secure in what he enjoys but by it nor can he have a right in a Countrey that is already possess'd to property but by owning the Government of that Countrey and when by enjoying the Rights and Priviledges of the Subjects of that Common-wealth he has own'd himself a member of it and a Subject to its Government he is then bound to maintain this Government and also the King that administers it from a double obligation the one particular in respect of himself and that protection he receives from him the other more universal proceeding from that duty which is incumbent upon every particular Subject to maintain the peace and happiness of the Common-wealth as long as he continues a Member thereof So that he is bound never to disturb it as long as the main ends of Government can be had and enjoy'd therein and this is the only means that I know of by which any man except by express Oaths and Promises can consent to become Subject to any single person or Government Now this tacit consent of particular persons being separately and singly given unthinking people take no notice of it and suppose they are as naturally Subjects as men and consequently that they have no more right to free themselves from their Subjection than from their Humane Nature nay must suffer themselves to be destroyed rather than endeavour it let the Government oppress them never so unmercifully which is indeed to reduce men to the condition of brute Beasts who belong to this or that Owner because he either bought them with his Money or else because they happen'd to drop from their Damâ— upon his ground From what has been here spoken I think we may deduce this general Conclusion that every ordinary Subject who enjoys the common benefits and protection of any Government iâ— bound in gratitude not only to obey it but also to be true and faithful to it during the time he lives under it and is bound likewise not to conspire against it and therefore that Oaths do not alter the nature of Allegiance or make it due where it was not before or any ways extend it but only add a new tye to pay that Allegiance which is due upon the account of protection He that lives under a Government though he has not sworn to it owâ— it the same Allegiance as he that has and if he should deny his Allegiance to it would be equally guilty of Treason though not of Perâ—ury It is evident by the universal practice of Mankind that no Subjects ever thought themselves obliged by those Oaths of Fidelity which all Governments have constantly imposed on them when they could not be protected by them and that this failure of Protection did not proceed from any fault in the whole Nation or People themselves And this may be prov'd by the common and constant practice of all the Subjects of Europe for who does not know that the Subjects of the King of France's last Conquests in Flanders have been forced to swear Allegiance to him though they were satisfied that his Title was unjust and that their Natural Sovereign the King of Spain to whom they had formerly sworn Allegiance is still living We have had also a late Example of the Subjects of the Duke of Hâ—lsâ—ein Goâ—torp who having both his person taken Prisoner and his Territories unjustly seiz'd upon by the King of Denmark in time of Peace the Subjects of the said Duke were forced to swear Allegiance to the King notwithstanding their former Oath to their Master nor do our Modern Casuists as I know of blame them for so doing And why the People of England should be tied to harder terms than all the rest of Europe I wish you could give me a sufficient reason since the Legislative Power of England wherein it is certain the People have a share are presum'd to recede as little as possible from natural equity and therefore design by imposing such Oaths only the good and preservation of the Civil Society whose interest it is that they who have the publick Administration of Affairs should not be disturbed but it is not at all material to that end whether this or that Man hath this power provided they are well managed nor can it without the greatest absurdity be suppos'd that such numbers of Men as Societies are compos'd of who are by nature equal should oblige themselves by the most solemn ties to become most miserable by living without protection nay to lose even their lives rather than own the Government that can and does protect them for no other reason but such an extraordinary fondness to this or that Person or Family as to fancy to be inseparable from him not to the necessaries or real conveniencies of life but only an Office for Government is no other which is but an imaginary happiness I grant therefore that People should be true to those that have the present administration of Civil Affairs is all that all Oaths of Fidelity require and it is evident from the intent of it that the late Oath of Allegiance required no more and to extend it farther than the King in Being is not reconcilable with the reason end and design of paying obedience which is the peace and happiness of the Civil Society which can never be maintain'd if people may for the sake of a single person disturb him that has the administration of their common Affairs and it would require impossibilities because private persons are incapable of paying Allegiance to a King when out of possession of the Government M. Notwithstanding what you have said I think I am able to convince you of divers great mistakes you have now committed in this Discourse of Natural Allegiance as also in the obligation we are under by the Oath of Allegiance to King Iames. For first as to Natural Allegiance you are very â—old to suppose there is no such thing when all your Law-Books hold so expresly that there is I am sure this is to be guilty of the fault for which you have already reprov'd me of being wiser than the Laws you are also much mistaken to suppose that this Natural Allegiance meerly springs from hence that the persons oblig'd by it are only such as are born within the Kings Dominions for persons born without the Realm may be also his natural Subjects as are the Children of Embassadors born beyond Sea and the Children of Aliens born within the Kingdom are not therefore Natural Subjects of the King so that the meer circumstance of Birth does not alone entitle any one to the priviledges of a Natural Subject nor consequently bind him to all the duties of Natural Allegiance But it is therefore called natural in our Laws because as the best Lawyers have affirm'd it is â—ounded upon the Law of Nature which gives the Sovereign power a right to the Allegiance of every one who is Born under the Jurisdiction of it As every Son is born a Subject to his Parents
And of this he here gives us several Examples of different customs amongst Nations in making War upon each other according to diverse forms or tacit Agreements whereby War may be managed with a little Cruelty as may be but thus he proceeds These Customs altho' they may seem to contain some Obligation as arising from this sort of Tacit agreement amongst Nations yet if any Prince shall wage a lawful War or neglect them or should do quite contrary to them he would not be guilty of any sin against the Law of Nature but only of a piece of Roughness or Incivility that he did not make War according to those Rules of Honour which are used among them by whom War is looked upon as a liberal Art And a little farther proceeds thus Amongst the principal Heads of the voluntary Law of Nations Grotius reckons the right of Ambassadors where we also suppose that by the very Law of Nature Ambassadors are inviolable even with the Enemy as long as they appear Ambassadors and not Spyes and do not contrive Plots against those to whom they are sent and having shown the necessity of Ambassadors in order to Peace he thus goes on but there are other priviledges Attributed to Ambassadors especially to those who reside in a place rather to fish out the Secrets of another State than for Peace sake those priviledges depend from the meer indulgence of that Prince to whom they are sent and so if it seems good to him may be denied them without the violation of any Right if he will likewise suffer that his own Ambassadors should be Treated in a like manner M. I see whether this Author tends but do not understand what use you â—an make of it to your purpose F. But I will quickly shew you if you please to have a little Patience and therefore to apply what I have now read to the matter in hand in the first place it is apparent from this Author that the Law or Custom of Nations hath no Obligation as such but only as it agreeth with the Law of Nature and the Law of God and what Laws of Nations are founded on the Law of Nature can only be tryed by some rule which certainly is not to be learned from the Knowledge of the Customs or Laws of all Nations since who is able to know them all And therefore these Laws must be tryed either by the natural light of a Man 's own Conscience or else by considering whether this or that practice of a Nation conduces to the Honour or Service of God or the common good and happiness of Mankind and so may be known as well by the unlearned as the learned Now I suppose you will not affirm that this Law of the absolute Property and Dominion of Fathers in and over their Children can be discovered by either of these ways or that a Mans Conscience will tell him that it is his duty to let his Father Kill him or Sell him or use him like a Brute without any contradiction or resistance And as for the other I think I have sufficiently proved that this absolute power which you assert of Fathers over their Children doth not proceed from that great Law of Nature viz. the common good and preservation of Mankind to which the practice of it may prove very destructive which if proved I think I may easily answer all that you have now said about the particular Customs or Laws of diverse Nations concerning this Matter tho' your Instances were many more than they are For in the first place as for those you alledge out of the Scripture they do as I said before only regard thâ— Municipal Laws of the Iews those of the Romans touching this matter did only concern those Common-wealths whilst they were in being and no other Nations whatsoever and for this opinion I have both Grotius and Pufendrof of my side for the former in the beginning of the Chapter last quoted after having set down the different Powers which Fathers may exercise over their Children according to their different Ages thus affirms as you may here see Whatsoever is beyond these Powers proceeds only from a voluntary Law which is different in diverse places so by the Law which God gave the Iews the Power of the Father over his Son or Daughter to dissolve their Vows was not perpetual but only endured as long as the Children were parts of their Fathers Family And by the same Rule I may add that Children were not reckoned as part of their Fathers Goods and to be sold by him or seized upon by Creditors for his Debts any longer than they continued Members of their Fathers Family and consequently were not seized upon as his Sons but Servants And I desire you to shew me an Example where ever among the Iews the Children after they were Adult and parted from their Fathers House were sold or seized as Slaves for their Fathers Debts And as for the Romans it is plain they acknowledged their Patria Potestas to be in use amongst them neither by the Law of Nature or Nations but only from their own Civil Law as appears by this Title almost at the very beginning of Iustininian's Institutions as I suppose you know better than I Patria Potestas est Juris Civilis Civium Romanorum propria The Text follows in these words as I remember Jus Potestatis quod in liberos habemus proprium est Civium Romanorum nulli enim alii sunt homines qui talem in liberos habeant Potestatâ—â— qualem nos habemus And therefore they would not permit strangers to exercise it over their Children within the City of Rome And if the Power of the Father among the Jews and Romans was not by the Law of Nature or Nations no more could it be so tho' exercised amongst never so many other Nations since if it were one of the Laws or Preceps of Nature it could never have been taken away or restrained by any Civil Law without the express Consents of all Fathers And as for your Instance of Cymon amongst the Athenians it makes nothing to this purpose since if I take it at the worst it maketh no more than that the Athenian Common-wealth dealt very ungratefully and Tyrannically with Miltiades and his Son and it might be that they kept him Prisoner as being Heir to his Fathers Principality in the Thracian Chersonnese out of which they supposed he might pay the Debt as the King with us doth often put an Heir in Prison for his Fathers Debts where he hath Assets by Descent But for all your other Examples unless they have a reason in Nature to support them they will no more prove that by the Law of Nations Fathers should have a Right of Life and Death or of selling their Children than if you should argue from the Common Custom amongst the Lacedemonians the Aborigines in Italy the Inhabitants of the Kingdom of Sophiris as amongst the Indians mentioned by Qu Curtius and
make a part of that great aggregate body of mankind they are in all points equal to them that is as the Parents have a right to Life Happiness and Self-preservation so have they likewise and consequentially to all necessary means thereunto such as Food Cloaths Liberty I mean from being used as Slaves which Principles if true will likewise serve for a farther proof against that absolute Property and Dominion you supposed to be conferred on Adam over the Earth and all things therein exclusive to that of his Wife and Children For if they had a right to a Being and Self-preservation whether he would or not so had they likewise to all the means necessary thereunto and he was not only obliged to provide Food and Raiment for his Children whilst they were unable to do it for themselves but also when they grew up to Years of Discretion they might take it without his assignment and this by Virtue of that Grant in Genesis I before quoted And God said Gen. 1. viz. to the Man and the Woman and in them to all mankind then in their Loins Behold I have given you every herb bearing seed which is upon the face of the Earth c. Behold to you it shall be for meat So that sure you were too rash in affirming with Sir R. F. That a Son a Slave and a Servant were all one at the first For I hope I have proved the Father doth not acquire any absolute Property in the person of the Son either by his begetting him or bringing him up for then I grant a Son and a Slave would be all one But if you please better to consider it you will find that Fathers were never ordained by God for perpetual Lords and Masters over their Children but rather as Tutors and Guardians till they are of Years of Discretion and able to shift for themselves God having designed the Father to beget and bring up his Child nor for his own interest or advantage only but rather for the Child's happiness and preservation which by the Laws of God and Nature he is bound to procure For as it is the Son's Duty never to do any Action that may make his Father repent his begetting or bringing him up so on the other side the Father ought not to Treat his Son so severely as to make him weaay of his Family much less of his Life It is the Apostle's Precept Ephes. 6.4 Parents provoke not your Children to wrath which certainly he knew they were apt to do or else that precept had been needless Now pray tell me if Adam had used one of his Sons whom he loved worse than the rest so cruelly as to make him a Slave instead of a Son and when grown a Man should have put him to all the servile and hard labour imaginable with scarce Victuals enough to live upon or Cloaths to cover him What must this Son have done Born all patiently Or else do you think it had been a damnable sin if he had fled into the Land of Nod to Cain his elder Brother M. To answer your Question I think in the first place it had for I do not only take Cain to have been the first Murderer but Rebel too and in the next place this Question is needless for it can scarce be supposed that ever Adam or any Father can be so wicked and ill-natur'd as to use a Son thus cruelly without some just occasion but if he had I think he ought to have endured any thing from his Father rather than have left him without his leave since I cannot see how Children can ever set themselves free from their Father's Power whether they will or no. F. If that be the condition of Children they are then instead of Sons as absolute Slaves as any in Turkey whenever their Father pleases But you have already granted that Fathers ought not to use their Children like Slaves nor to sell them for such to others And tho I have no great kindness for Cain yet I know not what warrant you have to call him Rebel I am sure neither the Scripture nor Iosephus mention his going to the Land of Nod as an offence committed against his King and Father Adam but rather as a piece of compliance or obedience to God's Sentence who had made it part of his Curse so to do M. I shall not much trouble my self whether Cain was a Rebel or not I only tell you what some Learned men have thought of his quitting his Country but as for other Children tho I grant their Fathers ought not to use them like Slaves yet if they should happen to do so I think such Children ought to bear it as a Judgment inflicted by God for their Sins and should not by any means set themselves free tho their Fathers use them never so severely since it is God's will they should be Born and continue under the power of such severe Fathers F. But pray Sir tell me what if this Son had fallen into the power of a Stranger who would thus make a Slave of him Was he likewise bound to bear this as a punishment from God for his Sins and might he by no means set himself free Since this could not happen without God's permissive Providence at least and I think you will sâ—arce prove it more in the Case of the Father unless you will allow God to be the Author of Tyranny and Oppression M. I Grant that a Man that is made a Slave to a Stranger by force without just cause given by him may set himself free by what means he can But I deny he hath the same Liberty in respect of his Father since the Father's power over him is from God and so is not the Stranger 's F. What power of the Father do you mean That of making his Son a Slave or of using him as a Father ought to use a Son The latter of these I very well understand to be from God but not the former And if the Father hath no such power from God I cannot see how it can be any Act of disobedience in a Son to look to his own Liberty and Preservation since Cruelty and Tyranny can never be Prerogatives of Paternal Power as you your self confess M. I grant indeed a Father hath no such Power from God to treat his Son thus cruelly but if he does I say again That God having ordained the Son to be absolutely subject to his Father he must endure it let the consequence of it be what it will And I suppose you will not deny but that in case of necessity as when a Father hath not wherewithal to nourish and breed up his Children he may sell or assign his interest in them to any person who will undertake to provide for their Nourishment and Education and that the Children so sold or assigned do thereby become absolute Servants to the person to whom they were thus assigned as long as they lived and why this should be
also for their own advantage and in hopes of having a share in what Goods of Estates they may leave behind them when they dye But if when they come to years of discretion they can better their condition by marrying and leaving their Fathers Family their Parents are bound in conscience to let tehm go since it is their duty to better the condition of their Children and not to make it worse Always provided that such Children either take care of their Parents themselves or else hire others to do it for them in case they want their assistance by reason of their old age Poverty or Sickness but if children may not quit their Fathers Families thô they are never so hardly or severly dealt with the consequence will be that Fathers may keep their children as Slaves as long as they live thô it were a hundred years or else may sell them to others to be used worse if possible the absurdity of which assertions and how contrary to the common good of Mankind I might leave to any indifferent Person to judge of Therefore I think I may very well according to the learned Grotius divide the lives of children into three Periods of ages The first is the Period of Infancy or imperfect Judgment before the child comes to be able to exercise his reason The Second is the Period of perfect Judgment or discretior yet whilst the child continues still part of his Fathers Family The third is after he has left his Fathers and entered into another Family or sets up a Family himself In the First Period all the actions of children are under the absolute Government of their Parents For since they have not the use of reason nor are able to judge what is good or bad for themselves they could not grow up nor bâ— preserv'd unless their Parents judged for them what means best conduced to this end yet this power is still to be directed to the principal end viz. The good and preservation of the Child In the second Period when they are of Mature Judgment yet continue part of their Fathers Family they are still under their Fathers Command and ought to be obedient to it in all actions which tend to the good of their Fathers Family and concerns And in both these Ages I allow the Father has a Right to make his Children work as well â—â— enable them to get their own living as also to recompence himself for the pains and care he has taken and the charge he may have been at in their Education and also to correct them in case they refuse to work or obey his Commands But in other actions the Children have a Power of acting freely yet still with a respect of gratifying and pleasing their Parents to whom they are obliged for their being and Education Since without their care they could not have attain'd to that age But this duty being not by force of any absolute subjection but only of Piety Gratitude and Observance it does not make void any act thô done contrary to their duty The third and last Period is when the Son being of years of discretion either by marriage or otherwise is seperated from his Fathers Family In which Case he is in all actions free and at his own disposal thô still with respect to those duties of Piety and Observance which such a Son must always owe his Father the cause thereof being perpetual M. I must beg your pardon if I cannot come over to your opinion notwithstanding all you have said in this long discourse since I cannot conceive how in any Case Children can naturally have a power or moral faculty of doing what they will without their Parents leave since they are always bound to study to please them and thô by the Laws of some Nations Children when they attain to years of discretion have a power and Liberty in many actions yet this Liberty is granted them by positive and humane Laws only which are made by the Supream Fatherly Power of Princes who can regulate limite or assume the Authority of inferiour Fathers for the publick benefit of the Common-wealth So that naturally the Power of Parents over their Children never ceases by any seperations thô by the permission of the transcendant Fatherly power of the Supream Prince Children may be dispens'd with or priviledged in some cases from obedience to subordinate Parents F. And I must beg your pardon Sir if I cannot alter my opinion in this matter for all that you have now said since you can give me no better Reasons than what you did at first and thô you say you cannot conceive how Children can ever in any case have a power or moral faculty of doing what they will without their Parents leave yet they may have such power in many cases whether you can conceive it or no. For thô I do grant that Children are always bound to study to please their parents yet doth not this duty of gratitude or complacency include a full and perfect Dominion of Fathers in the state of Nature over the persons of their Children and an absolute power over them in all cases whatsoever so that the Children can have no right to consult their own good or preservation however it may be endangered by their Fathers passion or ill nature since a Wife is always obliged to this duty of complacency to her Husband yet is not this so absolute but that in a State of Nature she may quit his Family in those Cases I have already mentioned and against which you had nothing to object and I deny your position that Children when they attain to years of discretion derive that power and liberty they use it many actions from positive Humane Laws only or that the power which Parents naturally have over their Children can never cease by any seperation but only by the permission of the Father For as for Bodin and divers others that have written on this Subject they do no more than follw others who have asserted this absolute power of Fathers upon no better grounds than the Civil or Roman Municipal-Laws without ever troubling themselves to look into the true Original of Paternal Authority or Filial Subjection according to the Laws of Reason or Nature And most Treatises of this Subject being commonly writ by Fathers no wonder if they have been very exact in setting forth their own power over their Children but have said little or nothing of the Rights of Children in the State of Nature and therefore I shall farther let you see that this duty of Children even of pleasing or obeying their Parents can only extend to such things as they may reasonably or Lawfully command For suppose that Adam had commanded some of his Sons or Daughters never to Marry you cannot deny but this command had been void that being the only means then appointed to propagate Mankind for when there then lay a higher obligation upon them to encrease and multiply than there is
resistance of our Prince be a Sin it is not the less but the greater sin the greater and the more formidable the resistance is and it would very much unbecome the gravity and sacredness of an Apostolical Precept to injoyn Subjection to private Christians who dare not who cannot resist alone but to leave a powerful Combination of Rebels at liberty to resist so that every Soul must signifie all Subjects whether single or united for whatever is unlawful for every single Person considered as a Subject is unlawful for them all together for the whole Nation is as much a subject to the higher Powers as any single Man Thus I am sure it is in our Government where Lords and Commons assembled in Parliament own themselves the Subjects of the King and have by publick Laws disclaimed all Power of raising any War either offensive or defensive against the King Let us now consider what is meant by the higher Powers 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which signifies the Supream Power in any Nation in whomsoever it is placed Whether in the King as in Monarchical Governments or in the Nobles as in Aristocratical or in the People as in Democracies At the time of writing this Epistle the Supream Power was in the Roman Emperours and therefore when St. Paul Commands the Roman Christians to be Subject to the higher Powers the plain meaning is that they should be subject to the Roman Emperour And thus St. Peter explains it Be subject to every Ordinance of Man for the Lords sake whether to the King as Supream 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the word us'd in this Text as to him who hath a Supereminent Power and is above all others as also unto Governours that are sent by him c. From which Text Epiphanius proves that subordinate Magistrates under the King are ordained of God And therefore that the Power of Under-Officers since it is the Ordinance of God ought no more to be resisted than the King 's from whom it is derived F. I hope I shall not be very tedious in answering your long Speech since a small share of Natural Reason and Grammar will do it therefore to be as short as I can I do freely acknowledg that not only private men but whole Nations are by this Precept of St. Paul to be subject to the higher Powers without any Rebellion against them as well as particular Persons as far as they are Powers ordain'd by God And therefore it is necessary that you should consider what is the true signification of the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which if it be once discovered you will find it carries its own limitation along with it for it excludes both the Usurpation of the supream Power and also the illegal and wicked Exercisâ— of it and of this Opinion is the Learned Dr. Sanderson in his Lectures of the Obligation of humane Laws where in his 5 th â—ecture § 12. as I remember he speaks to this purpose in answer to an Objection That then all those who have the Power of the Sword that is of compelling those who are under their Power to perform tâ—eir Commands ought then to be obeyed in Conscience His Answer is to this purpose That the Power he means and on which alone lyes the Obligation of Conscience is not that Power which the Greeks call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is Natural or Physical Power or Force or else that which is only de facto by which any one is able to do whatever he pleases without any hinderance but that Power which they call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is lawful Power or of Right to wit that which belongs to him that hath it by the Law of Nature Nations or Civil Constitutions by reason of the Person who bears it and in respect of those who are to be subject to it to this 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or lawful Authority the Apostle doth now so much press an exact Obedience that he names it five times in the space of three Verses but says not one word of this 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or force So far he And if our Translâ—â—ors of this place had rendred the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Authorities instead of Powers as they have rendered it in other Places and as they were forc'd to do in the first of Peter Ch. 3. Ver. 22. where 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 coming together in the same Verse they are forced to render the former word by Authorities and the latter by Powers which if they had constantly done they had effectually prevented the false application of this Text since no Man in his Wits can imagiâ—e that when a Prince for Example destroys oppresses and enslaves his Subjects he acts thus as a lawful Power or Authority or that belongs to him as Dr. Sanderson very well expresses it by any Natural or Municipal Laws much less can be the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 true or just Authorities or Powers which are here meant by St. Paul to be ordain'd by God and that these words may be so rendred instead of the Powers that are appears from Plato who more than once hath 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for vera Potestas true Power or Authority So that if this Text were to be understood in your sense this place of Scripture would serve to countenance and defend all the Tyranny Cruelty and Oppression which the most wicked Tyrants can commit all which must be ordained by God by vertue of this equivocal word Power But that you may the better see the absurdity of this Interpretation Pray let us put these things into the Text instead of Powers and see how it will run then Theâ—â— is no Tyranny Violence or Oppression committed by Princes or their subordinate Officers but what is ordained of God Whosoever therefore resists this Power resists the Ordinance of God You 'll say perhaps that this is not your meaning yet is it the true sense that must arise from your Interpretation of this place Which is no more than the Voice of God approving all just and lawful Governments and confirming from Heaven those Moral Duties of Submission Obedience and Non-resistance which were always due and must ever be to lawful Authority that is such as is agreeable to the Laws of God and Nature which you plainly see are not due to meer Force Violence or Cruelty for that is absolutely excluded out of the Text which will by no means admit of it The higher Powers ordained by God having no Commission from him for any of these wicked Purposes M. I doubt for all your Confidence that you very much mistake the sense of these Words for in the first place your or rather the Dr's Criticism between 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 will not do for they both signifie the same thing in Scripture either Force and Power or Authority 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 I will not be brought under
it But as for King Iames himself I desire to know of you what trust there can be put in him or what assurance he can give us for the maintenance of our Religion and Civil Liberty more than the renewing of those Promises and that Oath which he has already broken this being most likely to be the consequence of things if King Iames prevail I shall leave it to your self or any indifferent person to judge if what I have undertaken to prove be not as clearly made out as future things are capable of and are sufficient to deter any Man that loves his Religion or Country from joyning in such pernicious Designs M. I confess you have made a long and tragical Narration of the dreadful consequences that may follow both upon our Religion and Civil Liberties if the King prevail by the present assistance of the French or Irish Arms and were I sure of all this I should so far agree with you as to this point as never so joyn with them for the Kings return and yet for all that I can never look upon my self as freed from that Allegiance I owe the King as well by being born his Subject as from the Oath I have already taken to him and his Heirs as long as they are in being for I think I have already prov'd as well from Law as Reason That first the Bond of Allegiance whether sworn or not sworn is in the nature of it perpetual and indispensable Secondly that it is so inseparable from the relation of a Subject that although the exercise of it may be suspended by reason of a prevailing force whilst the Subject is under such force viz. where it cannot be imagined how the endeavour of exercising it can be effectually serviceable to restore the Sovereign power to the right owner for the establishment of that publick Justice and Peace wherein the happiness of Common-wealths consists yet no outward force can so absolutely take it away or remove it but that still it remaineth vertually in the Subject and obligeth to a vigorous endeavour whenever the force that hindereth it is over to the actual exercise of it for the advantage of the party to whom of right it is due and the advancement of the common good thereby upon all fit occasions Thirdly That no Subject of England that either hath by taking the Oaths of Supremacy or Allegiance acknowledged or that not having taken either Oath yet otherwise knoweth or believeth that the true Sovereign power in England to whom natural Allegiance is due is the King his Heirs and Lawful Successors can without sinning against his Conscience take any new Oath or do any other act whereby to transfer his Allegiance from the King or his Heirs to any other party who have no right to it and thereby put himself into an incapacity of performing the Duties of his bounden Allegiance to his Lawful Sovereign when it may appear to be useful and serviceable to him This is the express Opinion of the Learned Bishop Sanderson in his case of Conscience concerning the lawfulness of taking the Engagement which though he did not think absolutely unlawful because it might be interpreted in a dubious and qualified sence without abjuring the Kings lawful right to the Crown yet cannot this new Oath be taken in the like doubtful sence because as I have already prov'd the words in the Oath being to bear true Allegiance to King William and Queen Mary would be indeed a transferring of our Allegiance from our lawful Prince to others which is absolutely unlawful F. I am somewhat pleas'd to see you are so far come off from your bigotry as not to think your self bound to assist for the restoring King Iames as long as it is no otherwise to be done but by the evident destruction of our Religion and Civil Liberties but yet you say you cannot take the Oath because it is Bishop Sandersons Opinion as well as that of our best Lawyers that Allegiance is perpetual and untransferrable to another whilst the King or his Heirs are in being Which let me tell you speaking as a Lawyer since it may well be proved from this Statute as from the constant practice before that time that Allegiance was due to the King de facto and that by the judgement of all the Judges in the Reign of Edward the IVth but to speak of this matter either as a Civilian or a Divine I think we are freed from the former Oath both by the Law of Nations as well as the Law of God For as for natural Allegiance by which you suppose a man is indispensably Subject to the King in whose Territories he is born and that as long as he lives I can by â—o means understand that being born in a Country makes one a Subject for all his life to the Government of that Country or why being when born in a Country it should make one become a Subject more than being in the same Countrey at another time Besides common experience shews this to be false because whoever is born in a Country where his Parents are Foreigners may as it is allow'd by all leave that Country when he pleaseth but perhaps iâ— may be said he is a Subject to that Prince where his Parents were born but what if they were born under the same Circumstances or suppose his Parents are of different Countries as if a Dutch Woman and an English Man have a Child in France since France does not pretend to him which of the Nations can claim him for their Subject or must he be divided So that I can see nothing at all in this notion of natural Allegiance that can oblige any body in Conscience to observe it M. If then Natural Allegiance signifies nothing pâ—â—y tell me is no body oblig'd to obey the King or not to plot against him until he has taken an Oath of Allegiance to the contrary this would make mad work indeed and upon these Principles no man were bound to obey the King or his Laws and not to conspire against his Person or Government untill he had taken the Oath of Allegiance so that three parts of four of the Kingdom would be absolutely free from this great duty F. No Sir you are very much mistaken since I think I can found Allegiance to the King and Government upon a much firmer foundation than that of being born his Subject that I am so far from supposing that our obligation commences from our taking the Oath of Allegiance that though I think it may serve to inforce our former obligation to our King and Country yet does it not super-induce any new obligation thereunto for indeed our obligation to any particular Government may be made out from much surer Principles viz. That every person though he be born free yet is he for the sake of his own safety obliged to part with his liberty and put himself under the protection of some Government nor can he be
cited it to you at the beginning of this Evenings Conversation so that I confess I much wonder considering what he has there said how he can so positively maintain as he doth in the place you have also quoted that Allegiance is due to the King de Facto and not to Him de Iure whilst the former is possest of the Crown since it seems a flat contradiction to me how a Subject is to pay Allegiance as long as he lives to the King and his Heirs of life and member that is until the letting out of the last drop of our dearest Hearts-blood and that in all places whatsoever And yet that this Obligation should last no longer then whilst the King de Iure is in actual Possession of the Throne and therefore I think I have still very good reason to maintain that we are still oblig'd by our former Oath of Allegiance to King Iames so as not to take a new one to any other King unless we had been constrain'd to it by an absolute Conquest which you your self will not maintain to be our present Case F. I confess you have now argued this point very stifly and I confess what you have said carries with it the greatest appearance both of Law and Reason of any thing you have yet urged upon this Subject and therefore if I can fairly answer it I hope you will come over to my Opinion and take the Oath which is now required of you In the first place therefore I cannot deny that all you have said concerning a natural Allegiance due by Birth to the King is true according to our Laws and I do my self allow the thing viz. That Allegiance is due to him though not for the Reasons upon which our Lawyers have founded it but upon those I have already given and therefore though granting it was held to be Law in the Case of Dr. Story that his Plea of his becoming a Subject to the King of Spain was over-rul'd by the Judges and he refusing make any other Plea was condemned upon a Nihil Dicit Yet this being only a Penal Law I think obliges the Subject to the penalty if he be taken but does not oblige him in Conscience never to change his Prince or the Government he was born under without their consent let his Circumstances become never so uneasie under it and that this is so I need go no further then the late Case of the French Refugees who thought they are strictly commanded by their King not to stir out of France whatsoever persecution they may suffer yet I think no Man of Sense can blame them if being persecuted there they remove themselves into other Countries and become perfectly Naturaliz'd Subjects or Denisons at least in that Government whereunto they remove and this is so known a thing that no Casuist as I know of thinks it a sin in such Subjects of England as finding it for their advantage go over into another Country to settle and make their Fortunes or are there Naturaliz'd or made free Denisom in those Kingdoms or Common-wealths whereunto they remove nor are such Persons oblig'd in Conscience to return Home upon the Command or Summons of that Prince to whom you suppose them to be Subjects by Birth nor is your Argument at all convincing that because a Mans owes a duty to his Parents by the law of Nature and by being Born their Child that therefore the subjection to the Prince under whose Government he is Born must be alike perpetual since the ground upon which you found this Consequence is altogether false since I have already prov'd at the first meeting we had to discourse of these matters that a Man's being Begotten and bred up by his Parents does not make him become their Subject or Servant in the state of Nature as long as he lives so that he may never withdraw himself from their subjection without their leave But in the next place I think I am as little mistaken in my Notion of Allegiance which I suppose every Person who is a true and perfect Subject of the Government owes to the King or Sovereign Power thereof for tho' I grant there is a great deal of difference between that imperfect Allegiance or bare Submission which every Foreigner owes the King or Government under which he resides and that more perfect Allegiance which every Subject owes the King who enjoys all the Rights and Previledges of a true English Man yet to let you see that this distinction proceeds not from the bare protection of his Person and Goods by the Government under which he lives but by his being Naturaliz'd and becoming thereby a perfect Member of this Civil Society is plain from your own showing and therefore whosoever not only enjoys the common protection of an Inhabitant but also all the Rights and Priviledges of a true English Subject is bound to swear Allegiance if requir'd to the King or Queen de facto without enquiring into their Right or Title for if they are strangers or have never taken any Oath of Allegiance before they cannot be under any former Oath and as for natural Allegiance I have already prov'd it to be a meer legal Notion and this Allegiance I have also prov'd to to be due to the King and Queen de facto not only from the Opinion of the Judges in Bagots's Case but also from my Lord Cokes interpretation of the Statute of Treason which though you suppose to be contradictory to what he had before laid down in Calvins's Case yet if you please better to consider of it you will find it not to be so for though it is true the Judges do there assert That the Obligation of the Oath of Allegiance is indefinite and without Limitation as being made to the King and his right Heirs and also that it extends to the venturing of life and members and to the letting out of the last drop of our Blood yet is this still to be understood only of such a one and his Heirs who still continues to be King in a legal Sense which can be only he who is King for the time being as he is stil'd in this Statute of the 11 th of Henry the 7 th and only during the time that he continues in actual Possession of the Throne And therefore the word King or Majesty being indefinite and without having any respect to his Title whether by descent of Blood or else by his being Crown'd and Recogniz'd by Parliament it is no contradiction to suppose this Allegiance is only due to the King in this limited Sence according to this Statute of Henry the 7 th where pray take Notice that I have made this Allegiance to be only due to Kings and Queens de facto because they only are within intent and letter of this Statute as also of that of Treason according to the legal Government of this Nation by the Fundamental Laws thereof and can no ways be extended to any other
him not only Gratitude and Respect as a Parent but also Obedience in all indifferent things Yet I deny that this Power or Supâ—â—iority of Adam over his Wife and Children was at all a Despotical or Civil Power but meerly Oeconomical for the Good and Convenience of Adam and the well ordering and preservation of his Family which you will easily grant if you please to consider what are the Essential Differences of Civil Government from Oeconomical Now the Essential Properties of Civil Government consist in preserving and defending the Subjects both in War and Peace from Forreign Enemies and Intestine Injurieâ— and Invasions of Mens Persons or Properties and in revenging and punishing all such Transgressions by Death or other Punishments and consequently in making Laws concerning Property and for restraining all Robberies Murders and the like Now in the state of Innocency there could be no need of any of these Essential Functions of Civil Power for your self must grant that Man was then not apt to Sin and immortal so that all Laws about Peach or War Punishments of Offences publick Judgments concerning Meum Tuum and all Injuries were absolutely needless and had never been in Nature if Adam had not sinned and then how you can call this Authority or Superiority which I grant Adam had over his Wife and Children Civil Power I can by no means understand But I do utterly deny that even after the Fall Adam was a Monarch or Sole and Absolute Lord over the whole Earth and all Creatures therein contained and desire you to give me such plain proofs of it either from Reason or Scripture that I need no more doubt of it than your self M. I shall first of all give you an Argument drawn from the Reason of the thing and in the next place the Authority of Scripture for my Opinion and first I think it is evident that every Man that is Born is so â—at from being Free that by his very Birth he becomes a Subject of him that begets him and even Grotiâ—â— hâ—mself acknowledges that Generatione â—us acquiritur in liberos And indeed the Act of Begetting being that which makes a Man a Father his Right of a Father over his Children can Naturally arise from nothing else and the same Author in another plâ—ce hath these words upon the Fourth Commandment Parentum nomine qui naturales luns Magistraus etiam alios Rectores par est iutelligi quorum authoritas Sociâ—tatem humanam continet And if Parents be natural Magistrates Children must needs he Born Natural Subjects So that not only Adam but the succeeding Patriarchs had by Right of Fatherhood Regal Authority over their Children as may 〈◊〉 by divers Testimonies out of Scrâ—pture and therefore at is very reasonable that all Fathers should have a Power over the Lives of their Children since it is to them that they owe their Life Being and Education and I think that even the Power which God himself exerciseth over Mankind is by Right of Fatherhood F. Before you come to Scripture give me leave in the first place to examine your first Argument which you deduced from the Law of Nature or Reason For I doubt if you please better to consider of it you will and that so light and Transitory an Action as that of Generation cannoâ— give any Man an absolute Property and Dominion over the Person and â—â—fe of those whom he Begets since sew Men do principally intend the giving of a Being to another so much as they do their own pleasure in that Action nor do we owe our Lives properly speaking to our Parents but to God who is the true and original Cause of our Being though it is true he makes use of our Parents as Physical though not as Moral Means or Instruments for that end since it doth not lye in their power to hinder their Generating of Children if they perform the Acts necessary thereunto so that both the antecedent and the consequent are altogether false viz. That Parents give their Children Life and Being and that therefore they have and absolute power over their Lives and Persons which if it were true would give the Mother an equal Title to the Lives of the Children as the Father seeing they owe their Lives as much to the one as the other Which power in the Mother I am sure you will not admit of But as for what you say concerning the power of Fathers arising from Education though I confess that is a much better Title than the other Yet doth it not follow that because by reason of my Parents care of me before I was able to help my self I owe my preservation and well being to them that therefore they are to be perpetual and absolule Lords over my Person and Life Since by thus breeding me up they only perform'd that Duty and Trust which God had laid upon them for the good and preservation of Manking and which they could not without committing a Sin either refuse or decline and therefore their Authority or Power over my Person being only for my well-being can extend no farther tan whilst I am not of years of discretion to understand the true means of my own good and preservation And though I grant that I am bound in gratitude to return this Care and Kindness by all Acts of Duty and Piety towards them as long I live yet doth it not therefore follow thar they are Masters of my Life and of all that I have since this were to take away more than they themselves ever gave and though I should grant you that even the Power which God himself exerciseth over Mankind is by Right of Fatherhood yet this Fatherhood is such as utterly excludes all pretence of Title in Earthly Parents for he is our King because he is indeed maker of us all which no Natural Parents can pretend to be of their Children but if you please more closely to consider your own Argument you will find that he will quite destroy your Hypothesis For if all Fathers have an absolute power over their Children by Generations then Adam could only have power over his own Children which he begat and none at all over his Grand-Children since their Fathers by this Argument of Generation ought to have had the same power over their Children which Adam had over them for the same reason So that this Monarchical Power of Adam as a Father could extend no farther than one Generation M. I shall not further urge this Argument of Generation since I see you are not satisfied with it but this much I think I can clearly prove from Scripture that Adam was Lord over the Persons and Lives of his Wife and Children by vertue of that command which God gave Eve Gen. 3. v. 16. Unto the Woman he said I will greatly mutilply thy sorrow and thy Conception In sorrow thou shalt bring forth Children and thy desire shall be to thy Husband and he shall rule over thee From which words it
happen sometimes to abuse yet I suppose no person living hath any right in that state to resist him in the Execution of it much less to call him to an account or punish him for the Male-administration of his Power And you have granted that the Husband in the state of Nature hath a power of life and death over his Wife if she murthers her Children or commits any other abominable sin against Nature and that then she may be justly cut off from the Family and punish'd as an Enemy to Mankind and so certainly may his Children too But what need I say any more of this Subject when you have not as yet answered my former Arguments concerning the absoluteness and perpetuiry of this Conjugal Subjection and that which will likewise follow from it the constant service and subjection of Wives and Children to their Fathers in the state of Nature Therefore pray Sir let us return again to that Head and let me hear what you have to object against those Reasons I have brought for it F. I beg your pardon Sir if I have not kept so close to the Point as I might have done but you may thank your self for it who brought me off from what I was going farther to say on that Head by your discourse of Passive Obedience and Non-Resistance and I know not what strange unintelligible Power of Life and Death conferred by God on Adam as a Husband and a Father But first give me leave farther to prove that this subjection of the Wife is neither absolute nor irrevocable For proof of which I shall lay down these Principles 1. That the Wife in the State of Nature when she submits her self to the power of her Husband does it to live as happily as she did before oâ— rather to enjoy more of the comforts of life than in a single State 2. That therefore she did not renounce either her own happiness or Self-preservation 3. Neither did she make him the sole and absolute Judg of the means that may conduce to these ends for if this were so let him use her never so cruelly or severely she could have no cause to censure him or complain in the least against him 4. If she have not so absolutely given up her Will to his she is still Judge when she is well used by him or else so cruelly that it is no longer to be endured And therefore if such a Husband will not allow his Wife sufficient Food and Raiment and other necessaries or that he uses her cruelly by beating or other punishments or hath endeavoured to take away her Life in all these cases in the State of Nature and where there is no Superior Power to complain or appeal to she may certainly quit him and I think she is not bound to return to co-habit with him again until she is satisfied he is sorry for his former cruel Treatment of her and is resolved to make amends for the future But whether this Repentance be real or not she only can be Judge since she can only Judge of her own happiness and the means of her preservation And the end of Matrimony being for their mutual happiness and help to each other if he have broke his part of the Compact she is then so far discharged from hers and consequently in the meer state of Nature which is that we are now talking of the Vinculum Matrimonii as you Civilians term it will be likewise dissolved So likewise such a Husband for no just cause or crime in the Wife but only to be rid of her should endeavour to take away her life as suppose to strangle her in her sleep or the like no doubt but she may notwithstanding your Conjugal Subjection resist him by force and save her life until she can call in her Children or Family for her rescue and assistance who sure may also notwithstanding this absolute Daspotick Power you place in their Father or Master rescure her from his rage and malice whether he will or not Nay they are bound to do it unless they will be Accessaries to her Murther M. These are doubtful Cases at best and do very seldom happen and a Husband can scarce ever be supposed to be so wicked as to hate and destroy his own Flesh and therefore we need not make Laws on purpose for Cases that so rarely happen F. Rarely happen I see you are not very conversant at the Old Bayly nor at our Countrey Assizes where if you please to come you may often hear of Cases of this Nature and I wonder you that are a Civilian and have so many Matrimonial Causes in your Spiritual Courts brought by Wives for Separation propter Saevitiam c. Should doubt whether Husbands do often use their Wives so ill that it is not to be endured But if the Wife have these Privileges pray tell me why the Children shall not have the same according to your own Maxime of partus Sequitur Ventrem since the Subjection of Children must be according to your own Principles of the same natere with that of the Mother and then pray what becomes of this absolute and perpetual Subjection you talk of M. Yet I hope you will not affirm but that Children are under higher obligations of Duty and Obedience to their Father than a Wife is to her Husband with whom perhaps she may in some cases be upon equal terms but Children can never be so in respect of their Father to whom they are always inferior and ought to be absolutely Subject in the state of Nature that is before Civil Laws have restrained Paternal Power F. I thank you Sir for bringing me so naturally to the other Head I was coming to and I agree with you in your other Maxim of Quicquid ex me â—xore mea nascitur in potestate mea est yet not in your sense For iâ— I should grant that the Father's Power over the Child commences from his Power over the Mother by her becoming his Wife and submitting her self and consequently all the issue that should be begotten of her to her Husband's Power yet as I have proved already in case of the Wife so I think I may affirm the same in that of the Children That they are not deliver'd by God so absolutely to the Father's Will or disposal as that they have no Right when they attain to years of Discretion to seek their own happiness and preservation in another place in case the Father uses them as Slaves or else goes about to take away their Lives without any just cause since when Children are at those years I think they are by the Laws of Nature sufficient Judges of their own happiness or misery that is whether they are well or ill used and whether their Lives are in danger or not by their Father's Cruelty For tho' I grant that Children considered as such are always inferior to their Parents yet I must likewise affirm that in another respect as they are men and
and to render Obedience to Governours altho' they be wicked and wrong doers and in no Case to resist and stand against them Subjects are bound to obey them i. e. Governours as Gods Ministers altho' they be evil not only for fear but also for Conscience sake and here good People let us mark diligently that it is not Lawful for Inferiours and Subjects in any Case to resist and stand against the Superiour Powers for St. Paul's words are plain that whoso withstandeth shall get to themselves Damnation Our Saviour Christ and his Apostles received many and divers Injuries of the unfaithful and wicked men in Authority yet we never read that they or any of them caused any Sedition or Rebellion against Authority we read often that they patiently suffered all Troubles Vexations Slanders Pangs Pains and Death it self obediently without Tumult or Resistance Christ taught us plainly that even the wicked Rulers have their Power and Authority from God and therefore it is not Lawful for their Subjects to withstand them altho' they abuse their Power Let us believe undoubtedly good Christian People that we may not obey Kings if they command us any thing contrary to Gods Commandments in such a Case we ought to say as the Apostle We must rather obey God than Man but nevertheless in that Case we must not in any wise withstand violently or Rebâ—l against Rulers or make any Insurrection Sedition or Tumults either by force of Arms or otherwise against the Anointed of the Lord or any of his appointed Officers but we must in such a Case patiently suffer all Wrongs and Injuries referring the Judgment of our Cause only to God And see part the third of the same Homily Ye have heard before of this Sermon of good order and Obedience manifestly proved both by Scriptures and Examples That all Subjects are bound to obey their Magistrates and for no cause to resist or withstand or rebel or make any Sedition against them yea altho' they be wicked men I could find many more such places in our Homilies but I shall trouble you but with one other Passage out of the second Book of Homilies compiled in the Reign of Queen Elizabeth in which Book the Homily against Willful Rebellion is full to this Purpose In reading the Holy Scriptures we shall find in very many and almost infinite places as well of the Old Testament as of the New that Kings and Princes as well the Evil as the Good do Reign by Gods Ordinance and that Subjects are bound to obey them The farther and farther any Earthly Prince doth swerve from the Example of the Heavenly Government the greater Plague he is of Gods Wrath and Punishment by God's Justice unto the Country and People over whom God for their Sins hath placed such a Prince and Governour What shall Subjects do then What a perillous thing were it to commit to Subject 〈◊〉 Iudgment which Prince is wise and Godly and his Govern◠〈◊〉 good and which otherwise as tho' the Foot must judge of the â—ead a◠〈◊〉 very heinous and which must needs breed Rebâ—â—â—â—â—â— and is not â—â—â—â—llion the greatest of all miscâ—iefâ— A Rebel is worse than the 〈◊〉 Princepunc and Rebellion worse than the worst Government of the worst Prince that hitherto hath been If we will have an Evil Prince when God shall send one taken away and a good one in his Place let us take away our wickedness which provoketh God to place such a one over us Shall the Subjects both by their Wickedness provoke God for their deserved Punishment to give them an undiscreet and Evil Prince and also Râ—bel against him and withal against God who for the Punishment of their Sins did give them such a Prince And this Doctrine is more strictly inforced in the second part of that Homily from the Example of King David in his Carriage towards Saul from which it will appear that they did not suppose David to have used so much as defensive Arms against him as you may see by this Passage in it That when for his most painful true and faithful Service King Saul yet rewarded him not only with great unkindness but also sought his Destruction and Death by all means possible David was fain to save his Life not by Rebellion or any Resistance but by flight and hiding himself from the Kings sight From all which Passages out of the Homilies I think we may draw these plain Conclusions 1. That as well Evil as Good Governours are to be obeyed as God's Ordinance 2. That therefore they are not to be resisted for any cause tho' they abuse their Power never so Tyrannically 3. That the People are not to judge when the Prince thus abuses this Power so as thereby to make any disturbance 4. That not only Offensive but also Defensive Arms if made use of against him are utterly unlawful and also against God's express Command F. I grant these Homilies seem to be very strictly penned against all Resistance and ought to be like all discourses of this Nature Positive and General and perhaps if I were to preach a Sermon to the Common People on this Subject it should be much to the same Purpose and yet for all that I might not believe that it was absolutely unlawful for a whole Nation to defend themselves in Case of such extream Violence or Oppression as I have already supposed for when Preachers speak to Vulgar Auditors they are not bound like Casuists to tell them all the reserved Cases in which they may be dispensed with in their Duty lest they might use this Christian Liberty for a Clos't of Maliciousnâ—ss as the Apostle tells us Thus if a good Preacher makes a Sermon against Stealing or Murder he may very justly tell the People aâ— the Authors of these Homilies do that they ought not in any wise or for any Cause to commit Theft or Murder without telling them all those Cases of meer Necessity in which it may be Lawful to make use of the Goods of another and also to commit Homicide as when a Man is forced to take Victuals tho' without the owners consent for meer Preservation of Life or to kill a Thief or any other Man that assaults him to save his own Life So tho' the Authors of these Books of Homilies do say that we may not in any wise and for no Cause withstand Violently or Resist the Supream Powâ—rs but that we must suffer patiently all Wrongs and Injuries referring the Iudgment only to God yet since they have not particularly put the Case as I have now done viz. what is to be done in Case a whole Nation or People are about to be destroyed ruined or enslaved and made Heathens or Papists by the unjust nay illegal Violence of the Supream Powâ—rs we may rationally suppose that since they were good Men and never intended to urge these things further than what the Scripture and Fathers have already done that they never really intended that a
of France had made his Procurator to treat with the Popes Legat about his coming over hither where when he had recited that King Iohn had been condemn'd by his Peers for the Death of his Nephew Arthur and that he had been also for his great cruelties and other wickedness Deposed by the Barons of England and farther reciting that the said King without the assent of his Nobility had resign'd his Kingdom to the Pope to hold it of him at an Annual Tribute of a thousand marks the rest I will give you in Latine because you your self shall translate it etsi Coronam Angliae sine Baronibus alicui dare non potuit potuit tamen dimittere tam quam statim cum resignaverit Rex esse desiit Regnum sine Rege vacavit vacans itaque Regnum sine Baronibus ordinari non debuit c. so that you may see that by the order of Prince Lewis and the allowance of the King of France himself every one of our opinions are maintain'd for good first That King Iohn was before the resignation of his Crown to the Pope true and lawful King Secondly That by that resignation to the Pope he did dismiss or abdicate his Right to it for so I suppose the word demittere Regnum is here to be render'd Thirdly That upon this dismission of the Crown the Throne became Vacant Fourthly That upon this Vacancy the Kingdom could not be conferr'd without the consent of the Barons that is the great Council of the Kingdom But let King Iohn's Right to the Crown have been what it would it is certain that he could not take it upon him until such time as this Great Council had both heard and allow'd his Title and that this was in the nature of an Election notwithstanding his Brothers Will appears by that account which Roger Wendover and Matthew Paris have given us of it which though Hoveden and other Writers have omitted yet doth it not therefore follow that this was all the pure invention of Roger of Wendover or Matthew Pariâ— since the former he living near that time might write from the relation of â—oâ—e that were then present and as for the latter I look upon him though a Monk as a man of too great integrity to invent any thing of his own Head and though I confess the account that Arch-bishop Hubert gives why he put King Iohn's Title rather upon Election than Succession looks very suspicious since the Arch-bishop must thereby have made himself a Knave and a Hypocrite and seems also to contradict what Matthew Paris had before said viz. That all those that heard his Speech dares not so much as doubt of these things knowing that the Arch-bishop had not thâ—s judged of this matter without cause and therefore I grant that this part of the relation concerning the Arch-bishops vindicating of himself for thus giving his Judgment might be a Story commonly taken up and being told to this Authour was by him inserted in his History at a time when I grant the Crown of England began to be thought successive by reason that King Henry the III. had succeeded as the eldest Son of his Father though he was noâ— for all that admitted without Election as I shall prove by and by but that King Iohn was made King by Election though he claim'd it from his Brother by successiâ—n likewise appears from his own Charter still to be seen at this day in the Arch-bishops Archives at Lambeth wherein he recites that he came to the Crown Iure hereditario mediante tam Cleri quam populi unanimi consensu favore where you see plainly that he derives his Title from the consent and favour of the Clergy and People as well as his own Hereditary Right M. Notwithstanding what you have now said I cannot agree with you that by these words you have now cited from this Charter is to be understood any formal Election of the Clergy and People but that this unanimous consent mention'd in it was rather their acknowledgment of his Title and submission to him than any thing else for according to Hoveden's relation of his coming to the Crown which I think the most exact extant the whole Nation submitted and swore Fealty to him against all men before he came over into England But as for his Son Henry the III. it is much more plain that he succeeded by Succession and not by Election as being the Eldest Son of the Late King his Father as appears by the relation of his Coronation in Matthew Westminster who tells us thus Henricus Iohannis primogenitus in Regem inunctus solemniter Coronatus est and tho from the Speech which was made to the Clergy and Nobility that was then at Gloucester by the Earl Mareshall 't is pretended that Henry was Elected yet I dare say if any one do but impartially consider the tenour of it he will find that the design of it was rather to persuade all those then present to return to their duty and acknowledge Him for their King whom God and Nature had designed for that great charge for the Earl begins his discourse to 'em thus as it is in Knighton Ecce Rex Vester which certainly could not then be true if an Election was necessary to make him such but amongst the rest of his Arguments he urges this Hunc igitur libeat regem dicere cui ipsum Regnum debetur you ought to chuse him to whom the Kingdom is due which surely it can be to none if it be not Hereditary and what puts all out of doubt that the Kingdom was not then and if not then I am sure never since Elective is the answer of Hubert de Burgh to Lewis when he summon'd him to deliver up Dover Castle to him since his Master for whose use and service he held it was dead but see his answer If my old Master say's he he dead he has left behind him Sons and Daughters to succeed him A thing he never would have asserted had he not thought there had been a Divine Right somewhere else than in the People F. Before I speak any thing to King Henry the III ds Election give me leave to reply to what you have said against the express words of King Iohns Charter for if Favor and Consensus does not signifie somewhat more than a bare acknowledgement and submission I understand neither English nor Latine Nor is this any answer to the express testimony of Roger of Wendover and Mat. Paris to the contrary And as for Roger Hoveden he does not say he was not Elected but only omits the manner of it as divers other Historians do So that at the best this is but a negative Argument And yet that Hoveden himself did not look upon him as King even after the whole Nation had sworn Fealty to him before his Coronation may appear from this passage a little before his coming over Wâ—â—ielmus Rex Scotorum misit
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
Crown of France as ever they have been in former Times if ever our Kings should go about to revive their ancient pretentions to France or Normandy or make War upon some other Quarrel and thefore I think it will be more far the Interest of France to leave us our Laws Liberties and Priviledges as we now enjoy them nay to make an express Capitulation for them and when he has done to foment those Jealousies and Disputes that are still like to arise between the King and Us about them thereby to hinder us from joining against him then by rendring the King Absolute to take them quite away and put the sole power of the Purse as well as of the Sword wholly into his Hands To Conclude you do also very much misrepresent the matter in supposing that though the King cannot now be restor'd without falling into a new Civil War yet that does it not therefore follow that such a War is not to be desir'd for the Publick Good of the Nation since we shall thereby not only restore the Crown to its right Owner and the Succession of it to the lawfull Heir but also shall restore Episcopacy in Scotland and prevent the Church of England from falling into a dangerous Schism by depriving the Arch Bishop of Canterbury and as many other of the Bishops who are so Honest as not to take the new Oath for standing out against it by the Temporal Power of a pretended Parliament without the Judgment of a Lawfull Convocation who are the only proper and legal Judges You likewise as much mistake in supposing that this War can no ways be finisht but by so great a Concussion as shall so much weaken the Kingdom as to render it expos'd to the Invasionâ— of Foreign Enemies in which you may be very much deceived for who can tell but the hearts of this Nation may come to be so inclin'd to receive their lawful King and his right Heir and may be so weary of the present Usurpation as upon his first appearance in England with an Army sufficient to defend those who shall come into him so many of his Subjects will take this advantage as will be more than enough to restore him with as little Blood-shed as when he was driven out and then I think no indifferent Man but will acknowledge that such a War would prove for the best since it will not only setle the Government upon in ancient Foundation of a lineal Succession but will also extinguish those fatal causes of War not only from among our selves but also from Foreign Princes as long as the King and the Prince of Wales and his lawful Heirs shall continue in being which I hope will be much longer then those upon whom your Convention has setled the Crown either in Present or Reversion F. I doubt not but to show you that all you have now said is either built upon false Principles or else deduced by very uncertain Consequences for in the first place though you doubt my Principle that the People of this Nation are not bound to restore King Iames to the Throne if it cannot be done without the evident Destruction both of our Religion and Civil Liberties which certainly is true granting it to be never so much our duty to restore him when with safety we may for if the obligation of all Moral Duties whatsoever is only to be judged of according as they more or less conduce to the Happiness or Destruction of the common good of Mankind whereof this particular Nation makes a part it will necessarily follow that this Duty of restoring King Iames is not to be practised if it cannot be brought about without the Destruction of our Religion and Civil Liberties since it is only for the maintenance of those that even Kings themselves were first ordain'd in this Nation and it is evident that this Kingdom may be sufficiently Happy and subsist in the State it is now in though neither King Iames nor your Prince of Wales be ever restor'd to Reign over us So that then all the Difficulty that remains is That since his Restoration being not otherwise to be brought about without the assistance of great numbers of French or Irish Forces whether it be not only so small a hazard as you make it but twenty to one that his coming in upon these Terms will produce those dreadfull Effects which I say will certainly happen from it and though I grant that future things especially in the Revolutions of Government are not capable of Demonstration as Mathematical Propositions yet if all the circumstances of Time and the Temper and Disposition of the King himself and those who are to join with Him in bringing Him in again be considered it shall appear that Morally speaking nothing less then the evident Destruction of our Religion and Civil Liberties will follow I think I may still positively affirm that we are not oblig'd to restore Him till this Temper of Mind be alter'd and that he can be restor'd without these Fatal Consequences I now mention and if these cautions are not observ'd I deny that God hath any way promis'd to protect either our Religion or Civil Liberties or that he is bound to provide us a way to escape as you suppose if to perform this suppos'd Duty of Allegience thus unseasonably we slight the onely means God has ordained for our Preservation But as for the patience under those Sufferings that may then happen that is a very sorry reason to embrace them since God may give us that Grace if he pleases as the only Comfort we can have left us when by our own Folly and mistaken Notions of Duty we have brought all those Evils upon our selves I shall therefore now proceed to show you that these Evils I speak of must necessarily happen to us in Case King Iames be restor'd by the French or Irish Papists In the first place therefore it is very falsly suppos'd that this Alteration can be brought about without an entire Subduing or Conquest not only of their present Majesty's but the whole Nation is apparent since none but the Papists and some few of the Clergy Nobility and Gentry desire his Restoration and who if they were put altogether will not I believe amount to the hundredth Man who would be either willing or capable to come in to his Assistance with Men or Money and therefore it is a vain Supposition to believe as you do that this new Revolution can be brought about without any more Dificulty or Blood-shed then the last as long as the present King and Queen continue to Govern us according to the Declaration they subscrib'd upon their acceptance of the Crown and the Coronation Oath they have since taken which I hope they will always do since nothing but following King Iames's Example as well as to Religion as Civil Liberties can ever make this Nation willing to receive Him or your Prince of Wales with so little difficulty as you are
and is by the law of Nature oblig'd to Honour Obey Assist and Support So also is he born a Member of the body Politick and by consequence a Subject to the Sovereign of it and accordingly by the same eternal Law is bound to pay all faithful Service and Obedience to him when he in a capacity to perform them But your next Mistake is yet worse when you confound that common Obligation of a Foreigner or meer Denison to be true and faithful to the Common Wealth wherein he lives with this Natural Allegiance of every English Subject for though I grant the taking the Oath of Allegiance does not inforce any new Obligation upon him that takes it more than he was subject to before yet for all that I think you will not deny but that there is a great deal of difference between that common Obedience or Submission which such a Foreigner pays to the King and his Laws in a Country where he Sojourns and that more perfect Allegiance arising either by Birth or from such a strangers being naturalized and by taking the Oath of Allegiance becoming as true and perfect a Subject as a natural English Man and hence it is that in all Wars declar'd between Neighbouring Princes whatever Subjects of theirs shall presume to stay and reside in each others Dominions after once they are recall'd home may be justly Executed as Traytors when ever they shall be taken and therefore though I grant that every Person now living in England and of ripe Age is oblig'd to obey your King and Queen de facto in all ordinary and lawful things which tend to the publick Benefit and Defence of the Civil Society or Common-weal and which being for the benefit of the King de jure and his leige People it is to be morally suppos'd they have his Tacit consent for what they do as long as it tends only to this end yet does it not therefore follow that the bare protection of this usurpt Government and the enjoyment of the common priviledges of a Subject should give such a King de facto or Government a right of exacting an Oath of Allegiance to them since I have already prov'd from the true signification of being true and faithful as also from the legal signification of the word Allegiance that no true Subject can lawfully take it without renouncing his Allegiance to his natural Prince since not only a bare Neutrality or Obedience in not transgressing the Laws is thereby required of them but also an Active Obedience and Duty in performing the King de Facto's commands and the deâ—ending him when ever there is occasion in his ill-gotten power But since the only difficulty is how a strict observation of this Oath can consist with the quiet and happiness of the Subjects when ever a new Oath of Allegiance comes to be impos'd by the King de facto since the Subjects may be all ruin'd that do not take it if it be once offer'd to them This difficulty might be easily remov'd if the whole Nation would â—lick firmly to the Duty required by their former Oath of Allegiance and resolve never to take a new one for then the numbers of the refusers would be so great as that they would be more than could be made to suffer for their refusing it I speak of such Subjects as are in our case and who are not forced by a Prince who either has the Right or Power of a Conqueror to compel them by force and therefore your instances of the Subjects of the King of Spain or of the Duke of Holstein who were conquer'd or else as good as conquer'd by the power of France and Denmark whereas we are only over-aw'd by an inconsiderable number of Dutch and Germans and might set our selves free if we would give but a vigorous Effort towards it For that King William is a Conqueror over the whole Nation I think you dare not affirm And without he were so he could challenge no right to our Allegiance as such and therefore I must still believe that the Oath of Allegiance I have taken to King Iames and his Heirs is perpetual unless you could show me that their Right is determin'd which you have not done by any thing you have yet said and therefore I cannot be of your Opinion that the bare protection of an usurpt Power can justifie our Swearing Allegiance to it either in Law or Conscience for then all Men had been oblig'd to pay as firm an Allegiance to the Rump Parliament and also to Oliver Cromwell as to King William and Queen Mary since both the former protected the People as much in their Religion Civil Liberties and Properties as the latter I fear will ever do And that the bare protection of a Government does not give it no absolute right to the Allegiance of all those that enjoy their protection I think may be sufficiently prov'd from the instance of a Frenchman or any other Foreigner who though by his living here and enjoying the common protection of the Government I grant he is oblig'd to be obedient to its Laws and is not to Act or Conspire against it yet this does not discharge him from his natural Allegiance which he still owes to his former Prince so as to do any thing which may prejudice that Allegience he owes to him either by Conspiring or Fighting against him And this was solemnly declard to be Law by the Judges of the Kings-Bench in the case of Dr. Story in the 13 th Year of Queen Elizabeth He being a violent Papist fled over into Flanders to the Duke of Alva and there conspiring with him to invade this Kingdom and being afterwards taken and brought over Prisoner was Tryed as a Subject of England though he refused to plead as such because he said he had Sworn Allegiance to the King of Spain notwithstanding which Plea he was Executed as a Traytor as you will find at large in my Lord Chief Justice Dyers's Reports which Judgment is also confirm'd by the Lord Chief Justice Coke in Calvins's Case where he expresly Asserts That a Person born under the Dominion of the King of England owes him perpetual Faith and Allegiance and this by vertue of the Law of Nature because Iura naturalia sunt immutabilia from whence will also appear the falsity of your Conclusion that Oaths of Allegience extend no further then to the King in Possession or to that Government to which we do at present owe our common Protection and therefore that our Law has a much higher consideration of this inherent Allegiâ—nce that belongs to a King de Iure as to his particular Person and his Heirs so that it cannot be indifferently paid to any body else who can by seizing of the Government force us to owe our Protection to them Which appears by what my Lord Coke hath also laid down to have been agreed by all the Judges upon this Oath of Allegiance in Calvins's Case as I