Castles and Towns Twelve Princes of their Tribes and Families c. P. 18. He owns this Paternal Government was intermitted during their Bondage in Egypt because they were in subjection to a stronger Prince But after the return of the Israelites out of bondage God out of a special care of them chose Moses and Josuah successively to govern as Princes instead of the supream Fathers And after them God raised up Judges to defend his People But when God gave them Kings he re-established the ancient and prime Right of Lineal-succession to Paternal Government And whensoever he made choice of any special person to be King he intended that the Issue also should have the benefit thereof as being comprehended sufficiently in the person of the Father although the Father
as his Lord and Master without his consent Suppose then that Adam had been so cruel and unnatural as some Fathers are and being sensible of the profit he received from his Sons labours would never have given them leave to have left his Family and have set up for themselves nor to have had any thing of their own but onely allowing them and their Wives a bare subsistance have kept them like slaves as long as they lived the Author I suppose would reply That he might have done so if he had pleased and that the Sons had no lawful means to help themselves since he onely was Judge when or whether ever it was fit to set them free or no. But I desire to know whether Adam had this power by a natural Right or an acquired not by the latter for I have already proved that neither Generation nor Possession can confer an absolute Right over the person of another Nor yet could he have it by the Sons consent for they would never give their consent to such an absolute slavish subjection Nor yet could he have any such Right by the revealed Will of God since I have also proved that such an absolute subjection is nowhere requir'd by him in Scripture But now to return to the acquired Right of Education neither can that confer so absolute a power over any mans person as that therefore he should be a slave to his Fosterer as long as he liv'd since admitting that the Father or other person that takes upon him that care may perhaps justly claim a Right in the service or labour of the Childe to satisfie them for their trouble and charge in bringing him up Yet it does not therefore follow that this service is due as long as the Childe lives but rather until such time as they can make his labour satisfie them for their charge and trouble in keeping him which may very well be by that time the Child attains to twenty five years of age at farthest And there are those that have offered to breed up and maintain all the Foundlings and Bastard-children in England if they may be bound to serve them until about that age So that I see no reason why a few years Education should give any man a Right over another person as long as he lived But if it be urged that the Childe owed his life to his Father or Fosterer since without his assistance he must have perisht and therefore the service of the Child 's whole life is but little enough to recompence it to this I answer That the Parents are under an absolute obligation by the Laws of God and Nature to breed up their Childe and they sin if they do not perform it as they ought the end of a Father not being chiefly for the breeding up and preservation of the Child and therefore there is no reason he should acquire such a property in him meerly because he did his duty and the intent of a Father being to better the condition of his Son and not to make it worse I doubt whether an absolute or perpetual Servitude or Death it self were the better bargain and if this Right will not hold for the Father himself much less will it for a Fosterer since he is likewise obliged by the Laws of Nature and Humanity if he be able to breed up the Child he finds and not to let it perish So that the advantage he may make of the Child ought not to be the principal end of his undertaking but the doing of good to mankind and the advantage is to be considered onely as an encouragement not as the onely motive to his duty since he is obliged to do the same thing though he were sure the Childe would either die or be taken away from him before it could be with him half long enough to satisfie him Neither does this reason hold true according to the Scripture-rules of Gratitude that a man hath Right to exact of one to whom he hath done a Courtesie or bestowed a Benefit a Return as great as the Benefit bestowed since this were not beneficence but meer bartering or exchange And a man who had his life saved by anothers assistance suppose by pulling him out of the water was obliged by this principle to leave his life at his disposal ever after Therefore I see no reason from all that hath yet been said why a Son when he comes to be a man able to shift for himself may not in the state of nature marry and separate himself from his fathers Family even without his Fathers consent if he cannot otherwise obtain his liberty by his entreaty and all fair means Not but that the Father may if he please disinherit his Son for so doing or for marrying without his consent since every man is free to dispose of his own upon what conditions he thinks fit And the Son was to have considered before-hand which he valued most his own Liberty or his Fathers kindness and the hopes of his share of his Estate after his death But I now come to the Author 's main Argument from Scripture-Examples That the Patriarchs by a Right derived from Adam did exercise as Heads of their respective Families a dominion as absolute as that of any Monarch And so instances in Thamar brought out to be burnt by her Father-in-law Judah Touching War Abram 's commanding an Army of 318 Souldiers of his own Family Esau 's meeting his Brother with 400 men at Arms For matter of Peace Abram 's making a League with Abimelech And that these acts of judging in capital Crimes of making War and Peace are the chiefest marks of Soveraignty that are found in a Monarchy All which I shall endeavour to answer First The instance of Judah rather makes against him for he confines this power before to the chief Father of the Family and will never have Children to be free from subjection to their Fathers whereas in this case Judah as Head of his own Family exercised an absolute power of Life and Death and so was free from subjection to his Father Jacob who was then living And suppose as the Text Gen. 38. expresses Judah went down from his Brethren to a certain Adullamite and there married and set up a distinct Family yet this will not help the Author since p. 33. he will not allow the Fatherly Authority to be confined to one Family if the Families were at such a distance as they might receive their fathers commands which lies upon him to prove And therefore this subjection was not perpetual Secondly I shall shew by another Example that the Head of a Family hath not absolute power of the lives of his Children and Grandchildren and that is from Reuben's pathetical Speech Gen. 42. to his Father Jacob when he refused to send Benjamin with him into Egypt Slay my two sons says he if I bring him not unto thee Now if Jacob had this absolute power as a Father it had been impertinent
Authour is to be Servant to his Eldest Brother or to whomever else his Father pleased to bequeath him Is not the case the same And as for the quiet of the Family which is supposed to be preserved by the Sons absolute submission rather than his resistance in any circumstance I think it would rather increase Dissentions by encouraging of Fathers to use their Power over their Children not as Reason but Drunkenness or Passion may impel them Whereas this Right of Children in defending their Lives and not being obliged to give them up at their Fathers pleasure will rather make Parents act moderately and discreetly towards their Children when they know they are not obliged to stay or bear with them upon other conditions than that they may enjoy their Lives in safety and the ordinary means thereof with some comfort Not that I give Children any Right as I said before to disobey their Parents or resist them upon every slight occasion but rather to bear with their Infirmities as far as it is possible And to suffer divers Hardships and Inconveniencies from them rather than to resist or leave them considering the great obligation they owe them So that I do not allow this Remedy but in case of extreme Necessity yet of which the Sufferer only in the state of Nature can be Judge since in that state where there is no Umpire without both their consents but God only every man is Judge when his Life is in danger And if the Peace of Mankinde were to be procured merely by a mans Sufferance and Submission without any respect to this Right then it would be his duty to give himself up to be robb'd or kill'd by any one who had the wickedness to attempt it because himself being innocent may go to Heaven and the other being guilty of an intent to rob or murder may be damned if he be killed And besides it would more conduce to the preservation of Mankinde that but one man should be lost whereas by resistance they may both perish Yet I suppose no man is so sottish as to hold he ought quit his own preservation in these cases or if he do hold it for discourse sake I am sure he would not be so mad as to observe it For this were such an Argument as to hold Because some men may abuse that Law of Self-preservation to another mans destruction Therefore it were unlawful to defend a mans self at all As for the Examples of those Nations and Common-wealths who have permitted Fathers to exercise a Despotick Power over their Children The Law of Nature or right Reason is not to be gathered from the Municipal Laws or Customs of any particular Nation or Commonwealth which are often different and contrary to each other Therefore as to the Jewish Law though I will not say it was contrary to the Law of Nature yet it was extremely rigorous and severe in all its dispensations and does not now oblige Christian Common-wealths in this particular as in divers others much less in the state of Nature And as for the Romans they saw the inconveniencies of this Absolute Power and retrenched it by degrees until it came to be no more than now with us and in most Countreys of Europe So likewise the Arguments which Bodin brings for the absolute power of Parents over their Children depending upon the Roman and Jewish Law may be easily answered from these grounds Having as I hope clear'd this main point of Paternal Authority and of Natural Obedience without giving an extravagant power to Parents on the one hand to abuse their power or a priviledge to Children on the other side to be stubborn or disobedient to their Parents If then this Paternal Authority extend farther than I have seated it I shall own my self beholding to any Friend of the Authour 's or his Opinions to shew me my errour But if they cannot I desire they would consider whether this natural Right of Kings which the Authour asserts precedent to any compact or civil constitution can extend farther than the natural Authority of Fathers from whom they are supposed to derive it and on which it is founded And if it appears that Princes have such Power as our Fathers then all that the Authour hath writ on this subject signifies just nothing Therefore I shall now proceed to examine the rest of his Principles and shall I hope prove that supposing this Fatherly Power as absolute as the Authour fancies yet that his Divine Absolute Monarchy cannot however be derived from thence The Authour seems to think it a Question very easie to be answered If any one asks what comes of this Right of Fatherhood in case the Crown Fatherly power escheat for want of an Heir whether it fall to the People Patriarch P. 20. or what else becomes of it To which his Answer is That it is but the Negligence or Ignorance of the People to loose the knowledg of the true Heir for an Heir there is always If Adam were still living and now were ready to die it is certain that there is but one Man and but one in the world who is next Heir although the knowledge who should be that one Man be quite lost So that this fine Notion signifies nothing now for Adam being dead and his right Heir not to be known it is all one as if he had none since for ought I know to the contrary the Authors Footman may be the Man But to help this the Author hath found out a couple of Expedients such as they be The first is Directions for Obedience p. 69. That an Vsurper of this Power where the knowledge of the right Heir is lost being in by possession is to be taken and reputed for the true Heir and is to be obeyed by them as their Father And if this will not do he gives us another and tells us Patriarch p. 21. The Government in this case is not devolved upon the multitude but the Kingly power escheats in such cases to the Fathers and independent Heads of Families For every Kingdom is resolved into those parts of which it was first made Each of which we will examine in their turn To begin with the former let us see if it be so easie a thing as the Authour makes it to know who was Adam's or any Monarch's right Heir setting the Municipal Laws of the Country aside so that the People cannot be excused of wilful Ignorance or Negligence if they loose this knowledg Where by the way I observe that as easie a thing as it was to know who was Adam's right Heir and upon whom by the Laws of God and Nature the Crown is to descend upon the Death of the Monarch yet he no where positively answers this important Question For sometimes he is to claim by descent as in this instance of the Heir of Adam sometimes by his Father's last Will as in the case of Noah's Sons according as the Examples out of
Right ceased before that of the Legatees could begin So that it seems to me at present that the power of bequeathing either the persons of men or goods was but a consequence of an absolute Propriety in things which arises from Compact in a Common-wealth as I shall hereafter prove Therefore out of this State a Will cannot bind the persons of the Children or Servants so bequeathed And for this cause we find Abraham Gen. 24. v. 2 3. binding his Servant that ruled over his House with an Oath not to take a Wife for his Son of the Daughters of the Land And Gen. 49. v. 29. Jacob taking an Oath of Joseph not to bury him in Egypt because they doubted whether they could oblige them to do it by their Testament But as for the Right of bequeathing Crowns or Kingdoms by Testament as I will not deny but that some Kingdoms may have been so bequeathable by their Constitution and others become so by Custom yet I cannot grant that this Right belonged to the Prince or Monarch by the Law of God or Nature but proceeds purely from a continued Custom of the Kingdom or Civil Law thereof else why had not Henry VIII or Edward VI power to limit or bequeath the Crown to whom they pleased as well as William the Conquerour And to look into other Countries what now renders Women uncapable of succeeding to the Crown of France yet capable of inheriting that of England Spain and divers other Kingdoms of Europe but the Customs or particular Constitutions of the Estates of these Kingdoms which no Will or Testament can alter What else hinders the Grand Seignior that he cannot disinherit his eldest Son if he survive him Vid. Mezeray Abregé Chron. An. 1317. Phil. le Long. but the Custom of the Ottoman Empire And what is this Custom but as the Author himself acknowledges in the case of England the Commom Law of the Country Freeholders Inquest p. 62. which is said to be Common Custom Thus to protect the Customs which the Vulgar shall chuse is to protect the Common Laws of England So that it was the Will of the People and not the Prince alone that made this a Law for if this Law of the Succession of the Crown depended upon his Will then if he be an absolute Monarch that when sufficiently declared being the onely Law might alter it when he would 〈◊〉 and so he might bequeath the Crown to whom he pleased But every one that understands the present Laws of Descent of the Crown of France or the manner of Succession in the Ottoman Empire knows that i◠the King of France or Grand Seignior as absolute as they are should bequeath their Kingdoms to any other than the right Heir this Will would signifie nothing and no body would obey this Successor of their appointing And if any man think to evade this by saying That the Succession of the Crown is a Fundamental Law of the Government and that a Prince may be Absolute and yet not have a power to alter that as he may every thing else I would ask him who made this a Fundamental Law at first whether the King then in being or the King with the Consent of the People upon the first institution of the Government If the King made it alone since he is supposed to have made it at first for the good of the People of which he is the Judge and is supposed in Law never to die why then is not he as competent a Judge of what is good for the People now as a King that lived a thousand years agone was what was fit for the People then and consequently hath as much Right of altering the Succession for the Peoples benefit as he that established it at first since every Law may be altered by the same Power that made it But if he say it is a Fundamental Law because long custom hath made it so then it is apparent such a Law hath its force from the Consent of the People at first or since Custom being nothing else Or lastly if he will acknowledge that the Consent of the People was necessary to make this a Fundamental Constitution then it can neither be altered without their Consent and so consequently no Princes Testament is good as to that farther than the People or their Representatives give their assent thereunto And the same Law holds in the Father of a Family since this Author will have no difference between him and a King but onely secundum Magis Minus If then there be no Right in the state of Nature for a Father to bequeath his Dominion over his Children by his Testament let us return again to that of Descent and see if that will prove a better foundation to build this natural Right of Princes upon For my part I think that it is not onely impossible to know who was Adam's right Heir of his Fatherly Power now after five or six thousand years but might likewise be as uncertain as soon as ever the breath was out of his body For supposing Eve survived him why should not her natural Right of governing the Children which she her self brought forth and which out of Wedlock would have belonged to her revive and take place before any Right of her eldest Son to whom upon this ground she must have become subject if she would continue part of the Family or natural Commonwealth which she could not avoid there being none but her Children or Grandchildren in the world and it being against the nature of Government to allow two Absolute Heads in the same Family or Commonwealth So that for ought I see the Mother of the Family hath the best Right to the Government in the state of Nature after the Husbands death upon the Authors own grounds For if the Commandment of Honour thy Father and thy Mother signifie more than bare Reverence and Respect as appears by the Apostles Exposition of this Commandment Ephes 6. v. 1. Children obey your Parents in the Lord which he makes the same with Honour thy Father and thy Mother then this Obedience which was due to the Father belongs likewise to her when his power ceases But passing over this difficulty and allowing this Fatherly Authority to descend to Adam's next Heir it might have been a great Question who this next Heir was supposing Cain to have been disinherited for the murder of Abel and to have gone away and built a City and set up a Government by himself Yet let us suppose Abel left a Son behind him who survived Adam his Grandfather which he might very well do and yet the Scripture be silent in it since the intent of Moses in his Genealogies being onely to give us the Pedigree of the Jews and therefore says little of his other Children but by the by I would ask the Author or any man else who was Adam's Heir after his death whether this Son of Abel or Seth whom we will suppose likewise to
or Record the Prince in being hath onely a Right from Possession and can never create himself a Title by the continuation of his own Injustice or command any of his Subjects to fight against this true Heir since they are to obey this Vsurper p. 72. or his Heirs onely in such things as tend to their own preservation and not to the destruction of the true Governour By which Principle the Author at once renders the Titles of all the Crowns in Europe disputable and all Allegiance uncertain and questionable by their Subjects as I shall shew in several instances as I shall prove from Histories of unquestionable credit I shall begin with our own Country England If therefore as the Author will have it p. 69. the Usurper is onely then to be taken for the true Heir when the knowledge of the right Heir is lost by all the Subjects it will follow that all the Kings and Queens that reigned in England until the coming in of K. James were Usurpers for the Right of Succession to the Crown of England could not be obtained by Conquest alone And I suppose this Authour does not allow it to be bequeathable by Will as long as the right Heir was in being and could be known from authentick Histories and Traditions Now the Right of the Crown by Descent belonging after the death of Edward the Confessor to Edgar Atheling his Cousen he dying without Issue the Right fell to Mawd his Sister who married Malcolm III Buchanan de Rebus Scoticus lib. 7. King of Scotland and though her Daughter Mawd was married to Henry the first King of England from whom all our Kings are descended yet the Right was not in her but in Edgar King of Scotland her Brother from whom all the Kings of Scotland to King James were descended It is true the Kings of Scotland were too wise ever to set up this Title because they knew the Norman Race were quietly possessed of the Throne and had been admitted and confirmed for lawful Kings by many great Councils or Assemblies of the Clergy Nobility and People yet did not this absolve the People who might very well retain the traditional knowledge of this right Heir For divine Right never dies nor can be lost or taken away or barr'd by Prescription So that all Laws which were made to confirm the Crown either to Henry I. or any of his Descendants were absolutely void and unlawful by our Authors principles and so likewise all Wars made against the King of Scotland in person were absolutely sinful and unlawful since according to this Authors principle the command of an Usurper is not to be obeyed in any thing tending to the destruction of the person of the true Governour So by the same Principle all Laws made in France about the Succession of the Crown are absolutely void and it would be a mortal sin in the French Nation to resist any King of England of this Line if he should make War in person upon the French King then in being since according to the ancient Laws of Descent in that Kingdom he is true Heir of the Crown of France Nor can the French here plead ignorance since there is scarce a Peasant there but knows our King stiles himself King of France and quarters the Arms of that Kingdom and so ought to understand the justness of his Title So likewise in Spain Mariana de Rebus Hisp lib. 13 cap. 7. all the Kings of Castile are likewise by this Rule Usurpers since the time of Sancho III who succeeded to the Crown after the death of Alphonso V his Father who had bequeathed it to Alphonso and Ferdinand de la Cerda his Grandsons by Ferdinand his eldest Son who died before him Yet notwithstanding this Testament and their Right as representing their Father the elder Brother Sancho their Uncle was admitted as King by the Estates of Castile and his Descendants hold that Kingdom by no better Right to this day Nor is this a thing stale or forgotten for the Dukes of Medina Coeli on whom by Marriage of the Heiress of the House de la Cerda the right descends do constantly put in their Claim upon the death of every King of Spain and the answer is The place is full Nor can those of this Author's opinion plead possession or the several Laws that have been made to confirm the Crown to the first Usurpers and their Descendants for it will be replied out of this Author p. 70. That the right Heir having the Fatherly Power in him and so having his Authority from God no inferiour Power can make any Law of Prescription against him and Nullum tempus ocurrit Regi And this were to make the Crown elective and disposable according to the Will of the Estates or People I shall now return to the Author's distinction and shew that his distinguishing the Laws or Commands of Usurpers into indifferent or not indifferent signifies nothing for suppose that an Usurper as several have been in England and other Kingdoms either dares not or thinks it not for his interest to alter the form of the Government but is contented for his own safety to govern upon the same Terms his Predecessors did and so will not raise any Money or make new Laws without the consent of the Estates whom he summons for that purpose Now they must either obey his Writs of Summons or they must not if they do not obey them he will perhaps be encouraged to take their Goods by force perhaps by a standing Army which he may have ready in pay and then say it is long of their own stubbornness who would not give it him freely when they might have done it and they shall likewise be without these good Laws the Author supposes he may make but if they meet he will not let them sit unless they first by some Oath or Recognition acknowledge his Title to be good and own him as their lawful Prince Now what shall they do in this case they must either lose their Liberties and alter the form of the Government or acknowledge him to the prejudice of their lawful Prince But if the Laws are once made and they appear evidently for the good of the Commonwealth they then are no longer indifferent since all private Interests are to give place to the publick Good of the Commonwealth since in the instance before given of the Father of a Family 's being driven out of doors by a Robber no doubt but every Member of the Family ought to obey this Rogue in case the house should be on fire or ready to fall and he would take upon him to give orders for the quenching or securing it from falling for they did this not to own his Authority but from the obligation they owe to their Father or Master who would have done the same had he been at home So to obey Laws made by an Usurper that tend to the apparent benefit of the Commonwealth is not
to acknowledge these usurped Powers as lawful I do less understand the force of another distinction he makes use of p. 155. That an Vsurper is so far to be obeyed as may tend to the preservation of a mans King and Father nay sometimes even to the preservation of the Vsurper himself when probably he may thereby be reserved to the correction or mercy of his true Superiour For how Obedience to an Usurper can tend to the preservation of the lawful Prince I understand not And as for the other instance of preserving the person of the Usurper for the mercy or correction of the true Superiour it had been a very good pretence for Obedience to Cromwel and the Rump nay to fight for them since this was but to preserve them for his Majesties mercy or correction another time though their Power might have continued until now since they had a Possession by the permissive Will of God which how long it would endure no body could tell Such untoward things are Arguments drawn from false Principles that they flie in the faces of those that make use of them and will either reduce them to absurdities or else prove weapons against themselves But I shall now come to his last Refuge when he can no longer evade but that by the Peoples ignorance of Adam's right Heir or of the Heirs to the last Prince the supreme Power is devolved upon the People who may chuse what kind of Government they please Patriarch p. 21. This he denies saying That in such cases the Kingly Power escheats to the Fathers or independent Heads of Families The same Answer he gives to this Objection in his Anarchy of a limited Monarchy p. 272. where he replies very pleasantly That no King can die without an Heir as long as there is one man living in the world it may be the Heir may be unknown to the People but that is no fault in Nature but the negligence of the People whom it concerns So that it seems the next Heir being often not to be known any man when the Prince dies may step into the Throne and if he have Power enough is next Heir for a King can never die without an Heir as long as any one man is left alive in the world and who can disprove him that he is not the man So that the power he hath given to his Masters of Families to chuse an Heir or one to ease them of their Fatherly Power signifies nothing For this Usurper that can first seize it may be right Heir to Adam for ought any body knows And certainly having Possession which is the permissive will of God he hath a better Right than any other as we have often heard before And are told farther in the Anarchy of a limited Monarchy p. 273. That if the true Heir of the Crown come to be dispossessed in such cases the Subjects Obedience to the Fatherly Power must go along and wait upon Gods Providence who onely hath Right to give and take away Kingdoms and thereby adopt Subjects into the Obedience of another Fatherly Power So that Man is not onely a Creature who is his Goods that can first catch him but according to this Author is in a worse condition than Brutes for whereas if a Dog be taken up by a Stranger and a Collar clapt about his neck and so led away it is left to Jowler's discretion how far he will obey his new Master and as he may either stay with him if he likes his Quarters finds himself well used so surely he may without any sin knaw his halter nay bite the fingers of this Usurper of his Liberty and run away But poor Man does not onely fall to the first Occupant whom he may not either obey or disobey as he finds it most conduce to his interest and preservation but is peg'd down to an absolute Obedience and obliged in Conscience to obey this Usurper let him use him well or ill with the same respect and duty as if he were his Father Which I think God was a better friend to Mankind than ever to intend But to return to the subject from whence we digressed our Author for fear he should seem by admission of a Power in Fathers of Families to chuse a Head or Prince over them Anarchy of limited Monarchy p. 272. and to have granted it to them as the whole People he distinguishes saying It does not escheat to the whole People but onely to the supream Heads and Fathers of Families not as they are the People but quatenus Fathers of the People over whom they have a supreaem Power devolved unto them after the death of their Soveraign Chief Fathers in Scripture are accounted all the People as all the Children of Israel as all the Congregation as the Text plainly expounds it self 2 Chron. 1.2 where Solomon speaks to all Israel that is to the Captains the Judges and to every Governour the chief of the Fathers and so the Elders of Israel are expounded to be the Chief of the Fathers of the Children of Israel 1 King 8.1 and 2 Chron. 5.2 By all which it appears that the Author allows in this case the Government escheats to part but not to all the People or whole multitude of Men Women and Children taken together to chuse what Government they please And indeed in this sence there was never any Democracy or Government of the People in nature for though a Democracy may be defined to be that kind of Government where the supream Power is in a Council or Assembly consisting of all the Citizens And although it does not less concern the Women and Children in that kind of Government to be happier than in others yet who ever thought it a new sort of Commonwealth and not a perfect Democracy though Women Children and Slaves were excluded the publick Councils and Assemblies And therefore if it be esteemed a perfect Democracy and was so at Athens which all must grant to have been so where onely Free men or at their own dispose and such who were supposed at first to have by their meeting together instituted this Government which is likewise continued by those who have succeeded into their Places and Rights I see no reason why these should not be looked upon as representing the whole promiscuous body of the People to whom the Power devolves upon the want of a Successour For it is likely that Commonwealths were first instituted by Fathers of Families having Wives Children and Slaves under their Domestick Government whom nevertheless they would neither equal with themselves by admitting them to a Vote in the Government neither yet would abdicate their power over them But then the Author urges Anarchy of a limited Monarchy p. 270 271. If Infants and Children be concluded by the Votes of their Parents this destroys the whole Cause for if it be allowed that the Acts of Parents bind their Children then farewel the Doctrine of the natural freedom of
Commonwealth do onely owe a passive obedience to its Laws But to let you see more plainly that upon such a devolution of the Government as the Author grants not onely the Masters of Families as Fathers ought to have Votes but all others that are at their own dispose I will ask any of his opinion what he thinks of a single man living in a house alone or with a Wife without either Children or Servants or perhaps boarding in another mans house for their money why they should not have Votes as well as those that are his independant Fathers and Masters I can see no reason nor I believe they neither So though the Author by the words Supream and Independant Heads of Families seems to exclude all Sons from having Votes whilst their Fathers are alive although they are married and have separated into distinct Families yet since I have proved that neither Paternal Authority nor Filial Subjection is absolute or perpetual in the state of Nature into which the Commonwealth is by the death of the Prince now supposed to be resolved and if it were otherwise yet unless they will void all those Laws and Constitutions that have been before settled both for descent of Inheritances and the distinguishing of Property So that if these Laws stand in force during this interregnum unless they will fall to absolute confusion these Sons so making divers Families and having Estates distinct from their Fathers ought likewise to have Votes in the Government upon the Authours own principles since the Laws of the Country have set them free from all Paternal subjection more than what the Rules of Piety and Gratitude oblige them to And as for such Sons as though of mature age yet remain as Servants in their Fathers Families and so are under a greater subjection than those that are separated from it I see no reason why they may not appoint their Father as him they could best trust to vote for them and represent them in the choice of a Governour and then they are as much obliged as any man can be by the act of a person whom he hath impowered to act for him or as these Fathers of Families would be by Representatives of their own chusing it being morally impossible if this devolution of the Government should happen in a populous Country for all the Authors independent Heads or Fathers of Families ever to meet in Person to chuse a King these being vastly numerous and divided from each other at great distances Anarchy of a mixt Monarch p. 269 So that all the Author's Objections against a mixt Popular Election will prove as strong against this of Fathers alone For how except by some secret miraculous instinct should they all meet at one time and place What one Head of a Family or Company less than the whole Body of these Fathers of the People can have power to appoint either time or place of Election where they are all free and independant by Nature and without a lawful Summons it is most unjust to binde those that are absent So neither can the whole Body of the Fathers of Families summon it self One man is sick another is lame a third is aged and a fourth though a Father of a Family may be under years of discretion or not in his right senses and many more may have business of their own which they cannot leave to run two or three hundred miles up to the chief City to chuse a King So that either the People may elect or else his Fathers of Families cannot for the same reasons And if the major part of these Fathers should agree to chuse Representatives how can this Agreement of the major part bind the minor that did not consent Patriarcha pag. 44. Where the Arguments against Elections by a major part are proposed at large since according to the Authors principles in Assemblies that take their original from the Law of Nature no one man or multitude can give away the Right of another So that though the Author seems to have been so good-natured as to have given these independent Fathers of Families a Power in this case of Escheat to chuse a Governour yet all this signifies nothing since they can never all meet or agree to chuse Representatives They are still like to be his Slaves who can make a Party strong enough to seize the Government and usurp an Authority over them Whom yet they must obey since he either is or represents the right Heir of Adam and so no body hath a better Right than himself who is in by the permissive Will of God which how long it will last no body can tell And God does but adopt Subjects into the obedience of another Fatherly Power or else they must fall into a down-right Anarchy and every Father of a Family may set up for an absolute Prince But to return whither we have digressed for I have said this onely to shew that this Authors principles as well as those of others contradict themselves in this subject and either these Fathers of Families are the People and consequently cannot according to this Authour ever meet or agree to chuse a Prince or else the whole People may as well But since it may be objected that it does not serve to find out truth or settle the Question in hand barely to recriminate and shew the same flaws in his Principles as he finds in those of others Patriarcha p. 41. let us see if his Objections against Bellarmine and Suarez and all those who place Supream Power in the People be such terrible things that the poor Jesuits are absolutely run down in this Dispute He therefore first asks If their meaning be that there is but one and the same Power in all the People of the World so that no Power can be granted except all the men upon the Earth meet and agree to chuse a Governour To which Suarez answers That it is scarce possible nor yet expedient that all the men in the world should be gathered together into one Community It is likelier that either never or for a very short time this Power was in this manner in the whole Multitude of men collected together but a little after the Creation men began to be divided into several Commonwealths and this distinct Power was in each of them To which our Author replies That this Answer of scarce possible nor yet expedient c. begets a new doubt how this distinct Power comes to each particular Community when God gave it to the whole Multitude onely and not to any particular Assembly Can they shew or prove that ever the whole Multitude met and divided this Power which God gave them in gross by breaking it into parcels and by appointing a distinct Power to each Commonwealth Without such a Compact I cannot see according to their own Principles how there can be an Election of a Magistrate in any Common-wealth but a meer Vsurpation upon the Priviledge of
difficult Cases by way of Appeal in time of peace But that the Government was purely Aristocratical this Author himself confesses even when he denies it He tells us p. 50. at the time when Scripture saith There was no King in Israel but that every man did that which was right in his own eyes even then the Israelites were under the Kingly Government of the Fathers of particular Families for i◠the consultation for providing Wives for the Benjamites we find the Elders of the Congregation bare the onely sway Judg. 21.16 Now what is an Aristocracy if this be not viz. an Assembly of the Elders or chief of the Fathers that is the best men meeting consulting and resolving of publick business What power these Fathers of Families had at home is not declared whether it was independant or else did submit to the government of its own Tribe But that it was Aristocratical is apparent if Josephus understood any thing o◠the History or Antiquities of his own Country which he undertook expresly to write of For Antiq. lib. 4. cap. he brings in Samuel speaking to this effect to the People desiring a King An Aristocracy is the best Government neither should you require any other sort of Government But as for the Kings which God gave them afterwards there is nothing to be drawn from thence for this Authors advantage for he himself tells us there is no use to be made of it Vid. His Observations upon Milton p. 20. For speaking against Milton's sence of the words in Deut. 17.14 he says Can the foretelling or the forewarning the Israelites of a wanton wicked desire of theirs i. e. of a King which God himself condemned be an Argument that God gave or granted them a Right to do such a wicked thing Or can the narration and reproving of a future Fact be a donation and approving of a present Right or the permission of a sin be made a commission for the doing of it So that it seems sometimes when it makes against the Author's sence God is so far from approving Kingly Government that it is a sin for the People so much as to desire it But it is likewise as great a Question whether after Kingly Government was established it was likewise absolute so that the King might put any body to death right or wrong For we find 1 Sam. 14.45 the People rescued Jonathan out of the hands of his Father Saul and would not permit him to be put to death for his breach of the rash Vow which Saul had made nor is it imputed to the People that is the Army for a sin Neither could Ahab take away Naboth's Vineyard and his Life together but by colour of Law and a legal Tryal Neither could King Zedekiah save Jeremy the Prophet from the power of the Princes who cast him into the Dungeon for Jer. 38. v. 5. Zedekiah said Behold he is in your hand for the King is not he that can do any thing against you His fourth reason is that God in Scripture mentions not nor takes notice of any other Government than Monarchical This is but a Negative Argument at best the Scriptures not being written to teach us Politicks but to declare God's Will and to shew us his merciful and gracious dealing with the Jews notwithstanding all their backslidings and rebellions against his Commandments His fifth reason is that Aristotle saith in his Ethicks chap. 11. That Monarchy is the best form of Government and a Popular Estate the worst The words are 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Which though true does not enforce any Obligation to the one more than the other for though a man be obliged to his own preservation yet he himself is the onely Judge of the means and if he erre and use the worst means for the best they are not in fault if they acted as well as they could and to the best of their knowledge for that end Neither does it follow that there are no more sorts of Government than these two to be chosen Nor is it any better Argument that the world for a long time knew no other sort of Government but onely Monarchy and that the Platforms of Commonwealths were hatched amongst a few Cities in Greece and that they were first governed by Kings until the wantonness ambition or faction of the People made them attempt news kinds of Regiment But let any one read the Greek Histories and he will find the cruelty and tyranny of Kings did more frequently give occasion to the People to run into Commonwealths than either the ambition or faction of the People And as for the antiquity of Monarchy the alteration of it rather makes against him since the whole Body of a People seldom alter a Government unless they find themselves hurt by it and that it proved inconvenient for them I shall not dispute which is the better Government Monarchy or Commonwealth since in my own judgment I incline to the former where the Monarch is good And though I will not affirm as the Author does Directions for Obedience p. 71. That even the Power which God himself exerciseth over mankinde is by the Right of Fatherhood as he is both King and Father of us all Since besides his absolute power and his being the sole cause of our production he is also endued with that infinite Wisdom and Goodness that he still orders all things for the good of his Subjects and so hath besides his Power the highest Right to govern as the best and most perfect being So likewise Monarchs as far as they imitate the divine Wisdom and Beneficence have the like Right to be called Gods Lieutenants Nor shall I trouble my self as the Author does p. 67. and so on to 73. to compare the Mischiess and Inconveniencies that have been found in absolute Monarchical and Popular Government there being various Examples both of Cruelty and Injustice in both and I think they are both the aptest of any sorts of Governments to run into Extreams and I know not whether there have not been found out a Regal Government mixt with somewhat of an Aristocracy or Democracy which if truely observed were freest from the inconveniencies of either But this Author is so full of the mischiefs of Commonwealths that he sometimes mistakes in History and makes those Disorders to arise from the faults and licentiousness of the People which proceeded indeed from the Usurpation of their Power Thus he makes it the height of the Roman Liberty that its Subjects might be killed by those that would and sets forth the Tyranny of Sylla as an effect of the Roman Freedom when indeed it was rather an effect of the absolute Monarchy usurped by Sylla during his Dictatorship So that Dionysius Halicarnasseus gives us his judgment of those actions of Sylla in these words Lib. V. circa finem I would onely shew that for these wickednesses the name of Dictator became hateful for all things seem good and profitable onely
own Consent as a Slave by Compact or without his fault as a Slave taken in a just War and that no Master of a Family hath such Right in the person of one of these but that he may do him injury if he take away his life or punish him without cause and that such even such a Slave may lawfully set himself free if the Master do not perform his part of the Bargain And having in the last place shewn what power a Husband hath over his Wife in the state of Nature and from whence it takes its Original it is now time to answer those Arguments and Objections made by this Author and others That the Prince or Governour so elected by the Fathers of Families or Frcemen at their own dispose which I hold to be equivalent to the whole People hath not onely his Nomination from them but that it is from God alone that he derives his Soveraign Power and Authority with which he is endued upon his first acceptance of the Supreme Power and if he should accept it with any limitation it were to restrain that Power which God hath conferred upon him by his being made the Supreme Magistrate and would hinder him from performing that great Duty as he ought In answer to which I have already proved that no such unlimited Power was conferred by God to any private man in the state of Nature as a Father Husband or Master and therefore could not be given to any Civil Soveraign who is supposed to have no more power than the Father of the Family had before A second Objection is That no particular man hath in the state of Nature any power over his own life and therefore cannot have any over the life of another man and if one man hath not this power neither have the People which is but a universal consisting of singulars any such power and consequently cannot confer it on any other man therefore every Prince must have this Soveraign Power of life and death not from the People but from God In answer to which I shall first of all deny the consequence that because God hath not given a man a power over his own life therefore he can have none over the person of another For God gave man a Right to preserve but not to destroy himself and so cannot dispose of his own life whenever he is weary of it Therefore since the first Law of Nature is Self-preservation it is lawful for a man to use all means conducing to this end that do not prejudice another mans Right in his particular life or happiness so that if any man assault me in the state of Nature I may defend my self and consequently kill the Assailant if I cannot otherwise escape But perhaps it will be replyed that the intention here is not principally to kill the man if it may be otherwise avoided and that this Right is given men onely to preserve their lives from being taken away at another mans pleasure but that no private man hath power to revenge an injury done to another or ones self in the state of Nature with death but God or him to whom God hath committed this power according to St. Paul Rom. 12.19 Dearly beloved avenge not your selves c. I shall prove that this place does not destroy that which I maintain for I grant that all Revenge taken as the satisfaction some men take in the very doing evil or prejudice to another is unlawful even by the light of Nature Secondly Likewise where Magistracy is instituted who is to bear the Sword for the punishment of evil doers I grant all return of like for like to be unlawful since he is appointed as a publick Judge to right those that are injured and maintain the common Peace But no Text forbids men to punish injuries done either to themselves or those they have a concern for in the state of Nature for this is not Revenge but a natural Punishment to deter men from committing violent and unjust actions that disturb the peace of humane Society since the wrong doer declares himself thereby a publick Enemy to all Mankind And on this account Cain feared that not his Father onely hut every one that met him would slay him that is punish him for the death of their Brother or Kinsman And if this were unlawful then all War must be so in the state of Nature and Princes being always in that state in respect of each other could never make any War for the gaining of Rights usurped or to punish for Injuries received So that this power which a man in some cases hath over the life of another is onely given him by God for the common good and preservation of Mankind of which every particular person is a part and so this power conferred upon the supreme Magistrate is no more nor extends higher than that though there are more things requisite to the publick peace and safety of a Civil Government than are to humane Society in the state of Nature And from hence do supreme Powers derive their Right of making positive Laws and ordaining higher Punishments for Offences than the Laws of God or Nature do expresly appoint as for Thest Coining and the like Nor is the Antecedent true that no man in the state of Nature hath a power to dispose of his own life For though it may be true that no man hath a Right to make away himself whenever he dislikes his being here yet it does not therefore follow but that for a greater good to the publick any man nay a Prince himself may lay down his life for his Peoples good And therefore I doubt not but the Example of Codrus the Athenian King was not onely lawful but highly commendable in facrificing his life for the good and safety of his People supposing that all their Estates and Liberties depended upon that one Battel much more for a private man to lay down his life to save some publick person highly useful to humane Society And this much does the Apostle Paul himself seem to admit Rom. 5.7 when he says For scarcely for a righteous man will one die yet peradventure for a good man some would even dare to die Where by a righteous man Expositors understand one who had sufficiently done his duty in an ordinary private capacity yet contributed little to the publick good whereas by a good man is understood some person highly useful and beneficial to others and for such a one a man may not onely dare to die but actually lay down his life if occasion be A second Objection is That if the supreme Magistrates Authority be derived from the People then this Authority must be either inferiour or superiour to it If inferiour how can the People be commanded or governed by that which is inferiour to its self If superiour how can the Effect be more noble than the Gause since neither any particular Person nor the whole Multitude had Soveraign Authority and therefore
to prove that Cain when he ran away for his brothers murder enjoyed the land of Nod where he built a City by his fathers settlement But though Mr. Selden and the Author agree very well about the distinct Dominion of Adam yet they do not so concerning that of Noah and his Sons whom Mr. Selden and I think with very good reason from Gen. IX 2. Will have to be joynt Commonors with their Father in the dominion of the world and all its creatures but the Author says that the Text doth not warrant it ' For though the Sons are mentioned in the blessing yet it may be best understood with a subordination or benediction in succession the blessing might be fulfilled if the Sons either under or after their Father enjoyed a private dominion It is apparent that the words rather warrant the contrary For the Text does not mention any blessing in subordination but is alike in present to Noah and his Sons for God spake to Noah and to his Sons and so is their power over the creatures as appears v. 3. Every moving thing that liveth shall be meat for you even as the green herb that is the fruits granted to Adam before have I given you in the plural number all things As for this Authors other argument from the private dominion of Adam it might be good against Mr. Selden who had admitted it before but is none against those that do not believe any such grant As for Noah's being sole heir of the world he takes that for granted which is no law of nature that in the state of nature one man is more an heir to his Father or any other relation than another but having confuted that opinion already I need say no more of it here Mr. Seldens account of the original of Propriety ' After Noah is that in distributing Territories the consent of Mankind passing their promise or compact which did also bind their Posterity did intervene so that men departed from their common right of Communion of those things which were so distributed to particular Lords and Masters But the Author replys that this distribution by the consent of Mankind we must take upon trust for there is not the least proof of it out of Antiquity If by Antiquity he means prophane Authors all of them both Historians and Poets that have writ of this subject are for a primitive Community of all things necessary for the life of Man As any man that considers what the Poets say concerning the golden Age whose cheif happiness they place in mens enjoyment of the fruits of the earth in Common nor does Lactantius Li. V. Inst Cap. 5. one of the learnedst of the Fathers interpret those passages otherwise If by antiquity he means proof out of Scripture that neither makes for or against this opinion the Scriptures not being written to shew us the originals either of Government or Propriety any more than to teach men Chymistry or Astronomy though there be some so sottish to think they thus find some grounds for their Fancies in those studies yet it appears that the land of Canaan was all or most of it in Common in Abrahams time or else he could never have lived and kept his flocks upon it as a separate Master of a Family without becoming subject to any other Prince But however I look upon this Tradition delivered by the Greek and Latin Authors every whit as good as that Jewish one which Mr. Selden quotes out of Eusebius and Cednenus though he does not lay any stress upon it But our Author admits it as an undeniable Record That Noah himself as Lord of all was Author of the distribution of the world and of all private dominion and that by an appointment of an oracle from God he did confirm this Distribution by ' his last Will and Testament which at his death he left in the hands of Shem his eldest Son and also warned all his Sons that none of them should invade any of their brothers dominions or injure one another because from thence discord and civil war would ensue It s not likely that the Antient Jews should know any thing of this Will of Noahs for if they had so diligent an Author and so well versed in the Jewish Antiquities as Josephus would not have omitted so famous a piece of history 2. The Rahbins themselves and consequently our Fathers of the Church are not agreed whether Shem or Japhet were the eldest For though it is true that St. Austin and those Fathers that follow the vulgar translation made Shem the eldest yet St. Chrysostom and all the Fathers of the Greek Church who therein follow the LXX Versior as of greater Antiquity and Authority are for Japhets being the eldest brother So that this Testament being left in Shems hands is a meer Rabinical invention it being much to be doubted whether Letters much more Wills in writing were in fashion in Noah's days and if Noah left no Will which no Jury can now decide then the world was left to Noahs Sons Grand-children in Common to be divided according to their several occasions since they all three had equal right to it But it seems a weak Hypothesis if it serve the Authors present purpose shall be received though it contradict his other Principles For in his Patriarcha and other of his treatises he makes Adam sole Monarch of the World and that this right descended wholy and entirely to Adam's right heir But here we find Noah turns the Propriety and Dominion of the world into an absolute gavel-kind and distributing the Earth among his three Sons makes them all Heirs and Monarchs alike so that Shem the elder is here disinhereted not only of his entire Dominion in the world but also of his natural right of Lording it over the rest of his bretheren so that whereas the whole world should have been his if his Father had not made this unlucky Will he is fain to be content with a third part I shall pass by other impossibilities in this fancy of Noah's Will as how Noah should by revelation make a distribution of the Earth among his Sons when he never had discovered a hundreth part of it Josephus and the Fathers not supposing him ever to have descended from the Mountains of Ararat into the Plains all his life time But to pass over such Romantick fancies let us come to the Authors more solid Arguments Why Dominion and Property could not be introduced by the voluntary consent of Men and therefore must needs P. 70. have begun from Noahs appointment Toward the end of these observations he puts this Quere ' If it were a thing so voluntary and at the pleasure of men when they were free to put themselves under subjection why may not they as voluntarily leave this subjection when they please and be free again If they had a liberty to change their natural freedom into a voluntary subjection there is a stronger reason that they may
the people may not be easily known though not gathered by Vote or whether it would be various and erroneous in these cases Fr the people though they do not argue so subtilly as our Author does yet in their Sence of Feeling when wrong'd or hurt are seldome mistaken Then our Author is angry that Mr. H. will have an Appeal made to the Consciences of all Mankind that being made that the Fundamental Laws must judg and pronounce Sentence in every mans own Conscience here he would fain learn of Mr. H. or any other for him what a Fundamental Law is or else have but one Law named to him that any Man shall say is a Fundamental Law of the Monarchy Well to do the Authors Friends a pleasure since he is dead himself I will name one that he himself would deny to be one in this Monarchy and that is that the Crown upon the death of the King should descend to the next Heir and so we have one Fundamental Law and I hope there may be more But he says Mr. H. tells us ' that the Common Laws are the Foundation and the Statute Laws superstructive Yet our Author thinks that Mr. H. dares say ' that there is any one branch or part of the Common Law but may be taken away by Act of Parliament for many points of the Common-Law de facto have and de jure any point may be taken away How can that be called a Fundamental which hath and may be removed and yet the Statute Laws stand firm and Stable It is contrary to the Nature of a Fundamental for the Building to stand when the Foundation is taken away All which is mere wrangling about the Metaphor of a Foundation and a Superstructure as if such expressions required an absolute Physical Truth as they do in the things from which they are taken It is already granted that all Laws in a limited Government but those of Nature and right Reason are alterable because the Governmen it self is so and in respect of which alone they may be called Fundamental or Foundations of the Government but these being altered it would cease to be the same kind of Government it was before I will not affirm but the people of this Nation may give away their present Rights of not having any Laws made or Taxes imposed upon them without their consent or of not being perpetually kept in Prison or put to death without legal Trial. But these being altered it would cease to be limited and turn to an absolute Monarchy and all Statutes concerning any of these would be so far Superstructives as to signify nothing when the Foundations are taken away and indeed how any Statute Law made by Parliament could signify any thing when the Parliament is gone I know not since all Laws after that would depend upon the sole will of the Monarch His second Reason is ' That the Common-Law is generally acknowledged to be nothing else but common Usage or Custome which by length of time only obtains Authority so that it follows in time after Government but cannot go before it or be the Rule of Government by any Original Radical Constitution Which is not true as the Author hath laid it down for all the parts of the Common-Law do not depend upon meer Custome or Usage taken up after the Government instituted and therefore his consequence that follows from this is false For some parts of the Common-Law of England are without doubt as antient as the Goverment it self Thus though some parts of our Common-Law may have proceeded from some later Customes or particular Judgments and resolutions of the Judges in several Ages yet without doubt Property in Goods and Land and Estates of Inheritance and the manner of their descent are as antient since they came over with our Saxon Ancestors as the Government it self since some of the Laws As that Brethren by the half-Blood should not be Heirs to each other That an Estate should rather Escheat then ascend to the Father upon the death of his could only proceed from the Custome of the antient Saxons For certainly had we not been used to them we should scarce allow them to be reasonable But it is in nothing more visible then in those Tenures which the modern Civilians call Feudat which L. Ca. 3. § 23. Grotius tells us are not to be found but among the Germans and those Nations derived from them as both our Saxons and Angles were Tacit. de Mor. Ger. cap. 40. So likewise that Fundamental Constitution of ordering all publick Affairs in General Councils or Assemblies of the Men of note and those that had a share in the Land de minoribus rebus Principes Consultant de majoribus omnes ita tamen ut ex qnoque quorum penes plebem arbitrium est apud Principes praetractantur In this great Council they tried Offenders in Capital Crimes Id. Cap. 12. Licet apud concilium accusare queque discrimen capitis intendere nor was the power of their Kings or Prince absolute as appears by the passages in the same Author Id. Cap. 7 Nec regibus infinita aut libera potestas c. speaking of the manner of their holding these publick Councils after silence commanded by the Priests Mox Rex Id. Cap. 11. vel Princeps prout aetas cuique prout nobilitas prout decus bellorum prout facundia est audiuntur autoritate suadendi magis quam jubendi And though our first Saxon Kings might have more conferred on them then this yet it is altogether improbable that Hengest and the rest of those Princes who erected an Heptarchy in this Island comeing hither not as Monarchs over Subjects but as Leaders of Voluntiers who went to seek a new Country should be so fond of a Government they never knew as to give these their Gennerals an absolute despetick power over their persons and Estates which they never had in their own Country and by which Liberty they had so long defended it against the utmost effects of the Roman Empire therefore says the same Author Ne Parthi quidem sepius admonuere Id. Cap. 37. quippe Regno Arsacis acrior est Germanorum Libertas The sence of which is The Parthians themselves have not oftner rebuked us for the German-Liberty is harder to be dealt with then the Monarchy of Arsaces Pat. p. 116 117. And as for the Antiquity and usefulness of these great Councils the Author himself hath confessed enough for our purpose though he will not have our Parliament antienter then about ' the time of the Conquest because until those days we cannot hear it was entirely united into one Kingdom but it was either divided into several Kingdoms or Governed by several Laws as when Julius Caesar Landed he found four Kings in Kent The Saxons divided us into seven Kingdoms and when they were united into a Monarchy they had the Danes for their Companions or Masters in the Empire till Edward the
Anno 125. But to return to our Author from whom I have a little degressed I think he is mistaken in affirming all Power which enables in some cases a Man to resist or oppose his Governors must be Authoritative and Civil Therefore I shall put the same case again which I did about the beginning of these Observations concerning the Natural Power of Fathers Suppose a Son cannot otherwise preserve his own Life or that of his Mother or Brothers from the rage of his mad or drunken Father but by holding him or binding him if need be I suppose no reasonable Man will deny the lawfullness of this action and yet this Power over his Fathers Person is not Authoritative or Civil but Moral and which the Son does exercise not as Superior to his Father but as a Rational Creature obliged by the Laws of Nature to preserve his own being and to endeavour the good preservation of his Parents and Relations not against Paternal Authority which is always Rational and for the good of the Family but Brutish Irrational force Which God gives every Man a right to judg of so likewise if a Prince prove either a Madman or a stark Fool the power which their Subjects exercise in the ordering him or confining him and appointing Regents or Protectors to Govern for him and in his Name is not Authoritative or Civil since the Prince himself who is the Fountain of all Authority gave them no such power and therefore must be Natural or Moral or residing in them as reasonable Creatures And of this we have had divers examples Thus the French were forced to confine their Mad King Charles VI. and appoint his Queen to be Regent during his Distraction So likewise Joan Queen of Castile falling Distracted upon the Death of Her Husband King Philip I. Her Father Ferdinand governed in Her right and after His decease Her Son Charles afterwards Emperor she continuing bereft of her understanding was admitted King of Castile And what hath been done lately in Portugal is so notorious that it needs not a particular Recital So then Mr. Hs. expression That this is a Moral Judgment residing in reasonable Creatures and lawful for them to execute may not seem so absurd as to imply what our Author endeavours to draw from thence that Authoritative and Civil Judgment does not reside in reasonable Creatures nor can be Lawfully executed since a Reasonable Creature may be endued with another Power of acting precedent to that of the Civil So I shall likewise leave it to the Judgment of the impartial Reader whether this conclusion fits so well with Anarchy as the Author will have it As also whether Mr. H. take away all Government by leaving every Man to his own Conscience to judg when the Prince oppresses him for else how could he sue for relief to the Prince himself and so all actions a Prince did or commanded would be just and lawful though never so contrary to Reason or positive Law And so there would be truly as Mr. Hobs asserts no other measure of good and evil right or wrong but the Princes will But as I have no where maintained with Mr. H. in his Treatise which our Author writes against that ours is a mixt Monarchy though limited by Law and therefore shall not maintain as he does the King to be one of the Three Estates according to the Opinions held during the late Wars So on the other side that there is and ever hath been such a Government as a mixt Monarchy in some Countreys I hope I have made out notwithstanding what this Author says to the contrary and that these might more properly be called a mixt Monarchy then mixt Aristocracy or mixt Democracy Since all Governments of this kind take their denomination from the most Honourable and Predominant part in it in whom the Executive or Authoritative part resides And though perhaps some of these Governments may not seem so firm so regular and well constituted as others it does not therefore follow that they are meer Anarchies or that all mixtures and limitations of Monarchy are vain or unlawful as our Author imagines For a further proof of which I will not give you may own sence alone but likewise of that eminent Civil Lawyer Mr. Pufendorf now or very lately Gretian Professor in the University of Vpsal in his excellent work De Jure Naturae Gentium Dedicated to Charles the 10th now King of Sweden and certainly holding a place of such profit and Credit in his Dominions he would be too prudent to speak any thing prejudicial to Monarchy or contrary to the Government of Sweden in particular But to return to the matter in the above-mentioned Treatise which for the benefit of those that cannot easily procure the Latine Original Lib. 7. Cap. 5. where speaking before of the several kinds of mixt Governments or Common-wealths § 14. He expresses himself to this purpose as near as I can Translate it Yet however as I will not envy the commendation of constancy in any that will obstinately maintain the name of a mixt Common-wealth to those sorts of Government he had before recited So it seems to us more ready and easie for the demonstrating divers Phaenomena in certain Common-wealths if we rather call those irregular Common-wealths in which neither one alone of the three irregular Forms is found neither an absolute Disease or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 takes place and which yet cannot be strictly referred to distinct confederate States Concerning which it is generally to be observed that they depart in this from a regular Common-wealth whilst in them all things do not seem to proceed as it were from one Soul and will neither to be governed by one Common Authority Yet they diffor from the confederate State in that they are not compounded of distinct and perfect Common-wealths as these are Yet they are far from those things that they count Diseases in a Common-wealth because a Disease that always carries with it as it were a shameful and unallowable pretence since it proceeds from â—he evil administration of a good Form of Government or from Laws and Institutions ill contrived and put together Whereas this irregularity does not only intrinsically affect the very Form it self but also being publickly and lawfully establish'd dares shew it self openly and without shame So that a Disease ought to be supposed as not intended by those who first Instituted this Common-wealth since the irregularity arose or was Confirmed from the will or approbation of those of whom the Government was at first Constituted as a building is one thing whose design agrees with the Rules of Architectture but either its materials are naught or else thorough the carelesness of the Dwellers the Roof gapes and the Walls are ready to fall and another thing where a Model though differing from the common Rules of Building is dedesigned by the Owner or Architect himself Lastly some of these irregularities may have continued from the
these Patriarchs â—ere For this will serve toward the solving those â—xamples he puts of Abram's power of Peace and â—ar and of Judah's power of Life and Death over 〈◊〉 Daughter-in-law Thamar We will first then conâ—er the power of a Father by the Law of Nature â—er his Children and then that of a Master of a Faâ—ly over his Wife Servants or Slaves To begin â—…th that of a Father as the most worthy I shall deavour to search into the Original of the Father's â—wer over the persons of his Children and how far extends It is evident that this Power of Fathers over their â—ildren can only take place in the state of Wedlock 〈◊〉 as to Children got out of Marriage it is uncertain â—o is their Father who can only be known by the declaration of the Mother and she sometimes cannot certainly tell her self So that no man is obliged to take care of or breed up a Bastard because the Mother if she had her liberty of keeping what company she pleased can never morally assure him that the Child is his therefore unless he take upon him the care and education of this Child it belongs to the Mother and not to him to provide for it So that the Right of the Father over his Child commences by vertue 〈◊〉 the Marriage which is a mutual Compact between a Man and a Woman for their Cohabitation the generation of Children and their joint care and provision for them So that though by the Law of Nature which is confirm'd by the Law of God the Woman as the weaker vessel is to be subject to the Man as the stronger stouter and commonly the wiser creature 〈◊〉 whose care and courage she must owe the greatest parâ— of her provision and protection yet she is not without an Interest in the Children since she is under 〈◊〉 obligation to perform her part and that the most 〈◊〉 borious and troublesome in their Education thougâ— her Power and Right in them be still subordinate 〈◊〉 that of the Man to whom by force of the Marriage shâ— hath already subjected herself Some Writers therâ— fore think they have done sufficiently when they 〈◊〉 us that the Father hath an absolute Dominion ovâ— his Child because he got it and is the cause of it being By this Argument the Mother hath greatâ— Right over the person of the Child since all Natâ— ralists hold the Child partakes more of her than of 〈◊〉 Father and she is besides at greater pain and troubâ— both in the bearing bringing it forth nursing anâ— breeding it up But if it be answered that the Maâ— being Master of his Wife is by the Contract so likâ— wise of her Issue Then it follows that this power 〈◊〉 the Father does not commence barely from Geneâ—… tion but is acquired from the Contract of Marriage which till I meet with some reason to the contrary I see not why it might not be so agreed by the Contracts that the Father should not dispose of the Children without the Mothers consent Since we see it often so agreed in the Marriages of Soveraign Princes Vid. Articles of Marriage between King Philip and Queen Mary in Godwin's Annals An. 1554. Thuanus Lib. IX So likewise where a Subject marries his Queen as the Lord Darnley's Marriage with Mary Qu. of Scotland the Soveraignty and consequently the Power over the Children to be born remained entirely in Her who are always supposed to be in the state of Nature in respect to each other Yet though I will not deny but some Gratitude and Acknwledgment is due from Children to Parents even for this that they did enter into the state of Marriage for their generation and were the occasion of their Being Yet I do not see how by this alone a Father acquires an absolute power and dominion over the person of the Child to dispose of it as he thinks fit Since Parents acting here only as Natural and not Moral Agents they are not the voluntary Causes of its generation Therefore I cannot found so great a Right as that of an absolute perpetual Dominion over the Children upon so slight a foundation We must therefore trace this Right of Fathers over his Children to a more true original than any of these Since then all the Laws of Nature or Reason are intended for one end or effect viz. the common good and preservation of Mankinde and that Marriage is no otherwise a Duty than as by the propagation of our Species it conduces to without the help and assistance of others and that the Parents entred into this state of Marriage for the procreation of Children both the Instinct of Nature and Law of Reason dictate that they are obliged to take care of and provide for that Child which they as subordinate Causes have produced as being those on whom God hath imposed this Duty which is much greater than that of Generation for now the world is sufficiently peopled it may be doubted whether any person is obliged to Marry further than it may consist with their conveniency or course of Life But Parents when they are Married are tyed by the Laws of Nature to take care of the Children Therefore I suppose the highest Right of Parents in their Children doth arise merely from their discharge of this great Duty of Education as may appear from this Instance Suppose the Parents not being willing to undertake the trouble of breeding up the Child do either expose it or pass over their Right in it to another assoon as it is born I desire to know if the person that finds this Child or he to whom it is assigned breed it up until it come to have the use of Reason what Duty this Child can owe his Parents if they are made known to him Certainly all the obligation he can have to them must be upon the score of their begetting him which how small that is you may observe from what hath been said before nor can the Parents claim any further Right in this Child since by their exposing and granting it away they renounced all the Interest they could have in it so that the Duty and Gratitude he should have owed them had they taken upon them the care and trouble of breeding him up is now due to his Foster-Father or Mother who took care of him until he was able to shift for himself From whence it is evident that the highest Right which Parents can have in their Children is not meerly natural from generation but acquir'd by their performance of that nobler part of their Duty And so the highest Obedience which Children owe their Patents proceeds from that Gratitude and Sense they ought to have of the great obligation they owe their Parents for the trouble and care they put them to in their Education Having now I hope found out the Original of Parents Right and Interest in their Children and the chief ground of their Gratitude and Duty to their Parents we will now proceed to