or not M. I thank you for the pains you have taken to inform my understanding in this matter And therefore since 't is now very late I desire we may Adjourn our conversation to another time And then I desire that you would prepare your self to discourse with me of the second important Question we agreed on viz. the irresistibility if all Supreme Powers by their Subjects not only because Resistance in any case whatsoever 〈◊〉 inconsistent with Supreme Power and destructive to the Peace of Civil Society but chiefly as they derive their Authority immediately from God and are only to render an Account to him of their Actions F. I will not deny but what you have said is true in some sense That all Soveraign Power is derived from God and is also as such irresistible by Subjects But to affirm generally and absolutely as most of your Opinion do that all Commands and Acts of Men endâ—â—d with this Supreme Authority whether good or bad lawful or unlawful are part of that Authority derived from God and therefore irresistible in any casâ— or upon any necessity whatsoever is so dangerous a Proposition that I know none that hath contributed more to the encouragement of the Râ—ng and the Popish Faction we favoured to make all those Breaches upon our Laws Religion and Liberties which we have suffered since the beginning of his Reign M. I am so well pleased with the Freeness and Ingenuity of your Conversation that I desire nothing more than to discuss this important Question with you at our next meeting But I beg your pardon if being taken up by Come Business to morrow I adjourn our next meeting to the Day after when if you please to come at the same hour at you did to night you shall here find me ready to wait on you In the mean time I must bid you good night F. Your Servant Sir I wish you heartily good night I will not fail to meet you at the time appointed FINIS Bibliotheca Politica Or a DISCOURSE By way of DIALOGUE WHETHER Resistances of the SVPREAM POWER by a whole Nation Or People in cases of the last Extremity can be Justified by the Law of Nature or Rules of the Gospel Collected out of the most Approved Authors both Antient and Modern Dialogue the Third LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford-Arms where also may be had the First and Second Dialogues 1692. The Subject of the Third Dialogue AUthors whose Words or Sense are made use of in this Discourse and how denoted in the Margin 1. Dr. Hicks's Iovian or Answer to Iulian H. I. 2. Mr. Bohuns defence of Sr. R. Filmer B. D. F. 3. Two Treatises of Government T. T. G. 4. A Pamphlet Entituled Vindiciae Iuris Regii V. I. R. 5. Dr. Sherlocks Case of Resistance S. C. R. 6. Plato Redivivus P.R. 7. Mr. L'Estrange's Observator L. O. Advertisement to the READER THE Author in relation to this as well as the subsequent Dialogue desires you to be so Candid as to believe that tho' under the Name of Free-man he hath argued against an Opinion now or lately much in vogue viz. That an absolute Irresistibility is an insepable Prerogative of all Soveraign Powers as well Monarchies as Common-Wealths Yet no man more abhors all unnecessary Resistance or Rebellion against Supream Civil Magistrates and is more for an Absolute Submission by all particular Persons whether Private or Publick in case of the highest Injuries and Oppressions done to themselves alone and where the Common Good of the Community is not immediately concerned than himself And this he owns to be their duty not only out of a generous regard to the Peace Tranquillity of the Common-Wealth whereof they are Members which ought not to be disturbed to revenge or redress a few Private Injuries but also from the express Command of Gods Will Reveal'd in the Holy SS expresly forbidding not only all Revenge but self-defence too whilst the Supream Powers act legally tho' perhaps contrary to the Strict Rules of Justice and Equity in such Particular cases Yet for all this the Author must still declare he doubts whether those Precepts do extend to all Resistance whatever viz of any whole Nation or great Body of Men whose Preservation or Freedom from an intolerable slavery and Oppression may render it necessary for the good of the Common Wealth and is no other way to be procured but by a Vigorous Resistance or else joyning with some powerful Neighbour Prince or State who shall interpose for their deliverance So that if such a Resistance be ever Lawful it can be upon no less momentous anâ— account than that of a General Invasion either of the Lives Liberties Religion or Properties of a whole or major part of a Nation as they are established by the Law of Nature or the Fundamental Constitutions and municpial Laws of those particular Kingdoms and Common-Wealths where such an Insupportable Tyranny and Oppressions are then exercised And if this be not Lawful in such extraordinary cases it would seem as if God had preferred the unjust Power or Force and the outward Grandeur of the Governours before the good and Happiness of the Governed which is contrary to the main ends of all Civil Government viz. the common good Happiness of Mankind even as those who are most against all Resistance whatever must allow But whether such Resistance be not in these Cases a Lawful nay only means for the safeguard and deliverance of such assaulted or Oppressed Nations the Author leaves it to the Iudgment of the Impartial Reader to determine upon the perusal of this and the subsequent Discourse since all that could be urged on both sides in this important Question could not be comprised within the limits of one Eveninâ—â— conversation which the Author had prescribed to himself yet will he not be much concerned on which side you give your sentence Since however Criminal some Men have endeavoured to render the Doctrine of Resistance even in the cases proposed yet the Author must believe till he is better convinced to the contrary that the Question being only Moral or Political and not about any point of Faith or Law may be safely maintained by either party without any guilt either of Heresie or Treason The Author farther desires you to take notice that tho' he hath in both these subsequent Dialogues made one of his Disputants to make use not only of the Arguments but the very expressions of two Learned and Reverend Divines in some late Treatises on this Subject yet that he hath not acted thus out of any design of Writing against them or those Opinions there laid down as they are theirs since it is well known the same Arguments and Texts of Scripture have been made use of by other Writers on this Subject long before But as it must be confessed that none have managed this controversie with better Reason and greater Eloquence so he hopes that neither
tho' in defence of the greatest Innocence Men who draw their Swords against lawful Powers shall perish with the Sword which doth not signifie what the event shall always be but what is the desert and merit of the Action Rebels may sometimes be prosperous but they always deserve Punishment and if they escape the Sword in this World St. Paul tells us they shall receive Damnation in the next What can be said more expresly against Resistance than this St. Peter never could have drawn his Sword in a better Cause never in the Defence of a more sacred Person If we may defend oppressed Innocence against a lawful Authority if we may oppose unjust and illegal Violence if any obligations of Friendship Gratitude or Religion it self could justifie Resistance St. Peter had not met with this Rebuke But tho' it was a very unjust Action yet it was done by a just Authority and lawful Powers must not be resisted tho' it were in defence of the Saviour of the World and if St. Peter might not use the Sword in defence of Christs Person there is much less pretence to fight for his Religion for tho' some call this fâ—ghting for Religion it is only fighting for themselves Men may keep their Religion if they please in despite of Earthly Powers and therefore no Powers can hurt Religion tho' they may persecute the Professours of it And therefore when Men take up Arms to avoid Perseâ—ution it is not in defence of Religion but of themselves that is to avoid their suffering for Religion And if St. Peter might not fight to preserve Christ himself certainly neither he nor we ought to take up Arms to defend our selves from Persecution Christ was the first Martyr for his own Religion his Person was infinitely more Sacred and inviolable than any one of us can pretend to be And if St. Peter must not fight for Christ certainly we must not fight for our selves tho' we absurdly enough call it fighting for our Religion And who were these Powers St. Peter resisted They were only the Servants and Officers of the High-Priest The High-Priest did not appear there himself much less Pilate much less Caesar and yet our Saviour rebukes St. Peter for resisting the Inferiour Officers tho' they offered the most unjust and illegal Violence It seems he did not understand our modern distinctions between the Person and the Authority of the Prince that tho' his Person be sacred and must not be touched yet his Ministers who act by his Authority may be oppos'd We may fight his Navies and demolish his Garisons and kill his Subjects who fight for him tho' we must not touch his Person But he is a Mock Prince whose Authority is confin'd to his own Person who can do nothing more than what he can do with his two hands which cannot answer the Ends of Government A Prince is not meerly a natural but a Political Person and his Personal Authority reaches as far as his Commission doth His Officers and Ministers of State and Commanders and Soldiers are his Ends and Eyes and Ears and Legs and he who resisteth those who Act by his Commission may as properly be said to resist the personal Authority of the Prince as if he himself were present in his Natural Person as well as by his Authority Thus our Saviour it seems thought when he rebuk'd St. Peter for striking a Servant of the High Priest and smiting off his Ear. F. In Answer to this place which you have now brought to prove that the Resistance that St. Peter would have made on our Saviours behalf was absolutely unlawful I shall not insist as some do that Christ came into the World on purpose to be a Sacrifice for Sin and that therefore it was inconsistent with his design and the Person he undertook to resist and oppose had it been never so lawful to resist tho' our Saviour himself by the Words which St. Iohn relates him to have spoken to St. Peter seems to favour this Interpretation when after he had bid him put his Sword into the Scabbard he adds The Cup which my Father hath given me shall I not drink it and so likewise the answer he gave Pilate who asked him whether he was a King Thou sayest that I am a King to this End was I born and for this Cause came I into the World that I should bear Witness unto the Truth Nor yet shall I go about to interpret these Words For they that take the Sword shall perish by the Sword in that Sense which Grotius puts upon it tho' quite different from yours as if it were not designed as a rebuke to St. Peter but for the encouragement of his Disciples and being indeed a Prophesie that the Iews who now came against him with Swords and Staves should perish by the Sword of the Romans who should be the Avengers of Christs Death but I shall take it in the same sense as you do as a rebuke to St. Peter for going about to resist a Lawful Authority tho' employed upon a very unjust Errand Yet will it not prove that the Supream Powers may not be resisted in any Case or by any Person whatsoever let them use their Power never so Cruelly or Tyrannically against their Subjects I grant indeed it proves what I have never denyed that a private Person tho' Innocent ought not to râ—sist the Civil Officers that come to seize him for a Crime whereof he is accused before a Lawful Authority for this is not only unlawful by the Command of Christ but also by the Law of Nature and Nations For in England it is not only Penal for a Man to resist the Officers of Iustice that come to seize him tho' he be Innocent of the Crime whereof he is accus'd but also to withdraw himself from Iustice by flight And tho' upon Tryal he be found Innocent yet if he fled for the same he shall forfeit all his Goods and that very justly because no Man ought to suspect and withdraw himself from the publick Tryal of the Laws now to apply this to the Case of our Saviour tho' the Action which these Priests and Souldiers came about was in it self unjust Yet was it not so either in respect of these Officers themselves who acted by a Lawful Authority nor yet was it unjust or unlawful in respect of the High Priest and Sanbedrim who sent them For since it belong'd to them alone to Iudge of a Prophet who they supposed taught contrary to the Law of Moses since they did believe our Saviour to be such a Prophet it was in respect of them neither unjust nor unlawful to seize him and bring him before them to give an account of his Doctrine and they might likewise do this either by day or by Night with the help of more or fewer men according as they should think fit since they feared the People might rescue him especially since they look't upon him as one who went
Dissolving of the Assembly of the Estates was a Power of Great Trust it was put into the Prince's Hands by Writ to Convocate as also to Prorogue or Dissolve such meetings But in Process of time some Princes not caring much to have their Government lookt into or to have any Power in Being but their own taking Advantage of this Power of Assembling these Estates did more seldom then need Required make use of it Whereupon provision was made and a time set by New Statutes within which an Assembly of Parliament was to be held Now when you have made these true Suppositions in your Mind you have the very Model and History of this Monarchy and we shall easily find what to answer to the Arguments before produced on either side For first it is his Parliament because an Assembly of his Subjects Convocated by his Writ to be his Council and to assist him in making Laws for him to govern by Yet not his as other Courts are as deriving their whole Authority from the King So likewise his Power of Assembling and Dissolving them proves him thus far above them because though as to the time of their meeting it depends on him Yet their Power and Authority quoad Specificationem i. e. the Being Kind and Exercise of it is from the Original Constitution For as to that they expect no Commission and Authority from him but only for their meeting to proceed to Act but when met they Acts according to the Original Rights of their Constitution and those Acts proceed from their Conjunct Authority with not from their Subordination to the King in the Legislative as also in laying of Taxes c. on the People The Oath of Allegiance indeed binds them as his Subjects to obey him governing according to Establisht Laws But yet it supposes them to be built upon the Foundations of his Legal Government and must not be interpreted to Vndermine and Destroy it He is hereby acknowledged to be Supream so far as to Rule them by Laws already made or to be made but not without them So that this is no Derogation to the Legislative Power of Parliament And I believe of these things no unprejudic'd Man can make any Question And herein consists the accurate Judgment of the Contrivers of this Form that they have given so much into the Hands of the Soveraign as to make him truly a Monarch Yet have reserved so much in the hands of the People as to enable them to preserve their Laws and Liberties M. I confess you have given a long and plausible account of the Original and Form of our Government though if it come to be examined I doubt it will prove a meer Romance and not at all agreeable to true History or Matter of Fact Since if we look to the Eldest times either after the Saxon or Norman Conquests We shall find the Power of our Kings to have bin still more Absolute then they are now And I think I could easily trace the Steps by which the People have attained to all the Power and Priviledges they now enjoy which as I do not grudge the Nobility and People of this Nation Yet they ought to exercise it with a due respect and Subordination to that Power from which they were all at first derived least if they should ascribe them to themselves the King should be tempted to destroy those Great Priviledges and taking away the very Being of Parliaments to make Laws without them But to shew you farther that this Notion of an independent Power in the two Houses by the Original Constitution of the Government is altogether inconsistent with the King's Prerogative appears from clear Matter of Fact even as you your self have put it For when Kings thought fit not to have their Power Controuled you acknowledge they called Parliaments less frequently than usual and that thereupon there were divers Laws made appointing certain times for their meeting from whence it appears that before this the times of their meeting were wholy left to his Discretion Nay farther that the King's Prerogative of Assembling them or omitting it when he pleases cannot be limited by any Act himself can make appears from hence that notwithstanding all those Laws that have bin made for Annual and Triennual Parliaments our Kings have never thought themselves obliged to call Parliaments ofâ—ner than they saw their own occasions or the necessities of the People which they themselves were Sole Iudges of required Nor did any Parliaments ever find fault with this till that Rebellious one in 1641. which had the confidence to present to the King a Bill to be past whereby it was not only Enacted that there should be a Parliament every third Year but that upon the King 's omitting to issue forth Writs of Summons the Sheriffs nay Constables might Summon the Free-holders and proceed to Election and that the Lords might also meet without any Writs from the King which was quite contrary to the Original Constitution by which as you your self grant there could be no Parliaments without his Summons he being Principium Capus finis Parliament And if so it seems wholy improbable nay impossible to me that your Two Houses should have by the Original Constitution any Power of meeting or doing any thing without his Majesties Consent and Allowance and we know that at this day the Spâ—aker in the Name of the House of Commons desires of the King Liberty of Spâ—ech And King Henry 8th and Queen Elizabeth did sometimes Rebuke the House of Commons and sent to them to Desist when they were about to pass any Bill they did not approve of or to meddle with those things which did not belong to them Which plainly declares that contrary to your Affection neither of the Two Houses have any Power to proceed upon any Business or to pass any Bill which the King disapproves of And though I grant that they do not ask the Kings leave for the bringing in or Passing of all Bills whatsoever in either House or that the King can command them to give him what Money or pass what Bills he pleases Yet this Priviledge must needs proceed from his Grant or Concession to the contrary Whereby though he hath discharged them from an Active Obedience to such Commands Yet hath he not thereby divested himself of any of the Essential Rights of Soveraignty or at all discharged them from a Passive Obedience or Submission to his Power supposing the worst that can happen that he should take away what share he pleased of the Subjects Estates without their Consent or make his own Edicts and Proclamations to be observed for Laws Since the King's Authority is prior to all others and that as the Statutes of Edward the 6th and Queen Elizabeth which I have already quoted expresly declare All Power Authority and Iurisdiction Spiritual and Temporal is derived wholy from the King so that unless your Legislative Power of Parliament be somewhat that is neither an Authority
Earl and in the like pardon to the Constable and Mareschal in the time of Edward the First which I now also quoted those Lords would not own they had transgressed but the words are only etiam transgressiones si quas fecerit So that since such Reformations could not be brought about without violence and blood-shed and some Irregularities which in times of Peace could not be justified by the strict Letter of the Law it was but reason that for the quieting of mens minds and their future security they should be indemnified for what they had done with so good an intent and for the common good of the Kingdom But that such Acts of Pardon do not relate to the Titles such Kings had to the Crown but only to their being Kings in the Eye of the Law appears by a like Act of Pardon passed in Parliament in the first of Henry the Seventh to pardon and save harmless all those that came over with the King and all that helped him to recover his just Right to the Kingdom against King Richard the Third there called that Vsurper So that you may see such Acts of Pardon do not concern the just Titles of Princes nor the Justice of the War but are to quiet mens minds under the new Government whereas those that took part with the Usurper were not pardoned but left to the Law since the present Government would not take care for their security that had obstructed its settlement So the Act of Oblivion of the second of Charles the Second tho' it pardons Treasons expresly yet it as well pardons the Treasons of them that had Commissions from King Charles the First or Second as well as those that acted by Commissions from other pretended Authorities So that you see in the Judgment of this so modern a Parliament men might be supposed to be guilty of Treason tho' they had taken part with the King and had acted by â—is Commission if the things commanded were illegal M. I confess you have taken a great deal of pains to justifie taking up Arms against nay Imprisonment of our Kings when that which you call the preservation of the Government requires it that is when there is a â—action in the Kingdom strong enough to make a disturbance for it was very well said by Tacitus in the speech he makes for Otho to the Souldiers to take up Arms and kill Galba then Emperour that it was in vain to speak more for the justification of that Action quod Laudari non potest nisi peractum Treasons if successful have never wanted a sufficient Party in the Nation to make up a Parliament to countenance them and to pardon nay justifie all those that have been Actors in them as we may see by those Acts of Indemnity you mention and therefore I am not the more convinced that such Resistance was lawful notwithstanding those specious Declarations of Parliament of their being made for the publick good and preservation of the King and Kingdom But you have done very warily to pass by without any Justification the Deposition of King Edward the Second as also that of the Resistance as you call it of Henry Duke of Lancaster against King Richard the Second as also his Deposition tho' done in Parliament since all the proceedings against this King were repeal'd in Parliament in the first of Edward the 4th as appears by the Parliament Rolls of that King's Reign wherein the taking up Arms against King Richard by Henry Earl of Derby is said to be done contrary to his Faith and Legiance and his taking the Crown called Usurpation and the killing of King Richard his Soveraign Lord termed as it justly deserved Murder and Tyranny which does tho' not directly yet by consequence condemn his Deposition too since he is after that here called King and you do as warily pass by the late Rebellious War of the Long Parliament against King Charles the First as also his horrid Murder before his own Gates because you know cry well that this Doctrine of Resistance seldom stops with a bare Reformation of what is amiss but commonly ends with the Murder or Deposition of the King or else driving him from his Throne as we now find it by woful experience in the Person of our Unfortunate King who was so lately forced to quit this Kingdom for the security of his Person and therefore to put an end to this part of the Dispute the Parliament of the 13th of King Charles the Second were so sensible of the great Mischiefs that attended this Rebellious Doctrine as having been the destruction of one of the best Princes that ever Reigned and the occasion of the loss of so many brave Men besides the ruine of so many great and Noble Families that they were resolved to do their utmost to prevent it for the future and therefore the King and Parliament in the 13th and 14th of King Charles the Second passed those remarkable Acts concerning the Settlement of the Militia in the King and his Successors to take away all dispute about it tho' they declare it to have been his Ancient Right and therefore to take away all pretence for taking up Arms either by the Two Houses of Parliament or any other person whatsoever they in preamble to both these that these Acts thus expresly declare Forasmuch as within all His Majesties Realms and Dominions the sole Supreme Government Command and Disposition of the Militia and of all Forces by Sea and Land and of all Forts and Places of Strength is and by the Law of England over was the undoubted Right of His Majesties and His Royal Predecessors King and Queens of England and that both or either Houses of Parliament cannot nor ought to pretend to the same nor can lawfully raise or â—evy War offensive or defensive against His Majesty His Heirs or Lawful Successors and yet the contrary hereof hath of late been practised almost to the ruine and destruction of this Kingdom and during the late Usurped Governments many Evil and Rebellious Principles have been distilled into the minds of the People of this Kingdom which unless prevented may break â—orth to the disturbance of the Peace and Quiet thereof c. And in pursuance of this Statute it was likewise ordained by the Authority aforesaid in the 2d Statute for the Militia in the 14th year of the same King wherein not only the same preamble is recited verbatim as before in the former Statute but it is also Enacted That no person no not a Peer of the Realm shall be capable of acting as Lieutenant Deputy Lieutenant Officer or Souldier by vertue of this Act unless after the Oaths of Allegiance and Supremacy they take this Oath following viz. I A. B. do declare and believe that it is not lawful upon any pretence whatsoever to take Arms against the King and that I do abhor that Traitors Position that Arms may be taken by his Authority against his Person or
disobeying of the Parliament out of his hands much less will I justifie the Murder of this King or of any others above-mentioned as being no necessary consequences of that Resistance I only allow for lawful viz. that of the whole or major part of the Nation nor were Edw. the Second or Richard the Second put to death by any Act or Order of Parliament but were murdered In Prison and the Murderers of Edward the Second were afterwards attainted by Act of Parliament and Executed as they deserved But as for the Murder of King Charles the First it is not to be taken into this account it being not done by the Authority of the Lords and Commons in Parliament but by a Factious Rump or Fag-End of the House of Commons who fate by the power of the Army after far the major part of the Members who were for the King were shut out of doors and the Lords Voted useless and dangerous M. I confess you have made as good an Apology for these Actions as the matter will bear but that neither of the Two Houses can at this day have any Coercive Power over the King or to call him to an account for any thing he has done appears by the express Declaration of both Houses in the Statute of the 12th of Charles the Second as also in those but now cited in which they utterly disclaim all making War whether offensive or defensive against His Majesty much less can he be subject to any other Coercive or Vindictive Power or ought any ways to be resisted by private persons therefore supposing I should grant as I do not that the Parliaments had formerly a power of Deposing of their Kings or that the Clergy Nobility and People had formerly a right of taking up Arms against the King in case of notorious Tyranny and Misgovernment yet is all such Resistance expresly renounced and declared unlawful by the Oath and Declarations now cited so that tho' in the dark Times of Popery such Resistance might be counted lawful not only by Laity but also by the Bishops and Clergy who ought to have taught the people better Doctrine yet I think it had been much better for the Nation to have endur'd the worst that could have happen'd from the Tyranny of Kings than to have transgrest the Rules of the Gospel and the constant Doctrine of the Primitive Church by Resistance and Rebellion against the Supreme Power of the Nation F. I shall not now maintain that the Two Houses of Parliament have any Authority at this day to Depose the King or maintain a War against him upon any account yet that they have still a power to judge of the King's Actions whether consonant to Law or not and whether he has not broke the Fundamental Constitutions of the Kingdom is no where given up as I know of But that Resistance in some cases is not contrary to the Doctrine of the Gospel I have already proved and that it was not directly contrary to the Laws of the Land before these Statutes you do partly grant But since the main strength of your Cause lies in this Oath appointed by these Acts of Parliament therefore if I can give a satisfactory Account of the true meaning and sense of these Acts to be otherwise than you suppose I hope you will grant that Resistance may still be lawfully made by the whole body of the people in the Cases I have now put against any persons who under colour and pretence of the King's Commission should violently assault their persons in the free exercise of their Religion as it is by Law Established or should go about to Invadeâ— their Just Liberties and Properties which the Fundamental Laws of England have conferr'd upon every Free-born Subject of it And in order to the clearer proof of this I shall make use of this Method I shall first explain the Terms of this Declaration and then I shall proceed to shew you that in a legal sense all Defensive Arms or Resistance of the King's Person in some cases or of those Commissioned by him is not forbidden nor intended to be forbid by these Statutes and Declarations First then By taking Arms against the King is certainly meant no more than making War against the King according to the Statute of the 25th of Edward the Third which declares making War against the King to be Treason and this is unlawful upon any pretence whatsoever Secondly The Clause by his Authority against his Person is only to be understood of the King 's Legal Authority and by his Person is meant his Natural and Politick Person when acting together for the same ends as I shall shew you by and by So that both these Statutes are but declaratory of the Ancient Common Law of England against taking up Arms and making War against the King and do not introduce any new Law concerning this matter so that whatever was Treason by the Statute of the 25th of Edward the Third is Treason by these Statutes and no more viz. all taking up Arms or actual making War against the King in order to kill depose or imprison him c. as Sir Edward Coke shews us in his third Institut in his Notes upon this Statute yet notwithstanding after this Statute of the 25th of Edward the third the Clergy Nobility and People of England assembled in Parliament did suppose it still lawful to take up Arms against those illegally Commissioned by the King in case of notorious Misgovernment and breach of the Fundamental Laws of the Nation as appears by that general Resistance made by reason of the evil Government of the Duke of Ireland and those concerned with him in the 11th of Richard the Second which as I have already proved was allowed for lawful by Act of Parliament and consequently by the King 's own consent without which it could never have been so declared The like I may say for that Resistance which was made in King Henry the Sixth's Reign by Richard Duke of York and the Earls and Barons of his Party agaist the Evil Government of the Queen and the Duke of Sommerset who governed all Affairs in an Arbitrary and yet unsuccessful manner by reason of the easiness and weakness of King Henry But tho' this Resistance was also approved of in the next Parliament of the 33d Year of this King yet I shall not so much insist upon it because I know you will alledge that this was made by the lawful Heir of the Crown against an Usurper since the Crown was not long after adjudged to be his right tho' King Henry was allowed to wear it during his life yet however it shews the Opinion of the Clergy Nobility and People of England at that time concerning the lawfulness of such Resistance before this Declaration of the Estates of the Kingdom concerning the Legality of the Duke of York's Title was made in the Parliament above-mentioned Thirdly That the Parliament by these Statutes of the
be resisted and yet be still unaccountable those two differing as must us Self-defence does from punishment as I have more than once told you M. I cannot rest satisfied with this Reply for though I so far agree with you that an Act without a Legal Authority carries no Obligation at all along with it and therefore cannot oblige the Subject to Obedience Now this is true if by Obedience you mean an Active Obedience for I am not bound to do an ill thing or an Illegal Action because my Prince commands me but if you mean Passive Obedience it is as manifestly false for I am bound to obey that is not to resist my Prince when he offers me the most unjust and illegal Violence Nay it is very false and absurd to say that every Illegal is an Inauthoritative Act which carries no Obligation with it This is contrary to the practice of all Human Judicatures and the daily Experience of Men who suffer in their Lives Bodies or Estates by an unjust or illegal Sentence Every judgment contrary to the true meaning of the Law is in that sense illegal and yet such illegal Judgments have their Authority and Obligation till they are rescinded by some higher Authority This is the true reason of Appeals from Inferiour to Superiour Courts to rectifie Illegal Proceedings and reverse Illegal Judgments which supposes that such Illegal Acts have Authority till they are made null and void by a higher Power And if the higher Powers from whence lies no Appeal confirm and ratifie an Unjust and Illegal Sentence it carries so much Authority and Obligation with it that the Injured person hath no Redress but must patiently submit and thus it must necessarily be or there can be no end of Disputes nor any Order or Government observed in Human Societies And this is a plain Demonstration that tho' the Law be the Rule according to which Princes ought to exercise their Authority and Power yet the Authority is not in the Laws but in the Persons that Execute them For otherwise why is not a Sentence pronounced according to Law by a private person of as much Authority as a Sentence pronounced by a Judge or how doth an Illegal Sentence pronounced by a Judge come to have any Authority For a sentence contrary to Law cannot have the Authority of the Law And why is a Legal or Illegal Sentence reversible and alterable when pronounced by one Judge and irreversible and unalterable when pronounced by another For the Law is the same and the Sentence is the same either according to Law or against it whoever the Judge be But indeed the Authority of the person is not the same and that makes the difference So that there is an Authority in persons in some sense distinct from the Authority of Laws nay superiour to it For there is such an Authority as tho' it cannot make an Illegal Act Legal yet it can and often doth make an Illegal Act binding and obligatory to the Subjects when pronounced by a competent Judge F. I think notwithstanding all you have now said your distinction of a Supreme Authority in Persons above and distinct from the Authority of Laws will prove a meer Notion for you grant that the King hath no Just or Legal Authority to act against Law and that if he put any man to death contrary to it it is downright murder but you will not allow that if the King should thus murder never so many thousands either he or those Instruments of Tyranny may be resisted And therefore you would fain top upon me your old distinction of an Active and Passive Obedience The former of which I very well understand but as for the latter I have long since proved that it is so far from being any Obedience that it is indeed downright Disobedience or a refusal to do that which the Prince Commands so that truly your self have taught me to distinguish between the King 's Personal Authority and his Legal for otherwise why are you not as much obliged to yield an Active Obedience to the King 's Personal Illegal Commissions or Commands as to his Legal ones if there were no difference between them So then all the difference between us lyes in the measure of the Disobedience you maintaining that it is sufficient not to yield Obedience to such Illegal Commissions and Commands and I that besides this denyal of Obedience if it be in a fundamental point and that which generally concerns the whole body of the Kingdom that they may not only be disobeyed but resisted too if forced upon us with violence and therefore all that you have said to prove that the Authority to which we are bound to submit consists not in the Laws but in the Persons tho' acting contrary to Law is according to your own way of reasoning altogether unconclusive And farther when you say that it is false and absurd to affirm that every Illegal is an unauthoritative Act which carries no Obligation with it I shall prove that this absurdity lyes wholly on your side For 1. Legal and Authoritative are all one in our Law for that which is not Legal carries no Authority along with it so that Illegal Authority is in plaiâ—â— English unlawful lawful Power nor had K. Charles 1. any such extravagant Notion of his Royal Authority who certainly understood his own Power better than you or I when he owns in his Declaration to the Long Parliament dated from Newmarket 1641. That the Law is the measure of his Power which is as full a Concession of the thing I affirm as words can express For if the Laws be the measure of it then his Royal Power or Authority which is all one is Limited by it For the measure of any thing is the Limits or bounds of the thing Limited and when it exceeds those bounds it is an Illegal and consequently an Unauthoritative Act which carries no Obligation either Active or Passive along with it So likewise in the said King's answer to both Houses concerning the Militia speaking of the Men by them named to him to be Commissioners for it He thus replyed If more Power shall be thought fit to be granted to them than by Law is in the Crown it self His Majesty holds it reasonable that the same be by some Law first vested in him with Power to transfer it to these Persons c. In which Passage it is granted that all the Power or Authority of the Crown concerning the Militia is by or from the Law and that the King hath no more Authority than what is vested in him by the Law of the Land 2. Your Argument from the practise of Human Judicatures is also very fallacious for you Argue from the bare abuse of a Trust or Commission with the Execution of which all Judges Officers must be intrusted to that which is quite of another Nature viz When the Person intrusted Acts directly contrary to his Commission or without any Commission
at all And therefore you are quite out in your Law when you tell me that an Absolute Illegal Judgment is valid till it be reversed for if it be appearantly contrary to the known Forms of Law and practice of the Kingdom it is so far from being valid that tho' it be put in Execution it would be lookt upon as null and done without any Authority at all As suppose the King in person or any Inferiour Judge should condemn a Man to die either contrary to the Verdict of his Jury or without any Jury at all this is so far from being Authoritative or valid that such a Judgment is void in it self and those are guilty of Murder who execute it and it will need no Writ of Error to reverse it But I suppose by Illegal Judgments you mean such Judgments which have some Error in them either in matter of Law or Form for which they may be reversed I grant if these should not be lookt upon as valid and hold good till they are reversed in a higher Court there could not be any Judgment given at all since all Human Judicatories whatsoever are subject to Errors and Mistakes and there is sure a great deal of difference between such actions as are done by that Authority which the Law entrusts them with tho' not duly exercised and those violent and illegal acts which a Prince when he persecutes and enslaves his Subjects performs by his wicked Instruments contrary to all Divine and Human Laws So that the validity of such an Erroneous Judgment is not from the Judges personal Authority above the Law nor from his mistake or ignorance of the Law but from that high Credit and Authority which the Law hath given to all Courts and Judicial Proceedings which if they are done in due form are to be taken for Law however unjust and must be presumed to be free from Error till they are reversed in some higher Court. M. But if you please better to consider of it you will find a necessity of owning a Supreme Power in the King beyond all Appeal or Resistance and that there must be a personal Authority in him antecedent and superiour to all Civil Laws for there can be no Laws without a Law-maker and there can be no Law-maker unless there be one or more persons invested with the Power of Government of which making Laws is one principal branch for a Law is nothing else but the publick and declared Will and Command of the Law-makers whether they be a Soveraign Prince or the People And hence it necessarily follows that a Soveraign Prince does not receive his Authority from the Laws but Laws receive their Authority from him And I must be still of the same Opinion as to Bracton's words which you before quoted Lex facit Regem the Law makes the King by which I cannot believe that that great Lawyer meant that the King received the Soveraign Power from the Law for the the Law hath no Authority nor can give any but what it receives from the King and then it is a wonderful riddle how the King should receive his Authority from the Law And therefore I must stick to my former Interpretation that when he says the Law makes the King that is it distinguisheth him from a Tyrant as appears from the reason he gives for it i. e. Non est enim Rex ubi dominatur voluntas non Lex he is no King that Governs by his Arbitrary Will and not by Law not that he is no Soveraign Prince but he is a Tyrant and not a King And hence it as evidently follows that the Being of Soveraign Power is independent on Laws that is as a Soveraign Prince doth not receive his Soveraign Power from the Law so should he violate the Laws by which he is bound to govern Yet he is not to be resisted much less doth he forfeit his Power 'T is true he breaks his Faith to God and his Countrey but he is a Soveraign Prince still And now I hope it plainly appears that every Illegal act the King doth or Illegal Commission that he grants is not an inauthoritative Act or Commission but layes on the Subject an Obligation to yield if not Active yet a Passive Obedience And in the King 's most Illegal acts tho' they have not the Authority of Laws yet they have the Authority of Soveraign Power which is irrisistible and unaccountable In a word it doth not become any Man who can think three consequences off to talk of the Authority of Laws in derogation to the Authority of Soveraign Power The Soveraign Power made the Laws and can Repeal them and Dispense with them and make new Laws The only Power and Authority of the Laws is in in the Power that can make and execute Laws Soveraign Power is unseparable from the Person of a Soveraign Prince tho' the exercise of it may be regulated by Laws and tho the Prince doth very ill who having consented to such a Regulation breaks the Laws yet when he acts contrary to Law such acts carry Soveraign and irrisistible Authority with them while he continues a Soveraign Prince F. I am very well satisfied notwithstanding all you have hitherto said that the Government of England owns no such thing as this Arbitrary Power with which you would invest the King since I have already proved at our â—th meeting that the King is not the Sole Legislator and consequently not the Sole Supreme Power So likewise our Law it doth as little understand any such thing as a Personal Authority in the King antecedent and Superiour to all Laws For since God hath now left off making Kings by his own special appointment as he did among the Jews every King must either be so by the Law or Custome of that Countrey or else a bare possession of the Throne is sufficient to make him so and then every Usurper hath as much right to a Crown as the most lawful Prince and Oliver Cromwell was as rightful a Prince as King Charles the Second It is true the first King of any Race could not be invested with the Crown by the same Law as his Successors are that is by an Hereditary proximity of Blood Yet such a King whenever he began to be so could have no Legal Right without the Election Recognition or Consent of the People And as for an Hereditary Right that is but a Right by the Law of the Land or general Consent of the People testified by an uninterrupted Custom to entail the Crown on such a Family so that in either Case they are Kings by Law and therefore I conceive it can be only in this sense that Bracton says Lex facit Regem i. e. The Law of the Kingdom makes the King which more plainly appears by what immediately follows attribuat igitur Rex Legi quod Lex attribuit ei viz. Dominationem Potestatem in which words nothing seems more plain than that the
from the constant practice of those times that the King de facto was always own'd as Lawful Sovereign and had Allegiance still paid him by all the People of this Kingdom except those who being the heads of one or the other Party were either attainted or else forced to â—lye the Kingdom But as for all others though different and contrary Oaths of Allegiance were impos'd upon the People sometimes by the one and sometimes by the other of those Kings according as they got possession of the Throne yet I can no where find that ever any body suffer'd for barely swearing Allegiance to the King then in Being for it was always taken for Law that Allegiance was due to the King de facto since ordinary Subjects are not suppos'd to understand the legal right or justice of the Kings Title M. I must still say that there was some colour for the Peoples thus acting as you say they did during the contest for the Crown between the two Families of Yorke and Lancaster when I grant it was somewhat a difficult matter to judge which of the two had the best right to the Crown by reason that the House of Lancaster had held it for three descents as also from the speciousness of their Title since it was founded upon a pretended claim by right of blood upon supposing that Edmund Sirnamed Cronch-back who was one of the Ancestors of this House of Lancaster was the Eldest Son to Henry the Third which had it been true would have given Henry the Fourth a good right to the Crown not only against Richard the Second but his own Grandfather Edward the Third likewise had he been then alive and this descent falling out long before the memory of any man then living who could confute the falsity of this pretended Pedigree The People of England might very well be excus'd for owning an Usurper and paying Allegiance to him since they did not know but his claim might have been right especially since it was approv'd of in full Parliament without any contradiction as I have already shewn you at our last Meeting But what is all this to the matter now in debate between us when the Lineal Succession of the Crown has been so often declared to be the only means of acquiring a just Title to it and every one knows very well who was own'd for lawful King of England within these three Months and also who was pray'd for in all our Churches as his Son and Heir apparent and therefore I must still tell you that your parallel between those Kings de facto of the House of Lancaster and those Princes whom the Convention have now voted to fill the Throne does not at all agree since every Subject of this Kingdom who has but sence enough to go to Market can very well tell if they will deal sincerely to whom their Allegiance is due F. As to what you have now said it is no more than a repetition of what you have already urged to evade the force of these clear Authorities but indeed it was all one when a Prince had been once recognized for Lawful King by Act of Parliament whether the People knew his Title not to be good by right of blood or not And this I have plainly proved to you from the instance of Richard the Third who though both his Elder Brothers Children were then alive and the Eldest of them had been Proclaim'd King and also own'd for such by himself and whose Title he had also sworn to maintain in his Brother King Edwards life time as appears by the Clause Roll of the 11th of Edward the Fourth yet when he had once depos'd him and had call'd a Parliament which recognized his Title his Acts and Judicial Proceedings stand good at this day and though he himself was attained and declar'd a Tyrant and an Usurper yet all the Subjects who acted under his Authority and had taken an Oath of Allegiance to him never needed an Act of Indemnity for so doing whereas those that came over with Henry the VIIth were sain to have an Act of Pardon past to Indemnifie them for fighting against Richard the Third as I have now show'd you And though this Parliament of the first of Henry the Seventh agreed to repeal divers Acts which the King found fault with yet as for all other Statutes made in the Reign of King Richard the Third which have not been since repealed they are still in force without any confirmation likewise when Henry the Seventh had prevail'd over Richard the Third and that he was slain in the Field though all the Nation very well knew that Henry the Seventh could not be Heir of the House of Lancaster because his Mother was then alive and had never formally given up her right if she had any as certainly she could have none as being descended from Iohn Earl of Somerset who was base Son to Iohn of Gaunt Duke of Lancaster by Catherine Swinford whilst his Wife was alive and though I grant after his Marriage with the said Catherine the Children born of that Bed were made legitimate by Act of Parliament in the 20th of Richard the Second yet that legitimation only respects such private Priviledges and Inheritances which they might enjoy or succeed to as Subjects and not in respect of the Crown the Succession of which they were expresly declared uncapable of by that very Act of Legitimation still to be seen upon the Parliament Roll. But for all this when Henry the Seventh had called a Parliament and was therein recogniz'd for their Lawful Sovereign and that the Crown was setled by Statute on the King and Heirs of his Body without any mention of the Princess Elizabeth who ought to have been Queen by right of blood yet none of the Subjects of this Kingdom as I can find ever scrupled to swear Allegiance to him before ever he married that Princess though they as well knew that he could have no right by blood as you can suppose that the People at this day can know whether King Iames has abdicated or forfeited the Crown or not or whether your Prince of Wales be his true and lawful Son for since they are both nice and difficult Points and having been determined by the Convention the Supream Judges in this Case in favour of their present Majesties and that they also recognized their Title after they became a Parliament I can see no manner of reason why all the Subjects of this Kingdom may not as well justifie their taking this new Oath of Allegiance to them notwithstanding their former Oath of Allegiance to King Iames and his Right Heirs as well as the People of England could justifie their taking an Oath of Allegiance to Henry the Seventh notwithstanding their former Oath to Edward the Fourth and his Right Heirs before ever Henry the Seventh had Married the Princess Elizabeth the Heiress of the Crown especially since this Act of the 11th of Henry the
the Father please to sell one or two of his Children whom he least loveth to provide Portions for the rest he may lawfully do it for any thing I see to the contrary So likewise immediately after he asserts the Superiority of all Princes above Laws because there were Kings long before there were any Laws And all the next Paragraph is wholy spent in proving the Unlimited Iurisdiction of Kings above Laws as it is described by Samuel when the Israelites desired a King So that it signifies little what Laws Princes make or what Priviledges they grant their Subjects since they may alter them or abrogate them when ever they please M. But pray take along with you what he says in the next Paragraph you quote where you may see these words It is â—here evidently shewed that the scope of Samuel was to teach the People a dutiful Obedience to their King even in those things which themselves did esteem Mischievous and Inconvenient For by telling them what a King would do he indeed instructs them what a Subject must suffer yet not so as that it is Right for Kings to do Injury but it is Right for them to go unpunished by the People if they do it So that in this point it is all one whether Samuel describe a King or a Tyrant for patient Obedience is due to both No Remedy in the Text against Tyrants but in crying and praying unto God in that day And that Sir R. F. is very far from justifying Kings in the unnecessary Breach of their Laws may farther appear by what he says Chap. 3. Par. 6. of this Treatise where pray see this passage Now albeit Kings who make the Laws be as King James teacheth us above the Laws yet will they Rule their Subjects by the Law and a King Governing in a Settled Kingdom leaves to be a King and degenerateth into a Tyrant so soon as he leaves to Rule according to his Laws yet where he sees the Laws rigorous or doubtful be may mitigate and interpret them So that you see here he leaves the King no Power or Prerogative above the Laws but what shall be directed and employed for the general Good of the Kingdom F. But pray Sir read on a little farther and see if he doth not again undo all that he hath before so speciously laid down and if you will not read it I will General Laws made in Parliament may upon known respects to the King by his Authority be mitigated or suspended upon Causes only known to him And altho' a King do frame all his Action to be according to the Laws yet he is not bound thereto but at his good Will and for good Example Or so far forth as the General Law of the Safety of the Common-Weal doth naturally bind him for in such sort only Positively Laws may be said to bind the King not by being Positive but as they are naturally the best or only means for the preservation of the Common-Wealth So that if the King have this Prerogative of mitigating interpreting and suspending all Laws in Cases only known to himself and that he is not bound to the Laws but at his own good will and for good example I desire to know what greater Prerogative a King can desire than to suspend the Execution of any Law as often as he shall think fit For tho' I grant the Suspension of a Law differs from the Abrogation of it because the former only takes away the force of it in this or that particular case whereas the latter wholy annuls the Law yet if this Suspension be general and in every case where the Law is to take effect it amounts to the same thing with an Abrogation of it as may be plainly seen in the late King 's Dispersing Power For tho' it be true he pretended to no more than to dispense with this or that Person who should undertake a publick Employment either Military or Civil without taking the Oaths and Tâ—st yet since he granted this Dispensation generally to all Papists and others that would transgress this law it amounted to the same thing during his pleasure as an Absolute Abrogation of it And therefore I do very much wonder why divers who are very zealous for the Church of England and the King's Prerogative should be so angry with him for erecting that Power which not only this Author but all others of his Principles have placed in him And if the King may suspend this and all other Laws upon Causes only known to him I do not see how he differs from being as Absolute and Arbitrary a Monarch as the Great Turk himself and may when he pleases notwithstanding all Laws to the contrary take away Men's Lives without any due Forms of Law and raise Taxes without Consent of Parliament M. But pray read on a little farther and you will find that he very much restrains this Absolute Power in these words By this mean are all Kings even Tyrants and Conquerors bound to preserve the Laws Goods Liberties and Lives of all their Subjects not by any Municipal Law of the Land but by the Natural Law of a Father which binds them to ratifie the Acts of their Fore-fathers and Predecessors in things necessary for the publick good of their Subjects F. Were I a Monarch limited by Laws I would desire no greater a Power over them than this you have here brought out of this Author For he says Positive Laws do not bind the King but as they are the bâ—st or only means for the preservation of the Common Wealth In the next place you see that all Kings are bound to preserve the Lives and Estates of their Subjects not by any Municipal Law of the Land but by the Natural Law of a Father which binds them to ratifie the Acts of their Predecessors in things necessary for the publick good of their Subjects Now this Paternal Power is large enough of all Conscience to discharge Princes from any Obligation to the Laws farther than they please For it before appears that the Father of a Family governs by no other Law than by his own Will and not by the Laws and Wills of his Sons or Servants therefore if the Power of the King be wholy Paternal he may alter this Will of his as often as he please Nor can his Subjects who are all one with Sons and Servants have any reason to find fault with it For he says There is no Nation that allows Children any Remedy for being unjustly Governed And tho' it be true that he restrains this Prerogative both in Fathers and Kings to the publick good of their Children and Subjects yet as long as he is left the sole and uncontroulable Judge of what is for the publick good all these fine Pretences will signifie nothing For he is bound to observe or ratifie no Laws or Acts of his Predecessors but what he is satisfied tend to this End So that if he thinks fit to Judge that Magna
those Laws had any thing to do in England before but always supposed the Politick Laws of our Country to be the only measure of the King's Prerogative as also of the Subject's Obedience and Subjection Nor do your own Civil Laws by as much as I know of them make any difference between the Imperial and Political Laws of the Empire for by the one as well as the Other the Civilians understand such Laws or Ediâ—ts of the Emperours which with the Approbation of the Senate were made for the Peace and Well government of the Common-Wealth but I never yet heard of any Imperial Laws whereby the Emperour declared that he had a Right to plunder or murder all the Citizens of Rome or that they believed they were obliged to Suffer by your Imperial Laws without any Resistance I am sure the Senate and People did not believe that the Emperour had any such Authority when they declared Nero and Maximin for their intolerable Cruelty not only Enemies of the Common-Wealth but of Mankind But if by these Imperial Laws of Non-resistance you mean no more than what you laid down in your Syllogism That it is an inseparable Right or Prerogative of Soveraign Powers not to be resisted by their Subjects when you have proved this Proposition by the Laws of Nature and Reason I shall then believe it But as for your Conclusion it being founded upon these Premises it needs no Confutation for if the Imperial Laws of Government do not require your Passive Obedience then Subjects are not bound to perform it And to shew you the Falseness and absurdity of this Assertion that Whatsoever the Imperial Laws of any Government require of its Subjects if it be not contrary to God's Laws they are bound to perform it In stead of Passive Obedience or Patient Suffering of Injuries let us insert to give up to the Soveraign all our Civil Properties and Estates if demanded by him is not forbid by God's Laws and therefore Subjects are bound to perform it when ever it is required by the Imperial Laws For certainly the absolute disposal of the Estates of the Subjects is as unseparable a Prerogative of Soveraign Power as Irresistibility it self as I think I am able to prove if you think fit to dispute that Question But at present I shall only confine my self to confute the Major in your Syllogism In the first place therefore tho' I do grant what you lay down for a Ground to be true That it belongs to Soveraign Powers to be accountable to or punishable by none but God Yet I suppose Resistance of their Violence and Tyranny may very well be perform'd by the People without calling them to a Iudicial Account or erecting a Tribunal for that purpose Calling to an Account and Punishment are acts of Authority of Superiours over Inferiours But Resistance for self-defence is a Right of Nature and which no Man by entering into Civil Government ever parted withal but out of Consideration of a Greater Good to be obtained thereby viz. his own greater Security together with the Common Good of that Civil Society whereof he is a Member which when by the Prince's violence it is once like to be wholly lost his Natural Right of Self-defence for the Preservation of himself and Family again takes place Nor doth he then resist the Supreme Powers as such but as Murderers and Cut-throats who by going about to destroy the People have already loft all that Right they formerly had And of this opinion is that moderate Romish Author Barclay before cited Who in the 16 Chap. of the Book last quoted hath this Remarkable passage What then Can there no Cases happen in which it may be lawful for the People by their own Authority to rise up and resist a King governing Tyrannically His Answer to this Question is there are certainly none as long as he continues King for the Scriptures forbid it which say Honour the King and he who resisteth the Power resisteth the Ordinance of God Therefore the People can have no Power against him unless he committeth something by which he may cease to be King for then he himself abdicates his Kingship and becomes a private Man and by this means the People being made Free that Right returns to them which they had before the King was made But there are but few Facts of that Nature which can produce Such effects And I cannot when I think of it find more than two Cases in which a King doth ipso facto make himself no King and thereby depriveth himself of all Honour Regal Dignity and Power which also Winzerus takes notice of One of these is if he destroys his Kingdom and then gives us the Examples of Nero and Caligula as I have already done And next proceeds to this purpose that when any King designs and doth seriously endeavour to put this in practice he casts off all care and desire of Governing And therefore thereby loses his Empire over his Subjects as a Lord of a Servant loses his Dominion over him by giving up all Care and Government of him And of this Opinion likewise are Grotius and Pâ—ffendorf the two best and most learned Writers on this Subject Who do not think it inconsistent with the Rules of the Gospel for Subjects to resist the King if with a Hostile mind He seeks the Destruction of his People for says the former the Will of commanding and destroying cannot consist together And therefore he who professes himself an Enemy of the whole People does thereby abdicate the Kingdom but that can Scarce seem to happen in a King in his right Witts and who commands only one Kingdom But if he commands more Kingdoms it may so happen that he would destroy the People of one Nation to gratifie the other that he may there make Colonies of them And this I suppose Grotius spoke in relation to the King of Spain who they say had declared that if he overcame the Dutch then in Arms against him he would fell the People for Slaves into America and people the Country with Spaniards M. You very much mistake me if you think by Imperial I meant the Roman Laws but only the Common Laws of Soveraignty which tho' they destroy no Man's Natural or Civil Rights Yet both grant and confirm unto the Legal Soveraign in every Government the Essential Rights of Soveraignty of which I take Non-resistance not only for Wrath but Conscience lake to be one of the Chief And therefore it were much better to venture the utmost that a Tyrant can do towards his People by destroying them than to give the least inlet to Rebellion by Supposing the People may in any case whatsoever resist their Prince For granting the worst that may happen that a Prince once in 1000 years to be so wicked and Malicious as to go about to destroy his People yet he could scarce find means and hands enough to bring it about and admit he should destroy by
are they likewise obliged to maintain this Property when it is once Instituted and the People have as much Right to it as any King can have to his Crown viz. the Civil Law of that Country or Consent of the whole Nation And therefore if according to King Iames the First his Rule a King of a Setled or limited Kingdom will break all the Laws thereof and Degenerate into a Tyrant unless such Tyrant be the Ordinance of God he may certainly be so far Opposed for what can Pirates or Robbers do more than his Officers and Guards by his Commission The former can but Murder Men Ravish their Wives burn their Houses and take away their Estates and if the latter may do so too pray where is the Difference Or what satisfaction is it to me that I am Ruined by one Man having the King's Commission or by another that Ruins me without it Since I am sure God hath given the one no more Authority to do it than the other if then this unlimited Power be neither conferred by God nor Man upon the Civil Magistrates I would fain know any Reason why Thieves and Pirates may be Resisted but their Instruments may not that do the same things And why when Civil Authority exceeds its utmost Bounds the State of Nature or Self-defence may not take place Since the Civil Government is as much Dissolved by such Violent Actions as if a Forreign Enemy had broke in and Conquered the Country But to Answer your Query whether I think a Civil Government may not be where there is no Setled Property in Estates and whether the Eastern Monarchies are not Civil Governments To this I answer that I have Aristotle on my Side who not without Reason Affirms that the Government of one Man where there is no Civil Property and where all Men are Slaves is not Civil Government but that of a Master of a Great Family over his Slaves And tho' I grant that they may have some shew of Civil Government among them as in a Plantation where one of the Slaves may complain to the Master against another for any Injury or Wrong done him yet is not this Property Civil Government any more than that of the Master of a Separate Family who looks upon himself as Absolute Lord over all his Slaves and they allowed him by God only for his Benefit and Grandeur and not he instituted as all Civil Powers are for the Good and Preservation of the Subjects M. But methinks you seem herein to Condemn the Government of Gods own People the Iews which no doubt was an Absolute Monarchy And that restrained by no Laws except what God had expresly prescribed them And yet you see notwithstanding Samuel told them that their Kings should take away their Fields and their Vineyards and give them to his Servants and take their Sons and Daughters to be his Servants or Slaves Yet God leaves them no Power to Resist them for so doing But all the Remedy left them is that they should Cry out in that day because of the King which they had chosen and the Lord would not hear them that is there was no Remedy left them but Patience F. I have already given you my Sense of that Place and I shall speak more particularly to it when you shall come to those Texts of Scripture that you said you would produce for Absolute Subjâ—ction and Non-Resistance And therefore at present I shall only here shew you what the Earl of Clarendon in the above mentioned Survey of the Leviathan cap. 19. hath very prudently as well as honestly said concerning this Text They who will deduce the extent of the absolute and illimited Power of Kings from that Declaration by Samuel which indeed seems to leave neither Property nor Liberty to their Subjects and could be only intended by Samuel to terrifie them from that Mutinous and Seditious Clamor as it hath no Foundation from any other part of Scripture nor was ever practised or exercised by any Good King who succeeded over them and was blessed and approved by God So when those State Empiricks of what degree or Quality soever will take upon them to prescribe a new Dyet and Exercise to Soveraign Princes and invite them to assume new Powers and Prerogatives over the People by the Precepts Warrants and Prescriptions of the Scriptures they should not presume to make the Sacred Writ Subject to their own private Fancies So likewise in a Leaf or two before he speaks much to the same Purpose That what Samuel had said was rather to terrifie them from pursuing their foolish Demands than to Constitute such a Prerogative as the Kings should use whom God would appoint to go in and out before them which methinks is very manifest in that the worst Kings that ever reigned over them never challenged or assumed those Prerogatives Nor did the People conceive themselves liable to those impositions as appears by the application they made to Rehoboam upon the Death of Solomon that he would abate some of that Rigor his Father had exercised towards them the rough Rejection oâ— which request contrary to the Advice of his Wiâ—est Counsellours cost him the greater part of his Dominions And when Rehoboam would by Arms have reduc'd them to Obedience God would not suffer him because he had been in the fault himself From whence you may conclude that this Great Man did not think all Resistance unlawful in Case of General and Intolerable Oppressions M. I shall give you my Opinion farther of what you have now said when you have told me more plainly in what Cases you allow Resistance of the Supream Powers and in what not For till you have been more clear in this matter I cannot tell what Judgment to make of your Tenets F. I thank you for putting me upon so fair a Method And therefore that you may not mistake me and suppose that I would go about to allow Subjects to Resist and take up Arms against the Supream Power upon any less Occasion than an Absoluâ—â— Necessity and apparent Danger of being Destroyed and Ruined in their Lives Liberties and Estates first therefore considering that the Corruption of Humane Nature is such that no sort of Government whatsoever can continue long without some Inconveniences and Mischiefs to particular Men not that any Man either Prince or â—ubject was ever Master of such perfect Wisdom and Goodness as always to peform his Duty so exactly as never to Offend I do in the first place grant that it would be both Undutâ—ful as well as Unjust for Subjects to Rebell aâ—ainst their Prince for his Personal Failings or Vices Undutiful Since the Prince may be often times an ill Man in his private Capacity and yet a good Governour in respect of the Publick and also Unjust since neither do we our selves exactly perform our Duties toward the Supream Powers or to one another as we ought And therefore it is highly reasonable for Subjects to
of an Incensed Prince may justly inflict upon such Rebels in this Life but also the Wrath of God and those Punishments that he hath denounced in the Holy Scriptures in the Life to come against such Rebellious Subjects as dare resist the Supream Powers ordained by God F. Before I answer the main part of your last discourse give me leave first to justifie my Simile for tho' I grant Similes are no Arguments yet they often serve to expose the absurdity of several things which either the â—alse colours of Eloquence or the too great Authority of learned men might otherwise have hid from our Eyes and therefore if the Supream Powers have no Authority from the Revealed Will of God or the Law of Nature nor by the Municipal Laws of any Countrey to invade their Subjects Lives Liberties or Estates they may be so far compared to Thieves and Robbers when they do nor are such violent Actions of theirs to be submitted to as the Ordinance of God And I suppose you will not deny but that a Prince or State that does thus Acts as directly contrary to Gods Will as Thieves themselves and consequently all honest men or Subjects having so far no obligation to suffer or obey may justly Resist them So that if this be true all the rest of the Comparison currit quatuor pedibus But as for your reflections upon MAGNA CHARTA it is you your self not I that asserted it to have been extorted by force and dâ—fended by Rebellion for it is very well known to those who are at all Conveâ—sant in our English Histories and Laws that there was nothing granted in that CHARTER which was not the Birth-right of the Clergy Nobility and People long before the Conquest and were comprised under the Title of King Edwards Laws and which were after confirmed by William the first as also more expresly by the Grants of his Son Henry the first and King Stephen as appears by their Charters still to be seen And therefore these fundamental Rights and Priviledges were not extorted by force from King Iohn as you suppose The War commencing between him and his Barons was not because he would not grant them fresh Priviledges which they had not before but because he had not kept nor observed the Fundamental Laws of the Land and those Rights and Priviledges which before belonged to the Clergy Nobility and People as well by the Common Law of the Land as the Grants of former Kings And therefore if King Iohn by his apparent breach of them forced the Nobility and People to defend them it was no Rebellion for so doing nor was it ever declared to be so by any Law now extant But to come to the main force of your Argument I confess it were an admirable expedient not only against Rebellion but also the Tyranny of Princes to PREACH that they should not oppress their People nor yet that the People should rebel against them but the preaching of these Doctrines or getting as many as you can to believe them will no more make Princes leave keeping standing Armies or laying great Taxes upon their People than Constant Preaching against Robbery or Murder will take away the necessary use of Gallows out of the Nation Since we know very well that as long as the Corruption of humane Nature continues so long must likewise all Powerful Remedies against it And therefore your Instance of William the Conqueror will signifie very little for I believe had all those learned Divines who have of late so much Written and Preached for Passive Obedience and Non-resistance been then alive and had exerted the utmost of their Reason and Eloquence to prove them necessary nay farther I do not believe tho' all the People of England should have given it under their hands that they would not have Resisted or Rebelled against King William that yet he would have trusted them the more for all that or have kept one Soldier the less for it nor have remitted one Denier of those great Taxes he imposed for he was too cunning and Politick a Prince not to understand humane Nature which cannot willingly endure great and intolerable Slavery and Oppression without Resistance if men are able and therefore he very well knew that after the forcible taking away of so many of the English Nobilities Estates there was no way but force to keep them in Obedience And as Princes can never be satisfied that their Subjects have been throughly paced in these difficult Doctrines so they can never be secure that they will not play the Iades and Kick and fling their Riders when they spur them too severely and press too hard upon them And therefore I doubt such Princes whose Government is severe will always find it necessary to Ride this Beast as you call it the People with strong Curbs and Cavessons But besides all this there is likewise another infirmity in the Nature of Mankind and of which Princes may as well be Guilty as other men that they are more apt to oppress and insult over those whose Principles or Natural Tempers may be against all Resistance and for this I appeal to your Example of the Primitive Christians who were not one jot the better used by the Roman Emperours tho' they expresly disclaimed all Resistance of those Emperours for Persecution in matters of Religion and tho' some neighbouring Princes are thought to have their Subjects in more perfect Subjection and that either their Religion or Natural Tempers makes them less apt to resist the Violence and Oppression of their Monarchs than the English or other Nations Yet I desire you to enquire whether Taxes and all other oppressions do not Reign as much under those Governments however sensible the Princes may be of their Subjects Loyalty and Obedience Therefore to conclude I shall freely leave it to your Judgment or that of any indifferent Person which is most agreeable to the main Ends of Civil Government viz the Common good of Mankind and the Happiness and Safety of each particular Kingdom or Commonwealth that the Violence and Tyranny of Princes should be sometimes Resisted than that the People under the Pretence of this irresistible Power should be liable to be made beggars and Slaves whenever any Prince or State had a Mind to it And I appeal to your own Conscience if the supposed belief of the Passive Obedience of some of our Church was not one of the greatest encouragements which the King and the Iesuited Fâ—ction had to bring in the Popish Religion under the Colour of the dispensing Power Ecclesiastical Commissioners and force of a standing Army from which Unavoidable mischiefs nothing under God but this wonderful Revolution could have rescued us And therefore I think it becomes any honest man to thank God for it and join with his Highness the Prince of Oriâ—â—ge as the only means now miracles are ceased which God hath been plâ—ased to ordain by the course of his Providence for our Deliverance M. I
about to make himself King of the Iews in Opposition to Caesar and therefore whilst they lay under this Mistake they were under as high an Obligation as an Erroneous Conscience could lay upon them of Seizing him and bringing him before the High-Priest and the Governour For if they had believed him to be the true Messiah and consequently the King of their Nation it had been impossible that they should ever have gone about to put him to Death Which likewise our Saviour himself acknowledges when Praying for them that Crucified him he said Father forgive them for they know not what they do I speak not this to excuse the Priests or Sanâ—edrim for condemning our Saviour to Death or for using all the Power they had with Pilate to have him executed Since I grant their Ignorance being in great part Wilful at least not Invincible they had no just excuse not to believe on him after so many Miracles he had wrought in the sight of all the World But only to prove that which I suppose you will not deny i. e. that Magistrates even whilst they Act unjustly are not to be resisted in the Execution of Publick Iustice no not to rescue an Innocent Man by force from the Hand of Iustice after he is Condemned Since the false or unjust Sentences of Iudges against particular Persons are to be taken for just in common Acceptation till they be Repealed according to that Maxime in your Civil Law Proetor dum iniquum decernit Ius dicit and therefore our Saviour coming to fulfil all Righteousness and to be the exact Patern of Divine and Moral Actions could not do less than rebuke St. Peter for making use of the Sword against a Lawful Authority but what is this to the Cases that I have put of the Resistance of whole Nations or Bodies of Men against an unjust force and destructive Violence upon their Persons and Estates by those who pretend to Act as the Supream Powers tho contrary to all Laws Natural and Divine and who have no Pretence to Act as they do but only their unjust and Arbitrary Wills back't by Power Aâ—d that there is a great difference in these two I will clearly shew you from your own Concession that no man wanteth Authority to defend his Life against him that hath no Authority to take it away and therefore I suppose St. Paul might only with the Help of those that were with Him not only have defended his Life against those whom we find in the 25 th of the Acts who were by Order of the High-Priest and Chief of the Iews to have lain â—n wait to kill Paul by the way but also against any that Festus the Governour himself should have sent for the same End Since He there decâ—ares That it is not the manner i. e. Law of the Romans to deliver any Man to dye before that he that is accused have the Accuâ—â—rs face to face and have License to Answer for himself concerning the Crime laid against him And therefore as Caesar could give Festus no Commission to Murder Men so neither did God bestow on the Emperour any Authority to commit murder or to Authorise others to do it and if a single Person might do this certainly much more a whole Nation Country or City may justifie such a Resistance where their Lives Liberties and Estates lye at Stake from the Violence or Tyranny of the Supream Powers and therefore I do not see but that I may very well grant the Instance you have put to be conclusive against this Resistance made by St. Peter on our Saviours behalf so that your Instance doth not reach the Case in hand that all Resistance of Supream Powers is unlawful And you your self have already granted as much as I can in Reason desire that no Man wants Authority to defend his Life against Him who hath no Authority to take it away So that unless Princes and their Inferiour Officers receive Authority from God to commit Murders every Man may defend himself against them when they go about to take away their Lives by Violence contrary to Law And therefore I see no Reason from any thing that you have hitherto said to believe that Christ did not allow this Distinction between the Person and Authority of the Prince to be good in some Cases or that tho' his Person should be sacred yet that his Ministers who Act not by his Regal Authority but his Personal and Tyrannical Will may be opposed nor can I find any Consequence from what you say that he is a Mock Prince whose Authority is confined to his own Person who can do nothing more than what he can do with his own Hands Since no Man in his Wits asserts any such thing for I grant that an Absolute Prince hath Power to make Laws and to Command them to be put in Execution which do not contradict the Laws of God and Nature and a Limited Prince hath likewise a Right to Command in all things that do not expresly contradict Gods Natural and reveal'd Laws and also those Positive Laws of his Country which he is not the sole maker of that do not contradict the former and if he can do this I think he is endued with an Authority sufficient to Answer all the Ends of Government without supposing that he must needs have an irresistible Power and without which he cannot Answer those Ends to Murder and Enslave whomsoever he will I grant indeed a Prince is not meerly a Natural but a Political Person but certainly his Personal Authority as King doth not reach as far as his Commission or that he who resists those who Act by his Commission may be said in all Cases to resist his Regal Authority Since at this rate the poor Protestants in Ireland at the beginning of the last Irish Rebellion had been in a very woful Condition if it had happened which was not impossible that King Charles the first should really have granted a Commission to Sir Phelim Onâ—al to destroy them which no man could then certainly tell but that he had since Sir Phelim publickly shewed such a Commission and still asserted the Truth of it till he came upon the Gallows but this is only by the by and in answer to what you have now said to this Matter So that there is no need of supposing what our Saviour thought one way or other in this matter Since he did not rebuke St. Peter for resisting the Inferiour Officers because they offered an unjust and illegal Violence but because he resisted those who acted by a true and Legal Commission from the High-Priest and Sanhedrim who supposed our Saviour to be a false Prophet M. If this Distinction of yours were true it would render the Example of Christ's suffering in obedience to the Supream Powers tho' unjustly yet without Resistance of no effect to us whereas I am firmly perswaded that Christ took such a mean and suffering a Person upon him
our Saviour were not sufficient of it self to make a Law but stood in need of the Confirmation and Additional Authority of his own Apostles but we might justly suspect our selves mistaken in the meaning of our Saviours Words or in the Intention and design of his Sufferings had none of his Apostles who were immediately instructed by himself and acquainted with the most sacred Mysteries of his Kingdom ever Preacht any such Doctrine as this of Subjection to Princes And therefore to give you the more abundant Assurance of this I shall plainly shew you that the Apostles taught the same Doctrine and imitated the Example of their great Master I shall begin with St. Paul who hath as fully declared himself in this matter as it is possible any Man can do by Words Let every Soul be subject unto the Higher Powers for there is no Power but of God the Powers that be are ordained of God Whosoever therefore resisteth the Power resisteth the Ordinance of God and they that resist shall receive to themselves Damnation This is a very express Testimony against Resistance and therefore I shall consider it at large for there have been various Arts used to pervert every Word of it and to make this Text speak quite contrary to the Design and Intention of the Apostle in it And therefore I shall divide the Words into three general parts 1. The Doctrine the Apostle instructs them in Let every Soul be subject to the Higher Powers 2. The Reason whereby he proves and inforces this Doctrine For there is no Power but of God the Powers that he are ordained of God Whoever therefore resisteth the Power resisteth the Ordinance of God The Punishment of such Resistance and they that resist shall receive to themselves Damnation I shall begin with the Doctrine That every Soul must be Subject to the Higher Powers and here are three things to be explained 1. Who are contained under this general Expression of every Soul 2. Who are meant by the Higher Powers 3. What is meant by being Subject 1. Who are contained under this general Expression of every Soul which by an ordinary Hebraism signifies every Man For Man is a Compounded Creature of Body and Soul and either part of him is very often in Scripture put for the whole sometimes Flesh and sometimes Soul signifies the Man and when every Soul is oppos'd to the Higher Powers it must signifie all Men of what Rank or Condition soever they be who are not invested with this Higher Power And again says he The design of the Apostle as you shall hear more particularly by and by was to forbid all Resistance of Soveraign Princes and had he known of any Man or Number of Men who might Lawfully resist he ought not to have express't it in such general Terms as to forbid all without Exception And therefore I shall now a little more closely examine your main Argument or indeed Foundation of all that you have Urged for Resistance viz. That tho' it is unlawful for private or particular Men to resist the Supream Powers yet that it doth not extend unto the whole or Major part of a â—eople or Nation whenever they are outragiously oppress 't or assaulted by the Higher Powers beyond what they suppose they are able to bear whereas the Apostle here commands every Soul to be subject and therefore if the whole body of the People be subject to God they must also be subject to the Prince too because he acts by God's â—uthority and Commission were a Sovereign Prince the Peoples Creature that might be a good Maxim Rex majâ—r singulis sed minor universis That the King is greater than any particular Subject but less than All together but if he be God's Minister he is upon that account as much greater than all as God is And that the whole body of the People altogether as well as one by one are equally concerned in this Command of being subject to the higher Powers is evident from this Consideration that nothing less than this will secure the Peace and Tranquillity of humane Societies The resistance of single Persons is more dangerous to themselves than to the Prince but a powerful Combination of Rebâ—ls is formidable to the most puissant Monarchs The greater Number of Subjects rebell against their Prince the more do they distress his Government and threaten his Crown and Dignity and if his Person and Authority be sacred the greater the violence is which is offered to him the greater is the Crime Had the Apostle exhorted the Romans after this manner Let no private and single man be so foolish as to rebel against his Prince who will be too strong for him but â—f you can raise sufficient forces to oppose against him if you can all consent to depose and murder him this is a very innocent and justifiable nay an heroical Atchievement which becomes a Free-born People How would this have secured the Peace and quiet of the World How would this have agreed with what follows that Princes are advanced by God and that to resist our Prince is to resist the Ordinance of God and that such Men shall be severely punish't for it in this World or the next for can the Apostle be thought absolutely to condemn Resistance if he makes it only unlawful to resist when we want Power to conquer which yet is all that can be made of it if by every Soul the Apostle means only particular men not the united Force and Power of Subjects Nor can there be any reason assigned why the Apostle should lay so strict a Command on particular Christians to be subject to the higher Powers which doth not equally concern whole Nations For if it can ever be lawful for a whole Nation to resist a Prince it may in the same Circumstances be equally lawful for a particular man to do it if a Nation may conspire against a Prince who invades their Rights their Liberties or their Religion why may not any man by the same reason resist a Prince when his single Rights and Liberties are invaded It is not so safe and prudent indeed for a private man to resist as for great and powerful Numbers but this makes resistance only a matter of Discretion not of Conscience if it be lawful for the whole body of a Nation to resist in such Cases it must be equally lawful for a particular man to do it but he doth it at his own Peril when he hath only his own single force to oppose against his Prince So that our Apostle must forbid resistance in all men or none For single Persons do not use to resist or rebel or there is no great danger to the Publick if they do but the Authority of Princes and the Security of publick Government is only endangered by a Combination of Rebels when the whole Nation or any considerable part for Numbers Power and Interest take Arms against their Prince If
may they not for the same Reason rid themselves of such a Iudgment as Intolerable Tyranny when they are able and have an Opportunity to do it since they proceed from the like Common Dispensations of God's Providence or else we must believe that the Wickedness of one or more persons for the Destruction of Civil Society the is more particularly derived from God than the Power of the whole People for their own Preservation and the common Good and Happiness of the Common-wealth By which means Princes would have the same Power and Right over their Subjects Bodies and Estates as they have over those of their Beasts to sell kill and devour them at their Pleasure M. Tho' I grant it may be lawful for a People to remove Natural Iudgments by human Means yet doth it not follow that they may therefore remove by Force such Punishments as God pleases to lay upon them from the Abuse of Civil Authority by the Supream Powers since He hath particularly enjoyned them to bear such Punishments patiently without any Resistance because they are inflicted by those whom God hath Ordained for our Temporal Governours and Masters and whose Violences and Oppressions as long as they continue in their Sins God hath very good reason to continue upon them and if they Repent they may be assured that in his good time he will either remove them or turn them to the best For all things even Afflictions work for the good of them that fear him And God will not suffer those that trust in him to be afflicted beyond what they are able to â—ear And if this Doctrine of yours might take place both Servants and Children in the State of Nature might upon the like Pretence both Resist and turn their Father and Master out of doors because forsooth their Government was so severe and Tyrannical that it was not any longer to be endured by them And tho' such severe Fathers or Masters may be Ordained by God for the Punishment of such wicked Children and Servants yet that being no more than other natural Iudgments they may be without any Sin removed by Force or Resistance when ever they thought themselves strong enough to do it And if this Doctrine be wicked and absurd in private Families then is it much more so in Kingdoms for certainly there is as perfect a Subjection due to a Soveraign Prince as to a Father or Mâ—ster for he is more Eminently the Minister of God and Acts by a more Sacred and inviolable Authority And notwithstanding what you have said to the contrary that the Precep given to Servants by St. Peter doth not concern Subjects I think I can very well prove that it doth as appears from the Example of Christ which the Apostle there recommended to our Imitation who was the most innocent person in the World and yet suffered the most barbarous Usage not from the hands of a private Master but of the Supream Powers And therefore when he commands in the same Chapter to submit to Governours as to those who are for the punishment of Evil doers and the praise of them that do well it is evident that he did not intend this as a Limitation of our Subjection or as if we were not bound to be subject in other Cases since in the very same Chapter he requires Subjection not only to the Good and Gentle Masters but also to the froward in Imitation of the Example of our Lord who suffered patiently under unjust and Tyrannical Powers I observe therefore that the Apostle doth not alledge this as the Reason of our Subjection but as a Motive or Argument to reconcile us to the practice of it The Reason of our Submission to Princes is that they are advanced by God that they are his Ministers that those who Resist them Râ—sist the Ordinance of God and therefore we must submit for God's sake out of Reverence to his Authority But it is only an Encouragement to Subjection to consider the great Advantages of Government that Rulers are not a Terrour to good Works but to the Evil. But tho' this Motive should fail in some Instances yet whilst the Reason of the Subjection lasts and that can never fail whilst we own the Soveraign Authority of God so long it is our Duty to be subject whether our Prince do his Duty or not F. Altho' what you have now replyed is no more in effect than â— Repetition of what hath been said before yet I forgive it since your Cause will admit no other nor can I see any Reason why Natural Iudgments may 〈◊〉 removed by Force or Natural Means but not Moral or Civil ones unless you could also prove that it is God's Express Command that we may remove the one but not the other nor have you proved it otherwise than by telling me that Princes are God's Ordinance and are endued with Irresistible Power all which hath been already considered And I have already shewn you it is neither Commanded by God nor yet Ordained for the Common Good of Mankind And tho' I own that Afflictions may sometimes serve for a Punishment of a sinful Nation yet it is as likely that such a great and lasting Punishment as a mercilesâ— Tyrant may as well bring the People to Repentance and when they are sâ—fficiently amended they may very well enjoy the Benefits of it and they may as well expect that God will bless all Lawful Means for that end whereof I take Resistance or self-defence to be the Principal since Miracles are ceased And of this we have an Example in the 2 d. of Kings chap. 18. For tho' Ahaz the Father of Ezekiah had submitted himself and become Tributary to the King of Assyria yet when Hâ—zekâ—ah his Son turned to the Lord it is said that he was with him and that he rebelled against the King of Assyria and served him not and yet he was then as much subject to him as Iehoiachin or Zedekiah were afterwards to Nebuchadnezzar So that all that is new in this Answer of yours is only the fatal Consequences that it would bring upon all Families in the State of Nature for then forsooth Children and Servants might likewise pretend that the Government of their Fathers and Masters were so insupportable that it was no longer to be endured and so might Rebel against them and depose them which doth by no means follow for I have already proved at our first Conversation that some sort of Resistance for the Preservation of Life and Limbs may be lawful against the Outrages or Violence of a Father or Master of a Family Yet do I by no means allow that they should Resist them for any other Correction or severe Usage which they shall inflict upon them since Servants or Slaves whilst they continue under their Masters Power can have no Liberty or Property of their own to defend and a Son whilst he remains part of his Fathers Family I grant differs not from a Servant so that all that
ought to be done either by Sons or Servants in case the Government of their Father or Master grows so Cruel and Tyrannical as not to be endured is to run away and leave their Family And thus we read that Hagar upon the severe Usage of Sarah her Mistress fled from her nor was blamed by the Angel for so doing Nor is what you have now said to prove the Subjection of Servants and Slaves to be as absolute the one as the other at all convincing for I have long since proved that a Family and a Kingdom are very different things and that Oeconomical and Civil Power do not only differ in Specie but in Genere too For tho' I grant that Slavery might begin by Compact as well as by War yet Subjection to Civil Power could Regularly commence by Compact only and therefore since the Natural State of Mankind is that of Freedom from Slavery all Subjects are supposed to be in that State of Freedom and to have a Right both to their Liberties and Properties which if the Supream Powers go about forcibly to take away they then cease to be so since they take away the main End of their Institution I mean this of such a People who are properly Subjects and not Slaves For of those who own themselves to be Slaves to their Prince I told you already I would not take upon me to meddle Since I doubt whether such an Empire can be called a Civil Government or not So that for all that you have hitherto said I must still believe St. Peter did not direct this Precept to Subjects but to Servants under the Yoak that is to Slaves such as had no Property in any thing nor Power over their own Persons but might be sold and assigned with their Wives and Children to whom soever their master pleased which tho' not of Divine Institution Yet since it was so ordained by the Civil Laws of the Empire neither Iesus Christ nor yet his Apostles would make any Alteration in it Nor hath he thought fit to do so in any of those things which we enjoy as our Civil or Natural Rights by the Law of Nature or the Municipal Laws of our Country and therefore it is not true that there is as perfect a Subjection due to a Soveraign Prince as to a Master unless the People of that Nation have made themselves absolute Slaves to him instead of Subjects which could never be but by their own Consent It is true a Prince is more eminently the Minister of God and Acts by a more sacred and inviolable Authority than a Master Yet doth it not therefore follow that he acts as God's Minister or by this sacred or inviolable Authority when he destroys or enslaves the Subjects Nor can you say that God hath given him any Authority so to do And as for the Example of Christ's Suffering which you urge as a Reason of our absolute Subjection to Princes without any Resistance I have answered that already and therefore need say no more to it But do own that in that great Point of suffering for Religion when we are lawfully called thereunto we are to follow his Example yet doth it not prove that we are to suffer in all other Cases whatsoever concerning which he hath given us no express Precept or Command M. I have something more to say to you about this matter of Suffering for Religion but I shall defer it at present and shall only now consider the Evil Consequences of your Arguments for Resistance of the Supream Powers in any Case whatsoever the summ of which if I can well remember is to this Effect Shall a Prince be free from all Correction till God Almighty is pleased to chastise him Must I sit still and suffer my Throat to be cut my Estate ruined and not dare in any Case to defend my self till God is pleased to iâ—terpose and that in an Age in which Miracles are ceased God is for the most part pleased to respite the Punishment of Oppâ—essoâ—s till the next World and if I be ruined in this what comfort is it to me or mine that the Injury shall be punisht when I shall reap no Advantage by it And suppose the Subjects of such a Prince should succeed in their Rebellion and prevail against him they must then submit to another Prince of whom they have no more Assurance they shall be better treated and if they set up many they are all Men and subject to be corrupted by Power and Greatness And in an Anarchy every Man will become a Tyranâ— to his Neighbours so that this Doctrine of curbing and Resisting Princes is calculated for the Ruine of Mankind and tends to no bodies good but theirs who design thereby to gain a Power of doing to others what they pretend to fear And when all is done the Punishment of Princes who abuse their Power must be left to God Almighty who only can and will punish his own Ministers Now suppose all this were just as it is stated if the Injuries a Man suffer are insupportâ—ble under any Government he may Petition for relief and in all probability find it if not he may flie into another Country for succour if he cannot do that neither he will scarce be able to resist So that if it were never so justifiable it could be of no use to any such miserable man for no Prince tho' never so ill natur'd will attempt any such thing against any such number of Men as are in a capacity of revenging the Wrong done them when they will only out of hopes they will not because they ought not Nor will the Histories of all Ages put together afford one Instance of a Monarch that ever injured any Man at this rate whom he believed able if willing to revenge the Wrong but that he took care as far as he could to prevent it and either to take him out of the way or to put him out of a Possibility of a Retaliation So that all discontented fretful Rhetorick is of no use in any such Case But then on the contrary if every Ambitious and Factious Man might be left at Liberty to insinuate into the Rabble and the Great and little Vulgar that Princes are to be punished when they do amiss that they are bound to Act according to Laws and to their Oaths and if they do otherwise are presently to be treated as Tyrants and the Common Enemies of Mankind That it is Lawful for a Man to defend himself against the Injustice and Oppression of his Prince c. This can only serve to fill the World with Rebellions Wars and Confusions in which more thousands of Men and Estates must of Necessity be ruined and Wives ravished and Murdered in the space of a few Days than can be destroyed by the worst Tyrant that ever trod upon the Earth amongst his own Subjects in the space of many years or of his whole Life F. I perceive you think this place of
same thing which as St. Paul tells us signifies Non-Resistance Only as St. Paul speaks only of not resisting the Higher Powers that is Emperours and Soveraign Princes herein include all those who Act by their Authority and St. Peter to prevent all Cavils and Exceptions distinctly mentions both that we must submit to all Humane Power and Authority not only to the King as Supream that is in St. Pauls Phrase to the Higher Powers to all Soveraign Princes who are invested with the Supream Authority but also to those who are sent by him who receive their Authority and Commission from the Soveraign Prince F. You may spare your Pains for making any long Explanation on this Text for I have already granted that all due Submission is to be given not only to the Supream Powers but also to all those who are put in Authority under them and that not only for Wrath but for Conscience sake yet is this place to be understood in the same sense as the former that is as far as they make use of this Power for the great ends of Government viz. the Good and Preservation of the People and not for their Ruine and Destruction by taking away their Lives Liberties and Properties at their pleasure So that this Precept is to be understood according to the Reason which both St. Peter and St. Paul gives for this Submission because Rulers are not a Terrour to good works but to the Evil and because such Governours are for the Punishment of Evil-doers and for the praise of them that do well and even a Government where a Heathen Prince hath such Supream Power may and doth most commonly in respect to most of its Subjects give more countenance and encouragement to good works than bad ones and therefore Obedience to such a sort of Governours is not only Lawful but a Duty Nay tho' through Ignorance and Malice they might persecute the true Religion for I have already proved that at the time of Writing of these Epistles there was no Actual Persecution begun by the Roman Emperours against the Christians and tho they did afterwards persecute them yet even such as did so being commonly men of good Morals and having much of Goodness Iustice and Prudence in their Natures such as was Trajan and the two Antoninâ—u's they would not fail extreamly to encourage the Practice of such and other vertues by their Examples and by good Laws preserve their Subjects from the Mischiefs of Immoralities and keep them in Order Peace and Sobriety But is it true when Tyrants be they Usurpers or not not only govern contrary to but also subvert all the Ends of Government M. If this be the Sense you put upon this place I think I shall easily shew you not only the Absurdity but perniciousness of this Interpretation which indeed doth undermine all that Obedience and Subjection that is due from Subjects to their Soveraigns unless they rule well that is according to their Humours or Fancies Now I pray Consider whether these great Apostles intended to oblige the Christians of that Age to yield Obedience to those Powers which then governed the World If they did as I think no Man will be so hardly as to say that they did not then it will be proper to inquire whether what they here affirm and assign as the Reason of their Subjection That Rulers are not a Terrour to good works but to the Evil were true of the then Roman Emperours and Governours or not If it were true then I believe it will hold true of all Kings in all Ages of the World for there cannot well be greater Tyrants than the Roman Emperours were at this time and so this will prove an Eternal Reason why we should be Subject to Princes notwithstanding the many faults and miscarriages of their Government And if it were not true it is very strange that two such great Apostles should use such an Argument to perswade Christians to submit to the Powers as only proved the quite contrary that they ought not to be Subject to the present Powers because they were unjust and Tyrannical and which indeed in contradiction to the Original design and Institution of Civil Power weâ—e a Terrour to good works and not to the Evil. The Christians were at this time actually persecuted by the Iews in Palestine and if they were not then also persecuted by the Emperours yet it was that which they might daily expect considering their extraordinary wickedness and Cruelty And yet the Apostle exhorts them not to resist the Powers because they were not that is should not be a Terrour to good works but to the Evil. If by this he only means that they should be Subject to them while the encouraged vertue and vertuous Men but might rebel against them when they did the contrary How could the Christians of those days think themselves obliged by this to submit to the Higher Powers For this was not their Case they suffered for Righteousness sake the Supream Powers were a Terrour to them tho' they were Innocent tho' they could not charge them either with breaking the Laws of God or Men and therefore upon your Principles they were not bound to submit to them whenever they could find it safe to resist So that either you put a false comment upon the Text or while the Apostle undertakes to deter them from Resistance he urges such an Argument as was proper only to perswade them to rebel F. Had you been pleased to have minded more attentively what I said last you would not have thus misrepresented my sense for I have already proved that there was no Persecution in the Roman Empire against the Christians when those Epistles were written nor for many years after and I have also granted that if the Emperours had so persecuted them they ought not to have resisted And therefore by good works and Evil doers c. in both those Texts of St. Peter and St. Paul is not to be understood only believing in Christ or behaving themselves as became Innocent Christians but in general that at that time when the Apostles wrote these Epistles under Claudius and the beginning of Nero and indeed through his whole Reign where he governed by his Deputies the Supream Power was then really a Terrour to Evil Works that is to all offences against good manners and the publick Peace of the Common-wealth and were also a Punishment for Evil-doers that is those that did transgress against the Publick Laws ordained for the restraining Men from committing any sort of publick Wickedness or Immorality So that I own that neither the Heathens nor the Christians had any Reason to take Arms or resist the Supream Power at this time But admit there had been at that time great Miscarriages and Abuses committed under their Government and that good Men had been often times punished and Evil ones Rewarded and the Ends of Government to some Degree perverted especially at Rome where the
he could not have brought his whole design within the compass of Eight Dialogues as he at first intended and still hopes to do and therefore to ease you of the trouble of buying or reading more Discourses on these Subjects then what he takes to be absolutely necessary he hath reduced all that he had prepared for the Fifth Discourse upon the Subject above mentioned into the two last Dialogues wherein he designs to treat of the Justice and Lawfulness of the late Revolution and the Settlement of the Crown upon their present Mâ—jesties where the then Questions he intended to treat of will properly enough fall in But it is time to speak somewhat concerning this present Discourse since it treat of a Question to be decided only from the History and Laws of this Nation And the Author bids me assure you that he hath lay'd down nothing therein on either side but what he hath produced good Authorities for either from the Histories and Governments of our own or other Neighbouring Nations or from the Colleâ—â—ions of our English Saxon Laws and ancient as well as modern Writers upon the Laws of England and lastly from our Statutes or Acts of Parliament since the reputed Conquest which he found necessary to these Subjects without omitting any Authority that he judged material to be urged on either side But as for the Quotations themselves I hope they are truly cited for the Author assures me upon the word of a Geâ—tleman that he is not conscious of any unfair dealing in that kind either by any wilful omission or concealment and as for the Books Chapters or Pages here quoted if there be any error or mistake of that kind I pray impute it to the Press and not to the Author as well in this as all the rest of these Discourse since he could not be in Town to correct them himself but he intends God willing to rectifie all such mistakâ—s by a Table of Errata at the end of the whole work to which he intends also to add an Exact Index of all the Principal Matters that are debated in it but though I take the Author for an honest Gentleman and one who scorns the mean advantage of a false Quotation yet since many Writers like Montebanks are apt to cry up their own sincerity even when they deceive you most the best advice I can give you is that if you have the leâ—st distrust of any thing here quoted you consult the Authors or Books themselves from whence he hath transcribed them and then you will be best able to judge how far you may trust him another time As for those Parliamentary Records here cited they are either such as have been already Printed from the Rolls in the Tower or other Offices at Westminster and so are allowed for Authentic or else are sâ—ch as have not yet been made publick as for which as well as the former if you have the least distrust of any of them I leave you to search the Records themselves which are I hope now communicated without any reserve to all that are willing to take the pains to consult them I have no more to add but to assure you not from my own but better Iudgments that you will find more in this small Treatise than ever was yet publisht at once or perhaps at all upon these important Subjects Note If the Author hath made one of his Opponents call the Entrance of King William 1. into England and his taking the Crown upon the same condition as his English Predecessors a Conquest it may be understood in the largest Acceptation of that word and for Brevity sake only Authors made use of and how Denoted 1. Harmony of Divinity and Law H. D. L. 2. Dr. Iohnstons Excellency of Monarchical Government I. E. M. G. 3. Huntons Treatise of Monarchy H. T. M. 4. Sir R. Filmers Freeholders Grand Inquest F. F. G. Anarchy of a mixt Monarchy F. A. M. M. 5. Dr. Heylin's Stumbling-Block of Rebellion S. B. R. The Folio Edition 6 Mr. Petyt's Preface to his Ancient Rights of the Commons of England Asserted P.P.R.C. 7. Dr. Brady's Answer to the said Treatise B. A. P. The Folio Edition THE Fifth Dialogue BETWEEN Mr. MEANWELL a Civilian AND Mr. FREEMAN a Gentleman M. YOU are welcom Sir I pray set down by the Fire I was thinking before you came in of the best method of managing this Important Question whether by the Laws and Constitutions of this Kingdom it can in any Case whatever be Lawful to Resist the King or those that Act by Vertue of his Commissions I shall therefore proceed in the next place to the Proof of the Second Proposition in the Argument I at first proposed or to speak Logically the Minor in the Syllogism viz. That the King of England is the Sole Supream or Soveraign Power in this Kingdom and therefore is irresistible and that not only as to his own Person but also with respect to all such who act by his Orders or Commissions though the things commanded be in themselves Illegal F. I do not dislike your method though if you could never so plainly make out to me the truth of this Minor Proposition yet it will come too late to prove that all Resistance of Supream Powers is unlawful in all Cases whatever since I think you have failed in the Proof of that your fiâ—st Proposition But since I do not deny the truth of this second Proposition in some sense I pray be as short as you can in the proof of it M. I shall observe your desire and shall briefly recite some Authorities as well Ancient as Modern as also Acts of Parliament which declare an Absolute and Imperial Power to be Solely in the King To begin with the Saxon times First as to the Title of King or Emperour used Promiscuously Our King Edgar frequently in his Charters caâ—s himself Albionis Anglorum Baâ—ileus and the Grecians esteemed the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to be of full as Eminent a Signification as Emperour and King Edâ—arâ— the Confessor in a Charter to the Abby of Peterburg Stiles himself Rex Anglorum and his Government a Monarchy And King Ethelred in his Charter to Canterbury Stiles himself Angligenum Orcadarum necnon in Gyrojacentium Monarcha Anglorum Induperator So that you hereby may see that the Kings of England long before the Conquest look'd upon themselves as Emperors or absolute Civil Soveraigns So likewise after that time we find W. Rufus Dates his Charter to the Monastry of Shaftsbury Secundo anno Imperiâ— mei And tho' the Title of Emperor hath bin disused yet we shall find the Substance of it sufficiently Challenged in that Letter of W. Rufus to Archbishop Anselm telling him That he had all the Liberties in his Kingdom which the Emperor challenged in the Empire And the like was challenged by Henry the First in all his Disputes with the Pope concerning the Investiture of Bishops and Abbots
particularly to the 55 th Law of William the First part of which I have already cited it begins thus Volumus etiam ac firmiter praecipimus concedimus ut omnes liberi homines totius Monarchiae Regni nostri praedicti habeaâ—t teneant terras suas pâ—ssessiones suas bene in pace libere ab omni exactione injusta ab omni Tallagio ita quod nihil ab ois exigatur vel capiatur nisi Servitium suum liberum quod de jure nobis facere debent facere tenentur prout statutum est eis c. So that whatsoever was done at any time contrary to this Statute was illegal and consequently ought not to be quoted as any part of the King's Prerogative But that the Nobility and People of England had divers Rights and Liberties before the time of King Iohn and of his granting that Charter appears by its conclusion in these words Salvis Archiepiscopis Abbatibus Prioribus Templariis Hospitalarâ—is Comitibus Baronibus Militibus omnibus aliis tam Ecclesiasticis Personis quam secâ—laribus libertatibus quas prius habâ—erunt And as for the rest of the Liberties granted by this Charter tho they are said to have been granted from the King 's meer good will yet that is recited only to make it more strong against himself since the Nobility and People of England claimed those Liberties as their ancient undoubted Right And the same Author as I have already hinted expresly tells us that this Charter contained Maxima ex parte leges antiquas And a little lower he relates where those Liberties were to be found Capitula quoque legum libertatum quae ibi Magnates confirmari quaerebant partim in Charta Regis Henrici superius scripta sunt partimque ex Legibus Regis Edwardi aâ—â—iquis excerpta So that they were not only the effect of the King 's meer Grace and Favour as you suppose But if you please now to descend to the Reign of Henry the Third and so downward from which time our Eldest Printed Statutes bear Date let us see if I cannot answer all those Arguments which the Gentlemen of your opinion have thence brought for the King 's Sole Legislative Power M. Tho I do not allow of your notion of the Conqueror's not being properly and really so as I shall shew you another time when I shall more particularly consider that Argument of the Right of Conquest in King William and all his Successors therefore I do at present readily assent to your Proposal and it was the very thing I was coming to And therefore I shall begin with the Magna Charta of Henry the Third which begins thus Know ye that We of our Meer and Free Will have given these Liberties The Statute de Scaccario Anno 51 Hen. 3. begins thus The King commandeth that all manner of Bayliffs c. The Statute de Districtione Scaccarii made the same year runs thus It is Provided and Ordained The King willeth The Statute of Marlbridge 52 Hen. 3. And he i. e. the King hath appointed all these Acts Ordinances and Statutes to be observed of all his Subjects If we come to the Reign of his Son Edward I. and begin with the Statute of Westminster I. it is there said in the Preamble These are the Acts of King Edward I. made at his first Parliament by his Council and by the Assent of the Archbishops Bishops c. And in the first Chapter 't is said The King hath Ordained and Established these Acts. And tho I grant that in divers Statutes of this King at in this of Westminster it is recited that the King by the advice of his Counsel or Assent of the Archbishops Bishops Earls Barons c. have Made Provided Ordained or Establisht such and such Laws yet it is plain that the Enacting or Decreeing part is wholly ascribed to the King in all those Statutes wherein such words are found as I shall make it appear more plainly by the Statute of Act on Burnel made in 13 Edw. I. where it is said The King by himself and all his Council hath Ordained and Established And in the Statute of Westminster 3.18 Edw. I. Chap. I. Our Lord the King in his Parliament at Westminster at the Instance of the Great Men of the Realm hath Granted Provided and Ordained In the Statute De iis qui ponendi sunt in Assizes 21 Edw. I. Our Lord the King in his Parliament holden c. hath Ordained that c. The Statute of Quo Warranto 18. Edw. I. runs thus Our Lord the King at his Parliament holden at Westminster of his special Grace and for the Affection he beareth unto his Prelates Earls and Barons hath granted That c. I Edw. II. begins thus Our Lord the King hath Granted The Statute of Gavelet 10 Edw. II. begins thus It is provided by our Lord the King and his Iustices The Statute of Carlisle 15 Edw. II. begins thus The King unto the Iustices of his Bâ—nch sendeth Greeting Whereas of â—ate We have Ordained c. But if we come to the Reign of his Son Edw. 3d. The Prefaces to most of the Statutes made in his Reign run thus Our Lord the King by the Assent of the Prelates Earls c. and at the Request of his People hath granted and established or else at the Request of the Commonality hath ordained c. The like Stile continued during the Reigns of Richard the 2d Henry 4th and Henry 5th with very little Alteration only it was commonly at the Request of the Prelates Dâ—kes Earls and Barons and at the Instance and Special Request of the Commons the King hath Ordained c. Whereby we see a plain difference in the Phrases of the Statutes of those times for it is the Lords that give their Assent whereas the Commons only Petitioned but it is the King alone who Ordaineth and Establishes I confess indeed that under some Princes of bad Titles as in particular under the Minority of Henry 6th there began some Alteration in the form of penning the Enacting part of most Statutes that were then made and that unto those usual words which were inserted ordinarily into the Body of the Acts from the beginning of the Reign of that King viz. by the Advice and Assent of the Lords Spiritual and Tempâ—ral and at the Special Instance and Request of the Commons there was added by the Authority of the said Parliament But it is still to be observed that though these words were added to the former Clause yet the Power of Granting and Ordaining was still acknowledged to belong to the King alone as appears by these Acts of Parliament of that King viz. the 3d. Henry 6th Ch. 2. 8th Hen. 6. Chap. 3. Where it is said our Lord the King by the Advice and Assent and at the Request aforesaid hath ordained and granted or Ordained and Established by the Authority of this Parliament And thus it generally
for the Correction of the 12th Ch. of the Statute of Gloucester was Signed under the Great Seal and sent to the Iustices of the Bench after the manner of a Writ Patent with a Certain Writ closed Dated by the King's Hand at Westminster 2 Maiâ— 9 Edw. I. Requiring that they should do and Execute all and every thing contained in it though the same doth not accord with the Statute of Gloucester in all things 19 Hen. 3d. a Provision was made de assisa praesentationis which was continued and allowed for a Law until the Statute of Westminster 2 which provides the contrary in express words So that in the Old Statutes it is hard to Distinguish what Laws were made by Kings in Parliament and what out of Parliament especially when Kings called the Peers only to Parliament and of those how many or whom they pleased as it appears Anciently they did it was no easy matter to put a Difference between a Council-Table and a Parliament or between a Proclamation and a Statute Not but that I own in Old Times there was a Distinction between the Kings Special or Privy Council and the Common-Council of the Kingdom and yet his Special Council did Sit with the Peers in Parliament and were as part thereof and were of Great and Extraordinary Authority there as may appear by divers Acts of Parliament some of which I have already Recited as the Statute of Westminster I. Where it is said These are the Acts of Edward made at his I. Parliament by his Council The Statute of Acton Burnel 13 Ed. 1st hath these words The King for himself and by his Council hath Ordained and Established And in Articulis Super Chartas there are these Provisions Nevertheless the King and his Council do not intend And both the King and his Council and all they tâ—at were present Will and Intend that the Right and Prerogative of his Crown shall be saved to him in all things And before these the Commons often Petitioned the King As 1 Edw. 3d. where Magna Charta was confirmed the Preamble is thus At the Request of the Commonalty by their Petition made before the King and his Council in Parliament by the Assent of the Prelates Earls and Barons c. I could give you many more Examples of this Kind but that it is needless only these may suffice to let you see That the King's Council had a Great Authority in those times and perhaps was more Ancient than the Great Council it self Yet I cannot forbear to give you one or two Authorâ—tâ—es more to prove that the King with the Advice and Consent of a Council of his Earls Barons and other Wise Men hath sometimes taken upon him to Repâ—â—â— aâ— the Statutes made in a Precedent Parliament as contrary to the Laws and Customs of this Realm and to his Prerogatives and Rights Royal though Granted by him in manner of a Statute And for this you may see the Statute of 15th Edward the 3d. at large in Pulton's Collection So likewise in the Preface of the Statute of Westminster 20 E. 3. that We viz. The King by the Assent of our Great Men and other Wise Men of our Council have Ordained c. Where you may observe that here is no mention either of Lords Temporal or Commons I could give you more Examples of this kind were it not too tedious From which statutes it seems plain to me that this King did sometimes Exercise a Prerogative of Making and Repealing Laws without Consent of Parliament In the next place I desire you to take notice that these words you so much rely upon viz. by the Authority of this present Parliament and be it Enacted by the King Lords and Commons as if they were three Co-ordinate Estates was never in use till the Reign of Hen. 6th and Hen. 7th two Notorious Vsurpers And that the King 's Single Answer to the Lords and Commons Request is a Sufficient Act of Parliament without any mention of the Concurrent Authority of the Lords and Commons Enacting the same the President I gave you of King Charles's Answer to the Petition of Right may suffice though you have not vouchsafed to give me any Return to it So that I think these Instances may serve instead of many Arguments for the proof of this Truth that the Legislative Power as We Phrase it now is wholy and solely in the King although Restrained in the Exercise and vse thereof by constant Custom unto the Counsel and Consent of the Lords and Commons For Le Roy le veult or the King will have it so is the Imperative Phrase by which the Propositions of the Lords and Commons are made Acts of Parliament And let the Lords and Commons Agitate and propound what Laws they please for their Ease and Benefit as generally all Laws and Statutes are more for the Ease and Benefit of the Subject than the Advantages of the King yet as well now as formerly in the time of the Roman Emperors only quod Principi placet Legis habet Vigorem nothing but that which the King pleases to allow of is to pass for Law The Laws not taking their Coercive force as Judicious Hookeâ— well observes from the Quality of such as Devise them but from the Power that giveth them the Strength of Laws So that to Determine the matter Logically The Legislative Power is either largely and improperly or Strictly and Properly taken Largely taken it signifies any Power which hath the Authority to provide the Materials of a Law and to Judge what is Iust Convenient or Necessary to be Enacted and to declare when any Matters duly prepared are made and granted into a Law and this Ministerial sort of Legislative Power improperly so called the two Houses have and Exercise yet by Authority front the Grown But then the Legislative Power is Strictly and Properly taken for the Power of Sanction or for that Commanding Ordaining Power which gives Life and Being to the Law and force to oblige the Conscience of the Subject and this is radically and Incommunicably in the King as Soveraign And therefore as I have already said all the Ancient Acts run in the King's Name alone And from the Legislative Power thus properly taken the Laws are properly called the King's Laws and the Violation of them is punishable as such F. You have made a very long Speech and taken a great deal of pains to perplex a Question in it self very easy to be Resolved and to which I need return you no other Answer then what Bracton tells us in his 3 d. Book cap. 9. de actionibus Nibil aliud potest Rex in terris suâ—â— cum sit Dei minister vicarius nisi id solum quod de Iure potest nâ—â— oâ—staâ— quod dicitur quod Principi places legis habet vigorem quia sequâ—â—uâ— in fine legis cum Bege regâ—a quae de Imperio ejus laâ—a est i. e. non quiâ—quid de
Point namely That the King his Nobility and Commons did Ordain and Enact the same And which is more if you shall find any Acts of Parliament seeming to pass under the Name and Authority of the King only as there be some that have that shew indeed yet you must not by and by judge that it was established without the Assent of the other Estates As for the rest of your Insinuations rather than Arguments against the Antiquity of those Expressions Be it Enacted by Authority of Parliament or Be it Enacted by the King Lords and Commons which bear so hard upon you to prove that these last have a share in the Legislative that they were introduced in the Reigns of Henry VI. and VII two Usurpers and but in the Nonage of the former I think I shall be able to shew you that you are very much out in your account for I will shew you much ancienter Authorities wherein the same words or others equivalent have been used in our ancient Statutes And first pray call to mind the Statute of Measures already recited where it is said That by the Consent of the whole Realm of England the Measure of our Soveraign Lord the King was thus made c. which certainly must mean the Assent of all the Estates assembled in Parliament And my Lord Coâ—e tells us in his Third Institutes of an ancienter Record that he had seen of the 7 th of this King wherein it was Enacted by the King the Lords Spiritual Temporal and Commons But since I have given you Presidents enough of Statutes which are said to be made or ordained by the King with the Assent of Lords Spiritual and Temporal and Commons I will shew you one where the King is not at all mentioned and that is in Rastal's Statutes 4 Hen. 4 cap. 24. concerning Aulnage of Clothes wherein it is said to be ordained and accorded by the said Parliament without any mention at all of the King And to let you see that these fatal words you except against were in use before the Reign of Hen. 6. pray see 9 Hen. 5. cap. 4. concerning the Misprision of Clerkâ— in writing which runs thus The King hath now declared and ordained by Authority of this Present Parliament that the Iustices c. which must certainly refer to the Lords and Commons unless you can make the King alone to carry the whole Parliament in his own person But whereas that Phrase had began from Vsurpation it would have been first found in the Statutes of Henry the 4 th But to let you see that Edward the 4 th tho no Usurper yet did not think that these words did abate any thing of his Royal Prerogative pray see in the 4 th of that King Cap. 1. wherein it is recited That the King by the advice assenâ— request and authority of the Lords Spiritual and Temporall and Commons in Parliament assembled hath ordained and established But that by Assent of Parliament and by Authority of Parliament is all one and the same since the Assent of Parliament makes its Authority Pray see the express Judgment in this point of the Lord Chief Justice Crew and Justice Doderidge given in the Great case of the Earldom of Oxford reported in Judge Iokes's Reports To conclude tho I do not deny His Majesties Negative Vote to all Acts of Parliament yet this Prerogative can be concluded only from his giving his last Assent to a Law for when a Bill begins from himself the two Houses have likewise a Negative upon him which is evident in an Act of Pardon which proceeds from the King first and sent down to the Parliament this neither the Lords nor Commons can add or alter one tittlâ— to yet may they notwithstanding his prior Asent refuse the whole Bill if they please tho already past under the Great Seal And tho I likewise grant that it is the Le Roy le Veult that by yielding the highest and last Assent gives the Enacting force to the Law and thus the King may in a Logical sense be said thereby to make the Laws according to that known Maxim Quod dat formam dat esse â—ei Yet this does not hinder but in a Legal sense according to the express declaration of our old Lawyers and Acts of Parliament the Laws owe their obligation to the joint consent of King and Parliament and his giving his last assent or form to the Law no more proves his sole Legislative Power than it would do that of the Lords or Commons if either of them by the Constitution of the Government were to give their Asents last thereunto So that I think upon the whole matter no man can reasonably deny but that Legally the Two Houses of Parliament have also their share not only in framing but Enacting of all Bills that shall pass for otherwise they would signifie no more than the Committee of Estates in Scotland or the King and Council of England in relation to Ireland the former of which draws up all Bills that are to pass in the Parliament of that Kingdom and the latter must approve or reject all Bills that shall pass in the Parliament of Ireland Whereas the Authority of our Parliament consists in their consenting to and Enacting together with the King all Statutes whatsoever And this Distinction I think may very well reconcile Bracton with Fortescue the former of which says Quod leges ligant suum Lâ—torem meaning the King and the latter in the place I have already cited affirms that the People are governed by those Laws quas ipse feâ—t which they themselves make and this I think is to ascribe to the King as much Power as is requisite to a Civil Soveraign and yet to leave a sufficient share to the People to secure themselves from Tyranny M. I must beg your pardon if I cannot be satisfied with your division of the Legislative Power beiween the King and the Two Houses of Parliament since it is against the sense of our old Lawyers Glanville and Bracton who as you your self confess make the King the Sole Legislator And tho I confess Fortescue gives the People a share in it yet he is but a Modern Author in comparison of the other two and writ to support the Vsurped Title of Henry the Sixth So that I cannot comprehend how the Two Houses can have any share properly speaking in the Legislative Power without falling into that old error of making the King one of the three Estates and so co-ordinate with the other two whereas if the King be a Monarch that signifies in Greek the Government of one person whereas by giving the Two Houses a part in the Legislative you divide it into three several shares Whereas there is so close a conjunction between all the Parts of Soveraign Power that the one cannot be separated from the other but it will destroy the form of the Government and only set up an Irregular Commonwealth in its place
over the King in the State of Nature than it doth for a Creditor in the like State to compel by force his Debtor to pay him a Sum of Money which he owed him in case there were no Civil Iurisdiction for him to Appeal to And let us farther suppose a Council or Parliament appointed who may Remonstrate to the King his Transgressions or Violations of the Law Yet this may be without any Coercive Power over his Person or of making War upon him since the King may if he please remedy all these Disorders by Redressing their Grievances and punishing the Authors of them So if he will wilfully persist in such Violations as strike at the Fundamental Constitution of the Government and do also go about to execute them upon the People by force this being in effect a making War upon them I suppose they have then a just Right to defend themselves against his Tyranny So that if these Rights or Priviledges we now enjoy were not the meer Concessions of the King's Grace and favour as you affirm but reserved as part of their Birth-Right at the Original Constitution of the Government as I shall prove all our Fundamental Laws were the People have then as much Right to defend them their Allegiance to him being upon that Condition either express or imply'd as any other Nation hath to defend their Lives Liberties and Properties against the Violence of the Supream Powers or any Commissioned by them as I hope I have already proved to you So that notwithstanding all that you have said to the Contrary I think the Notion of a mixt or limited Monarchy in the very institution may be agreeable to Reason and practicable too either in this or any other Kingdom And when you can prove the contrary by History or Matter of Fact as you promise I will give up the Cause M. You have Broached a parcel of Special Common-Wealth Notions in which you are every way out As first in making the King's Authority derived either from or by the Peoples Consent Whereas all our Ancient Lawyers call him God's Vicar or Lieutenant on Earth and not the People's and in the next place in supposing he may be Resisted by Force of Arms whenever the People shall think themselves Opprest or their Fundamental Rights and Liberties as you call them invaded it is contrary to the Express Declaration of the Parliament by two serveral Statutes in the 2d Year of the late King Charles And though you disclaim all Coercive Power of the two Houses over the King yet it is only to place this Right of Resistance in a more fallible and ungovernable Body viz. the whole People in their Natural Capacities which as it is more consistent with your Principles so it is more dangerous to all Supream Powers as well Common-Wealths as Monarchies as I have partly shewed you already and I hope may farther convince you before I have done But since I have not now time to shew you the falsity and absurdity of these Notions and to urge the Statute at large against Resistance in any Case Whatsoever I pray go on in the Method you have proposed and let me see how you can make out that even our Parliaments do not derive that Priviledge they now enjoy of giving their consent to Laws as also their very being to the Gracious Concessions of our former Monarchs F. That I shall do with all my Heart But first let me tell you that though I own the King to be God's Lieutenant in these his Dominions Yet I must likewise aver that it was only by the Consent and Voluntary Submission of the People of this Nation that the first Monarch begin where you will could obtain that Title And as for those Statutes you mention against all Resistance in any Case Whatsoever I doubt not but to shew you that it was never the intent of that Parliament to debar us from all necessary Resistance and Self-defence in cases of illegal Violence and intollerable Oppression unless you can suppose they were resolved to alter the Government and to put it into the King's Power to destroy all our Laws and Liberties and instead of a Lawful King to Set up for a Lawless Tyrant when ever he pleased But to come to the matter in Hand I shall shew you that it is not at all impossible or improbable that without any hinderance of that Power which is necessary to the King as Supream that he might for all that have bin limited as to the Legislative at the first Institution of the Government which I shall thus make out I do therefore in the first place suppose that the English Saxons being a free People after their Conquest of this Island as well Nobles as Commons did agree by their free consents and publick Compacts to set over themselves a Prince or Soveraign and to Resign up themselves to him to be governed by such and such Fundamental Laws Here is a Supremacy of Power set up though limited as to the manner of its Exercise 2. Then because in all Governments after Cases will arise requiring an Addition of Laws suppose them Covenanting with their Sâ—veraign that if there be any Cause to Constitute any New Laws he shall not by his Sole Power perform that Work but that they will reserve in themselves a Concurrent or Co-operative Power So that they will be bound by no Laws but what they joyn with him in the making of 3. I suppose that though the Nobles may personally convenâ— Yet since the Commons being so Numerous cannot meet together in Person therefore for the doing of this Work it be agreed that every City of Considerable Town should have Power to Depute one or more to Act for the whole Body in the Legislature That the Nobles by themselves in Person and the Commons by their Deputies Assembling there may be Representatively the whole Body of the Kingdom with Power to execute that Authority reserved for establishing new Laws 4. Since the Occasion and need of making such Laws and Expounding the Old Ones could not be constant and perpetual therefore we may farther suppose for the avoiding of the inconvenience of three standing Co-ordinate Powers they did not Establish these Estates to be constantly existent but occasionally as the Causes for which they were ordained should require 5. Because a Monarchy was intended and therefore a Supremacy of Power as far as was necessary must be reserved in One it was concluded that these Estates should be still Assâ—mblies of his Subjects and Swearing Allegiance to him and that all New Laws which by agreement of these Powers should be Enacted should run in his Name and be called his Laws and they all bound to obey him in them when thus Establisht And Lastly it being supposed that He who thus was to govern by Law and for the furtherance of whose Government such New Laws were to be made should best understand when there was need of them and that the Convening and
Citizen of London was de Assensu Praelatorum Comitum totius Communitatis Regni pardoned all Homicides The very like words are also used in the same Roll in the Act of Pardon granted to the City of London I shall trouble you but with one mâ—re in this Kings Reign but it is so remarkable I cannot omit it of the 34 th of this King and is to be found in the old Edition of Statutes Printed in French the Title begins thus Ceux sont les choses queux nostre Seigneur le Roy Prelats Seigneurs la Commune ount ordaines establéâ—s To conclude with the Reign of Richard the Second the like expression is found in the Parliament Roll of 5 th of Richard the Second where the Statutes begins thus Pur Commune prosit du Râ—yalmâ— d' Angleterre cient faiâ—es per nostre Seigneur le Roy Prelats Seigneurs la Commune de le Royalme esteantes en cest Parliament from the Titles to which two last Statutes I pray observe that the word le Commune is not only used for the Commons in the same sense as it was in the fâ—rmer Kings Reigns but also that these Statutes were made by the joint Assents of the King Lords and Commons So likewise in the same Roll are recited Concordiae sive Ordinationes factae de Communi Assâ—â—su Regis Procerum Magnatum Communitatis Regni Angliae which I give you to shew that the words Communitas le Commune always signifie the same thing in our Statuâ—es and Records viz. the Commons as now understood different from your great Lords and Tenants and if they are to be taken in this sense after the 18 th of Edward the First I would be glad if you could shew me any sufficient reason why they should not be so understood aâ— along before that time as well as in the 49 th of Henry the Third only M. Tho I grant that these words you mention are to be understood for the Commons as now taken in many Records and Acts of Parliament after the 18 th of Edward the First and therefore you need not to have taken the paâ—ns to have gone beyond that time yet notwithstanding I think I can prove to you by very good Authorities that the word Communitas which I grant is the same thing with le Commune in French tho put after the words Comites Barones does not signifie the Commons of England in general but the Community of the Tenant in Capite alone or at least the Community of all Tenants by Military Service and that as low as the Reign of Edward the Third but for proof of thiâ— I pray peruâ—e this Writ which the Doctor hath given us in his Answer to Mr. P. Rex Archiepiscopis Episcopis Abbatibus Priotibus Comitibus Baronibus Militibus omnibus aliâ—s de Comitatu Cantiae Salutem Sciatis quâ—d cum pâ—â—mo die Junii Anno Regni nostri Decimo octavo Praelati Comites Barones caeteri Magnâ—tes de Regno nostro concorditer pâ—o se pro tota Communitate ejusdem Regni in pleno Parliamento nostro nobis concesse unt Quadraginta solidos de singulis Feodis Militum in dicto Regno in Auxilium ad Primogenitam Filiam nostram Mariâ—andam c. Cujus quidem auxilii levationi faciendae pro Dictae Communitatis aisimento hucusque supersedimus gratioâ—è c. By this Record it is clear that such as pâ—id Scutage that is Forty Shiâ—â—ings for a Knights Fee were then the tota Regni Communitas and no others and of these the Tenants in Capite granted and paid it first for themselves and Tenants and then their Tenants in Military Service by vertue of the Kings Precept paid it to them again for so many Fees as they held of them so that this Tax being raised wholly upon Knights Fees must be granted only by those that held by Knights Service But further that the Communalte de Royaume the Community of the Kingdom as represented by the Tenants in Capite did still so continue as above mention'd till almost the middle of King Edward the Third's Reign is as clearly proved by this Record of that King Rex dilectis fidelibus â—uis Vicecomiti Wygorniae â—homae Bâ—ttâ—ler de Upton supeâ—â—abrinam Militi Thomae Cassy de Wych salutem â—â—â—atis quod cum in pleno Parliamento nostro apud Westmonasterium ad Diem Lunae proximo post Vestum Nativitatis Beatae Mariae Virginis proximo praeteritum tento Praelati Comites Barones Magnates de Regno nostro Angliae c. pâ—o se to a Communita e ejaâ—dem Regni nobis concesseâ—unt quadraginta solidos de singulâ—s â—eodiâ— Militum in Diâ—â—â— Regno Angliae c. so that the whole Community of England in this Record were Military Men such as held Knights Fees or parts of Knights Fees and such as paid Scutage and they were neither the ordinary Freemen or Free-holders nor the Multitude nor Rabâ—le F. I pray Sir give me leave to answer your Arguments from these Records as you â—ut them least I forget what you have said in the first place as to this Record of the 30th of Edw. I. which relates to a Tax given in the 18th Year of his Reign and recites an Aid of 40 s. upon every Knights Fee through the whole Kingdom to have been given by the Bâ—shops Earls Barons and other Magnates or great Men of the Kingdom in full Parliament for themselves and the whole Community thereof to Marry the King's Daughter and which Subsidy he had deferred to Levy till now and therefore because this was a Tax granted only upon Knights Fees that those only who payed this Scutage were then the Communitas or whole Body of the Kingdom which is no Argument at all since from this we may plainly collect the clean contrary for if none had been to pay to this Tax but those that held by Knights Service in Capite then the King would have had no need to have had it granted in Parliament since by the 14th Article of King Iohn's Charter he might have Taxed his Tenants in Capite for the Knighting of his Eldest Son and the Marriage of his Eldest Daughter without the Assent of the Common Council of the Kingdom and according to your Hypothesis and the Authorities you have brought to prove it these Tenants in Capite might also by the like reason have made their Tenants by Knights Service have Contributed to this Tax which yet you see they could not do without the consent of Parliament and therefore this Aid or Subsidy being granted in Parliament must needs extend to all the Lands in the whole Kingdom as well those that held by Knights Service as well as those that did not for it is not here said as in the Writ to the Sheriff of Sussex qui de nobis Tenent in Capite and then the words pro se â—ota
Indeed if the words had been Milites libere Tâ—nâ—ntes qui de Rege tenuerunt in Capite you had said somewhat but otherwise it is all meer supposition without any ground But pray go on to the last woâ—ds in this Charter omnes de Regno nostro what can they mean â—ut that all the Freemen of the Kingdom gave this Fifteenth by their Lawful Representative M. If you do not like our sense of these words Milites and Libere Terentes I cannot help it nor shall I dispute them longer with you but as for this last Clause in the Charter omnes de Regno it only means all these who were Tenants in Capite in general in the same sense as when our ancient Historians mention Regnum Sâ—cerdotium by Regnum is to be understood both the Temporal and Spiritual Barons great and small the Kings Justices or any other that exercited any share or Ministerial part of the Government as perhaps all those diâ— one way or other by coming to our great Councils or Parliaments c. all which is evident from the words of the Quadri partiâ—e History concerning Thomâ—s Becket thus Rex apud Clarendun Regnum convo aâ— universum Quò com venisâ— ut Prasules Proceres c. i. e. the whole Baronage called together by the Kings Writ or a full meeting of the Spiritual and Temporal Barons both great and small I pray also remember that passage you your self made use of but now out of Mat. Paris whereby you would prove that the Common Council of the whole Kingdom was distinct from that of the Tenants in Capite because that after the Curia held at Christmass the King immediately issued out his Writs commanding omnibus ad Regnum spectantibus to appear at London and yet you see there are no more mentioned to be Summoned than the Archbishops Bishops Abbots Priors Earls and Barons So that we may hence learn the true meaning of these words omnes de Regno at the end of this Charter for these omnes de Regno were the same with the omnes ad Regnum spectantes in Mat. Paris the Regnum or Government the Communitas Regni the totalis Regni universitas the insluita nobilium multitudo and also gives us the meaning of those words omnes alii de Regno in the close Roll of the 19 th Henry the Third to the Sheriff of Somersershie Scias quod Comites Barones omnes alii de toto Regno nostro c. Concesserunt c. Which are further explained by a Writ in the same Roll about the same business directed to the Sheriff of Sussex which you have likewise cited beginning thus Sciatis quod Arohiepiscopi Episcopi Abbates Priores Comites Barones omnes alii de Regno nostro Angliae qui de nobis tenent in Capire nobis concesserunt c. Here the omnes alii de Regno were the omnes qui de nobis tâ—nent in Capite which were then all the Regnum or Communitas Regni So likewise it may be farther proved from a Record of the 48 th of Henry the Third Rex omnibus c. cum venerabiles Patres G. E. Eborum Archiepiscopus c. alii Praelati Magnates Milites libere Tenentes omnes alii de Regno nobis nuper in Articulo necessitatiâ— servitium fecerunt sulisidium c. And I may also put you in mind of the Writ I cited but now directed Archiepiscopis Episcopis c. Comitibus Baronibus Militibus omnibus aliis de Comiâ—aru Kanciae c. for the Levving of forty Shillings upon every Knights hee in that Country Now this Writ could not be directed to all the Men in Kent but to all such as paid Scutage for not a fortieth part of them were Tenants in Capite or Military Service So that these omnes alii de Regno and Omnes alii Comitatus were the same one with the other and otherwise it could not be for by Omnes de Regno or Omnes alii de Regno the Inhabitants in general could not be understood for they never were Summoned no not the Hundredth part of them to meet in Great Councils for 't was impossible they should and perhaps not above a fourth part of the Kingdom paid to this Fifteenth if we consider how many Servants Villainâ— Bondmen and many such People there were than in the Nation that paid nothing F. You have taken a great deal of pains to perplex and darken words in themselves very clear and perspicuous for methinks it is a strange piece of confidence in your Doctor when the Charter says expresily That Omnes dâ— Regno all the Freemen of the Kingdom gave this 15th to restrain this Act only to the Tenants in Capite who were but a few in comparison to the whole Kingdom this is indeed to make words signifie any thing he fancies But to answer your Authorities which are founded all upon false suppositions without any proof As to your Authority from the Quadrilogus History of Thomas Bâ—ecket it is true that the Praesules and Prâ—ceres are there called Regnum the Kingdom but I have already proved at our last Meeting that this word Proceres was of so comprehensive signification that it took in all the Principal Men of the Kingdom as well those that were Lords as those that were not so that the chief Citizens and Magistrates of our Cities and great Towns are often stiled Proceres Magnates Civitatum in our ancient Historians and Records and certainly the great Free-holders or Knights of Shires did much more justly deserve that Title As for the other passage out of Mat. Paris where the Bishops Abbots Earls and Barons are called omnes ad Regnum spectantes this is but a general way of expression in this Author and proves nothing For either the word Barones takes in all the smaller Tenants in Capite or it does not if the latter then this Author does not exactly recite all the Orders of Men whom your self must acknowledge to have appeared there since the great Barons alone could never make this infinita Nobilium multitudo mentioned in this Author if the former then it is plain that he thereby comprehended more then those who were really Barons Since it is certain that the smaller Tenants in Capite were not so nor are so much as called so in King Iohn's Charter and then make the most of this word Barones it may in a large and common acceptation take in all the chief Free-holders or Lords of Mannors which as I have already proved were often called Barons in our ancient Historians and Laws of the first Norman Kings and Mr. Cambden tells us that under the word Baronagium omnes Regni ordines continarentur This I say supposing that by this infinita Nobilium multitudo is to be understood all the cheif Gentry or Free-holders of England called often Nobilitas Angliae as I have already made
the sparing their Pains and Expences to have a Colloquy and Treatise with some of the same Members and therefore names the very Persons whom he commands should appear before him at Winchester to inâ—orm him and his Council of the best manner and form whereby the said Tax might be soonest and most conveniently levyed according to the intent of the said Grant So that nothing is more plain from the Writ it self than that this Assembly was no Parliament the proper Business of which is always to make Laws give Money or reâ—ress Grievances none of which â—ut it is apparent were the cause of this meeting To which these that were Summoned did not appear as Knights of the Shires their power being expired at the Dissolution of the Parliament but only 〈◊〉 so many particular private men who by reason of their Interest in the Country the King supposed could best inform him in the business above mentioned But that in the Reign of this King there were several Councils of this kind which tho no Parliaments as having but one Knight one Citizen and one Burgess and only making Temporary Constitutions concerning Trade and other things of less moment which were to be put in practice for a time till they could be confirmed by the next Parlâ—ament appears by the Ordinance or Statute of the Staple above mentioned And of these Mr. Pryn in the first part of his Parliamentary Register of Writs gives us divers Precedents which he rightly So that I hope I have now fairly run through and examined all the Precedents which you or your Doctor have been able to urge in this great Question and I think if you are aâ— candid and ingenuous as I take you to be you will not assert that any of them do amount to a proof either that the Commons were never Summoned from the â—9th of Henry III. to the 18th of Edward I. or that the Writs of Summons he there produces was to a Parliament and not to a great Council or that the King ever took upon him to appoint what number of Knights Citizens and Burgesses should come to Parliament or could nominate who they should be or could discharge whom he pleased from serving as Members therein All which your Doctor I think with greater confidence than right understanding of the true meaning of the ancient Writs and Records of Parliament hath undertaken to assert I beg your pardon for troubling you so long on these Heads since the length as well as diversity of Records you have now cited could not be answered in less compass M. I must confess you have given pretty plausible answers to most of the Authorities and Records I have now cited yet I cannot assent so far as to come over to your Opinion without a longer consideration of the strength of the answers you have now given me to the Doctors Authorities But in the mean time you would oblige me if you could give me the rest of your Arguments whereby you would undertake to prove that the Commons have been always an essential part of the Parliament ever since the Conquest for it seems to me by what I have read out of our ancient Historians that there is no express mention made of them by Name in any Historian or Record till the Reign of Edward I. and as for those Arguments Mr. P. hath given us to the contrary methinks the Doctor hath given satisfactory answers to them F. I think I have made it clear enough that the Commons of England were a constituent part of the Wittena Gâ—â—ote or Common Council of the Nation before your pretended Conquest and if it doth not appear that they were deprived of that right by the Normans entrance which you have not yet proved I think we may very well conclude that things continued in the same State as to the Fundamental Constitution of the Government as well after your Conquest as they did before Nor have you as I see proved any thing to the contrary since you confess that as much a Conquerour as King William was yet he altered nothing in those Fundamental Constitutions the most that you pretend he did being only in an alteration of the Persons who were the Legislators from English to French Men or Normans so that upon the whole matter I think there is no need of any new Arguments to confirm this truth since the Commons of England claiming a right by Prescription of having their Representatives in Parliament if you nor your Doctor nor none of those whom he follows can prove by sufficient Authorities when this began then I am sure you ought if you were of the Jury in thâ—s matter to find for the Tenants in Possession since that together with a constant usage time out of mind is as well by your Civil as our Common Law a sufficient Title to any Estate yet I doubt not but to shew you the next time we meet that the Doctor has noâ— given such satisâ—aâ—â—ory answers as you imagine to most of Mr. P's best Arguments proving this right of Prescription to have been the constant Opinion of an succeeding Ages to which I shall also add divers new Authorities as well from ancient Historians as Parliamentary Records and Statutes but since it is grown now very late I beg your pardon till another opportunity M. I thank you Sir for the pains you have taken to satisfie me in this greâ—t Question but pray come again within a Night or two that we may make an end of this weighty Controversie and then we may proceed to whaâ— we at first intended viz. whether the King can ever lawfully be resisted or whether by any Act he may Commit he can ever 〈◊〉 to be King F. I accept of your Proposal and shall wait of you again as you appoint but in the mean time pray consider well of the Authorities I have now urged and the Answers I have given to your Argument and then I hope there will be the less need of new ones M. I shall not fall to do it but in the mean time am your humble Servant F. And I am yours ADVERTISEMENT THE Publisher begs your Pardon for letting a Term pass without giving you this Dialogue which has so close a dependance on the Former but it has been his own unhappyness and not his faulâ— In the next place he hopes you will not take it ill of him that he has â—welled this to a bigger bulk than the other since the Author by reason of the weightiness as well as multiplicity of the Arguments could not make it 〈◊〉 wâ—thout doing a considerable injury to this Important Subject And to let you seâ— that I do not dissemble the Author was forced to reserâ—â— two or three Sheets more of the same Argument because he would not â—ver tire you for the next Discourse And the Author also desires the Learned Doctor Brady's pardon if through his own hast or the Inadvertency of the Compositor there have been some Omissions
that Charter being lost they desire a Confirmation of it from the King whereupon He by this Commission directs a Writ of Enquiry to several Gentlemen and others therein mentioned to enquire if the said Burgesses had enjoyed all those Liberties so granted by the said Charter of King Athelstan or not which would have been ridiculous if the King and Council had been satisfied that no Cities and Burroughâ— sent any Members to Parliament under the Saxon Kings and not before the 49th of Henry the Third and this Authority is the more remarkable because Barâ—staple is one of Mr. Prin's Modern Burroughs for which he can find no Precepts or Returns earlier than the 26th of Edward the Third tho' no doubt as appears by this their Petition in the 17th of this King it had sent Burgesses to Parliament many Ages before tho' the Precepts and Returns upon them be all lost And that not only the Cities and Burroughs do thus claim by prescription but that the Knights of Shires have always claimed the same Priviledge may appear by another Petition of the Commons House extant on the Parliament-Rolls of the 51th of Edward the Third which I shall contract and put into English out of French reciting thus because of Common Right in the Roll de Commune dâ—oit of the Realm there are and shall be Elected two from every County of England to come to Parliament for the Commune of the said Counties And also the Prelates Dukes Barons Counts Barons and such as hold by Barony which are and shall be summoned by Writs to come to Parliament except the Cities and Burroughs who ought to Elect from among themselves such as ought to answer for them Whence we may conclude that the Commons then claimed to come to Parliament of Common Right that is by Common Law or general Custom of the Realm time out of mind as much as the Bishops Abbots and great Lords 2. That neither the Bishops Lords nor Tenants in Capite had any Authority to impose Taxes or make Laws for the Commons of the Counties or these for the Cities and Burroughs without their consents because they had each of them Representatives of their own Order to answer for them in Parliament M. I must confess this would have been absolutely convincing could we have seen this Charter of K. Athelstans but since the Towns-men of Barnstaple do only in their Petition among others set forth this priviledge of sending Burgesses to Parliament now who can tell whether there was any such thing in their Charter or not since they confess they had lost it Or granting it was as they set forth yet is will sufficiently evince that the right of Cities and Burroughs to send their Representatives to Parliaments was not as you suppose as ancient as the Government but had its Original from the Grants and Charters of former Kings F. As to these Objections we can have but all the proof that this Subject is capable of at such a distance of time but if I were a Jury-man in this matter I should rather believe that the Town of Barnstaple had such Charter not long before they made this Petition to King Edward the Third and that there was such Clause therein as they here set forth than that these Towns-men should be so impudent as to desire a new Charter of Confirmation from him of all their priviledges of which this of Electing Burgesses was one if there had never been any such Clause in it at all But as for the other Objection that if it were so then it appears that all the right of Cities and Burroughs sending Members to Parliament is derived from the Grants and Charters of former Kings it is very fallacious as you will find if you consider and compare the Ancient right of the Bishops and Abbots as also of all the Temporal Nobility to come to the great Council of the Kingdom which as to the first of them I proved to be as Ancient as Christianity it self among the English Saxons And as for the Priesthood and Nobility in general to have been as old as the Institution of the Government it self Now tho' you grant that long before the Conquest our Kings had the nomination of Bishops and Abbots and also the making of Aldermen Earls and Thanes who made the Temporal Nobility in those great Councils will it therefore follow that because our Kings were thus entrusted by the people with this prerogative of naming and investing Bishops and Abbots per Annulum Baculum and also of creating those great Men now mentioned that therefore all the right either Order had to appear at those Councils not only proceeded from but depended wholly on the King's good will and pleasure and that he could have chosen whether he would have named any Bishops or Abbots to vacant Sees and Abbeys or made any Aldermen Earls and Thanes or not but have changed the whole frame of the Government into an Absolute Despotick Monarchy by destroying the great Council of the Kingdom whether you believe the Clergy Nobility and People would have suffered any of those Kings to have made such an Innovation Apply this to the right of the most of Ancient Cities and Burroughs in England and see if it do not exactly agree with this parallel Case of the Bishops Abbots and Temporal Nobility since as there were Priests and Nobles who from the very first Institution of our great Councils did not owe their Original to the King but brought it with them out of Germany and to whose Suffrages the first Saxon Kings owed their Elections so no doubâ— were there divers Cities and Towns in England so considerable from the time of the Expulsion of the Britains that it was thought â—it to pitch upon them as most able to send Representatives to the great Councils of the Nation that so they might imitate their old Government in their own Countrey in which the great Cities and Towns had always a considerable share as they have in the German Diets to this day tho' the King might then as he is now be entrusted with the Prerogative of making new Cities and Burroughs with like priviledge with the old ones tho' this was but rarely practised till the Reign of King Iames I. The two Vniversities being some of the first Corporations on which he conferred this priviledge by Charter of Electing and sending two Burgesses to Parliament which power has I confess been exercised even to a grievance in the Reigns of his Son and Grand-sons so that it were to be wisht that there was a Law passed that no New City or Burrough should be made for the future without an express Act of Parliament Now I would very gladly hear what you can further say to so many weighty Authorities which I have now given you for evident it is that if they are compared and considered in series of time that neither Edw. 2d or 3d nor their Judges or Learned Council no nor the Parliaments
from that 7th Edward the First I think that can by no means do the business for which you design it for in the first place this is only Declaration of the Bishops Lords and Commons of the Land that it belongs to the King to defend i. e. forbid all force of Arms but mark Sir what force sure it is only meant of such Force as belongs to the King's Prerogative to forbid viz. force of Arms against the Publick Peace and such as he might punish according to the Laws and Usages of the Realm and therefore the Statute expresly declares that as Subjects they are hereunto bound Aid him their Soveraign Lord the King at all times when need shall be but does this Act any where say that he hath an Irresistible Power to disturb this Peace by his own private Illegal Commissions or that any men are bound to assist him in it or because for example he hath Authority to punish all men according to Law that shall come to Parliaments with force of Arms that therefore he hath an unlimited power of raising what Forces he would and in prisoning or destroying the whole Parliament if he pleased and that no bodâ— might resist him if he had gone about so to do The like may be said if the 〈◊〉 should notoriously and insupportably by force invade all the Civil Liberâ—â—â—â— and Properties of his Subjects by Levying Taxes and taking away theâ—r Estates by down-right Force contrary to Law now can any body in his senses believe that the Act of 25th of Ed. 3. was made to prevent all Resistance of suâ—h Tyrannical Violence and that the Resistance of those Forces whether forreign or domestick that might be sent by the King 's private Commissioners to murder or enslave us is making War against his Person or that it comes within any of the Cases expressed in that Statute and therefore cannot fall within the compass of Sir Edw. Coke's Comment upon this Staâ—ute all the offences therein specified being Treasâ—ns at Common Law before that Statute was made nor is the Reformation there mentioned to be understood of a just and necessary Defence of our Lives Liberties Religion and Properties as setled and established by the Laws of the Land to be looked upon as making War against a weak or seduced King but is rather in defence of him and the Government by opposing Tyranny which will certainly bring both him and us to Ruine at last so the Reformation he there mentions is only to be be understood of such Insurrections and Rebellions as have been made under the meer pretence of Religion or obtaining greater Liberties for the common sort of People than they had by the Law of the Land such as were the Rebellions of Wat Tyler in King Richard the Second and Mortimers in Hâ—â—ry the 6th Reigns not to mention the other Rebellions raised by the Papists in the times of King Henry the Eighth Edward the Sixth and Queen Elizabeth's Reigns all which being begun by Seditious or Superstitious men were certainly rank Rebellions and so are and ought to be esteem'd by all good Subjects M. I grant these pretences seem very fair and specious yet notwithstanding this your pretended right or a necessity of Resistance of the King or those commissioned by him in case of Tyranny has been still looked upon as Rebellion in all Ages and the Actors dealt with accordingly where ever they were taken F. I do not deny but as long as Arbitrary and Tyrannical Princes could get the better of it and keep the Power in their own hands they still Executed for Traytors whosoever opposed or resisted their wicked and unjust Actions tho' they were never so near Relations to them thus both Edward and Richard the Second put their Uncles the Dukes of Lancaster and Gloucester to death meerly because they joyned with the rest of the Nobility and People to prevent their designs So that it is not the Execution of the Man but the Cause that makes the Traytor since Princes are seldom without a sufficient number of Judges and Jury-men to condemn whomsoever they please to fall upon But that the Clergy Nobility and People of England have always asserted this right of Self-defence in case their Liberties and Properties were uniustly invaded by the Tyrannical or Arbitrary Practices of the King or those about him I think I can prove by giving you the History of it in so many Kings since your Conquest as will render it indisputable if you please to give me now the hearing or else to defer it till the next time we meet M. I confess I was so weary of sitting up so long at our last Conversation that I made a Resolution not to do so any more and therefore since it grows late let us leave off now and I promise to meet you here again within a night or two and then I will hear how well you can vindicate your right of Resistance from Law or History but if you have no better proofs for it than the Rebellion of the Barons in King Iohn and Henry the Third's Reigns you will scarce make me your Convet since Impunity does never sanctifie a wicked action or render it the more lawful and you have already given it me for an Axiom that a facto ad Ius non valet consequentia F. I accept of your Appointment with thanks but pray do not forâ—judge my Arguments till you hear them and as for the Axiom I allow it for good provided I may urge it in my turn but in the mean time I shall wish you good night M. And I the same to you FINIS Bibliotheca Politica OR A DISCOURSE By WAY of DIALOGUE Upon these Questions Whether by the ancient Laws and Constitutions of this Kingdom as well as by the Statutes of the 13th and 14th of King Charles the II. all Resistance of the King or of those commissioned by him are expresly forbid upon any pretence whatsoever And also Whether all those who assisted his present Majesty King William either before or after his coming over are guilty of the breach of this Law Collected out of the most Approved Authors both Antient and Modern Dialogue the Ninth LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford Arms where also may be had the First Second Third Fourth Fifth Sixth Seventh and Eighth Dialogues 1693. Authours chiefly made use of in this Dialogue and how denoted in the Margin Dr. Sherlocks case of Resistance S. C. R. Mr. Iohnsons Reflections upon it I. R. S. Dr. Hick's answer to Iulian Intituled Iovian H. I. I desire the Reader to remember that whenever I make use of the word People in this or the following Discourse I mean thereby the whole diffusive body of the Nation consisting of the Clergy Nobility and Commons The PREFACE TO THE READER I Must beg your pardon if I have exceeded my intended design in the Preface to the first of these Dialogues of reducing what I had to say on the
since by the subsequent words in this Oath it is restrained to the taking Arms by his Authority against his Person or those Commissioned by him which shews that nothing here is intended to be forbidden but taking up offensive Arms upon popular pretences without and against the Authority of the Law which is further explained in another Test by the Authority of both Houses of Parliament Thirdly 'T is observable this is but a Test upon some that were to come into Offices and can by no means make any change in the Ancient Law which cannot be changed by Implication nor does this amount to so much the first part of this Oath requiring only that the party admitted into Office shall so declare and believe and tho' the second Clause call it a Traiterous Position yet this is restrained only to these two particulars That Arms may not be taken up by the King's Authority against his Person or those Commissioned by him which can have reference to nothing but that distinction taken up in the late Times of Civil War when the Parliament pretended to take Arms and grant Commissions in the Name of King and Parliament by vertue of that Authority which they supposed he left with them at Westminster so that this Clause can by no means exclude any Arms made use of for Legal defence according to Law Fourthly and lastly Tho' the words against those Commissioned by him may seem to extend the matter further and is mistaken by some as if â—t required at least Passive Obedience to all Commissions of the King tho' never so illegal yet there is not the least colour for it since nothing is a Commission but the King 's Legal Command or Authority pursuant to some Law and for putting the same in Execution which is the Legal definition of a Commission and when this Test was first brought in to the second Parliament of King Charles the 2d and that the word Legal was offered to be added to the Bill upon a long Debate it was only left out because it was declared by all the Lawyers in the House even by Sir Hen. Finch then the King's Sollicitor and agreed to by the whole House that it was clearly implied and could bear no other construction but that all Illegal Commissions were Null and void and in no Legal sense could be called Commissions so that taking up Arms in the defence of the Law and pursuant thereunto cannot in any wise be called a taking Arms against the King's Person or those Commissioned by him and farther that by the words in pursuance of such Military Commissions are meant such as are warranted by that Act such as the King may issue by his Royal Authority which is bounded by Law and consequently cannot grant any Commissions but what are according to Law so that if these Commissions are granted to persons utterly disabled by Law to take them as all are that will not take the Test appointed by the Act of the 25th of K. Charles the Second intituled An Act to prevent the dangers that may arise from Popish Recusants as also all Commissions to do any Illegal violent action are absolutely void and consequently may be resisted or else our Magna Charta with all the other Laws that establish Liberty and Property as also our very Religion it self Established by Law may be either undermined by the King 's new Dispensing Power or else subverted by open force and every Commission Officer in a Red Coat will be as sacred and irresistible as the King himself But to conclude That the Instances I have given that the King's Commission may be abused to the destruction of the Nation nay of the whole Parliament are not so unlikely and remote as you imagine Pray let me put you in 〈◊〉 that as for that pretended Commission to Sir Phelim Oneal tho' it is true it did prove afterwards to be forged yet was it not known to be so till long after and therefore having all the signs of a true Commission under the King 's great Seal the poor Protestants in Ireland were to have had their Throats cut according to this Oath before ever they could be satisfied whether it were true or not But that a Popish King persecuting and destroying his Protestant Subjects only for matters of Religion is not so improbable a thing as you would have it the French King 's late Dragooning Imprisoning and sending to the Gallies all that refused to renounce Heresie as they call it and subscribe to the Articles of the Romish Religion has given us but too sad and recent an example and how you can assure me that the King acting upon these very Principles and being governed by like Confessors will never do the same things I should be glad to receive some better satisfaction than his bare word to the contrary Nor yet is my other Instance of its being left according to your Doctrine in the King's power to make a violent assault upon the persons both of the Lords and Commons assembled in Parliament whenever he pleased without any Resistance whatsoever so remote and improbable as you are pleased to make it since you may find it still upon Record among the Articles exhibited in Parliament against Robert de Vere Duke of Ireland Robert Tresilian Chief Justice and Sir Nicholas Brembur in the Parliament of the 11th of Richard the Second which I have already mentioned the 15th Article of which was That they by their false Council had caused the King to command the said Nicholas being then Mayor of London suddenly to rise with a great power to kill and put to death the said Lords viz. Thomas Duke of Gloucester and the other Lords there named and the Commons viz. of the Parliament of the 10th of this King who were not of their Party and Conspiracy for the doing of which wickedness the said grand Traitors above-said were parties and presents to the destruction of the King and his Realm So that if this Treason had not been discovered and that no private persons might then resist those Commissioned by the King it would have been Treason according to your principles for the said Lords and Commons to have resisted those that were thus sent to assault them and take away their Lives and what hath once happened 't is not impossible but it may happen again And we may remember how about little more than 30 years since that the K. of Denmark shut up the Senators and Nobility of the great Council of that Kingdom in Coppenhagen and threatned them with Death or Imprisonment if they refused to give up all their Liberties and from an Elective King make him and his Successors absolute hereditary Monarchs as they are at this day by means of the Bishops and Clergy of that Kingdom who then basely gave up and betrayed the Liberty of their Countrey and what they have now got by it they best know therefore this is a thing to be considered as a
there is no other means left but to resist it if they are able M. I can give you very good reasons to satisfie you why tho' I grant private Subjects may judge of the Legality or Illegality of the King's Commissions and also refuse to obey His Illegal Commands and also that all publick Officers ought to take care at their peril how they act by or execute such Illegal Commissions yet that it does not therefore follow that such illegal Commissions or Orders though executed upon the whole body of the People may be resisted by them for all limitation of the Royal Power being only voluntary and proceeding from the meer grace and favour of our Kings they are not compellable by force or resistable if they should impose their own Proclamations or Edicts upon us instead of Laws For tho' I grant that the King hath no Just or Legal Authority to act against Law and that if he knowingly put any Subject to death contrary to Law he is a Murderer and no Prince can have any such Prerogative as to commit open downright murders either in his own person or by those who act by Commission from him but what follows from hence That they may resist or oppose them if they do This I absolutely deny because God and the Law have Commanded us not to resist and I see no inconsistency between those two Propositions That a King hath no Authority to act against Law and yet that neither He nor those commissioned by Him though acting against Law may be resisted Both the Law of God and the Laws of our Countrey suppose these two to be very consistent For notwithstanding the possibility that Princes may thus abuse their Power and transgress the Laws whereby they ought to govern yet they also command Subjects in no case to resist and it is not sufficient to justifie Resistance if Princes do what they have no just Authority to do unless we have also a just Authority to resist he who exceeds the just bounds of this Authory is lyable to be called to an account for it but he is accountable only to those who have a Superior Authority to call him to an account No Power whatsoever is accountable to an Inferior for this is a contradiction to the very Notion of Power and destructive of all Order and Civil Government Inferior Magistrates are on all hands acknowledged to be lyable to give an account of the abuse of their Power but to whom must they give an account Not to their Inferiors not to the People whom they are to Govern but to Superior Magistrates or to the Soveraign Prince who Governs all Thus the Soveraign Prince may exceed his Authority and is accountable for it to a Superior Power But because he hath no Superior Power on Earth he cannot be resisted by his own Subjects but must be reserved to the Judgment of God who alone is the King of Kings F. In the first place I deny and I have sufficiently proved the contrary that all Limitation of Royal Power proceeded at first from the meer grace and favour of our Kings since the Crown of England has been from its first Institution Limitted by Laws and the People have likewise always enjoyed a property in their Lives Liberties and Estates by the same Laws Tho' I grant you and I are thus far agreed That the King hath no Just and and Legal Authority to act against Law and that if he put any man to Death or take away his Estate contrary to it it is Murder and Robbery And likewise that the Subjects may be capable of Judging concerning such illegal Commands but you will not allow that if such a Limitted Monarch should send his Mercenary Forces to take away our Estates or to Dragoon us till we will own our selves of his Religion that those Instruments of his Tyranny may be resisted or that I have brought any reason for it Whereas if you had but attended better to my discourse at our 3d and 4th Meetings you might have remembred that I plainly enough proved to you that God hath not given Princes nor those Commissioned by them any Authority to Murder or enslave their Subjects and your self then granted That every Man hath power to defend his Life against him who hath no Authority to take it away which holds more strongly in our Constitution where if the King give a Man a Commission to act contrary to the Law of the Land it is altogether void and the People may as well justifie their Resistance of those Officers or Souldiers who should come to Dragoon or persecute them for professing the Religion Established by Law as if he had sent them downright to cut their Throats and this being their Right by the Laws of God and Nature whether God hath taken away this Right by any express Precept in the holy Scripture I also examined at those Meetings but whether any Municipal Law of the Land hath restrained us from it I have also now considered and proved it contrary to the true intent and meaning of these Acts concerning the Militia And therefore to say that it is not sufficient to justifie Resistance if Princes do or command what they have no Legal Authority for unless we can also shew an Authority to resist is a mistake if by Authority you mean an express Civil Law for it because such Resistance in absolute Monarchies is justifiable by that which is Prior to all Civil Laws the Right of Self-defence or Preservation And so likewise in Limited Kingdoms there is the same necessity of Defensive Arms upon a general Breach or Violation of any Fundamental Constitution of the Government since it cannot be kept or maintained without such Resistance be allowed So that if the King hath no Authority to act contrary to Law he cannot sure delegate that to others which he had not in himself and consequently such Commissions to Persecute or Murder Men contrary to Law being in themselves void the persons that Execute them being no Officers may be justly resisted and the Resistance of such an Illegal Act doth not at all derogate from his Soveraignty as King since as I told you before that is limited only to the performance of Legal Acts and extends not to Illegal Orders or Commands and as for the rest of the Reasons you give against this Resistance viz. because he who exceeds the just bounds of his Authority is liable to be called to an account for it only by those who have a Superiour Authority to do it Whereas no Power whatsoever is accountable to an Inferiour You do but impose upon me and your self the same Fallacy which you have so often made use of in making being accountable all one with irresistible which are vastly different and therefore your Conclusion is as false that because the Soveraign Prince may exceed his Authority and is only accountable for it to God that therefore he cannot be resisted by his own Subjects for he may
have made use of to wit Rex habet Superiorem Legem Curiam suam viz. Comites Barones c. who ought if he transgress the Law to put a Bridle upon him yet by this as I have already proved neither Bracton nor Fleta could mean any co-active â—orce but only a Moral restraint upon the King by Petitions Remonstrances or denial of aids till he would be Reform'd by fair means but that it does not go farther appears by the parrallel Bracton there makes between our Saviour Christ and the Virgin Mary who being both free from the Law of Moses yet voluntarily chose to be obedient to it which sufficiently proves that those Authors never designed that the Parliament should oblige the King by force or whether He would or no to amend his faults since that was as you your self must acknowledge against their very institution since both their meeâ—ing and their dissolution wholly depend upon the Kings Will. F. I confess you have made a long and elaborate speech in answer to my notion that a King may forfeit his Crown that is by his own act cease to be King but I shall be able to give you a satisfactory answer to all this if you please to take it In the first place therefore I cannot but observe that all your Discourse depends upon two Principles alike false first that no absolute Monarch can by his own act forfeit or lose his right to the Government without a formal resignation of the Crown or secondly that the Kings of England have ever been such absolute Monarchs which if they are both great mistakes all that you have said on this head falls of it self Now that a King tho' an absolute Monarch may do such an act as shall make a forfeiture of his Crown without any solemn resignation of it you your self are forced to allow in the two cases you have put viz. that of such a Monarchs becoming an Enemy to his People and going about to destroy them and that of his making over his Kingdom to another without the Peoples consent now if the diffusive body of the People in an absolute Government can judge of these two cases whenever they happen without appealing to any General Council or Assembly of the whole Nation I desire to know why it may not be as easie and lawful for the People to judge without a Parliament when the fundamental Laws of the constitution are generally and wilfully broken and violated and that violation persisted in by the King for the introduction of Tyranny and an Arbitrary Government since the Rules I have laid down to know it are but a few and easie to be known and judged of by the most common capacities Now that a Superiour or Governour may lose all that power and authority he once had and that without any act of the party governed may appear by those great and natural relations of a Husband and a Master in the former of which if a Husband in the state of nature use his Wife so cruelly that she can no longer live or co-habit with him without danger of her Life I doubt not but she may quit him and may also when she is out of his Power Marry her self again to another Man that will use her better so in the other relation of a Master if such a one in the state of Nature have a Slave and will not allow him sufficient Cloaths Victuals or will beat him or use him so cruelly for no just cause that he cannot enjoy the ordinary comforts of Life no man will deny but that such a slave may lawfully run away from such a Master and â—s at liberty either to live of himself or to chuse another Master if he think good and this instance is much more strong in an hired Servant who is to serve his Master for such and such Wages or to do such and such Work and no other if in this case the Master refuse to pay him his Wages or put him to do other work than what was agreed upon between them or instead of an hired Servant will make him his absolute Slave in these cases no man can doubt but by this unjust treatment of the Master the Servant is discharged of his Service and may go whether he pleases and of these actions I have already proved at our first meeting the party injured be they Wife or Servant must be the only Judges in the state of Nature where there is no Civil Power over them or else if the Husband or Master shall Judge for himself the Wife or Servant is never like to get any Redress apply this to the case of a limited or conditional King and his Subjects and see if it be not absolutely the same upon the total breach of the Original constitution of the Government and whether the Bond of Allegiance is not then as absolutely dissolved by the sole act of the Prince without any authoritative power in the Subjects as it is in the case of such a Wife or Servant by the sole Act of the Husband or Master without any Superior Authority in such Wife or Servant to quit them and so to discharge themselves of their Wedlock or Service Therefore as to your accusation that my notion is worse than that of the Rump Parliament that put the King to death I deny it for they supposed that there was no way of being rid of a Tyrannical King but by making the People and consequently the Parliament as their Representatives his Superiours or Judges to call him to an account and Judge and Punish him for his Tyranny this I abhor as much as your self for I grant that a King cannot be properly the Supream and at the same time own another Power above him to Punish or call him to an Account for his Miscarriages but this Power that I insist on is not as I have all along told you a power of punishment but a right of resistance for self-defence in the first place and of Judging and Declaring the King to have forfeited his Crown or Right to Govern if he persist in his Tyranny without any amendment or satisfaction given to the People Nor is this Doctrine of the Peoples thus Judging for themselves so dangerous as that of the Rumpers as you suppose who put this right of Judging when the King had thus forfeited his Power in the Parliament of which they thought themselves the only lawful or necessary Members but indeed it was not so for they still supposed him to be their lawful King and yet at the same pretended to Arraign him as you may see by the Title of the Charge or Indictment they drew up against him all which I grant to be altogether unjust and illegal but it is not more but rather less dangerous to put this power of Judging when the King has thus dissolved the Government and forfeited his Crown upon such notorious and wilful breaches of the Fundamental Laws in the whole or diffusive body
as a wilful Forfeiture or Abdication of the Government and it is from this first going away that I suppose that the Convention dates his Abdication since though it is true after his return to London he took upon him to make an Order in Council to stop the further pulling down and plundering Popish Chappels and Papists Houses yet was it sign'd by very few of the Council and almost only by those who had been in some Office or Place of Trust so that though he was then own'd by them yet since that Order did only serve to shew his Zeal for the Popish Party and was never obey'd or taken notice of by those to whom it was directed and that neither the Prince nor the City of London owned him afterwards since it had already delivered it self up to the Prince and had as well as the Peers invited him to repair to that City I cannot see that so slight an act as this Order of Council should be counted a return to or a re-establishment in the Throne since the King had not only lost the Crown by his wilful departure without calling a Parliament or giving the P. any satisfaction in the great business of the pretended Prince of Wales or the Nation by repairing up those desperate breaches he had made upon our Fundamental Laws but had also lost his Title to the Crown by being Conquer'd by the Prince in open War as I shall prove more at large another time so that if you please better to consider this Vote of the Convention you will find that these words had Abdicated the Government do not only refer to the last clause of his having withdrawn himself out of the Kingdom but to everyone of the foregoing Clauses viz. His having endeavour'd to subvert the Constitution of this Kingdom his breaking the Original Contract and his having violated the Fundamental Laws so that it is plain their notion of Abdication was not fixt only in the Kings Desertion or bare withdrawing himself out of the Kingdom but from his renouncing the Legal Title by which he held the Crown and setting himself up as a Despotick Soveraign and ruling by a mercenary Army and therefore all that you have said about the Kings quitting the Government with a design to return to it again as soon as with safety he might is altogether vain for as he went away because he would not Govern any longer as a King by Law so hath he yet given us no satisfaction that he would not return again to Govern otherwise or rather worse than he did before had he an opportunity so to do that is as the Letter I cited but now phrases iâ— to return and have his ends of us so that this being indeed the case I think I can very well justifie the last clause in this Vote that the Throne was thereby vacant M. Sir you have spoke a considerable time and I doubt more than I can distinctly remember to answer as I should therefore before you proceed to this last Clause of the Vacancy of the Throne the dispute about which I foresee may hold longer than upon any of the former pray give me leave to reply to what you have already said in Justification of all the other parts of this Vote in the first place I will not deny but that if the King had once got the power of making what Mayors Aldermen and other Officers in Corporations at his pleasure it would have gone a great way towards the making the Majority of the Parliament-men nay I likewise grant that by his dispensing Power he might have made what Papists or other person he pleased Sheriffs in any County who would have made such return of Knights of Shires as he should have thought fit yet I suppose this would not have been to the subversion of the Constitution of the Kingdom which I think I have proved to consist originally in the K. alone before any great Councils or Parliaments were instituted And as for those violations of the Fundamental Laws and Liberties of this Kingdom the Declaration instances in I think several of them may very well be justified by antient Presidents and ad judged cases in Law and therefore were so far from being violations that they are no more than the Kings exercising of his due Prerogative and though at our ninth meeting I had not time so well to consider these matters as also because I was not then prepared to defend the Kings Proceedings I shall therefore make bold to examine the most considerable of those Articles which the Late Declaration supposes did so highly tend to subvert the Protestant Religion and the Laws and Liberties of this Kingdom I shall begin with the first viz. His assuming and exercising a power of Dispensing with and Suspending of Laws and the Execution of Laws without consent of Parliament which Power let me tell you by the way was not asserted to Dispence with all Laws or Statutes whatsoever but only such as the Subject has no particular cause of action in and where the damage that may arise by it doth not concerns the publick safety of which the K. is sole Judge and not any particular mans interest I suppose you cannot but have read that learned and short account of the Authorities in Law upon which Judgment was given in Sir Edw. Hales his Case written by Sir Edward Herbert Lord Chief Justice of the Common Pleas in vindication of himself wherein I think he proves beyond any possibility of a just answer that the dispensation granted to Sir Edward Hales to receive a commission and act as a Collonel of Foot was good notwithstanding his not having received the Sacrament and taken the Oaths and Test appointed by the Act of the Statute of the 25 of Charles II. where he first proves from my L. Cock's Authority that it belongs to the Kings Prerogative to Dispence with all Positive or Penal Laws the penalty thereof is only popular and given to the King and to shew you that my Lord Cook who was never counted any great friend to the Kings Prerogative was not single in this opinion he gives you also the authority of the year Book of Henry the VII where it was own'd by all the Judges That the King can Dispence with all things which are only Mala Prohibita and not Mala â—n se though expresly forbid by Act of Parliament for though says the Year Book before the Statute Coining of Money was Lawful but now it is not so yet the King can Dispence with it so that say I if he can dispence with that which is now made Treason by EÃ the III. he may certainly dispence with all other Penal Statutes of a less nature But because I grant there is some difference between Common Penal Laws which barely prohibit the doing of some things under a penalty and this Act in which there is also an express Clause of Non-obstante that all Licences or Dispensations contrary to this
Statutes of Provisors and Praemunire and I could shew you from divers Records of Parliament in the Reign of Richard II. Henry IV. and Henry V. that they never intruâ—ed the Crown with an absolute power of Dispensing with those Statutes but only for a time as till the next Parliament or longer as they thought fit But since I have not now so much time to give you so many Presidents at length I shall only tell you that as to the main instance you relye upon viz. the Kings Dispensing with the Statute of Sheriffs that at first it was not taken for Law appears by several Acts of Parliament as in 28. of Henry the VI. whereby those Sheriffs that had held their Offices for more than a year are pardon'd likewise in the Act of Edw. IV. there is a like Statute pardoning those Sheriffs Who by reason of the late troubles in the Realm had held for above a year yet nevertheless confirms all former acts concerning Sheriffs for the time to come and this held as far as the sixth of Henry VIII which is long after the Judgment you mention in the Exchequer Chamber of all the Justices in England to the contrary for there was then an Act made which reciting all the former Statutes about Sheriffs as then in full force it Enacts that the Sheriffs and under Sheriffs of the City of Bristol may continue to occupy their Offices in like manner as the under Sheriffs and other Sheriffs Officers in London do without any Penalty or Forfeiture for the same the said Acts or any other Acts to the contrary notwithstanding From all which Statutes I think it sufficiently appears that neither the Sheriffs of those times nor the City of Bristol nor the whole Parliament when that Act was made did believe the King had Power to Dispense with the Act of the 25 of Henry the VI. concerning Sheriffs for if they had certainly it had been much easier and cheaper for them to have obtain'd the Kings Dispensation than to have got an Act of Parliament for it M. I believe you may have cited these Statutes right enough but yet I think they are not sufficient proof against so solemn an Opinion as that of all the Judges in the Exchequer Chamber 2 d of Henry the 7 th and whatever the Parliament might have declared in the Case of this or that Particular Statute I confess carries some Authority with it yet ought it not to be counterval'd by so solemn a Judgment as that of all the Judges and Lawyers of England together with the King 's constant Exercise of this Prerogative not only since but before that time and that without any question or dispute with the Parliament about it as in the Case I have already put of the Statute that forbids any Welchman being an Officer in Wales to which I may add divers other Cases of like nature such as the Statute against a Judges going the Circuit in his own Country as also those Statutes that prohibit the King from granting Pardons to Persons convict nay condemned for Murther with several other Penal Statutes I could name were though the King's hands are tied up by particular Clauses of Non-obstante yet has His Majesty and his Predecessors at all times exercised their Prerogative of dispensing in all those Cases notwithstanding those Acts of Parliament with Non-obstantes to the contrary And though I grant you have given me several Presidents of the Parliaments sometimes restraining the King in this Exercise of the Dispensing Power yet they are all or the greatest part of them before the beginning of Henry the VII th's Reign when I grant the Law first began to be setled in this matter and since the Judgment of all the Judges in the Exchequer Chamber is the only Rule of Law we can have in the Intervals of Parliament and that this case of Dispensations being by them adjudged and ever since setled and own'd for Law without the least dispute I can see no reason we have to question it now But as for the Statute of the 6 th of Henry the VIII which you urge as a President to the contrary since the Reign of Henry the VII I think it will not reach the Point in question for the Act you now cited seems to me no more than a private Act for the Sheriffs of Brestol alone who being it seems afraid to rely upon the King's Dispensations because they thought them too chargeable to be taken out as often as they should have need of them did think it a great deal less charge and trouble to pass an Act of Parliament to indemnify themselves which I grant put that matter beyond all dispute But since this Act of Henry the VIII I find no contest between the Parliament and the King about his Power of dispensing with Penal Laws till the Reign of King Charles the II. when I grant the House of Commons did address to His Majesty That Penal Statutes in matters Ecclesiastical cannot be suspended but by Act of Parliament as also the last Address of the House of Commons in 1685. against the King's dispensing with the Officers of the Army their holding Employments without taking the Oaths and Test according to the Act whereby they were appointed But these being only against the King's Power of dispensing with Laws Ecclesiastical as concerning Liberty of Conscience can no ways be extended to their excepting against the King's Power of dispensing with divers other Penal Laws I will not say all which have Non obstantes in them F. Since I see not only your Opinion but also that of most of the Judges and Lawyers of England concerning this matter of the King's Dispensations with Penal Laws has been chiefly if not only founded upon that Opinion of all the Judges in King Henry VII i me give me leave to examine the validity of that Judgment for if that can be proved not to have been according to Law or elâ—e never given at all I suppose you must grant that my Lord Coke and all others who have founded their Opinions upon this adjudged Cause of Hen. the VII were mistaken Now pray give me leave to argue a little with you in point of Reason If a Non obstante from the King be good when by Act of Parliament a Non-obstante is declar'd void what doth an Act of Parliament signifie in such a case must we say it is a void Clause But then to what purpose was it put in Did the Lords and Commons who drew this Act of the 23 d of Henry the VI. as also those Acts concerning Sheriffs understand this Clause of Non-obstante to be void when they put it in If it were so and contrary to the King's Prerogative why did the King pass this Act without any refusal or protestation against it certainly it was then thought otherwise and if so we have the Authority of the two Houses of Parliament against the Opinion of the Judges But if it were not a
President and Fellows of Magdalen Colledge and that Prosecution that was lately order'd against all those Bishops and inferior Clergy who had refused to distribute or read the King's Declaration though I confess there was a stop put to this upon re-calling this Commission Immediately before the Princes Arrival So likewise for the other Article of levying Money contrary to Law that was also without any opinion of the Judges at all demaâ—ded about it for the illegal collection of Chimny Money by making Cottages and Ovens pay that were exempted by the Acts concerning it and also the illegal levying of Excise by making Small-Beer pay the Duties of Strong were all of them acted and done by particular directions from the Treasury or by the private abuse of the Farmers of the Excise without any opinion of the Judges and of these Orders his Majesty could not chuse but be the Author or approver at least since 't is very well known he constantly satâ— there when any great Business was to bâ— transacted and the Lord Treasurer or Commissioners of the Treasury would certainly never have presum'd to have issued out their Orders in a Case of so great moment if they had not been very well satisfied that it was his Majesty's express Will and Pleasure to have iâ— so And I my self have now by me a Copy of the then Lord Treasurers Directions to the Officers appointed for the levying of Chimney-money commanding them to levy it upon all Cottages and Ovens whatsoever which was done accordingly with the utmost rigour which though it was a very great oppression yet since it chiefly concern'd the poor and ordinary sort of people who had not purses to go to law with the King or else such Gentlemen and others who though they were forced to pay for their poor Tenants yet did they not think it worth their while to bring iâ— before the Barons of the Exchequer where as things then went they could not expect to find much Justice I shall not insist upon the King 's taking the additional Customs contrary to the Act of Parliament by which they were granted to the late King Charles only for life and though in his last Sickness there was a Contract for the new farming of them by vertue of which I grant the King might have justified the taking of them till the end of the Farm yet since that Contract never passed the Seals during the King's life-time it was certainly against Law for the King to take them before they were re-granted by Act of Parliament I say I shall not insist upon this since the Parliament were so easy as to pass it by without declaring it to have been illegal only it sufficiently shows that from the very beginning of the King's Reign he was resolv'd to govern arbitrarily and to levy Money upon the Subject whether the Law gave him any Authority to do it or not But as to what you say concerning the Judges being wholly in fault for all the unjust and illegal Proceedings exercis'd in their Courts and that the King was wholly faultless I should be of your mind had I not seen that all those Judges who would not agree to the dispensing power and other illegal Judgments I could name were turn'd out and others either Papists or of less consciences than Papists were put in their places which were not conferr'd for any longer time than durante bene placito and therefore no wonder if such men were absolute slaves to the King's will and pleasure M. I had much more to say in defence of the King 's raising and keeping up a standing Army and his disarming Protestants in and after the Duke of Monmouth's Rebellion which are laid to his charge as endeavours to destroy the Rights and Liberties of this Kingdom But since it grows late I shall only now take notice of something which I forgot to insist upon concerning your Notion of the King 's obdicating the Crown by a wilful breach of the Laws which is quite different from the sense in which this Word is taken in Roman Authors as also in our Civil-Laws For when Cicero uses the Expression Itaque tutela me abdicare togito Brison tells us his meaning was se nolle esse tutorem But Pompenius in his Book De orig Iuris gives us the true sense of this Phrase Abdicare se Magistratu est ante tempuâ— Magistratum deponere which plainly shows the Romans had no notion of a Tacit or imply'd abdication of a charge or Majestracy without a man's express consent and therefore if the Kings bare desertion of the Kingdom was not an Abdication of the Throne as you your self are forced to grant I cannot imagine how the King's violation of the Laws or endeavouring to subvert the Government both which you lay to his charge can properly be call'd an Abdication of it so that indeed the King hath not abdicated the Government but your Convention hath abdicated him And tho we often read in our Civil-law That a Father might abdicare filium yet I never read or can you show me any Example that a Son might abdicate a Father or Subjects their Prince F. You discourse upon a wrong ground for I never affirmed That Subjects had any authority to abdicate or depose their Prince nor hath the Convention assum'd any such power to themselves what they have done in this affair hath not been authoritative or as taking â—pon them to call the King to an account for his actions or to depose him for his misgovernment but only declarative to pronounce and declare as the Representatives of the whole Nation that by endeavouring to extirpate the Protestant Religion and to subvert the Fundamental Laws and Liberties of the Kingdom he had wilfully I do not say willingly Abdicated the Government that is renounced to Govern this Kingdom any longer as a lawful King which I take to be a tacit or imply'd Abdication of it as I have already proved and to shew you farther that even Tully himself allows in our sense of an imply'd Abdication in his third Philippicks when he says thus concerning Mark Anthony that for his offering a Crown to Caesar Eoâ—die-non modo Consulatu sed etiam libertate se abâ—itavit c. where you see Mark Anthony is said to have Abdioned the Consulshâ—p without any express Renunciation of it for Caesar might have continued him in it after he had been declar'd Emperor M. I grant your Authority to be good yet even in this sense this Abdication of the Consulship could only take its effect from Anthony's owâ— Will for offering a Crown to Caesar if he did not expresly yet he effectually renounced his Consulship for had Caesar accepted in he could no longer have been the Consul of a Popular State but must thenceforth have acted by authority from Caesar or not at all but then this would not have agreed with your Noâ—on of a Forfeiture which always supposes a crime and a depriving the party
Crown yet the pretended hereditary right of blood was the main ground of his Establishment But as for King Henry the VII th tho' he could claim the Crown by no true Right of Inheritance yet would he never own it to be an Election by Parliament for as soon as King Richard was slain in the Battle of Bosworth the Lord Stanley put his Crown upon Henry's head who immediately stiling himself King as well by right of Conquest as by being sole Heir Male of the House of Lancaster He as such caused himself to be Crowned King and though he afterwards call'd a Parliament in which he procured his Title to be recognised yet as my Lord Bacon very well observes he was afraid to take the Crown by his only true Title in right of the Lady Elizabeth his Queen for fear he should only be King by Courtesie and must upon the Queens death have resign'd it again and should he take it by Election he knew there was a very great difference between a King that holdeth his Crown by a Civil Act of the Estates and one mind that that holdeth it originally by the Law of Nature and descent of Blood and therefore upon these Considerations he resolved to rest upon the Title of the House of Lancaster as his main Right and thereupon he caus'd an Act of Parliament to pass wherein his Title was acknowledged as my Lord Bacon there tells us not by way of Declaration or Recognition of Right as on the other side he avoided to have it by a new Law of Ordinance but chose rather a kind of a middle way by way of establishment and that under covert and indifferent words that the inheritance of the Crown should rest remain and abide in the King c. which words might be equally applied that the Crown should continue to him but whether as having former right to it which was doubtful or having it then in fact or possession which no Man denied was left fair to interpretation either way I speak not this to justifie all his actions but to let you see that he chiefly insisted upon his right of inheritance and absolutely disown'd any Title by Election from the People F. I cannot deny the matter of fact concerning King Richard the III ds Deposing his Nephew and Usurping the Crown to have been very wicked and contrary to the received Law of England concerning the Succession at that time and likewise that by Bastardizing his Brother the late King's Issue without due course of Law and by attainting the blood of his other Brother the Duke of Clarence he would have made the World believe that he was Lawful Heir by right of blood yet you will not deny but that for all this he was so sensible of the weakness of his Title that though it is true his right by blood is declar'd in the first place in that Act of Recognition yet it is plain he would not rely upon that alone and therefore you see the Parliament there also insists upon his right by Election and Coronation which they would never have done had it not been that they looked upon it for good Law that whoever was Crowned King and call'd a Parliament and had his Title therein Recognized and Confirmed was thenceforth true and lawful King to all intents and purposes therefore though you have omitted it I shall proceed to shew you what this Statute also farther declares For after they had declar'd the said King's Title as grounded upon the Antient Laws and Laudable Customs of the Realm according to the Judgement of all such Persons as were learned in them they proceed thus Yet nevertheless for as much as it is consider'd that the most part of the People is not sufficiently learned in the aforesaid Laws and Customs whereby truth and right in his behalf of likelihood may be had and not clearly known to all People and thereupon put in doubt and question and over this how that the Court of Parliament is of such Authority that a Declaration made by the three Estates and by the Authority of the same maketh before all other things most faithful and certain quieting of Mens Minds and removeth the occasion of doubts and seditious Language therefore they also declare that he was the undoubted King Whence 't is evident that the reason of this Law supposeth that the Subjects in general are not capable of understanding the Laws and Customs upon which the Titles of our Kings depend and that the best satisfaction that the generality of the People can possibly have in those high Matters was to rest on the judgment and determination of the Kingdom declared by Act and Authority of Parliament and therein to acquiesce for the preventing Sedition so much as in Language therefore what I said before in the Case of King Stephen is also true in this quod fieri non debuit factum valet and all the Acts made in the Reign of this King Richard though â— horrid Usurper were never repeal'd but stand good at this day As to what you say concerning the manner of King Henry the VII ths coming to the Crown is also true but as for his Title to it by right of Succession that was certainly false for his Mother the Countess of Richmond was then alive by whom he Claim'd the Crown and liv'd divers years after he was King so that though I grant that it is recited in the Parliament Roll that he claim'd the Crown in Parliament tam per justum titulum haereditantiae quam per verum Dei judicium in tribuendo sibi victoriam de Inimico suo in campo tho' the latter of these Titles may be true Viz. the Conquest of King Richard especially when once he was confirm'd and recognized in Parliament yet that the former could not be so is plain from what I have now said so that it is certain that King Henry the VII ths best Title was neither by Inheritance nor Marriage with the Princess Elizabeth but by the Act of Parliament as appears by the unprinted Statute it self still upon the Roll which since you did not repeat I will the Title is Titulus Regis and it runs in these words To the Pleasure of Almighty God the Wealth Prosperity and Surety of this Realm of England to the singular comfort of all the Kings Subjects of the same and in avoiding of all ambiguities and questions be it Ordained Established and Enacted by Authority of this present Parliament that the inheritance of the Crowns of the Realms of England and of France with all the preeminence and dignity Royal to the same pertaining and all other Seignouries to the King belonging beyond the Sea with th' Appurtenances thereto in any wise due or pertaining be rest remain and abide in the Most Royal Person of our now Sovereign Lord King Henry the VII th and in the Heirs of his Body lawfully coming perpetually with the grace of God so to endure and in none
Childless I cannot see why the Convention may not as well now settle the Crown upon King William and Queen Mary and their issue with remainder to himself for Life especially since he hath also another Title of his own to confirm it viz. that of a Conqueror over King Iames and our Deliverer from his Arbitrary Government M. I shall not go about to derogate from King Williams Personal Vertues which you so highly extoll only I wish I may not prove too true a Prophet since that is not the main question between us I shall only take upon me to answer in the first place what you have urged on the behalf of King William's pretence to the Crown as a Conquerour over King Iames and Deliverer of the Nation for whatsoever he may pretend to in respect of the latter I am sure he cannot justly pretend to the former since sure he can never have any right by Conquest who expresly sets forth in his first Declaration that he only came to obtain a Free Parliament and to Redress our Grievances Much less can he be properly call'd a Conquerour who never overcame his Enemy in any pitched Battle but by false Stories made the King's Army desert him and then when this was done having forced the King to leave the Kingdom for fear he has in the day of his power by these means obtain'd the Crown and as for a Deliverer you must pardon me if I cannot think him so since I am not yet satisfied that the worst of King Iames's Oppressions ever deserved that the Prince of Orange should take the pains to come over to redress them And therefore your paralell between your King's Title and that of Henry the IV th and Henry the VII th doth not at all agree since both of them claimed not so much by Conquest or force of Arms as by a pretended right of inheritance as you may see by both their Claims And as for Henry the IV th 't is plain he looked upon his Title by descent of blood having been allow'd in Parliament to be so good that for the first seven years of his Reign he never thought it worth while to pass an Act for the Settlement of the Crown upon himself and his Issue but for Richard the III d and Henry the VII th they were so far from owning their Titles to any Act or Declaration of Parliament that they first clap'd the Crown upon their own heads and after they had done it they immediately call'd their Parliaments which tho' they recogniz'd their Titles yet did not make them Kings but found them so whereas the Convention has by their sole Authority made the Prince of Orange and Princess King and Queen of England to the prejudice of the right Heirs of the Crown F. I doubt not but what I have already said may very well be desended notwithstanding the utmost you have now argued against it In the first place as to what you say against King William's Title as a Conquerour over King Iames is very trivial for though it is true the Prince declar'd before he came over that his coming was for no other end but to obtain a Free Parliament Redress Grievances and to remove Evil Councellors from King Iames yet that is still to be understood that the King would agree to those reasonable demands the Prince then â—aâ—e for if by his own obstinacy he would bring things to that pass as that instead of redressing those violations he had made upon our fundamental Laws he raised an Army to support himself in them and when he thought this Army would not sight in his so bad a Cause he then disbanded it and by that as well as the desertion of the Throne owned himself vanquish'd Can any body deny the Prince of Orange a right of making what advantage he could of his Successes And therefore I doubt not but that the Prince might if he pleas'd have taken upon him the Title of King immediately upon King Iames's first departure and have summon'd a Parliament to recognize his Title as Henry the VII th did after his Victory at Bosworth Field nor would this have made him a Conquerour over the Kingdom since he never made War against it but came to deliver it from Tyranny and Oppression Nor did William the Corquerour himself by his Victory over King Harold ever pretend to a right by Conquest over the whole Kingdom but only over the Estates and Persons of those who had fought against him as I have fully proved at our Tenth Meeting nor did Henry the VII th in the first Speech he made to the Parliament after his taking upon him the Crown claim a right to it by Conquest over the Kingdom as his own words were in that Speech you mention to this first Parliament but only that by the just judgment of God in giving him the Victory over his Enemy in the Field and he then farther declar'd that all his Subjects of whatsoever State and Condition should enjoy their Lands and Goods to them and their Heirs as they did before except such Persons who were to be attainted by Act of Parliament Nor is it any objection against his right by Conquest that he obtained no Victory in a pitch'd Battle since I never heard or read that to make a Prince a Conquerour it is necessary that so many thousand Men should be kill'd upon the spot for admit the adverse Prince against whom he fights will through Cowardise desert his Army or that his Army will desert him either through fear or a sence of the greater justice of the adverse Princes Cause or an affection to his Person so that it never come to a Battle yet it has been in all Ages looked upon as all one with a Victory as I can show you from several examples in History and particularly in Plutarch concerning Pyrrhus King of Epyrus who making War against Demetrius then King of Macedon and both Armies being encamped near each other the Army of the latter forsook him and went over to Pyrrhus as well out of hatred to him as esteem for his Enemy so that Demetrius being forced to steal away in disguise Pyrrhus thereupon was immediately in the Field Proclaimed King of Macedon And I doubt not but the Prince of Orange might have done the same had it not been for his great moderation and least it might give his Adversaries occasion to traduce him that he came over for no other end but to drive the King out of his Kingdom and therefore he chose rather to owe the Crown to the free Act of the Nation than to his right by Conquest over King Iames but yet I do not think he hath at all lost that right though he doth not think fit for fear of giving offence to insist upon it and therefore certainly the Convention might very well justifie the setling the Crown upon his Highness during his Life not only as a Conquerour over K. Iames but a Deliverer of
Authority since besides that it was done by Usurpation in those rough and unsetled times yet I believe if the antient Writs of Summons were now in being you would find that they were called by those Usurpers though not by the Title of Kings but I defie you to show me since the Reign of Edward the First any Parliament ever call'd without the King's Writs of Summons and though upon the deposition of Edward and Richard the Second the Parliaments you mention might continue to sit and transact publick business yet was it during a plain Usurpation upon those Princes whom you your self must grant to have been unlawfully deposed and therefore we find upon the Parliament Roll of the 21 st of Richard the Second that an Act of the first of Edward the Third confirming the Judgment given upon the two Spencers was not only repeal'd in Parliament but declared to be unlawful because Edward the Second was living and true King being imprison'd by his Subjects at the time of that very Parliament of 1 Edward III. But as for your last instance of a Conventions declaring it self a Parliament in the Reign of King Charles the Second there is a great deal of difference between them and the present Convention since they did not take upon them to declare or make a King as this Convention has done but only to recognize him to be their Lawful Sovereign which as I have already told you being that which was their duty to do they might very well justifie though they were not Summon'd by the King's Writs but however all their Acts were looked upon as made without legal Authority and therefore were confirmed in the first legal Parliament of King Charles's Reign But as for the Authority of the Statute of the 13 th of Eliz. whereby you would prove that the Parliament has at this day power to alter or limit the Succession of the Crown besides that such an Act being against the fundamental rules of Succession was void in it self yet if you please to look upon the Act in Rastal's Statutes you will there find it was only made to serve a present turn and to keep the Queen of Scots and her Party from enterprizing any thing against Queen Elizabeth and therefore it is there only declar'd to be Treason during the Queens life for any Persons to maintain that the Queen could not riot with the Authority of the Parliament limit the Succession of the Crown and as for the last Clause that makes it forfeiture of Goods and Chattels to maintain the contrary after her decease this was made to strengthen and confirm the former part of the Statute which was a provision and security against such pretences and Practices as had been lately made against her by the Papists on the behalf of the Queen of Scots Title and this Clause could not take effect after her death but was added to preserve Queen Elizabeth's Memory from being defamed after her decease or being slanderously charged with the heinous Crime of Usurping the Crown which must have been the inevitable consequence of affirming that she and her Parliament could not limit the Succession For to confess the truth I think Queen Elizabeths best Title was by Act of Parliament since her Legitimacy might be justly question'd by reason that her Mothers Marriage was declar'd unlawful by the 28 th of Henry the VIII th and she was as good as declar'd illegitimate by her Father in that very Act that setled the Crown upon her but that this Statute of the 13 th of Queen Elizabeth is now looked upon as expired appears in Palton's and all other late Collections of the Statutes since her time wherein the Title of the Statute is barely mention'd with EXP. immediately following it to shew it is looked upon as expired So that you are mistaken to affirm that the Convention has done nothing in the late limitation of the Crown but what may be justified from that Statute therefore if it be not Law at this day I think they had no Authority to alter the Succession of the Crown from the right Line let them be of what Religion they would F. I see you do all you can to evade the force of my Authorities from History and direct matter of Fact and therefore as to what you say that those were rough and unsetled and therefore no Precedents to be drawn from thence this is to beg the Question for what could be the Law concerning the Succession of the Crown for the first hundred and fifty years after the Conquest but the constant usage of the Great Council of the Nation as low as the Reign of Henry the Third and it is a bold assertion to accuse the whole Nation of Perjury and Rebellion against their Lawful Kings during all those Successions I have now instanced in nor have you any thing to say against those Parliaments that met in the 1 st of King Edward III. and Charles the II. but that their Meeting was Lawful because it was only to recognize those Kings and not to make them which is indeed to beg the Question since you cannot deny but those Parliaments are held for good notwithstanding they were not call'd by the King's Writs But as for making a King the present Parliament have not taken upon them to do it since they do not in the Act for the Succession Elect King William and Queen Mary to be our Lawful King and Queen but only declare or recognize them to be so upon supposition that the Prince of Wales is either an Impostor or else his Legitimacy impossible to be tried and determined by them Nor are your Objections material against the Authority of those Acts of Parliament which were made in the 1 st of King Henry the IV th and Charles the II d. which were never Summon'd by those Kings Writs For as to the first of those Instances most of those Acts of Henry the IV th stand good at this day without ever being confirm'd by any subsequent Parliaments And tho' I grant that the publick Acts made in the first Year of King Charles the II d. were confirm'd in the next Parliament of that King yet this does not prove that they would have been void without it since divers private Acts passed in that Parliament which were never confirm'd in any other and yet are held for good As particularly an Act of that Parliament for making the Church of St. Paul's Covent-Garden Parochial And this Act though never confirm'd was yet adjudged to be in force by the Lord Chief Justice Hales and the rest of the Justices of the Court of King's Bench in a Case concerning Rate Tythes between the Minister and some of the Parishioners of the said Parish Nor is what you have now said to prove the Statute of the 13 th of Queen Elizabeth whereby the Crown is declared capable of being limitted by Act of Parliament to be now expired since it is plain by the purport of the
spend our dearest blood in the defence of our Sovereigns Person and the preservation of his Crown and Dignity For it is to be observed that by the Law this Allegiance is due to the Kings Person so the same Author says it was then resolved by all the Judges that that Ligeance was due to the natural person of the King which is ever accompanied with the politick capacity and the politick capacity as it were appropriated to the natural and not due to the politick capacity only To conclude if my former Oath of Allegiance to King Iames doth still continue as I am satisfied in my Conscience it doth I cannot take a new Oath of Allegiance to King William and Queen Mary since I should thereby be obliged by the force of these words in the Oath viz. I will be faithful and bear true Allegiance to yield it as much to those that are not my Lawful Sovereigns as I am to those that are so which will be contrary to my first engagement for though I grant that there is no express Declaration of the Right of the present Possessors of the Throne and that I have heard that the word rightfull which was at first inserted into this Oath was struck out because as many as could be might be drawn in to take it yet as long as the words that remain import the very same thing it is all one as if the word rightfull were there for though the deliberate omission of the word rightfull does necessarily infer that we are not obliged in this Oath to a recognition of their right to the Crown yet it does not infer that we are not obliged to pay as high a degree of Allegiance as to any rightful King whatsoever that omission indeed is an Argument that the word King in the Oath does not necessarily signifie a King de jure but it is no argument that true allegiance does not signifie true Allegiance that is an obligation to adhere to the King against all his Enemies for there was no debate that we know of about the sense of the word Allegiance neither is there the least intimation given that they design'd to restrain it to a lower signification though it was plainly necessary to do it if they intended to alter the commonly received meaning of it wherefore as the striking out of the word rightfull would not have proved that they did not intend to oblige us to an active assistance of King William against all men living if those words had been expresly inserted in the Oath so neither will it prove that the same duty is not now required of us if the word Allegiance do as I have proved in terminis import it and that as fully as if it had been in express words requir'd in it And that this word Allegiance implies something more than a bare passive submission or neutrality from all Subjects as well as Magistrates and Officers appears by that passage in the Statute of the 11th of Henry the VIIth which you have now cited where 't is plainly and expresly declared that every Subject by the duty of his Allegiance is bound to serve and assist his Prince and Sovereign Lord at all seasons when need shall require this is so express and authentick a Declaration of the true duty of Allegiance that no Art or Sophistry can possibly evade it F. I confess you have argued this point of taking this new Oath of Allegiance not only like a Civilian but a common Lawyer also and I cannot deny the force of what you have said that this Oath must extend to an active obedience and defence of their present Majesties in their right to the Throne and not only to a bare sluggish submission or a luke-warm Neutrality And therefore I cannot say but you are justly scrupulous in not taking this new Oath untill you are satisfied of their Majesties Right as well as present Power but if you will please to observe the purport of this Act of the 11th of Henry the VIIth which you now mention'd you will there find it as good as expresly declar'd that Allegiance is due to him who is lawful Sovereign and the King for the time being is still to be looked upon as such for the words in the Statute are that no Man shall suffe for assisting the King for the time being without specifying by what Title he holds the Crown whether by an hereditary Right or by Conquest Election or the solemn recognition of his Title by all the Estates in Parliament so that by this Act all that Allegiance that was once due to the former King de Iure becomes thereby wholly transfer'd to the King de facto M. I grant what you now say would go a great way to satisfie me could you once prove that this Statute is now in force and is not now either abrogated or expired or else which I rather incline to believe is not absolutely void in it self In the first place therefore I hope to shew you that this was not Law before this Statute was made and therefore not declaratory of what was Law but endeavours to make that to be Law which was not so before so that the King for the time being there mention'd must be a King de jure or at least one that was presumed such because at that time the Constitution knew no other for that Possession was not a sufficient Title before the 11th of Henry the VIIth will evidently appear from these following Remarks First that all the Kings of the House of Lancaster are declared in the Statute of the first of Edward the IVth to be Kings in Deed but not of Right and pretended Kings and particularly Henry the VIth is said to be rightfully amoved from the Government and his Reign affirmed to be Intrusion and Usurpation and himself Attainted for being in Arms against Edward the IVth Secondly all Patents of Honour Charters and Priviledges which were granted by the House of Lancaster all Acts of Royal Authority which the Kings of England have a right to execute by vertue of their sole Prerogative nay Acts of Parliament themselves particularly those relating to Shrewsbury and some others which by parity of Reason supposes the rest in the same Condition all Acts of this nature were confirmed by the first of Edward the IVth which is a good Argument that this Parliament believed the Authority by which they were performed to be defective and illegal for we never find any such general confirmation as these pass upon the grants of the King de jure Thirdly in the first year of Henry the VIIth Richard the IIId was Attainted of High Treason in Parliament under the the name of Duke of Gloucester from whence 't is plain that as there was no Statute so neither was there any Common Law to support the Title of a King de facto for Treason is an attempt against the Kings Person his Crown and Dignity but no Man can commit Treason
should be so for it is not meerly a legal Title by descent but a legal investitute and recognition by Parliament that makes a legal King or a King in Law as it makes a legal Magistrate and then all Kings de facto who are placed in the Throne by a Legal Authority and with all Legal and acustomed Ceremonies are legal Kings and as such may require a legal Allegiance so that all those hard words in the Statute of the first of Edward the IVth that call those Kings of the House of Lancaster Kings in Deed and not of Right or pretended Kings mean no more than this that they were Kings for the time being and according to the Laws which had made them so though not according to that hereditary Right of Succession which those Statutes require If you have any thing to reply to this tell me or else I will proceed to answer your two other Arguments M. I will not at present say more to this than I have done and therefore you may proceed if you please F. Your two next Arguments are from the attainders of Richard the IIId and his principle Assistants which were by Act of Parliament as to that Prince himself as also his adherents the attainders of Kings de facto and their Assistants in after Parliaments do not prove that Subjects cannot be guilty of Treason against a King in possession nor does the Statute of Treason relate to a King de jure only for that Statute was not made to secure Princes Titles but the quiet of their Government whilst they sate upon the Throne for though a King if he be an Usurper when ever the Rightful King regains the Possession of his Throne if he were a Subject before may be attainted of Treason for his Usurpation as was Richard the IIId for Treason against his own Nephew King Edward the Vth yet this does no way prove that Richard the IIId was no true King during his Usurpation but only shews the Parliaments abhorrence of his Treason and to deterr others from falling into the like attainted him and several of his Accomplices who had assisted him in his said Usurpation for that they were not barely attainted for defending King Richard's Title appears from this that the Earl of Surrey Son to the Duke of Norfolk and divers other Noblemen and Gentlemen who fought for King Richard at Bosworth-Field were never attainted at all But as for the Pardon that you say passed in that Parliament of the 1 st of Henry the VIIth you are very much mistaken in the purport of it for if you please to look upon it again you will find that it was not a General Pardon for the Common People who had fought on the behalf of Richard the Third but of all those who had come over with Henry the VIIth himself or who were with him in the Field against Richard the Third for all manner of Murthers Spoils and Trespasses committed by them in taking part with King Henry against his Enemies so that you see the assisting of a King de facto was not only justifiable but those that had fought against him thought themselves not safe till they had their Pardons Nay farther that Attainders passed in Parliament are no proof that the Princes against whom they were passed were not lawful Kings appears from hence that when Edward the Fourth was driven out of the Kingdom and dispossessed of the Throne the next Parliament under Henry the Sixth passed an Act of Attainder against him and his Adherents But as for the Attainder of Henry the Sixth you are very much mistaken to suppose that it was for any Treason committed against Edward the Fourth but it was for breach of the agreement made with his Father the Duke of York and in making War again upon him for had he not done this he had continued lawful King during his life by the Duke of Yorks own consent for in the Parliament Roll you your self have already cited it is thus expressed That considering the possession of the said King Henry the Sixth and that he had before this time been named taken and reputed King of England and France and Lord of Ireland the said Duke is content agreeth and consenteth that he be had reputed and taken for King of England and of France with the Royal Estate Dignity and Preheminence belonging thereto and Lord of Ireland during his life natural and for that time the said Duke without hurt or prejudice of his said Right and Title shall take worship and honour him for his Sovereign Lord So that you see that by the Judgement of the Parliament and by the express consent of the Right Heir of the Crown a King de facto was to be own'd by this Right Heir for his true and lawful Sovereign and therefore could not be attainted for detaining the Crown from him or his Son M. I will not dispute this point any further but yet methinks though Treason might be comitted against the King de facto whilst he continues King yet this is not for any Allegiance due to him but because such Treason being against the due order of Government and the common peace of the Nation such actions are therefore Treason from the presumed or tacit consent of the King de jure F. I grant indeed that such Acts are against the Order of Government and very destructive to it which is the only reason why they are made Treason by Law and this is as good a reason why the Law should make them Treason against a King de facto as against a King de jure for they ere equally against the order of Government and destructive to it whoever is King and that is the only reason why they made it Treason at all Now this presumed or tacit consent of the King de jure is a very pretty notion and serves you for a great many good turns it makes Laws and it makes Treason and gives Authority to the unauthoritative Acts of a King de facto that is to say or you say nothing that the presumed consent of a King de jure invests the King de facto at the time with his Authority for if he have no Authority of his own unless what the presumed consent of the King de jure give him that cannot make any Treasonable Act done against him to be Treason for it cannot alter the nature of things nor make a Man guilty of Treason against any person to whom he ows no duty of Allegiance And if the presumed consent of the King de jure can invest the King de facto with his Authority it must transfer the Allegiance of the Subjects too and then Subjects are as safe in Conscience as if the King de jure were on the Throne for it seems there is his Authority and tacit consent though not his person But indeed this is all meer trifling the King de facto has Authority or else none of his Acts
Nation as I have already sufficiently made out And therefore though I grant that all Legal Authority ought still to go according to just or rightful Titles yet since God makes no Kings at this day â—ut those who are made Kings by some humane Acts and have a legal right to Kingship by some humane Laws Now how can you prove from hence that in England none can have a legal right to govern but those who have the rightful Title of a Lineal Succession for if the Title alone does not conferr the the Authority but that the Law says a legal investiture by Coronation and Recognition by Parliament shall also conferr it it is evident that an Hereditary Title and a Legal Authority may be separated and yet the Authority continue Legal still for Legal Authority must be conveyed in such manner and by such forms as the Law has prescribed or appoints to that purpose for there is no other way of conveying it and then that Authority which is so given in form of Law and that only is the Legal Authority If then the Estates of the Realm who are the only proper Judges of such Disputes have adjudged the Crown to one whom we will at present suppose to have no antecedent legal Title to it yet he thereby becomes legally possessed not only of the external force and power but of the legal Authority of the Government also and therefore he may challenge as his due all Legal Obedience which is the true notion of Allegiance for nothing more than Legal Obedience can be due to a meer Legal Authority so that because he is invested with the Legal Authority the Crown is his Legal Property against all other Claims and his Subjects must defend him in it as the Legal Properties of private Persons being once determined by Judgements of inferiour Courts of Law are also to be defended by the Civil Power against the force of him who perhaps may have the better Title to the Estate by right of blood And if God makes Kings by humane Acts I hope it is no injustice in God to make him a King whom the Law makes a King and to enjoyn our Obedience to a Legal King which Legal Authority may be said to be annexed to the Legal Title while there is no Legal Judgement against it which was not the Case of Queen Mary and the Lady Iane her Competitor nor yet of King Charles the Second and Oliver Cromwell since neither the one ' or the other were ever Crowned or acknowledged as Lawful Queen or King by Parliament and therefore could obtain no Legal Title against the Right Heirs but on the other side when one is solemnly declar'd King or Queen being Crown'd or plac'd on the Throne by the Estates of the Realm he is then Legal King and has the Legal Authority as the Royal Estate and Dignity was owned to be in Henry the VIth when the Duke of York claimed the right to the Crown M. I am not yet convinc'd I am mistaken in this matter for waving at present any Natural or Divine Rights of Princes I think this Act of Henry the VIIth if suppos'd to be now in force is no ways to be reconcil'd with the former declar'd Laws and Statutes of the Kingdom much less can this last pretended Act of Recognition of King William and Queen Mary reverse the Statute of Recognition made to King Iames the First whereby the Parliament does not only own him for true and lawful King by descent from Henry the VIIth and Edward the IVth but also engaged themselves and their Posterities to his Majesty and his Royal Progeny for ever And they do likewise conclude in these words I have not yet mention'd which Act if Your Majesty shall be pleased as an argument of your gracious acceptation to adorn with your Majesties Royal Assent without which it can neither be compleat and perfect nor remain to all Posterity according to our most humble desires as a Memorial of your Princely and tender affection towards us we shall add this also to the rest of our Majesties unspeakable and inestimable benefits Here they plainly acknowledge these two things First that the Crown descendâ— by proximity of blood and that immediately even before any Ceremony of Coronation or otherwise so that there can be no inter-regnum or vacancy of the Throne and accordingly it is a maxim in Law that Rex non meritur Secondly That the Assent of the King is that which gives the life being and vigour to the Laws without which they are of no force therefore I shall plainly prove these Acts to the contrary to be void It is a Maxim in our Civil as well as your common Law ' that every Sâ—natus-Consultum or Decree of the Senate as also every Statute or Act of Parliament must be abrogated and repeal'd by the same Authority by which it was made since therefore that Act of the first of Edward the IVth whereby he was declar'd to be Lawful King as descended from Lâ—â—nel Duke of Clarence third Son of Edward the Third by Philippa his Daughter and Heir and that Henry the Fourth and Henry the Sixth who had successively held the Crown were Usurpers and only pretended Kings it would necessarily follow that none can after this so Solemn Law and Declaration lawfully succeed to the Crown of this Realm but such as have a true and just right as Heirs by blood according to the course of descent allow'd of by the common Laws of this Kingdom and therefore Henry the VIIth being an Usurper and enjoying no more than a Matrimonial Crown could not joyn with a Parliament in making any Law contrary to that of the first of Edward the IVth which had been so solemnly past and setled in Parliament by a King whose Title was by descent indisputable So likewise in the matter now in dispute between us I can never apprehend how a pretended Statute made in a Convention and not in a Lawful Parliament summon'd by the King can first declare the Throne vacant and then appoint those to fill it who certainly can have no just Title to it according to that Act of Recognition of King Iames which expresly declares that they themselves could not have made that Act to be compleat and perfect to remain to all posterity without his Royal Assent which being once past into a Law by a King whose Title was indisputable can never afterwards be alter'd if ever it can be at all but by a Parliament as legally call'd and that by a King whose Title is also as Legal as that of King Iames the First 's this Objection though I have often urg'd in other words yet could I never yet obtain a satisfactory answer from you F. Though I have already in part answer'd this Objection at our last Meeting and have also partly done it already in this yet since I see you so much insist upon it and do also urge it again in other words with a fresh
in Law since we find by the whole Course both of Law and History that the Statutes made by Kings de facto are as truly and as much Laws as those made by your Kings de jure and Attainders for Treason committed against them have been so far from being declar'd void that they could not be revers'd by any other means than by particular Acts of Parliament made for that purpose as I have already shewn you from divers instances both from History and Records Nor is your exception against the present Parliaments not being call'd by the Kings Writ of any force since I have already prov'd at our last Meeting from the example of the Great Council that assembled to recognize and ordain Edward the first to be King when he was in the Holy-Land as also by the Parliaments of Edward and Richard the Second by which they were deposed and Edward the Third and Henry the Fourth declar'd to be their Successors That those Parliaments could not be summon'd by those Princes whom they so recogniz'd and therefore though they were call'd by the Writs of the former Kings yet their Authority determin'd as to be the Parliament of that King that call'd them upon his ceasing to be King and therefore must owe their sitting longer wholly to the Authority of him they had already declared King whose Presence and Authority was then looked upon as sufficient to give them power to sit and make Laws with the succeeding King though they were never summon'd by him To these Parliaments I may add that of the first of King Charles the Second which called home the King and after his return made several Statutes both publick and private which stand good to this day so that to conclude you have no reason either from Law or History to maintain that there can be no vacancy of the Throne or that none can be declar'd King or Queen but in a Parliament summon'd by the Writs of that Prince whose Title they are to recognize M. I shall not deny the matters of Fact to have been as you lay them as to the Great Councils or Parliaments you mention but in answer to this you may remember that as for those Parliaments call'd in the name of Edward or Richard the Second there is no Procedent to be drawn from them because they serv'd only to depose their Lawful Kings and to set up those who had no right at least as long as they liv'd and you very well know that any coersive power in the two Houses of Parliament over the King is expresly renounc'd and declar'd against in the Parliament of the thirteenth of K. Charles the Second as I have already shewn you but as for the Convention which was call'd in the first year of that King I have also given you my judgement of it that though they might lawfully meet to vote the return of their Lawful Sovereign and to recognize his Title yet were they not for all that a lawful Parliament as to the raising of Moneys or making of Laws and therefore what ever they did to both these they were fain to be confirmed by the Parliament of the 13th I now mention'd But indeed I cannot but admire as this mungrel hodge podge course of Succession which you now suppose to take place in England for you cannot deny but the Crown is hereditary and has been always claim'd as such for near 500 years and yet for all that when ever an Usurper and a Parliament shall agree together he to take the Crown by force and they to recognize his Title as soon as he pleases to call them he must then be looked upon as a lawful King and the just and rightful Title of the true King or lawful Heir of the Crown shall be so far destroy'd as that Allegiance must be due to this Usurper though perhaps he obtain'd the Crown by the most horrid vilanies in the World as the deposing and murthering of his Lawful Sovereign as Henry the IVth did and which would also have been the case of Oliver Cromwell had he ever taken upon him the Title of King so that is to set on foot at once two contrary legal rights a legal right and title to the Crown by descent of blood without a right to exercise the Authority belonging to a King and a legal right to wear the Crown and exercise the authority belonging to it without any antecedent legal right to the Crown it self which would indeed render the legal authority in England to be like the right that men have to those Creatures that are ferae naturae which belong to him who can get them into his power for as to the consent or recognition of Parliament I look upon that as a meer â—auble since your self cannot shew me any Usurper since the Conquest though never so wicked and notorious who ever fail'd to have his Title so recognized and confirmed by Parliament as you your self cannot deny which methinks is a high derogation from the Dignity of a true Hereditary Monarchy such as ours either is or at least ought to be F. I shall reply but this once upon this head since I see there can be nothing new said upon it and therefore you your self are forâ—ed to repeat what you have already â—urged at our last Meeting only you strive to support it by fresh Authorities therefore as to the Parliaments which deposed King Edward and Richard the Second I cannot blame you for denying them to be lawful precedents because they make directly against your opinion but you say nothing to that of the first Great Council or Parliament of Edward the First which not only ordain'd he should be King but also appointed all the Great Officers of the Kingdom which were to govern it in his absence but you may deny the authority of those Parliaments of the first of Edward the Third and first of Henry the Fourth as much as you please in a Chamber but if you should do the like at Westminster-Hall against any Act of Parliament because made whilst Edward or Richard the Second were living you would soon be over-rul'd and told that those Laws had still continued in force and unrepeal'd and it did not belong to private men to question those Acts that have been hitherto receiv'd for Law But as for what you have said against the authority of the Acts of that Parliament that brought in the King I have already prov'd that they were only confirm'd 〈…〉 cantela and that they had been good without it appears by this that all their private Acts though never confirm'd in the following Parliament are still in force But if the solemn Recognition of a Kings Title by Parliament be such a bauble and so easily obtain'd as you suppose I may say the same of that Act which recognized King Iames the firsts Title that it was done meerly out of flattery upon his Accession to the Crown nor can you reply that they might do this because he
was the only right Heir this is to beg the question since if he had not been so it would have been all one as you your self confess As for the rest of your Arguments which you draw from the different means which our Law allows for Princes succeeding to the Crown which you call a mungrel hodge podge course of Succession and that it derogates from the Dignity of a true Hereditary Monarchy to which I shall only say if now our Law has established it so no private Man ought to judge otherwise for nemo debet esse sapientior legibus is a maxime as old as true but indeed though our Laws do establish a legal right in the present Possessor of the Crown when once Crown'd and Recogniz'd by Parliament since they will not allow the Parliament to judge of or examine the Kings Title or by what means he attain'd the Throne yet this does not to alter the ordinary hereditary course of Succession for the Law still looks upon the Crown as Hereditary and the change of the Person or Royal Family does not make the Crown cease to be so and therefore whoever has possession of the Crown has an Hereditary Crown and as such may leave it to his Heirs as long as they can keep it as is plain from the example of the three Henries who succeeded each other and who had not only Allegiance sworn to them but they who acted contrary thereunto were judged and executed as Traytors so that the Law did all it could to maintain the Crown in the right line of Succession and if any Kings have gain'd it by Usurpation though the Parliament have own'd the Authority of such an Usurper yet have they not thereby approv'd the action and you your self must acknowledge a great difference between these two since you have more than once acknowledged that an Usurper or King in possession has a good Title to a Crown in case all the right Heirs are extinct or by their not claiming it for any long time are suppos'd to have made a â—acit cession of their right since it is not so much to the Person as to the Authority which we grant to be from God that we pay our obedience But let us also for once suppose that there may be a legal Title to a Crown without a right to exercise the Authority belonging to it and a legal right to wear the Crown and exercise the Authority belonging to it without an antecedent legal Right to the Crown it self this is no such absurdity as you suppose if you please to consider that allow'd distinction between jus ad rem and jus in re with the reason of it for t is an approved distinction in Law that one may have a right to a thing and another a right in it the one is a right of a legal claim the other of a legal possession and that this may and must be in all Civil Governments and meer legal Rights appears from the different Laws and Customs on which such different rights are founded This I have hinted before but must now explain it more particularly in all Civil Societies there must be particular Laws to determine personal and particular Rights and whatever is due to any Man by such Laws is his legal Right But yet we know these Laws can determine no controversie without a living Judge for if every Man were to judge for himself every Man will make the Law to be on his side and then we had as good have no Laws at all and therefore the Fundamental Laws of all Societies which is superior to all particular Laws is this That the last and final Judgment of Authority shall be taken for Law and that shall be every Man 's right as to all the Effects of Law which is thus adjudged him whoever calmly considers these things will find that it is impossible it should be otherwise without overturning all Civil Governments And this I have proved to you from the Example of a right owner of an Estate when outed of his Possession by a Verdict of a Jury and an unjust Judgment in one of the King's Courts that no Man ought to restore him by force to his Possession till he has again reverst that unjust Judgment given against him M. Though I grant this is true in the Case of private Persons and their Inheritances yet is it not so as to Princes who hold their Crowns by a Title superior to the ordinary Municipal Laws and therefore are not only Kings by Law but by Divine Right and a Fundamental Constitution of the Government and so cannot have their Title adjudged by Parliament as you suppose for our best Divines have unanimously concluded out of Scripture that all lawful Kings and their Royal Power is from God by Divine right and is not from the People no not in Elective Kingdoms such as Poland for Example for even there the conferring of the Royal Authority is from God and not from any Law made by the People and neither they nor their Representatives have any thing to do to judge of it for I would gladly know who made that Law which made the King certainly the King did not make it for that Law which made the King must of necessity precede and be before the King who had his Royal Power and Kingly Office from that Law F. I see you are very hard put to it since you are again forc'd to flie back to your old Covert of a Divine Right in Kings which is not to be deriv'd from any Law made by the consent of the People and if this be true I desire you would show me how Kings can at this day owe their Crownâ— immediately to God and not to the Law since God does no longer confer Kingdoms by any express Designation of the Person but by the ordinary course of his Providence and then pray tell me why all Princes whatsoever when they are once seated in the Throne let them come by it which way they will must not derive their power alike from God and consequently Kings by an unjust Conquest or Usurpation are as much from God as those who ascend the Throne by the Consent or Election of the People for if the Peoples consent do no more then design the Person but that it is God alone which gives him his Authority then which way soever he obtains this power of the Sword which is the onely sign of God's conferring this Authority it will be also the Ordinance of God and consequently their present Majesties being once seated in the Throne are upon these principles as much to be obey'd as the Ordinance of God as King Iames or any other Hereditary Monarch whatever But if you do not like this Doctrine and tell me of a legal Successive right which King Iames and his right Heirs have to the Crown according to the Fundamental Constitution of the Nation this is plainly to own the King to be so by the Law of the
in pleyn Parliament that is in full Parliament where both Lords and Commons were present that the Proceedings of the Lords against those that were no Peers should not be drawn into Example c. Now pray see the Commentaries of the most Learned and Reverend Author of the Grand Question upon these words in this Record This hath all the formality of an Act of Parliament and therefore all the Estates were present so likewise in the same year in the next Roll but one Accorde est per nostre Seigneur le Roy son Counsell in Plein Parliament which was an Act of Parliament concerning those that had followed the Earl of Lancaster So in the 5 th of this King we have the particular mention of the Bishops as some of those who make a full Parliament Accorde est per nostre Seigneur le Roy Prelates Counts Barons autres Grands de Roiaâ—me in pleyn Parliament So in the 6 th of Edward the Ill d the Arch-Bishop of Canterbury made his Oration in pleyn Parliament which is thus explained en le presence nostre Seigneur le Roy tous les Prelats autres Grantz And in another Roll si est accorde assentu per tous in pleyn Parliament and who these were we are told in the same Roll viz. les Prelats Counts Barons tous les autres Summons à misme Parliament Now this is the clearest explication of these words in full Parliament viz. in the presence of all those who were Summon'd so that if the Commons were then Summon'd to this Parliament as certainly they were they must have given their Assents under the Title of Grantz since the Prelats Earls and Barons were particularly mention'd before To Dialogue the 10 th p. 706. after these words be Reformed by them or not read thus And that King Iames the First himself was satisfied of this Original Contract may appear by his own words in a Speech to both Houses of Parliament 1609. where he expresly tells them that the King binds himself by a double Oath to the observation of the fundamental Laws of his Kingdom Tacitly as being a King and so bound to Protect as well the People as the Laws of his Kingdom and expresly by his Oath at his Coronation so as every King in a setled Kingdom is bound to observe that paction made to his People by his Laws in framing the Government as agreeable thereunto according to that paction which God made with Noah after the Deluge c. To Dialogue 12. p. 874. after their Successors add this So that all the Modern Acts of Parliament for intailing the Crown being made and ordained by the Counsel and Assent of the Lords and Commons are so many plain declarations and evident Recognitions what the Fundamental Constitution of the English Government was in that grand Point To Dialogue the 12 th p. 898. after the words of the said Parish read thus and that not only all the Private Acts of that Parliament but some Publick ones also tho' never confirmed in the following Parliament of the 13th of Charles the Second are yet held good in Law appears by these that follow viz. 1. An Act for Continuance of Process and Iudicial Proceedings Continu'd By which all Writs Pleas Indictments c. then depending were ordered to stand and proceeded on notwithstanding want of Authority in the late Usurpers and therein it was farther ordained that Process and Proceedings in Courts of Justice should be in the English Tongue and the generall Issue be Pleaded till August 1. 1660. as if the Acts made during the Usurpation for that purpose had been good and effectual Laws And upon this foot only stand many Fines Recoveries Judgments and other Proceedings at Law had and passed between April 25 1660 and August 1. 1660. 2. An Act for Conforming and Restoring of Ministers This Act is usually to this day set forth and pleaded in Quare impedits tho' it was said to be refused upon debate to be confirmed in the House of Commons 13th of Car. II. when divers other Acts of the same time were confirmed yet both these Acts having no other Authority but from that Convention as you call it have been Judged and Constantly allowed to be good Laws for above these 30 years To Dialogue the 13 th p. 966. after these words were still alive read this And to shew you that the King and Parliament have deprived even Bishops of their own Communion and that such deprivations have been held good and that the King hath nominated new Bishops upon the vacancy you may see in Dr. Burnets History of the Reformation and in the Appendix to it where you will find a memorable Act of Parliament of the 25 th of Henry the VIII before his departure from his obedience to the See of Rome whereby Cardinal Campegio and Hieronimo de Ghinicci were deprived of the Bishopricks of Salisbury and Worcester which they had held for near 20 years and Campegio had without doubt been installed in it when he was in England The Act it self being so remarkable I shall give you some passages out of it verbatim first the Preamble sets forth that whereas before this time the Church of England by the Kings most Noble Progenitors and the Nobles of the same hath been founded ordained and establish'd in the Estate and degree of Prelacy Dignities and other Promotions Spiritual c. which sufficiently confirms what I but now asserted that all the Bishopricks were founded by our Kings with the consent of their Grand Councils or Parliaments and then it proceeds to recite that whereas all Persons promoted to Ecclesiastical Benefices ought to reside within the Realm for Preaching the Laws of Almighty God and keeping hospitality and since these Prelates had not observed these things but lived at Rome and carried the Revenues of their Bishopricks out of the Kingdom contrary to the intention of the Founders and to the great prejudice of the Realm c. in consideration whereof it is Enacted by the Authority of this present Parliament that the said two Sees and Bishopricks of Salisbury and Worcester and either of them henceforth shall be taken reputed and accounted in the Law to be void vacant and utterly destitute of any Incumbent or Prelate and then follows a Clause enabling the King his Heirs and Successors to nominate and appoint Successors being the Natives of this Realm to the said Sees and the King did nominate Successors according to the said Act. A Table of ERRATA THE Authors Occasions not permitting 〈…〉 Town whilst most of these Dialogue were in the Press begs pardon for the many Erratas in some of them and desires you to Correct such gross ones that alter or disturb the sense viz. Dial. 1. p. â—0 l 24. for Author r. Authority p. 52. l. 37. for 4th r. 5th p. 36. l. 38. for Rights r. Rites Dial. 2. p. 80. l. 25. del hundred r thousand p. 80 l. 22. d. Greek p. 84.
limit our Saviour sets to our Duty to Princes This I hope is sufficient for the Explication of our Saviours Answer to the Pharisees and Herodians which evidently contains the Doctrine of Obedience and Subjection to Princes enforced on us by the Authority of our Saviour himself F. I shall not dispute that this Instance of our Saviour doth enjoyn the Iews to pay Tribute and render all those Rights and Dues to Caesar as the Supream Power which are necessary to it's Essence but you seem to me to stretch this Prerogative a great deal too far when you thus suppose an absolute Subjection to Princes without any resistance to be as plainly enjoyn'd by our Saviour in this Law as paying Tribute For the Reason you give for it viz. that Subjection and Non resistance is as essential a Right of Soveraign Power and as inseparable from the Notion of it as any can be and that it is so acknowledged by the Laws and Customs of Nations is the thing which I deny and which having been the Subject of our last Conversation is still the thing to be proved and I think I have there sufficiently proved that absolute Non resistance is no Essential Right of Soveraign Power nor inseparable from the Notion of it Since by asserting it no just Right of Soveraign Power will be thereby destroyed or taken away but rather confirm'd and that I may make it out yet plainer by a Familiar Instance a General of an Army hath an absolute Power over the Lives of his Souldiers that transgress his Rules of War or Military Discipline but suppose that in a Mad or Drunken sit he should command some Troops of his Guards to cut the Throats of all the rest of the Army and they be such obedient Coxcombs as to go about to put this order in Execution doth it therefore derogate from the absoluteness of his Power as General if the Army will not stand still and let three or four hundred fellows take away all their Lives But that this Principle of Passive Obedience in your Sense of suffering Princes or other Supream Powers to destroy or inslave them is so far from being acknowledged by the Laws and Customs of all Nations that as I think I have proved it to be contrary to the Laws of Nature and Reason so I doubt not but I can much easier make it out by the Laws and Customs of all Nations as well Barbarous as Civiliz'd to be both unreasonable and impracticable And that it is otherwise determin'd by St. Paul I desire you to prove it to me when you come to make use of the 13 th to the Romans so much insisted upon by those of your Opinion But before I make an end with this Text we are now upon I cannot but take notice of your last Assertion That by rendring to Caesar the things which are Caesars God excepts nothing from Caesar 's Right which by the Laws of Nations is due to Soveraign Princes but what is a Violation of and Encroachment on Gods Right and Soveraignty that is we must pay all that Obedience and Subjection to Princes which is consistent with our Duty to God Now if this be the only limit that our Saviour sets to our Duty to Princes as you suppose I wonder by what Law the Learned Doctor from whom you borrow this Principle as also those other Clergy-men of the Church of England could justifie thelr refusing to read the Kings late Proclamation of Indulgence or Toleration for if the King as they own in the Oath of Supremacy is the only Supream Governour of his Dominions in all Things or Causes whatsoever He must likewise be the Caesar here meant in this Text and consequently an Active not Passive Obedience ought to have been paid to this Declaration Since you say that Obedience is by the Law of Nations due to Soveraign Princes to whom we must pay all that Obedience and Subjection which is consistent with our Duty to God and I hope you will not say that this Declaration was inconsistent with that Duty or was any Violation or Encroachment upon Gods Rights of Soveraignty M. As for your last observation upon those Clergy men who refused to read the Declaration I must confess I have according to my Civil Law Maxims no excuse ready for them since with us it is always true in this as well as other absolute Monarchies Quicquid Regi placuit Legi's habet Vigorem Much less can I reconcile it with that unbounded Supremacy which the Oath of Allegiance as also the Opinions of most modern Judges have placed in the King in all Ecclesiastical Matters but indeed I can least of all reconcile it with this Assertion you now mention which I confess I have taken from divers Sermons and Treatises that have been Preaâ—ht and Printed of late by our City Divines to whom I shall leave it to Answer this Objection but to proceed with the design in Hand I shall come in the next place to prove an absolute Subjection without Resistance to be due to the Soveraign Power from our Saviour's rebuke to St. Peter when he drew his Sword and struck a Servant of the High-Priest and smote off his Ear which is as plain a Declaration against Resistance as Words can make it Then said Iesus unto him put up thy Sword unto his place for all they that take the Sword shall perish by the Sword For the understanding of which we must consider upon what occasion St. Peter drew his Sword for we must not think that our Saviour doth absolutely forbid the use of the Sword which is to destroy all Civil Governments and the Power of Princes and to proclaim impunity to all which Villanies that are committed in the World The Sword is necessary to punish wickedness and to protect the Innocents In the Hands of Princes it is an Instrument of Justice as St. Paul tells us That they bear not the Sword in vain But are the Ministers of God revengers to exâ—cuâ—e wrath upon him that doth evil In the Hands of privaâ—e Persons it may be lawfully used in Self-defence thus our Saviour a little before his Crucifixion gave Commission to his Disciples to furnish themselves with Swords tho' they parted with theâ—r Garments for the Purchase Which we suppose was not designed as a meer modish and fashionable thing but to defend themselves from the Private assaults of Robbers and such like Common Enemies who as Iosephus tells us were very nuâ—meroâ—s at that time For no Man wanteth Authority to defend his Life against him who hath no Authority to take it away But the Case of St. Peter was very different He drew his Sword indeed in his Masters defence but against a lawful Authority The Officers of the Chief Priests and Pharisees came with Iudas to the place where Jesus was to seize on him This was a lawful Authority tho' employed upon a very unjust Errand but Authority must not be resisted
of Government can have any for that which is done by a person who has no Authority can lay no obligation upon us whence then has he this Authority since he has no legal Right to the Throne not sure from the presumed consent of the King de jure which is nonsence to suppose but from the possession of the Throne to which the Law it self as well as the Principles of Reason have annexed the Authority of the Government M. I am so far of Bishop Sanderson's Opinion in his Case concerning taking the Engagement that when Usurpers or Kings de facto have taken upon them the Government they are obliged to administer it for the common good and safety of the People and as far as that comes to we are also obliged to live peaceable under them and to yield obedience to them in things absolutely necessary for the upholding civil Society within the Realm such as are the defence of the Nation against Foreigners the furtherance of publick Justice the maintenance of Trade and Commerce and the like But sure this is no argument for transferring our Allegiance from the lawful King and his Heirs whilst they are alive and therefore I must still suppose that this Statute of the 11th of Henry the VIIth can do no service to the present Government because it s vertually repeal'd by several Statutes as first by the 28th of Henry the VIIIth concerning the Succession of the Crown wherein it is expresly provided that if any of his Children should Usurp upon each other or if any of those to whom he should bequeath the Crown by his last Will or Letters Patents should take the Crown in any other manner than what should be thereby limited that such Children or others should be guilty of Treason for so doing Now it is plain such Treason must only have been committed against the right Heir and consequently the person so taking the Crown was not to be looked upon as King de facto It is also vertually repealed by the Statute of 1 o Elizabeth by which we are obliged to swear to be true to the Queen her Heirs and Lawful Successors i. e. those who have a right to the Crown by proximity of Blood as also by the Oath of Supremacy Enacted in the 4th of King Iames by which we are likewise sworn to bear true Allegiance to his Majesty his Heirs and Successors from which Oaths I argue first that if we are sworn by Act of Parliament to pay Allegiance to the Heirs of a King de fure who never were in possession than a fortiori to a King de jure who besides the legality of his Title had been actually recognized as Sovereign and enjoy'd an uncontested administration of the Regal Power Secondly If our Laws oblige us to swear subjection to the Heirs c. of a Rightful Prince than by undeniable consequence we are bound not to translate our Allegiance to those who are unjustly set up by the People for without all question the words Heirs and Lawful Successors were made use of on purpose to secure the hereditary Rights of the Monarchy and to prevent all Usurpations upon the direct Line And since by vertue of that Statute which framed the Oath of Allegiance and Supremacy we are not to acknowledge any pretended Governours to the prejudice or disinherison of the Heirs of the King de jure then most certainly we ought not to do this in opposition to the King de jure himself so that now we can have no pretence to make Right the necessary consequence of meer possession of the Crown any more than in private Estates F. In the first place I agree with you in what you have said that Kings de facto are to be obeyed in all things tending to the publick good of Society but then it will also follow that Allegiance is due to them from that great Law of prosecuting the same publick good since it were much better that Kings de jure should lose their Right than that a Nation should be involved in a long and cruel War to the weakning and impoverishing thereof and to the destruction of so many thousands of ordinary as well as Noble Families as was seen in the long Civil Wars between the Families of Lancaster and York so that I cannot but think it would have been much better for this Nation if that Family had continued to Govern us unto this day rather than that Edward the IVth should have obtained the Crown with so great a destruction of the People of this Nation and so great cruelty as was then exercised upon King Henry the VIth and the Prince his Son as you may read in the History of those times But I come now to answer the rest of your Arguments whereby you will prove this Statute of the 11th of Henry the VIIth to be vertually repeal'd and here by the way I must tell you Gentlemen of this Opinion that I cannot but admire your wondrous sagacity in discovering this Act to be repeal'd when my Lord Coke and all the rest of our Lawyers do still suppose it to be in force but indeed the reason you give for it is not urged like a Common Lawyer and therefore I think it will signifie little for though I grant that an Act of Parliament may be vertually repeal'd by a subsequent Act yet it is only in such Cases where they are absolutely contradictory and inconsistent with each other but if they are not so an Act of Parliament can never be said to be vertually repeal'd and therefore I shall now show you that notwithstanding the Statute of Henry the VIIIth and the Oaths of Supremacy and Allegiance you have now mention'd this Statute may very well continue in force and unrepeal'd First as to the Statute of Henry the Eighth whereby it was declar'd Treason for any one of his Children upon whom the Crown was setled to Usurp upon each other yet that part of the Statute which makes this Treason was repeal'd by the first of Edward the the Sixth and by the first of Queen Mary or admit it had not been so yet this Clause in the Statute of Henry the Eighth would haue been absolutely void in it self against any such Usurper when actually possessed of the Crown since it was held by all the Judges in the Case of Henry the Seventh who at the time of his coming into England stood attainted by Act of Parliament that this attainder need not be reversed since Possession of the Crown takes away all precedent defects But as to the Statutes of the first of Queen Elizabeth and the fourth of King Iames by which the Oaths of Allegiance and Supremacy were Enacted I conceive neither of these Oaths can amount to a vertual repeal of this Act for though I grant one end of these Oaths may be to secure the right of the King or Queens Heirs by lineal descent yet it will not therefore follow that a King de facto