Enquirers Concessions Thirdly From a considerable Instance in our own Government First From the common Notion of a Trust For what is more generally understood by trusting another than that we lodge our concerns with him and put them out of our own disposal When I trust a Man with my Life or Fortune all People agree that I put it in his Power to deprive me of both For to deliver any Property to another with a Power of Revocation is to trust him as we say no farther than we can throw him He that can recover a Sum of Money he has deposited when he pleases to speak properly has it still in his Custody and trusts his Friend no more than he does his own Coffers And therefore if we consult our thoughts we shall find that a Trust naturally implies an entire reliance upon the Conduct and Integrity of another which makes us resign up our Liberty or Estate to his Management imagining them safer in his Hands than in our own In short a Trust where there is no third Person to judg of the performance as in these Pacts between Subjects and Soveraign there is not In this case a Trust includes a Translation of Right and in respect of the Irrevocableness of it is of the Nature of a Gift so that there seems to be only this difference between them that a Gift ought to respect the Benefit of the Receiver whereas a Trust is generally made for the Advantage of him who conveys it Secondly By our Author 's own Concessions a Trustee is sometimes unaccountable for he grants a Man may Sell himself to be a Slave p. 1. And when he has once put himself into this condition his Master has an Absolute Soveraignty over him and an indefeasable right to his service so that notwithstanding all the unreasonable Usage he may meet with he can never come into his Freedom again without the consent of his Lord. This I take to be an uncontested Truth and if it was not St. Peter's Authority ought to over-rule the dispute Who charges those who were 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 1 Ep. 2. 18. Thirdly I shall prove the unaccountableness of a Trust from a considerable Instance in our own Government The House of Commons V. g. are certainly Trustees for the Towns and Counties who choose them the People resign up the disposal of their Rights and Properties into their Hands in hopes of a good management But suppose they prevaricate in their Employment and betray their Electors does this Impower the People to lay their Representatives by the heels when they come into the Country or to punish them farther as their Wisdoms shall think convenient If so then the last resort of Justice must lie in the Sovereign Multitude who have neither capacity to understand the reasons of Government nor temper and tenderness to manage it 'T is pitty the Mobile in Henry the 6th his Reign had not this discovery when the Right of choosing Members was limitted to Forty Shillings per Annum Free-hold whereas before all Tenures if not all Persons had the liberty to elect without exception but this Act in all likelihood barr'd no less then a Fifth of the Nation from this principal Post in the Government And if Columbus had not given them a lift by finding out the West-Indies and abating the value of Money their Grievance had continued to this day as heavy as ever We see therefore that the Author's Notion of a Trust will not hold Water and if it would it can do him no Service for I shall prove in the Second place that the Kings of England hold their Crown by Right of Conquest and Succession and consequently are no Trustees of the People I shall begin with the Point of Succession which because it's generally received I shall only mention an Act of Parliament or Two for the proof of it In the first of Edward the Fourth Rot. Parl. where the Proceedings against Richard the Second are repealed it 's said That Henry Earl of Derby afterwards Henry the Fourth Temerously against RightWiseness and Iustice by Force and Arms against his Faith and Ligeance rered Werre at Flint in Wales against King Richard the Second Him took and Imprisoned in the Tower of London in great Violence and Usurped and Intruded upon the Royal Power Estate and Dignity And a little after they add That the Commons being of this present Parliament having sufficient and evident knowledge of the said Unright-wise Usurpation and Intrusion by the said Henry late Earl of Derby upon the said Crown of England knowing also certainly without doubt and ambiguity the Right and Title of our said Soveraign Lord thereunto true and that by God's Law Man's Law and the Law of Nature He and none other is and ought to be their true right-wise and Natural Leige and Soveraign Lord and that He was in Right from the Death of the said Noble and Famous Prince his Father Richard Duke of York very just King of the said Realms of England do take and repute and will for ever take and repute the said Edward the Fourth their Soveraign and Leige Lord and Him and his Heirs to be Kings of England and none other according to his said Right and Title In the first of Richard the Third there is another Statute very full to this purpose which begins The Three Estates c. But I shall pass over this and proceed to the Act of Recognition made upon King Iames the First his coming to the Crown Wherein it 's declared That He was Lineally Rightfully and Lawfully Descended of the Body of the Most Excellent Lady Margaret Eldest Daughter of the Most Renowned King Henry the Seventh and the High and Noble Princess Queen Elizabeth his Wife Eldest Daughter of King Edward the Fourth The said Lady Margaret being Eldest Sister of King Henry the Eighth Father of the High and Mighty Princess of Famous Memory Elizabeth late Queen of England In consideration whereof the Parliament doth acknowledge King Iames their only Lawful and Rightful Leige Lord and Soveraign And as being bound thereunto both by the Laws of God and Man They do recognize and acknowledge that immediately upon the Dissolution and Decease of Elizabeth late Queen of England the Imperial Crown of the Realm of England and all the Kingdoms Dominions and Rights belonging to the same did by Inherent Birth-right and Lawful and undoubted Succession Descend and come to his Most Excellent Majesty as being Lineally Iustly and Lawfully next and SOLE HEIR of the BLOOD Royal of this Realm as it is aforesaid And thereunto they do most Humbly and Faithfully submit and oblige themselves they Heirs and Posterities for ever until the last drop of their Bloods be spent So much concerning the Succession where by the way we may observe the Deposing Doctrine is directly pronounced unlawful as appears from the
first of Edward the Fouâ—h which Act continues still unrepealed I shall proceed to prove the Norman Conquest for I need go no higher which I shall make good from the best Historians who lived either in or near that time from Doomeseday Book and Acts of Parliament 1. From Historians c. Eadmer Hist. Nov. Fol. 6. a Monk of Canterbury at the time of the Conquest and very intimate with Arch-bishop Lanfrank and with him when News came of the Conqueror's Death Writes That William designing to Establish those Laws and Usages in England which his Ancestors and Himself observed in Normandy made such Persons Bishops Abbots and other Principal Men who could not be thought so unworthy as to be guilty of any incompliance with his new Model knowing by whom and to what Station they were raised All Religious and Secular Affairs He managed at his pleasure And after the Historian had related in what Points he disallowed the Authority of the Pope and Archbishop he concludes thus But what he did in Secular Matters I forbear to Write because it 's not to my purpose and likewise because any one may guess by what has been delivered already at what rate He ordered the State. The next Testimony shall be fetched out of Ingulph Abbot of Croyland an English Man born Secretary to William when Duke of Normandy and made Abbot by him This Author informs us That by hard Usage He made the English submit that He gave the Earldems Baronies Bishopricks and Prelacies of the whole Nation to his Normans and scarce permitted any English Man to enjoy any place of Honour Dominion or Power Hist. Croyl f. 512. But Gervace of Tilbury a considerable Officer in the Exchequer in the Time of Henry the Second and who received his Information from Henry of Blois Bishop of Winchester and Grand-child to the Conquerour is more full to this purpose which he thus delivers After the Conquest of the Kingdom and the just Subversion of Rebels when the King himself and his great Men had viewed and surveyed their new acquests there was a strict Enquiry made who there were which had fought against the King and secured themselves by Flight From these and the Heirs of such as were Slain in the Field all hopes of Possessing eiâ—er Lands or Rents were cut off for they counted it a great Favour to have their Lives given them But such as were called and solicited to Fight against King William and did not if by an humble Submission they could gain the Favour of their Lords and Masters they then had the Liberty of Possessing somewhat in their own Persons but without any right of leaving it to their Posterity Their Children enjoying it only at the Will of their Lords To whom when they became unacceptable they were every where outed of their Estates neither would any restore what they had taken away And when the miserable Natives represented their Grievances publickly to the King informing him how they were spoiled of their Fortunes and that without Redress they must be forced to pass into other Countries At length upon Consultation it was Ordered That what they could obtain of their Lords by way of Desert or Lawful Bargain they should hold by unquestionable Right but should not Claim any thing from the Time the Nation was Conquered under the Title of Succession or Descent Upon what great Consideration this was done is manifest says Gervace For they being obliged to compliance and obedience to purchase their Lords Favour therefore whoever of the Conquered Nation Possessed Lands c. Obtained them not as if they were their Right by Succession or Inheritance but as a Reward of their Service or by some Intervening Agreement Gervase of Tilbury or the Black Book in the Exchequer Lib. 1. Cap. de Murdro de necessar observ The next Testimony I shall produce is out of Gulielmus Pictaviensis who lived about the time of Ingulph This Writer speaking of King William's Coronation adds cujus Liberi atque nepotes c. i. e. whose Children and Posterity shall Govern England by a just Succession which he Possessed by an Hereditary Bequest Confirmed by the Oaths of the English and by the Right of his Sword Gul. Pict fol. 206. Farther Ordericus Vitalis who lived in the Reign of William the Second tells us How William the First Circumvented the Two great Earls of Mercia and that after Edwin was Slain and Morcar Imprisoned then King William began to show himself and gave his Assistants the best and most considerable Counties in England and made Rich Colonels and Captains of very mean Normans Oder Vital fol. 251. The same Author relates That after the Norman Arms overcame England and King William had reduced it under the Government of his own Laws he made Fulcard a Monk of St. Omers Abbot of Thorney Ibid. fol. 853. Henry Arch-deacon of Huntington who lived in the Reign of King Stephen is full to the same purpose Anno Gratiae 1066. perfecit Dominus Dominator c. i. e. In the Year c. the great Ruler of Kingdoms brought that to pass which he had long intended against the English for he delivered them over to be destroyed by the Rough and Politick Nation of the Normans fol. 210. And in another place more particularly When the Normans had Executed the just Decree of God upon the English and there was not any Person of Quality of English Extraction remaining but all were reduced to Servitude and Distress insomuch that it was Scandalous to be called an English Man William the Author of this Iudgment dyed in the Twenty first Year of his Reign Ibid. fol. 212. Matthew Paris Who wrote towards the end of the Reign of Henry the Third agrees with the forementioned Testimonies his Words are these fol. 5. Dux Normannorum Willielmus c. i. e. Duke William having fortified the Cities and Castles and Garrisoned them with his own Men Sailed into Normandy with English Hostages and abundance of Treasure whom when he had Imprisoned and Secured he hastened back into England that he might liberally distribute the Lands of the English who were forcibly disseized of their Estates amongst his Norman Soldiers who had helped him at the Battle of Hastings to subdue the Country and that little that was left he put under the Yoak of perpetual Servitude And in another place he tells us That King William brought Bishopricks and Abbys under Military Service which before that time had been free from all Secular Servitude but then every Bishoprick and Abby was Enrolled according to his Pleasure and charged how many Knights or Horse-men they should find for him and his Successors in times of War fol. 7. I might add many more Authorities of Antient Historians but these I suppose are sufficient As for Modern Writers I shall only cite Mr. Cambden who thus delivers his Sence of this matter Britan. p. 109. Victor Gulielmus c. i. e. William the Conqueror as it were to make his
as follows viz. That if his Majesty or any of his Successors should happen at any time hereafter to Act contrary to those Provisions by which the Privileges and Liberties of the Kingdom were Established that from thenceforth it should be for ever Lawfull for the Subjects without the least Blemish of Disloyalty to Resist and Oppose their Prince This was a Decree to purose by vertue of which as Thuanus observes the Protestant Hungarians Justified their Arms against their King And we may take notice in Contradiction to what our Author Affirms That such Odious Things and their Remedies too where they are allowed are particularly Named and Provided for Therefore we may fairly Conclude that where none of this plain Dealing is to be seen the Constitution does not admit of any such singular Reservations Indeed to talk of a Character for Resistance in a Country which has been Conquered so often and all along Monarchically Governed seems to be a Romantick Supposition For can we imagine that when our Kings had sought themselves into Victory and Power and forc'd a Nation to swear Homage and Submission to them that they should be so easie as to Article away their Dominions make their Government Precarious and give their Subjects leave to Disposess them as often as they should be pleased to say they had broken their Agreement But the Silence of our Laws and History as to any such Compact is a sufficient disproof of it For if there had been any such Enfranchising Instrument how prejudicial soever it might have been in its Consequence yet the natural desire of Liberty would have occasioned the preserving it with all imaginable Vigilance And as it would not have miscarried through Negligence so if Violence had wrested such a pretended Palladium from us the Calamity would have got into the Almanack before this time and been as certainly Recorded as the Destruction of Troy. Since therefore we have no Evidence either for the Possession or so much as for the Loss of this supposed Privilege we may certainly conclude we never had it or at least must grant that no claim can be grounded upon such an Improbable conjecture for Idem est non Esse non Apparere Secondly Our Author urges That when there seems to be a Contradiction between Two Articles in the Constitution the Interpretation ought to be given in favour of that Article which is most evident and important From whence he proceeds to assert That there is a seeming Contradiction between the provisions for the publick Liberty and the renouncing all Resistance And therefore the Constitution ought to be expounded in behalf of the former as being most advantageous to Government Now one who had never read the Statute Book would imagine by this Authors Argument that we had some Laws for the taking up Arms against the King as well as others which forbid it and both equally plain than which nothing is more false And upon supposition there was any such Clash in our Acts of Parliament the Law for Non-resistance being last Enacted must necessarily take place and Repeal whatever was before Established to the contrary But Secondly I Answer That I have already proved that the Rights of the Subject are best secured by Non-resistance and therefore they are no ways inconsistent or contradictory to each other So that our Liberties had much better lye at the Discretion of Kings who have much greater Motives than others to do Justice and give general Satisfaction than to depend upon the Management and Mercy of the People and be liable to such Fatal Convulsions which must happen as often as Discontent and Ambition can impose upon the Weakness and Inconstancy of the Multitude Thirdly His Third Argument is the same with his Second which he has given us in different Words That what we want in Weight may be made up in Number It begins somewhat Remarkably Since it is by Law that Resistance is condemned we ought not to understand it in such a Sense as that it does destroy all other Laws First Now one would have thought that the condemning Resistance or any other Action by a Law had been the only way of doing it to any purpose But this Author seems to draw a consequence of Abatement upon this Doctrine from its Authority as if it was to be less observed because it is Established by Law. But Secondly To give him rather more advantage than the Construction of his Period will allow I Answer That I have already made it appear that to wrest the Laws from their plainest and most obvious Sense is to make them perfectly Useless and that Non-resistance is the best Expedient to preserve the Laws and every thing else that is valuable And therefore though its plain that the Law did not design to lodge the wole Legislative Power in the King yet as its plain that it intended to forbid Resistance in case he should set about it For the Law-makers declare in in as full Intelligible Words as can be conceived that the Militia the Posse Regni was always the undoubted Right of his Majesty and his Predecessors and that its Unlawful to take up Arms against him upon any Pretence whatever Now if its possible for a Law to make or declare a Monarch Irresistible which I suppose no man will deny I desire to know whether it can be drawn up in more significant and demonstrative Terms than this Act before us If it cannot then our Author has no imaginable reason to dispute this Part of the King's Prerogative As for his Instance That the Legislative Power is Invaded and the Constitution of Parliaments Dissolved This Charge is Aggravated beyond all Decency and matter of Fact For it s well known that the King did not pretend to make his Proclamations Equivalent to an Act of Parliament and what his Majesty acted by way of Dispensation was not only directed by the present Judges but grounded upon a solemn Resolution of all the Twelve in Hen. 7th Reign in a Case seemingly Parralell which Sentence has been followed by eminent Lawyers since and never Reversed by Act of Parliament As to the Regulation of Corporations That was a Method begun by Charles the Second a Protestant Prince and Applauded by all the Loyal Party of the Nation Besides the Burroughs were not so prodigiously altered but that we might have had a good Protestant Parliament out of them as appears from the Elections made upon the Writs Issued out in August last where those who were against Repealing the Penal Laws and Tests carried it with great odds against the other Party And since we know his Majesty has returned the Charters to the State of 79. And here it may not be improper to observe That Prerogative has been as Remarkably misunderstood at Court in former Ages of which several Instances might be given but I shall consine my self to the Reign of one who on all Hands is accounted a most Excellent Prince I mean King Charles the
First Now the Lords and Commons in their Petition to the King complain That his Majesties Subjects had been charged with Aids Loans and Benevolences contrary to Law and Imprisoned Confined and sundry ways molested for non Payment That the Subjects had been detained in Prison without certifying the Cause contrary to Law. That they had been compelled to quarter Soldiers and Marriners contrary to Law. That notwithstanding several Statutes to the contrary divers Commissions had been Issued out under the great Seal of England to try Soldiers and Marriners by Martial Law Quarto Car. 1. Rushworth's Coll. To this I might add the Levying Ship Money Coat and Conduct Money c. but I am not willing to enlarge upon so unacceptable a Subject non to discover the Misfortunes of the Father any further than Justice and Duty to the Son obliges me I say the Misfortunes which we see the best Princes through misinformation or improper advice may sometimes fall into However I must crave leave to take notice that these were other manner of Grievances than the Dispencing with Penal Laws both in respect of the Evidence and Consequences of them and yet I am sure the War which was made by the Subjects upon this Score is by our Laws declared an Horrid and Notorious Rebellion This I mention not to justifie the Conduct of the Ministers but to shew that under these Circumstances a mistake in his Majesty ought rather to be lamented than exposed and Magnified at such an enflaming Hyperbolical rate And to this modesty of Behaviour we are now more especially obliged since his Majesty has promised to Redress past Errors which is a plain Argument that some of his former Measures are unacceptable to himself as well as to his Subjects and that he will not pursue them for the future Fourthly Our Author proceeds to argue That the Law mentioning the King or those Commissionated by him shews plainly that it designed only to secure him in the Executive Power for the Word Commission necessarily imports this Since if it is not according to Law it 's no Commission From whence I suppose he infers that those who have it may be resisted Now that this Inference is wide of the Mark appears First Because when this Law was made the King was not restrained from Commissionating any Person whatever in the Field and therefore the Legislators could have no such Design in their View as the Enquirer supposes Secondly The Test Act which was made several Years after the former though it bars the King from granting Military Commands to those who refused to give the prescribed Satisfaction that they were no Papists yet this Statute only declares their Commissions void and subjects them to some other Penalty but it does by no means Authorise the People to rise up in Arms and suppress them and therefore by undeniable Consequence it leaves the other Law of Non-resistance in full force Thirdly This Law which declares it Unlawful to take up Arms against those who are Commissionated by the King was designed as may reasonably be collected from the Time to combat that pernicious distinction between the King's Person and his Authority which has been always too prevalent though in reality it 's nothing but the King's Authority which makes his Person Sacred and therefore the same inviolable Priviledge ought to extend to all those who Act under him Yet notwithstanding this it has often happened that those who pretend a great Reverence for his Person make no scruple to seize his Forts sight his Armies and destroy those who adhere to him under the pretence of taking him out of the Hands of Evil Counselors which has been the most usual and plausible Colour of subverting the Government This Act therefore which was made soon after the Restauration we may fairly conclude was particularly levelled against this dangerous Maxim which had so Fatal an Influence upon the late Distractions Fourthly and Lastly The Enquirer urges That the King imports a Prince clothed by Law with the Regal Prerogative but if he goes about to subvert the whole Foundation of the Government he subverts that by which he has his Power and by Consequence he Annuls his own Power c. First To this it may be Reply'd That bare endeavouring to do an Action though the signs of Executing may be pretty broad is not doing it in the Construction of humane Laws E. G. Drawing a Sword upon a Man is not Murther The intention of the Mind is often impossible to be known for when we imagine a Man is going to do one thing he may be going to do another for ought we can tell to the contrary or at least he may intend to stop far short of the Injury we are afraid of And supposing we had an Authority to punish him there is no reason that conjecture and meer presumption should make him forfeit a Right which is grounded upon clear and unquestionable Law. But Secondly If with reference to the present Case our Author means that the Government is actually subverted as he seems plainly to affirm pag. 7. Then I grant the King's Authority is destroy'd and so is the Property of the Subject too For if the Government is dissolv'd no Man has any Right to Title or Estate because the Laws upon which their Right is founded are no longer in Being But if the Government be so lucky as not to be dissolv'd then the King's Authority remains entire by his own Argument because it 's supported by the same Constitution which secures the Property of the Subject In his Sixteenth Paragraph we have a mighty Stress lay'd upon the difference between Male Administration and striking at Fundamentals as if it was Lawful to resist the Prince in the latter Case though not in the former But if this Distinction had been own'd by our Constitution we may be assured we should have had a plain List of Fundamentals set down in the Body of our Laws particularly we have all imaginable reason to believe that these Fundamentals would have been mentioned and saved by express Clauses and Provisoes in those Statutes which forbid Resistance For without such a direction it would be impossible for the Subject to know how far his Submission was to extend and when it was Lawful to make use of Force Such an unregulated Liberty would put it into the Power of all popular and aspiring Male Contents to corrupt the Loyalty of the unwary Multitude as often as they thought fit to cry out Breach of Fundamentals And at this rate it is easy to foresee what a tottering and unsettled condition the State must be in And therefore according to the old Maxim for which there was never more occasion Ubi Lex non Distinguit non est Distinguendum I have now gon through his Principles and I think sufficiently shewn the Weakness and Danger of them And if so his Catalogue of Grievances signify nothing to his purpose though there was much more aggravation and Truth in them than there is But time has now Expounded the great Mystery and made it evident to most Mens Understandings that our Authors Party has fail'd Remarkably in Matters of Fact as well as in Point of Right For they have not so much as attempted to make good the main and most invidious Part of the charge against his Majesty though to omit Justice Honour and Interest has so loudly called upon them to do it Their giving no Proof after such Importunity of their own Affairs is a Demonstration they never had any For how defective soever they may be in other Respects we must be so just as to allow them Common Sence THE END * Letter to the Convent