the Apostle to Sons but to Servants or Slaves whose lives and all that they had were at their Masters absolue disposal being those whom the Apostle Paul calls Servants under the yoke and unless you will make a Slave and a Son to be all one which you have already denyed this precept doth not at all concern them And as for Example of Isaac that will make as little for your advantage for first as to Abraham he could not but know that to kill his Son without any just cause was as much murder in him as in any other Man Now what could be a juster or a higher cause than Gods particular Command So that as this act of Abraham is not to be taken as an Example by other Fathers so neither doth the Example of Isaac oblige other Sons to the like Submission therefore it is most reasonable to suppose that Isaac being then as Chronologers make him to be about nineteen or twenty years of age and of years of discretion to ask where was the Lamb for the Burnt-offering was also instructed by his Father before he came to be offered of the reason of his dealing thus with him and then the Submission was not payed to his Fathers but to Gods will from whom he miraculously received his being But if any Man doubt wheter resistance in such a Case were Lawful I leave it to his own conscience to consider whether if his Father had him alone in a place where he could neither run away nor yet call for help he would suffer his Father to cut his Troat without any resistance only because he pretended Divine Revelation for it Not but that I so far agree with you likewise as to limit such a resistance only to the holding his Fathers Hands or warding off his blows but not to the taking away his life but of the two rather to lose his own than to kill him for the reasons you have given and which I will not deny but yet if the Father be mad I much doubt whether the Son is boâ—nd to let him kill him rather than take away his life since such a Father's life is no way useful to the good of the Family So that thô I should grant that Paternal Power is from God and consequently irresissible yet doth it not follow that all the unjust force or violence which a Father as a Man may use against his Sons life or fortune is such part of a Paternal Power as God hath commanded us not to resist since your self must grant that he doth not thus act in going about to kill his Son as a father but a violent and wicked Man So that where the father hath no Right to take away his Sons life I think in all such Cases the Right of the Son to resist him doth take place And if a Man may resist or bind his Father when he is Mad or Drunk and in such fits goeth about to kill him I can see nothing to the contrary why he may not do the same thing when his Father is transported by a sudden rage or unreasonable malice since both of them do take away the use of natural Reason as much the one as the other according to that saying of the Poet Ira furor brevis est Anger is but a short madness Fury and Malice being alike fatal and destructive to the Sons life and safety with Drunkenness and Madness nor doth such a Son resist his Paternal Power but only his Brutish force and violence So that if Sons when grown to years of discretion have not a right to defend their lives in the State of Nature against all Persons whatsoever who go about to take it away without any just Cause every Son ought to suffer his Father to kill him when ever being transported by madness drunkenness or sudden passion he hath will so to do which how it can consist with that great Law of Nature of propagating and preserving the species of Mankind if a Father should have any unreasonable unlimitted Power I 'll leave it to your self or any other reasonable Man to consider nor doth it follow that because a Son can in no wise be Superiour to his Father he ought not therefore to resist him since thô I grant punishment is a Right of Superiours over their Inferiours yet so is not resistance since every one knows that resistance is exercised between equals as I have already proved Sons are to their Fathers in all the Rights of life and self-preservation and conseqently to judge when their Lives and Estates are unjustly invaded M. I must confess I am in a great doubt which will most conduce to that great Law you mention which I grant to be the Sum of all the Laws of Nature viz. of preserving or prosecuting the common good of Mankind that Fathers should have an absolute irreâ—istible Power over the Lives and Fortunes of their Children let them use it how they will or else that Children should have a Right to resist them in some cases when they go about to take away either of them without any just Cause for thô I own that if the former Principle be true Parents may be sometimes tempted to take away their Childrens Lives or Estates without any just Cause so on the other side if Children shall assume such a Power to themselves of judging when their Fathers do thus go about to invade either their Lives or Estates it will I doubt lay a foundation for horrid confusions and divisions in Families since if Children are under a constant subjection to their Fathers they ought then to be absolutely Subject to them in the State of Nature and therefore ought not to be resisted For if all Fathers and Masters of Families are trusted by God with an absolute Power of Life and Death over the Wife Children and Servants of the Family as your self cannot deny then no resistance of this absolute Power can subsist with the peace and tranquility of that Family without the diminution or total destruction of that absolute Power with which they are intrusted And thô I admit that Parents ought neither to use nor sell their Children for Slaves not to take away either their Lives or Goods without great and sufficient Cause yet of these Causes Fathers in the state of Nature must be the only and uncontrolable Judges since if Children whom I still consider as Subjects thô not as Slaves in the State as long as they continue members of their Fathers Family should once have a Right to resist when they thought their Lives or Estates were unjustly invaded they might also oftentimes through undutifulness or false suggestions pretend or suppose that their Fathers were mad drunk or in a passion and went about to take away their Lives when really they intend no such thing but only to give them due correction Which would give Children an unnatural power of resisting or perhaps of killing their Fathers upon false surmises or flight occasions And as
this would introduce great mischief and confusion in privte Families so would it likewise prove a Foundation of Rebellion against all Civil Powers whatsoever if Subjects who are the same thing in a Kingdom that Children are in a Family in the State of Nature should take upon them to resist their Prince when ever they think he goeth about to invade either their Lives or Fortunes which would likewise serve to justify all the most horrid Rebellions in the World since all Rebels whatsoever may or do pretend that their Lives Liberties and Fortunes are unjustly invaded when indeed they are not and Likewise upon the least hardship or injustice in this kind inflicted upon any private Subject either by the Prince or his Ministers which abuses and violences do often happen even under the Best Governments any such private Person who shall think himself thus injured may upon this principle take up Arms and endeavour to right or defend himself against such violence by which means under pretence of securing a few Men in their Lives or Estates whole Kingdoms if such Persons can find follows enough may be cast into all the mischiefs and confusions of a Civil War till the Prince and Government be quite destroyed F. I must confess the Arguments you now bring are the best you have yet produced since they are drawn from that great and certain Law of procuring the common good and peace of mankind But I hope I shall make it plain to you that no such terrible consequences will follow from the Principles I have already laid down and therefore I must first take notice that you have in your answer confounded two Powers together which ought to be distingishued in the State of Nature viz. The Power which Fathers as Masters or Heads of Families may exercise over the Lives of their Children or Servants whilst they remain Members of their Family and that reverence and duty which Children must always owe their Fathers as long as they live even after they become Fathers or Masters of Families of their own In the first State I have already allowed that such Fathers as Masters of Families may Lawfully exercise a far greater Power over their Children whilst they are members of their Family than they can when they are seperated from it yet is not this Power in all Cases absolute or irresistible as I have already proved and therefore I do in the first place restrain this Right of self-defence only to such Cases where a Father would take away a Sons life in a fit of drunkenness madness or sudden passion without any crime committed or just cause given which I also limit to a bare self defence without injuring or taking away the life of the Father if it can possibly be avoided and in this Case if the Son who is like to suffer this violence may not judge when his life is really in danger to be destroyed because he may pretend so when really it is not This is no just reason to overthrow so great a Right as self Preservation since if this were a sufficient objection it would have the same force against all self defence whatsoever For it doth often happen that wicked and unreasonable Men will pretend that they were forced to take away the lives of others only to preserve their own when indeed it was altogether false and needless and they only killed them to satisfy their own malice or passion And therefore as there is no reason that the abuse of this natural Right should be used as an Argument against the use of all self-defence by any Man whatsoever So likewise neither ought the like abuse hereof by some wicked Children to be brought as an Argument against its being made use of at all by others who are never so unjustly assaulted and in danger of their Lives from their Fathers violence If the first principle be true on which this is founded that a Son may excercise this Right of self-defence in such Cases without any intrenchment upon his Fathers Paternal Authority or that Filial duty and respect which he must always owe him when ever he returns to himself and will behave himself towards him as becomes a Father and not like an Enemy or Cut-throat And as for the quarrels and confusions which you alledge may happen in Families between Fathers and Children in case such a liberty should be allowed those inconveniencies will prove very inconsiderable if you please to take Notice That first I do not allow this Right of resistance to be exercised by any Children before they attain to years of discretion Secondly that after they have attained to these years no resistance ought to be made against a Father whilst they remain part of their Fathers Family but only in defence of their own their Mothers Wives and Childrens Lives since I grant that a Son as long as he continues a member of his Fathers Family ought to bestow all his own labour for his Fathers profit and cannot acquire any property either in Lands or Goods without his Fathers consent And since you conceive this Right of self-defence if allowed to Children would be the cause of so great mischiefs in Families if Children should have no Right to judge when their Fathers abused their power over them let us a little consider on which side this abuse is most likely to happen for if you please but to look into the World and survey the Nature of Fathers and Children and set the faults of the one against the other you will find that as I confess it is the Nature of many Children to contradict and disobey their Fathers Commands and that most young people hate restraint and love too much liberty and may oftentimes think their Fathers too harsh or severe to them when really they are not yet doth such false surmises and disobedient actions seldom end either in absolute resistance or taking away their Fathers lives by force or if they do so it is really done for their own defence or whilst they are assaulted by them in their own Lives or those of their Children but is commonly acted privately to satisfie their own revenge or malice which I hold to be utterly unlawful so likewise let us consider on the other side those temptations that Fathers lye under of injuring their Children or taking away their Lives or uâ—ing them like Slaves without any just Cause you 'll find that they by reason of their age natural temper or infirmities may be easily transported to that degree of passion that not considering the follies of Youth they may oftentimes in their passion either beat them so cruelly as utterly to disable or maime them or else take away their Lives for little or no Cause And besides Fathers being often covetous and ill-natured which are the vices of old age may where there is no power over them to restrain them from it either keep them as Slaves themselves or else sell them to others for that purpose as I
it were granted him by God F. I promise to give you full satisfaction to this question by and by but in the mean time pray let me make it a little more plain to you that this Power of Life and Death which may be exercised by Masters of separate Families over their Wives and Children in some cases is not by any Power they receive from God as Husbands or Fathers but only as Heads or Masters of such Families may by proved by this instance suppose a Master of a Family independant on any other as in the Indies hath neither Wife nor Children yet sure he hath notwithstanding the same Power of Life and Death over his Servants or Slaves for such great offences as you have mentioned in case there be no superiour Power over him to take Cognizance of such Crimes And to make this yet plainer suppose a Married Man having a Wife and Children will live together with them in the Family of such a Master as I have now described yet not aâ— a Servant but as an Inmate or Boarder and whilst he so continues his Wife Kills one of her Children or one of his Sons Murders his Brother who hath right to punish this offence but the Master in whose Family he is an Inmate And this follows from your own supposed for if every separate Family in the state of Nature be a distinct independant Government then all those that enter themselves as Members of such a Family must be subject to the Master or Governour of it Nor do you reduce me into any absurdity by your reply to my argument That if the Power of Life and Death were Originally in Fathers by the Law of Nature it could never be restrain'd nor taken from them without their consent that then this will make as much against the like Power of Masters of Families since I must grant this is taken away by Civil Laws And why not the other To this I reply that you do not observe the strength of these words Without their consent For I suppose that no Power whatever can take this out of the hands of such Fathers or Masters of Families in the state of Nature without they assign it to the Supream Powers of the Common-wealth upon its first Institution whereas you make this Power to be obtainable by Force as by Conquest or Usurpation not only over those that are not at their own disposal as Children and Servants but over their Fathers and Masters too without their consents which is contrary to the Law of Nature and Reason M. I see you take it for granted that I will admit your Instance of the Power of Life and Death to be in the Masters of Families and not as Fathers in the State of Nature But as plain as you think it since you question the Power of Life and Death which I suppose to be inherent in all Fathers I know not why I may not with more Reason question your allowing the like Power to Masters of separate Families since there is no reason in my Opinion which you can bring for such a Power in your Masters of Families which I cannot with like reason urge may be also exercised by Fathers and Husbands over their Wives and Children in case they deserve it For if it be for the good and preservation of mankind that great and enormous Crimes such as Murder and Adultery should be punished and that with Death Who is more fit to inflict these punishments or who can be supposed to judge more impartially of them than the Father or Husband himself Since he cannot put his Son or Wife to Death however they may deserve it without very great reluctancy since he aâ— it were thereby lops off a Limb from his own Body And therefore I cannot see any Reason why such a Married man as you describe should by coming under another Man's Rooâ— only as an Inmate or Boarder and not as a Slave which I grant would alter the Case should lose that Power of Life and Death which I suppose he hath by the Laws of God and Nature over his Wife and Children unless he had actually given it up to the Master of that Family with whom he came to Board And therefore as I do not deny but that a Master of a separate Family hath power of Life and Death and also of making Peace and War with other such Masters of Families nay with Princes themselves if there be occasion as we read in Genesis Chap. 14. That Abraham made War with the four Kings who had taken Lot Prisoner So likewise when Judah pronounced Sentence of Death against Thamar his Daughter-in-Law for playing the Harlot Bring her forth says he and let her be burnt Gen. 38. I own this was not done by the Authority of a Father alone she not being his own Daughter and his Son being then dead but as the Master of a separate Family who hath I grant power of Life and Death as he is Lord over the persons of his Children aâ— Servants and consequently over their Wives also for if he hath power over his Son he hath certainly the like over all that belong to him as long as they continue members of his Family and that he hath not thought fit to manumit or set them free But now I desire to know by what right these Patriarchâ— could exercise all these markâ— of Soveraignty especially this great Power of Life and Death unless it were derived from God at first since no Man hath any power to dispose of his own Life at his pleasure and therefore sure hath naturally no power over that of another man's So that not only this Power of the Patriarchs but also that of all Monarchs to this day must be derived from this Divine Original F. Well then I find you 're forced to quit the power of a Father as such by Generation since it plainly appears that this power of Life and Death which you affirm a Husband or Father may exercise over their Wives or Children in the state of Nature is not quatenus as a Father but Lord and Master over them which in the first place I cannot allow to be true in relation to the Wife nor that the submission of the Wife's Will to the Husband must imply a power of Life and Death over her for if she is not his Slave as certainly she is not for then a Man might sell his Wife when he pleased I cannot see how she her self could convey by force of the contract any such Power over her Life tho I grant indeed if she happen to commit Murder upon one of her Children or other Person of the Family he may proceed against her as an Enemy but not as a Subject and if it be for Adultery it self I cannot see that the Husband can by the Law of Nature punish her with Death for since that Crime doth really dissolve the bond of Matrimony Divorce or putting her away and deserting the Child born in Adultery
Son do what you can and so consequently you will still owe him Subjection For it is a maxime not only of the Civil Law but that of Nature too and this most of all in the State of Nature that is before Civil Laws had restrained thaâ— Paternal Power Iura Sanguinis nullo delicto dirimi possunt and lastly from the fourth Commandment of Honour the Father c. Now no Man can tender honour to him whom he goeth about to resist and so may also destroy F. I consists you have urged this Argument as home as the thing will bear but yet I think I can shew you that the Son is so far from acting against the Law of Nature in thus resisting his Father that I think he would rather transgress it if he acted otherwise But first to answer your Arguments I deny that either Generation or Education do confer so great a benefit that a Man is obliged to Sacrifice himself his Wife and Children and all he hath in return for it First for Generation I suppose you will not much insist on that since you must grant that a Father doth not act in that matter as a voluntary but Natural Agent neither is it in his Power to hinder the Child that he gets from being conceived or born neither did he get him so much to propagate his Speâ—ies as to gratify his own present natural appetite Then for Education which I grant is much the greater obligation since by the former I am only born an irrational helpless Creature but by the other I am made a reasonable Man able to help and provide for my self and knowing my duty to God and other Men yet even these obligations are not great enough to make me Sacrifice my self and all that I have to his fury or humour I grant indeed that if it were to save a kind Father's life a Son may be obliged to venture nay lay down his life to perform it but I deny that even for such a Father he hath a Right to give up the lives of others which are not at his disposal as those of his Wife and Children are not in this case For this were not only to return more than was first given but also to pay debts with that which is not my own and to give up their lives and let my Father take them away is all one if I can hinder it qui non prohibet facit Then as for the Relation of a Father which you say no fault of his can obliterate or destroy you must grant that it may be suspended for a time as when a Man binds or resists his mad or druken Father who would kill him or his Wife or Children he doth not do it to the Father but to the mad Man or Drunkard and so likwise in this Case he doth not resist his Father but a furious unreasonable Creature who is so far from behaving himself as becomes a Father that he doth not act like a Man Nor doth your Maxime hold true in all Cases and therefore is no Law of Nature for Iura Sanguinis aliquo delicto dirimi possunt or else a Father could never put his Son to death for any crime whatever which you have affirmed he may but certainly when he acts thus it is not as a Father nor doth he destroy him as a Son but an Enemy or Malefactor Now I desire you or any indifferent Man to consider since the common good of Mankind is the sum of all the the Laws of Nature and the great rule by which they are to be tryed which rule is to be preferred and conduces more thereunto when they cannot consist at once or together That a Father who by your own confession comes to do an unlawful wicked action viz. to ruine and destroy his Son with his Wife and Children should be resisted and consequently one Mans life put in hazard than that many innocent Persons should be ruined and perhaps starved to death for want of food and shelter And as for the fifth Commandment that extends no more to the Father than to the Mother thô you are pleased to leave her out because it makes against your opinion and therefore if by Honour is meant Thou shalt no resist then no Man should resist his Mother any more than his Father if she went about to kill him and yet not the Mother but the Father is by your Hypothesis the natural Monarch that hath this Power of Life and Death over the Son But let us pursue this point no farther if you will not be convinced I cannot help it But pray tell me now what a Son must do if his Father transported by fury and malice should go about to kill him with a Sword or other Weapon and that he hath no other way left to save his life neither by intreaty nor flight which I grant ought to be done if possible whether he may resist his Father with what next comes to hand or suffer himself to be killed M. I am much better satisfyed in this Case than in the other that he ought rather to let his Father take away his life than resist him since here is but one life to be lost whereas I confess the other Case was harder because there were more lives concerned than the Sons and I am of this opinion partly for the same reasons as before and partly because 't is more suitable both to Reason and the Law of Nature as also to Holy Scripture Preceps and Examples For iâ— St. Peter command Servants to be Subject to their Masters c. Not only to thâ— good and gentle but also to the froward And if Servants much more Sons who owe their Fathers a higher duty and obedience than Servants can owe their Masters and Isaac was so far convinced that his Father Abraham had Power over his life that thô he was a lusty young Man and could carry Wood enough to consume a Burnt-offering yet do we not find that he offered in the least to resist his Father when he was about to bind him to be Sacrificed For he very well knew that his Father could not be resisted without endangering his life if not taking it away in the scuffle and sure you will grant that a Son ought rather of the two to let his Father kill him than he take away his life by whose means he received his own especially since Abraham was the Master of a great Family and in whose life and well being not only his Mother but all the Family had an interest as necessary for their well being and happiness Nor can I think that Abraham would have so readily assented to God's Command for the doing of it had he not been already satisfyed that he had an unaccountable power of Life and Death over his Son by the Laws of God and Nature F. In the first place to answer your authorities from Scripture as for that place of St Peter you have cited iâ— is not a precept given by
with the Power of all such Masters of Families or Freemen taken together may for the sâ—me end viz. the good Government and Peace of â—heir Families and Commonwealths make Laws under no less a Penalty than Death it self against such offences as by the Law of Nature do not deserve it since without such a Power the wickedness of Man being come to this height it is no Family or Commonwealth could be long preserved in Peace or safety And therefore I suppose you will not affirm but that such a Master of a Family may very well inflict any punishment less than Death for such offences which if they find too gentle to amend those crimes they may likewise for the same reason encrease the punishments ordained for it And therefore I yield that tho Theft doth not in its own Nature deserve Death yet if the Master of such a separate Family shall find his Children or Servants to be so addicted to this vice as not to be amended by any less punishments than Death he may for the quiet of his Family make a general Law that whosoever for the future shall commit Theft shall suffer Death and I doubt not but such a Law when promulged may be Lawfully Executed since this Master of a Family is intrusted by God with the sole Power of judging not only what are crimes but also what are fit punishments for them since both are alike necessary for the happiness and preservation of the Family And I so far agree with you that such Masters of Families have as much Power over the Lives of their Children and Servants as the most absolute Monarchs have over their Subjects that is for their common good and no farther And upon the same Principles do all Kings and Common wealths inflict capital punishments for the Transgression of all such Laws as do any way entrench upon the common interest and safety of their People and upon this ground they may justly inflict no-less punishments than Death for Coyning of false Money which is but a sort of Theft from the publick Treasure of the Commonwealth And the same may be said for all capital punishments ordained against other offences of the same Nature M. If Fathers or Masters of Families are endued by God as you your self now own not only with this Power of Life and Death for enormous crimes against the Laws of Nature but also to make new Laws or ordain what punishments they please for such offences as they shall judg destructive to the quiet and happiness of their Families I see no difference notwithstanding what you have hitherto said to the contrary between Oeconomical and Civil Power For if we compare the Natural Rights of a Father or Master with those of a King or Monarch we shall find them all one without any difference at all but only in the latitude or extent of them For as the Father or Master over one Family So a King as a Father or Master over many Families extends his care to Preserve Feed Cloath instruct and Defend the whole Common-wealth his War his Peace his Courts of justice and all his Acts of Soveraignty tend only to preserve and distribute to every Subordinate and inferior Father and his Children their Rights and Priviledges Hath a Monarch Power to make new Laws and appoint what punishments he will to enforce their Observation So also hath a Father of a Family Hath an absolute Prince Power to command or dispose of the Goods and Estates of his Subjects for their common quiet and security So also hath a Father or Master of a Family So that all the Duties of a King are summed up in this Universal Fatherly care of his People and if the Soveraignty be the same I cannot see and Reason why the Rights and Prerogatives of it should not be so too And therefore if non resistance against their Authority be an unseparable Prerogative of Soveraign Power then if a Father or Master of a Family be endued with it he ought no more to be resisted than the most absolute Monarch F. I perceive your Head is very full of this Notion of the idintity of Natural and Civil Power or else you would never insist so long upon it as you do after what I have proved to the contrary And therefore since I see you look upon this as your topping Argument I shall do my endeavour to shew you more plainly the difference between them For tho I grant that such Fathers or Masters of Families as we here treat of are indued by God with divers Powers which are Analogous or perhaps the same with those of a King or Monarch that is of defending their Families as far as they are able from Forreign force and Domestick injuries and of revenging and punishing all offences that may prove prejudicial or destructive to the Peace and Happiness of their Families yet doth it not therefore follow that the Government of private Families and Kingdoms are all one since they differ very much not only in their Institution but also in their End For first the Fatherly Power by the Law of Nature is ordained only for the Generation and Education of the Children till they come to be grown up and his Authority as a Father is ordained by God only for those Ends and therefore this Relation of a Father is so inherent in him that it can never be parted with or assigned over to any other so as to make the Child or Son so Assigned to owe the same duty to him as he did to his Father There is also besides the Power of a Father that of a Master or Head of a Family over his Children and Servants whilst they continue Members or Subjects of it which Power I grant may be assigned or made over to one or more Persons when ever such Master shall think fit to institute a Kingdom or Commonwealth Yet as Dr. Sanderson very well observes this Power of a Master differs very much from that of the Civil Powers of a Kingdom or Commonwealth as well in the object as end of this Power For first the Power of a Father is only over one single Family whereas that of a Commonwealth is over divers Families united under one Civil Head Secondly in respect of the end the Power of the Master is chiefly ordained for his own interest and advantage but that of the Civil Power chiefly respects the good of the whole People or Community Lastly the Power of the Master of the Family is only for the maintaining his own Natural Property in those things which he hath acquired in the State of Nature whereas one great end of Civil Government is to introduce and establish Civil Property in things according to the Laws of the Commonwealth and also to maintain it when so constituted To conclude Fathers beget their Children and Masters acquire to themselves Slaves and Servants but it is from the consent of Fathers or Masters of seperate Families that any sort of Civil
to defend their own Lives or a Property in any thing they can enjoy and if ever they could be supposed to have done so I think I may boldly affirm that such a Nation are not Subjects but Slaves and the Prince not a Monarch or Civil Governour but only a Lord of a Great Family or Master of a publick Work-house For I take the difference betwixt Subjects or Slaves and Princes and Masters of Families to consist in this that the Power of a Prince is chiefly ordained for the Good and Preservation of his Subjects tho' I grant his own may likewise be included in it as an Encouragement and Reward for his Labour yet not as the principal End of his Institution Whereas in a Family of Slaves they are chiefly ordained for his profit or Benefit that maintains them but their Happiness and Preservation is only accidental and as it may conduce to that The main End also of Civil Government is to institute and maintain a distinct Property in men's Estates and which the Prince or Common-wealth can have no Right to take away And therefore tho' I grant that in those Despotiâ—k Monarchies you mention the Monarchs do exercise an Absolute Arbitrary Power over the Lives Liberties and Estates of their Subjects Yet that this is by Divine Right or Institution I utterly deny or that it was always so in all of them from the beginning for most of those Empires you mention can no otherwise subsist than by a Constant maintaining vast standing Armies or Guards to keep their Subjects in Obedience Nor can any Governments be of Divine Institution which are exercised with a sole Respect to the personal Power and Grandeur of the Prince rather than the Good and Preservation of the People So that if you will but survey the accounts that Travellers give us of those Eastern Parts of the World you will find that there are no known setled Laws or Properties in those Countries except at the Arbitrary Will of the Monarch or his Viceroys and thus all those rich and fruitful Countries of Egypt and Asia which formerly flourished in all Arts Knowledge and Civility and abounded in Multitudes of People are now in most places reduced to meer Deserts and do not breed a Tenth part of that number of People as they did in former Ages Which proceeds from no other cause but the Cruelty and Injustice of the Government quite different from what it was in the time of the Roman Emperours who tho' I confess they were in some sence absolute too yet governed by and were obliged to observe Known Laws and the People had a settled Property in their Estates which the Prince had no Right to take away I shall not enquire how all these Monarchs came to be so Arbitrary at first and thus to abuse their Power But the Generality or Antiquity of this abuse can be no more a Plea for its Right than that because Idolatry was generally practised throughout the World within three or four hundred Years after the Flood till three or above four hundred Years after Christ therefore Idolatry was the True and Ancient Religion of the World Now tho' I will not condemn this sort of Government where the Subjects enjoy no setled Property in Lands or Goods as absolutely unlawful and directly contrary to the Laws of God or Nature Yet in those Kingdoms and Common-wealths where Civil or Hereditary Property is once introduced I think it is not Lawful nor indeed in the Power of the Prince or Common-wealth to destroy or take it away And therefore if the Roman Emperours should have endeavoured by any Laws or Edicts of their own making to have dâ—stroyed all Civil or Hereditary Property in Lands and Goods and to have reduced all the Estates of their Subjects into their own Possession I think they might have been Lawfully disobeyed and resisted by the People since they went about to destroy one great End of Civil Government viz. the Instituting and Maintaining of Civil Property To conclude I freely grant that in all Countries which are governed either by absolute Monarchies or Common-wealths the Soveraignty is so fully in one Person or Body of Men that it hath no other Bounds or Limits under God but it s own Will or Commands Provided they do not apparently tend to the absolute Ruine and Destruction of the People for that being inconsistent with the Notion or End of governing them they are and ever will be Iudges of it And therefore even amongst the Turks and Tartars themselves if they should once find their Prince go about wilâ—ully to destroy them or sell them for Slaves you would soon find notwithstanding this servile Subjection That they would quickly be rid of them as the Ianisaries have served their Emperours of late Years for far less faults M. I cannot deny but you have spoken reasonably enough on this Subject and perhaps if you had restrained this Power of Resistance only to such Cases where the Prince or Monarch makes open War upon his People or doth otherwise actually go about to destroy them it might have been a tolerable doctrine that they may lawfully resist the Forces he shall send against them but this is a Case that so seldom happens if ever at all that it can never be supposed and no Prince unless he were Mad can be guilty of it and therefore when ever he Acts thus I think he may not only be Lawfully resisted but tyed up for a Madman But this is seldom or never the Case between Monarchs and their People for most of the Rebellions and Insurrections that I have ever read of or observed in the World have not proceeded from any necessity that the People had to rise up in Arms and Rebel against their Supream Magistrates because their Lives or Estates were assaulted or in danger to be taken away but for the most part they arose either from the too Great Cruelty or severity of the Supream Power towards some particular Private Men who by themselves and their Friends and Relations have gone about to revenge those Injuries that they supposed had been done them And of this all Histories are to full that I need give no particular Instances of them all which abuses may be reduced to these Heads First when a Prince doth commonly himself violate the Chastities of the Wives or Daughters of the Subjects which tho' it hath been the ruine of divers Princes yet is he able to do this only to some few particular Persons and tho' if he should permit his Soldiers or Officers generally to do this without any Punishment yet even this can hardly if ever extend to all the Wives Daughters or Women in a whole Countrey And therefore both these Cases are to be born withal according to your own Principles since it doth not tend to the Slavery or Destruction of the People I mean as to their whole complexed Body A Second is when an absolute Prince or Monarch goeth about to alter the
very letter of this Law but also because I have now said all private Persons ought to submit their Judgements in this matter to that of their Representatives who if they have judged falsely are 〈◊〉 bear the blame but yet their Judgement for all that is to be held for good 'till it be reversed in the same way in which it was given since if after such a recognition every private person should still be free to pay his Allegiance to him whom he suppos'd King de jure it would certainly follow that the Civil Society or Common-wealth must of necessity fall into Civil Wars which is against the nature of Civil Societies and inconsistent with the duty of self-preservation which obligeth men not to expose their Lives and Fortunes but to obtain a greater good than both those which can only be the publick good of the Community and not the single interest of any one person or Family and though I grant it is a great sin in those who are instrumental in raising Rebellion and who are thereby guilty of a very enormous Crime yet that which made it so was not barely the injury they committed against the Prince to whom if alone consider'd the breach of an Oath in withdrawing their Allegiance could be no greater a Sin than the breach of an Oath to another person but indeed the fatal mischief and irreparable dammage they did the Common-wealth is that which aggravates the Sin and if a new commotion to restore the King de jure would in all probability prove yet more destructive and a Nation by being so much weakned by a former Civil War be less able to bear a new Civil War which may happen so far to the weakning of it as to expose it to the Invasion and Conquest of a foreign Nation who may be Enemies both to our Religion and Civil Constitution in such a case I cannot think it our duty to restore a Prince by force though never so unjustly driven from his Throne And therefore if I had been then a man tho' I should have been as much for bringing home King Charles as any body ought to be yet I should have been only for it in the way in which it was brought about and should never have desir'd it if it could not have been done but by an Army of French or Irish Papists and the like I say now as to King Iames as long as he is joyn'd with the Interest of France and is already gone into Ireland on purpose to renew the War by the Arms and Assistance of those whose Fathers as well as several of themselves did all they could to destroy not only the Royal Power but also the English Religion and Government in that Nation And therefore I must freely tell you that if even Rebels have put it out of their power to make reparation for all the wrongs they may have done by Rebelling against their Lawful Prince because he in possession is too powerful to be driven out again without a violent Civil War and a general concussion of the whole Common-Wealth This reparation to the injur'd Prince being not to be made without a greater evil than that they endeavour'd avoid it ought to be omitted till it may be done with more safety to the Nation or else not at all I say if there be no other way to make reparation to their injur'd King but by engaging the Nation in fresh Civil Wars they ought not to attempt it by such unlawful and destructive means M. I confess the Discourse you have now made carries the greatest appearance of truth of any thing you have yet said since it is drawn from the publick Good of the Nation which I grant to be comprehended under the common good of Mankind and you have done well to own it to be Rebelion to deprive a lawful Prince and his Heirs of the Crown yet that it is unlawful to restore them again to it if we think it cannot be brought about without a general Subversion of our Religion and Civil Liberties may be a question I grant indeed if we could be absolutely certain of this there would be some colour for this Argument but since future things are not capable of Demonstration if the restoring our lawfull Prince be a Duty incumbent upon every good Subject we ought to endeavour it though with some Danger and Hazard of what ever is dear to us for God will either protect us both in our Religion and Civil Liberties for thus honestly performing our Duties according as we are bound by our Allegiance or if he has call'd us to suffer for the Truth he will either find us Patience to bear it or else provide us a way to escape this I speak in Relation to the French and Irish whose Conquest and Malice you are so much afraid of in case the King should happen to be restor'd by their assistance but indeed I think this a needless fear since I suppose the King will be too wise to bring over so many of either Nation as shall be able to make an entire Conquest of this Kingdom least thereby both he and his Crown may lie wholly at their Mercy when the Business is done nor do I think it either in the power of the French or Irish to perform these dangerous things not of the former because as I now said I suppose the King will never bring over more of them along with him than what may serve to make a stand against the Prince of Orange's Forces till his Good and Loyal Subjects can come in and join with them to his Assistance and as for the Irish they are also the King's Subjects and though Ignorant they are very inveterate against the Protestant Religion and the English Nation and Interest yet they may be so govern'd and over-rul'd by the King as not to be able to do us any considerable Damage But as to the King of France I do really believe he is far from intending to make an entire Conquest of this Kingdom for himself much less desiring to make the King as Absolute a Monarch here as himself is in France for us to the form◠he has too much consideration of his own Glory and Reputation in the World to seize upon the Kingdom of a near Kinsman and Allie of his own Religion and who had been driven from his Throne chiefly for being too much in his Interest and besides all this he may very well fear that if he went about any such thing as an entire Conquest of this Nation all Parties may join against him as a common Enemy and drive him out again as the English Barons did Prince Lewis in the time of King Henry the III d. nor can it be the French King's Interest to make our King Absolute here for then having the Persons and Purses of his Subjects wholly in his own Power King Lewis might justly fear that either this King or his Successors may prove as dangerous Enemies to the
him not only Gratitude and Respect as a Parent but also Obedience in all indifferent things Yet I deny that this Power or Supâ—â—iority of Adam over his Wife and Children was at all a Despotical or Civil Power but meerly Oeconomical for the Good and Convenience of Adam and the well ordering and preservation of his Family which you will easily grant if you please to consider what are the Essential Differences of Civil Government from Oeconomical Now the Essential Properties of Civil Government consist in preserving and defending the Subjects both in War and Peace from Forreign Enemies and Intestine Injurieâ— and Invasions of Mens Persons or Properties and in revenging and punishing all such Transgressions by Death or other Punishments and consequently in making Laws concerning Property and for restraining all Robberies Murders and the like Now in the state of Innocency there could be no need of any of these Essential Functions of Civil Power for your self must grant that Man was then not apt to Sin and immortal so that all Laws about Peach or War Punishments of Offences publick Judgments concerning Meum Tuum and all Injuries were absolutely needless and had never been in Nature if Adam had not sinned and then how you can call this Authority or Superiority which I grant Adam had over his Wife and Children Civil Power I can by no means understand But I do utterly deny that even after the Fall Adam was a Monarch or Sole and Absolute Lord over the whole Earth and all Creatures therein contained and desire you to give me such plain proofs of it either from Reason or Scripture that I need no more doubt of it than your self M. I shall first of all give you an Argument drawn from the Reason of the thing and in the next place the Authority of Scripture for my Opinion and first I think it is evident that every Man that is Born is so â—at from being Free that by his very Birth he becomes a Subject of him that begets him and even Grotiâ—â— hâ—mself acknowledges that Generatione â—us acquiritur in liberos And indeed the Act of Begetting being that which makes a Man a Father his Right of a Father over his Children can Naturally arise from nothing else and the same Author in another plâ—ce hath these words upon the Fourth Commandment Parentum nomine qui naturales luns Magistraus etiam alios Rectores par est iutelligi quorum authoritas Sociâ—tatem humanam continet And if Parents be natural Magistrates Children must needs he Born Natural Subjects So that not only Adam but the succeeding Patriarchs had by Right of Fatherhood Regal Authority over their Children as may 〈◊〉 by divers Testimonies out of Scrâ—pture and therefore at is very reasonable that all Fathers should have a Power over the Lives of their Children since it is to them that they owe their Life Being and Education and I think that even the Power which God himself exerciseth over Mankind is by Right of Fatherhood F. Before you come to Scripture give me leave in the first place to examine your first Argument which you deduced from the Law of Nature or Reason For I doubt if you please better to consider of it you will and that so light and Transitory an Action as that of Generation cannoâ— give any Man an absolute Property and Dominion over the Person and â—â—fe of those whom he Begets since sew Men do principally intend the giving of a Being to another so much as they do their own pleasure in that Action nor do we owe our Lives properly speaking to our Parents but to God who is the true and original Cause of our Being though it is true he makes use of our Parents as Physical though not as Moral Means or Instruments for that end since it doth not lye in their power to hinder their Generating of Children if they perform the Acts necessary thereunto so that both the antecedent and the consequent are altogether false viz. That Parents give their Children Life and Being and that therefore they have and absolute power over their Lives and Persons which if it were true would give the Mother an equal Title to the Lives of the Children as the Father seeing they owe their Lives as much to the one as the other Which power in the Mother I am sure you will not admit of But as for what you say concerning the power of Fathers arising from Education though I confess that is a much better Title than the other Yet doth it not follow that because by reason of my Parents care of me before I was able to help my self I owe my preservation and well being to them that therefore they are to be perpetual and absolule Lords over my Person and Life Since by thus breeding me up they only perform'd that Duty and Trust which God had laid upon them for the good and preservation of Manking and which they could not without committing a Sin either refuse or decline and therefore their Authority or Power over my Person being only for my well-being can extend no farther tan whilst I am not of years of discretion to understand the true means of my own good and preservation And though I grant that I am bound in gratitude to return this Care and Kindness by all Acts of Duty and Piety towards them as long I live yet doth it not therefore follow thar they are Masters of my Life and of all that I have since this were to take away more than they themselves ever gave and though I should grant you that even the Power which God himself exerciseth over Mankind is by Right of Fatherhood yet this Fatherhood is such as utterly excludes all pretence of Title in Earthly Parents for he is our King because he is indeed maker of us all which no Natural Parents can pretend to be of their Children but if you please more closely to consider your own Argument you will find that he will quite destroy your Hypothesis For if all Fathers have an absolute power over their Children by Generations then Adam could only have power over his own Children which he begat and none at all over his Grand-Children since their Fathers by this Argument of Generation ought to have had the same power over their Children which Adam had over them for the same reason So that this Monarchical Power of Adam as a Father could extend no farther than one Generation M. I shall not further urge this Argument of Generation since I see you are not satisfied with it but this much I think I can clearly prove from Scripture that Adam was Lord over the Persons and Lives of his Wife and Children by vertue of that command which God gave Eve Gen. 3. v. 16. Unto the Woman he said I will greatly mutilply thy sorrow and thy Conception In sorrow thou shalt bring forth Children and thy desire shall be to thy Husband and he shall rule over thee From which words it
quit his Fathers Family and joyning himself to his Wife may set up another of his own But as for the Children that were begotten between them tho' I grant they might be intended both for the comfort and assistance of him and her yet I have already proved that the Parents are more chiefly intended for their Childrens Propagation and Preservation than the Children are for their Interest and Happyness Your fouth consideration is only a supposition of the question which is yet to be pâ—oved that Eve was under an absolute subjection to Adam after the Fall I have already proved this supposition not to be true and therefore the consequence as to the Children is false likewise Your fifth is rather an interrogation than an Argument whether Children ought not to be and have not always been subject to their Parents all over the World In answer to which I grant that it is true that they have ever been so tho' not in your sense For I hold this subjection neither to be servile or absolute nor yet perpetual as long as they live but in reply to this limitation of the Power of Parents over their Children both in its extent and duration you tell me this is purely owing to the Civil Laws of Nations and not to the Laws of Nature and for a proof of this you produce Gods own people the Jews for an example that the power of the Father over his Son was not determined but by his Death But your self confesses that he could not exercise this Power of Life and Death but in the presence of the Magistrate the circumstances of which if they be considered will rather make against you for first the Father could not have this rebellioâ—s Son put to Death till he had accus'd him before the Elders of the City that is the Judges who were establisht in every Precinct who upon a solemn hearing were to sentence such a rebellious Son to be stoned to Death by all the People of the City where you may observe that the Father had no power to put him to Death himself and therefore acted in this case as an accuser or a witness not as a Judge But if you 'l believe Maimonides one of the most Learned of the Jewish Rabbins he will tell you that by the Municipal Law of the Jews this power of the Father did scarce extend beyond the thirteenth year of the Son's Age after which the Son was reckoned Adult and Emancipated from his Fathers Powers and could not after that incur this punishment of a Stubborn and Rebellious Son and a Father who did but strike his Son after he was Adult incurr'd Excommunication for that he offended against the Law And tho' I grant that the Nations you mention did exercise a Power of Life and Death over their Wives and Children yet will not the Practice of some particular Nations tho' never so much civiliz'd amount to a proof of a Law of Nature which is only to be made out from evident Rules of Right Reason and the great end of this Law the common good of Mankind and especially when against the Examples of those Nations which you produce I can likewise set those of many more Nations where this Custum was not allowed after once Civil Government was establisht And as for the Romans themselves amongst whom the greatest Examples of this kind are to be found they will not all of them amount to above three or four in six or seven hundred years and then tho' there might be very good cause for it yet the People of Rome never so much esteemed or loved such Fathers after they had put their Sons to Death as they did before but counted them too severe and cruel for so doing And you read in Valerius Maximus and Seneca that they killed Erixiin a Roman Gentleman for whipping his Son to Death like a Slave so much did they abhor all such Cruelty of Parents towards their Children and afterwards when by the General Corruption of Manners amongst the Romans Fathers grew more cruel to their Children and often put them to Death without cause Those of your Faculty suppose that some of the Roman Emperous tho' it is uncertain who took away this Power from Fathers and made it as it is now among us Murder for a Father to put his Son to Death tho' others since there are no particular Edicts to be found concerning this matter do suppose this Law to be changed by degrees and to be left off by common consent of the Romans themselves for it seems dangerous to grant to a private person the cognizance of any crime which might belong to publick Authority and they thought it better to strengthen both the Paternal and Marital Power by other Laws than putting to Death And therefore Simplecius upon Epictetus his Enchiridion says that the Romans allowed Fathers this Power because they thought they might very well trust their Natural Affection to their Children for the exercise of that Power of selling them or putting them to Death which 't was supposed they would rarely use unless compelled by extream necessity or unpardonable crimes and therefore if a Father would put his Son to death he was to do it with his own hands that he might suffer as well as his Son but when this render affection â—oo failed it was no wonder that the Roman Emperors did not think it for the common good of their People to trust Fathers with this Power any longer which they had hitherto exercised not so properly by right of Fatherhood as that of the Master of a Family who governed his Servants and his Sons by a like Authority To conclude I cannot but observe how slyly you wave my objection against the Divine Institution of Monarchy for tho' you seem loth expresly to condemn all other Governments as unlawful yet the consequence will be the same upon your principles For if it be a good argument which some make use of for the Government of the Church by Bishops because that Government being supposed by them to have been instituted by the Apostles by Divine Precept therefore that no other Government but Episcopacy can be lawful or any true Church where that Government is not in use so the same argument will likewise hold in Civil Governments that all others must be unlawful if Monarchy alone were ordained by God and that all other forms whatsoever began from Rebellion or the Fancies of Men. M. To answer what you have said in the first place I cannot so slightly pass over this argument of the Law of Nations by which I supposed the Power of Fathers over the Persons of their Children is sufficiently established and from whence also it appears that among the Iews as well as Romans the Children were lookt upon as part of the substance of their Father and consequently that they had a perpetual right in their Persons as long as they lived that the Romans had the power of selling their Children
three times your self do not deny that the Iews also had it in use among them appears first by the story of the poor Woman the Widdow of one of the Sons of the Prophets who complained to Elisha in the second of Kings telling him that her Husband is dead and the Creditor is come to take her two Sons to be Bond-men And so likewise in the New Testament our Saviour in St. Matthew supposes it as a thing commonly practised in those parts of the World where he lived For in the Parable of the King who would take account of his Servants amongst whom one owed him Ten thousand Talents But for as much as he had nothing to pay his Lord commanded him to be sold and his Wife and Children and all that he had and payment to be made Which was founded upon that Law amongst the Jews that Fathers might sell their Children for Bond-servants until the year of Iubilee as appears by Nehemiah Chap. 5. where he relates the Complaint of those poor Jews who had been forced for want to bring their Sons and their Daughters into Bondage Neither was it in their power to redeem them for other Men had their Lands and their Vineyards And amongst the Romans this Power of selling their Children continued till it was forbidden by the Emperour Iustinian And as for the Grecians Plutarch in his Life of Solon relates that till his time it was lawful amongst the Athenians for Fathers to sell their Children to pay their own Debts And I suppose it was upon this account that Cymon the Son of the great General Miltiades was kept in Prison by the Athenians till he had paid the Fine of ten Thousand Talents which his Father died indebted to the Common-wealth And Philostratus in his Life of Apollonius Thyanaus relates that it was common amongst the Phrygians to sell their own Sons And to come to more Modern Times a Son amongst the Muscovites may by sold four times but after the fourth Sale the Eather hath no longer a Right in him as the Baron of Heberâ—lein tells us in his Relation of Muscovy and it is not only in use amongst them but also amongst the Tartars East-Indians Chineses and the People of Japan not only to sell their Children themselves but also that they are liable to be sold by the Prince or his Officers for their Fathers Debts or Offences So that you see here is the Consent of most of the Civiliz'd Nations in the World who sure in this follow the Dictates of Nature and Reason in the exercise of a full and absolute Propriety and Dominion in and over the Persons of their Children so that if it be a received Custom or Law amongst most Nations it is also from Reason too since the Law of Nations is only that which receives its obligation from the Consent of many Nations as Grotius well observes And Aristotle lays it down as one of the strongest proofs when all men agree in any thing And Cicero tells us That the Consent of most Nations is to be looked upon as a Law of Nature and therefore these Customs are to be esteemed as obligatory amongst all Civiliz'd Nations where the Municipal Laws of those Countreys have not restrained or altered this Natural Power and Interest which Fathers had originally over the Persons of their Children But as for what you say that according to my Principles no other Government can be Lawful besides Monarchy I shall give you the same Answer that some of the most Moderate of our Divines have given to those who would make the like Objection against us of the Church of England thaâ— believe Episcopacy to be Iure Divinâ— viz. That God may for the necessity of some Ecclesiastical Order and Government in a Church allow that Form of Government to be Lawful which himself never Instituted Nay which perhaps was unlawful to have been set up in the Church at all and so likewise in Civil Governments I will not deny that those Forms may be lawfully obeyed as the Ordinance of God which he never Instituâ—ed but have wholly proceeded from the Rebellions or Inventions of Men. F. I must confess Sir I cannot see how any Law of Nations can be supposed to lay any Obligation upon Mankind different from the Law of Nature and Reason or the revealed Law of God in Scripture And tho' I confess there is some division amongst Learned Men about this matter yet I think it is far more rational to suppose that there are but two Law that can be Rules of Humane Actions the Natural Law and the Divine And of this Opinion is the Learned Grotius himself in the place you but now cited where he says he added the words many Nations because there can scarce be found any Natural Law which is also wont to be called the Law of Nations that is common to all Nations Yea that is often lookt upon as a Law of Nations in one Country which is not so any where else as says he we shall shew in its due place concerning Captivity and Postluminium And for a farther confirmation of this I will make bold to read to you in English some part of what thâ— Excellent Puâ—endof hath written upon this Subject in his Learned Work De Jure Naturae Gentium Lib. 2. Cap. 3. which you may here read with me The Law of Nature and the Law of Nations is accounted by many one and the same which only differ by an extrinsick denomination And form hence Hobbs De Cive C. 14. § 4. Divides the Law of Nature into the Natural Law of Men and the Natural Law of Common Wealths which is commonly called Jus Gentium And then adds that the Precepts of both are the same but because Common-Wealths when once instituted do put on the personal properties of Men that Law which speaking of the duty of particular men we call Natural being applied to all Common-Wealths or Nations is called Jus Gentium to which opinion we do likewise subscribe neither do we think there can be any other voluntary or positive Law of Nations which can have the power of a Law properly so called and which may oblige all Nations as proceeding from a Superiour But most of those things which amongst the Roman Civil Lawyers and others are referred to the Law of Nations as suppose about the manner of acquiring of Contracts and the like do either belong to the Law of Nature or else to the Civil Laws of particular Nations which agree together for the most part in these things yet from which nâ— new or distinct sort of Law is Rightly constituted because those Laws are common to Nations not from any Agreement or Mutual Obligation but in that they do by accident agree from the peculiar Will of the Law-givers in each particular Common-Wealth from whence the same things may be changed by one People or Nation without consulting the rest and often times are found to be so changed
by several places in Genesis by which it plainly appears that Adam and after him Noah were supernaturally endued with this Divine Power F. Tho â— am satisfied that this Hypothesis is extreamly absurd since if it were so only Christian or Jewish Soveraigns or Magistrates who acknowledg the Scriptures could lay any claim to or exercise this Divine Power whereas we find it practised by all those Nations with whom the memory of Adam and Noah is quite lost and therefore must claim this Prerogative not from any Revealed but Natural Law of God yet however since you think you have such clear Texts of Scripture on your side I desire you to produce them tho if they should make out what you say they would only serve to confirm by Divine Revelation that Prerogative of Life and Death which all Masters of Families as well as Civil Soveraigns enjoyed by the Law of Nature before ever the Bible was written M. As for my own part I am so well satisfied of this Supream Power of life and death granted at first by God to Adam and after to Noah that I cannot see that without the supposal of this any Supream power could lawfully be exercised by civil Soveraigns at this day And therefore I am of Mr. Selden 's opinion who in his most learned Treatise De Iure gentium apud Hebraeos maintains with the Iewish Rabbins That the Law of Nature can never be planly proved and made out by Reason without a Tradition of its Preceps as given by God to Adam and thence conveyed to Noah and his posterity Which Divine Laws or Commands are called by the Iews the Seven precepts of Noah which whatsoever Nation or People would observe they permitted them to live as Inhabitans among them though they did not embrace Circumcision or those other Rights and Ceremonies commanded by the Law of Moses Now amongst these Precepts that of instituting publick Judgments for capital Crimes is one of the first in pursuance of that Command which God gave Noah immediately after the Flood Gen. 9. v. 6. Whosoever sheddeth man's blood by man shall his blood be shed for in the image of God made he man By which Text almost all Commentators understand that it is not any common man but the person of the civil Magistrate or Soveraign that is to be meant Since it would be both impracticable and also breed great confusion in civil Societies if by this word man every common person not endued by God with this Supream Power of Life and Death should be understood and therefore I do suppose with the most Learned Iews that this Power was first exercised by vertue of that Divine Charter that was given of it by God to Adam and then renewed again to Noah by the Text abovementioned Now that Adam had by Divine grant an absolute Dominion over the whole World and all Creatures therein contained will appear from Gen. 1. v. 27 28. here is the Bible I desire you would read it with me So God created man in his own image in the image of God created he him male and female created he them And God blessed them and God said unto them Be fruitful and multiply and replenish the Earth and subdue it and have dominion over the Fish of the Sea and over the Fowl of the Air and over every living thing that moveth upon the Earth By which Grant or Donation from God of subduing the Earth and having dominion over the Creatures Adam was made the general Lord of all things with such a particular propriety to himself as did exclude his Children from having any share in it So that if Cain had his Fields for Corn or Abel his Flocks and Pasture for them it was only by Adam's Grant or Assignation none of his Children or Descendents having any property in Lands or Goods without his particular Grant or Permission F. You must pardon me Sir if I cannot be of your Opinion that all the Preceps of the Law of Nature must depend upon no firmer foundation than a Tradition of the Seven Preceps supposed by the Jewish Rabbins to be given to Adam and Noah and from them conveyed to all their Posterity since we find not the least mention of any such Precepts in the Scripture or in Josephus Philo Judaeus or any other ancient Writer but only in the Tâ—lmud Which though it pretends to a great Antiquity in its Traditions yet any judicious man that will but peruse it may easily see the falshood as well as absurdity of the pretended Tradition of these Precepts one of which is against eaâ—ing the Members of any living Creature which savours so strongly of a Jewish Superstition that if that were a true Precept or Law of Nature no man could eat a Dish of Lambstones or a Black pudding without sinning against the Law of Nature And it is very improâ—â—â— to suppose that all mankind except Jews Christians and Mahometans should be obliged to live or act by those Laws or Preceps they never heard of For it as you your self must grant the memory or tradition of these Precepts be quite lost amongst all Nations except the Jews it is all one as if they had acted without any Law at all and consequently if they have not some better grounds for their observation of the Law of Nature than these Preceps of Noah I doubt whether according to your Hypothesis all Civil Soveraigns that do not own the original of their Power of life and death to this Divine Charter granted to Adam and Noah must be no better than Murtherers since they take upon them to exercise this great Prerogative without any Divine Authority for so doing But I hope to shew you before we have concluded this conversation that not only the Power of Life and Death but also other Laws of Nature may easily be deduced by Reason to have been given by God to Mankind by the ordinary Course of his Providence without recurring to Divine Revelation which can only oblige those that have heard of it But since you lay so much stress upon those Texts of Scripture you have now cited I pray give me leave to examine whether they will bear that sense you put upon them As for the first of those Texts you quote Whosoever sheddeth man's blood by man shall his blood be shed c. Suppose I should take it in that sense you put upon it only to extend to Civil Soveraigns or Magistrates it will be so far from proving a Power of Life and Death to have been granted by God to Adam and from him conveyed to Noah that this place seems to imply the contrary for if it was a known Law before that Murther was to be punished with death by a Father or other Magistrate to what purpose was this Command now given to Noah Since if it were a Divine Law before the Flood wherefore is it here repeated And therefore all Expositors agree that this is the first Precept enjoyning Murther to
have already given you an example of the Negroes in Africa and which of these two inconveniencies are most likely to happen between Children and Parents in the State of Nature I should leave is to any indifferent Man to judge between us And therefore I think it more conduces to the good and peace of Families and consequently the happiness and preservation of Mankind which are the end of all Laws that Children should be allowed these Rights I have alâ—erdy laid down of asserting this Natural Liberty from Slavery and defending their Lives and those of their Wives and Children from the unjust violence of their Fathers than that they should be left wholly at disposal to be maimed killed or ruined when over this coveteousness passion or malice may prompt them to it Sence if all Fathers were satisfied that their Children have a Right thus to defend themselves in these Cases against their unjust violence it would be a means to make them act more catiously and to behave themselves with greater tenderness and moderation towards them So than to conclude I utterly deny that these Principles I have here laid down do at all rend to countenance Rebellion or raising disturbances in Civil Governments since I cannot allow you have proved Parents to be Princes or Monarchs in the State of Nature or that Families and Kingdoms or Commonwealths are all one Or if I should grant them to be so yet would it not therefore follow that every private Subject in a Civil State hath the same Right to defend his life or that of his Wife and Children against the violence or injustice of the Supream Powers as a Son may have in the State of Nature to defend his life c. against his Fathers rage or violence since I grant no particular Subject can contradict or resist the Supream Power of the Lawfull Magistrate however unjustly exercised by force without disturbing or at least endangering the quiet and happiness of the whole Community and perhaps the dissolution of the Government it self which is against the duty not only of a good Subject but also of an honest Moral Man who will not disturb the publick tranquility for his own private security or revenge But in private Families the Case is otherwise and Children may resist their Father in the Cases already put without introducing either Anarchy or Civil War in the Family since it can scarce be presumed that either their Mother Brothers or Sisters will take part with a Son or Brother against their Husband and Father unless it ware that they might thereby hinder him from committing murder by defending their Son or Brothers life when thus violently and without cause assaulted and if it should sometimes happen otherwise yet this would be a much less mischief then that out of this fear the Lives and Liberties of an innocent Wife and Children should suffer without cause by his drunkenness or passion But as for the resistance which Sons may make in the State of Nature and when separated from their Fathers Families it is of a much larger extent since they may then not only defend their own Lives but also those of their Wives and Children with their Estates against their Fathers unjust violence Thò I do here likewise restrain this self-defence only to cases of actual invasion or asault of such Fathers upon the Lives and Estates of his Children in which cases I also absolutely condemn all actions and proceedings done by way of prevention before such violence or assault is actually begun to be made upon them much less do I allow of any revenge or return of evil for evil by such Children when the danger is over since however such revenge may be Lawful between Persons in the State of Nature no ways related or oblieged to each other yet do I by no means allow the same Priviledge to Children against their Parents since I look upon the obligation they have to them to be of so high a Nature that it can never totally be cancelled thô in those cases of self-preservation and defence they may be suspended for a time As if I owed my life and all that I have to some great Person who hath either saved the one or bestowed the other upon me thô I should be very undutiful and ungratful too if upon his becoming my Enemy thô without any just cause I should go about to return his injuries in the same kind yet were I not therefore obliged to give up that Life and Estate he had before bestowed upon me when ever he thought fit without any just occasion to take them away and I am confident that Resistance in these cases and with these restrictions doth neither derogate from that Gratitude and Piety which Children always ought to pay their Fathers nor yet can tend to encourage either Anarchy or Rebellion since such Sons when once married and are become Masters or Heads of Families themselves they then cease to be under their Fathers Subjection as they were before tho I confess they are always to honour and reverence him according to Gods Command in all cases when they will deal with them as Fathers and not as Enemies M. I shall no longer dispute this Right of Resistance in Children in the Cases you have put since I see it is to little purpose to argue longer with you about it but this much I think is still true that all Supream Powers whatever cannot without Rebellion and absolute dissolution of the Government be risisted by the Subject so that if the Government of Fathers or Heads of Families be Supream as you seem to grant that cannot be resisted neither without bringing all things therein to Anarchy and confusion F. Pray give me leave Sir to interrupt you a little I desire you to remember that I do not allow the Power of Fathers or Masters of Families to be any more then Oeconomical and not Civil Power and I have already shewed you how Resistance of such a Power when violently and unjustly exercised may be resisted without any Anarchy or confusion in the Family but as for Resistance of Civil Powers in some Cases it is not the Subject of this discourse and therefore I desire you would now mind the Subject in Hand and not pass off to any other till we have dispatcht this so that I would rather if you have any fresh objections to make that you would now do it because it groweth late M. I must confess ingeniously your Arguments have much sâ—aggered me since I see great inconveniencies may happen on either side for if the Father or Master may be the sole Judg when and how he may exercise this absolute Power I grant all those mischiefs may sometimes fall out which you have here set forth so on the other side if the Children may be Judges in their own case those evils may often happen which I have already alledged And therefore pray pardon me if I am not too hasty in altering my opinion in
this point without better consideration but methinks you have not yet fully answered one of my main Arguments to prove the Power of Life and Death to proceed from God alone and therefore must have been conferred as first on Adam since no Man hath a Power over his own life as I said before and therefore cannot have it over that of others F. I thought I had already as good as answered this doughty objection when I had yielded to you that neither private Men nor Masters of Families have any Right to defend their own lives much less to take away those of others but as it is granted them by God in the Law of Nature in order to the procuring the great end of it viz. the happiness and propagation of Mankind which I own could not in this lapsed and depraved State of Nature we now are in long subsist without such a Power Yet I think I have already sufficiently proved that we have no need to recur to I know not what divine Charter granted by God to Adam or Noah and from them derived to all Civil Magistrates that ever have been or shall be in the World the consequence of which would be that no Sentence of Death could be justly given against any Man but in such Kingdoms or Common-wealths who own this Authority as conferred on them by God in Adam or Noah from which they must deride their Title to it Now I desire you would shew me how many Kingdoms or Common-wealths there are in the World who ever heard of much less owned this Divine Charter this fine notion yea scarce reaching farther than some few Divines and high Royalists of our own Island But be it as it will the Antecedent or first Proposition is not true that no Man in any case whatsoever hath power over his own life and therefore neither is your consequence for I suppose that for the same End for which the Civil Powers may take away another Man's life viz. in order to the greater good of Mankind of which my Religion or Countrey is a part I am likewise Master of my own and may lay it down or expose it when I think it can conduce to a greater good than my single life can amount to And therefore the Example of Codrus the Athenian King is highly celebrated by all ancient Authors and is not condemned by any Christian Writer that I know of for Exposing himself to certain death to gain his Citizens the Victory the loss of which would have been the ruin of the State And in the first Book of Maccabees Chap. 6.43 which thâ— it be not Canonical Scripture yet is allowed to be Read in our Churches as containing Examples of good manners you may Read that Eleazar the younger Brother of Iudas Maccabeus is there highly commended for his valour in killing the Elephant on which the supposed King Antiochus was mounted that he might thereby destroy him likewise tho he might be assured of his own death by the Elephants falling upon him And the zeal for the Christian Religion amongst the Primitive Christians was so great that we may read in Tertullian and divers Ecclesiastical Historians of whole Troops of Martyrs who tho unaccused yet offered up their lives at the Heathen Tribunals to a voluntary Martyrdom and farther Eusebius himself doth not condemn but rather commends some Primitive Christians that being like to be taken by their Heathen Persecutors cast themselves down head long from the top of their Houses esteeming as he their tells us a certain Death as an advantage because they thereby avoided the cruelty and malice of their Persecutors I could likewise give you if it were not two tedious several other Examples of Ancient Martyrs who have given up themselves to certain Death to save the Lives of some of their friends or else of Christian Bishops whom they lookt upon as more useful to the Church than themselves and which St. Paul himself does likewise suppose to be Lawful when he tells the Romans That the scarcely for a Righteous Man would one dye yet per adventure for a good Man somâ— would even dare to dye that is a Man highly beneficial to others And the same Apostle in the last Chapter of this Epistle returns thanks to Priscilla and Aquila not only on his own behalf but also for all the Churches of the Gentiles because they had for his Life laid down their own Necks that is hazarded their lives to save his and where ever they might have thus exposed them surely they might have lost them too And therefore I think I may with reason affirm that in most Cases where a Prince or Commonwealth may command a Man to expose his Life to certain destruction for the publick good of his Religion or Countrey he hath power likewise to do it of his own accord without any such command the Obligation proceeding not only from the orders of his Superiour but from that zeal and affection which by the Laws of God and Nature he ought to have for his Religion and Country even beyond the preservation of his own Life M. Well I confess that this that you have now said carries some colour of reason with it and is more than I had considered before But pray resolve me one difficulty more which still lies upon my mind By what Authority less than a Divine Commission from God himself revealed in Scripture do Supream Powers take upon them to make Lawâ— And that under no less penalty than Death it self against such offences as by the Laws of Nature do no ways deserve Death such as Theft Counterfiting the publick Coyn with divers other offences needless here to be reckoned up And if a Father as you will not allow him hath no Right over the Lives or Persons of his Wife and Children I cannot see how a Master of a separate Family can have any such Power more than his Wife or any other of the Family and the Scripture seems to countenance this Power of punishing for Murder to be in any that will take it upon them and therefore you see Cain said whoever meets me will slay me And God tells Noah whoever sheddeth Mans Blood by Man shall his Blood be shed without restraining it to any Man particularly who is to do it F. This Objection is easily answered if you please to consider what you your self did a good whâ—â—â— since urge to me that God endowed Adam with so much Authority as should enable him to govern his own Family and Children as long as he lived which I readily granted you and I only differed in the manner of its derivation you affirming it to proceed from a Divine Charter or Grant by Revelation conferred upon him by God and I maintaining that both he and every other Master of a separate Family derive it only from Gods Natural and not Revealed Law which if it be well proved such Masters of Families as also all Civil Powers whom I suppose to be endued
usurped by any other so that any other man can become my Father or I owe him that Filial Duty and Respect as to him that begot me and brought me up And tho' I grant that God may confer a Regal Power on whom he pleases either by his express Will or the ordinary course of his Providence yet when such a person who was not a King before doth become so I utterly deny that the Power he hath then conferred upon him is a Paternal Power in relation to his Subjects which is evident from your own Instance of Saul's becoming a King over his Father Kish For tho' you say that God then conferred a Fatherly Power on Saul over his own Father this is a great mistake For then Saul would have been immediately discharged from all the Duties of Piety and Gratitude which he owed his Father and they were all transferred from Kish to Saul so that after he became King he might have treated his Father with no more Respect or Deference than any other Subject which is contrary to God's Commandment that bids all Men Honour their Father and Mother And I know not how Kings can be excepted out of this Precept So that your mistake arises from this preposterous confounding of Paternal Authority with Regal Power And because Adam Noah or any other Father of a separate Family may be a Prince over it in the State of Nature that therefore every Monarch in the World is also endued with this Paternal Power Which that they are distinct may farther appear from your own supposed Monarchical Power of Adam who tho' granting him to have been a Prince over his Posterity yet did not this discharge any of his Descendants from their Duty and Obedience to their own Father And tho' I confess you talked at our last meeting of a Fatherly Power to be exercised in subordination to the Supreme Fatherly Power of Adam yet this is a meer Chimera for Filial Honour and Obedience being due by the Commandment only to a Man 's own Natural Father can never be due to two different persons at once since they may command contradictory things and then the Commandment of Honour that is obey thy Father cannot be observed in respect of both of them and therefore granting Adam or Noah to have exercised a Monarchical Power over their Children and Descendants it could not be as they were Fathers or Grand-fathers when their Sons or Grand-children were separated from them and were Heads of Families of their own for the reasons already given so that if they were Princes in their own Families whilst their Sons or Grand-children continued part of them it was only as Heads or Masters of their own Families but not by any such Patriarchal or Paternal Authority as you suppose But as for the Conclusion of your Discourse it being all built upon this false Foundation that all Power on Earth is derived or usurped from the Fatherly Power I need say no more to it For if that be false all that you argue from thence concerning the subordination of all other Powers to this will signifie nothing M. I think I can yet make out my Hypothesis notwithstanding all you have said against it For tho' I grant the Paternal Relation it self can never be usurped or transferred yet you may remember I at first affirmed that Adam was not only a Father but a King and Lord over his Family and a Son a Subject a Servant or a Slave were one and the same thing at first and the Father had power to dispose of sell or Alien his Children to any other whence we find the Sale and Gift of Children to have been much in use in the beginning of the World when Men had their Servants for a Possession and an Inheritance as well as other goods whereupon we find the Power of Castrating or making Eunuchs much in use in old times And as the Power of the Father may be lawfully transferred or aliened so it may be unjustly usurped And tho' I confess no Father or Master of a Family ought to use his Children thus Cruelly and Severely and that he sins mortally if he doth so yet neither they nor any Power under Heaven can call such an Independant Father or Monarch to an account or punish him for so doing F. I am glad at last we are come to an Issue of this doughty controversie and tho I forced you at our last meeting to confess that Fatherly Power was not despotical nor that Fathers upon any account Whatsoever were absolute Lords over their Children and all their Descendants in the State of Nature Yet now I see to preserve your Hypothesis You are fain to recur to this Despotical Power of Fathers in the State of Nature Because without supposing it and that it may be transferred or usurped Princes at this day whom without any cause you suppose to be endued with this Paternal Despotick Power could never claim any Title to their Subjects Allegiance And then much good may do you with your and Sr. R F's excellent discovery For if as you your self acknowledge Princes are no longer related in Blood to their Subjects any nearer than as we all proceed from Adam our Common Ancestor that relation being now so remote signifies little or nothing so that the true Paternal Authority being lost as you confess the Despotick Power of a Lord over his Servants or his Slaves only remains since therefore you make no difference in Nature between Subjects and Slaves then all Subjects Lye at the mercy of their Kings to be treated in all things like Slaves when ever they please And they may exercise an absolute Despotick Power over their Lives and Estates as they think fit So that I can see nothing that can hinder them from selling their Subjects or castrating them as the King of Mingrâ—lia doth his Subjects at this day and as the Great Turk and Persian Monarchs do use those Christian Children whom they take away from their Parents to make Eunuchs for their Sâ—raglio's and then I think you have brought Mankind to a very fine pass to be all created for the Will and Lust of so many single Men which if it ever could be the Ordinance of God I leave it to your self to judge M. I was prepared for this objection before and therefore I think it will make nothing against this Absolute Power with which I suppose God to have endued Adam and all other Monarchs at the first So that I am so far from thinking that this Doctrine will teach Princes Cruelty towards their Subjects that on the contrary nothing can better inculcate their Duty towards them For as God is the Author of a Paternal Monarchy so he is the Author of no other He introduced all but the first Man into the World under the Subjection of a Supream Father and by so doing hath shewn that he never intended there should be any other Power in the World and whatever Authority shall be
is not only without all ground of reason but above common apprehensions M. You have made a long Speech in answer to my Hypothesis which since you are not satisfied with I can likewise shew you another very good reason why the People should love and reverence their Princes and that is those great Liberties and Concessions that all the Monarchs of Europe have granted their Subjects which are now past into the settled Laws and Customs of those Kingdoms with which the People ought to be very well contented nor ought they to rebel or resist tho' they may sometimes out of wantonness and necessity infringe or intrench upon those Priviledges which they or their Ancestors have conferred upon them since they can never forseit that Power they have originally over them F. I do not very well understand what you mean for I have hitherto supposed that all Subjects have a Property in their Estates and a Freedom for their Persons by the Laws of Nature and which no Civil Power whatever could deprive them of without their Consent And therefore I desire you would shew me that if Children Subjects and Slaves were all one at the first how we in this side of the World came to be in a better condition than those in Asia and Africa Or that we English-men can claim a Property in our Estates and a Right to our Lives which the Prince cannot take away but according to some known Laws M. I think I can easily do this not only in Relation to England but any other Kingdom which is now governed by known Laws and that upon Sir R. F's Hypothesis which I shall do as near as I can remember in the words of that excellent person the late Earl of Clarendon in his Survey of Mr. Hobbs Leviathan who supposeâ— according to this Hypothesis That some one of Noah 's Descendants was an Absolute Monarch at first over all his Posterity which might continue in his Line for some Ages till at last their Relation by Blood to their Subjects was removed at so great a distance that the Account of their Kindred or Relation to each other was scarce remembred whereby they who had the Soveraign Power still exprest less Paternal Affection in their Government looking upon those they Governed as meer Subjects and not as their Kinsmen or Allies till by degrees according to the Custom of Exorbitant Power they considering only the extent of their own Iurisdiction and what they might rather than what they should do treated them who were under them not as Subjects but as Slaves who having no Right to any thing but what they permitted them they would allow them to possess nothing but what they had no occasion to take away Estates they had none that they could call their own because when their Prince called for them they were his their Persons were at his command when he had either occasion or appetite to make use of them and their Children inherited nothing but their Fathers Subjection so that they were happy or miserable as he who had the Power over them pleased to exercise it with more or less Rigour or Indulgence yet they submitted alike to both acknowledging his Dominion to be naturally as absolute as their Subjection and Obedience These Princes might for some Ages have pleased themselves with this Exorbitant Exercise of their Power which tho' it had been always the same yet the exercise of it had been very moderate whilst there remained the tenderness or memory of any Relation But these Princes began at lest to discern and be convinced that the great strength they seemed to be possest of would in a short time degenerate into weakness and the Riches they seemed to enjoy would end in want and necessity as well in themselves as in their Subjects since no Man would build a good House that his Children could not inherit nor cultivate their Land with any good husbandry and expence since the profit thereof might be given to another Man And that if the Subjects did not enjoy the Conveniences of Life they could not be sure of their help and affection whenever they should have War with another Prince as absolute as themselves but they would rather chuse to be subject to him under whose Government they might live with greater Liberty and Satisfaction And lastly That if they ingrost all the Wealth and Power into their own hands they should find none who would defend them in the possession of it And that there was a great difference between that Subjection which Love and Duty pays and that which results only from Fear and Force since Despair often puts an End to that Duty which Reason and it may be Conscience would otherwise have perswaded them still to continue And therefore that it was necessary that their Subjects should find ease and profit in Obeying as well as Kings pleasure in Commanding these wise and wholesom Reflections might prevail with Princes for their own as well as Subjects benefit to restrain their Power and to make it less absolute that it might be more useful and to give their Subjects such a Property in their Goods and Lands as should not be invaded but in such cases and on such occasions as the necessities of the Government really required But as they found the benefit arising from these Condescensions highly tend to the Improvement of the Riches and Civillity of their Subjects with all those additions of pleasure and industry which render Man's Life as well as the Government easie and pleasant they still in several Generations enlarged these Graces and Concessions to their Subjects yet reserving all in themselves that they did not part with by their voluntary Grants or Concessions And if we take a View of the several Kingdoms of the World we shall see another face of things both of Power and Riches in those Governments where these Condâ—scensions and Concessions have been best observed than in those Kingdoms where the Soveraigns either retain or resume to themselves all those Rights or Prerogatives which are invested in them from the Original Nature of Government so that there still remains enough in the Princes hands to be made use of for the preservation of his own Power and the defence of his Subjects for whose benefit it was intrusted with him by God So far the late great Chancellor And these Priviledges and Condescensions being once past into constant and standing â—aws by the Princes that gave them and also solemnly sworn to by their Coronation Oaths do for the future bind not only those Princes that granted them but also their Successors to their observation And I then look upon them bound under pain of Damnation not to break or infringe them without very great necessity But however if they shall happen so to do since they were matters of meer Grace and Favour at the first and not of Right the Princes that thus transgress them are only accountable to God and punishable by him and not by
Foundation of all other and I have ever thought God's Love and Kindness to Mankind did never appear in any thing more except in Man's Redemption than in Creating only one Man and out of him only one Woman So that Adam was a kind of a Father to his Wife That Marital as well as all other Power might be founded in Paternal Iurisdiction That all Princes might look upon the meanest of their Subjects as their Children And all Subjects upon their Prince as their Common Father And upon each other as the Children of one Man that Mankind might not only be United in one common Nature but also be of one Blood of one Family and be habituated to the best of Governments from the very Infancy of the World Were this well considered as there could be no Tyrants so neither would there be any Traitors and Rebels But both Prince and People would strive to outdo each other in the offices of Love and Duty And now do you or any Man living read Sir R. F's Patriarcha or other works and see if either he or I have ascribed one Dram of Power to Princes which will not Naturally Spring from this Supream-Paternal Power So that upon the whole I think reason it self would conclude that this way of Solving the first Rise of Government is true and that it is the Duty of all who by the Blessing of God are under Paternal Monarchies to be very thankful for the favour and to do the utmost that in them lies to preserve and transmit that best form of Government to their Children after them And surely there is no Nation under Heaven hath more reason for this than the English who are under a Paternal Monarchy which has taken the best care that can be to secure them not only from oppression and wrong but from the very fear of it F. Since you lay the chief stress of your assertion upon the Original of most of the Kingdoms and Monarchies now in the World and of our own in particular I think I may safely joyn issue with you on both points and in the first place affirm that an unjust Conquest gives the Conquerour no right to the Subjects Obedience much less over their Lives or Estates and if our Norman William and his Successours had no more right to the Crown of England than meer conquest I doubt whether they might have been driven out after the same manner they came in But I believe you will find upon second thoughts that Unjust Conquests and Usurpations of Crowns be no firm Titles for Princes to relye on lest the Old English Proverb be turned upon you viz. That which is Sauce for a Goose is Sauce for a Gander but I Shall defer this discourse concerning Titles by Conquest and in particular that of our Kings to this Kingdom to some other time when I doubt not but to shew that it is not only false in matter of fact but also that it will not prove that for which it is brought And therefore what you say in your conclusion in exaltation of God's Love and Kindness to Mankind in Creating one Man and out of him only one Woman that Adam might be a kind of Father to his Wife is a very pretty and indeed singular Notion and you would do very well to move the Convocation next time it sits that this explanation may be added to the fifth Commandment that Women may be taught in the Catechism that Obedience to Husbands is due by the Precept of Honour thy Father and thy Mother And therefore I need give no other Answer to all the rest you have said however Specious the Hypothesis may seem as you have drest it up for Princes and People yet till you have proved that all Paternal Power is Monarchical and that all Monarchical Power is derived from Fatherhood it signifies nothing Nor can these Piae Fraudes do any more good in Politicks than Religion For as Superstition can never serve to advance the True Worship of God but by creating false Notions of the Divine Nature in Meâ—s Minds which doth not render it as it ought to be the Object of their Love and Reverence but Servile Fear So I suppose this asserting of such an unlimited Despotical Power in all Monarchs and such an entire Subjection as Sir R. F. and you your self exact from Subjects can produce nothing but a flavish Dread without that esteem and affection for their Prince's Person and Government which is so necessary for the quiet of Princes and which they may always have whilst they think themselves obliged in Conscience and Honour to protect their Lives and Fortunes from Slavery and Oppression according to the just and known Laws of the Kingdom and not to dispense with them in great and Essential Points without the Consent of those who have a hand in the making of them And all false Notions of this Supreme Power as derived from I know not what Fatherly but indeed Despotick Power are so far from settling in Peoples Minds a sober and rational Obedience to Government that they rather make them desperate and careless who is their Master since let what Change will come they can expect no better than to be Slaves Nor are Subjects put in a better condition by this Doctrine of Absolute Non Resistance since all Princes are not of so generous a Nature as not to Tyrannize and Insult the more over those whom they suppose will not or else dare not resist them and therefore I cannot see how such a submission can soften the hearts of the most Cruel Princes in the World as you suppose much less how Resistance in some cases can inrage the mildest Princes to their Peoples Ruine since all Resistance of such mild and merciful Princes I grant to be utterly unlawful nor do I hold Resistance ever to be practised but where the People are already ruined in their Liberties and Fortunes or are just at the brink of it and have no other means left but that to avoid it To conclude I so far agree with you that I think it is the Duty of all that are born under a Kingly Government Limited by Laws to be very thankful to God for the Favour and to do the utmost that in them lies to preserve and transmit this best Form of Government to their Children after them without maintaining such unintelligible Fictions as a Paternal Monarchy derived from Adam or Noah And tho' I own that some of our former Kings have taken the best care they could to secure this Nation from Popery and Arbitrary Power yet whether the Method of our three last Kings have been the readiest way to secure us from the fears of it I leave it to your own Conscience if you are a Protestant to judge But since you defie me to shew you out of Sir R. F's Patriarcha that he hath ascribed one Dram of Power to Princes which doth not naturally arise from a Supreme Paternal Power and that this is
third Person to Iudge between me and my Trustee I my self am the Sole Iudge of the Wrong he doth me and may not only turn him out of his Trust if I find he abuses it but may also force him to make me Satisfaction for the Wrong he hath done So that if in the State of Nature I trust a Man with a Bag of Silver to keep for me If he either Imbezels or runs away with it I may certainly force him to make me Restitution or else enter into a State of War with him till he do And where there is no Common Power over us to whom we can Appeal this Difference can no way be Decided but by the Sword And therefore no Trust as in those mutual Pacts between Subjects and Soveraigns can be Irrevocable or include a perfect Translation of a Right and no Trust can ever be supposed to be given but with this tacit Condition that the Trustee doth not abuse it And you your self have made a sufficient Difference between a Trust and an Absolute Gift but granting that a Gift respects the benefit of the Receiver whereas a Trust is for the Advantage of him who convey's it From whence it must necessarily follow that if this Trust be for his Advantage he hath still an Interest in the thing Trusted and consequently may call the Trustee to an Account in the State of Nature and upon Satisfaction denyed Appeal to God himself by Battle or Combat So that if the Supream Powers are but Trustees of the People they may be Resisted when by going about to Destroy them they break their Trust. But as for the Second part of your Argument that in all Civil Governments under Heaven there must be an absolute and uncontroulable Power fixed some where that may irresistibly dispose of the Lives Persons c. of the Subjects This tho' it seems a better Argument than the former yet is all one in Effect for the Question is still Whether the People ever reposed such an absolute Power in their Supream Magistrates or not I grant indeed that as far as they act as the nature of Civil Power requires they are not by any means to be resisted but the Question still is whether when a Prince makes War upon the People or goeth about to destroy them there is then any Civil Power in being and whether the Government be not already dissolved since the main Ends of Government viz. the Good and Preservation of the Subjects are quite destroyed And now pray tell me which is most suitable to that prime Law of Nature the endeavour of the good and happiness of mankind that a whole Nation should be enslaved or destroyed by the boundless Will of a Tyrant or that Rulers should be sometimes resisted when they grow intolerably Tyrannical abuse their Power to the total destruction of the Lives and Properties of their Subjects So then if such an absolute Arbitrary Power in Princes or States can never consist with the main Ends of Civil Society the Peace Happiness of the Subjects it is plain that when ever they are reduced to such a State they will look upon themselves as again in the State of Nature nor would they have ever quitted their Natural Freedom tyed themselves up from providing for the security of their Lives and Properties by such means as they might before have justly exercised had it not been to obtain these Ends with much greater certainty by entring into Civil Society and by Stated Rules of Right and Wrong to secure their Lives and Properties with their future peace and Quiet by surer means than they could hope for in the meer State of Nature For it cannot be supposed that the People would ever confer such an Arbitrary unlimited Power on one Man or many over their Lives and Estates that they might take them away without any just cause For this were to put themselves into a worse Condition than the meer State of Nature wherein they had a Liberty to defend their Just Right against the Injuries of others and were upon equal Terms of Force to maintain it whether invaded by a single Man or many in a Combination Whereas by supposing they have thus given up themselves to the absolute Arbitrary Power and Will of a Single Person They have wholly disarmed themselves and only armed him to make a Prey of them whenever he pleases He being in a much worse Condition that is exposed to the Arbitrary Power of one Man who hath the Command of 100000 Men than he that is expos'd to the Arbitrary Power of 100000 single Men no body being secure that his Will who hath such Command is better than that of other Men tho' his force be 100000 times stronger To conclude granting a Supreme Power to be plac'd somewhere either in a Single Person or in many yet it can by no means be absolutely Arbitrary and Irresistible over the lives and Fortunes of the People For their Authority being as I have already proved in the former Conference no more than that Power which God hath granted to every particular head of a Family and other Freemen at his own dispose for the security of their own Persons and the Common Good of those whom God hath intrusted to their Charge they cannot confer upon the supreme Magistrate any more Power than what God hath conferred upon them before and so can be no more than those Persons had in the State of Nature before they enter'd into Society and before they gave up their Power to these Supream Magistrates viz. that only what God had before trusted them withal Now according to your own Principles no Man is trusted by God in the State of Nature with an absolute Power over his own life much less to destroy or take away the life or Property of another and therefore cannot convey any such Power to those he would intrust with it So then if a Man cannot Subject himself to the Arbitrary Power of another neither hath he in the State of Nature such an Arbitrary Power over the life Liberty or Possessions of another but only as much as the Law of Nature gave him for the Preservation of himself and the Common Good of Mankind This is all he doth or can give up to the Common-Wealth so that if it can have no more than this It s Power in the utmost bounds of it is still limited to the publick good of the Civil Society All which if duly considered the rest of your weaker Arguments are easily answered For supposing but one Prince in a 1000 years so wicked as to go about to destroy his People it will then whenever it happens be as much their Right to defend themselves as if it were to happen every year And tho' you assert he could scarce find means or hands to bring it about Yet that makes nothing to the Purpose for if he hath no Right to destroy 30 or 40000 of the Subjects as you suppose he
you what Right the States of the Vnited Provinces might have to resist the Tyranny of the Duke of Alva then Governour for the King of Spain since Grotius and most Writers which are not of the Spanish Faction suppose that King to have had a Conditional Right of Governing those Provinces according to their own Laws and Priviledges from the very first Institution of the Government And therefore not being an absolute Monarch over them he might well be resisted upon the Breach of those Conditionâ— But this is not the Case now in hand since we are now discoursing of absolute Monarchies or Common-Wealths who being invested with the Supream Power by the Consent of the People as you suppose And therefore may have by their Consents whether forced or Voluntary it matters not according to your own Principles a Supream Vnaccountable Power over them And in the first place I can shew you how a Man may make over all the Power he hath in his own Person irrevocably to another As when a Man sells or grants himself for a Slave to another by his own Consent who when he hath once put himself into this Condition his Master hath an absolute Property in his Person and an indefesible Right for ever to his Service So that notwithstanding all the Cruel Harsh and unreasonable Usage he may meet with from his Master he can never regain his Freedom without the Consent of his Lord. And this I take to be an uncontested Truth agreed on by the Law of Nations and established by the Law of God Thus St. Peter chargeth those who are in this State of Servitude To be subject to their Masters with all Fear not only to the Good and Gentle but also to the Froward So likewise St. Paul in both his Epistles to the Ephesians and Colossians Commands Servants to be obedient to them that are their Masters according to the Flesh c. And that this particularly respects Slaves appears by the 8. verse of the 6. Chapter of the former of these Epistles So that if a Man may thus make himself a Slave or perpetual Servant to another by his own consent I cannot see any Reason why a whole Nation may not do the same and deliver themselves up to one Man or more to be Governed and treated both for their Lives Liberties and Fortunes at his or their Discretion So that tho' he may perhaps abuse this Power to the severest Tyranny or Oppression Yet have they no Right to shake off this Yoak or to resist him since their Lives and Fortunes are wholly at his disposal by their own Act and Consent And that whole Nations may justly surrender themselves for Slaves or absolute Subjects I can give you two Examples approved of by God in the Scriptures The first is that of the Egyptians who when they had sold all their Goods and Lands to Pharaoh for Bread to keep themselves alive in the seven years of Famine we read of in Genesis You 'll find they were afterwards such absolute Servants or Slaves to Pharaoh That as for the People he removed them to Cities from one end of the Borders of Egypt even to the other end thereof only the Land of the Priests bought he not c. The other is that of the Gibeonites of whom we read that they accepted of their Lives from Ioshua and the Elders of Israel Tho' on the Condition of the greatest slavery rather than they would venture to be destroyed So that if absolute Monarchy were not Lawful but contrary to God's Will and Institution most of the greatest Kingdoms in the World would be governed contrary to the Laws of God and Nature and the Subjects of all the Kingdoms from France to China not reckoning those of Africa might immediately if they were able rebel against their Monarchs and set up what sort of Government they thought fit Since none of the Subjects in those Kingdoms hold their Lives Liberties or Estates by any other Tenure than the Good Will or Pleasure of the Monarch who may take away all or any of them as often as he pleases to do it and that without any right of Resistance in all or any of their Subjects let them use them never so severely F. I cannot deny but what you say is so far true that one Man or many together may grant or sell themselves for Slaves by their own Consent and that the Persons who thus make over themselves have afterwards no Right or Property in any thing more than a bare Subsistence yet that servitude is not by the Law of Nature but only brought in by Custom or the Law of Nations as all Writers agree and is so far lawful because it tends to the Good and Preservation of Mankind that Prisoners taken in War should rather be kept as Slaves than immediately slain or that Men compelled by extream necessity should sell themselves or their Children rather than both should perish and therefore it is no wonder that the Apostles who were not sent to aâ—ter the State of things in the World or to entrench upon any Man 's civil Righâ—s should command Servants or Slaves to be Subject to their Masters tho' unbelievers Yet doth it not therefore follow that when men are forced to give themselves thus up to the Power of another they likewise give him an absolute Right over their Lives so as that their Masters may take them away whenever they please for that was more than they ever had over themselves Nor doth God confer any such Power upon Masters and therefore if the Master hath no such absolute Right or Property in the Persons of his Slaves as he hath in his Sheep or Cattle I see no reason why even Slaves if their Masters go about to take away their Lives for no other Cause but to satisfie their own humour or passion may not if they cannot otherwise escape resist their Masters and save their Lives if they can For all Writers agree that if a Master doth so inhumanely abuse his Slave that he can no longer endure it without danger of his Life he may in that Case Lawfully run away and escape from him and why he may not as well resist him to save his Life when his Master goeth about thus unjustly and without any Cause to take it away I can see no reason to the contrary Since it was only for the saving his Life that such a Man could ever be supposed to yield himself a Slave to another and which Condition being broken on the Masters part the Servant is again in the State of Nature and the relation of Master and Servant so far ceases or is at least suspended during that Violence This being the state of particular Men I cannot think that God hath put whole Nations in a worse Condition nor can I ever imagine that any whole Nation unless urged by some extream necessity would ever give up themselves so absolutely for Slaves as not to have any Right
bound to continue in that State unless the Supream Powers they are under think fit to Release them from it And therefore this can be no good Pretence under Absolute Monarchies for Subjects to take up Arms against their Prince for such a State of Liberty which they never enjoyed F. I shall not trouble my self to Dispute what Right an Absolute Monarch may have over the Persons of his People in a Country where they have no Property nor Written Laws and where they look upon themselves as no better than Slaves to their Prince and perhaps may take a Pride in it as I have read the Russians do And therefore if they have so wholy Submitted themselves I grant what you assert is true and that they have no Right to Resist according to the Old saying Volenti non fit Injuriâ— And yet even in these Despotick Monarchies tho' the Prince may pick out here and there some of his Subjects to sell for Slaves or else to use them as such himself yet I do much question if he should go about to make any Considerable Number as suppose to take 20 or 30000 all at once for Slaves I say I do much question whether these People would be so Convinced of your Principles of Passive Obedience and Non-Resistance as to let their Monarch's Guards drive them into Slavery like Sheep to the Market but would if they were able make a Vigorous Resistance and knock their Drivers on the Head Whether Iure vel injuria I shall not dispute But for all this even in Absolute Monarchies where the People have a Setled Legal Property in their Lands and Estates and consequently where their Persons are free I doubt not if their Princes should go about to make all his Subjects Slaves but that they might Lawfully Resist him or those he imploys in so doing And tho' it be true he could not make all his People Slaves at once Yet if he asserted it as a part of his Royal Prerogative and also exercised it on particular Persons as often as he thought sit or could I doubt not but the People might make it a common cause Since none can know whose turn it may be next For sure Liberty from Servitude is as necessary to Man's Happiness and Well-being as Life is to his Existence Which would seem no great Benefit to those who being Born Free were reduced to Slavery it being well said by the Poet Non est vivere Sed-valere vita And tho' the Roman Emperors did exercise an Absolute Power over their Subjects yet I never read that they durst presume to make Slaves of Free-born Romans nor indeed of any of those Nations they Subdued For they had too great a Sense and Love of Liberty themselves ever to Impose such a Yoke upon the People they Conquered which was so Destructive to the Common Happiness and Preservation of Mankind And suppose if the French Grand Seigniâ—ur as absolute as he is or pretends to be should go about to Sell his Subjects especially the Nobility for Slaves all that the Iesuites those Instruments of Slavery could do would not I believe be able to Keep that People from Rising against him But if you have nothing farther to object against what I have now said I pray proceed to the next Flead if you have any more Instances to make M. I am now come to the last Pretence that Subjects may make to Rebell And that is Supposing the Monarch should at once or by Degrees turn the Subjects out of their Legal Hereditary Properties in their Estates And of this you your self grant there can be no Dispute in those Despotick Monarchies where there is no Hereditary Property allowed And as for all other Governments since you do own that all Legal and Civil Property in Lands did chiefly proceed or at least is Established by the Civil Power I cannot see why those Powers in any Kingdom if they think it would conduce to the Good of the Common-Wealth may not Destroy this Civil Property and either make all Estates equal or else ordain that they shall be enjoyed as in all absolute Monarchies at the Will of the Prince since if the Supream Powers are the Author of this Property sure they may alter and Abrogate it again as often as they think fit F. I shall not Dispute with you concerning such Kingdoms where there is no Civil Property yet Instituted or where the People do own themselves Slaves to the Prince But if such a Monarch hath remitted any thing of this Right and hath Instituted a Legal Hereditary Property in Estates such a Law being once made I do not think it is in the Prince's Power to revoke it any more than it is for a Master to Reduce his Slaves again to Servitude after he hath once set them free Since both Men's Liberties or a Setled or Hereditary Property an Estates do equally conduce to the Happiness and Propagation of Mankind and the Good of that People or Nation wherein it is introduced And I doubt not but Pharaoh tho' he was Lord of all the Lands of Egypt by the Grant of the Egyptians yet might lawfully have been Resisted by them if he had gone to take away those Four Fifth parts of the profit of the Lands which he had left thern free by his own Concession So that even in such Absolute Empires the Monarchs have Power to Dispose of the Estates of the People only as far as the Compact or Concession at first made by them or their Predecessors do allow But it is also not much otherwise where the Subjects do not acknowledge their Estates as the Gift or Benefit of the Supream Powers and that may happen chiefly two ways Either 1. When any Free People under the Conduct of a Captain or Leader Created by themselves have Conquered any New Territory and Habitation or else 2. When Diverse Fathers or Masters of a Family who had Estates of their own before have agreed for their Mutual Security and the quiet Enjoyment of what they were already possess of to joyn together into one Common-Wealth under the Command of one or more Men or else of others that will bring their Estates and joyn themselves to such a Government already Constituted and will Subiect themselves to this Supream Power according to the Conditions already agreed on amongst them A third Case may be when an Hereditary Property in Land was Establisht before the Monarchy began as in the Roman Common-Wealth this Property was Establish't before the Government was changed from a Republick to a Monarchy so that the People did not owe their Property to the Emperors Grant or Donation In the former case if such a Free People Conquer a Country under the Conduct of a Captain or Leader tho' I grant such a Country may be Assigned by him to all the People by Lot or in Proportion to the greater Merit or Service of his Fellow Adventurers or Soldiers tho' it may seem that the Property of Particular
own Norman Lords and Souldiers but those of other Forreign Nations who assisted him in this Expedition would ever have suffered him to have reigned in quiet over them if instead of a Limited King he had set himself up for an absolute Monarch and have granted them no Estates but at his Will and Pleasure which would have reduced the Conquerour and the Conquered to the same condition But as for your Example of Malcolm Canmor I cannot believe that the Kings of Scotland were so lately as his Reign possessed of the whole Hereditary Property of all the Lands in that Kingdom so as that no Man had any setled Interest in them before that time and therefore I must beg your pardon if I think this Passage in their Historians to be very suspicious if not false But I speak this only by the by and I reserve what I have more to say on this Head for another time wherein I doubt not but to be able to shew you as evidently as can be done after so many Ages that all the Kingdoms in Europe which are descended from the Gothick or German Nations commenced at first from Compact with their first Kings and have thereby an unalterable Right in their Lives Liberties and Estates And if so have likewise Right to defend them if generally and Vniversally invaded by their Princes But granting for the present what you have asserted to be true that all this Property which is now in Europe proceeded wholly from the Grants and Concessions of Princes yet will it not follow that by the Law of Nature or Nations if any King should go about generally or at once to invade the Liberties and Properties of their People they might not Lawfully be reâ—isted for as I said before even a slâ—ve when Manumitted by his Patron may Lawfully dâ—fend his Liberty against him if he goeth about to take it away and reduce him again into slavery So likewise in the same State of Nature if a Prince freely grant his Subjects a setled and Hereditary Property in their Estates they have likewise a Right to defend them against him or any other that would endeavour by force to take them away For he that in this State grants any thing to another grants him likewise a Right to Keep it whether the Donor will or not or else it were indeed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 For he that in the State of Nature grants another Man any thing to be possessed or enjoyed only as long as he himself or his Heirs shall think fit doth in effect grant him as good as nothing since he may alter his mind to morrow and demand it again and take it away the very next day So that if you will grant that Subjects have such a Right to their Estates as that the Prince cannot without manifest violence or injustice take them away you must likewise grant that they have also a Right to defend them But I suppose you will not deny that Right that all Men have to their Civil Properties in all our European Kingdoms and Common-Wealths tho' never so absolute But your Objection against the subjects defending it by force if it be invaded is that it may cause Rebellion and Confusion I grant indeed it may sometimes occasion Civil Wars or Intestine Commotions if the People finding their Liberties and Properties notoriously invaded shall oppose the unjust violence of those who contrary to the trust reposed in them do thus violently invade them therefore forsooth if this Doctrine be allowed it may prove destructive to the Peace of Kingdoms and Common Wealths and Consequently to the good and happiness of Mankind But methinks you might as well have argued that honest Men might not resist Robbers or Pirates because it may occasion Disorder and Bloodshed If any mischief come in such cases sure it is not to be charged upon him who defends his own Right but on him that invades anothers If the Innocent honest Man must quit all he hath for quietness sake to him who will lay Violent Hands upon it I desire it may be considered what a kind of Peace there will be in the World which would consist only in Violence and Rapiâ—â— and which would be maintained only for the benefit of Publick Robbers and Oppressors M. But pray do you make no difference between a knot of Thieves and Robbers and the Civil Government of a Monarch or Common-VVealth which I suppose may very well be maintain'd without any Hereditary Property in Lands as you have granted And it were much better in my mind to forego these outward things than resist the Civil Government which is the Ordinance of God as you your self acknowledge F. I think the best way to end this controversy will be to desire you to give a Definition of Civil Government that we may know what we mean by it therefore pray will you give me an easy and plain Definition of it M. VVell Sir I shall comply with your desires I then take Civil Government to be an Authority conferred by God on one or more Persons to make Laws for the benefit and Protection of the Subjects and to inflict such Punishments for their Transgression as they shall think fit and by the Subjects Obedience and Assistance to protect them against Forreign Enemies and also to appoint what share of Civil Property each Person in that Common-Wealth shall enjoy F. Sir Tho' your Definition be somewhat lame yet I am pretty well contented with it only I will shew you by and by wherein it is deficient The first and therefore chiefest Branch or Office of Civil Magistrate◠〈◊〉 to make Laws for the Benefit and Protection of the Subjects Is it then a Branch of this Power to send Souldiers or Dragoons to take away their Liberties Lives or Estates This sure is directly contrary to their Duty and that Trust which God hath conferred upon them Let us go on to the next Branch The inflection of Punishments for the transgrâ—ssion of such Laws Is this a part of Civil Government not only to send their Souldiers and other Officers to take away their Subjects Lives and Estates but also to let the most Capital Offenders or Robbers pass unpunish'd when they have done if you maintain these to be the Prerogatives of Civil Government or that to be Civil Government where these things are commonly practised you may even with Mr. Hobbs set the great Leviathan Free from all obligation to his Subjects any further than he shall think fit for his own interest and make them always in a State of Nature that is as he supposes of War with them and then pray tell me whether such a State can be the Ordinance of God or not But to come to the last Branch of your Definition and in which alone I think it deficient the appointing what share of Property each person in that Common-Wealth shall enjoy Tho' I grant it may be the Prerogative of Civil Governments to appoint this at first Yet
endure and pass by the personal Faults or Failings of Princes in consiâ—eration of that Protection and Security in their Lives and Fortunes which they do enjoy under them since it hath been found by experience with how great a Slaughter of People and how great a confusion and danger of the whole Common-Wealth Evil Princes have been resisted or turn'd out of their Thrones And therefore I grant the Private Injuries of Princes are to be past over in consideration of that great Charge they undergo and for those greater Benefits we receive from their Government but chiefly for the publick Peace of the Common Wealth or Civil Society And therefore I own it is very well said by that Master in Politicks Tacitus That the ill Humours or Dispositions of Kings are to be born withal and that often Mutations of Governments are of dangerous Consequence And he wisely introduces Ceriales speaking to this purpose to the Rebellious Treveri That they ought to bear with the Luxury and Avarice of Rulers as they do with immoderate showers and other unnatural Evils since there will be Vices whilst there are Men yet neither are these continual but are often recompensed by the Intervention of better But I will now particularize those Cases wherein I do absolutely disallow and disclaim all Resistance in Subjects against the Supream Powers 1. I deny all Resistance to Subjects against their Princes or Supream Magistrates in all such Actions or Prerogatives which are absolutely necessary to the Exercise of their Supream Power viz. of Protecting and Defending their People as also against those who are Commission'd by them for the Execution of such Powers 2. I Condemn all Rebellion against Princes or States meerly on the Score of Religion or because they are not of the Religion of their People or Subjects if there be no positive Law Extant Disabling or Forbidding Princes or other Magistrates of different Religions than that of their People from being admitted to the Throne or Government 3. I look upon it as Rebellion in the People Tumultuously to rise up in Arms to alter or reform the Religion of the Nation or Kingdom already established by Law without the Consent of the Legislators 4. I Disclaim all Resistance or Self-defence in Subjects upon the account that the free or publick Exercise of that Religion they profess is not allowed them by the Legislative Power of the Kingdom or Nation provided that such Supream Powers do not forbid or hinder the People professing such a different Religion to Sell or Transport their Estates and Persons into any other Country where they please 5. I Deny Resistance to Subjects against their Princes or Governours upon Pretence of any Personal Vices as because they are wicked Atheistiâ—al Cruel Lustful or Debauched provided they generally Protect their Subjects in their Lives Liberties and Properties 6. I Deny this Right of Resistance to any particular person less than the whâ—le Body or Major part of the People or at least such a considerable Portion of a Nation as are able when Assaulted or Oppressed in their Lives Liberties or Estates to constitute a distinct and entire Kingdom or Common-Wealth of themselves 7. I look upon it as Wicked and Rebellious for any private Subjects to Assassinate Murder or Imprison their Monarch or other Supream Governour since no private Person whatever ought to lay Violent Hands upon his Prince whose person ought to be Sacred and in no wise to be Violated unless he put off the Character of a Prince and Actually make War upon his People But if in this Case he happen to be Resisted and Perish in the Attempt he falls not as a Prince but as a Common Enemy by breaking the Original Compact with his People and entring into a State of War against them As a Father who unjustly makes War upon his Children may be as I have already proved at our first conference Resisted by them in the State of Nature But as for all other Grievances or Oppressions if they are of that Nature as may Ruine the whole Common-Wealth yet not suddenly but after some time and often Repeated I cannot allow such Grievances or Oppressions as a Sufficient Cause of Resistance For as on the one hand there is no Inconvenience so small but in process of time it may turn to the Ruine of the Common-Wealth if it be often Repeated and excessively Multiplieâ— so on the other side length of time produces so great Changes that the Nature of these Encroachments or Injuries are not sufficient to justifie Resistance and the Breach of that Peace and Unity in a Common Wealth which must necessarily follow by entering into a State of War To conclude I do not in any Case whatever allow of Resistance but only in these three necessary ones When the Lives Liberties or Estates of the whole People of the greatest part of them are either actually Invaded or else taken away and when they are Reduced into so bad a Condition that a State of War is to be preferred before such a Peace aâ—d when the End of Civil Government being no longer to be obtained by it the Common-Wealth may be look't upon as Dissolved M. Tho' you have been pretty long in treating of this Matter yet I did not think it Tedious since I confess you have given me honestly enough and so far I agree with you all those Cases wherein you say it is Uâ—lawful for Subjects to take up Arms or Resist the Supream Powers But I wonder you have not added one Case more which Diverse Authors that are high enough against Non-Resistance in other things do yet allow to be a sufficieâ—s Cause of taking up Arms and Resisting their Prince And that is when he Actually hath or goeth about to Alieâ—ate or make over his Dominion and Subjects to some Forreign Prince or State F. I am not ignorant of what you say but I thought it not worth speaking ot because in absolute Monarchies which we are now treating of if such Kingdoms are Patrimonial and that the Monarch hath such an absolute Dominion over his Subjects as neither to let them enjoy any Liberty in their Persons nor Properties in their Estates but at his Pleasure I cannot see any reason why such a Prince may not alienate his Dominion over such a Kingdom and People as well as any private-Man may his Property in his Estate Nor have the People any Cause to be concerned at it since they can then likewise be but Slaves and enjoy nothing but at their Princes Pleasure as they did before so that whether He or a Stranger govern them it is all one as to their Circumstances But yet under such Governments as are absolute where the People enjoy their personal Lib rites and Properties in their Estates the Case may be much otherwise since they may not be sure that the Foreign Prince to whom their own Monarch or other Supream Powers hath assigned them will maintain their Liberties and Properties as the former did And
hinder the Kings Officers from Heading the People and putting the first Decree for their Destruction in Execution as otherwise they would have done had it not been for this last and for that great Power which they perceived Mordecai had at Court yet doth it not therefore follow that it was before that absolutely unlawful for the whole Iewish Nation to have defended their Lives against those Officers or others who would have gone about to destroy them and have totally extirpated their Nation So that I take this Decree not to confer any new Right in the People of the Iews to defend themselves but only to be a Confirmation of that Natural Right of self-defence which all Nations and every particular Member of Mankind have to preserve themselves And tho' I grant that Particular Persons are often obliged to give up this Right for the Publick Peace and safety of the Common-Wealth yet doth not thâ— Law extend to whole Nations or such Bodies of People without which the Common Wealth cannot well subsist And therefore I leave it to any unprejudiced person to judge whether it had not been better that the Iews should have thus resisted and saved their Lives tho' without this second Decree which only discouraged the Kings Officers and others from falling upon them than that all Gods Peculiar People should have lain at the Mercy of their Enemies to be destroyed according to the first Cruel Decree But farther to convince you that the Iews after the Captivity did not think it unlawful to make use of defensive Arms against cruel and persecuting Tyrants who went about to destroy their Religion and Nation it is apparent from the Famous Example of the Priest Mattathias with Iudas Maccabeus and the rest of his Sons who successively Headed the People of the Iews in that obstinate and Noble Resistance which they made against Antiochus Epiphanes tho' then their Soveraign who when he had Prophaned the Temple and would have forced the Iews to renounce their Circumcision and to have Sacrificed to Idols under Pain of Death they joyned together and resolved to defend themselves and to stand up for their Religion and Nation then ready to be destroyed And you find by the History as it is related in the Books of the Maccabees and Iosephus that God did Bless those Arms with Success which they had taken up in their own defence against a Prince infinitely more Powerful than themselves who with his Predecessors had been their Soveraigns for above 130 years And tho' Antiochus died long before the End of the War yet did they still prosecute it against his Successors Nor did they ever make Peace with them till Ionathan Brother of Iudas who had before recovered and purified the Temple was acknowledged High-Priest by Alexander the pretended Son of Epiphanes and that they had cast off that Yoak of Subjection which they were under to the Kings of Syria and had setled the Government of their Nation upon the Princes of the Asmonaean Race in gratitude of that deliverance they so justly owed to their Piety and Courage and which continued in this Family till the Conquest of Iudea by Pompey after 106 years free enjoyment of it So that it is plain the Iews before the Coming of Christ both Priests and People did not think it unlawful to defend their Lives and Religion in Case of great Extremity and that our Saviour Christ hath any where by his Gospel Retrenched whole Nations of that liberty lies upon you to prove But to conclude as for the Text you have cited out of the Proverbs that will do you as little service For tho' I grant it is true that no Man can say to an Absolute King or Monarch What dost thou i. e. Call him to Account as his Superiour Yet doth it not therefore follow that a whole People or Nation have no Power to defend themselves in any case whatsoever against his unjust Violence or Tyranny This not being the Act of a Superiour but an equal as I have already said nor any Political but a Natural Power M. I confess this is the Notablest Example of Resistance that you have brought yet but I think it may be easily answered if we suppose with Iosepbus and other Authors that tho' Alexander the great was certainly possest of Palestine by right of Conquest and the Submission of the High-Priest Iaddus unto him Yet his Chief Captains conspiring together made such a Scambling Division of the Empire among themselves as they could every one almost seeking how he might suppress the rest and attain the whole alone for himself so as thereupon the Iews were as free from the Macedonians as any other of their Bordering Neighbours none of the said Captains having any Lawful Interest or Title to Iudah But that which turned to the benefit of some others brought a great detriment for want of Ability unto them For one of the said Captains viz. Antiochus having gotten to himself a very great Kingdom in Syria and another viz. Ptolomy in Egypt the Iews dwelling betwixt them both were miserably on every side vexed by them sometimes the Egyptians by Oppression and force brought them under their Subjection and imposed great Tributes upon them and sometimes the Syrians growing mightier than the Egyptians did likewise very greatly afflict them especially in the Reign of Antiochus Epiphanes whose Invasion and Government was most Unjust and Tyrannical He shed Innocent Blood on every side of the Sanctuary spoiled the Temple erecting in it the Abomination of the Gentiles and caused it to be named the Temple of Jupiter Olympius Not to mention the Prophanation of the Law and unspeakable Cruelties exercised upon those who refused to offer Sacrifice unto Idols until Mattathias moved with the Monstrous Cruelty and Tyranny of the said Antiochus made open Resistance the Government of that Tyram being not then either generally received by Submission or setled by Continuance So that after the time of Alexander the Great the Iewish Nation was Governed by their own High-Priests and Sanhedrim and lived according to their own Laws in all matters both Civil and Ecclesiastical tho' more often I own with a Subordination to the Soveraignty of the Kings of Egypt till this Invasion of their Religion and liberties by Antiochus So that they had a Legal Right to the Free exercise of their Religion which could not without the Highest Violence and injustice be taken from them F. Notwithstanding what you have now said concerning this Action I doubt not but if you will consider Iosephus better as also the two Books of the Maccabees you will find thâ—t not only Antiochus Epiphanes but also Antiochus the Great and Seleucus Philopater were true and Lawful Monarchs of Coelo-Syria and consequently of Palestine And tho' I grant there had been Wars between Antiochus the Great and Ptolemy Philopater concerning the Dominion of that Country yet it is plain out of Iosephus's Antiquities Lib. 12. That Antiochus had re-conquer'd
seizing their Estates as the French King hath exercised upon his Protestant Subjects Can any reasonable Man believe that we lye under the same Obligation thus to suffer in a Country where the People are all Christians as we were if we had happened to be converted in a Country where almost all or the greater part of them were Mahometans or Heathens and where the Mahometan or Pagan Religion hath been for many Ages the Established Religion of that Nation and Government For in our Case there is no farther occasion to bear witness to the Truth by patient Suffering for it Nor yet of Propagating it by our Martyrdom since all the People amongst whom we live are sufficiently convinced of the Truth of it Nor can it be reasonable that our Saviour should give up whole Nations to be thus destroyed at the Will of one or a few Men only to do that of which there is no need For then Iesus Christ had delivered us up to be meer Slaves and Vassals to the Will and Humour of every wicked Tyrant which you seem to disapprove without performing any of those great Ends for which He at first enjoyned this Submission And though I grant that the Afflictions and Sufferings of Christians on the Account of Religion are as particularly ordered and determined by God as those of Christ himself yet it is only as they may be subservient to higher Ends viz. The propagation of his Religion and the Good and Peace of Mankind which I think cannot be well promoted by supposing an irresistible Power in the Prince or State of rooting Christianity quite out of a Nation or Country after it is setled by Law and become the National Religion thereof and of inslaving all the People of it when ever he pleases And though I take this to be the true bounds and limits of our Submission to the Supreme Powers in matters of Religion But supposing not granting at present that Christ hath laid any more strict Commands of Submission upon us in those matters yet since he came not into the World to put us into a more miserable Condition in other things than we were before his Coming nor to take away or abridge us of any of those Natural or Civil Rights that we enjoy as Men or Subjects therefore if the People had a Right before Christ to defend their Lives Liberties or Properties against the violent Assaults and Oppressions of Princes or States they have still the same Liberty left entire in all Cases which remain not excepted by the express Precepts or Example of Christ since it is a general rule in all positive Laws that whatever is not excepted or altered by a subsequent Law remains the same as it was before in all other Cases which are not so particularly excepted and therefore though I should grant that it were now unlawful in any case to resist the supream Powers who persecute or put Men to death for bearing witness to Christ's true Religion yet doth it not therefore follow that it were unlawful to resist in any other Case whatsoever though it were in the defence of our Lives Liberties or Properties since such defence was lawful as I have already proved before Christ's coming and is not expresly forbidden by any Place of Scripture or express Command of Christ or his Apostles And without the Considerations of these great Ends that Jesus Christ had to enjoyn his Followers an absolute Submission to the supream Powers in some Cases tho' not in all were to suppose that instead of a merciful Saviour he had only come into the World to patronize Tyranny and to render the Condition of Mankind much more miserable than it was under the Law of Moses or in the State of Nature and seems to suppose that instead of Commiserating Men's sufferings he only took delight to make them miserable nor will it be any comfort or security to Christians when they are once made Slaves under an Arbitrary Tyrannical Power That they are safe in God's hand and that all the Powers of Mâ—n or Devils can't touch them till God by a Positive Decree appoint and order their Sufferings For if this were a good Argument against all Resistance it would be so likewise against resisting Pirates or Robbers since whatever we suffer from them is by God's positive Decree who thus orders all our sufferings even from them and 〈◊〉 I think since men are not now to be saved by Miracles he hath like wise also ordain'd Resistance as the only human means to prevent their Malice and Violence or escape out of their hands when we fall under them nor are the same ends unlawful against any other humane Powers but what God himself hath ordained And therefore it is a very crude Assertion to say that though there could not be more absolute Tyrants than the Roman Emperours yet than they had no Power against the meanest Christian but by an express Commission from Heaven whereas I never knew as yet and I would be very glad you could shew it me where this express Commission is to be found whereby Princes or other Supream Powers are Authoriz'd to persecute enslave or take away the Lives of the meanest Christians barely for matters of Opinion or faults that do not immediately concern the publick quiet and safety and as you have talk't a great deal of the great security it is to the World that no evil can happen to us but what God permits and that he permits nothing but what he can over-rule to wise and good Ends and that God may permit a great many evils to befall us in his Anger and Displeasure and that whatever Evils be appoints for us they are certainly for our good and that therefore there is no such danger in the Doctrine of Non-resistance as some Men imagine because sincere Christians can suffer nothing by it since they shall suffer nothing more or less than what God appoints them to suffer All these Arguments might as well be used for not resisting Pirates or Thieves or not endeavouring to divert or oppose a River that had run beyond its Banks but to let it go where it lists to the destruction of a whole Country because forsooth sincere Christians can suffer nothing by it for they can suffer nothing more nor less than God aâ—points them to suffer indeed a wondrous use of Consolation And therefore unless you can prove that all Tyranny is ordained by God for our good and that therefore we are obliged under pain of everlâ—sting Damnation to submit to it all that you have spoken concerning the Example and sufferings of Christ signifie just nothing so that I think the absurdity still lyes at your door since if Christ has not expresly forbidden all resistance of the unjust violence of Princes as I do not find he has by any of the Texts you have yet brought every man may defend his Life against him who you grant hath no Authority to take it away and as for its
Sculpture which takes it quite away I think I may very well maintain that it is still left entire to us and is not abrogated by the Law of the Gospel and that it was lawful before our Saviour's coming into the World I have proved by those defensive Arms made use of by David and the Maccabers And as for the Testimonies of the Fathers and the practice of the Primitive Christians of which the Reverend Primate hath made so ample a Collection in that Treatise you know shew me I thank you for your kind offer of it but I do not now need it for since I began to consider this Controversie with you I have carefully read over that Treatise and I cannot find that this vast Collection out of Prophane as well as Ecclesiastical Writers will prove any more than those Principles which I own to be true and yet will not impugne this Principle I here defend In the first part of this Discourse it is proved by Scripture as well as other Testimonies that the Authority of all Soveraign Powers is from God which I also allow yet doth it not hinder but that the Consent and Submission of the People is a necessary means or Condition of conveying this Authority when God doth not please to make or Nominate Kings himself 2 dly That the Persons as well as Power of Soveraign tho' wicked Princes is also Sacred and Irresistible yet this is to be understood whilst they continue to act towards their whole People as the Ordinance of God and by vertue of that Divine Commission which they have received from him In the second Part of this Discourse it is proved from Scripture Testimonies of the Fathers and other Authors that particular Subjects are bound to obey the Supream Powers in all lawful and indifferent things or else to submit and suffer the punishment in case of their unlawful Laws or Commands As also to bear with any Violence and Injury that may be offered to them rather than to disturb the publick Peace and Civil Government of the Common wealth 2 ly That in the time of the Primitive Church and before the Christian Religion was settled By Law and become part of the Civil Constitution of whole Kingdoms and States It was unlawful to Resist the Supream Powers in case of Persecution tho' to death it self for the Testimony of Christian Religion which I have also allowed through this whole Conversation Yet none of these Quotations as I can see do reach the matter in Controversie between us and assert it expresly to be absolutely unlawful for the whole People of any Kingdom or Nation to make use of defensive Arms and Resist the Intolerable Violence and Tyranny of the Supream Powers if they shall happen to make War upon their People and go about to take away and subvert the main Ends of all Government viz. the Preservation of Mens Lives Liberties and Civil Properties Neither do they any where assert that in limited oâ— mixt Governments such as most of those now in Europe where the People by the fundamental Constitutions of the Government or the aster Concessions of Princes restraining their own absolute Power enjoy divers Priviledges and Liberties unknown to those who live under absolute Monarchies That the People may not upon the manifest Invasion of such Legal Right by force Resist and defend themselves and their just Right against the violent Invasion of the Prince M. I cannot deny but you have fairly enough represented the Chief Heads or Principles which the Reverend Primate â—ndertakes to prove in this Excellent Treatise And I think you have your self granted enough to confute all you have already said For in the first place if it be unlawful for every particular private Subject to Resist the Supream Powers it will likewise follow that it will be also unlawful for a whole Nation For a whole Nation is only a Systeme or Collection of particular Persons and Universals have no real Being in Nature but only in our Ideas So that if it be unlawful for every particular Person to Resist and defend himself in case he is injured and opprest it must be also unlawful for a whole People which consists of individuals to make such Resistance and it is a Rule in Logick that nothing can be affirmed of Individuals which may not also be affirmed of the whole Species So likewise if you grant That the Primitive Christians ought not to have Resisted the Supream Powers in case of Persecution for Religion I think it will likewise as well prove that they ought not to Resist upon any account whatsoever since certainly there cannot be greater Wrongs or Violences committed in the World by Supream Powers than to allow them an Irresistible Power of putting those to death that bear witness to the Truth of the Gospel since a whole Nation may be as well thereby destroyed if they prove firm to the Christian Religion and that the Prince continue obstinately Cruel And you might as well argue that Patient Suffering without Resistance ought not to be exercised in this Case because it is destructive to Mankind and the Quiet of a Civil Society as to argue from the same Reason that a whole Nation is not obliged to suffer without any Resistance when their Lives Liberties and Properties are invaded by the Supream Powers So that if the Primitive Christians might not Resist the Roman Emperours when they made so great a part of the People and were so vast a multitude in the Roman Empire in the time of Tertuliian as that he tells the Emperour Severâ—â— in his Apology for the Christians to this effect That had they a mind to profess open Hostility and to practice secret Revâ—nge could they want numbers of Men or sorce of Armâ— Are the Moors the Marcomans or the Parthians themselves or any one particular Nation whatsoever more in number than they who are spread oâ—er the whole World They are indeed not of your way and yet they have silled all you have your Cities Islands Castlâ—s Towns Assemblies your very Tents Tribes and Wards yea the Pallace Senate and Place of Judgment Nor need I to mention at large the famous Story of the Thâ—baean Legion who all of them suffered Death rather than they would either Sacrifice to Idols or Resist the Emperour â—s Forces tho' they were between six or seven thousand Men and might have sold their Lives dear enough And if an Emperour may murder so many thousands without any Resistance I see no Reason why he may not put a whole Nation of Christians to death by the same Reason Nor will one of your Reasons which you bring for it signifie any thing that the Christians were to suffer without Resistance beâ—ause Paganism was then the Religion Established by the Law of the Empire for if a Municipal Law as this was ought to be over-ruled by the Natural Law or self-defence when they happen to Clash then the Christians who lived under the Heathen Emperours might
dare appeal to any indifferent Iudge for I think I have sufficiently made out that Resistance by the whole People or Major part of it against a general and Intolerable Tyranny is no Diminution of Supream Civil Power nor inconsistent with it nor is your Reason for your Opinion any truer than the rest that Private Persons whether taken single or in a whole Civil Society can have no Power but what is derived from the Supream which is by no means so for every private Man of the Society then acts by a Power precedent to it viz. the Natural Power of Self-Preservation or Defence which no man ever absolutely gave up neither for himself nor his Children when he became a Member of that Common-wealth Tho' he was obliged for the Peace of the Government or Civil Society to suspend that Right in order to a greater Good which once failing upon the Dissolution of the Government every Man 's Original Right takes place As for what you say against my Notion that Resistance is Lawful when it may prevent the Subversion of the Government your Reply to this is really Equivocal and consists in that false or wrong Notion you have of the Nature of our English Government which you suppose only consists in the Preservation of the King 's Personal Powâ—r without any respect to the Laws or Fundamental Constitutions of the Kingdom and that as long as the People are in Subjection whether to Legal Government or illegal Force it is all one the Government is still preserved which is a great mistake for the King receiving his Power from the Law and having no Authority but what that gives him when he overthrows the Fundamental Constitutions of the Kingdom he doth himself destroy the Government And therefore when in that Case the People do resist it is either to maintain it or else to restore it to the state that it was in before so that it is not the People in this Case who have subverted it but the King M. It now grows late and it is high time to give over but if you please to give me another Meeting I doubt not but to show you that by the Original Constitution of this Government the King not only hath the sole Supream Power but that by several Acts of Parliament all Resistance of the King or those Commissioned by him is absolutely against the Laws and fundamental Constitutions of this Kingdom and that they are all by our Laws Rebels that dare presume to make such unlawful Resistance And I desire that you would give me a patient bearing in this matter because I have so great a Kindness for you that I would not have you lye under so dangerous an Errour which may happen to prove fatal to your Happiness not only in the World to come but also to the Safety of your Self and Family in this Life if you should offer to put in practice what you have here maintained F. Sir I give you many thanks for your kind Intentions towards me since I do believe it proceeds from that real Friendship you have for me tho' as for the former of those Judgments you mention I hope I shall have no Reason to be afraid of it for any thing I can yet see from thâ—se Arguments you have hitherto urged But as for what may happen to me in this Life I hope I have as little Reason to fear it since I believe this great Revolution will not only Iustifie but for the future defend those Arms that have been taken up for the restoring the true Ancient Government of the Kingdom M. I confess Sir that you have now too much the advantage of me during these times of Anarchy and Confusion but yet I hope one day to see this unhappy Nation again recovered from this sad Apostacy into which I confess too many have lapsed and then I doubt not but these Primitive and Loyal Doctrines of Passive Obedience and Non-Resistance will be again restored to their former Integrity and Vigour F. Well Sir all I can say to you is that I see you are not only in Love with Slavery but also with thâ—se that would bring it in upon us yet however I think I may give you this good Advice that if you are not pleased with what hath been already done since you have had no hand in the doing of it you would be contented quietly to sit still and enjoy those Benefits that may thereby accrue to the whole Church and Nation since I thereby expect a firmer Settlement of the Protestant Religion as also of our Civil Liberties than we ever yet enjoyed M. I thank you for your Advice and you know as my humour is not to be Troublesome or Clamorous against that which is not in my Power to help so on the other side I heartily wish that the Prince may now agree with his Majesty upon such Terms as may prove for the good of the Church and security of the State But pray tell me when I may be so happy as to see you here again that we may fully resolve this last Question F. To Morrow I shall be engaged but the day after being one of the Christmas Holy-days I shall not fail to wait on you at the same hour and I am very well pleased to wait on you here since I foresee a great part of our next Conversation will depend upon Authorities out of Books with which your Study is very well furnished and my own are not in Town M. I shall expect your Coming with Impatience and in the mean time I am your humble Servant F. Sir I am yours FINIS Bibliotheca Politica Or A DISCOURSE By way of DIALOGUE WHETHER The King be the Sole Supream Legislative Power of the Kingdom and whether our Great Councils or Parliaments be a Fundamental Part of the Government or else proceeded from the Favour and Concessions of former Kings Collected out of the most Approved Authors both Antient and Modern Dialogue the Fifth LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford-Arms where also may be had the First Second Third and Fourth Dialogues 1692. THE Bookseller's Advertisement to the READERS THE Author has order'd me to beg your Pardons on his behalf that he hath made bold in this Discourse to deviate from the method he at first proposed for the subject of the ensuing Dialogue since instead of treating of the Original of Civil Authority and in what sense it is derived from God and in what from the People as he promised in his Epistle to the first Discourse he hath now made the Supreme Legislative Power and the Fundamental Constitution of our Government together with the Antiquity of Great Councils or Parliaments in this Nation whether they always consisted of Bishops Barons or Temporal Lords and Commons or not the Subject of this as well as of the ensuing Dialogue so that thâ—se grand Questions taking up two entire Discourses had the Author persued the Method he at first proposed
auire homme de People Mes Ed. Roy son fils ordeign que home sueroit vers Roy per Peticion Mos unques Roys ne seront adjugez Si non per euâ— melmes lour Iustices So that if the former part of it â—e Law the latter must be so too and then it will directly contradict what you have quoted before out of Bracton That in the time of Henry the 3d in which he lived there lay no Remedy against the King but only by Petition Whereas this Opinion makes him before the time of Edward the First to have been liable to the same Legal Process with other Men. But notwithstanding this Passage in the Year-Book may very well bear a legal Interpretation only by supplying what is indeed to be understood after the Words non pas les Peers le Commune viz. Sans assent du Roy which as it was then true So I hope it will ever be so But I think I can give you a much better Authority than this Year-Book to prove where the Power of Making and Dispensing with Laws doth truly reside viz. The Solemn Declaration of the King Lords and Commons in the 25th Henry 8. a Prince as Jealous of â—is Prerogative as any of his Predecessors where in the Preamble read these words It standeth therefore with Natural Equity and good Reason that in all and every such Human Laws made within this Realm or induced into this Realm by the said Sufferance Consents and Custom your Royal Majesty and your Lords Spiritual and Temporal and Commons Representing the whole State of your Realm in this your High Court of Parliament have full Power and Authority not only to dispense with those and all other Humane Laws of this your Realm as the Quality of the persons and matter shall require And also the said Laws and every of them to Abrogate Annull Amplifie and Diminish as it shall seem to your Majesty and the Nobles and Commons of your Realm present in your Parliament Meet and Convenient for the Wealth of your Realm c. Whereby you may plainly see that the Power of Making Abrogating and also Dispensing with Laws is by this Act ascribed joyntly to the King and the Two Houses of Parliament But though I do not affirm that they have a Co-ordinate Power with the King in making Laws yet they have a Co-operative Power therein which yet is no more than your Co-operation for what is a Co-operation but a Power of working together and how can three Distinct Bodies work together without each contribute their share to produce the Intended effect M. Perhaps I may have bin too unwary in my expression but pray answer the Authorities I have brought from our Ancient English Saxon Laws Wherein it seems plain to me that the King had then the Sole Legislative Power F. I grant he had a chief share in the Legislative Power but not the Sole Power that is He could make no Laws but in the Great Council and by their Consent And this you might have seen as well as I if you had not slyly past by what made against you and therefore in the first place to begin with your Instance of Offa's giving that Boon to the Roman School I think the Authority you bring for it is very Slight for though I own that Matthew Paris who writes his Life Relates this Donation to have been made at Rome without mentioning any Consent or Confirmation of his Great Council Yet this seems but an imperfect account of the matter and according to the usual way of the Writers of those times who are not so exact in such matters as they should be And therefore though Offa did give or vow these Pence at Rome yet the Gift might receive its force from the Consent of his Great Council after he came home Since all his Laws and the Acts of his Councils are lost unless it be one which Sir H. Spelman hath given us from such Remains as have bin saved out of the Libraries of several Monasteries at their Dissolution And this contains no less than the Consent and Confirmation of his Great Council Assembled at Calcuith Anno 940. for the Foundation and Endowment of the Abby of St. Albans as also that of another Council at Verulam for the Conferring of divers other Lands of his own to that Monastery Now I leave it to any indifferent Man to judge Whether that King who could not bestow his own Demesnes upon the Church without the Consent of the Common-Council of the Kingdom could give away at once the 30th Peny of all his Subjects Estates for ever without their Consents I am sure the Donation of the same sort of Pence by King Edward the Confessor which is now to be found among the Laws of King William the First is said to be granted Communi Confilio Regni and that the Saxon Kings could not bestow their Lands upon Religious Uses See Sir H. Spelmans Councils where Baldred King of Kent is an evident Example who though he had given the Mannour of Mallings in Sussex to Christ-Church in Canterbury Yet because his Principes and Great Men that is his Great Council consented not thereto it was revoked untill King Egbert and his son Ethelwulf did afterwards renew the said Grant with the Consent of a Great Council held at Kingston An. 840. as you may see in the same Volume last cited And I am sure after the Heptarchy when our Kings were more Powerful the same King Ethelwulf could not by his meer Prerogative Grant the Tythes of his Subjects Estates to the Clergy without the Consent of a Great Council of his Bishops and Principal Men held at Winchester An. Gratia 855. and Intituled thus Celebris ilâ— donatio Ethelwulfi Regis decimae manfionis omnium benorum per terram suam Deo Ecclesiae factae confirmaâ—â—â— M. I Grant that perhaps these Kings could not dispose of their own Lands or the Estates of their Subjects without the Consent of their Great Council any more than the Kings of France could formerly yet I hope they were Absolute Monarchs for all that F. I beg your pardon if I have bin somewhat long in answering your Example of King Offa. But I will now shew you that they could no more make Laws than dispose of their own or their Subjects Estates without their Consent and which you your self might easily have seen if you had pleased to have Consulted Sir Henry Spelman as Diligently as you have done Mr. Lambard for there you might have found that about the Year 712. King Ina Assembled a Great Council or Parliament wherein he made Ecclesiastical Laws concerning Marriages c. and did other things ad concordiam publicam promovendam peâ— commune Consilium Assensum Episcoporum Priâ—cipum Procerum Comitum omnium Sapientum Seâ—iorum Popillorum totius Regni So likewise if you will please to look into the Decem-Scripâ—ores you will find how Althesian's
for as Iohannes Pomarius in his Saxon Chronicle sheweth us for which I refer you to Verstegan where this passage is made use of at large Verstegan p. 68. So that if this were the Government of the Saxons as low as the time of Charles the Great I durst leave it to any indifferent person to judge whether the first Saxon Kings in this Island were made so by their own Princes before they came over or were chosen by their Followers since no Historians mention the former tho all of them agree of the latter They commonly using this Phrase Regem fecerunt or elegerunt And that all the first Kings of the Heptarchy were Elective nothing is more plain since the Great Council of the Nobility and People did not only Elect them but often Depose them too when they grew intolerable through Tyranny or Misgovernment as may appear by the Example of Sigibert King of the West-Saxons and divers others I could Instance in who were Expelled this Kingdom as Brompton and other Ancient Chronicles tell us by the Vnanimous Consent and Deliberation of the Nobility and People Many like Instances I could give you in the other Kingdoms of the Heptarchy but that it would be too tedious Nor doth your Reason signifie any thing that it is not probable that the first Princes were made Kings upon Condition because of the Absolute Authority they had over the Lives and Fortunes of their Subjects since it is altogether false in matter of Fact none of the Saxon Kings being able alone to make Laws or impose Taxes upon their People without their Consents in their Great Councils much less to make War without it for then the War tho begun by the King alone must have signified little in an Age when there were no standing Armies nor Money in the Princes Power to pay them there being then but little Coyn of any sort and their Revenues being mostly paid in Victuals M. Pray Sir give me leave to interrupt you a little I own indeed that the particular Laws and Constitutions of each of the Kingdoms of the Heptarchy are not particularly known and perhaps some of their Kings might be Elective and consequently liable to be Deposed by their People whether by Right or Wrong I will not now Dispute but if we consider the State of things after these Seven Kingdoms became reduced into one you will find them much altered And as Egbert our first Saxon Monarch Reduced all those Kingdoms into one So it is to be supposed that having no Right to them but by Conquest and the Submission of their Kings when overcome in Battle both he and his Successors must needs have become far more Absolute than they were before and if they were Elective before that time did now certainly become Hereditary Monarchs The Crown Descending from Father to Son for divers Descents And so Consequently these Princes granted divers Priviledges and Liberties to the People of those Kingdoms they Conquered And that they were no other than the free Grants or Concessions of our former Kings upon Petition or Request of the People and accepted by the Clergy Nobility and People of the Kingdom in their Great Councils For this I need go no farther than the Coronation Oath taken by the Kings of England when the Archbishop of Canterbury asks the King Sir will you grant and keep and by your Oath confirm to the People of England the Laws and Customs granted to them by the Ancient Kings of England your Predecessors and namely the Laws and Customs and Liberties granted to the Clergy and People by the Glorious King Edward your Predecessor From whence we may observe that all the Bishops Earls Barons and People there present do own and confess that their most Ancient Laws Customs and Liberties were granted to them by Edward the Confessor and other Ancient Kings F. I doubt you will prove as much out in the account you give me of our King's Power after the Seven Kingdoms were reduced into one as you were before For though I grant that the Title of the West-Saxon Kings over all the rest proceeded from Conquest and the Submission of the Kings and People they Conquered yet were they not all actually reduced into one Kingdom or Monarchy till a good while after the Kings of Mercia and of the East-Angles continuing in Being till the Coming in of the Danes as you will find by our Saxon Annals And though t is true the West-Saxon Kings made those Kings Tributary to them Yet that they did not become more Absolute thereby appears from the Testimony of our Ancient Histories Since we find them Transacting all Affairs in their Wittena Gemots or Great Councils as well after their Conquest as they did before And therefore we find in an Old Register of St. Leonard Abby in York cited by Mr. Dodsworth in the Monastâ—â—on Anglic. put out by Mr. Dugdale this Memorable passage Memorandum quod Anno Domini 800. Egbertus Rex totlin Britanniae in Parliamento apud Wintoniam mutavlt nomen Regni de consensu Populi sui jussit illud de Caetero vocari Angliam And Will. of Malmsbury that Ancient and Exact Historian says expresly of this King Egbert Lib. 11. Has omnes Regnorum Varietates Egbertus animi Magnitudine composeuit ea uni quadrans Imperio ad uniforme Dominium servans unicuique proprias Leges vocavit Angliam It is therefore most evident that upon the Submission of those Kingdoms he Conquered he promised and agreed to govern them according to their Ancient Laws And hence we find the Mercian Laws called Merchen Lage to have continued in force long after that Kingdom was united to that of the West-Saxons Nor will your Inference from the Coronation Oath prove of any greater Moment For tho it be therein recited that divers of the Laws Liberties c. we now enjoy were granted by King Edw. the Confessor and other Kings Yet must it not be so understood as if the People of England had no Laws or Civil Rights before his time for that were to contradict plain matter of Fact and the Histories themselves I have already Cited But why they were called his Laws and his Customs Will. of Malmsbury hath very well observed when speaking of the good Laws made by Ancient Kings and especially by King Ethelred which were confirmed by King Câ—â—â—e he hath this remarkable passage In quarum custodiam etiam â—unc temporis Bonarum Sub nomine Regis Edwardi juratur non quod ille Statuerit sed quod observaverit The like I may say for the Laws of divers other Saxon Kings which tho they go under their Names Yet were made by the Assent of the Great Council of the Kingdom as by the Titles of the Laws themselves in Mr. Lamberts and Sir H. Spelman's Collection of them you may be satisfied if you please But for a Tast pray see the Laws of King Alfred which you Cited which tho said to be
made by him as indeed it is true he compiled them out of divers other Laws formerly in force in the other Kingdoms of the Heptarchy Yet that they were also shewn and assented to by the Wittenae Gemots pray see the Conclusion of these Laws in Sir H. Spelman The words are Remarkable Ego Aelfredus West Saxonum Rex ostendi haec omnibus Sapientibus meis dixerunt places ea custodiri So that the calling them the Laws of King Alfred or King Edward doth no more prove that they alone made them then our now Citing such or such a Statute of K. Henry 8th or King Charles the 1st do therefore suppose that those Kings made Laws by their own Sole Authority such Phrases among Ancient Historians as well as our selves at this Day being used only for Brevity sake and signifie no more then their Confirmation of them M. I shall not deny but that our Ancient English Kings did for the most part make no Laws without the Consent of their Great Council Yet I think I can give you an unanswerable Argument to prove that the very Being and Constitution of Parliaments or Great Councils did in the beginning wholy proceed from the Grace and Favour of some of our Ancient Kings thâ— to which of them to ascribe it is not easie to Determine But if we may believe your own Author the Mirrour he tells us almost at the very beginning That King Alfred for the Good State of the Realm caused to Assemble the Counts or Peers and then ordained for a perpetual Custom that twice in the Year or oftner for Business in time of Peace they should Assemble at London to treat of the Government of the People of God and how folks should keep themselves from offences and live in quiet and should receive Right by certain vsages and Iudgments And According to this Establishment were made divers Ordinances by divers Kings until the present King viz. Edw. 1st But to come to the proof of what I affirm it is certain that in those first times the Saxon Kings conferred all the Bishopricks and principal Abbeys in England per Annulum Baculum as Ingulf and Malmsbury expresly tell us And as for the Earls or Aldermen of Counties as also the Great Thanes Judges or Noblemen of the Kingdom they were only Offices held for life in those times which the King might Discharge them of at his Pleasure And hence we find the Titles of Aldermanus Regis and Thanus Regis so frequently to occur in our Ancient Histories and Charters These comprehended under the general Name of Wites were the only Constituent parts of the Great Council in those times for as concerning those we now call the Commons of England we do not so much as find the least mention of them or any Representatives for them till the latter end of the Reign of King Hen. 3d. or the middle of Edw. 1sts Reign as I think Dr. Brady hath Learnedly and fully proved in his last Edition of his Answer to Mr. Petyt's Treatise of the Rights of the Commons of England Asserted Now if it plainly appears that every part or Member of the Parliament did Anciently receive their very Being from the meer Grace and Concession of our Ancient Monarchs can you or any Reasonable Man assert with any Colour of Truth that our Great Councils or Parliaments could be a part of the Fundamental Constitution and as Ancient as the Government it self And if Parliaments did thus receive all that Authority they now Exercise from the Kings Bounty can any Man doubt whether all the Rights and Priviledges we now enjoy are to be Ascribed to any other Original For if the very Keepers as you will have it of these Liberties did all proceed from the King then certainly the things to be Kept must do so too and when you can answer this Argument I have now brought I think I may safely promise you to be your Proselite and to come over to your Opinion M. I confess this is the most plausible Argument you have hitherto urged and if I can't answer it I do likewise promise you to become your Convert But tho granting that Parliaments might have received their Being from the Favours of our Kings I might deny your Consequence that therefore it will follow that all the Rights and Liberties of the Subjects of England must do so too since they might very well have reserved to themselves both Hereditary Properties as also a Right to their Lives Liberties and Estates which the King should not take from them without just Cause and Legal Tryal which when they found invaded by succeeding Princes they might then and not till then find constant Great Councils and Parliaments to be necessary for that End and as the firmest Bullwark against the Tyranny of Succeeding Princes But the Author of the Mirrour in the Section before the place from whence you took your last Quotation expresly tells us that upon the first Election of a King to Reign over the rest of the Saxon Princes they first of all madâ— him to Sweâ—r that He would maintain the Holy Christian Faith with all his Power and would govern his People according to Right without regard to any Person and should be liable to suffer Right i. e. Iudgment as well as others of his People And tho I do not give any Credit to all the Story he there relates of 40 Soveraign Princes in this Island at once Yet the Substance of it may be true that this Election was made of King Egbert by the 40 Earls or Counts of Provinces which were afterward by King Alfred called Shires But that this Author ascribes the Beginning of Great Councils to the first Institution of the Government pray see what he there fâ—rther says And tho the King can have no Peer in the Land nevertheless if by his own wrong he offends against any of his People none of those that Iudge for him can be both Iudge and Party It is therefore agreeable to Right that the King should have Companions to Hear and Determine in Parliament all Writs and Complaints concerning the Wrongs of the King Queen and their Children of which Wrongs they could not otherwise have Common Right These Companions are therefore called Counts after the Latin Câ—mitâ—e Whereby you may see that this Author and Bracton who were Contempâ—â—aries were of the same Opinion in this important Point And I cannot imagine how any Prince who had Power sufficient in his hands to do what he pleased as you suppose our English Saxon Monarchs to have had at the first would ever if they could have helpt it have instituted a Court one of whose chief Businessâ—s it was to examine and redress the Wrongs and Oppressions of themselves their Wives and Children But besides all this what you say might be somewhat likely that our Parliaments or Great Councils did owe their Original only to the Kings good Will and Pleasure did we not find the like
must needs signifie Tenants in Capite and no other But that it did not signifie only so after that time I shall join issue with you by and by I shall now proceed to my next Authority which is from Ailrid Abbot of Rievallis who lived not long after the Conquest who in his Life of Edward the Confessor relating the manner of that King's Election in his Mothers VVomb tells us How Ethelred his Father called a Great Council about appointing a Successor that hereupon says thus Fit Magnus coram Rege Episcoporum Procerumque Conventus Magnus Plebis Pâ—lgique Consensus VVhere you see apparently that the Abbots made a distinction between the Assembly of the Bishops and Great Lords and that of the Plebs Vulgus or Common People M. Pray give me leave to interrupt you a little before you proceed to any fresh Authorities I grant it is true that the Abbot in the place you mention tells such an idle Tale that this Edward was chosen King whilst in his Mothers VVomb and so his Father made the Nobility swear Fealty to him before he was born He is the only Author of this Legend that I know of and sure you your self must own that it is a little too gross to be believ'd and therefore I wonder that you should urge that to me for a sufficient Authority for the People or Commons having any place in the Great Council in those times F. Pray Sir observe to what purpose I make use of this Authority it is not to make good the Election of Edward the Confessor in his Mothers VVomb but only to prove who were then supposed when this Abbot writ to make up the constituent parts of the Wittena-Gemot or Parliament in the Saxon times which was then believed by all men to consist of the Clergy Higher Nobility and Comâ—â—â— unless you can suppose that the Abbot should mention the Commons by Prophecy And granting that it was only according to the custom of his own time which the Author of the Preface to the Decem Scriptores makes to be about the middle of King Henry II. Reign it will sufficiently prove the antiquity of the Commons in Parliament to be near a hundred years older than the earliest time you assign for it viz the 49th of Hen. III. But I shall now conclude with the conclusion to King Edward the Confessor's third Charter to the Abby of VVestminster in a great Council held in the last year of his Reign as you will find it thus recited in Sir H. Spelman's Councils in these Words Hanc igitur Chartâ—â— meae donationis Libertatis in die dedicationis praedictae Ecclae recitari jussi coram Episcopis Abbatibus Comitibus omnibus Optimatibus Angliae omnique Populo audiente vidente where by the Optimates Angliae I think can be understood no other than the Thanes or Freeholders of all sorts as well the Kings as others as also the Deputies of great Cities and Burroughs the Words being Optimates Angliae non Regis and tho it is not likely that the Populus who are here mention'd to be present should be the Mob or Common People only admitted to stare and harken at such a great Assembly yet since the Words are in respect of them only audiente vidente I shall not insist upon the Word Populus here as a part of this Common Council of the Kingdom But yet that the Word Populus does oftentimes refer to the Representatives of the Commons I shall conclude with the Answer of K. Harold the last Saxon King to the Message of VVilliam Duke of Normandy demanding the Kingdom of England and that Harold according to his Promise should marry his Daughter The Words are remarkable and therefore pray read them out of Will of Malmesbury who lived near that time Contra 〈◊〉 scil Heraldus quae dixi de Puellae nuptiis referens de Regno addebas praesumtuosum fuisse quod absque generali Senatus Populi Convenâ—â— Edicto alienam illi hereditatem Iuraverit now that by the Word Senatûs is to be understood the higher Nobility such as the Bishops Abbots Earls c. and by Populus the Representatives of the People we have Mr. Selden's Authority on our side who in his Dissertations on Fleta speaking of the great Question that arose in Parliament in K. Edward III. Reign concerning King Iohn's Donation of his Kingdom to the Pope gives their conclusion to this debate in these Words Ordine universi â—am generis Hieratici quam Proceres Senatus Populus sâ—lâ—â—niquâ— in it a deliberatione in Comiciis illis responderunt unanimes irritam plane fuissi 〈◊〉 Donationem illam ut pote tam sine ordinum assensu quam Iuran ento inaâ—guâ—aâ—i adversâ—n but of this great Authority I shall speak more hereafter when I come to it in order of Time Since therefore it is apparent that the Commons had a share in the Great Councils before the Conquest as you call it I desire that you would be pleased to shew me how they came to lose it after the coming in of the Normans and to be so long without it as until the 49th of Henry III. or 18th of Edward I. If your Authors are to be credited M. I must confess the Authorities you have brought out of the Saxon Councils would seem to be of some weight were I not sensible that the Monks who were the only Recorders of these Councils are very short and careless in giving a true account of them and if we go to the Councils themselves we might be sufficiently convinced that all those that are said to be present at them could not have any Places or Votes in those Assemblies as Members of them for in some of them as in this Example we find the Queen to have been there and to have given her consent to the King's Charters and yet I suppose you will not allow the Queen to have been there as an Estate by her self much less to have been a Member of any of the Three Estates The like we may say for those Abbesses we find mentioned to have been present in divers of those Councils and particularly in that of Winchester you so much insist upon wherein Tythes were granted and these are said to have approved of the Royal Charter as well as any of the rest and sure you do not make Women to have had Voices in our great Councils in the Saxon Times So that it appears plain enough to me that persons being mentioned as present in these Assemblies or being Witnesses to Charters there granted do not make them to have been constituent Members thereof And therefore since the Saxon times are so dark and obscure and so little to be collected of certainty from what we find in the old Monkish Histories and those Fragments of Laws and Charters they have left us I think it is time that we pass over this to the next Period after the Conquest wherein I doubt not
errant Slaves and Vassals notwithstanding their Tenure in capite as the meanest person of the Kingdom who was taxed as you would have it at the Will of his Superior Lord which whether so great and powerful a Body of men would ever have sufferd I leave to any indifferent person to judge M. I grant this may now appear somewhat hard yet since it was the receiv'd Law and Custom of the Kingdom it was not then look'd upon as a grievance and it was then no more unjust than it is now that persons under forty Shillings a year tho of never so good Estates in Money or Stock or that Tenants for years or for the Life of another should at this day have no Votes at the Election of Knights of Shires and consequently be without any Representatives in Parliament of their own Choice and yet be subject to all Laws and Taxes tho never so great when made and imposed by the King in Parliament And I am able to give you divers good Authorities to prove that even London it self and all other Cities and Towns which held of the King in capite and were called his Demesnes were often taxed by the King and his Council out of Parliament before the Statute De Tallagio non concedendo And I think Dr. B. hath proved this beyond exception in his Animadversions upon Mr. A's Iani Anglorum facies noâ—e and he there gives us the Record it self of 39 Hen. III. now in the keeping of the King's Remembrancer of the Exchequer That the King did that year as he had divers times before Talliate or Tax all his Demesne Lands in England and then likewise demanded of the City of London the sum of 3000 Marks in name of the Talliage or Tax so laid And the Mayor and Citizens at last yielded after a great Contest It appearing upon search of the Rolls in the Ezchequer that the Citizens of London had been several times before so taxed in the Reigns of King Iohn and the King himself and so they payed at last the Sum which the King demanded By which you see that the greatest and richest Cities and Towns in England were taxed at the King's Will nay I think I am able to prove were it now necessary that the whole Kingdom was often taxed by the King and his Council only before the granting of King Iohn's Magna Charta and the Statute de Tallagio non concedendo above mentioned But to return to the Matter from which you forced me to digress I think nothing is more plain than that our Ancient Parliaments were only the King's Court Baron for the dispatch of the Publick Affairs of the Kingdom and in which as in the Lesser Courts Baroa or Courts of Mannor the Suitors or Tenents were together with the Lord or his Stewards the sole Judges So that at first after the Conquest it belong'd to the King alone as the Supreme Lord of the Kingdom to appoint or call which or what sort of those Tenants be pleased to attend him with their Aid and Advice at his Common Councils or Parliaments And I think nothing is more evident as I shall prove more at large from our Ancient Histories Records and Statutes then that before the 49th Hen. III. and some years also after that time none but the Bishops Abbots Earls and Greater Barons and some of the Less called in King Iohn's Charter the other Tenents in capite then constituted the whole Body of the Parliament under â—he Titles of Baronagium Angliae or Communitas or Universitas Baronagii Angliae And for this I can give you so good Authorities that nothing but more cogent and evident Proofs can bring me from this Opinion And therefore I must tell you I do not value those loose and inconsiderate Expressions of Historians either before or after that time F. I see the Testimonies of Historians are of no credit if they make against your Hypothesis but I shall show you your Mistakes about the King's Taxing anon but the main force of your Argument lies in the signification of those Latin Words you have last mentioned and which I must needs tell you I think you take in too strict a sense For first as to the Word Baro I grant it was not much in use before William I. obtained the English Diadem Baro says Camden Britanni pro suo non agnoscum in Anglo-Saxonicis legibus nusquam comparet nec in Aâ—frici Glossario Saxonico inter dignitatum vocabula habetur For the English Saxons called those in their own Language Aealdermen which in Latin were named Comites and by the Danes Earls but it was of so extensive an import in its signification that we read of Aldermani Regis Aldermani Comitatus c. as I have already shewed you So that according to the strict Sense of this Word we had whole Regiments of Earls whose Titles seldom if at all descended Hereditary till the Confessors Time and after William I. the Saxon Words Aealderman and Thegnes began to be changed and in the room of Aldermanni Thani we find Comites Barones as in all our Ancient Laws and Histories Nor was the Word Barones only taken in those days for Great Barons and Tenents in capite but also for the Inferior Barons or Free Tenents which held great Estates of other Mesne Lords as well as of the King by certain Services and to whom the Great Lords or Earls as Sir H. Spelman shews us in his Glossary Title Baro often directed their Charters Barombus Fidelibus nostris tam Francis quam Anglis and we there also read some Quotations from the old Book of Ramsey Abby wherein the Barons of the Church of Ramsey as also the Milites and Liberi homines thereof are particularly mentioned all which as this Learned Author tells us non de Magnatibus sunt intelligenda sid de Vassallis feodalibus note Scil melioris And the same Author says a little lower that Barons are often taken pro liberè Tenentibus in genere hoc est tam in Soccagio quam per servitium Militare M. What then do you suppose that all the Freeholders in England by whatsoever Tenure they held appeared in Person in Parliament before the time Sir H. Spelman in his Glossary and Dr. B. Assign for the summoning of the Commons to Parliament At this rate every Yeoman or Petty Freeholder was a Baron so that this Assembly might then consist of above 50 or 60 Thousand Persons Since Spot in his Chronicle tells us that William the Conqueror reserved to himself the service of about 60000 Knights Fees which by the time I suppose might have been divided into many more lesser ones by Co-heirship or by sale and otherwise parcelled out by the King's License into Half-Knighs-Fees Third Part of Fees Fourth Part of Fees Eight Parts Sixteen Twenty Thirty and Forty Parts of Fees and so have been increased into as many more And these besides the Tenants in
since by the subsequent words in this Oath it is restrained to the taking Arms by his Authority against his Person or those Commissioned by him which shews that nothing here is intended to be forbidden but taking up offensive Arms upon popular pretences without and against the Authority of the Law which is further explained in another Test by the Authority of both Houses of Parliament Thirdly 'T is observable this is but a Test upon some that were to come into Offices and can by no means make any change in the Ancient Law which cannot be changed by Implication nor does this amount to so much the first part of this Oath requiring only that the party admitted into Office shall so declare and believe and tho' the second Clause call it a Traiterous Position yet this is restrained only to these two particulars That Arms may not be taken up by the King's Authority against his Person or those Commissioned by him which can have reference to nothing but that distinction taken up in the late Times of Civil War when the Parliament pretended to take Arms and grant Commissions in the Name of King and Parliament by vertue of that Authority which they supposed he left with them at Westminster so that this Clause can by no means exclude any Arms made use of for Legal defence according to Law Fourthly and lastly Tho' the words against those Commissioned by him may seem to extend the matter further and is mistaken by some as if â—t required at least Passive Obedience to all Commissions of the King tho' never so illegal yet there is not the least colour for it since nothing is a Commission but the King 's Legal Command or Authority pursuant to some Law and for putting the same in Execution which is the Legal definition of a Commission and when this Test was first brought in to the second Parliament of King Charles the 2d and that the word Legal was offered to be added to the Bill upon a long Debate it was only left out because it was declared by all the Lawyers in the House even by Sir Hen. Finch then the King's Sollicitor and agreed to by the whole House that it was clearly implied and could bear no other construction but that all Illegal Commissions were Null and void and in no Legal sense could be called Commissions so that taking up Arms in the defence of the Law and pursuant thereunto cannot in any wise be called a taking Arms against the King's Person or those Commissioned by him and farther that by the words in pursuance of such Military Commissions are meant such as are warranted by that Act such as the King may issue by his Royal Authority which is bounded by Law and consequently cannot grant any Commissions but what are according to Law so that if these Commissions are granted to persons utterly disabled by Law to take them as all are that will not take the Test appointed by the Act of the 25th of K. Charles the Second intituled An Act to prevent the dangers that may arise from Popish Recusants as also all Commissions to do any Illegal violent action are absolutely void and consequently may be resisted or else our Magna Charta with all the other Laws that establish Liberty and Property as also our very Religion it self Established by Law may be either undermined by the King 's new Dispensing Power or else subverted by open force and every Commission Officer in a Red Coat will be as sacred and irresistible as the King himself But to conclude That the Instances I have given that the King's Commission may be abused to the destruction of the Nation nay of the whole Parliament are not so unlikely and remote as you imagine Pray let me put you in 〈◊〉 that as for that pretended Commission to Sir Phelim Oneal tho' it is true it did prove afterwards to be forged yet was it not known to be so till long after and therefore having all the signs of a true Commission under the King 's great Seal the poor Protestants in Ireland were to have had their Throats cut according to this Oath before ever they could be satisfied whether it were true or not But that a Popish King persecuting and destroying his Protestant Subjects only for matters of Religion is not so improbable a thing as you would have it the French King 's late Dragooning Imprisoning and sending to the Gallies all that refused to renounce Heresie as they call it and subscribe to the Articles of the Romish Religion has given us but too sad and recent an example and how you can assure me that the King acting upon these very Principles and being governed by like Confessors will never do the same things I should be glad to receive some better satisfaction than his bare word to the contrary Nor yet is my other Instance of its being left according to your Doctrine in the King's power to make a violent assault upon the persons both of the Lords and Commons assembled in Parliament whenever he pleased without any Resistance whatsoever so remote and improbable as you are pleased to make it since you may find it still upon Record among the Articles exhibited in Parliament against Robert de Vere Duke of Ireland Robert Tresilian Chief Justice and Sir Nicholas Brembur in the Parliament of the 11th of Richard the Second which I have already mentioned the 15th Article of which was That they by their false Council had caused the King to command the said Nicholas being then Mayor of London suddenly to rise with a great power to kill and put to death the said Lords viz. Thomas Duke of Gloucester and the other Lords there named and the Commons viz. of the Parliament of the 10th of this King who were not of their Party and Conspiracy for the doing of which wickedness the said grand Traitors above-said were parties and presents to the destruction of the King and his Realm So that if this Treason had not been discovered and that no private persons might then resist those Commissioned by the King it would have been Treason according to your principles for the said Lords and Commons to have resisted those that were thus sent to assault them and take away their Lives and what hath once happened 't is not impossible but it may happen again And we may remember how about little more than 30 years since that the K. of Denmark shut up the Senators and Nobility of the great Council of that Kingdom in Coppenhagen and threatned them with Death or Imprisonment if they refused to give up all their Liberties and from an Elective King make him and his Successors absolute hereditary Monarchs as they are at this day by means of the Bishops and Clergy of that Kingdom who then basely gave up and betrayed the Liberty of their Countrey and what they have now got by it they best know therefore this is a thing to be considered as a
be resisted and yet be still unaccountable those two differing as must us Self-defence does from punishment as I have more than once told you M. I cannot rest satisfied with this Reply for though I so far agree with you that an Act without a Legal Authority carries no Obligation at all along with it and therefore cannot oblige the Subject to Obedience Now this is true if by Obedience you mean an Active Obedience for I am not bound to do an ill thing or an Illegal Action because my Prince commands me but if you mean Passive Obedience it is as manifestly false for I am bound to obey that is not to resist my Prince when he offers me the most unjust and illegal Violence Nay it is very false and absurd to say that every Illegal is an Inauthoritative Act which carries no Obligation with it This is contrary to the practice of all Human Judicatures and the daily Experience of Men who suffer in their Lives Bodies or Estates by an unjust or illegal Sentence Every judgment contrary to the true meaning of the Law is in that sense illegal and yet such illegal Judgments have their Authority and Obligation till they are rescinded by some higher Authority This is the true reason of Appeals from Inferiour to Superiour Courts to rectifie Illegal Proceedings and reverse Illegal Judgments which supposes that such Illegal Acts have Authority till they are made null and void by a higher Power And if the higher Powers from whence lies no Appeal confirm and ratifie an Unjust and Illegal Sentence it carries so much Authority and Obligation with it that the Injured person hath no Redress but must patiently submit and thus it must necessarily be or there can be no end of Disputes nor any Order or Government observed in Human Societies And this is a plain Demonstration that tho' the Law be the Rule according to which Princes ought to exercise their Authority and Power yet the Authority is not in the Laws but in the Persons that Execute them For otherwise why is not a Sentence pronounced according to Law by a private person of as much Authority as a Sentence pronounced by a Judge or how doth an Illegal Sentence pronounced by a Judge come to have any Authority For a sentence contrary to Law cannot have the Authority of the Law And why is a Legal or Illegal Sentence reversible and alterable when pronounced by one Judge and irreversible and unalterable when pronounced by another For the Law is the same and the Sentence is the same either according to Law or against it whoever the Judge be But indeed the Authority of the person is not the same and that makes the difference So that there is an Authority in persons in some sense distinct from the Authority of Laws nay superiour to it For there is such an Authority as tho' it cannot make an Illegal Act Legal yet it can and often doth make an Illegal Act binding and obligatory to the Subjects when pronounced by a competent Judge F. I think notwithstanding all you have now said your distinction of a Supreme Authority in Persons above and distinct from the Authority of Laws will prove a meer Notion for you grant that the King hath no Just or Legal Authority to act against Law and that if he put any man to death contrary to it it is downright murder but you will not allow that if the King should thus murder never so many thousands either he or those Instruments of Tyranny may be resisted And therefore you would fain top upon me your old distinction of an Active and Passive Obedience The former of which I very well understand but as for the latter I have long since proved that it is so far from being any Obedience that it is indeed downright Disobedience or a refusal to do that which the Prince Commands so that truly your self have taught me to distinguish between the King 's Personal Authority and his Legal for otherwise why are you not as much obliged to yield an Active Obedience to the King 's Personal Illegal Commissions or Commands as to his Legal ones if there were no difference between them So then all the difference between us lyes in the measure of the Disobedience you maintaining that it is sufficient not to yield Obedience to such Illegal Commissions and Commands and I that besides this denyal of Obedience if it be in a fundamental point and that which generally concerns the whole body of the Kingdom that they may not only be disobeyed but resisted too if forced upon us with violence and therefore all that you have said to prove that the Authority to which we are bound to submit consists not in the Laws but in the Persons tho' acting contrary to Law is according to your own way of reasoning altogether unconclusive And farther when you say that it is false and absurd to affirm that every Illegal is an unauthoritative Act which carries no Obligation with it I shall prove that this absurdity lyes wholly on your side For 1. Legal and Authoritative are all one in our Law for that which is not Legal carries no Authority along with it so that Illegal Authority is in plaiâ—â— English unlawful lawful Power nor had K. Charles 1. any such extravagant Notion of his Royal Authority who certainly understood his own Power better than you or I when he owns in his Declaration to the Long Parliament dated from Newmarket 1641. That the Law is the measure of his Power which is as full a Concession of the thing I affirm as words can express For if the Laws be the measure of it then his Royal Power or Authority which is all one is Limited by it For the measure of any thing is the Limits or bounds of the thing Limited and when it exceeds those bounds it is an Illegal and consequently an Unauthoritative Act which carries no Obligation either Active or Passive along with it So likewise in the said King's answer to both Houses concerning the Militia speaking of the Men by them named to him to be Commissioners for it He thus replyed If more Power shall be thought fit to be granted to them than by Law is in the Crown it self His Majesty holds it reasonable that the same be by some Law first vested in him with Power to transfer it to these Persons c. In which Passage it is granted that all the Power or Authority of the Crown concerning the Militia is by or from the Law and that the King hath no more Authority than what is vested in him by the Law of the Land 2. Your Argument from the practise of Human Judicatures is also very fallacious for you Argue from the bare abuse of a Trust or Commission with the Execution of which all Judges Officers must be intrusted to that which is quite of another Nature viz When the Person intrusted Acts directly contrary to his Commission or without any Commission
extremity or else that the King should be thus invested with an irresistible Power of doing whatever he pleased with us I durst leave to any indifferent person to judge M. I confess you have told me more concerning the History of this Oath than ever I knew before but let the legal sense of it be what it will and setting aside the Precepts in Scripture for absolute Submission without any resistance I think I am able to prove from your own grand Topick of the common good and preservation of Mankind that it is much better to submit to the worst and greatest Tyrant that ever was than to resist him if he be our lawful Prince for if you consider what is the Subject of all Humane Happiness and Contentment it is certainly life now what Tyrant ever in his whole Reign destroyed so many Mens lives by force or unjust Prosecutions as a Civil War if carried on with violence and animosity does in a years time so vast a distance there is between the Evils of Tyranny and Rebellion and so much is the Remedy worse than the Disease the Cruelty of a Tyrant says one is like a Clap of Thunder it strikes with great terrour but Civil War is like an Inundation it sweeps away all before it without noise Thus one Man brought to the Scaffold by the Arbitrary Command of a Tyrant makes more noise than ten Thousand killed in the Field in a Civil War but that does not make the Evil the less but the greater Evil while we are made willing to destroy our selves and do it more effectually in one day than the bloodiest Tyrant could find in his heart to do in his whole Reign All the men put to death by the Arbitrary Commands of Tyrants since the beginning of the World in all the Kingdoms of it will not amount to half the number of those who have perish'd in the Roman or English Civil Wars so much safer are we in God's hands than in our own and in theirs under whom God hath placed us and tho' he often makes them like the Sun and Sea tho' highly useful in themselves scourges for our Sins yet he has promised to keep their hearts in his hand and to turn them as seemeth best unto him we have more Promises of safety there than when we are delivered over to the Beasts of the People whose madness David compares to the raging of the Sea In short The strict Restraint of the People by Government is their truest Liberty and Freedom since if they were at Liberty from Government they would be exposed to Combat one another which would be worse than the greatest slavery in the World the great mistake is in the foolish Notion we have of Liberty which generally is thought to consist in being free from the lash of Government as School-boys from their Master and proves in the consequence only a Liberty to destroy each other and yet it is for such a Liberty as this that men most commonly begin Civil Wars and fall a cutting of each others Throats Therefore tho' I grant it were much better for all Princes to let their Subjects live happily and enjoy a competent share of Ease and Plenty but on the other side if they will not permit them so to do but will tyrannically oppress them it were much better for them to sit down contented with poverty nay slavery it self rather than to destroy so great part of a Nation as may be lost in a Civil War whenever it begins Thus even the Poet Lucan tho' of Cato's party reckoning up the Miseries of the Civil Wars of Rome which were all for Liberty as if envying the happy Condition of those who lived under absolute Tyrants crys out Faelices Arabes Medioque Aeaque Tellus Quos sub perpetuis tenuerunt Fata Tyrannis I could give you instances of the truth of this in most Nations enough to make a History and if such a History were written of the Mischiefs of this false and pretended Liberty and good of the people I durst undertake the Comparison that more visible Mischiefs come upon the people more destruction of the publick good and greater loss of Liberty and Property by this one Method than by all the Tyranny and Violence of Mankind put together and consequently that there is no Comparison 'twixt the Evils of Tyranny and of a Civil War for publick good and that the Mischiefs of this pretence of publick good is infinitely less tolerable and a more Universal Ruine to the people than any Tyranny of lawful Governors that ever was in the World whereas this is by many degrees the greatest and most lawless Tyranny and always brings greater mischief along with it such as Confusion Rapin Violence Contempt of all Laws and legal Establishments with more intolerable Evils of all sorts than those it pretends to remedy But of all pretences for Rebellion Religion is the most ridiculous since a Man's Religion can never be taken from him or a false one imposed upon him whether he will or not and also because a Civil War introduces greater immorality and more loosens the Reins of Discipline and is more contrary to the Spirit of true Religion than any other Thing in the World true Religion is not propagated by the Sword it is a small still Voice that cannot be heard in War War confounds it and debauches it the most profligate and licentious Court bears no proportion in wickedness to the lewdness blasphemy and contempt of all that is Sacred which reigns and overflows in Camps It was an old and true Saying Nulla sides Pietasque viris qui Castra sequuntur F. I see when neither the Scripture nor the Law can justifie your absurd Doctrine of Passive Obedience then you fly back to your old Topick the Law of Nature and common good of Mankind I allow your Principles but not the deductions you draw from thence which are indeed but Paralogisms as I will shew you by and by but I see there is nothing so false and absurd which Prejudice and Education will not make men swallow I confess you have made a long and ingenious Harangue in a Commendation of the Benefits of Tyranny and Slavery which had you done only for an exercise of your Wit I should have ranked it with Cardan's Panegyrick of Nero and the praise of the Government but if you vent such Notions in good earnest I cannot forbear shewing you the absurdity of them First therefore admitting what you say for truth that a Civil War does destroy more men in one Battel than the greatest Tyrant hath ever done in his whole Reign Is this an Argument that no man may defend either his Life or Liberty against Arbitrary Power if this were true Reason it were the greatest folly in the World for the Poles or any other Nation that are at Wars with the Tartars ever to resist them for their Emissaries might thus make use of your Argument to make them submit to
them Life is the only state of Happiness in this World and without which nothing can be enjoyed It is therefore better for you to be made Slaves than to venture a Battel for in the Fight God knows how many of you may be destroyed whereas if you quietly submit we promise to hurt none of you we will only carry you away and sell you for Slaves and sure Slavery is better than Death for even Slaves enjoy a great many Comforts of life tho' with some hardships and you may be redeemed again or make your escape but life once lost can never be recovered The same Argument a Tyrant may use for the exercise of his Arbitrary Power over mens lives that he will not nay cannot destroy the whole Nation but only use them as Butchers 〈◊〉 their Sheep cull out the fattest and let the poor ones live thrive and grow fat till they are likewise ready for the Knife This perhaps may be a proper life for those Beasts that cannot live without Man's protection but what man of any courage or sense would be willing to live under a Government where his Poverty was to be his only Protection who would not venture his life in one brisk Battel rather than live in such a vile and slavish Condition and who would not rather argue thus It is great odds if among so many Thousands I am the person ordained for Death or if I am I may perhaps purchase Victory for my Countrymen and Liberty for my Posterity but let the worst happen I venture my life for the publick good and it is better once to die than always to live in fear But if the Calculation of the number of mens lives that may be lost in the recovery or maintaining any right whatever should be the only rule to render War either reasonable or lawful I doubt whether most of the Wars Princes make for small Territories or Punctilio's of Honour as lowering the Flag for example nay even for the recovery of their Crowns when unjustly detained or taken from them can upon your principle ever justifie either Princes in Conscience to make such Wars or oblige Subjects in prudence according to your Rule of the publick good to fight in such quarrels since none of them but often cost more Lives to defend or regain them if lost than the things are worth that the Princes of the World usually make War about against each other But if you tell me that men are bound by the Law of God and of their Country to assist their Prince in any Wars he shall Command them without inquiring into the Consequences of it and let what will happen as to the loss of mens Lives Estates or Liberties that we are likewise to obey and submit to lawful Princes because let them tyrannize enslave or destroy us never so much yet God has put us into their hands and we are safe in God's hands whilst we are in theirs This is all a meer fallacy for what is this to your main Argument from the destruction of Mankind for if so many men are to lose their lives in the War what difference is it as to them whether the War be made by a lawful or unlawful Power it is still upon this Principle unlawful to be made and consequently unlawful to be fought for and if you once grant that Princes may tyrannize without resistance kill or enslave any of their Subjects what difference is it as to the people that are to suffer it whether he be a lawful Prince or a Tyrant or Usurper that does it for as for being delivered by God into the hands of a lawful Prince to be dealt withal as he shall think good it is all meer Jargon pray prove to me if you can that whil'st a Prince thus tyrannizes oppresses and enslaves his people that God ever thus deliver'd the people into his hand for that design or that whil'st he does so he acts as God's Minister This I have urged you to prove at our 4th meeting but since you could not do it I take the case for desperate But to answer your Comparisons of the Sun and Sea to which you compare lawful Princes that turn Tyrants they are as easily retorted upon you if the rays of the Sun are too hot we may resist them and put on thicker Cloaths or set up shelters to defend our selves from them the like we may say of his malignant Influences or Effects upon mens Bodies could there be any means found out as easily to avoid them So likewise for the Sea suppose the breaking in of it upon any Country to be sent by God for their Sins you will not say it is unlawful for the people to make Banks or Dikes or use any other natural means to keep it out or to drain it away and the case is the same as to Tyranny for if resistance be as natural a means against it as these I have mentioned are against the too violent heat of the Sun or breaking in of the Sea I cannot see why we may not as lawfully exercise it But since we are â—alking of Waters this puts me in mind of the place you have now cited out of Proverbs That the heart of the King is in the hand of the Lord which without doubt is a great truth but then you should have added what immediately follows as the Rivers of Waters he turneth it whithersoever he will now how does God turn Rivers of waters it is not by any super-natural means but either by a strong VVind or else by the hands of Men. So likewise that Solomon's Comparison of God's turning the Hearts of Kings like Waters is but an allusion to the Custom of those Eastern Countries that as a Gardiner draws the streams of water through the trenches he cuts into what part of the Garden he thinks good so doth God turn the Hearts of Princes to act or do quite contrary to their first intentions nay to what they have actually done before but how is this performed it is only as he makes use of the Gardiner to turn the streams of Water it is wholy by Humane means such as Advice of good and wise Counsellors and a prudent Consideration upon it to which also may be added the Resistance of their Subjects when after all Remonstrances and Intreaties to the contrary Princes still go on outragiously to oppress them when they see they will no longer bear it and find themselves engaged in a troublesom War with them they then see their Errour and send to their Subjects and offer them terms of Peace Thus divers of our Kings hearts were turned when they saw the Nation would all as one Man resist their tyrannical Arbitrary Proceedings they came to Terms with them and granted them Magna Charta and other good Laws for the security of their just Rights and Liberties But as for what you say of our being safe in the hands of Tyrants as being in God's hands I grant we are
still in God's hands even when we fall under the power of Thieves and Robbers But is our safety then so great as when we are out of their hands Or may we not get from them by force if we are able especially if what Bracton tells us be true in these words in his Third Book Exercere igitur debet Rex potestatem juris sicut Dei minister Vicarius in Terrà quia illa Potestas solius Dei est potestas autem injuriae Diaboli non Dei cujus horum operum facit Râ—â— ejus minister erit cujus borum operum facit igitur dum â—acit justitias vicarius est Regis aeterni minister autem Diaboli cum declinet ad injuriam Now pray tell me if the King can thus cease to be God's Lieutenant and become the Devil's Officer whether he can properly be said to be under the Power ordained by God or that we can be very safe in such hands I cannot very well see As for unnecessary Wars undertaken without any such cause for meer pretences of Liberty and the publick good and which may have sometimes caused many more Mischiefs and Inconveniencies than those they pretended to cure meerly does it therefore follow that no Wars tho' against insupportable Tyranny and for self-defence have never been nor may be undertaken by any Nation in the World and that the state they are in after such a War is always much worse than it was before which is notoriously false as you may see by so many instances I have given you from our own Histories as I could also shew you from other Countries such as the Switzers and Dutch who have by defending their Liberties when unjustly oppressed brought themselves into a state of Plenty Liberty and Safety and therefore notwithstanding your making so light of mens Just Rights Liberties and Properties there are certainly such things that distinguish a free people from slaves as any who will but travel into France Turkey or any other Arbitrary Government may easily satisfie themselves and if these things ought to be really esteemed as the causes of all the earthly happiness we enjoy then certainly they may be defended and fought for and if in the purchase of them many mens Lives happen to be lost this is no necessary consequence since such Reformations are often brought about with very little Bloodshed as appears by many instances I have now given of such resistance and may more evidently appear by this late great and wonderful Revolution but admitting it should happen as you say and that a great part of a Nation should be destroy'd in a Civil War for their just Rights and Liberties yet it is still upon your own Topick better for Mankind that â—t should be so if true Liberty I do not mean from lawful Authority may be but obtain'd at last thereby since life is not to be esteemed only for meer living but living happily non est vivere sed valere vita and life is enjoyed by Slaves in Galleys as much as by the greatest Prince yet no rational man but will allow that Men may venture their lives rather than suffer themselves and their Posterity to fall into that miserable Condition the like he may if they were only to be reduced to the Condition of the meer Peasants in France or ordinary Christians in Turkey and if so I think I may then safely affirm that it is better that half the people of any Country should be destroyed by a Civil War if their just Rights and Liberties may be preserved to them and their Children at the last then that Slavery with all its consequences such as Ignorance baseness of Mind Cowardice Beggary c. should ever be entailed upon a Nation for as for the loss of Men it may be made up again in some Generations but when Mens civil Liberties and Properties are once lost they cannot without some rare and unexpected Revolution be ever regained as we see in the Subjects of all sorts in France Turkey and Muscovy c. at this day and therefore if you please better to consider the real Liberties of a people such as we contend for are not that of School-Boys to be free from the Lash of their Masters however that if such a Discipline were to be exercised upon Men all their life-times I think no man but would say it were worth venturing his life rather than to fall into so miserable a state so that what you cite from the Poet Lucan is only to be taken as a Poetical Exclamation against the Miseries that Civil Wars often bring upon a Nation but to say that it was Lucan's Opinion that Subjection under the severest Tyrant was better than the Liberty the people of Rome enjoyed is to suppose that either you or I have never read that Author since nothing is more plain than that the main design of that Poem is to magnifie Cato and Pompey who fought for the Liberty of their Countrey above Caesar and those that joyned with him to destroy it As for all the rest that you have said that you could make a History of greater Miseries as loss of Liberty c. that have come upon whole Nations by fighting for their Just Rights and Liberties against Tyrants than by all the Tyranny and Violence of Mankind I think you would have a hard task to make it good since I suppose under Absolute Monarchies it is unlawful for the People to take up Arms till they are either like to be enslaved or destroyed by the Tyranny of their Prince or else so intolerably opprest by his Souldiers that they can scarce even in a state of War live in a much worse condition and if they are ever subdued and reduced to their former condition they cannot be worse than what they were under before The like I may say as to Limited Monarchies or Common-wealths that degenerate into Tyrannies the People may perhaps better their condition by Resistance and recover their Liberties but cannot be in a worse if they are overcome for I do not allow such Resistance lawful till the very Fundamental Constitutions of their Government whereby it is distinguisht from an Arbitrary Despotick Power be actually invaded or taken from them so that let the worst that can happen they can scarce fall into worse condition than they were before And as for England we may speak it experimentally that of all the Resistances that have been made by the Major part of the Nation or greater part of it in defence of their Just Rights and Liberties every one of them have happened for the bâ—â—t and been a means of restoring this Kingdom to its former Estate except the last in which I grant we lost it by that War yet that was not from the Doctrine it self but because the War was begun and carried on by a Violent Faction upon unjust grounds and which was worse the Government and Discipline of the Church as Establisht by Law was altered without
against the Tyranny of the Duke D'Alva in the beginning of the Belgick Wars and it was soon after seconded by the revolt of divers other Cities and Towns in those Provinces till the Spaniards were quite driven out M. I do not deny but you speak more moderately on this Subject than most of your opinion who think every private man has a right to take up Arms and raise a Rebellion whenever he judges his Person or Estate is invaded or injured by the Government And indeed this remedy of Resistance seems at first sight prety tolerable if it were not that we very well knew that this many-headed Beast the Multitude is very apt to be deluded by the cunning Speeches and sly Insinuations of factious and ambitious Men whose Interest it will always be to fish in troubled Waters and raise Disturbances to make themselves the Heads of a Party Thus in the Year 42. what Lies and Stories were there raised to incense the People against that good King to make them take up Arms against him as an Invader of their Liberties and one that was about to make War upon them And who that is not over-partial to his own Opinions does not see that the Nation has been blown up into a flame by the lying Reports of a French League and a Supposiâ—irious Prince of Wales neither of which I durst pawn my life have the least tittle of truth in them so that this Doctrine can scarce fail almost every time it is put in practice to bring all Government to Anarchy and Confusion F. I have already in part answered this Objection at our Third Meeting but since you will urge it over again I shall in the first place admit the Matter of Fact to be as you say that the People may by some turbulent Demogogues be sometimes so far incensed as to take up Arms when there is no just Occasion but let me tell you I doubt that neither of the Instances you have given will make good your Assertion for in the first place as to King Charles the First it is said by all Writers on the Parliaments side that the King by leaving his Parliament and going to York and there taking a Guard when no Enemy was near and when the Parliament had as yet raised no Forces at all as also by his going to Hull to remove the Magazine of Arms that lay there in order to put them into the hands of an Army to make War upon the Parliament who then demanded the Settlement of the Militia to be in Commissioners of their Nomination that he thereby broke his Coronation Oath whereby he was Sworn to Govern according to Law and not by force But as for what you say as to the present juncture of Affairs I never can desire a more plain proof of the Peoples necessity of â—aking up defensive Arms since admitting that neither of the Reports concerning the French League and the false Birth of this supposed Prince be true yet I think the Nation has had sufficient Provocations to rise as one man and joyn with the Prince of Orange for the obtaining of a free Parliament to set all things right which the King 's violent illegal Administration has so much discomposed But admitting the utmost you can suppose that sometimes the people may Judge amiss as well as the King and through that mis-information may take up Arms against their Prince when there is no real Occasion shall this abuse of a right be a sufficient cause against there ever exercising of it at all I am sure this is no good Argument against the natural Right of Self defence between private persons in the state of Nature that some men do often abuse it nor can I see how upon these Grounds even Soveraign Princes may be allowed to make so much as Defensive Wars as I said but now since they may pretend that themselves are wronged and invaded or at least are like to be so when no such thing was really done or intended and so by their mis-judgment or false pretences many millions of Lives may be lost What then must no Princes ever make War at all till all the World be satisfied of the Justice of their Quarrel If so I doubt the last War of King Charles the Second made against the Dutch and this late War the King of France has now made upon the Empire should never have been by your Principles so much as begun much less carried on with so great an Effusion of Blood and the Destruction of so many Cities and Towns and whether this as well as Tyranny at home is not more often put in practice by Princes than any Resistance this Nation or all the Subjects of the World have made against such Tyranny and Arbitrary Power I leave it to your self or any indifferent Person to judge M. I doubt not but I may very well join issue with you upon this point for I think that upon those very conditions and grounds you have now laid down the Clergymen Lords Gentlemen and Commons of this Kingdom who have either come over with the Prince of Orange or have taken up Arms in defence of his Late Declaration cannot justifie themselves by any of the Instances you have given for joyning themselves with him in Arms for tho' I grant His Majesty by hearkning too much to Popish Counselâ— may have done many things which in strictness of Law cannot be justified yet since they do not strike at that which you call the fundamental constitution of the Government and has been also done without any force on the People of this Nation but hath been either transacted by Judgment of Law or the colour of it at least viz. by the opinion of all or the Major part of Judges all the Parties above mention'd ought according to your own Principles to have waited for the meeting of the next Parliament to whose determination they ought by the Law of the Land to have referred all such grievances and violations of Laws which they had to complain of and if then the King had refused to have remedied them they might have had some colour I do not say right for taking up Arms and doing what they have done whereas I cannot see how you can even upon your Principles defend the late risers from wilful Rebellion against the King And for proof of this I need go no farther than the Prince of Oranges Late Declaration which being drawn by the best advice of the Male-contents then in Holland would not fall to mention all the violations of Law which they thought his Majesties Government had been guilty of ever since his coming to the Crown and therefore not to insist upon the want of right which I conceive the Prince had to concern himself with the affairs of another Kingdom which he had no right to I shall however mention every Article in which his Highness conceives the Religion Laws and civil Liberties of this Nation to be endangered In the first
Paul Successor to Frederick Hic primus Abbas hujus Ecclesiâ—â—suti postquam Anglia Normannis penitus fuit sâ—bjugata F. I will not deny the matter of Fact in great part to be as you say but whether the English were to blame to make these Insuâ—rections or whether they were provoked to it by the Kings unreasonable severities I have not now time to dispute if it were their fault he had no doubt very good cause to do as he did and to punish such as were guilty But it was altogether unjust and tyrannical to punish the innocent with the guilty Nor could he have any right to do it as a Conqueror since by taking his Coronation Oath to deal mercifully with his Subjects and to treat both English and French with equal right he had renounced that Title and that he looked upon himself as a Tyrant if he had Governed without being Crowned or taking the same Oath as his Predecessors I shall prove to you from Abbot Broâ—ton's Chronicle the Author of which lived in the time of K Richard I. who has Col 962. these words Cumque Willelmus Dux Normannorum Conquestor Angliae Tyranni nomen exhorresceâ—et nomen Legitimi Principis induere vellet a Stigando Cant. Archiepiscopo in Regâ—ia petiit consecrari c. as But your reply that he did not shew himself a perfect Conquerour till he wâ—n throughly setled is very pleasant as if being solemnly Crowned and taking a Oath to govern Justly and according to Law and after four years quiet possession and a voluntary confirmation of the Laws of his Predecessors were not sufficient signs of his peaceable settlement upon the Throne unless you will have a King to be never setled until he has by the force of a standing Army got sufficient power to do all he designs that is to take away his Subjects Liberties and Estates at his pleasure contrary to his own Oath and the Laws he has made If those be signs of a thorough settlement pray consider whether the King that is gone away was ever thoroughly setled at this Rate tho' I confess he was in a very fair way to give us such a thorough settlement But since you date this thorough settlement from that great transaction of Abbot Frederick I am not afraid to appeal to Mat. Paris from whom you have borrowed this relation where he tells us thus That after Lanfranc was made Archbishop the K. being now strengthened with both Swords began more severely and manifestly to oppress the English who seeing it nearly concerned their very lives calling a great many together they made Edgar Atheling their Leader in whom the English placed all their hopes but among all the English Frederick Abbot of St. Albans was the chief promoter thereof being a generous Man and to be seared for his Riches and Power Therefore the K. began to be vehemently afraid left he should lose the whole Kingdom which he had gained by so much effusion of Blood and also hazard of his life and therefore being luckily taught by the Archbishops Prudence he began to act more mildly with the chief men of the Kingdom humbly proposing Tearms of Peace and with a pleasant countenance inviting them to a Treaty tho' deceitful as the end at last declared therefore the said English met him at Berkhamstead thinking no harm under the leading of Abbot Frederick where after many disputes Archbishop Lanfranc being present the K. swore upon all the Relicks of the Church of St. Albans as also upon the Holy Evangelists Inviolably to observe the good ancient approved Laws of the Kingdom which the Picus Kings of England his Predecessors and chiefly K. Edward had Established and so being pacified they all returned home very well satisfied So that you see this was the third time whereby he renounced all right of Conquest if ever he had any by swearing expresly to observed all the ancient Laws of the Kingdom since they found his Coronation Oath would not bind him besides his so solemn confirmation of K. Edwards Laws in the great Council of the Kingdom not long before M. But pray read a little farther and see how he resented this force now put upon him and whether at all he intended to keep what he had sworn or to divest himself of his Right of Conquest and therefore give me now leave to read the rest out of this Author But the K. cunningly hiding his designs within a few days after studied how to overcome and supplant those dispersed and asunder whom he could not when joined and consederate together which he performed by killing disinheriting and banishing many of them and violating the above mentioned Laws and the English being thus spoiled at pleasure and impoverisht without any legal Judgment he therewith enriched his Normans to the great provocation of his natural English subjects who had of their own accord thus exalted him So that you see he never intended to keep his Oath that was thus forced upon him for Conquerors do not love to be made Slaves to their words whether they will or no and therefore I may give you an answer both as to his Coronation Oath as also to this now mentioned from an old English Proverb that there was never any Oath but was either broken or kept more Conquerors than one have used fair pretences and made smooth promises and dealt cunningly with the People to carry on their designs and have at first taken plausible Oaths and broken them afterwards nay took them when they intended not to keep them and knew thâ—y could not and for Oath breaking Harold in his answer to Duke William when he demanded the Kingdom of him had given him a fair example that Stuâ—tum Sacramentum est frangendum many specious Oaths Vows and Covenants were contrived and taken by crafty and designing men in the late times and imposed upon the People contrary to the Oath of Allegiance they had before taken for no other ends than to cheat them into Rebellion and to make them Authors of their own slavery which was discovered too late when they were under the power of an Army and could not help themselves as I could prove at large would the time 〈◊〉 F. Before I give you a positive answer to what you have said tho' I do believe a great deal of the matter of Fact to be true as Mat. Paris hath related it either from Tradition or else from the Legier book of his own Abby yet I very much doubt whether out of hatred to this Kings severe proceedings they did not represent K. William's cruelty and severity much greater than it was for tho' I grant after this time he turned a great many more of the English Nobility and Gentry out of their Estates and put divers of them to death yet whether he did this without any colour of Law or Legal Process is very much to be doubted since we find many forfeitures mentioned in Doomesday book which had been needless
if the King had seised all the English Estates without any Legal Tryal as for example in Essex in Barnstable hundred In Burâ de istis Hidis est una de hominibus soris sactis erga Regem and this was the way of expression in the Active Voice we find in Noâ—folk Earl Ralf held such Lands Quando se foris fecit But more particularly in Cambridgeshire in Wardune Hardwin holds of Richard's Ancestors but Ralf Waders held it Die quo deliquiâ— contra Regem all which would never have been inserted could this King have taken away mens Lives and Estates without any colour of Law or Justice and therefore you may find in all the Historians of his time that after the great Plot wherein so many Norman as well as English Lords were concerned and for which Roger Earl of Hereford and Ralph Earl of Norfolk and Suffolk both Normans had conspired with Earl Waltheof and other English Lords to call in the Danes and dispossess the King yet they were convicted by a legal Tryal of their Peers and suffered death for it So that in this he distributed equal Justice to the Normans as well as the English who thereupon forfeited all their Estates and yet notwithstanding this there were some Native Englishmen still lest who tho' they had been in Arms against the King at the beginning of his Reign yet were nevertheless reconciled to him and restored to their Estates as for example Ederic Sirnamed the Forester who as Florence of Worcester tells us was reconciled to King William and accompanied him into Scotland soon after as also Herward the Son of Leofric Lord of Brunne who having lost his Estate and being Out-lawed as Ingulph tells us Took Arms against the King William and joyned himself with those in the Isle of Ely and yet after divers great Battels as well against the King as his Commanders yet at length having obtained his Inheritance by the Kings allowance he finished his days in Peace and now here were two considerable English Barons which still enjoyed their Estates notwithstanding all King William's severity and yet I do believe it will puzzle your Dr. to shew me their names in Doomesday-book so that that Book alone is not it seems a certain Rule to discover what Englishmen were then Barons or Tenants in Capite But admit all this to be true as you your self have represented it can this Kings perjury to his Subjects and breach of all Laws after so many solemn Oaths give him a right as a Conqueror over the Lives and Estates of his English Subjects and that after he had solemnly renounced his Right of Conquest by so many solemn transactions with his Subjects with whom you suppose he still made War after he had for so many years laid down his arms at this rate I cannot tell when subjects may be safe for let Kings that come to a Crown by a mixt title partly by force and partly by right take never so many Oaths to maintain the ancient constitution of the Government together with the Rights and Priviledges of the People 't is but his saying afterwards when he hath sufficient power that they were forced upon him and that he never designed to keep them and his business is done and he may then take away his Subjects Lives and Estates by this pretended right of Conquest whenever he pleases nor does this only extend to himself alone but to all his Heirs and Successors who claim under that Title let them take never so many Coronation Oaths or make never so many Declarations to the contrary since they all claim under the same divine Title of the Sword that is as you will have it receive their Crowns immediately from God and then can never forfeit them let them tyrannise to the utmost degree imaginable for you have provided them with two easie and pleasant excuses that all promises are either broken or kept and Stultám Sacramentum est Frangendum and I cannot but smile to see what an excellent excuse you have found out for all the breach of Oaths and Covenants of those engaged in the late Civil Wars since they might very well plead they had so many Royal Presidents for so doing as sufficiently authorised it unless you will have that to be Perjury in Subjects which must be a Divine Prerogative in Kings And therefore let me tell you I am very glad for your own sake that there is no body here but you and I since all the company would have cryed out and said that this way of arguing were to make open War not only upon all the Laws and Priviledges of this Nation but also to put the King and People in a state of War against each other for if he once declares by such Overt Acts as these of King William's that he will not be tyed neither by his Coronation Oath nor by any Laws he has made I doubt their Oaths of Allegiance will not long bind them neither and they will be very ready to reply that whatever power began and is continued by force and violence may also be cast off by the like means and when a King and his People are brought once into this state it is easie to foretell what will be the event either he must turn out or they must be all Slaves and I wish it was not owing to such Jesuitical flattering Councils as this that the King first lost the Affections of his People and then his Crown since Father Peters himself with the rest of the Jesuits and Arbitrary Ministers of the Cabal could never have instilled worse Principles than these therefore I pray for the future either get better reasons or keep those to your self But God be thanked both King Iames and K. Charles the First had much better thoughts of the Laws and Liberties of the Nation since the former hath solemnly declared in a Preamble to the second Act of Parliament in the first year of his Reign That not only the Royal Prerogative but the Peoples security of their Lands Livings and Priviledges were secured and maintained by the antient fundamental Laws Priviledges and Customs of this Realm and that by the abolishing or altering of them it was impossible but that present confusion will fall upon the whole state and frame of this Kingdom And his Son was of the same opinion in his first declaration at the beginning of the late Wars The Law says he is the Inheritance of every Subject and the only security he can have for his Life or Estate and the which being neglected or disesteemed under what specious shew soever a great measure of infelicity if not irreparable confusion must without doubt fall upon them M. If I had no love at all for the Government and Liberties of my Country as I thank God I have a great affection for both yet should I not have the Impudence to contradict the sense of two Kings and a Parliament neither have I so
ever since the Crown became Elective as much as ever it was before Lastly I think I have sufficiently made out that King Iames hath violated the Fundamental Constitution of the Kingdom in those several Instances I have already given and am also ready farther to make it out if you require it so that this being the case I can see no reason to the contrary why the Crown or Legal Authority should not become forfeited to the People who at first conferr'd this Power on the first King of the West Saxons M. I must confess you have done your indeavour to prove those Assertions you have now laid down but I am not yet satisfied that you truly have done it But however not to run into unneccessary disputes and repetition of what has been already argued and which I see you are too obstinate to recede from I shall now only oppose what you last asserted concerning the Crown 's being forfeited to the People upon the King 's pretended Breach of the Original Contract for besides the absurdity of making the Crown forfeitable to the People who are and ever were Subjects and not Princes or Governours whereas all forfeitures still supposed a Right in the persons who are to take it as superior to the party forfeiting there is also a greater error and mistake in your supposing all Civil and Legal Power to be deriv'd from the People and by them conferr'd upon their Kings or Governours whereas the Scriptures plainly affirm and all Divines so interpret them that all Civil Power and Authority is wholly from God and not from the people who even in Elective Kingdoms though they may name and design the Person whom they will have to be their King yet is the Power wholly from God who alone hath right to Govern Mankind and therefore as the people do not confer the Power so neither can it be forfeitable to them from whom it was never derived and so much I told you at the Conclusion of our last Meeting though I had not then time fully to urge this Argument as now I have and this will press the more upon you because you your self have already granted at several Meetings that all Civil and Regal power is deriv'd from God and not from the people and therefore your notion of a Prince or Monarchs forfeiting to them is wholly false and precarious F. If this be all that you have to object against our Assertion of the King 's forfeiting his Royal Authority to the people I think I can easily answer those Objections for as to the first absurdity which you lay to our charge how an Authority can be forfeited by a King or Superior to his Subjects or Vassals the absurdity lies on your side for I do not suppose this forfeiture to be made to the people as Subjects but to them consider'd as a Community of Masters of Families and Freemen who as the Descendants and Representatives of those who made the first King upon a certain Contract or Condition upon the non-performance of this Original Contract do thereupon cease to be Subjects as a Servant ceases to be so and becomes again sui furis upon his Masters non-performance of the bargain made between them and so this Authority thus forfeited returns to the Community of Masters of Families and Freemen who once conferr'd it upon the first King nor needs this forfeiture any more suppose a Superiority in the persons who are to take it over the Prince that commits it than when by the Law of England Tenant for Life aliens in Fee He in reversion may immediately enter upon the Estate as forfeited to him though the person that held it was perhaps his own Father M. But is not this then to recede from your former concession whereby you grant that Civil Authority is deriv'd from God and not from the people at all whereas you now suppose them the only Original or Fountain of Civil Authority and from them to be deriv'd to all Princes and Monarchs F. This difficulty wholly proceeds from your not rightly understanding the manner of God's conferring Civil Power or Authority upon those that exercise it For the better clearing of which difficulty pray let me ask you two or three Questions First pray tell me whether you are still of the Opâ—â—ion that Monarchy is so much of Divine Institution as that no Government but that may be lawfully Instituted by Men M. I will not now affirm that Monarchy is of Divine Right but this much I may safely over by what we can find in Scripture that God instituted no sort of Government but that and he did not make Saul or David to be only like those Equivocal Kings who might be deposable at the will of the Estates but conferr'd part of his own Divine Power upon them without any conditions or limitations whatsoever but as for those Governments call'd Common-wealths though without doubt they are not of Divine Institution yet certainly the power of Life and Death which they exercise is wholly from God since as I have already said a Man not having power over his own life cannot confer that upon another which he had not in himself F. Well I am glad we are so far agreed that Common-wealths are endued with real Authority or Majesty as well as Monarchs and that from no less Author than from God himself so that whatever you have said concerning God's Institution of no other Government than Monarchy is either not true or not to the matter in hand for in the first place I have already prov'd at our thiâ—d Meeting that the first Government God Instituted among the Jews was an Aristocraâ—y under Moses Ioshua and the Judges reserving the Kingly Power over them to himself And though it is likewise true that God divested himself of great part of this Kingly Power when he anointed Saul King yet God's Institution of Monarchy among the Jews do's not render it unlawful for other Nations to institute such other sorts of Government as may best suit with the Geâ—ius of the people and the publick good and safety of the whole Community But as for your Argument whereby you would prove the necessity of all Civil Powers being deriv'd from God because otherwise they could not be endu'd with the power of life and death over their Subjects I have sufficiently taken off that difficulty at our second Meeting and shewn you that a Man in the state of Nature has not only power over another Man's life but also over his own not only to hazard it but also to lay down or lose it for some greater publick benefit to Mankind which is also acknowledged by the Apostle Paul himself For a good man some would even dare to die But further to shew you the absurdity of this Principle let me put you this case suppose that a Kingdom or Common-wealth were so instituted at the first that no Subject or Freeman should suffer death for any Crime how great soever which that
I do not suppose as a thing impossible it was for divers Ages exercised in the Roman Common-wealth wherein no Civil Magistrate could lay any greater punishment upon a Roman Citizen than banishment or deportation And if that Copy we have of the Laws of King William the first be authentick it is by the 67th Law in his Charter ordain'd That no English or French Subject should suffer death for any Crime whatsoever but only be punisht either by pecuniary Fines Imprisonment or else by loss of Ryes Hands Feet or Members which Law though I do not say was ever observ'd yet it shews it was then supposed to be both possible and lawful Now if this could be so there would be no necessity of supposing the Authority of the Common-wealth of Rome or of King William I. to have been deriv'd from God since they had renounced and refused the great Character thereof viz. the inflicting capital punishments but if for all that they still conâ—inued to be Lawful Civil Governments then it is evident that this power of life and death is not that which alone constitutes a Civil Power and makes it owe its Original to God But to return to what your notion concerning this power of life and death hath made me digress from pray let me â—sk you another Question After the Expulsion of King Tarquin and before the Common-wealth of Rome was form'd where was the Supream Authority lodged M. Why in the same Body it was afterwards the people of Rome comprehended under the Patritions and Plebtians that is the Nobility and Commons who yet retained the power of life and death over those of their own Children and Slaves though they communicated a great part of their power to the Senate and Consuls F. Very well Was this Authority they so conferr'd on the Senate and Consuls the same which they themselves could have exercised or was it any new Authority immediately deriv'd from God and created for that purpose M. I do not think it was any new created Authority but only a part of their former power which they so made over to the Senate and Consuls since they reserv'd one great part of it viz. the Legislative Power wholly in themselves but however this power which the Fathers of Families and Freemen among the Romans had over the lives of their Children and Slaves as also over others who were declar'd publick Enemies was deriv'd wholly from God yet there arose likewise a new power which these Fathers of Families were not invested with before viz. that of making Laws as also of War and Peace all which powers were deriv'd from God for the common good and defence of the whole People or Community F. Herein I also agree with you but then mark what follows it then plainly appears that the natural Subject of Civil Authority was the Fathers of Families and Freemen of Rome and that what share thereof was committed to the Senate and Consuls it was wholly personal and as their Representatives this being so pray answer me another Question when the Senate and People of Rome did afterwards confer their whole power upon the Roman Emperors by that Law mention'd in your Institutions Lex Regi was there then created or produc'd any new Authority from God to the first Emperor or was it the same Authority or Majesty which the Senate and People were endued with before for either it must be the same or else God must create a new parcel of this Royal Majesty or Authority wherewith to endue this first Emperor which if you suppose I can shew you a great many difficulties and absurdities that will follow from this Opinion for then I might ask you whether this Royal Majesty be like the Stoicks Anima mundi whose parts are distributed among all the Kings in the World or whether each King has his particular Majesty to himself or whether the King dying his Majesty also dies with him or whether it exist without him as the Soul do's when separated from the Body and by a certain kind of Metempsychosis is transferr'd to the new Monarch M. I shall not flick at present to affirm that this Authority or Majesty of the Roman Emperors was originally deriv'd from God though not immediately but by the mediation of the people of Rome as his Instruments especially ordain'd for the derivation of this Imperial power F. Well then I see you and I are at last agreed for I suppose all Civil power to be so deriv'd from God to the people and by them as an Instrumental Cause convey'd to the person whom they agree to make their King But if this were so in the Roman Common-wealth why are not all the rest of the Nations of the World indued with the like priviledge so that no man may justly make himself King over them without their Election or Recognition at least M. Perhaps in those Nations where the people have from the first Institution of the Government retain'd the whole Civil power in themselves or else by the Extinction of the Royal Family they became possest of it this power â—â—y afterwards by them be transferr'd or made over to one single person or more but this can by no means hold in divers other cases where God immediately bestows a Civil Power or Authority without the consent of the people as it is in the case of Kingdoms acquired by a Conquest in a Just War for as to Unjust Wars or Conquests I freely own they confer no Right at all but since you will not I suppose deny that such a Rightful Conquest confers an Absolute power on the Conqueror over the Lives and Estates of the Conquered as also an Obligation in them to submit to and obey the Conqueror hence must arise a new Civil power without any consent of the people intervening which Authority since no man can confer it upon himself must necessarily be immediately conferr'd by God since as I said before the people are only passive and have no hand at all in the conveying of it and this is the more remarkable because I suppose you will not deny but that where one Kingdom or Empire has owed its beginning to the Election or Consent of the people I could name ten that have begun from Conquest So that it is evident the people are very rarely the Efficient Causes of Civil power F. Though this Question concerning Conquest do's not immediately concern our Kings who as I have already proved do not owe their Regal Authority to Conquest but to the consent of the People Yet since the Title to a great part of our Kings Dominions begun at first from Conquest I shall now say something of it First then you grant that only Conquest in a just War can confer a Right to the Peoples obedience And therefore since the greatest part of the Governments have commenced from unjust Conquests it will therefore follow that the Right of such Princes to those Kingdoms Territories so unjustly acquired could not owe
carried on with great vigour and though I grant that after divers changes of fortune the Empress was at last forced to quit the Kingdom yet her Son Duke Henry did not fail to continue his claim to the Crown in right of his Mother and coming over into England renewed the War against King Stephen which was at last compos'd by an agreement between them which as Matthew Paris and Mat. Westminster relate it was thus That King Stephen acknowledged in an Assembly of Bishops and other great men of the Kingdom that Duke Henry had an Hereditary right to the Crown and the Duke thereupon as kindly granted that King Stephen should peaceably possess it during his Life so that it is certain till this agreement even by his own acknowledgment he had no right to it and though I grant that the Empress Maud for some reasons we are not able to give a true account of never took upon her the Title of Queen yet it is very certain that she acted as such during all the time she was in England receiving Homage and Fealty from those Lords and others who came over to her side and also granting Charters and conferring Honours by the Title of Anglorum Domina which shews she look'd upon her self to be the Supream Governess of the Kingdom though not under the Title of Queen so that I think you can find nothing in this transaction that can support your Notion of Vacancy F. Pray give me leave to answer what you have now said before you proceed farther first I cannot excuse neither King Stephen for taking the Crown nor the Bishops and Great men that set it on his Head from perjury and injustice since the Emperess Maud had been before in a Common-Council of the whole Kingdom declared the Lawful Successor and that Fealty had been sworn to her as such All that I insist upon in this affair is this that Quod furi non debâ—t factum valet And though this ought not to have been done yet when once done did stand good and therefore if whilst the Throne was vacant King Stephen by the Election and Consent of the Bishops and Great Men of England was placed therein he was there looked upon as true and legal King as long as he lived And this was the reason why the Emperess never took upon her the Title of Queen of England no not when she had taken King Stephen prisoner and one would have thought might have justly done it as a Conqueress But yet she forbore it because that Title was not then to be taken without the consent of the Great Council of the Kingdom which I cannot find she ever held her party being not great enough to make one And though I cannot deny but that she might in some particulars exercise some prerogatives of Royal Power yet this was only upon a pretence of her being Elected and Stiled by this Title of Lady of the English in a Synod of the Clergy at Winchester by the procurement of Henry the then Bishop of that See and the Popes Legat who was now turned against his brother King Stephen For she was never generally received nor own'd as Queen nor did she ever exercise those great prerogatives of Sovereign Power viz. Calling of Great Councils making of Laws raising of Taxes or Coining Mony But whereas you represent King Stephen to have been Elected but by a very small party of the Bishops and Noblemen of England yet it is very much to be doubted whether William of Malmesbury who Dedicated his History to Robert Earl of Gloucester King Stephens greatest Enemy being no friend to his Title is to be altogether credited in this matter For Henry of Huntington who lived not long after tells us expresly that Omnes qui Sacramentum juraverant tam Praesules quam Consules Principes assensum Stephano praebutrunt hominium fecerunt And it is also as certain that the Earls of Gloucester and Chester the two greatest men of England did then likewise swear Allegiance to him and own his Title though they afterwards revolted from him again Yet could they do nothing considerable against him till his own Brother the Bishop of Winchester revolted also from him upon pretence that the King had violated the Rights of the Church And though it is true that after the Empresses departure out of England Duke Henry her Son came over and prosecuted the War against King Stephen yet could it not be in his own but his Mothers Right who was then alive Nor could the agreement you mention be made between the King and the Duke as having then a right to the Crown in his own Person since we read of no concession the Empress his Mother had made to him of it And therefore whatever Title Henry could claim thereunto Upon the death of King Stephen it was wholly due to this Kings adopting him for his Son and declaring him his Successor upon condition that he himself should enjoy the Crown during his life which agreement was solemnly confirmed and ratified and that by Oath in a full Assembly of all the Bishops Lords and great men of the Kingdom For Ordericus Vitalis in his Annals p. 989. Is very express in the manner of this great Transaction in these words Sic tamen in praesentiarum ipse Rex Caeteri Potentes Sacramento â—irmarent quod Dux post mortem Regis si tempore eum superviveret pacifice aâ—â—que contâ—adâ—ctione Regnum haberet therefore as long as the Empress Maud lived who died after her Son King Henry's coming to the Crown ' â—is plain he could have no Hereditary Right to it notwithstanding what Matthew Paris and Matthew Westminster who lived long after these Transactions have said to the contrary and therein are to be looked upon as Authors that speak their own sense rather than that of the Writers of those times M. I confess what you have urged in this matter concerning Duke Henry's being admitted as Heir of the Kingdom during the Life of his Mother the Empress Maud seems to the purpose and there could be nothing said against it but that this was done by the Concession of the Empress her self who surrender'd all her pretentions to her Son tho' we have no particular account of it or else which is more likely in my opinion that the Government of Women being then unknown in England and Normandy and consequently odious to the English and Norman Nobility and for which reason chiefly they had before set this Empress aside they thought they did in effect perform their Oath to her when they acknowledged her Title in her Son Duke Henry who is said by the Historians of those times to have succeeded Stephen Iure Haereditario which could not at all agree with your notion of his receiving his Title from the Consent or Election of the great Council But I shall pass over this and come to your next instance of the Vacancy of the Throne which you pretend
permit his Son to Reign in his stead which though with some reluctance he at last agreed to and thereupon Prince Edward took the Crown not by Election as you set forth but by the cession and resignation of his said Father as appears by the account which this King gave of it to the Sheriffs of all the Counties of England within a few days after his taking upon him the Crown which Writ or Letter is still to be seen among the Roll's in the Tower and is also published in Walsingham as a Proclamation which because it will give very great light in this matter I pray now read it at length Rex vicecom Ebor. Salutem quia Dominus Edwardus nuper Rex Angliae pater noster de communi confilio assensu praelatorum Com. Baron Alior Magnat necnon Communitat totius Regni praedict spontanea voluntate se amovit a Regimine dicti Regni volens concedens quod nos tanquam ipsius primogenitus haeres Regni gubernationem regimen assumamus nosque ipsius patris nostri bene placito in hac parte de consitio avisamento Praelator Com. Baron Magnat Communitat predict onnuenâ—es pubernacula suscepimus dicti Regni fidelitates Homagia ipsorum Praelitor Magnat recepimuâ— ut est moris teste Rege apud Westmonast 29. Ian. So that you here see this King takes no notice of the deposition of his Father or the Election of himself but only that by the Common Council and Assent of the Prelates Earls Barons c. The King his Father had by his own free Will removed himself from the Government of the Kingdom and that therefore he had by the good Will of his said Father and by Council and Advice of the said Prelates Earls c. taken the Government of the said Kingdom upon him But King Edward the 3 d. being dead his Grandson Richard the 2 d succeeded him having been before recognized by Act of Parliament as Heir Apparent to the Crown in his Grandfather's Life Time immediately upon the Death of his Father Edward the black Prince so that he succeeded to the Crown though an Infant and having great and powerful Uncles then alive and though by his ruling too Arbitrarily and being too much govern'd by Flatterers be became hated of his Subjects and thereupon gave occasion to Henry Duke of Lancaster whom he had before banished to come over and take the Kingdom from him without striking a stroak and having taken the King Prisoner call'd a Parliament in his name who took upon them most unjustly to Depose King Richard tho' 't is true he also made a solemn resignation of it by his own seeming consent but it is certain it was forced from him for fear of worse usage if he refused it F. Pray give me leave to answer what you have now said before you proceed farther in this History of the Succession In the first place I shall not deny but that from the Reign of King Edward I. the Crown has been always claim'd tho' not constantly enjoy'd by right of Blood yet that the custom was otherwise before I think the Instances I have given from the time of your Conquest are more than sufficient it is likewise as certain that this Succession by right of Blood was never setled by any positive Law and therefore must be purely derived from that Tacit consent of the People called Custom Secondly That the two Houses of Parliament have often notwithstanding this claim placed or fixed the Crown upon the Heads of those Princes whom they very well knew could have no Hereditary Right to it Thirdly That such Princes have been always obeyed and taken for lawful Kings all their Laws standing good as this day without any confirmation by their Successors tho' they pretended to a better Title Now if I prove every one of these three propositions I think the case will be very plain that though the Crown has been claim'd and often enjoy'd by right of blood yet hath it been held near as often otherwise since that time so that the Succession to it hath been still declar'd under the direction and limitation of the Present King and Parliament This being premis'd I shall proceed in the next place to answer what you have said concerning King Edward the first 's being only Recogniz'd and not Elected King by the Parliament it is plain from this History that the Great Council still maintain'd their anâ—ient right of assembling upon the death of the King and of Judging who should be his Successor and that without any summons from him which will serve to justifie as do all the other instances aforegoing that the late Convention meeting and setling the Crown without any Writs or Authority derived from King Iames was no new thing but that they have therein done no more than what hath been antiently practised in like cases and tho' 't is true the words in Walsingham is recognoverunt yet there is also other words which seem to intimate that it was then in the power of the Great Council whom to declare for lawful Successor the words are Paternique Successorem honoris ordinaverunt that is they ordain'd or decreed him Successor of his Fathers Dignity which sure is somewhat more than a bare Declaration of an undoubted precedent Right and what power the Great Council was then looked upon to have in the ordering of this Kingdom appears by that Writ of Dedimus for all mens taking the Oaths of Allegiance in the Country which is still to be seen in the close Rolls and begins thus Quia defuncto jam celebris memoriae Domino Henrico patre nostro ad nos Regni Gubernaculum successione Haereditaria Procerum Regni voluntate fidelitate nobis praestita sit devolutum c. where besides the Hereditary Succession the good Will and Fidelity of the Great Men is reckon'd as one of the means by which the Kingdom came to him and that this course was also observed upon the accession of his Son Edward the 2 d. to the Crown seems likewise as evident from the same Author who tells us in the beginning of the Life of this Prince that he succeeded his Father King Edward non tam jure Hereditario quam unanimi consensu Procerum Magnatum which observation had been altogether needless had an unalterable Hereditary Right to the Crown been the setled But as to what you say of King Edward the 3 ds Right whilst his Father was Living to have been wholly due to his resignation tho' the place I cited out of Walsingham be express in this point yet against this you urge a Writ or Declaration as also a Proclamation of this Kings wherein he thus sets forth his Title viz. That by the Voluntary resignation of King Edward his Father and by the Council and Advice of the Prelats Earls and Barons c. he had taken upon him the Government of the Kingdom and consequently that
the Nation from his Oppression though the Prince was pleas'd to accept it upon those terms expressed in the late Declaration of the Convention and upon his free promise to preserve preserve our Religion Laws and Liberties which he has since also confirm'd by his Coronation Oath But as to what you say that the Prince made the Kings Army desert him and wrought the People into hatred of his Person by lying Stories and mean Arts is altogether untrue since I know of no Reports he made of the King or his Government but what are in his first Declaration and that is certainly true in every part of it and as has been justified by the express Declaration of the Convention in every particular except that concerning the Prince of Wales which I confess is left still undecided because as I have already proved it is impossible to give any certain judgement in it unless the Witnesses as well as the Infant himself could be brought over hither nor doth the Prince in his said Declaration say any more concerning that business than that there are violent suspicions that the pretended Prince of Wales was not Born of the Queen but for the report of the Secret League with France for the extirpation of the Protestant Religion as there is no such thing in his Highnesses Declaration so the spreading of it cannot be laid to his charge since he never gave it out as I know of yet there are certainly great presumptions and too much cause of suspicion that it may be so as I proved at our last Meeting But though you will not allow the Prince the Title of our Deliverer yet I am sure the greatest part both of the Clergy and Laity of the Church of England were once of Opinion that King Iames's violations both upon our Religion and Laws were so great that nothing could preserve the Kingdom from a total Subversion in its Establisht Religion and Civil Constitution but his Highnesses coming over and most of the Bishops were of that Opinion who now the Government is setled refused to take the Oath of Allegiance to their present Majesties But to answer what you say that the manner of Henry the IV ths and Henry the VII ths coming to the Crown doth not at all agree with this Case of King William because they claimed by right of blood which you say King William cannot do that is not so in respect of the Queen who has certainly a right to succeed her Father by right of blood in case the Prince off Wales be not the true Son of the Queen and untill he can be proved so we must at present look upon him as if he were not so at all so that the Convention hath done no more in setling the Crown upon the King during his Life than what the Great Council of the Kingdom have frequently done before upon other vacancies of the Throne as I have proved from the Examples of William Rufus and Henry the First King Stephen King Iohn and Henry the Third And it is very hard to suppose the whole Nation to have been guilty of Perjury and Treason upâ—n their Swearing to and Fighting for those Princes after they were so Solemnlâ— Elected Crowned and Invested with the Royal Power But as for Edward III. his first and best Title was from the election of the Great Council of the Kingdom who I doubt not but if they had found him unworthy of the Royal Dignity by reason of folly or madness or Tyrannical Principles would have set him aside and have made his youngâ—â— Brother King a Protector to govern in the King's Name with Royal Power having never been known in England till the Reign of Henry the VI th but as for Henry the IV th notwithstanding his claim by right of Blood I have already proved that the Paâ—liament by their placing him in the Throne did not at all allow it nor is any such Right recited in the Act of the 7 th of Henry the IV th which by the Crown is entail'd upon that King and his four successive Sons And though it is true Henry the Seventh also claim'd the Crown by right of Inheritance in his Speech in Parliament yet they were so far from allowing it that they do not so much as mention it in that Act of Setlement which as I have recited they made of it upon that and the Heirs of his Body And therefore I think I may still maintain that the Convention hath done nothing in the present Setlement of the Crown but what hath been formerly done upon every vacancy of the Throne either by deposition or resignation of the King or Abdication or Forfeiture of the Crown as in the case of King Iames in which the Convention have done no more than exercised that Power which has always been suppos'd to reside in the great Council of the Kingdom of setling the Crown upon such a Prince of the Blood-Royal as they shall think best to deserve it Thus much I have said to preserve the Antient Right of the Great Council of the Nation But to put all this out of dispute I have been credibly inform'd that the Princess of Denmark her self did by some of her Servants in both Houses as well of the Lords as Commons declare upon a great Debate that arose about securing her Highnesses Right to the Crown immediately after her Sister the Queen that her Highness had desired them to assure the Convention that she was willing to acquiesce in whatever they should determine concerning the Succession of the Crown since it might tend to the present setlement and safety of the Nation which I think is a better Cession of her Right to his present Majesty than any you can prove that the Empress Mawd made to her Son Henry the Second or than the Countess of Richmond ever made to her Son Henry the Seventh M. You have often talked of this forfeiture and extravagant Power of your Convention by whom you suppose they are not obliged to place the Crown upon the head of the next Heir by Blood which I shall prove to be a vain Notion for if there be an absolute forfeiture of the Crown the Government would have been absolutely Dissolved for since there is no Legal Government without a King if the Throne were really vacant and that the People might place whom they pleas'd in it yet the Convention can have no Power to do it as their Representatives since upon your suppos'd dissolution of the Original Contract between the King and the People there was an end of all Conventions and Parliaments too And therefore if a King could have been chosen at all it ought to have been by the Votes of the whole body of the Clergy Nobility and Commons in their own single Persons and not by any Council or Convention to represent them since the Laws for restraining the Election of Parliament-men only to Freeholders are upon this suppos'd Dissolution of the Government altogether void and
happen sometimes to abuse yet I suppose no person living hath any right in that state to resist him in the Execution of it much less to call him to an account or punish him for the Male-administration of his Power And you have granted that the Husband in the state of Nature hath a power of life and death over his Wife if she murthers her Children or commits any other abominable sin against Nature and that then she may be justly cut off from the Family and punish'd as an Enemy to Mankind and so certainly may his Children too But what need I say any more of this Subject when you have not as yet answered my former Arguments concerning the absoluteness and perpetuiry of this Conjugal Subjection and that which will likewise follow from it the constant service and subjection of Wives and Children to their Fathers in the state of Nature Therefore pray Sir let us return again to that Head and let me hear what you have to object against those Reasons I have brought for it F. I beg your pardon Sir if I have not kept so close to the Point as I might have done but you may thank your self for it who brought me off from what I was going farther to say on that Head by your discourse of Passive Obedience and Non-Resistance and I know not what strange unintelligible Power of Life and Death conferred by God on Adam as a Husband and a Father But first give me leave farther to prove that this subjection of the Wife is neither absolute nor irrevocable For proof of which I shall lay down these Principles 1. That the Wife in the State of Nature when she submits her self to the power of her Husband does it to live as happily as she did before oâ— rather to enjoy more of the comforts of life than in a single State 2. That therefore she did not renounce either her own happiness or Self-preservation 3. Neither did she make him the sole and absolute Judg of the means that may conduce to these ends for if this were so let him use her never so cruelly or severely she could have no cause to censure him or complain in the least against him 4. If she have not so absolutely given up her Will to his she is still Judge when she is well used by him or else so cruelly that it is no longer to be endured And therefore if such a Husband will not allow his Wife sufficient Food and Raiment and other necessaries or that he uses her cruelly by beating or other punishments or hath endeavoured to take away her Life in all these cases in the State of Nature and where there is no Superior Power to complain or appeal to she may certainly quit him and I think she is not bound to return to co-habit with him again until she is satisfied he is sorry for his former cruel Treatment of her and is resolved to make amends for the future But whether this Repentance be real or not she only can be Judge since she can only Judge of her own happiness and the means of her preservation And the end of Matrimony being for their mutual happiness and help to each other if he have broke his part of the Compact she is then so far discharged from hers and consequently in the meer state of Nature which is that we are now talking of the Vinculum Matrimonii as you Civilians term it will be likewise dissolved So likewise such a Husband for no just cause or crime in the Wife but only to be rid of her should endeavour to take away her life as suppose to strangle her in her sleep or the like no doubt but she may notwithstanding your Conjugal Subjection resist him by force and save her life until she can call in her Children or Family for her rescue and assistance who sure may also notwithstanding this absolute Daspotick Power you place in their Father or Master rescure her from his rage and malice whether he will or not Nay they are bound to do it unless they will be Accessaries to her Murther M. These are doubtful Cases at best and do very seldom happen and a Husband can scarce ever be supposed to be so wicked as to hate and destroy his own Flesh and therefore we need not make Laws on purpose for Cases that so rarely happen F. Rarely happen I see you are not very conversant at the Old Bayly nor at our Countrey Assizes where if you please to come you may often hear of Cases of this Nature and I wonder you that are a Civilian and have so many Matrimonial Causes in your Spiritual Courts brought by Wives for Separation propter Saevitiam c. Should doubt whether Husbands do often use their Wives so ill that it is not to be endured But if the Wife have these Privileges pray tell me why the Children shall not have the same according to your own Maxime of partus Sequitur Ventrem since the Subjection of Children must be according to your own Principles of the same natere with that of the Mother and then pray what becomes of this absolute and perpetual Subjection you talk of M. Yet I hope you will not affirm but that Children are under higher obligations of Duty and Obedience to their Father than a Wife is to her Husband with whom perhaps she may in some cases be upon equal terms but Children can never be so in respect of their Father to whom they are always inferior and ought to be absolutely Subject in the state of Nature that is before Civil Laws have restrained Paternal Power F. I thank you Sir for bringing me so naturally to the other Head I was coming to and I agree with you in your other Maxim of Quicquid ex me â—xore mea nascitur in potestate mea est yet not in your sense For iâ— I should grant that the Father's Power over the Child commences from his Power over the Mother by her becoming his Wife and submitting her self and consequently all the issue that should be begotten of her to her Husband's Power yet as I have proved already in case of the Wife so I think I may affirm the same in that of the Children That they are not deliver'd by God so absolutely to the Father's Will or disposal as that they have no Right when they attain to years of Discretion to seek their own happiness and preservation in another place in case the Father uses them as Slaves or else goes about to take away their Lives without any just cause since when Children are at those years I think they are by the Laws of Nature sufficient Judges of their own happiness or misery that is whether they are well or ill used and whether their Lives are in danger or not by their Father's Cruelty For tho' I grant that Children considered as such are always inferior to their Parents yet I must likewise affirm that in another respect as they are men and
make a part of that great aggregate body of mankind they are in all points equal to them that is as the Parents have a right to Life Happiness and Self-preservation so have they likewise and consequentially to all necessary means thereunto such as Food Cloaths Liberty I mean from being used as Slaves which Principles if true will likewise serve for a farther proof against that absolute Property and Dominion you supposed to be conferred on Adam over the Earth and all things therein exclusive to that of his Wife and Children For if they had a right to a Being and Self-preservation whether he would or not so had they likewise to all the means necessary thereunto and he was not only obliged to provide Food and Raiment for his Children whilst they were unable to do it for themselves but also when they grew up to Years of Discretion they might take it without his assignment and this by Virtue of that Grant in Genesis I before quoted And God said Gen. 1. viz. to the Man and the Woman and in them to all mankind then in their Loins Behold I have given you every herb bearing seed which is upon the face of the Earth c. Behold to you it shall be for meat So that sure you were too rash in affirming with Sir R. F. That a Son a Slave and a Servant were all one at the first For I hope I have proved the Father doth not acquire any absolute Property in the person of the Son either by his begetting him or bringing him up for then I grant a Son and a Slave would be all one But if you please better to consider it you will find that Fathers were never ordained by God for perpetual Lords and Masters over their Children but rather as Tutors and Guardians till they are of Years of Discretion and able to shift for themselves God having designed the Father to beget and bring up his Child nor for his own interest or advantage only but rather for the Child's happiness and preservation which by the Laws of God and Nature he is bound to procure For as it is the Son's Duty never to do any Action that may make his Father repent his begetting or bringing him up so on the other side the Father ought not to Treat his Son so severely as to make him weaay of his Family much less of his Life It is the Apostle's Precept Ephes. 6.4 Parents provoke not your Children to wrath which certainly he knew they were apt to do or else that precept had been needless Now pray tell me if Adam had used one of his Sons whom he loved worse than the rest so cruelly as to make him a Slave instead of a Son and when grown a Man should have put him to all the servile and hard labour imaginable with scarce Victuals enough to live upon or Cloaths to cover him What must this Son have done Born all patiently Or else do you think it had been a damnable sin if he had fled into the Land of Nod to Cain his elder Brother M. To answer your Question I think in the first place it had for I do not only take Cain to have been the first Murderer but Rebel too and in the next place this Question is needless for it can scarce be supposed that ever Adam or any Father can be so wicked and ill-natur'd as to use a Son thus cruelly without some just occasion but if he had I think he ought to have endured any thing from his Father rather than have left him without his leave since I cannot see how Children can ever set themselves free from their Father's Power whether they will or no. F. If that be the condition of Children they are then instead of Sons as absolute Slaves as any in Turkey whenever their Father pleases But you have already granted that Fathers ought not to use their Children like Slaves nor to sell them for such to others And tho I have no great kindness for Cain yet I know not what warrant you have to call him Rebel I am sure neither the Scripture nor Iosephus mention his going to the Land of Nod as an offence committed against his King and Father Adam but rather as a piece of compliance or obedience to God's Sentence who had made it part of his Curse so to do M. I shall not much trouble my self whether Cain was a Rebel or not I only tell you what some Learned men have thought of his quitting his Country but as for other Children tho I grant their Fathers ought not to use them like Slaves yet if they should happen to do so I think such Children ought to bear it as a Judgment inflicted by God for their Sins and should not by any means set themselves free tho their Fathers use them never so severely since it is God's will they should be Born and continue under the power of such severe Fathers F. But pray Sir tell me what if this Son had fallen into the power of a Stranger who would thus make a Slave of him Was he likewise bound to bear this as a punishment from God for his Sins and might he by no means set himself free Since this could not happen without God's permissive Providence at least and I think you will sâ—arce prove it more in the Case of the Father unless you will allow God to be the Author of Tyranny and Oppression M. I Grant that a Man that is made a Slave to a Stranger by force without just cause given by him may set himself free by what means he can But I deny he hath the same Liberty in respect of his Father since the Father's power over him is from God and so is not the Stranger 's F. What power of the Father do you mean That of making his Son a Slave or of using him as a Father ought to use a Son The latter of these I very well understand to be from God but not the former And if the Father hath no such power from God I cannot see how it can be any Act of disobedience in a Son to look to his own Liberty and Preservation since Cruelty and Tyranny can never be Prerogatives of Paternal Power as you your self confess M. I grant indeed a Father hath no such Power from God to treat his Son thus cruelly but if he does I say again That God having ordained the Son to be absolutely subject to his Father he must endure it let the consequence of it be what it will And I suppose you will not deny but that in case of necessity as when a Father hath not wherewithal to nourish and breed up his Children he may sell or assign his interest in them to any person who will undertake to provide for their Nourishment and Education and that the Children so sold or assigned do thereby become absolute Servants to the person to whom they were thus assigned as long as they lived and why this should be
insurrections made him use all the means he could to prevent it for the future so that at the most they were but temporary constitutions and did not last long nor could this Law of the Converâ—eâ— Bell be any badge of slavery on the English since we find the same custom to have been used in Scotland whom you will not say are a Conquered Nation nor do I find the Normans after they came over were any more exempted from this Law than the English Natives but I much wonder you should reckon the Laws of Decenaries or Tythings among the badges of Norman slavery since if you have read any thing in our Saxon Laws you will find as Ingulph tells us that K. Alfred first appointed ut omnis indigena lâ—galis in aliqua centuria decima existerit si quis suspectus de aliquo latrocinio per suam centuriam vel decariam condimnatus paenam demeriâ—am incurreret So that whatever other Laws you find either of our Saxon or Danish Kings or else among those of K. William concerning Triburghs and Tythingâ— It was only to confirm or re-inforce this Ancient constitution but that not only the meanest sort of Fâ—â—emen but the greatest and best Nobility and Gentry were subject to this Law of Tythings may appear by that Law I have already quoted of King Knutes whereby every Free-holder was to have his Family in his Pledge that is was bound to answer for him to the K. and if he were accused to have let him run away by his consent he was to purge himself by his own Oath and also the Oaths of five other Thanes that he was innocent so likewise the Laws of K. Edward confirmed by K. William are very particular on this Subject that all Arch-bishops Bishops Earls and Barons should keep their Knights and Servants there mentioned in their Frithborg that is in their Franâ— Pledg whereof the Lords themselves were to be the sureties aâ— appears by what follows viz. that if any of them offended their Lords should be obliged to do right in their Courts and to the same purpose is the 49th Law in Ingulph's Copy of these Laws the words are these Echascun Seniour ait sun seriaâ—â—u sun plege que si nile rete que ait a dreit el Hundred that is that every Lord keep his Servant in his Pledge that if he offend right may be done in the Hundred So that upon the whole matter I can see nothing considerable imposed by your Conqueror upon the free born English Subjects which they were not tyed to before the Conquest or which did not reach all the Normans he brought over with him as well as they M. I do confess I did not believe there was so much to be said to prove that William the Conqueror never altered the Laws of England in any of its material parts but since you have gone thus far pray proceed to shew me that he any ways confirmed all the Laws of the Saxon Kings his Predecessors since I conceive as a Conqueror he might justly have vacated what of them he would and I do not see any thing in his Coronation Oath that could have obliged him from it F. I doubt not but to give you very good satisfaction in this point for not only your Conquerors Will was never declared that the former Laâ—s should be Abrogated and till such declaration all Laws ought to remain in force even in the Conquest of Christians against Christians according to Sir Ed. Coke's opinion in Calvin's case but indeed the Antient and Former Laws of the Kingdom were so far from being abrogated that they were all confirmed by him for in his fourth year by the advice of his Baronage he summoned to London as the words are in the book of Litch field Omnes Nebiles sapientes lege sud eruditos sut eorum leges Consuetudines audiret Or as Hoveden relates it out of a Collection of Laws written by Glanvil Fecit summoniri per universos Consulatus Angliae Anglos Nobiles sapientes c. and twelve were returned out of every County who shewed what the Customs of the Kingdom were which as Mr. Selden tells us in his History of Tithes being written by the hands of Aldred Archbishop of York and Hugo Bishop of London were with the request of the same Barons confirmed in that Assembly which was a Parliament of that time and then in Hoveden follow the Laws of Edward the Confessor so confirmed by K. William among which is that Law concerning the Office of a King which I have now given you and before this at the very beginning of his Reign he also confirmed the Priviledges of the City of London as appears by his Charter in Saxon which is to be seen at this day which is also confirmed by Ordoricus Vitalis Guliâ—lmus Rex multa Lundoniae postquam Coronatus est prudentâ—r justè clemenâ—â—que disposuit quaedam odipsius Civitatis commoda vel dienitatem alia 〈◊〉 genti proficerent Vniversae Nonnulla quibus consuleretâ—r Ecclesâ—is terrae â—ura quaecumquedictavit optimis rationibus sanxit Iuâ—icium Rectum nulla persona nequicquam ab eo postulavit So that nothing is plainer than that at the beginning of â—worâ—â—eign he strove to oblige all sorts of People as well of the Clergy as Laity to a good 〈◊〉 of his Government M. But yet for all 〈…〉 self have granted that after the time of his Confirmation of these 〈…〉 you cannot deny whether provoked by the frequent 〈…〉 or else resolving to make use of his Right by Conqâ—est 〈…〉 upon the English Nobility and Gentry and outed most of 〈…〉 and forced them to flee into Foreign Countries so 〈…〉 Sword as soon as ever he came to the 〈…〉 whatsoever English he thought might be dangeâ—ou◠〈…〉 notwithstanding his Confirmation of K. Edward's Law he 〈…〉 by Conquest And as for your 〈…〉 Câ—â—querors confirming these Laws the 〈…〉 whether he admitted any of the 〈…〉 consult of the weighty Affairs of the 〈…〉 throughly setled himself on the English Throne especially if it be considered that K. William kept not all the promises which he made at all times Now as your self allow this grant was made in the fourth year of his Reign but he had not then setled himself so well as he would nor had he then made an entire Conquest of the Nation that was not done until after the great appearance of the Natural English in Armes and the great meeting which Frederick Abbot of St. Albans with others headed at Berkhamslead which was not until above four or five years after this confirmation so that your Testimony from the Litchfield Chronicle and Roger Hoveden being before he setled himself as he could and intended to do signifies nothing and that it was from sometime after this transaction that Mat. Paris reckons the thorough Conquest and subduing the Nation as appears by this note in the beginning of the Life of Abbot