but I can shew you not only the unreasonableness but also the unpracticableness of this supposition First its unreasonableness since you are very much mistaken to alledge that the whole Nation by that Act of recognition to King Iames obliged themselves and their Posterities to him and his right Heirs 'T is true they there tell him That they made that Recognition as the first fruits of their Loyalty and Faith to him and his Royal Progeny and Posterity for ever and also when they have acknowledged him to be justly and lawfully next and sole Heir of the Blood Royal of this Realm and that they thereunto submit and oblige themselves their Heirs and Posterities for ever c. there is no more meant or expressed in all this than that the whole Nation did by their Representatives in Parliament oblige themselves and their Children to King Iames and his Posterity for ever and I think that this part of the Recognition is sufficiently perform'd by placing two of his Great Grand-children in the Throne for as to the words rightful or lawful Heirs they are not to be found in all this Statute But as for your Notion of a Regency it is plain it could have signified nothing either for our present security or future settlement not to the former since this Regent be he whom he would must have Governed in the Right of some body or other since I never read of a Regency in England during a Vacancy of the Throne therfore I will at present admit that the Vote for King Iames's Abdication had never been made only that the Prince of Orange had been declar'd Regent of the Kingdom till such time as King Iames would have given the Nation sufficient satisfaction of his reforming all past miscarriages and that his future Government should be according to Law Now I would very fain know how it can be justified according to your Notion of the King 's absolute irresistible power to place a Regent over the Kingdom to Govern in his stead whether he will or not when it is certain he is neither a Minor an Ideot nor a Lunatick so that then he must have return'd again to the Government whenever he had pleas'd or else the Convention must have been Judges whether the security or satisfaction he offered was sufficiently satisfactory or not for if he himself was to be sole Judge in this case I suppose you will grant this Regency would quickly have been at an end but on the other â—ide if this Right of Judging had been left in the Convention whether the King's proposals were satisfactory or not they might also have voted them not to be so and till this was done they might very well have justified there keeping him out of the Kingdom by force now how that could have consisted with your doctrine of the Kings Irresistible Power I desire you would satisfie me if you can so that by this Regency the King must either have been deprived of his whole Power or he must not if the former that would have been as good as Deposing him from being King and had left him no more than the bare Title and whether this had not been a great deal worse as more Hypocritical than the Conventions declaring him to have Abdicated the Government I leave it to any indifferent person to Judge But if you will suppose that this Regent must have Govern'd in the name of your Prince of Wales as being declared King that would have been to have granted his Title to be good without hearing of it and had been indeed to have given up the main point in dispute M. I see you would fain find out any shifts for this pretended Vacancy and placing those in the Throne to whom it doth not belong yet though I grant that the word Right Heirs are not expresly recited in this Act of Recognition to King Iames I. yet for all that it is implyed for the Oath of Allegiance is Enacted by I. Eliz. to be taken to the Queen her Heirs and lawful Successors and by the Oath of Supremacy Enacted in the IVth of King Iames we are likewise obliged to swear that we will bear true Allegiance to his Majesty his Heirs and Successors now who these Heirs are this very Act of Recognition doth sufficiently declare viz. The next Heir by Descent of Blood for as King Iames is hereby acknowledged to be Heir by Inherent Birth-right so when they oblige themselves and their Posterity's to King Iames and his Progeny it is to be understood by parity of reason that they oblige themselves and the Nation for all future Generations to Him and his Issue in that sense as that their Allegiance should be only due to him or her who should be Lawful Heir to their Father Brother or Uncle according to those rules of Succession that had been commonly received for above four hundred years last past that is to say the Eldest Son Brother or Daughter being still to be prefer'd before the Younger and Sons before Daughters and the same rule must also hold for their descendents since upon this ground it was that the Title of the House of York was prefer'd by Parliament before that of Lancaster and the Title of the King of Scots who was descended from the Eldest Sister before that of the House of Suffolk who came from the Younger and this being never alter'd by any subsequent Statute or if it had I think it would not have been good the Convention ought either to have declar'd the Prince of Wales King immediately or at least to have continued the Throne Vacant let the difficulties or inconveniences that you suppose might have followed to be never so great and therefore it was their duty to have fought out King Iames and the Prince where-ever they had been and to have desired him to have sent over the Prince together with the Witnesses that went away with him and till this had been absolutely refus'd or else that upon a fair hearing this Prince had been proved an Impostor I say till one of these had been done the Throne ought still to have continued Vacant if it were so at all nor till this had been clear'd could they have justified the placing any body else upon the Throne though never so nearly related to the King whom I will suppose for discourse sake to have really Abdicated the Kingdom F. I will not deny that the legal and common course of Succession ought to be inviolately observed according to the Rules you have now laid down when ever it may consist with the publick good and safety of the Kingdom and yet for all that I cannot believe that the King himself much less any other that only pretends as next Heir to him can have such an absolute Right to the Kingdom as that no considerations whatsoever can make them lose or forfeit their Right thereunto therefore I look upon the Government of a Kingdom not to be like that interest which a private
so many Years until he finds that instead of a Son he proves an Enemy to his Family or hath so laid wait against his Life that as long as he lives he cannot be safe or else commits some of those heinous crimes which by the Laws of God and Nature do justly deserve no less punishment than Death in short when he ceases any longer to deserve the name of a Son Yet this Authority holds no longer than whilst the Son remains part of his Fathers Family and so Subject to his Power and this I take to be the reason why we do not read that Adam took any notice of Cains's murdering his Brother because he was before freed from his Power by setting up another Family which certainly had been Adam's duty to have done had he been then under his jurisdiction Murder being as great a crime before the Flood as aâ—ter tho' the punishment of in by Death were not positively enjoin'd by God till then But I shall prove this point more particularly by and by as also that Adam's Children might enjoy or enclose some part of the Earth without any grant or assent from Adam to whom you suppose tho' without any proof as yet that the whole Earth was given by God To conclude I doubt you mistook me when you say I at first affirmed that all Civil Government was ordained by God for the benefit or advantage of the the Subjects rather than that of the Governours and therefore you undertake to shew me that in the first and most natural Government viz. that of a Family Children who are subjects in the state of Nature are ordained as much for the benefit and help of their Parents who are their Princes or Masters as their Parents for them in which assertion you fall in to more than on mistake for I do not assert that in Civil Government the benefit or advantage of the Subject is only to be considered For I shall easily grant that Princes may very well challenge a very great share in the honour and other advantages that may be reapt by their Government and yet for all that when the happiness and preservation of the Subjects is incompatible with that of the Prince the former is to be preferred and Bishop Sanderson is of this opinion when he tells us in his Lecture De Iuramento That the end of Civil Government and the obedience that is due to it is the safety and tranquillity of humane society and therefore the end is certainly to be preferred before the means when they cannot both consist together but this is no argument for the preferring the benefit or advantages of Parents before that of their Children since Paternal Government is not Civil Government nor are Fathers absolute Princes or Masters over their Children as you suppose and yet I think I may safely affirm that even in this Paternal Government tho' it be granted that Children are ordained for the benefit or help of their Parents yet when their happiness and preservation is inconsistent with that of their Children it may be a great doubt which is to be prefer'd since Gods chief intention in Parents was for the Preservation and Propagation of Mankind and therefore I cannot see how it could ever be any part of the Paternal Power for a Father to make his Child a Slave or to sell him to others at his pleasure as you suppose This being no part or end of the design or duty of a Father And whereas you lay to my charge my mistaking the true sense of those Civil Law Maxims you have quoted I think I can easily prove that the miâ—â—ake lyes on your side and that you have misapplied them to make them serve your purpose For as to your first Maxim Partus sequitur Ventrem from which you infer that the Child ought to be of the same condition with the Mother this rule in your Civil Law relates only to Bastards and not Legitimate Children who follow the condition of the Father according to your Digest Qui ex uxore mea nascitur filius mariti est habendus so likewise in your Code Cum legitimae nuptiae factae sunt patrem liberi sequuntur vulgo quaesitus matrem sequitur Nor is your second Maxim more true for tho' I grant according to your Roman Law the Father might have absolute power over his Wife and Children yet I cannot see how this word and nascitur can be extended beyond those that are born of a man and his Wife and therefore can never concern Grand-children much less any more remote Descendants and this very Law that a Son or Daughter might be killed by a Father seem'd so cruel and odious even to the Antient Romans themselves that neither the Law of the Twelve Tables nor the Iulian Law of Adulteries which were provided against Fathers Sons and Daughters ever extended it to the Grand-Father Grand-son or Grand-daughter by Interpretation or argument à casâ—â— consimili Nor do these words in Potestate mea est prove more than that all Children are born under the Power of their Parents tho' whether they shall always continue so as long as they live is not to be proved from this Maxim nor if it were doth that make it a Law of Nature For I must needs observe this of divers of you Civilians that what ever Maxim you find in your Civil Law Books that will make for your Notions you presently adopt them for Laws of Nature without ever enquiring by the strict Rules of Reason and the Good of Mankind by which alone any Law of Nature is to be tryed whether they are so or no. I shall not trouble my self to confute those false Conclusions you have brought from those weak Promises for if I have destroyed your Foundation I think your Superstructure cannot stand and therefore you must pardon me if I cannot find this Original Charter of Government and of all Civil Power to be derived from Adam by any Argument that yet you have brought either from Scripture or Reason only give me leave to observe thus much upon what you have said That if not only the Constitution of Civil Power in general but the special Limitation of it to one kind viz. Monarchy be the Ordinance of God I cannot see how any other Government but that can be lawfully set up or obeyed by Men since no Government can challenge this Priviledge against Divine Institution M. Since this Hypothesis doth not please you I shall be glad if you can shew me any better Original either of Adam's Paternal Power or of Civil Government than this that God gave Adam over Eve who indeed was as at the first Subject so the Representative of all that followed and it reaches not only to all her Daughters in relation to their Husbands but to all of them in relation to their Fathers and to her Sons too in relation to both their Father and their Eldest Brother after his Decease if no body
And of this he here gives us several Examples of different customs amongst Nations in making War upon each other according to diverse forms or tacit Agreements whereby War may be managed with a little Cruelty as may be but thus he proceeds These Customs altho' they may seem to contain some Obligation as arising from this sort of Tacit agreement amongst Nations yet if any Prince shall wage a lawful War or neglect them or should do quite contrary to them he would not be guilty of any sin against the Law of Nature but only of a piece of Roughness or Incivility that he did not make War according to those Rules of Honour which are used among them by whom War is looked upon as a liberal Art And a little farther proceeds thus Amongst the principal Heads of the voluntary Law of Nations Grotius reckons the right of Ambassadors where we also suppose that by the very Law of Nature Ambassadors are inviolable even with the Enemy as long as they appear Ambassadors and not Spyes and do not contrive Plots against those to whom they are sent and having shown the necessity of Ambassadors in order to Peace he thus goes on but there are other priviledges Attributed to Ambassadors especially to those who reside in a place rather to fish out the Secrets of another State than for Peace sake those priviledges depend from the meer indulgence of that Prince to whom they are sent and so if it seems good to him may be denied them without the violation of any Right if he will likewise suffer that his own Ambassadors should be Treated in a like manner M. I see whether this Author tends but do not understand what use you â—an make of it to your purpose F. But I will quickly shew you if you please to have a little Patience and therefore to apply what I have now read to the matter in hand in the first place it is apparent from this Author that the Law or Custom of Nations hath no Obligation as such but only as it agreeth with the Law of Nature and the Law of God and what Laws of Nations are founded on the Law of Nature can only be tryed by some rule which certainly is not to be learned from the Knowledge of the Customs or Laws of all Nations since who is able to know them all And therefore these Laws must be tryed either by the natural light of a Man 's own Conscience or else by considering whether this or that practice of a Nation conduces to the Honour or Service of God or the common good and happiness of Mankind and so may be known as well by the unlearned as the learned Now I suppose you will not affirm that this Law of the absolute Property and Dominion of Fathers in and over their Children can be discovered by either of these ways or that a Mans Conscience will tell him that it is his duty to let his Father Kill him or Sell him or use him like a Brute without any contradiction or resistance And as for the other I think I have sufficiently proved that this absolute power which you assert of Fathers over their Children doth not proceed from that great Law of Nature viz. the common good and preservation of Mankind to which the practice of it may prove very destructive which if proved I think I may easily answer all that you have now said about the particular Customs or Laws of diverse Nations concerning this Matter tho' your Instances were many more than they are For in the first place as for those you alledge out of the Scripture they do as I said before only regard thâ— Municipal Laws of the Iews those of the Romans touching this matter did only concern those Common-wealths whilst they were in being and no other Nations whatsoever and for this opinion I have both Grotius and Pufendrof of my side for the former in the beginning of the Chapter last quoted after having set down the different Powers which Fathers may exercise over their Children according to their different Ages thus affirms as you may here see Whatsoever is beyond these Powers proceeds only from a voluntary Law which is different in diverse places so by the Law which God gave the Iews the Power of the Father over his Son or Daughter to dissolve their Vows was not perpetual but only endured as long as the Children were parts of their Fathers Family And by the same Rule I may add that Children were not reckoned as part of their Fathers Goods and to be sold by him or seized upon by Creditors for his Debts any longer than they continued Members of their Fathers Family and consequently were not seized upon as his Sons but Servants And I desire you to shew me an Example where ever among the Iews the Children after they were Adult and parted from their Fathers House were sold or seized as Slaves for their Fathers Debts And as for the Romans it is plain they acknowledged their Patria Potestas to be in use amongst them neither by the Law of Nature or Nations but only from their own Civil Law as appears by this Title almost at the very beginning of Iustininian's Institutions as I suppose you know better than I Patria Potestas est Juris Civilis Civium Romanorum propria The Text follows in these words as I remember Jus Potestatis quod in liberos habemus proprium est Civium Romanorum nulli enim alii sunt homines qui talem in liberos habeant Potestatâ—â— qualem nos habemus And therefore they would not permit strangers to exercise it over their Children within the City of Rome And if the Power of the Father among the Jews and Romans was not by the Law of Nature or Nations no more could it be so tho' exercised amongst never so many other Nations since if it were one of the Laws or Preceps of Nature it could never have been taken away or restrained by any Civil Law without the express Consents of all Fathers And as for your Instance of Cymon amongst the Athenians it makes nothing to this purpose since if I take it at the worst it maketh no more than that the Athenian Common-wealth dealt very ungratefully and Tyrannically with Miltiades and his Son and it might be that they kept him Prisoner as being Heir to his Fathers Principality in the Thracian Chersonnese out of which they supposed he might pay the Debt as the King with us doth often put an Heir in Prison for his Fathers Debts where he hath Assets by Descent But for all your other Examples unless they have a reason in Nature to support them they will no more prove that by the Law of Nations Fathers should have a Right of Life and Death or of selling their Children than if you should argue from the Common Custom amongst the Lacedemonians the Aborigines in Italy the Inhabitants of the Kingdom of Sophiris as amongst the Indians mentioned by Qu Curtius and
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
now they might then certainly have chosen Wives for themselves when they were of years of dicretion and capable of Marriage And farther to shew you that Children may in some Cases seperate themselves from their Fathers Family and Subjection without their Fathers consent is apparent as to the Daughters who if they were at first obliged by this precept to Marry might likewise do it whether he would or not and were to be obedient to their Husbands when they were Married the obedience which they before owed to their Father being now transferred to their Husband or also they must serve two Masters which is against our Saviours Rule by which it appears that the subjection of Daughters in the State of Nature is not perpetual And to prove that Sons have a like Right to separate from their Fathers Family let us suppose that Adam had been so cruel and unnatural as some Fathers are that being only sensible of the profit he received from his Sons labours he would never have permitted them to leave his Family nor to enjoy any thing of their own but would have kept them like Slaves as long as they lived if you affirm that he might have done so if he had pleased and that the Sons had no Lawful means to help themselves since he only was Judge whether ever he thought fit to set them free or not You your self have already granted the contrary when you affirmed that a Father had no Right to sell his Child as a Slave and then sure he can have as little Right to use him so himself But as for what you say against that natural equality of Children to their Parents considered as Men you might easily have understood it if your thoughts were not so wholly taken up with this transcendant imaginary Empire of Fathers in the State of Nature as if they were some what more than Men. For pray tell me are they not equal who have the same Right from God to the same things For if Fathers have a Right to live and be preserved so likewise have the Children and if they have a Right to the end they have likewise the same to the means necessary thereunto such as are food rayment freedom from Slavery c. And if they are thus equal they must likewise when they attain to years of discretion be endued with a Power of judging for themselves concerning what things are necessary to their happiness and perservation and what tends to their misery or destruction and consequently may very well judge whether their Fathers treat them kindly or cruelly for if the Father in the State of Nature in the sole Judge of the means that conduce to his Sons happiness and preservation without his consent he may determine that Poverty Slavery and Torment shall be fit means and conducing to this end which is against sense and reason and tho I grant that Sons may sometime be mistaken in the true means that may lead to these great ends of life yet doth not this take away their Right of judging for themselves any more than it doth the same Right from their Fathers who as Men are also lyable to the like mistakes Neither did any Slave or Subject ever give up his will so totally to his Master or Monarch as absolutely to renounce all Right to happiness and self preservation or to the means that may conduce thereunto But I think we have sufficiently debated this great point of the Natural Power of Fathers over their Children and therefore Let us in the next place consider whether Children may not upon these Principles in some Cases make use also of self defence even against their Fathers if they cannot otherwise avoid certain ruine and destruction therefore I will first ask you what you think of this Case A Son in the State of Nature being separated from his Father's Family and having Children and House of his own what shall he doe in Case his Father by the evil suggestions of a Step-mother or other wicked Persons be so far incensed against his Son as to send Men to burn his House plunder him of his Goods and destroy his Plantation M. If the Son be absolutely set free from his Fathers Family and Power with his consent I do not deny but that such a Son may resist those Persons his Father sends to ruine him and his Family and may repel their violence by force but I do not allow the Son the same power to resist the Person of the Father if he should come himself thus to destroy him F. Why so Do you think a Father by being so hath any greater Right to destroy his Son and ruine his Family then a Stranger M. No but because the Person of a Father ought always to be esteemed by the Son as Sacred as his Natural Prince and if he should have a Right to resist his Father by force he might happen to kill him in the scuffle which would be a sin against Nature F. Well suppose the worst would this be more a sin against Nature than to suffer himself Wife and Innocent Children to be turned out of all they have and left to perish by hunger and cold St. Paul says That he that doth not provide for his Family is worse than an Infidel and I think so would the Son be if for fear of hurting his Fathers Person he should permit all his Family to be exposed to certain beggery and ruine M. This precept of St. Paul obliges only when a Man may provide for his Family by Lawful means but not when it cannot be procured but by doing what is unlawful as I take this resistance of the Person of the Father to be F. I grant indeed that a Father acting as such is not to be resisted even when he corrects his Son but I suppose you will not say that in the Case I put he acts as a Father but an Enemy when he goeth about without any just occasion to kill or ruine him unless you can suppose that the will to preserve and destroy can consist together in the same Subject neither can you affirm that the Father hath any right to deal thus wickedly and violently towards his Son and his innocent Family By what Law then must the Son be obliged to Sacrifice his own life and that of Wife and Children and all that he hath to this imaginary Duty M. There seems to me two good reasons for it The first is that gratitude which the Son must always owe his Father for his Being and Educaâ—ion and therefore if he give up his Wife Children and all that he hath to his Will it would scarce be a sufficient requital for all the Benefits he hath received from him The second is because no circumstances whatsoever can take off or obliterate this Relation and thô 't is true your Father whilst acting thus doth not deal with you as a Father but an Enemy yet he is still your Father and you are and will be always his
the sole Will of the first Princes in which the People had no hand for in the most Antient Monarchies there was a time when the People of all Countreys were Governed by the Sole Wills of their Princes which by degrees came to be so well known in several instances that inferior Magistrates needed not resort to them in those cases and the People being for a considerable time accustomed to such Usages they grew easie and Familiar to them and so were retained tho the Memory of those Princes who first introduced them was lost and after Kings finding it better to continue what was so received than to run the hazard and trouble of changing them were for their own ease and the good of their Subjects contented they should be still from Age to Age so continued Which custom may hold as well in Laws about Succession as other things And therefore we find that even in those Monarchies where the People have nothing to do in making Laws Women are excluded which could proceed at first from nothing else but the declared Will or Law of the first Monarchs So likewise the Original of the Salique Law is wholly ascribed to Pharamond the first French King and Mariana whom you lately cited tells us that Alphonso King of Arragon made a Law that where Heirs Male were wanting the Sons of a Daughter should be preferred before the Aunt which Law is wholly attributed to the King for he adds presently after Sic saepe ad Regum arbitrium jura regnandi commutantur F. Granting all this true that you have said you cannot but confess that the Laws of God and Nature have established nothing in this matter or else it could not be in the Power of Kings to make or alter Laws concerning the succession as your last Quotation intimates they may yet even in the most absolute Monarchies the Laws about the Succession of the Crown must wholly depend upon the Consent of the People who are to see them observed or else every Monarch might alter these Laws of Succession at his pleasure and the Great Turk or King of France now the Assembly of Estates is lost might leave the Crown to a Daughter if either of them pleased and disinherit the next Heir Male. But as for the Original of this â—alique Law in France you 'l find your self much mistaken if you suppose that that Law was made by the Sole Authority of Pharamond for the Antient French Histories tell us that the Body of Salique Laws which are now extant were made by the Common Consent of the whole Nation of the Francs who committed the drawing of them up to three Judges or Commissioners and which Laws Pharamond did only confirm and any one that will but consult those Histories may see that Kings were so far from having the Sole Legislative Power in their own hand that they were frequently Elected by the Estates nor is it truer that you suppose from Mariana that the Kings of Arragon had Power alone to make Laws it appears quite contrary from the Constitutions of that Kingdom where the King could do nothing of this kind without the Consent of the Estates and was not admitted to the Crown without taking an Oath to the Chief Justice in the name of the People that he would observe the Laws and Constitutions of the Kingdom otherwise that they would not be obliged to obey him But at once to let you see that about the Succession of the Sons or Descendants by Daughters the Cases are much more nice and intricate and that when such Cases happen in limited Monarchies where there is an Assembly of Estates they are the Sole Iudges of such differences may appear by two famous examples in modern History The first is in Scotland about four hundred years ago when after the Death of King Alexander III who died without Issue when two or three several competitors claim'd a Right to the Crown as descended from several Daughters of David Earl of Huntington great Uncle to the last King the Chief of which being Iohn Bayliol and Robert Bâ—uâ—â— the Estates of the Kingdom not being able to decide it they agreed to refer it to Edward I. King of England who adjudged the Crown to Bayliol yet did not this put an end to this great controversie for not long after Bayliol being deposed Bruce revived his Title and the States of Scotland declared him King whose Posterity enjoy it at this day A like Case happened in the last Age in Portugal after the Death of Henry surnamed the Cardinal without Issue when no less than four Eminent Competitors put in their Claim some claiming from the Daughters of Don Durate youngest Brother to the last King Henry But the King of Spain and other Princes as Sons to the Sisters of the said King Henry dying without Issue left ten Governours over the Kingdom to decide together with the Estates the Differences about the Succession who quarrelling among themselves as also with the Estates before it was decided Philip the second King of Spain raised an Army and soon conquered Portugal And yet we have seen in his Grand son's time that the Estates of Portugal declared this Title void and the Crown was settled in the Posterity of the Duke of Braganza who still enjoy it And how much even Kings themselves have attributed to the Authority of the Estates in this matter appears by the League made between Philip the Long King of France and David King of Scots wherein this condition was exprest That if there should happen any Difference about the Succession in either of these Realms he of the two Kings which remained alive should not suffer any to place himself on the Throne but him who should have the Judgment of the Estates on his side and then he should with all his Power oppose him who would after this contest the Crown To conclude I cannot see any means how if such Differences as these had arisen in the first Generation after Adam I say how they could ever have been decided without a Civil War or else leaving the Judgment thereof to the Heads or Fathers of Families that were then in being Which how much it would have differed from the Judgment or Declaration of the States of a Kingdom at this day I leave it to your self to judge M. I shall not trouble my self to determine how far Princes may tye up their own hands in this matter of the Succession and leave it to the States of the Kingdom to limit or determine of it but from the beginning it was not so and therefore give me leave to trace this Paternal Government a little farther For tho' I grant that when Iacob and his twelve Sons went into Egypt together with their Families they exercised a Supreme Patriarchal Jurisdiction which was intermitted because they were in Subjection to a stronger Prince Yet after the return of these Israelites out of Bondage God from a special
succeeding immediately upon his said Fathers resignation there could be no Vacancy of the Throne to which I answer that I do not deny that after this King was once setled in the Throne but that he might think it most to his honour and the independency of his Title to relye wholly upon his Right of Succession as Eldest Son and Heir without taking any notice of the Parliaments Election of him tho' this be also convertly expressed in these words which are in this Writ and Proclamation viz. ` That consenting to his said Fathers pleasure he had taken the Government de consilio advisamento Praelator Com. Baron Magnat Communitat praedict which though you translate by Council and Advice of the Prelats Earls Barons and Commonalty yet I do suppose that by consilio is here meane not Council but Consent as I have already proved the word consilium often signifies in our antient Statutes for otherwise if this word must here signifie Council it would be a plain Tautology for Advice and Council are the same thing But to shew you also that there must needs have been a vacancy of the Throne either upon the Deposition or Resignation of Edward the 2 d. take it which way you will appears from matter of Fact for it is plain that when Prince Edward refus'd the Crown upon the Parliaments Electing him unless his Father would willingly resign it he did at their request resign his Title to it by certain Commissioners sent down to him to Kenelworth Castle to take it now that place being at least two days Journey from London it is certain there must be as many days vacancy of the Throne if not more before the said Commissioners could get to London and that Prince Edward had agreed to take the Crown upon his Fathers Resignation for till then the Throne was Vacant since till the Prince had declared his assent to take it he might have chosen whether he would have accepted of it or not as not being satisfied whether his Fathers resignation were voluntary and not by constraint Now if there were a Vacancy of the Throne in this case though but for two or three days it serves to prove the matter in question as well as if it had been for two years So likewise let the Reign of King Henry the IVth begin either from the Resignation or Deposition of King Richard the II d. take it which way you please there must have been a Vacancy of the Throne as appears by the Parliament Roll still extant For it is there plain that after the instruments of King Richards Resignation and Deposition were solemnly read that the Throne continued Void for some space Till such time as Henry Duke of Lancaster stood up and made his Claim to it in that form of words which stands to this day to be seen upon the Parliament Roll and that the Arch Bishop of Canterbury taking the Duke by the hand had led him to the Throne and placed him therein M. I cannot deny but as you have set forth the matter of fact there must have been a Vacancy of the Throne in these two cases but since the depositions of both these Kings were contrary to Law and their resignations extorted from them by constraint whilst they were in prison they are neither of them looked upon as valid or to be urged as presidents in future times But however the Throne might seem then to be Vacant in point of fact yet in Law it was otherwise for Edmund Earl of March ought to have immediately Succeeded upon the Death or Resignation of King Richard as being Lineally descended from Philippa only Daughter and Heir to Lionel Duke of Clarence Third Son of King Edward the IIId But to let you see that Henry Duke of Lancaster as much an Usurper as he was yet was so sensible that the Crown could not be then enjoyed by Election but by Right of Blood and that the Parliament also thought themselves in duty bound to submit to him to whom by Right of Blood the Crown did belong Will appear from this Dukes manner of laying claim thereunto Which since you have not particularly mention'd I will For no sooner was the Throne Vacant by the pretended voluntary resignation of King Richard but Duke Henry having fortified himself with the sign of the Cross stood up and made his demand of the Crown in his Mother-Tongue in this form of words as I have extracted them out of the Parliament Roll. In the Name of the Father Son and Holy Ghost I Henry of Lancaster challenge this Reawme of Inglonde and the Corone withall the Members and appurtenances also that I am Descendit by Right Line of the Blode comyng fro the gude Lord King Henry the Third And thorghe that Right that God of his Grace hath sent me with the help of my Kyn and of my Friends to recover it The which Reawme was in poynt to be undon for default of Governance and undoyng of the gude Laws And after which Challenge and Claim says the Record which I render out of Latine as well the Lords Spiritual as Temporal and all the States there present being all severally interrogated what they thought of the aforesaid Challenge and Claim the above named States with all the Commonalty without any difficulty or delay unanimously agreed that the aforesaid Duke should Reign over them Where you may see that this whole Parliament admit the Dukes Claim for good without proceeding to any formal Election of him And by vertue of this pretended Right and Claiming as Heir of Earl Edmund Sirnamed Croutch-back Brother to King Edward the Ist. whom he falsly pretended to have been the Eldest Son to King Henry the IIId and put by for his Deformity did not only himself but also his Son Henry the IVth and his Grandson Henry the VIth though Usurpers Succeed as right Heirs to the Crown till the 39th year of Henry the VIth when Richard Duke of York did in a full parliament lay Claim thereunto in right of his Mother being only Sister and Heir of Edmund Earl of March. And because the Judgment of the Parliament in this case is very remarkable pray read this part of it as it stands recorded in the Parliament Roll. Whereupon consideration of the Answer and Claim of the Duke of York it was concluded and agreed by all the Lords that his Title could not be defeated And therefore for eschewing the great inconveniences that may ensue a mean was found to save the Kings Honour and Estate and to appease the said Duke if he would Which was That the King viz. Henry the VIth should enjoy the Crown during Life the Duke to be declared the true Heir and to possess it after his Death c. And note that all this was done after a solemn hearing of all that could be said on both sides F. I confess the matter of fact concerning King Henry the VIth coming to the Crown is truly recited
Superior to both of them and him interposed and diverted or rather over-ruled it For 1. If a Priority of Being gave Adam a power over his Wife it gave him much more so over his Children 2. If God's taking Eve out of Adam the forming her of one of his Ribs without his concurrence did yet make her his Inferiour his Children were much more so which were derived from him and by his Act. 3. If she were formed for him not he for her and that was another reason this extended to his Children too who were begotten for the comfort and assistance of both him and her 4. When God put Eve under the Subjection of her Husband after the Fall her Children must needs be so too if they were not excepted but we Read of no exception 5. Is it not an Eternal Law of Nature that all Children should be subject to their Parents And did not this Law spread it self over the Face of all the Earth as Mankind encreased And whereas you would limit this Power of Parents over their Children both in its Extent and Duration this is purely owing to the Civil Laws of Nations and not to the Laws of Nature and is different in different places some having restrained the Poweâ— of Parents more and some less But God gave the Parents a Power of Life and Death over their own Children amongst his own People the Jews and that not limited in Duration neither for the Fathers Power over his Son was not determined but by his Death though they could not execute that Power but in the presence of a Magistrate And I am also sure that in all the Histories and Relations I have met with amongst civiliz'd Nations where it is not otherwise order'd by the Civil Laws of the Country all Husbands and Fathers have Power of Life and Death over their Wives and Children and so it is at this day amongst many Eastern Nations and was antiently amongst the Romans Gauls and Persians c. Which power I take not to have been given or conferred on them but rather left to them by the Civil Laws of their Country in the same state as it was establisht by the Law of Nature or rather Nations Now if such Husbands and Fathers antiently had and still have a power of Life and Death in divers Countries over their Wives and Children I desire to know what higher power they could enjoy since he that hath power over a Man's Life which is of the highest concern to him may certainly command him in all things else But as for your last Scruple that you cannot see if Monarchy be of Divine Institution how any Government but that can be lawfully set up or obeyed by Men I think it may be a satisfactory Answer if I tell you that if those who are Born under a Monarchy can justifie the Form they live under to be God's Ordinance they are not bound to forbear their own Justification because others cannot do the like for the Forms they live under let others look to the defence of their own Government If it cannot be proved or shewed that any other Form of Government had ever any Lawful beginning but was brought in or erected by Rebellion must therefore the Lawful and Just Obedience to Monarchy be denied to be the Ordinance of God F. I hope before I have done to give you a clearer Original from the Law of Nature as well of Paternal Authority as Civil Government without recurring to Divine Revelation which as I said before would oblige none but Jews and Christians or Mahometans whose Law is a mixture of both the other In the mean time give me leave to tell you that Eve's being the Representative of all Wives did not put either her self or her Daughters into any absolute Subjection either to Adam or their Husbands if it did then could not this Subjection be likewise owing either to Adam as the Patriarch or Grandfather of the Family or to his Eldest Son after his Decease since this would make every Wife in the state of Nature to have had two absolute Lords her Husband and her Husband's Father which is contrary to our Saviour's Rule That no man can serve two Masters that is in the same kind of Service And therefore it plainly makes out my distinction that there is a great deal of difference between a Conjugal Submission of a Wife to her Husband and a Servile Subjection of a Servant to his Lord as also of that Obedience or Duty which a Subject oweth his Soveraign since by your own Hypothesis it necessarily follows that either Cain's Wife for Example was not to be subject to her Husband or else must be free from all Subjection to her Father Adam But as for any Submission to Cain as Elder Brother after Adam's Decease I desire to be excused medling with it till we have dispatcht the Question in hand I come now to those fresh Considerations you bring for this Monarchical power of Adam for indeed I cannot call them new Arguments because most of them have been answered already The first Consideration is from the Priority of the Being which you suppose gave Adam a Power over his Wife and consequently over his Children but I think his Priority of Being could give him no such Power at all over her and consequently not over them for I desire to know whether if God had been pleased to have Created the same day that Eve was made twenty single Men and their Wives that therefore Adam must have been from his being first Created Monarch over them all unless God had particularly commanded it I grant indeed that from God's Creating Eve out of Adam it did render her inferiour to him and also from God's express command that she was to be subject to him in all Conjugal Duties yet did neither of these render her or her Children absolute of perpetual Subjects and Slaves to Adam And that their being deriv'd from him or by his Act doth not at all alter the Case I have already proved As for the third that if she wene formed for him and not he for her that this must be another reason which must extend to his Children too Here the Assumption is not only false but the Consequence too For she was not only formed for him but that they might be a mutual help to each other and therefore the Scripture tell us A Man shall leave his Father and his Mother and shall cleave unto hit Wife and they two shall be one Flesh which words in my Opinion are very far from proving any such absolute Subjection for no Man can ever tyrannize over his own Flesh and if such an absolute Subjection had been intended from Eve to Adam it had been more consonant to reason for the Scripture to have enjoyn'd her to have left her Father and Mother to cleave to her Husband Whereas indeed there was no more meant by this Text than that when a Man marries he may freely
of this Divine Power of Adam but this I am sure of Parents can never signifie Heirs Male or Female much less a Child who may sometimes according to your hypothesis happen to be Heir but since I am gotten into this mistake I shall not leave my hold but shall make bold a little to argue our Great Grand Mother's Title for indeed I cannot see any reason why her Eldest Son for Example should have any right to Govern his Mother and all his Brothers and Sisters whilst she was alive For first if your Argument from Generation must be good that every man that is born becomes a subject to him that begets him this Argument will serve for Eve as well as Adam since as I have already proved the Mother hath as great if not a greater share in the Generation of the Children than the Father Or secondly if you insist upon the Divine grant you so much â—â—lked of last time of Adam's Dominion over the Creatures in which his Children were included I then proved to you that this Grant was made as well to Eve as Adam And consequently thâ— either she must have thereby an equal right with him or at least after his Decease to this Dominion as a Husband and Wife when joynt Purchasers have to an Eâ—tate at Common Law And lastly If the Commandment of Honour thy Father and thy Mother were then in Force by the Law of Nature or by express Command from God and that by Honouring obeying must be meant as most Commentators agree then it will follow that after Adams Decease all Eves Sons and Descendants tho' never so remoâ—e were to have obeyed or been subject to her and not to her Eldest Son unless you can shew me that the Salique Law against the succession of Women was made by Adam the first Monarch which I suppose you will not undertake to prove M. I must confess I did not consider this difficulty for indeed it might never have happened since Eve might have died before Adam or if she did out-live him which is uncertain yet she was then very old and consequently besides the natural weakness of her Sex uncapable or unfit for Government and so might very well leave it to Seth since Cain the Eldest had by the Murder of his Brother and his flying away into another Country forfeited his Birth-right and made himself uncapable of the Succession F. So then here is a Forfeiture and an Abdication of this Divine Right of Succession in the very first Descent whereas indeed I supposed that this Divine Right had been at least as unforfeitable as the Crown of England the very Descent of which as our Lawyers tell us purges all defects in the next Heir tho' he had murdered his Father and Elder Brother too But I only shew you the absurdity of this Notion and shall not longer insist upon it therefore pray procâ—ed M. I cannot tell what might have been said if Cain had come to claim his Birth-Right but this is certain that he neither did or could come to do it since God condemned him to live in a strange Country far from his Brethren and we read That Cain went out from the presence of the Lord and dwelt in the Land of Nod on the East of Eden and he built a City and called the Name of it Enoch after the Name of his Son Enoch And there are four descents set down immediately of his Family which could be no other than the Princes of that City of Cain's Race So that you see even in Cain's Line the Principality descended to the Eldest Son F. I confess Cain's Children and Grand-Children are particularly set down in Scripture but that they were Princes or Monarchs over their Posterity or which way this City was Governed after Cain's Death whether by one or by all the Sons of Cain is no where mentioned but I see some Men can find even absolute Monarchy in a Text where the Scripture mentions no such thing and no wonder for the Alchymists have found out likewise the invention of their Elixir or Philosophers Stone in such Texts as you or I can see no such thing But to be more serious That a Father should be Lord over his Children and Posterity I confess there may be some colour of reason tho' none cogent enough to make it out But that an Elder Brother hath any Natural or Divine Right to be Lord over all the rest of his Brethren I can find no ground for in reason even upon your own Principles for if every Man by his Birth become the subject of him that begets him it will necessarily follow that a Man by his Birth cannot become a subject to his Brother who sure did not beget him Therefore I suppose you will still insist upon that place in the fourth of Genesis which you cited at our last Meeting when God told Cain speaking as you suppose of his Brother Abel His desire shall be subject unto thee and thou shalt Rule over him From which words I then told you I thought an absolute subjection of Abel and of all younger Brothers whatsoever could not reasonably be inferred for you may remember I shewed you that this Promise by God to Cain concerning Abel might be only personal and relate to Abel only and not to the rest of his Brethren much less all other younger Brothers that should be in the World And in the next place this Ruling might only have been by advice and perswasion and not by any Authority or Right of commanding him So that if this be the place as I suppose it is from whence you would deduce your Divine Right of Elder Brothers being Monarcâ—s over the younger in all Hereditary Monarchies I must freely tell you I think it a very bold undertaking to found a Divine Right upon such doubtful expressions as these of God to Cain M. I confess I was now about again to urge this place to you for as I was not then well satisfied with your explanation of it which you now again repeat so upon second thoughts I am much more unsatisfied with your Paraphrase upon them For you seem to me plainly to pervert the sense of the words and make them signifie just nothing For sure when God spake the same Words to Eve concerning Adam as he did to Cain concerning Abel can you conceive they were meant personally to Eve only and concerned no other Wife that should be after her Or can you assign any Reason why these words should be rather meant personally in the last and not in the first case Unless you will do it out of pure Love to Anarchy and confusion And if you say these words do not signifie any despotick Power but a Ruling or Governing by fair means or persuasion this seemeth meer trifling with Gods Word who says expresly Thy Brothers desire shall be Subject to thee That is say you as far as he thinks fit and thou shalt rule over him that is if
not only Kingly Power in General but also the succession to it by the Eldest Son or his next Brother is of Divine Right or Institution or else all that you urged concerning the Natural right of Dominion of Cain over Abel was to no purpose But now you insist that succession by a Testament or Will of the Father is also as much by the Law of Nature as the other in which I think you are very much mistaken since the right of bequeathing Kingdoms or any thing else by Testament is neither prescribed by the Revealed Will of God nor the Laws of Nature since all setled Property in Lands or Goods before the institution of a Civil Government proceeding only from occupancy or possession must cease in the State of Nature with the life of the occupant or possessor Therefore in that state a Testament cannot take place by the Testators Death since as soon as he Dyeth his right in the thing bequeathed is quite lost and extinguished so that the Dead not having an interest in any thing the Legatee cannot sustain the person of the Testator whose Right ceases before that of the Legate can take place And therefore the Testament or Disposition of such things may then without any Crime be neglected or altered by the Survivors unless all those who pretend an interest in it do agree to it or swear to see it fulfilled during the Testators Life time And for this cause we find Abraham binding his Servant that ruled over his House with an Oath not to take a Wife for his Son of the Daughters of the Land And Iacob taking an Oath of Ioseph not to bury him in Egypt because they doubted whether they could oblige their Sons or Servants to do it by their Testaments So that it appears evident to me that the Power of making Testaments and bequeathing Lands or Goods is but a consequence of that Propriety in Lands Goods or Dominions which arises from compact or common consent in a Kingdom or Common-wealth after it is instituted as I think I am able to prove whenever you please to discourse with me farther about it But as for the Right of bequeathing Crowns or Kingdoms by Testament as I will not deny but that some Kingdoms may have been bequeathable by their Original Constitution and others become so by Custom yet I cannot grant that this Right belonged to the Prince or Monarch by the Laws of God or Nature but proceeded pâ—rely from the received Law or continued Custom of that Kingdom so that you must either confess that there is no such thing as a Divine Right of Succession or else it is such a one as signifies as much as nothing since humane Laws or Constitutions can alter it or take it away So that after all this Pother about this Divine Right it is not so good as an old Estate Tayle which formerly no fine could bar And I must farther tell you that I cannot assent to your opinion that succession by a Will or a Testament is so certain as that by Inheritance since all such Testaments must depend upon the Credit of the Witnesses whose Credit may often be questioned by the Subjects and who may very well for their own ends make a Younger Son to have the whole or at least a share in the Kingdom to whom his Father never intended any and which was likewise more easie to be done before such time as Written Wills or Testaments solemnly published according to forms of Law came in use But because you suppose that the Natural Laws of Succession to Kingdoms are so plain and certain that I may a little convince you of your mistake in this matter I shall for the present suppose that the Succession of an Elder Son or Brother is sufficiently easie to be known Yet I doubt it will not prove so in many other Instances And therefore to let you see I do not make this Scruple without cause suppose Abel for example to have left a Son or a Daughter behind him when his Brother murdered him pray tell me who was to succeed after the Death of Adam this Son or Daughter of Abel or Seth their Uncle M. We do not read of any Children that Abel had and therefore I cannot tell what to say to it F. Well but since it is probable he might have had Children pray tell me supposing he had whether this Child were it Son or Daughter or Seth the Uncle was to succeed M. Since you will needs have me speak my opinion in a thing so uncertain I think this Child were it Son or Daughter ought to have succeeded before the Uncle F. Pray Sir tell me by what Law or Rule you thus Judge Whether by the Law of God or Nature M. I must confess God hath prescribed nothing expresly concerning it more than what he says Numb 27. that if a man dies leaving no Sons ye shall cause his Inheritance to pass unto his Daughter with diverse other Rules of Succession to Inheritances there specified and besides it is more suitable to the Laws of Nature that the Children of the Elder Brother should inherit before their Uncle there being no reason that they should be punished for their Misfortune in having their Father Dye before he could succeed to the Government F. I doubt the place of Scripture you have cited doth not reach this Case of Kingdoms for first this being a Municipal Law of the Iews could only concern that Common-Wealth and secondly it only relates to Private Inheritances and that this is so may be proved from the next verse where it is said that a Mans Brethren shall be his Heirs that is all of them were to be Heirs alike only the Eldest was to have a double portion And if this Law concerning Daughters were to reach the Succession of Kingdoms at this day the Laws of France and other Countries where Women are barred from succeeding to the Crown would be against the Laws of God and Nature And the like may also be said concerning the Succession of the Nephews before their Uncles or of Uncles rather than the Nephews whose Fathers never injoyed the Crown diverse Nations having different Customs and that with a like appearance of reason concerning it For on the one hand if the Son of Abel might have pleaded that he was the first born of the Eldest Son of Adam and so ought to represent his Father Seth the Uncle might likewise with as good reason urge that he was more nearly related in Bloud to Adam as being his Son than the Son of Abel who was but his Grandson and besides being older than he was endued with more Wisdom and Experience and consequently was â—itter to Govern But if Abel left only one Daughter or more I doubt not but the question would have been harder to be decided since if Women are not permitted to Govern in Private Families they will not especially amongst Warlike Nations be admitted to Govern Kingdoms especially since
it would be left in her Power not only to govern her self but by marrying to chuse a King for her Subjects whom they do not approve of And therefore we read that in diverse of the Antient Kingdoms of the World Women were excluded from the Succession Nor are these the only questions that either might then or else have in latter Ages been started concerning Succession in Kingdoms and Principalities and have been the cause of great disputes between Pretenders to Crowns where a King Dies without Lawful Issue as whether a Grandson by a Younger Daughter shall inherit before a Grand-daughter by an Elder Daughter Whether the Elder Son by a Concubine before the Younger Son by a Wife From whence also will arise many Questions concerning Legitimation and what by the Laws of Nature is the difference betwixt a Wife and a Concubine All which can no ways be decided but by the Municipal or Positive Laws of those Kingdoms or Principalities It may further be enquired whether the eldest Son being a Fool or Madman shall inherit this Paternal Power before the Younger a Wise Man And what degree of â—olly or madness it must be that shall exclude him and who shall be the Judges of it Also whether the Son of a Fool so excluded for his Folly shall succeed before the Son of his Wiser Brother who last Reigned Who shall have the regal Power whilst a Widdow Queen is with Child by the Deceased King until she be brought to Bed These and many more such difficulties might be proposed about the Title of Succession and the Right of Inheritance to Kingdoms and that not as idle speculations but such as in History we shall frequently find examples of not only in our own but likewise other Kingdoms From all which we may gather that if the Laws of God or Nature had prescribed any set rules of Succession they would have gone farther than one or two cases as concerning the Succession of Elder Sons or Brothers where an Elder Son dies without Issue and would also have given certain infallible rules in all other Cases of Succession besides these and not have left it to the Will or particular Laws of diverse Nations to have established the succession so many several ways as I am able to shew have been practised in the World M. I must confess you have taken a great deal of pains to perplex the Succession to Adam which seems designed for nothing else but to make me believe that if Adam or any of his Sons were Kings or Princes it must have been by the Consent or Election of their Children or Descendants which is all one as to say that those Antient Princes derived their Titles from the Iudgment or Consent of the People the contrary to which is evident as well out of Sacred as Civil History F. Since you appeal to History to History you shall go and to let you see that I have not invented these doubts about Succession of my own Head and that there might have very well been a real dispute about the Succession to Adam in the Cases I have put may appear by the many disputes and quarrels that have been in several Nations concerning the Right of Succession between the Uncle and the Nephew of which Grotius is so sensible that he confesses in the latter end of the Chapter last cited that where it could not be decided by the Peoples Iudgment it was fain to be so by Civil Wars as well as private Combats and therefore he is forced ingenuously to confess that this hath been practised divers ways according to the different Laws and Customs of Nations and he gives us here a distinction between a direct Lineal Succession and a transversed and acknowledges that amongst the Germans as also the Goths and Vandales Nephews were not admitted to the Succession of the Crown before their Uncles the like may be said of the Saxons and Normans and therefore we find in our Antient English History that before the Conquest the Uncle if he were Older always enjoyed the Crown before the Nephew which I can more particularly shew you if you think fit to question it The like manner of succession was also amongst the Irish-Scotch for above 200 years after â—â—rgus their first King The like Custom was also observed among the Irish as long as they had any Kings amongst them and is called the Law of Tanistry The same was also observed in the Kingdom of â—astile where after the death of Alphonso the fifth the States of that Kingdom admitted his Younger Son Sancho to be King putting by Ferdinand de la Cerda the Grand-Son to the late King by his Eldest Son tho' he had the Crown left him by his Grand-Father's Will So likewise in Sicily upon the Death of Charles the Second who left a Grand Son behind him by his Eldest Son as also a Younger Son named Robert between whom a difference arising concerning the Succession it being referred to Pope Clement V. He gave Judgment for Robert the Younger Son of Charles who was thereupon Crowned King of Sicily and for this reason it was that Earl Iohn Brother to King Richard the second was declared King of England by the Estates before Arthur Earl of Brittain Son of Ieoffrey the Elder Brother and Glanvil who was Lord Chief Justice under Henry the second in that little Treatise we have of his makes it a great question who should be preferred to an Inheritance the Uncle or Nephew But as for Daughters whether they shall inherit at all or not or at least be preferred before their Uncles is much more doubtfull since not only France but most of the Kingdoms of the East at this day from Turkey to Iapan do exclude Women from the Throne And it was likewise as much against the Grain of the Antient Northern Nations and hence it is that we find no mention of any Queen to have reigned amongst the Antient Germans or Irish-Scots and never but two among the English-Saxons and those by Murder or Usurpation and not by Election as they ought to have done And upon this Ground it was that the Nobility and People of England put by Maud the Emperess and preferred Stephen Earl of Blois to the Crown before her for tho' he derived his affinity to the Crown by a Woman yet as being a Man he thought himself to be preferred before her So likewise in the Kingdom of Aragon Mariana in his History tells us that Antiently the Brother of the King was to inherit before the Daughter examples may also be given of divers of the other instances but these may suffice M. I Pray give me leave to interrupt you a little for by these examples you would seem to infer that these Laws about setling the succession of Crowns in several Kingdoms depended upon the Will of the People whereas I may with better reason suppose that if such Laws and Alterations have been in such successions they were made by
Subjection to Princes but by the Mediation of an Human Ordinance what reason is there that the Laws of Nature should give place to the Laws of Men As we see the Power of the Father over his Child gives place and is subordinate to the Power of the Magistrate And that this is not the Doctrine of Christianity alone but was also believed by the best Moralists amongst the Heathen may appear by this remarkable passage out of Seneca de Clementia which is so put to this purpose that I took the pains to translate it into English in my Common-place-book Some of which I will now read to you What is the Duty of a Prince That of kind Parents who use to chide their Children sometimes sweetly and at other times with more sharpness and sometimes correct them with blows And after having shewn that a good Father will not proceed to disinherit his Son or inflict any more severe punishments upon him till he is past all hopes of amendment He proceeds thus No Parent proceeds to Extirpation till he hath in vain spent all other Remedies That which becomes a Parent becomes a Prince who is stiled without flattery The Father of his Country in all our other Titles we consult their i. e. the Emperours Honour We have called them the Great the Happy the August and heaped upon ambitious Majesty all the Titles we could invent in giving thâ—se to them But we have stiled him The Father of his Country that the Prince might consider the Power of a Father was given him Which is the most temperate of all Powers consulting the Welfare of the Children and preferring their Good before its own And as for your Objection why Princes should not be loved and reverenced as if they were our Fathers because not being our Natural Fathers they may possibly want that Natural and Fatherly Affection to their Subjects and consequently may Tyrannize over them I think this is easily answered For First God who is and ever was the True Disposer of Kingdoms hath in his hands the hearts of all Princes and endows them with such Affections as he thinks fit not only towards the People in general but towards each particular person And therefore as he was the Author of all Government and is still the Preserver of it so no inconvenience can happen but he is able to redress it 2. That there was as great or rather greater Inconveniencies which sprung at first from the too great Lenity of these Natural Princes for want of Power or Will to punish the Disorders of their Subject Children as have ever sprung since from the Tyranny and Cruelty of the worst Princes And I believe to this was owing that excessive wickedness which forced as it were God Almighty to put an end to the first World by that time it had stood about 1600 years And we see afterwards Eli and Samuel good men and severe Judges towards others were yet too indulgent to their own Children which shews the weakness of your Reasons and the greatness of the Wisdom of God in making all Government to spring from Paternal Power which is the mildest of all Powers and to descend by degrees to Hereditary Monarchies which are the Divinest the most Natural and the best of all Governments and in which the People have the least hand F. I see plainly that you think the Laws of Nature or Reason are not on your side and therefore you are forced to recur not to the express words of Scripture but to the Paraphrase or Explanation of them in our Church Catechism which certainly never was intended to have that consequence drawn from it which you have made for tho you are pleased to omit one part of the Commandment with an c. Yet the Words are as you your self must acknowledge Honour thy Father and thy Mother and if from Honour thy Father you will gather that all Power was Originally in the Father it will follow by the same Argument that it must have been as Originally in the Mother too Father and Mother or Parents being mentioned together in all Precepts in the Old and New Testament where Honour or Obedience is enjoyned on Children And if these Words Honour thy Father must give a right to Government and make the form also Monarchical 〈◊〉 if by these Words must be meant Obedience to the Political Power of the Supream Magistrate it concerns not any Duty we owe to our Natural Fathers who are Subjects Because they by your Doctrine are divested of all that Power it being placed wholy in the Prince and so being equally Subjects and Slaves with their Children can have no Right by that Title to any such Honour or Obedience as contains in it Civil Subjection But if Honour thy Father and thy Mother Signifies the Duty we owe our Natural Parents as by our Saviours interpretation Matth. 15.4 and all the other places 't is plain it doth then it cannot concern Political Obâ—dienâ—â— but a Duâ—y that is owing to Persons who have no Title to Soveraignty noâ— any Political Authority as Monarchs over Subjects For Obedience to a Private Father and that Civil Obedience which is due to a Monarch aâ—â— quite different and many times contradictory and inconsistent with each other And therefore this Command which necessarily comprehends the persons of our Natural Fathers and Mothers must mean a Duty we owe them distinct from our Obedience to the Magistrate and from which the most absolute Power of Princes cannot absolve us And to make this yet plainer suppose upon your Hypothesis that Seth as Eldest Son of Adam was Heir of all his Patriarchal Power how could all his Brethren and Sisters Honour that is Obey Eve their Mother at the same time supposing Seth and her to have commanded them things contradictory at the same timeâ— So that tho' I grant the Compilers of our Church Catechism did intend in this Explanation to comprehend all the great Duties towards our Governours Yet it is plain they never dreamed of this far-fetched inference that you have drawn from their Explanation of it for tho under this Command of Honour thy Father and thy Mother they do indeed comprehend Obedience and Honour to be due to the King c. this no more proves that they believed all Kingly Power to be Paternal than that because they likewise there Infer from this Command a Submission to be due to all Governours Teachers Spiritual Pastors and Masters that therefore all these Parties here named do likewise derive their Authority from Adam's Fatherhood or that because under the Command against bearing False-Witness we are taught to refrain our Tongues from Evil Speaking Lying and Slandering that therefore all Lyes and Evil Speaking whatsoever is down-right bearing False-Witness against our Neighbour Since nothing is more certain than that a man may commit either of the formerr without being guilty of the latter And to Answer your Query if Obedience to Parents be immediately due by a Natural Law
to have been upon the Death of King Henry the II. Now your only argument to prove this is that King Richard tho' his Eldest Son alive was only call'd Duke of Normandy and never King of England till after his Coronation but whoever will but consider the circumstances of this matter will find that he was indeed own'd for King of England before his pretended Election or Coronation for before his coming into England to be Crown'd Rocer Hoveden tells us That every Freeman of the whole Kingdom by the Command of his Mother Queen Elianor swore quod fideni portabit Regi Angliae Richardo Regis Hen. filio which plainly shews that he was then by common intendment looked upon as King before his Coronation and though I confess that this very Author also relates that all the Estates of the Kingdom being assembl'd at London by whose Council and Assent the said Duke was Consecrated and Crown'd King of England and though Ralph de Diceto then Dean of St. Paul's who in the Vacancy of that Church then supplied the Office of the Bishop at King Richard's Coronation hath this passage Comes itaque Pictavorum Richardus hereditario jure praemovendus in Regem post tam cleri quam populi solemnem debitam electionem involutas est triplici Sacramento c. Now what can this solemn and due election here signifie Or what can it mean farther than that Richard being King by Hereditary Right was so owned and recognized by the Clergy and Laity F. I desire I may reply to this before you proceed farther I confess what you say about the Empress Maud's surrender of her Right to her Son Duke Henry would be considerable if you had any Authorities from our Antient Historians to support it but since you have not I look upon it as no better than a meer surmise of those of your opinion that the Crown was then enjoy'd by an Hereditary Right without any consent or election of the people and so likewise is your other fancy that because Women were then looked upon as uncapable to Govern therefore the Bishops and great men of the Kingdom suppos'd they had sufficiently perform'd their Oath of Allegiance to her by acknowledging her Son Duke Henry for the right Heir of the Crown now if this had been so pray tell me to what purpose King Henry I. Father to the Empress should have made all the Estates of England swear fealty to his Daughter if a Woman had been then lookt upon as uncapable to Govern or to what purpose should the Clergy in the Council at Winchester chuse this Empress as the King's Daughter Lady both of England and Normandy as William of Malmesbury tells us expresly that they did and that he was present at it or how could the great Council of the Kingdom believe that they had sufficiently satisfied their Oath to the Daughter in conferring the Allegiance that was due to her upon her Son I am sure no Heiress of the Crown would look upon that as a good performance of their Oath at this day when you can answer me these queries I shall be of your opinion in this point but till then I beg your pardon But as to what you say against the Vacancy of the Throne upon the Death of King Henry the II. till King Richard was Elected and Crown'd I desire no better Authority to the contrary than those very Authors you have now cited for your opinion for first Hoveden in the very place you have quoted him says That the Duke was to be Crown'd King by the Council and Asâ—â—nt of all the Parties there present now if I understand any thing of Grammar or Sence he was not King before and therefore needed their Assent to make him so likewise in the next quotation from Ralph De Diceto the Duke is said Hereditario jure promovendus in Regem which words being in the Future Tense shew he was not then but was to be promoted to that dignity now if his Hereditary Right alone could have done it then to what purpose are all these words aforegoing so that though this Right gave him the fair pretence to succeed to the Crown yet it is plain from both the Authors you have quoted that he was not so till after the due Consent and Election of the Clergy and People so that after all your questions what can this solemn and due Election signifie or what can it mean farther than that Richard being King by an Hereditary Right was so own'd and recognized by the Clergy and Laity will receive a very easie answer from what has been already said till you can shew me out of any Dictionary that Consilium and Assensus which are the words of Hoveden and the words Solemnis debita electio ever signified an owning or recognition of an Hereditary Right I confess the only colour you have for your interpretation of those words in Hoveden which you have now cited of Queen Elianors making every Freeman of the Kingdom swear Fealty to Richard King of England as to their Liege Lord from whence you would infer that by common intendment of Law he was looked upon King of England before he was Crown'd and consequently there could be no Vacancy of the Throne now admit that he was commonly call'd King before he was Crown'd or that the Queen his Mother would make the People swear to him as such yet that could not make him so since the same Historians also tell us that Hubert Archbishop of Canterbury and William Earl Mareschal made the people of England take a like Oath to Earl Iohn as their Lord not King immediately after the death of King Richard his Brother and yet I suppose you will not affirm that their swearing Fealty to him as their Superiour Lord made him King or gave him a just Title to the Crown and I desire you or any indifferent man to tell me which was Hoveden's opinion whether this swearing Fealty was a sufficient Declaration of his â—eing King or else all those other expressions which signifie the contrary when immediately before his Coronation he only calls it ducem Richarâ—m qui Coronandus erat in Regem which I think is as plain a distinction of his being a Duke before he was Crown'd and a King afterwards as words can make M. I see it is in vain to urge this point any longer and therefore I shall proceed to your next instance of the Vacancy of the Throne after the death of King Richard until King Iohn was placed therein now though it is certain that this Prince was an Usurper upon his Nephew Duke Arthur yet whether he was ever Elected in a Common Council of the Bishops Earls and Barons of the Kingdom is very doubtful But suppose he were it was done wrongfully and to the prejudice of Arthur Duke of Britain the right Heir to the Crown who being young and a stranger it is no wonder if he were put by and his Uncle who
other Now this was done some time before he Married with the Princess Elizabeth for as soon as this Act was made the Commons requested the King to marry Elizabeth the Daughter of King Edward the fourth that by God's Grace there might be Issue of the stock of their Kings as their own words were and that this was rather to preserve the Blood Royal than to give any new confirmation to his Title appears from hence that there was never any other Act after the Marriage to declare the right of the Crown to be in the King and Queen or so much as to entail it on the issue of their Bodies so that it is plain he enjoy'd it not in his Wives but in his own right since he held it after her death by vertue of this Statute which plainly shows that in the judgement of that Parliament the House of Lancaster was lookt upon to have the better Title And though it is true that the King procured the Pope's Bull now in the Cotton Library to strengthen his Title threatning all those with Excommunication that should offer to rebell against him yet even that Bull tho' his right by Inheritance and Conquest be first mentioned concludes with his Title by the Election of the Prelates Nobility and People of England and the Decree or Statute of the three Estates in their Convention call'd the Parliament as this Bull it self expresses it M. I must confess you have told me more of these matters than ever I heard of before for I always thought that there had been no Act of Settlement upon King Henry the VII th until after his Marriage with the Princess Elizabeth for till then I look upon him as an Usurper upon her right as he was also after her death upon his Sons successively so that if you will have my Opinion I conceive that this Statute being made before he had a lawfull right to the Crown is wholly void as is also that of the repeal of the attainder of King Henry the VI ths for the same reason But let his Title be what it will it is ceâ—â—ain his Son King Henry the VIII th Succeeded to the Crown as Heir rather to his Mother than his Father and so was in by remitter but as for King Edward the VI th he was undoubted Heir by right of blood as being the only Heir Male to his Father and though it is true that King Henry made divers Statutes whereby he alter'd the Succession of the Crown as to his two Daughters Mary and Elizabeth sometimes declaring them both illegitimate and then again giving them a right to Succeed by Act of Parliament yet these Acts of Succession were obtained purely by the King's Sollicitation and Command and tho' at last he got himself impower'd to make a Will whereby he might settle and entail the Crown on whom he pleas'd yet all these Acts of Parliament as also this will signifie just nothing after his death for tho' his said Daughters Queen Mary and Elizabeth did one after another succeed his Son King Edward the VI th yet was it not by vertue of any of these Acts of Parliament or by the aforesaid Will but by pure right of inheritance or colour of it at least and therefore in the first of Queen Mary there is an Act declaring the Queens Highness to have been born in most just and faithful Matrimony and also repealing all Acts of Parliament and Sentence of Divorce made or had to contrary Now certainly the intention of this Act was to declare her Succession to be Inheritance by right of blood so likewise in the first of Elizabeth the Lords Spiritual and Temporal and Commons do declare and confess that Queen Elizabeth is in very deed and of meer right by the Laws of God and by the Laws and Statutes of this Realm their most rightfull and lawfull Sovereign Queen and that she was rightly lineally and lawfully descended and come of the Blood-Royal of this Realm of England all which whether it were true or not in her yet the lineal and lawful descent of Queen Elizabeth was the ground upon which she was declar'd to be their Rightfull and Lawfull Queen And though I grant that King Henry the VIIIth had by his Last Will and Testament post poned all the Issue of his Sister Margaret Queen of Scots and preferred the Children of his younger Sister the Queen Dowager of France which she had by Charles Duke of Suffolke before them Yet was this Will afterward cancelled and torn off from the Rolls in Chancery where it was Recorded and that by order of Queen Mary as is supposed So that Iames the VIth King of Scotland was by Right of Blood Declared and Proclaimed King of England immediately upon the Death of Queen Elizabeth as right Heir of the Crown And in the first Parliament after his Coronation his Title is by them particularly recognized in the words which I desire you to read with me Where after setting forth his Pedigree as lineally descended from the Lady Margaret eldest Daughter of King Henry the VII th and Queen Elizabeth his Wiâ—e Daughter of King Edward the IV th they farther acknowledge King Iames their Lawful and rightful Leige Lord and Sovereign and farther say as being bound thereunto both by the Laws of God and Man that 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 Kingdoms Dominions belonging to the same did by inherent Birth-right and lawfull and undoubted Succession descend and come to his Most Excellent Majesty being lineally lawfully and justly next and sole Heir of the Blood Royal of this Realm and thereunto they do most humbly and faithfully submit and oblige themselves their Heirs and Posterities for ever until the last drop of their bloods be spent I have been the more particular in the recital of this Act because it stands not only as a perpetual Declaration of the sense of the Representatives of the whole Nation for an hereditary Succession of the Crown without any vacancie or election but also because it contains their solemn engagement for themselves and their posterities for ever to King Iames and his issue and consequently to his right Heirs for ever so that nothing can be more directly contrary than this Act to the late proceedings of the Convention first in declaring the Throne vacant and then placing the Prince and Princess of Orange therein F. I will not deny but that King Henry the VIII th and Edward the VI th both succeeded by right of inheritance but whether the former claim'd it as Heir to his Mother or his Father is much to be doubted since being Heir to both of them he never declar'd by what Title he held the Crown But as for his two Daughters Queen Mary and Queen Elizabeth it is certain their best Titles were from these Acts of