charged with these Failures while they were living But after they were dead the Custom was to Arraign their Memories and deny them the Honor of a Funeral Solemnity Which punishment was likewise inflicted upon the Iewish Kings who had been very irregular and oppressive in their Government 2 Chron. 24 25 and 28. 27. From all which it appears that a King 's Swearing at his Coronation does not make his Crown forfeitable or subject him to the Censure of the People And since the Breach of an Oath does not imply a forfeiture of Right since the Kings of England claim their Authority by Conquest and Succession from hence these Two Corollaries naturally follow First That with us Power always proves it self unless it appears that it 's given up or limited by any special Agreement Secondly That the Liberties of the Subjects are not founded upon the Reservations of an Original Contract For a Conquered People must not pretend to make their own Terms And therefore their Priviledges are not of their own Creating but Acts of Royal Favour and Condescentions of Soveraignty Indeed when the People are not forced into Submission but freely Elect their Monarch there all remote Inferences and doubtful Cases ought to be Interpreted in favour of the Subject because the Form of the Government had its Beginning from them and in this Case only it is that Liberty proves it self But where the Limitations of a Monarchy are the Condescentions of a Conqueror or his Successors there we are not to stretch the Priviledge of the Subject beyond express Grant. So that whatever Rights or Branches of Government are not plainly conveyed away must be supposed to be still lodged in the Crown For since the Prince was once Vested with Absolute Power and has afterwards bounded himself by his own Voluntary Act The Abatements of his Authority are to be measured by his own evident Declarations and not by any conjectural and consequential Arguings And here that Celebrated Maxim takes undoubted place That all Acts which are made in destruction of Common Law or Antecedent Right are to be Construed strictly and not drawn out into Corollaries and parallel Cases From whence it follows That if it was unlawful at first for the Subjects to resist their Soveraign it must still continue so unless they can prove he has relinquished this part of his Prerogative and given them an express Liberty to take up Arms when they think it convenient which I believe will be hard to find in our Constitution I Confess there is a Resistance Charter granted by King Iohn but such a one as is no ways serviceable to our Author For First It 's a plain Concession from the Crown and consequently far from the nature of a Mutual and Original Contract Secondly Here is no Deposing Power given in case the Articles were broken But on the contrary upon the supposition of a Rupture there is an express Proviso for the security of the King's Person and Royalty for a little after the Clause of Salva Persona nostra we have these remarkable Words Et cum fuerit Emendatum Intendent nobis sicut prius fecerunt That is if the King should fail in his Promise and constrain them to make use of Force When their Grievances were redressed and they had put themselves in Possession of their Rights They should then be obliged to obey him as formerly Matth. Par. p. 219. Thirdly This Charter was extorted from the King in a Menacing and Military manner The Barons were up in Arms the City of London declared for them and received them and the King was deserted by his own Army whereas before this Grant the Subjects had no colour of Authority to Levy Arms against the King. Now Rebellion is a very ill bottom to found our Liberties upon The advantages which are gained by such Monstrous Violences as these are no more to be insisted on than the Acquisitions of Piracy and therefore Fourthly This Charter being obtain'd in such an undutiful and illegal way is without doubt one great reason among others why it has been always counted a Nullity for that it 's no part of our Law I shall fully evince First From the Transactions in the Reign of Henry the Third for first in this King's Charter there is no notice taken of any Grant made by King Iohn whereas in the Confirmation of Magna Charta by Edward the First the granting it by Henry the Third is expresly mentioned and the Liberty recited at large Which is a plain Evidence that the one was not looked upon to have the same Authority with the other Secondly That the Magna Charta of Henry the Third was a pure Act of Grace to the Subject and no Confirmation of an Antecedent Right appears from the Instrument it self where in the Preamble the King declares That out of Our meer and free Will We have given c. And towards the end That for this Our Gift and Grant of these Liberties Our Arch-bishops Earls c. have given us the fifteenth part of their Moveables Now besides the wording of the Act which runs as clear for a Voluntary Concession as is possible the very consideration which was given the Crown is a sufficient Argument that the Subjects had no Title to these Liberties before For who can imagine they would have purchased that which was their own already at so dear a rate Thirdly This Charter of Henry the Third though it contains much the same Liberties with the former yet it has none of the same Ratification there are no Proviso's for Resistance in it but instead of Distraining and taking of Castles c. there was a Solemn Excommunication denounced by the Bishops against all Violators of this Law. So that now the Subjects were evidently returned to their former State of Passive Obedience And therefore those Barons who towards the latter end of this King's Reign took up Arms in defence of their Privileges as Matth. Paris relates were disinherited by a Parliament at Winchester which was soon after confirmed in another Parliament at Westminster Sir W. Raleigh Priv. of Parl. Ap. 31. More to the same purpose may be seen in the Law called Dictum de Kenilworth For though this Order was made by no more than a Committee of Twelve Peers yet they having an Absolute Delegation as to this Point from the King and the Members of Parliament what they agreed upon has the full Validity of a Law. Fourthly That King Iohn's Charter which warrants Resistance though within a Rule had never any Legal Authority is evident from the Militia Act 14 Car. 2. where the Parliament declares That the Militia was ever the undoubted Right of his Majesty and his Predecessors But this was a great Mistake if King Iohn's Grant had been Law For by vertue of that Charter provided the King receded from his Articles the Militia was lodged in the Barons and the People were obliged by Oath to assist them against the Crown Now if the case
VINDICIAE IURIS REGII OR REMARQUES UPON A PAPER Entituled AN ENQUIRY INTO THE MEASURES of SUBMISSION TO THE Supream Authority LONDON Printed in the Year MDCLXXXIX ERRATA PAge 11. line 5. after Ingulphus add Hist. Croyl p. 15. l. 17. for Liberty read Liberties p. 21. l. 5. for Liberties r. Liberty Ibid. l. 34. for Canquered r. Conquered p. 28. l. 26. f. Felo r. Felo's p. 30. l. 3. f. Distracted r. Disgusted p. 31. l. 18. f. parts r. starts p. 32. l. 28. f. Salves r. Salvo's Ibid. l. ult f. into experience r. in experience p. 34. l. 14 f. those r. these p. 36. l. 16. after of add that pag. 37. l. 31. for unjustifybale r. unjustifyable p. 40. l. 20. f. strow'd r. allow'd p. 41. l. 7. f. as in r. is in p. 42. l. 28. after from add the. Ibid. l. 34. f. ahainst r. against p. 43. l. 13. f. purose r. purpose Ibid. l. 21. f. Character r. Charter p. 45. l. 4. f. as its r. it s as p. 46. l. ult f. penalty r. penaltys p. 48. l. 25. after more add of Ibid. l. 30. f. thâ— Charge r. their Charge VINDICIAE IURIS REGII OR REMARQUES UPON A PAPER Entituled An Enquiry into the Measures of Submission to the Supream Authority ONE Reason why I did not Answer this Extraordinary Enquiry any sooner was because the generality of the Nation at the first publishing it had their imaginations so much disturbed with Lies and Imposture that till the strength of the Charm was a little spent there was no dealing with them But now since they are come to themselves and the Eclipse of their Understandings is pretty well over I will venture to shew them the False and Dangerous Reasonings of this Paper if I can Our Author laies it down for certain That the Law of Nature has put no difference or subordination among Men except it be that of Children to Parents or of Wives to their Husbands so that with relation to the Law of Nature all Men are born Free. What Born free and in subordination to their Parents too that is somewhat hard This Priviledge according to his own Reasoning has been out of doors long since and could never be claimed by any but those who immediately descended from Lucratius's Bladders If he means that we are naturally subject to none but our Parents and Husbands this I believe will not hold neither For it seems pretty plain from Scripture That the Younger Children are all born under the jurisdiction of their Elder Brother I shall only mention Two Texts in proof of this Proposition The First is Gen. 4. 7. where God gives Cain a superiority over his Younger Brother Abel in the same Words in which he had before granted it to Adam over Eve. Now it is generally acknowledged that Adam was her King as well as her Husband The Enquirer himself owns thus much by saying That Matrimony naturally puts a Woman into a state of Subjection Now this Authority which was given to Cain seems to be a standing Priviledge of Primogeniture for the better Government of Families For Cain's behaviour was not so meritorious as to deserve an Extraordinary Favour neither had Abel done any thing to forfeit his Natural Liberty If it is objected that this Priviledge of Cain thus interpreted destroys Adam's Patriarchal Authority sets up Two Concurrent Jurisdictions and makes the Younger Children subject to Two Independent Princes their Father and Elder Brother To this I Answer That this Inconvenience will not follow provided this reasonable Supposition be but allowed viz. That the Exercise of this Prerogative of Birth-right was not to Commence immediately upon the Grant but to lie Dormant till Adam's Decease as being no more than a Reversion of Power The other Text is Gen. 49. 3. where Reuben according to the Hebrew way of speaking is called the Excellency of Dignity and the Excellency of Power That is He was to have been by virtue of his Primogeniture a Person of the greatest Quality and Authority in the Family For though God deprived him of this Honor upon the account of his Incest yet the manner of his Father's Reproof does sufficiently discover his Natural Right And therefore the Learned Grotius observes upon this Place and upon Deut. 21. 17. That Elder Brothers as such had not only the Advantage of a double Portion of Inheritance but were likewise Priests and Princes in their Families Now if the Younger Children ought always to be governed either by their Father their Elder Brother or those who claim under him then certainly the State of Nature is not such a State of Liberty as the Enquirer supposes But this Patriarchal Nation being not much material to the present Dispute I shall insist no farther upon it His Second Section continues us in our Original Liberty and therefore I suppose it 's design'd to inform Independent Governors of the Right the Law of Nature allows them to defend themselves and how far they may proceed for Reparation of Injuries His Assertion is That the Duty of Self-preservation exerts it self in Instances of two sorts either in resisting Violent Aggressors or in taking Iust Revenges of those who have Invaded us so secretly that we could not prevent them and so violently that we could not resist them In which Cases Self-preservation warrants us both to recover what is our own with Iust Damages and also to put such Unjust Persons out of a Capacity of doing the like Injuries any more either to our selves or others But here we may observe First That the Case is very Generally and consequently Obsourely Stated For we are not at all enlightned about the Measures of those Iust Revenges and Damages But this Point is Prudently left to the Ignorance Ambition and Ill-nature of every Man to interpret as he pleases And least we should not revenge our selves deep enough the Enquirer gives us this Encouragement That Self-preservation warrants us to put such Unjust Persons out of a Capacity c. That is If we were in the State of Nature we ought to Kill Dismember or lay every Man in Chains who has done us any injury great or small for our Author makes no Exceptions for Mercy it being impossible to disable him without proceeding to this Rigour for as long as he has Life Limbs or Liberty he may do the World a Mischief with them if he has a mind to it But Secondly I do not understand what Advantage the Enquirer can make of this Terrible Denuntiation against Aggressors and Invaders I much question whether he has Fortified his own Security by this way of Reasoning But possibly this Battery is raised against the French King for the Service of the Empire For he has seemed to wish some years since That the Grand Louis might be reduced to an humbler Figure Indeed that Monarch if he be not misrepresented is considerably to blame for sending an Army against the Empire without giving notice of it first or demanding Satisfaction
as follows viz. That if his Majesty or any of his Successors should happen at any time hereafter to Act contrary to those Provisions by which the Privileges and Liberties of the Kingdom were Established that from thenceforth it should be for ever Lawfull for the Subjects without the least Blemish of Disloyalty to Resist and Oppose their Prince This was a Decree to purose by vertue of which as Thuanus observes the Protestant Hungarians Justified their Arms against their King And we may take notice in Contradiction to what our Author Affirms That such Odious Things and their Remedies too where they are allowed are particularly Named and Provided for Therefore we may fairly Conclude that where none of this plain Dealing is to be seen the Constitution does not admit of any such singular Reservations Indeed to talk of a Character for Resistance in a Country which has been Conquered so often and all along Monarchically Governed seems to be a Romantick Supposition For can we imagine that when our Kings had sought themselves into Victory and Power and forc'd a Nation to swear Homage and Submission to them that they should be so easie as to Article away their Dominions make their Government Precarious and give their Subjects leave to Disposess them as often as they should be pleased to say they had broken their Agreement But the Silence of our Laws and History as to any such Compact is a sufficient disproof of it For if there had been any such Enfranchising Instrument how prejudicial soever it might have been in its Consequence yet the natural desire of Liberty would have occasioned the preserving it with all imaginable Vigilance And as it would not have miscarried through Negligence so if Violence had wrested such a pretended Palladium from us the Calamity would have got into the Almanack before this time and been as certainly Recorded as the Destruction of Troy. Since therefore we have no Evidence either for the Possession or so much as for the Loss of this supposed Privilege we may certainly conclude we never had it or at least must grant that no claim can be grounded upon such an Improbable conjecture for Idem est non Esse non Apparere Secondly Our Author urges That when there seems to be a Contradiction between Two Articles in the Constitution the Interpretation ought to be given in favour of that Article which is most evident and important From whence he proceeds to assert That there is a seeming Contradiction between the provisions for the publick Liberty and the renouncing all Resistance And therefore the Constitution ought to be expounded in behalf of the former as being most advantageous to Government Now one who had never read the Statute Book would imagine by this Authors Argument that we had some Laws for the taking up Arms against the King as well as others which forbid it and both equally plain than which nothing is more false And upon supposition there was any such Clash in our Acts of Parliament the Law for Non-resistance being last Enacted must necessarily take place and Repeal whatever was before Established to the contrary But Secondly I Answer That I have already proved that the Rights of the Subject are best secured by Non-resistance and therefore they are no ways inconsistent or contradictory to each other So that our Liberties had much better lye at the Discretion of Kings who have much greater Motives than others to do Justice and give general Satisfaction than to depend upon the Management and Mercy of the People and be liable to such Fatal Convulsions which must happen as often as Discontent and Ambition can impose upon the Weakness and Inconstancy of the Multitude Thirdly His Third Argument is the same with his Second which he has given us in different Words That what we want in Weight may be made up in Number It begins somewhat Remarkably Since it is by Law that Resistance is condemned we ought not to understand it in such a Sense as that it does destroy all other Laws First Now one would have thought that the condemning Resistance or any other Action by a Law had been the only way of doing it to any purpose But this Author seems to draw a consequence of Abatement upon this Doctrine from its Authority as if it was to be less observed because it is Established by Law. But Secondly To give him rather more advantage than the Construction of his Period will allow I Answer That I have already made it appear that to wrest the Laws from their plainest and most obvious Sense is to make them perfectly Useless and that Non-resistance is the best Expedient to preserve the Laws and every thing else that is valuable And therefore though its plain that the Law did not design to lodge the wole Legislative Power in the King yet as its plain that it intended to forbid Resistance in case he should set about it For the Law-makers declare in in as full Intelligible Words as can be conceived that the Militia the Posse Regni was always the undoubted Right of his Majesty and his Predecessors and that its Unlawful to take up Arms against him upon any Pretence whatever Now if its possible for a Law to make or declare a Monarch Irresistible which I suppose no man will deny I desire to know whether it can be drawn up in more significant and demonstrative Terms than this Act before us If it cannot then our Author has no imaginable reason to dispute this Part of the King's Prerogative As for his Instance That the Legislative Power is Invaded and the Constitution of Parliaments Dissolved This Charge is Aggravated beyond all Decency and matter of Fact For it s well known that the King did not pretend to make his Proclamations Equivalent to an Act of Parliament and what his Majesty acted by way of Dispensation was not only directed by the present Judges but grounded upon a solemn Resolution of all the Twelve in Hen. 7th Reign in a Case seemingly Parralell which Sentence has been followed by eminent Lawyers since and never Reversed by Act of Parliament As to the Regulation of Corporations That was a Method begun by Charles the Second a Protestant Prince and Applauded by all the Loyal Party of the Nation Besides the Burroughs were not so prodigiously altered but that we might have had a good Protestant Parliament out of them as appears from the Elections made upon the Writs Issued out in August last where those who were against Repealing the Penal Laws and Tests carried it with great odds against the other Party And since we know his Majesty has returned the Charters to the State of 79. And here it may not be improper to observe That Prerogative has been as Remarkably misunderstood at Court in former Ages of which several Instances might be given but I shall consine my self to the Reign of one who on all Hands is accounted a most Excellent Prince I mean King Charles the