or Record the Prince in being hath onely a Right from Possession and can never create himself a Title by the continuation of his own Injustice or command any of his Subjects to fight against this true Heir since they are to obey this Vsurper p. 72. or his Heirs onely in such things as tend to their own preservation and not to the destruction of the true Governour By which Principle the Author at once renders the Titles of all the Crowns in Europe disputable and all Allegiance uncertain and questionable by their Subjects as I shall shew in several instances as I shall prove from Histories of unquestionable credit I shall begin with our own Country England If therefore as the Author will have it p. 69. the Usurper is onely then to be taken for the true Heir when the knowledge of the right Heir is lost by all the Subjects it will follow that all the Kings and Queens that reigned in England until the coming in of K. James were Usurpers for the Right of Succession to the Crown of England could not be obtained by Conquest alone And I suppose this Authour does not allow it to be bequeathable by Will as long as the right Heir was in being and could be known from authentick Histories and Traditions Now the Right of the Crown by Descent belonging after the death of Edward the Confessor to Edgar Atheling his Cousen he dying without Issue the Right fell to Mawd his Sister who married Malcolm III Buchanan de Rebus Scoticus lib. 7. King of Scotland and though her Daughter Mawd was married to Henry the first King of England from whom all our Kings are descended yet the Right was not in her but in Edgar King of Scotland her Brother from whom all the Kings of Scotland to King James were descended It is true the Kings of Scotland were too wise ever to set up this Title because they knew the Norman Race were quietly possessed of the Throne and had been admitted and confirmed for lawful Kings by many great Councils or Assemblies of the Clergy Nobility and People yet did not this absolve the People who might very well retain the traditional knowledge of this right Heir For divine Right never dies nor can be lost or taken away or barr'd by Prescription So that all Laws which were made to confirm the Crown either to Henry I. or any of his Descendants were absolutely void and unlawful by our Authors principles and so likewise all Wars made against the King of Scotland in person were absolutely sinful and unlawful since according to this Authors principle the command of an Usurper is not to be obeyed in any thing tending to the destruction of the person of the true Governour So by the same Principle all Laws made in France about the Succession of the Crown are absolutely void and it would be a mortal sin in the French Nation to resist any King of England of this Line if he should make War in person upon the French King then in being since according to the ancient Laws of Descent in that Kingdom he is true Heir of the Crown of France Nor can the French here plead ignorance since there is scarce a Peasant there but knows our King stiles himself King of France and quarters the Arms of that Kingdom and so ought to understand the justness of his Title So likewise in Spain Mariana de Rebus Hisp lib. 13 cap. 7. all the Kings of Castile are likewise by this Rule Usurpers since the time of Sancho III who succeeded to the Crown after the death of Alphonso V his Father who had bequeathed it to Alphonso and Ferdinand de la Cerda his Grandsons by Ferdinand his eldest Son who died before him Yet notwithstanding this Testament and their Right as representing their Father the elder Brother Sancho their Uncle was admitted as King by the Estates of Castile and his Descendants hold that Kingdom by no better Right to this day Nor is this a thing stale or forgotten for the Dukes of Medina Coeli on whom by Marriage of the Heiress of the House de la Cerda the right descends do constantly put in their Claim upon the death of every King of Spain and the answer is The place is full Nor can those of this Author's opinion plead possession or the several Laws that have been made to confirm the Crown to the first Usurpers and their Descendants for it will be replied out of this Author p. 70. That the right Heir having the Fatherly Power in him and so having his Authority from God no inferiour Power can make any Law of Prescription against him and Nullum tempus ocurrit Regi And this were to make the Crown elective and disposable according to the Will of the Estates or People I shall now return to the Author's distinction and shew that his distinguishing the Laws or Commands of Usurpers into indifferent or not indifferent signifies nothing for suppose that an Usurper as several have been in England and other Kingdoms either dares not or thinks it not for his interest to alter the form of the Government but is contented for his own safety to govern upon the same Terms his Predecessors did and so will not raise any Money or make new Laws without the consent of the Estates whom he summons for that purpose Now they must either obey his Writs of Summons or they must not if they do not obey them he will perhaps be encouraged to take their Goods by force perhaps by a standing Army which he may have ready in pay and then say it is long of their own stubbornness who would not give it him freely when they might have done it and they shall likewise be without these good Laws the Author supposes he may make but if they meet he will not let them sit unless they first by some Oath or Recognition acknowledge his Title to be good and own him as their lawful Prince Now what shall they do in this case they must either lose their Liberties and alter the form of the Government or acknowledge him to the prejudice of their lawful Prince But if the Laws are once made and they appear evidently for the good of the Commonwealth they then are no longer indifferent since all private Interests are to give place to the publick Good of the Commonwealth since in the instance before given of the Father of a Family 's being driven out of doors by a Robber no doubt but every Member of the Family ought to obey this Rogue in case the house should be on fire or ready to fall and he would take upon him to give orders for the quenching or securing it from falling for they did this not to own his Authority but from the obligation they owe to their Father or Master who would have done the same had he been at home So to obey Laws made by an Usurper that tend to the apparent benefit of the Commonwealth is not
any reservation or restriction and as for the last clause where the King Swears to observe and protect justas Leges consuetudines which he translates upright Laws and customes this word justas in this place is not put restrictively as any man may see that considers the sense of the words but only by way of Epithite supposing that the People would not chuse any laws to be observed but those that are just and upright but the Author omits here quas populus Elegerit as a sentence that does not at all please him though it be in all the Copies of the old Coronation Oaths of our Kings and he may as well deny that they tooke any other clause as this yet since the Author himself gives us an interpretation of these words in his Freeholders inquest pag. 62. which will by his own showing make these clauses justas Leges consuetudines not to extend to all laws and customes in general but those quas vulgus elegerit that is as he there interprets it the Customes which the vulgar shall chuse and it is the vulgus or common people only who chuse customes common usage time out of mind creates a custome no where can so common a usage be found as among the vulgar c. If a custome be common through the whole Kingdom it is all one with the common law in England which is said to be common custome that in plain terms to maintain the customes which the vulgar shall chuse is the common Laws of England so that in the Authours own sense it shall not signifie such Laws which the King himself hath already chosen and establisht but only those which the people have chosen and in this sense perhaps it was part of the Oath of Richard II. to abolish all evil unjust Laws that is evil vulgar customes and to abolish them whenever they should be offred him by bill But I do not read that any King or Queen since Richard II. took that clause he mentions and perhaps King Richard took it in the Authours sense and found such interpreters to his mind and that made him prove such a King as he was to endeavour to destroy all the Laws and liberties of this Nation burning and cancelling the Records of Parliament and indeed there was no need of any if it be true which he did not stick to affirme that the Laws of of England were only to be found in his head or his breast but the Authour though he grants for it were undutiful to contradict so wise a King as King James that a King Governing in a setled Kingdom leaves to be a King and degenerates into a Tyrant so soon as he seems to rule contrary to his Laws yet will by no means have this King counted a Tyrant But I will not trouble my self about trifles much less maintaine that the Lords or Commons had any Authority to use King Richard as they did since it is a contradiction that any power should Judge that on which it depends and who dieing that is immediatly dissolved since our Kings have ever been trusted with the Prerogative of calling and dissolving Parliaments and certainly they can never be supposed to let them sit to depose themselves And of this opinion was Bracton lib. 1. cap. 8. Si autem ab eo petatur cum breve non currat contra ipsum Locus erit supplicationi quod factum suum corrigat emendat quod si non fecerit satis sufficit ei ad paenam quod Dominum expectet ultorem But to return where we left off if it be granted that Kings do Swear to observe all the laws of their Kingdomes yet this Author is so good a casuist that he can as easily absolve their Consciences as the Pope himself For says he Patriarch p. 97. no man can think it reason that Kings should be more bound by their voluntary Oaths then Common persons are by theirs now if aprivate man make a contract either with or without an Oath he is no farther bound then the equity and justice of the contract ties him for a man may have relief against an unreasonable and unjust promise if either deceit or Errour or force or fear induced him thereunto Or if it be hurtful or grievous in the performance and since the Laws in many cases give the King a Prerogative above common Persons I see no reason why he should be denyed that Priviledg which the meanest of his Subjects doth enjoy I know not to what end the Author writ this Paragrph unless it were to make the world beleive that when when Kings take their Coronation Oaths they do it not freely but only are drawn in by the Bishops or over-awed by the great Lords that they do not understand what they do and so are meerly choused or frighted into it by Fraud or Force A very fine excuse for a Prince for so solemn an action and which he hath had time enough to consider of and advise with his own Conscience whether he may take it or no That he can be said to be induced by Fear or Force who was a lawful King before and only uses this ceremony to let his Subjects see the reallity of his intentions towards them And that nothing shall prevail with him to break his Oath which he hath made before God That he will preserve those Laws and rights of his Subjects which he does not grant but find them in possession of But as for this relief against an unreasonable or unjust promise as the Author terms it If by those words he means a promise or grant that may tend to some damage or inconvenience of the Promiser or Grantor to some right or Jurisdiction that the Grantor might have enjoyed had it not been granted away either by his Ancestors or himself If the Promise were full and perfect or the grant not obtained either by fear force or Fraud all Civilians and Divines hold that the Promiser or Grantor is obliged to the Promise and cannot take away the thing granted though it were in his power so to do For David makes it part of the Character of the upright man Psal XV. 4. and who shall dwell in Gods Tabernacle that sweareth to his own hurt and changeth not But our Author hath found a way to set all men loose from their Oaths or contracts if they be any thing grievous or hurtful in the performance that is if the Promiser or Grantor think it so and Kings must have at least as much and in most cases a greater Prerogative than common Persons ' It was a thousand pitties this Author was not Confessor to King H. III. He might then have saved him the sending to Rome for a dispensation of his Oath for the observance of Magna charta which he had made before in Parliament at Oxford Anno Regni 21. and taught him and all Princes else a nearer way to be freed from their Coronation Oaths if ever they find them uneafie
whilst they are well used which if they come to be depraved by those that are in power the same things are counted wicked and unprofitable So likewise p. 73. he makes the Multitude or People of Rome to have elected Nero Heliogabalus Otho and Vitellius for Emperours and to have murdered Pertinax Alexander Severus Gordiun and the rest there named whereas whoever reads the Historians of those times will find it was not the People or Senate but the Army that either elected or murdered Emperours And as for Nero the Senate had never dared to have declared him a publick Enemy had he not become so odious and intolerable that nobody would take Arms for him and that the Army under Galba which had revolted and chosen him Emperour was then marching to Rome So that indeed these Emperours were torn in pieces by the Dogs they themselves fed and kept constantly in pay to prevent the People who had not yet quite forgot their former Liberty from recovering it again And the People of Rome had just as great a hand in the setting up and putting down Emperours as those of Stambola have had in the deposing or setting up those Grand Seigniors which the Janizaries their Guards have strangled of late years setting up their Uncles or Brothers in their rooms or as the People of England had in setting up either Oliver or his Son Richard for Protectors But leaving these lesser Mistakes which I look upon onely as the Transports of the Author's Resentments against Popular Government in which I shall not contradict him in the main onely I would fain lay the Saddle upon the right Horse and not blame them for the faults committed by a standing Army which in those times domineer'd over both Emperour and the People of Rome and imposed upon them what Emperour they pleas'd though never so base and unworthy I shall therefore in the last place come to the second point I before proposed whether the person on whom the Fathers of Families upon this Escheat of the Crown confers their Authority owe the same to them or else immediately to God The Author in the passage before cited will by no means grant That the person so elected claims his Power from the People but as being substituted properly by God from whom he receives his Royal Charter of an universal Father though testified by the Ministry of the Heads of the People Which Assertion is built upon grounds altogether false and precarious as I have already proved For first he here supposes That God hath given by divine grant all Fathers in the state of Nature an absolute despotick power over the persons of their Sons so that they may sell or otherwise transfer this Fatherly power to whom they please And secondly That the Children are as much obliged to obey those to whom the Fathers transfer this Right as they were their Fathers themselves Thirdly That this Power so transferred does not properly derive it self from the Fathers who so pass over their Fatherly power but to God who conferred it on them at first In which Hypothesis every one of the Propositions are false For first I have proved that no Father hath by any divine Grant or Charter an absolute despotick power over the person of his Son Or secondly that God hath given Fathers a power to bequeath or transfer their Authority to another so that the Grantee should by this Assignement succeed to all the Rights of a Father and therefore the two former being false the last of Princes receiving their power immediately from God which is built upon them must be so too And besides it is evident that these Fathers do not onely here pass over a Fatherly power of governing of their Wives and Children but likewise that of governing themselves not as Fathers but as men since they must transfer this power whether they had Wives or Children or not else they might onely pass over to this new Monarch their power over their Wives and Children and reserve the power of governing themselves still So that it is plain there is a power different from that of a Father to be transferred But if it may be replyed They may chuse themselves a Father if they please indeed I have heard of a mans adopting of a Son which still must be by this Son 's own consent yet I never heard of a Son 's adopting himself a Father or that a Father which is a natural Relation can be created at mans pleasure it is true a Lord or Master may but he cannot thereby challenge that natural Reverence and Gratitude due onely to a Father So that if Fathers have a power of governing themselves and their actions in the state of Nature and that they can confer this Right on any other it is evident they do not confer this as a Paternal power on their Monarch which the Author supposes to be granted by God to all Fathers We shall now come to the second Head at first proposed and examine what power a Master of a separate Family hath over his Slaves or Servants in the state of Nature First As for hired Servants though it is true they may submit themselves to the will and disposal of another what Diet they shall eat and what Clothes they shall wear what work they shall do and what hours of rest or sleep they shall have to themselves and that the Master may beat or correct him if he do amiss and through wilfulness or negligence disobey his Masters commands and that these are the Conditions that most hired Servants being part of their Masters Family do serve upon yet is this not so properly an absolute Obedience as a duty of Truth and Honesty in the Servant since as he is bound to perform his part of the Contract so likewise is the Master to perform what he hath promised them since this service is neither absolute nor perpetual so that when his time is out he is free of course And if in the mean time the Master does not allow him sufficient Food Clothes or hours of rest so that he may be able to perform his work this Servant in the state of Nature if he cannot perswade his Master to use him better may without doubt quit his service as soon as he can since he was to yield his Master his Labour upon certain Conditions which not performed on the Masters part the Servant is not obliged any longer to perform his part of the Bargain in living with him or serving him And as for those that have sold or yielded themselves up as absolute perpetual Servants or Slaves to the government of another I see no reason why they may not in this state of Nature make certain Conditions with their Master before they will give themselves up to him since if a man may covenant with another upon what condition he will serve him for seven years why may he not do the same for his whole life So that upon the non-performance of these