pardonable if not meritorious when it is to preserve the Chastity and Freedom of our common Parent The Subject of the Book being of the Disposal of Kingdoms and conferring of Power the Measures of Power or manner of enjoying it might seem not to fall within the Question and yet it will appear that here lyes the Hinge of the Controversie for if the Government of England be in King Lords and Commons then Vid. Grot. de Jure belli pacis de modo habendi potestatem whatever Difference there be in the Modus habendi potestatem the manner in which the Sovereignty or absolute Power whereby the Nation is governed is enjoyed the King may as Grotius has it in partem non suam involare seize upon or usurp that part of the Soveraignty which does not belong to him or to speak strictly as the Soveraignty is indivisible though enjoyed by several he may take to himself alone what the laws have communicated to him and to others And there would be no manner of Consequence that a Conquest over the King should ipso facto transfer the Dominion to the Conqueror so far as to make the Subjects (a) P. 20. In giving one Prince a Conquest over another he thereby puas one in Possession of the others Dominions he makes the others Subjects become his Subjects or his Slaves as they come in upon Conditions or at the Will of the Conqueror Slaves unless they obtain Conditions from the Conqueror which is maintain'd in this Book And whereas the learned Author pretends that he has sufficiently provided against the Charge of (b) Vid. Pref. Novelty by the Number of Authorities to no purpose as I shall shew I challenge him to bring one Author of clear Credit who holds any thing like this I take Grotius to have given a much safer Rule in this Grot. de Jure belli P. 503. Potest autem Imperium victori acquiri vel tantum ut est in rege aut alio imperante tunc in ejus duntaxat jus succeditur non ultra vel etiam ut in populo est c. and yet to have gone to the utmost Stretch when he says Dominion may be acquir'd by a Conqueror either only so much as is in the King or other Ruler and then he succeeds only to his Right and no farther or also so much as is in the People All the Right of the People Grotius supposes not to be acquired meerly by a Victory over the Prince where the Prince had not the Soveraignty absolutely and solely in him and that in such Case the Conqueror succeeds only to that Right which the other had that is to a Government according to the Laws of that Country But our Reverend Author is express P. 49.50 That though the Prince that is disseized was obliged by that Law while he was in Possession it never was a Law to the Prince that is now in his Place And thus by the Conquest of a Prince limitted by Laws according to him the Conqueror would not only acquire all the Power which the Law gave the other but would be let into a Power by Gods Gift without any legal Limits But this Supposition as it is wholly precarious is very absurd in any Government where the Sovereignty is communicated to more than one And how it is in England next to the Determination of our Law-makers who are the Judges ordained by God recourse ought to be had to Men whose Profession it is to be acquainted with the Laws and History of the Government but the Divine thinks himself insignisicant if he cannot like the Pope of Rome hook-in Civil Power and the Decision of its Rights in Ordine ad Spiritualia and therefore some Rule must be found out common to all Soveraign Princes or Kings as such and that Rule must be one of which Divines may be allowed to be the most competent Judges or Interpreters Whereas therefore this Author resolves all Gods ways of conferring Power 1. Into the Right of the First Parents called Patriarchical 2. Conquest 3. God's Nomination 4. Consent of the People 1. He makes those Rights which belong to one who was King by Divine Nomination equally to belong to all of them For says he David P. 5. as being a Prophet inspired best knew the Mind of God and his ways of dealing with Mankind And David as being called to be a King by the immediate Designation of God best knew what belonged to that Dignity His word therefore is on all accounts a sufficient Proof He is indeed there speaking of the Exaltation to Power P. 4. but either the Exaltation is all that belongs to the Power and then there is only a Name without Power till Man has consented or else by what belongs to the Dignity he means all its Rights or the Rights of Sovereignty Whatever therefore was a Right of Sovereignty in David is according to him the Right of all Kings as such because David was a King by the immediate designation of God And therefore where one who is called King has not such a Right of Sovereignty P. 18 19. as he supposes to be common to all Kings he will have the Government to be properly a Commonwealth Wherein he has thought fit to explain the mystery how it came to pass that all who hold Their present Majesties Right to this Government after the Declaration of the States of the Kingdom upon the late King's breach of the Original Contract and Abdication are run down as Republicans and Enemies to the Monarchy though they are the only Men who would preserve it to Their present Majesties And it is not an unpleasant story for the truth of which I will not vouch That when a Man was recommended to a Place of very great Trust though he had been a constant Companion of them who Caball'd against their Majesties this being objected his Patron should say O Sir he is a Friend to the Monarchy 2. As with this High Monarchical Author the Rights of all Sovereign Princes and Kings as such are equal he is not shy of letting the World know what Their Right is P. 20. P. 64. and that it is a Right to make the Subjects Slaves or in other words of his own to do with them and theirs what they please For that he tells us is the Right of War or of a Conqueror and all Kings have the same Right or else what David shews to have belonged to the Dignity would not be a Rule to this day 3. One would think that the consent of Men who are at liberty to dissent proceeds from their Choice and that they who chuse one to reign over them who had no Right before that Choice P. 11. P. 11. give him the Kingdom and that this as himself calls it is the Act of Man and merely an Human Act. But if this were only an Human Act then the Government would be founded in Contract if it was
not given in an absolute manner and the King that was chosen might be no other sort of Sovereign than Humane Laws made him Wherefore it is necessary that this meer Humane Act should not be a meer Humane Act but should be spiritualiz'd to come within Ecclesiastical Jurisdiction and that the Authority should be immediately from God only and become such an Authority as he gives a King of his own Nomination or one to whom he has given the Kingdom in way of Judgment upon an Appeal to him and Tryal by Battle To get clear of the troublesom Objection here you must understand that there are but two grounds for their Election 1. Real Merit in the Person chosen 2. Favour towards him P. 13. Where there is Real Merit they could not go beside him in their Choice they took him as one already chosen of God As to Favour P. 14. whereby they prefer one before others of as much Merit it is the same great God who rules the roaring of the Sea and the multitude of the People But if the Translators of the Bible were as well skill'd in the Hebrew Psal 6 .7 and rightly rendred it tumult or madness of the people the most tumultuous irregular and undue Election would by this be ascrib'd to God as his immediate act But whether the Choice were regular or irregular they it seems were not free to chuse or not to chuse And as the Poet has it Thus like a Pris'ner in an Isle confind Man walks at large a Pris'ner in his mind Wills all his Faults while Heav'n th' Indictment draws And pleading Guilty justifies the Laws Dryden And according to our B where Men thought they exercis'd a Free Faculty given them by God the Man of Merit took their Subjection as his Right because God had mark'd him out as their King which would warrant the Usurpations of any Man who could latter himself into a perswasion that he merited to be King But where they chose without Merit it seems it was Choise without liberty to dissent and consequently tho' his Choice were a sinful act as sometimes it might be â—et he who makes God the Author of the Choice by is immediate Act makes him the Author of the Sin (a) Puf. Elem. Juris prud p. 1. Dof 1. Actiones humanae dicuntur actiones hom voluntariae cum imputatione effectuum But as the Choice of the People is made no Choice â—ery little room is left by this Author even for that â— Choice For 1. Where a Kingdom is Hereditary P. 16. there â—e Ancestors consented once for all following â—enerations and then though the Heir who Claims by Descent from the first Monarch should be a natural Fool or Mad-man God has given him the Kingdom for a perpetual Inheritance and all the acts of the People alone to set him aside before his actual Possession are a meer nullity they can acquire no right against that which God alone has given the Prince by reason of his (a) P. 16. For the Derivation of that Right to their Persons they owe it only to God for it comes to them by their Birth and they owe their Birth only to God Birth 2. As the Succession is continued to the Heir of the Family (b) Pag. 15. Sect. 26. without other Human Act than the first consent if the Crown be taken from the Heir of the Family and another comes to enjoy it 't is God who (c) Pag. 19. This says he can be understood of nothing else but the Conquest of one Prince over an other This which seems there to be only a Conquest over the Prince he soon advances to a Conquest over the Nation For thereby he says God makes the others Subjects become his Subjects or Slaves accordingly as they come in c. God's putting down one being here extendable to all cases of removals even by Death or cession he Pag. 49. finds it needful to insinuate as if he had proved in Sect. 26. only That Conquest is the way by which a Kingdom is taken from a Sovereign Prince against his will puts down one and sets up another and in all cases where God does this it is by Conquest and can be no otherwise understood And in the case of Conquest no consent of the People is required but thereby God puts one in possession of the other's Dominions before the People express any consent to receive him for their Prince and tho' the Conqueror should condescend to make them his Subjects they are his Slaves by right of War Should they capitulate with their Swords in their Hands while the Event of a War which they might threaten were doubtful Yet God has given them up for (e) Pag. 20. He makes the others Subjects become his Subjects or Slaves accordingly as they come in upon Conditions or without Slaves they have no Right to capitulate but in their very capitulating resist God's Ordinance while they would put Limitations upon a Prince who by a Right given of God ought to be Absolute and extort by force a Promise (d) Pag. 11. perhaps to observe the Laws of the Country from one to whom they never were nor ought to be Laws Here our State-Casuists would find these Flaws in the Claim which the Subjects might make to their Ancient Freedoms 1. The Prince his Promise is but the Grant of one in full Possession of an Absolute Power and the Sovereign Power cannot bind it self 2. It cannot have the nature of a binding Contract because the People were but Slaves at the time of the Contract 3. The Terms are extorted by force 4. God Almighty has prior to any consent of the People entrusted the Prince with an Absolute Power which he must exert upon necessity and has made him the Judge of the necessity Since therefore according to Men of these Notions W. I. was a Conqueror and the late King succeeded to the Right of the Conqueror it is pretty plain that the Exercise of the Dispensing Power would not have brought the Vnion between the late King and his Subjects to a State next to a Dissolution P. 66. had it not fell heavy upon the Clergy who always intended to exempt themselves from the Consequences of their own Doctrine 3. But suppose the Conqueror or his Heir should use the Right of Conquest over his Subjects and make them his Slaves notwithstanding former Concessions the People are by this Author tied up from freeing themselves He says indeed very truly P. 24. If a Prince will have no Law but his Will if he tramples and oppresseth his People their Patience will not hold out always they will at one time or other shew themselves to be but Men. But may they shew themselves to be Men No God forbid What shall Slaves rebel because they are used as Slaves It is enough that they are allowed Prayers and Tears the Arms of the Church if the Prayers are in Church-Form and
Animadversions ON A DISCOURSE ENTITULED GOD's WAYS OF DISPOSING OF KINGDOMS LONDON Printed for W. Rayner 1691. Animadversions ON A Discourse of God's Ways of Disposing of Kingdoms NEXT to the Treachery of Men Vid. Pref. Seem to be too jealous of themselves for fear some worldly Considerations c. who have not had that jealousie of themselves which the Right Reverend and Learned Author of the late Discourse makes a Vertue in his Brethren who have renounced the Benefit of that Protection which this Government has extended towards them nothing has more promoted the Interest of him who as some Great Men insinuate still remains our Rightful King than an obstinate Justification of all the Follies and Flatteries of some Clergy-men at a time when in their Tantivy speed to Preferments they not only trampled upon the poor Persecuted Dissenters but upon those Laws which forbad their making Riots of Religious Meetings and Statutes of Royal Edicts or Proclamations Rather than it should be thought that they who call themselves the Church of England were to blame in these Matters and held Erroneous Opinions of Civil Power this Government which is a reverse to their Doctrines shall be maintained to be an Usurpation either upon King James or upon the People of England who invited their Deliverer and made the most suitable Acknowledgment of such a Deliverance It is a Melancholly Consideration to think how many are imposed upon by Doctrines made for no Lay-end whatever and which will serve no Government but what is against or above Law if there come in such consent of Men Vid. Hooker Eccl. Pol. as the Learned and Judicious Mr. Hooker thought absolutely necessary for the making of Laws this consent either must lose the nature of consent or want Authority for fear some Clergy-men should be condemn'd for having ascribed to Princes those Powers which were never given or allowed by the consent of the Nation and if one who exercised such an Illegal Power be Dispossessed against his will Allegiance must be transferred to another still without Humane Consent for otherwise Passive Obedience to no Law could not revive again and be transplanted Nor could those Divines whose Doctrines encouraged the late King to attempt what occasioned his Abdication have expected to make Atonement by the Difficulties which they and their Partizans might bring upon the Successor and yet hope to impose upon him as if they were the only Loyal Men. If they were as Passive themselves when their Loyalty comes to be tried as they would have others be it were something but they who take to themselves all the Priviledges belonging to Gods Lot or Peculiar Inheritance are like the Men of Kent Vid. Camd. Brit. Parker's Antiq. Brit. Dicit Canrii Comitatus quod in ipso Comitatu de jure debet de ejusmodi gravamine esse liber quia dicit quod Comitatus ille ut residuum Angliae nunquam fuit Conquestus who having opposed William I. after the rest of the Nation had submitted to him would have it that all but themselves were a conquered People No respect to any Man's Person or Character ought to come in Competition with the Duty which we owe our Country on the contrary while the Errors of Men Great for Name of Learning or Pomp of Office derive Authority from their Persons those Errors or Artifices which tend to the Prejudice of the most valuable Interest of Men as united in Societies ought to be treated with the greater Freedom and with that Contempt or Laughter which is due to the Folly or the Disguise That the World may judge of the Merits of those Notions which are vented under the Venerable Authority of the L A and as it should be thought with such a charitable Design as becomes that Office I shall 1. As far as they are consistent and hang together give a true Representation of them with their plain and direct Consequences 2. Shall shew their Inconsistencies 3. Their Doubtfulness and Ambiguity as if intended to serve either Prince or People and to impose upon both 4. The Weakness of the Reasoning want of Authority and gross Mistakes in relation to those Rights of Princes which he would infer from Passages or Omissions in Sacred or other Writings 5. That the shew of Reading and the Positions are wholly beside the Cushion not applicable to the Constitution of this Government nor to the present Debate 1. The manifest Scope of the Book A Representation of the Doctrine is to prove or rather to maintain by the Authority of the Person without Proof that all Kingdoms are disposed by Gods immediate Act P. 30. without the allowable Interposition of any but Soveraign Princes P. 32. and that the Acts of all others have an original Nullity Upon which I may make this general Reflection to justifie my Anti-Title If Acts proceeding from the Free Wills of Soveraign Princes are no Objections against Gods Disposal of Kingdoms so far by his immediate Act as that himself confers the Power by his sole Authority neither would what proceeds warrantably from the Free Will of the People be less Gods Act or have his Authority less immediately from his Gift But how much soever God Almighty influences Mankind in the Choise of their Actions we must suppose that they act with Freedom even in the Changes of Kingdoms and States or otherwise we must impute to the Almighty those Crimes by which Changes are sometimes brought about which to surmise were Blasphemy And if Changes are made according to natural Equity and more especially the known Rights of any Kingdom agreeable to that Equity and allowed of and exercised as there has been occasion in all times from the first Erection of the Kingdom we may well say that those Acts of such a free People which God permits and blesses with Success are by and with his Authority What are the Rights and lawful Powers entrusted by God Almighty with the People of this Land Vid. Bp. Bilsons Christian Subjection for the Preservation of their ancient Regiment and Laws it is not needful here to prove but it is necessary to shew in their proper Colours those Arts or in Truth Weaknesses of Clergy-men whereby they would bring in God Almighty to Authorize the Contrariety of their avowed Principles to the Right of this Government and of their Actions to any Principles but such as may free them from Slavery to their Promises or Oaths and at the same time might enslave all others as if their Freedom were purchased at this Price and were the Reward of such Merits I cannot but use this Book of one of so setled a Reputation for learning as a Demonstration that it is necessary for their own Sakes as well as for the Good of Mankind that Clergy-men should not in these Matters be wise beyond what is written in our Law If I am thought to expose the Nakedness of a Spiritual Father I doubt not but it will be
the Tears flow decently and in order God will raise up to them a Deliverer in some Foreign Sovereign Prince till then they must wait And for their Comfort P. 32. though all their Proceedings towards their Deliverance by War have an Original Nullity even their Invitation of a Foraign Prince how great soever the Occasion be yet a Forraign Prince need not be very scrupulous If he be of their Religion P. 45. He hath discovered an Hostile Mind towards the Professors of it Na Pufendorf allows Subjects to use even an absolute Prince as an Eneiny if he discover an Hostile Mind towards them Nay allows this to any one whom the Prince thus casts out of the Number of his Subjects Pufend. Elim Jurisprud P. 340. and they are persecuted upon the Acount of their Religion their Persecutor having discovered an Hostile Mind against all of the Religion this is a Cause of War which will justifie the Arms of a Foreign Prince But Religion is not to be preserved by any Sword that is not Canonically ordained or Consecrated If a Foreign Prince see himself in extream Danger of suffering an intollerable Injury P. 36. by another Prince's Oppression of his own People though God had given them up for Slaves then he may make an open actual Invasion Ibid. in Defence of another Kings Subjects but rather to ward off the Injury which he was in danger of suffering But this Rule is not limitted to an intollerable Injury but may be extended to justifie a War P. 24. Princes have no other way to right themselves for the least Injury P. 30. Their Rights and Injuries are inseparably Joyned with those of their Kingdoms and Nations c. They must insist upon those Rights with which God hath entrusted them for others more than themselves It is not only their Interest but their Duty so to do upon the receiving or fearing the least Injury and it is not only Lawful but a Duty to God for the Sakes of their own Subjects to right themselves by War But the Sufferings of the People of other Nations are then only to be relieved by a Foregin Prince when he has a particular Interest or Cause of his own and receives immediate Prejudice thereby or fears that he may Indeed P. 47. As it is necessary c. so when it is necessary to do this for themselves then they ought to do it much the rather for the Sakes of their oppressed Brethren no sufficient Cause it seems is to be found in that common Relation between Mankind Grotius de Jure Belli pacis lib. 2 c 25. Sect. 6. Postrema latissimeque patens est hominum inter se conjunctio que vel sola ad opem ferendam sufficit upon which alone Grotius and others would justifie the Heroes of Past Ages who have undertaken the Deliverance of oppressed Nations meerly for the Sake of common Humanity and as they were fit Objects of their Compassion They who confine Deliverers to selfish Ends seem to envy them their greatest Glory or to have been so sordiâ— themselves as to have had no Idea of this Vertue and like Mr. Hobbs to draw a Scheme of Humane Naturâ— from too solitary a Dwelling at Home Whatever Latitude was given to warrant the Expeditions of Soveraigns here they are confined because per haps some could not imagine that they should take Pleasure in what is so disinterested But for Subjects P. 32. how much soever oppressed they have no Right to make War without Leave of their Prince Ibid. None have Right of making War but they that are in Soveraign Power Whoever it seems is in Soveraign Power though he be not the Supream or Chief in Power he is no Subject and you may be sure the Prince will never give his Subjects leave to make War against himself It must therefore be some Foreign Soveraign Prince who makes War against the oppressing Prince otherwise the War is not only unjust P. 32. but no Right can be accquired by Success there is an original Nullity in all the Proceedings Very good But let us now apply this to our present Case that we may come out of the Clouds To make the Discourse pertinent it must be admitted that a War was made upon the late King while he continued King and that he was dispossessed against his Will Here I would ask this serious Question Is not our Deliverance and the Settlement of the Crown occasioned thereby Vid. Pref. No other Doctrine than that which has been received and past for cur rent in the Church of England ever since the Reformation not only condemned but rendered a meer Nullity by the plain Consequence of this Doctrine insinuated as the Doctrine of the Church of England All must agree that King William while he was but Prince of Orange and Stadholder of Holland was invited over by many of the Nobility Gentry and Clergy of this Land that his Arms were joyned by Men of all Orders immediately upon his Landing that he was upon the late King 's Withdrawing petitioned to accept the Administration of the Government and after that freely chosen togetheir with his Princess to supply the vacant Throne without any Force offered by him to the late King or the People much less setting up for himself and compelling them to declare him King This I take to be the true State of the Question but if we suppose such a State of it as may make the B s Discourse consistent and to purpose it must be admitted 1. That all they who invited the Prince to assist them departed from the Doctrine of the Church of England 2. That however he having had Success thereby immediately became rightful King and that all who were for the Regency or opposed his being King equally departed from the Doctrine of the Church of England But upon the true State of the Case there may naturally arise these two Questions not here to mention more 1. Whether if King James were conquered Vid. P. 49. it was by the then Prince of Orange or by the People of England and whether the Prince or the People took the Dominion from the late King against his Will 2. Whether the Deliverance in which his present Majesty was so gloriously instrumental was according to this Discourse by a Soveraign Prince That our King was not a Soveraign Prince barely as Stadholder of Holland must be granted and then as to the Principallity of Orange even according to this Book though the Cause of War between the French King and the States or their Stadholder were unjust on that King's side yet it was not only lawful but a Duty for the Subjects of that Principality P. 57. to obey the French King Nay the Government is so far setled in that King that we are to presume a Right for says he Wheresoever this is once setled P. 51. whether by length of time or even sooner by general Consent
that the Law of a State or Kingdom Will they allow the Law of the Kingdom to be thus superior to their Sovereign The Rolls of this Law some Jewish Rabbins affirm that their Kings destroyed When therefore our Learned B shall produce an authentick Copy of the Law or that manner of the Jewish Kingdom which Samuel wrote in a Book 1 Sam. 25. and laid up before the Lord his Arguments from the Jewish Polity may deserve Consideration and yet what the present B of Worcester says in his Irenicum would have its due weight Those who plead the obligatory nature of Scripture-Examples Iren. p. 13. must either produce the Moral Nature of these Examples or else a Rule binding us to follow these Examples especially when these Examples are brought to found a new positive Law obliging all Christians From hence he proceeds to treat of God's ways of conferring Sovereign Power immediately in the Patriarchs time Vid. p. 7. Marg. Ib Sect. 8. This he says at first was from God we are sure because it was from the beginning of Mankind The first Men that were born into the World were all of Adam 's Family And so were all that came after till some of them went forth as Cain did to make Families for themselves Observe the reasoning here We are sure it was from God because it was from the beginning of Mankind Does he mean here from the Creation of Man from the first Multiplying or Infancy of the Subjects or from their Maturity and years of Discretion If the first then we are sure Civil Polity or Sovereignty was not from the Beginning of the World unless there was a King without a Subject The second cannot be said to be Subjects of a Civil Polity Pufend. Elementa Jurisprud cap. ultim and Pufendorf grounds the Paternal Power over them upon their presum'd Consent But for the last it would be no Consequence that because they were Subjects while they were not capable of Dissenting therefore they must continue so when they are at years of consent And if the Sovereignty began when they commenced Men then there is no Presumption to the contrary but that it began upon their consent nor will they be oblig'd to give up their Lives and the Fruits of their Labours to their Parents meerly for their having exercised that Affection towards them in their Childhood which Nature both requires and delights in Himself admits that the Sons when they come of Age may chuse whether they will be under their Fathers Government or no for he places the Power in being Father of the Family and allows the Sons then to make Families by themselves and to set up for Independent Princes This is plain from the instance of Cain Gen. 4.16 17. he of his own accord left his Fathers Family and built him a City Till then says our B they were govern'd by the common Father of Mankind Page 8. So that Cain who voluntarily deserted his Fathers Family by that act of his set up himself King in the Life-time of his Father But this Man was not the Patriarch had no Divine Nomination or Appointment nor is it likely he should have for he went out from the presence of the Lord Gen. 4.16 cast off the Theocrasie nor had any Appointment that appears from his Father Either then that City or Civil Society was govern'd popularly or if he was a Sovereign it was of the Free Choice of the Society for otherwise he had no Right at all And thus Cain bids fairest for being the first Independent Monarch in the World while Adam was under the Theocrasie and this he must grant in consequence of his own words elsewhere For says he when Jacob and all his Family went down into Egypt Page 9. there ended their Patriarchical Government It appears therefore that the Patriarchical Government was inferior to the Monarchical And if Adam should have gone to dwell in Cain's City his Patriarchical Government would have ended This matter is so intreagued that I need not enquire 1. Vid. Gielfusii op pol. p. 5. An fuisset futura politia instatu Innocentiae Aff. Quia fuissent futurae Societates in primis duae priores eaeque certo ordine inter se devinctae nulla tamen fuisset in imperando violentia vel injustitia sed dulcis harmonia Hooker 's Eccles Pol. c. 1. f. 26. There were as yet no Civil Societies no manner of Publick Regiment established Whether there was any occasion for the Rights of Sovereignty in the State of Innocence 2. V. Gen. 9.3 5 6. Whether Power over Life was given by God to Man till after the Flood 3. Targum of Onkelos Polyg f. 35 Quicunque effuderit sanguinem hominis per testes ex sententia judicum sanguis ejus fundetur Whether that Power when it was given was an Arbitrary Power or only to be exercised in the way of Judicature 4. Digests Lib. 1. Tit. 61. Whether the Compilers of the Digests were in the Right when they say That the Law whereby Children begotten in Lawful Marriage are in the Power of the Parents and that as the Commentator explains it so far as that they acquire for their Parents is Jus proprium civium Romanorum a Law peculiar to the People of Rome But to follow our Author to Noah Noah was the Father of all them that lived after the Flood P. 8. Sect. 8. and he was their Governor too till his Children were too many to live in one Country or under one Government and then they branched themselves into Nations among whom the Earth was divided Is this agreeable to Holy Writ what matter for that it serves the Hypothesis Tho the Scripture shews expresly that God gave the whole Earth Vid. Gen. 9.1 2 3 4 5 6 7. and the Power over Life to Noah and his Sons and the whole Covenant was between God on one part and Noah and his Sons on the other Upon which Mr. Mare Clausum f. 13. Certe non obscura verum plane communionis vestigia occurrunt in donatione illa numinis qua Noachus tres filii ejus c. domini pro indiviso rerum omnium facti sunt That Noah and his Sons were by Gods Donation Lords of all things in common Either no natural Right can be inferred from this because it was Gods immediate Free Gift or it shews that they who are adult have Right to share in Dominion with their Parents Either way it cuts off the Patriarchical Power which he would continue till Jacob went into Egypt Pag. 9. The Scripture says Gen. 10.32 The Nations were divided in the Earth after the Flood by the Families of the Sons of Noah And that the Families were after their Tongues He will have it to be by Noah's Children and speaks of it as if it were a regular branching themselves into Nations because the Children were too many to live in one Family Page
8. He takes no notice of the dispersion upon the Confusion of Tongues from which time to God's setting up a King in Israel he elsewhere owns that perhaps in some Nations it was the Peoples part to chuse who should rule over them Page 9. This if we consider it will be more than a perhaps Upon the Confusion of Tongues there were 70 Cluverius Epit. Hist as Cluverius holds Noah's Children were not so many as there were different Tongues and Nations The Heads of Families could not then be distinguished and the People of every different Tongue must have chosen to themselves Heads or have so many Commonwealths or Communities without a Sovereign or Supreme Head When says he the Fathers or some of those Nations made Conquests upon one another as Nimrod did on the Nations about him who was called a mighty Hunter before the Lord or when they were otherwise incorporated together These made the ancient great Monarchies whereof the Assyrian and Egyptian are famous in ancient History This his great Hunter before the Lord or upon the face of the Earth was an Usurper and a Tyrant And (a) The Septuagint 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Via Sir W. Rat. f. 158. citing St. Austin Men of greater Authority than himself instead of before the Lord render it against the Lord. But 1. The Heads of those Nations as appears were not all Patriarchical Heads but many of them must have been Chosen by the People 2. He leaves room for a voluntary Incorporation of all Fathers of Families in which we say consists a Civil Society 3. Families so incorporated cannot be dissolved at pleasure of every Individual as his Patriarchate may 4 Several Powers and Necessities arise upon such an Incorporation of Men who have distinct Interests and Properties which are not within single Families where the Property is in one 5. According to himself God had given the Power to every one of these Fathers before the Incorporation And the Sons of these Fathers are admitted at full age to make themselves Families and so ad infinitum these are a Community or People And all these as Fathers of Families have equal Patriarchical Power If then this Power be Sovereign when they or the majority give up their Power to One the People give him a Sovereignty over them which he had no Right to before their Gift And thus with God's Permission the People confer Power Quod erat demonstrandum Upon his supposed Expiration of the Patriarchate in Egypt Pag. 9. to the setting up of Kings he will have it That God's People were governed first by Moses as a King and after by Judges of God's Nomination or what was equivalent to a Nomination Which equivalent he soon stretches to a proper Nomination For speaking of the Government among God's chosen People from the Beginning to Solomon inclusive Pag. 10. he says There was no other standing Government in that Nation which God chose to be his peculiar People but what was administred by single Persons And those Persons Title to the Government was Patriarchical or by Divine Nomination He seems to have put in the word standing for a fence against instances of other Governments set up among God's People within that time But if the Publick Affairs were regularly administred at any time under any other known Form of Government the word standing either will not help him or ought to be struck out And I desire him to shew the single Person that Govern'd the Commonwealth of Israel or Headed them upon every Emergency from the time of (a) Judges c. 1. Vid. Sir W. Rawl Hist f. 350. Tit. Of the Intrregnum after Josuah's Death Josuah to Othniel during which interval they carried on several Wars with success in the Name of the People of Israel I think I need not put him to prove that the Judges in Israel were Sovereign Princes or to Answer Mr. Harrington's Commonwealth of Israel Nor to evade those Texts which besides the Prophet seem to place the High-Priest above the Temporal Judge When God's Chosen People came to have Kings he tells us God was pleased so far to grant his Peoples request that they should be an Hereditary Kingdom The request was to have a King that they might be like all the Nations 1 Sam. 8.20 But himself says In most Nations we read of at that time it was the Peoples part to Chuse who should Rule over them pag. 9. According therefore to them who would have the manner of the Kings of other Nations at that time to infer a Right in the Jewish Kings and the manner of the Jewish Kings a Right in all others the request of the Jews was not to have such an Hereditary Kingdom as he contends for but a Kingdom wherein the People might chuse their King If by Hereditary Kingdom he means an established Monarchy where the People were to be Governed by a Succession of Kings and no other Form of Government that might be the effect of a Promise made long before And yet even that related not to all the People of Israel The Scepter shall not depart from Judah if it be taken for the Government of one alone over the whole Body of that Nation For that People was divided into two Kingdoms however they might have a settled Monarchy and yet the People might have chosen the first King and every Successor For the first King of the reigning Line he says God would have the chusing of him himself and accordingly he chose Saul But himself admits That the Kingdom was not Hereditary to him Observe so much of the Fundamental Law of the Jewish Kingdom as is now extant concerning the setting up of a King among them When thou shalt say I will set a King over me like as all the Nations that are about me Deut 17.14 Thou shalt in any wise set him King over thee whom the Lord thy God shall chuse one from among thy Brethren shalt thou set King over thee Thou mayst not set a Stranger over thee which is not thy Brother ver 15. Was this a Law to God himself or a Promise That he would never set a Stranger over them Or was it a Law to them for a Limitation upon their Choice If it were God's Promise then he would never have suffer'd them to be in Captivity to any Foreign Prince If it were a Law to them then how much soever it might be God's Choice as being within the Rule which he gave them yet it was properly the Choice of the People Suitably to which the Learned Grotius (a) Grotius de Jure Belli Pacis lib. 1. cap. 4. sect 7. Quod lex vetat alieniginam popuso prefici de voluntaria electione intelligendum est c. rightly observes That the Law which forbids a Stranger 's being set over the People is to be understood of a Voluntary Election not of what the People was compelled to do through the necessity of Times If
Commissionated by him The Great and Victorious King Edward I. Stat. 7. E. 1. Rast f 25. An. 1279. the Prelates Earls Barons and Comonalty of the Realm above Four hundred Years ago set up a Land-Mark to Posterity Which one would have thought they could not have gone beyond declaring That the Subjects are to Aid the King to Defend Force and Punish Offenders according to the Laws and Vsages of the Realm But in the ferment of Loyalty upon the Restauration the Flowers of some falling in with the prevailing humour and hopes of Preferment made Men quit the substance of lawfully Commissionated though they were convinc'd by the solid Arguments of the Great Vaughan afterwards Chief Justice of the Common-Pleas That this was in effect to give up Magna Carta and all the ancient Liberties purchasd at the expence of so much Blood and Treasure It was therefore yielded by the Chief Advocate for a Commission without the incumbrance of lawful that it ought to be implyed But however it past as a Snare at a time when it was well known that if Charles II. was not a Papist his Brother James was But as to the Laudaean Canons of 1640. it was the same Year unanimously resolv'd by the House of Commons Rash Hist Col. 2d Vol. Resolv'd Decem. 17. 1640. Nullo contradicente That they do contain in them Matters contrary to the King's Prerogative the fundamental Laws and Statutes of the Realm to the Right of Parliament to the Property and Liberty of the Subject and Matters tending to Sedition and of dangerous Consequence Nay Stat. 13. Car. 1. c. 1. Not to confirm the Canons made An. 1640. that very Parliament in which the High Church or Laudaean Party so far prevaild as to pass the cramping Oath put a particular Mark of Reprobation upon the Canons of 1640. And the Oath is now repeal'd so that if it ought to have been taken strictly the Constitution of the Government is now freed from the Invasion But there is a Notion which makes specious Pretences to be part of the Constitution Which is That this Government has been made Hereditary in such a sence Discourse p. 15. that a Right to it is given by God alone to the Person who stands next by reason of Birth This imposes upon our B to believe a necessity to maintain that this Divine Right has been set aside by a Divine Judgment and that our present Settlement results from the Event of a just War made by a Sovereign Prince Or to go in the path of the Answer to Ashton's Paper Discourse p. 47. An excellent Book c. to which our B gives his Approbation or Episcopal Confirmation That the Right to the Government is Conquest His Notion of Hereditary as it has appeard has no Foundation from among the Jews Answer to Asht pag. 23. from whose Polity he would fetch Examples obligatory to us Dr. Hicks admits Pref. to Jov. p. 11. That the words Heir Hereditary c. never in the Latin or Greek Authors signifie in that especial manner which he presumes that they do here And it has been shewn Vid. The Fundamental Constitution of the English Government proving Their Majesties our Lawful and Rightful King and Queen and may appear more fully That no such Notion has been anciently receiv'd in our Law Our B says indeed from Cerdic King of the West Sanons the Descent of our Royal Family is unquestionable If he means that the Descent of the Crown has always from that time gone in a right Line there is no colour for the Assertion Nay it will be difficult to shew the Right of the Family acknowledg'd and observ'd before Ina's time If he means that the present Royal Family can make out their Pedigree from Cerdic what is that to the inalienable Right of Inheritance in the next of the Line If by Hereditary be meant no more than the Inheritance of a Family such an Inheritance as may solve all the Breaches or rather Windings in the Royal Line from Ina's time to this day we might agree by putting in Ina at the Head of the Right of the Family But I challenge him to shew that the next Heir of the Family has always succeeded even from Inas time or been accounted to have had Right to succeed or which is us'd as a Supplement that the Nomination of the Rightful Possessor has been always had or thought necessary where he that succeeded was not the next upon the Line But to shew to how little purpose he has laboured I must mind him of the Clause in S. Edward's Laws the Receiving and Keeping which is part of the Coronation Oath by which if those Laws are wilfully broken by the King Nec Nomen Regis in eo constabit Not so much as the Name of King shall abide in him Suitable to this is that Passage in a Speech made by K. James I. to his Parliament Cited pag. 23. wherein he tells them Every King in a settled Kingdom is boundto observe the Paction Na. Paction or Contract made to his People by his Laws in framing his Government agreeable thereto And that a King governing in a setled Kingdom leaves to be a King and degenerates into a Tyrant as soon as he leaves off Governing according to his Laws In which case the King's Conscience may speak to him as the poor Widow said to Philip of Macedon Either Govern according to your Law Aut ne Rex sis Or be no King All this our B himself refers to in his Margin but tells us in such case Kings are not to be deposed by the People nor indeed is there need of it for it appears that they by their own act cease to be Kings and therein depose themselves If there were any doubt upon so much of the Speech as we now have there was none in the words then spoken to the Parliament at least there is none in that Sense in which they took his Speech and he submitted to For they to keep him to his word and handsomely to admonish all future Kings of the Consequence of breaking Fundamental Laws wisely repeat the Substance of his Speech in the Preamble to an Act of Parliament wherein they say His Majesty hath vouchsafed to express many ways Stat. 1. Jac. 1. c. 1. how far it is and ever shall be from his Royal and Sincere Care and Affection to the Subjects of England to alter or innovate the Fundamental and Ancient Laws Priviledges and Good Customs of this Kingdom whereby not only his Regal Authority but the Peoples Security of Lands Livings and Priviledges both in General and Particular are Preserved and Maintained And by the Abolishing or Alteration of the which it is impossible but that present Confusion will fall upon the whole State and Frame of this Kingdom Here is in effect the Judgment of Parliament as well as Confession from the King of the Consequence of a King 's altering or innovating the Fundamental Laws After this there will be no need to refer to Pufendorf whom the B himself cites to Grotius Bishop Bilson and even Falkner besides many more I need only ask him whether he who assumes a Legislative Power in dispenceing with Laws would not cease to be King of England or by altering a Fundamental Law dissolve the State of this Kingdom But this I find needful to mind him of which I was in hopes he would have attended to that the Parliament has declared that the Throne was vacant upon the late King's Breach of the Original Contract and the Abdication whether one alone were enough to make a Vacancy it is not needful to determine for Vindication of the Settlement both at least were And if King James ceased to be King upon the Breach of the Contract this was a full Justification of them who invited over His Majesty and were at his first Landing ready to Fight on his side against the late King However if there were a Vacancy upon either or both of the Grounds then the Kingdom or Dominion was not taken from a Sovereign Prince against his Will but himself by his own Act Vid. p. 66. dissolved the Bond of Union between Prince and People Now here was no King of Gods setting up after the Vacancy according to the B 's Notion for upon the Abdication the Government did not thereby come immediately to their present Majesties but there was a Vaeancy Vid. The Act reviving Law Proceedings till their Majesties accepted the Crown and the Parliament provided that all Indictments for Misdemeanors in the Interval should be laid Contra pacem Regni against the Peace of the Kingdom or People During that time it seems the Power was lodged in the People how then came it out of them but by the Free Consents of all that were not infected with such Principles as are contrary to the Settlement I would desire him therefore when he treats of Politicks again not to fill his Margin with Quotations which are not in the least to that case to which he would apply them And especially I would advise him as he values what he holds forth for the Doctrine of the Church not to put Men in mind of reading that admirable Author Pufendorf whose Works if they were translated into English would convince all not obstinate against Conviction that this Revolution and Settlement which we say was begun and finished with full Legal Warrant is according to Natural Equity and has the Suffrages of the best Writers of Politicks And let me intreat him not to encourage or raise Scruples against complying with this Government by yielding those Grounds upon which Men may Scruple till they find an Oracle less doubtful a more sure word of Prophesie than Bishop Overal's Convocation-book or this Discourse of God's Ways of Disposing of Kingdoms FINIS