have already given you an example of the Negroes in Africa and which of these two inconveniencies are most likely to happen between Children and Parents in the State of Nature I should leave is to any indifferent Man to judge between us And therefore I think it more conduces to the good and peace of Families and consequently the happiness and preservation of Mankind which are the end of all Laws that Children should be allowed these Rights I have alâ—erdy laid down of asserting this Natural Liberty from Slavery and defending their Lives and those of their Wives and Children from the unjust violence of their Fathers than that they should be left wholly at disposal to be maimed killed or ruined when over this coveteousness passion or malice may prompt them to it Sence if all Fathers were satisfied that their Children have a Right thus to defend themselves in these Cases against their unjust violence it would be a means to make them act more catiously and to behave themselves with greater tenderness and moderation towards them So than to conclude I utterly deny that these Principles I have here laid down do at all rend to countenance Rebellion or raising disturbances in Civil Governments since I cannot allow you have proved Parents to be Princes or Monarchs in the State of Nature or that Families and Kingdoms or Commonwealths are all one Or if I should grant them to be so yet would it not therefore follow that every private Subject in a Civil State hath the same Right to defend his life or that of his Wife and Children against the violence or injustice of the Supream Powers as a Son may have in the State of Nature to defend his life c. against his Fathers rage or violence since I grant no particular Subject can contradict or resist the Supream Power of the Lawfull Magistrate however unjustly exercised by force without disturbing or at least endangering the quiet and happiness of the whole Community and perhaps the dissolution of the Government it self which is against the duty not only of a good Subject but also of an honest Moral Man who will not disturb the publick tranquility for his own private security or revenge But in private Families the Case is otherwise and Children may resist their Father in the Cases already put without introducing either Anarchy or Civil War in the Family since it can scarce be presumed that either their Mother Brothers or Sisters will take part with a Son or Brother against their Husband and Father unless it ware that they might thereby hinder him from committing murder by defending their Son or Brothers life when thus violently and without cause assaulted and if it should sometimes happen otherwise yet this would be a much less mischief then that out of this fear the Lives and Liberties of an innocent Wife and Children should suffer without cause by his drunkenness or passion But as for the resistance which Sons may make in the State of Nature and when separated from their Fathers Families it is of a much larger extent since they may then not only defend their own Lives but also those of their Wives and Children with their Estates against their Fathers unjust violence Thò I do here likewise restrain this self-defence only to cases of actual invasion or asault of such Fathers upon the Lives and Estates of his Children in which cases I also absolutely condemn all actions and proceedings done by way of prevention before such violence or assault is actually begun to be made upon them much less do I allow of any revenge or return of evil for evil by such Children when the danger is over since however such revenge may be Lawful between Persons in the State of Nature no ways related or oblieged to each other yet do I by no means allow the same Priviledge to Children against their Parents since I look upon the obligation they have to them to be of so high a Nature that it can never totally be cancelled thô in those cases of self-preservation and defence they may be suspended for a time As if I owed my life and all that I have to some great Person who hath either saved the one or bestowed the other upon me thô I should be very undutiful and ungratful too if upon his becoming my Enemy thô without any just cause I should go about to return his injuries in the same kind yet were I not therefore obliged to give up that Life and Estate he had before bestowed upon me when ever he thought fit without any just occasion to take them away and I am confident that Resistance in these cases and with these restrictions doth neither derogate from that Gratitude and Piety which Children always ought to pay their Fathers nor yet can tend to encourage either Anarchy or Rebellion since such Sons when once married and are become Masters or Heads of Families themselves they then cease to be under their Fathers Subjection as they were before tho I confess they are always to honour and reverence him according to Gods Command in all cases when they will deal with them as Fathers and not as Enemies M. I shall no longer dispute this Right of Resistance in Children in the Cases you have put since I see it is to little purpose to argue longer with you about it but this much I think is still true that all Supream Powers whatever cannot without Rebellion and absolute dissolution of the Government be risisted by the Subject so that if the Government of Fathers or Heads of Families be Supream as you seem to grant that cannot be resisted neither without bringing all things therein to Anarchy and confusion F. Pray give me leave Sir to interrupt you a little I desire you to remember that I do not allow the Power of Fathers or Masters of Families to be any more then Oeconomical and not Civil Power and I have already shewed you how Resistance of such a Power when violently and unjustly exercised may be resisted without any Anarchy or confusion in the Family but as for Resistance of Civil Powers in some Cases it is not the Subject of this discourse and therefore I desire you would now mind the Subject in Hand and not pass off to any other till we have dispatcht this so that I would rather if you have any fresh objections to make that you would now do it because it groweth late M. I must confess ingeniously your Arguments have much sâ—aggered me since I see great inconveniencies may happen on either side for if the Father or Master may be the sole Judg when and how he may exercise this absolute Power I grant all those mischiefs may sometimes fall out which you have here set forth so on the other side if the Children may be Judges in their own case those evils may often happen which I have already alledged And therefore pray pardon me if I am not too hasty in altering my opinion in
Superior to both of them and him interposed and diverted or rather over-ruled it For 1. If a Priority of Being gave Adam a power over his Wife it gave him much more so over his Children 2. If God's taking Eve out of Adam the forming her of one of his Ribs without his concurrence did yet make her his Inferiour his Children were much more so which were derived from him and by his Act. 3. If she were formed for him not he for her and that was another reason this extended to his Children too who were begotten for the comfort and assistance of both him and her 4. When God put Eve under the Subjection of her Husband after the Fall her Children must needs be so too if they were not excepted but we Read of no exception 5. Is it not an Eternal Law of Nature that all Children should be subject to their Parents And did not this Law spread it self over the Face of all the Earth as Mankind encreased And whereas you would limit this Power of Parents over their Children both in its Extent and Duration this is purely owing to the Civil Laws of Nations and not to the Laws of Nature and is different in different places some having restrained the Poweâ— of Parents more and some less But God gave the Parents a Power of Life and Death over their own Children amongst his own People the Jews and that not limited in Duration neither for the Fathers Power over his Son was not determined but by his Death though they could not execute that Power but in the presence of a Magistrate And I am also sure that in all the Histories and Relations I have met with amongst civiliz'd Nations where it is not otherwise order'd by the Civil Laws of the Country all Husbands and Fathers have Power of Life and Death over their Wives and Children and so it is at this day amongst many Eastern Nations and was antiently amongst the Romans Gauls and Persians c. Which power I take not to have been given or conferred on them but rather left to them by the Civil Laws of their Country in the same state as it was establisht by the Law of Nature or rather Nations Now if such Husbands and Fathers antiently had and still have a power of Life and Death in divers Countries over their Wives and Children I desire to know what higher power they could enjoy since he that hath power over a Man's Life which is of the highest concern to him may certainly command him in all things else But as for your last Scruple that you cannot see if Monarchy be of Divine Institution how any Government but that can be lawfully set up or obeyed by Men I think it may be a satisfactory Answer if I tell you that if those who are Born under a Monarchy can justifie the Form they live under to be God's Ordinance they are not bound to forbear their own Justification because others cannot do the like for the Forms they live under let others look to the defence of their own Government If it cannot be proved or shewed that any other Form of Government had ever any Lawful beginning but was brought in or erected by Rebellion must therefore the Lawful and Just Obedience to Monarchy be denied to be the Ordinance of God F. I hope before I have done to give you a clearer Original from the Law of Nature as well of Paternal Authority as Civil Government without recurring to Divine Revelation which as I said before would oblige none but Jews and Christians or Mahometans whose Law is a mixture of both the other In the mean time give me leave to tell you that Eve's being the Representative of all Wives did not put either her self or her Daughters into any absolute Subjection either to Adam or their Husbands if it did then could not this Subjection be likewise owing either to Adam as the Patriarch or Grandfather of the Family or to his Eldest Son after his Decease since this would make every Wife in the state of Nature to have had two absolute Lords her Husband and her Husband's Father which is contrary to our Saviour's Rule That no man can serve two Masters that is in the same kind of Service And therefore it plainly makes out my distinction that there is a great deal of difference between a Conjugal Submission of a Wife to her Husband and a Servile Subjection of a Servant to his Lord as also of that Obedience or Duty which a Subject oweth his Soveraign since by your own Hypothesis it necessarily follows that either Cain's Wife for Example was not to be subject to her Husband or else must be free from all Subjection to her Father Adam But as for any Submission to Cain as Elder Brother after Adam's Decease I desire to be excused medling with it till we have dispatcht the Question in hand I come now to those fresh Considerations you bring for this Monarchical power of Adam for indeed I cannot call them new Arguments because most of them have been answered already The first Consideration is from the Priority of the Being which you suppose gave Adam a Power over his Wife and consequently over his Children but I think his Priority of Being could give him no such Power at all over her and consequently not over them for I desire to know whether if God had been pleased to have Created the same day that Eve was made twenty single Men and their Wives that therefore Adam must have been from his being first Created Monarch over them all unless God had particularly commanded it I grant indeed that from God's Creating Eve out of Adam it did render her inferiour to him and also from God's express command that she was to be subject to him in all Conjugal Duties yet did neither of these render her or her Children absolute of perpetual Subjects and Slaves to Adam And that their being deriv'd from him or by his Act doth not at all alter the Case I have already proved As for the third that if she wene formed for him and not he for her that this must be another reason which must extend to his Children too Here the Assumption is not only false but the Consequence too For she was not only formed for him but that they might be a mutual help to each other and therefore the Scripture tell us A Man shall leave his Father and his Mother and shall cleave unto hit Wife and they two shall be one Flesh which words in my Opinion are very far from proving any such absolute Subjection for no Man can ever tyrannize over his own Flesh and if such an absolute Subjection had been intended from Eve to Adam it had been more consonant to reason for the Scripture to have enjoyn'd her to have left her Father and Mother to cleave to her Husband Whereas indeed there was no more meant by this Text than that when a Man marries he may freely
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
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
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
Son do what you can and so consequently you will still owe him Subjection For it is a maxime not only of the Civil Law but that of Nature too and this most of all in the State of Nature that is before Civil Laws had restrained thaâ— Paternal Power Iura Sanguinis nullo delicto dirimi possunt and lastly from the fourth Commandment of Honour the Father c. Now no Man can tender honour to him whom he goeth about to resist and so may also destroy F. I consists you have urged this Argument as home as the thing will bear but yet I think I can shew you that the Son is so far from acting against the Law of Nature in thus resisting his Father that I think he would rather transgress it if he acted otherwise But first to answer your Arguments I deny that either Generation or Education do confer so great a benefit that a Man is obliged to Sacrifice himself his Wife and Children and all he hath in return for it First for Generation I suppose you will not much insist on that since you must grant that a Father doth not act in that matter as a voluntary but Natural Agent neither is it in his Power to hinder the Child that he gets from being conceived or born neither did he get him so much to propagate his Speâ—ies as to gratify his own present natural appetite Then for Education which I grant is much the greater obligation since by the former I am only born an irrational helpless Creature but by the other I am made a reasonable Man able to help and provide for my self and knowing my duty to God and other Men yet even these obligations are not great enough to make me Sacrifice my self and all that I have to his fury or humour I grant indeed that if it were to save a kind Father's life a Son may be obliged to venture nay lay down his life to perform it but I deny that even for such a Father he hath a Right to give up the lives of others which are not at his disposal as those of his Wife and Children are not in this case For this were not only to return more than was first given but also to pay debts with that which is not my own and to give up their lives and let my Father take them away is all one if I can hinder it qui non prohibet facit Then as for the Relation of a Father which you say no fault of his can obliterate or destroy you must grant that it may be suspended for a time as when a Man binds or resists his mad or druken Father who would kill him or his Wife or Children he doth not do it to the Father but to the mad Man or Drunkard and so likwise in this Case he doth not resist his Father but a furious unreasonable Creature who is so far from behaving himself as becomes a Father that he doth not act like a Man Nor doth your Maxime hold true in all Cases and therefore is no Law of Nature for Iura Sanguinis aliquo delicto dirimi possunt or else a Father could never put his Son to death for any crime whatever which you have affirmed he may but certainly when he acts thus it is not as a Father nor doth he destroy him as a Son but an Enemy or Malefactor Now I desire you or any indifferent Man to consider since the common good of Mankind is the sum of all the the Laws of Nature and the great rule by which they are to be tryed which rule is to be preferred and conduces more thereunto when they cannot consist at once or together That a Father who by your own confession comes to do an unlawful wicked action viz. to ruine and destroy his Son with his Wife and Children should be resisted and consequently one Mans life put in hazard than that many innocent Persons should be ruined and perhaps starved to death for want of food and shelter And as for the fifth Commandment that extends no more to the Father than to the Mother thô you are pleased to leave her out because it makes against your opinion and therefore if by Honour is meant Thou shalt no resist then no Man should resist his Mother any more than his Father if she went about to kill him and yet not the Mother but the Father is by your Hypothesis the natural Monarch that hath this Power of Life and Death over the Son But let us pursue this point no farther if you will not be convinced I cannot help it But pray tell me now what a Son must do if his Father transported by fury and malice should go about to kill him with a Sword or other Weapon and that he hath no other way left to save his life neither by intreaty nor flight which I grant ought to be done if possible whether he may resist his Father with what next comes to hand or suffer himself to be killed M. I am much better satisfyed in this Case than in the other that he ought rather to let his Father take away his life than resist him since here is but one life to be lost whereas I confess the other Case was harder because there were more lives concerned than the Sons and I am of this opinion partly for the same reasons as before and partly because 't is more suitable both to Reason and the Law of Nature as also to Holy Scripture Preceps and Examples For iâ— St. Peter command Servants to be Subject to their Masters c. Not only to thâ— good and gentle but also to the froward And if Servants much more Sons who owe their Fathers a higher duty and obedience than Servants can owe their Masters and Isaac was so far convinced that his Father Abraham had Power over his life that thô he was a lusty young Man and could carry Wood enough to consume a Burnt-offering yet do we not find that he offered in the least to resist his Father when he was about to bind him to be Sacrificed For he very well knew that his Father could not be resisted without endangering his life if not taking it away in the scuffle and sure you will grant that a Son ought rather of the two to let his Father kill him than he take away his life by whose means he received his own especially since Abraham was the Master of a great Family and in whose life and well being not only his Mother but all the Family had an interest as necessary for their well being and happiness Nor can I think that Abraham would have so readily assented to God's Command for the doing of it had he not been already satisfyed that he had an unaccountable power of Life and Death over his Son by the Laws of God and Nature F. In the first place to answer your authorities from Scripture as for that place of St Peter you have cited iâ— is not a precept given by
this would introduce great mischief and confusion in privte Families so would it likewise prove a Foundation of Rebellion against all Civil Powers whatsoever if Subjects who are the same thing in a Kingdom that Children are in a Family in the State of Nature should take upon them to resist their Prince when ever they think he goeth about to invade either their Lives or Fortunes which would likewise serve to justify all the most horrid Rebellions in the World since all Rebels whatsoever may or do pretend that their Lives Liberties and Fortunes are unjustly invaded when indeed they are not and Likewise upon the least hardship or injustice in this kind inflicted upon any private Subject either by the Prince or his Ministers which abuses and violences do often happen even under the Best Governments any such private Person who shall think himself thus injured may upon this principle take up Arms and endeavour to right or defend himself against such violence by which means under pretence of securing a few Men in their Lives or Estates whole Kingdoms if such Persons can find follows enough may be cast into all the mischiefs and confusions of a Civil War till the Prince and Government be quite destroyed F. I must confess the Arguments you now bring are the best you have yet produced since they are drawn from that great and certain Law of procuring the common good and peace of mankind But I hope I shall make it plain to you that no such terrible consequences will follow from the Principles I have already laid down and therefore I must first take notice that you have in your answer confounded two Powers together which ought to be distingishued in the State of Nature viz. The Power which Fathers as Masters or Heads of Families may exercise over the Lives of their Children or Servants whilst they remain Members of their Family and that reverence and duty which Children must always owe their Fathers as long as they live even after they become Fathers or Masters of Families of their own In the first State I have already allowed that such Fathers as Masters of Families may Lawfully exercise a far greater Power over their Children whilst they are members of their Family than they can when they are seperated from it yet is not this Power in all Cases absolute or irresistible as I have already proved and therefore I do in the first place restrain this Right of self-defence only to such Cases where a Father would take away a Sons life in a fit of drunkenness madness or sudden passion without any crime committed or just cause given which I also limit to a bare self defence without injuring or taking away the life of the Father if it can possibly be avoided and in this Case if the Son who is like to suffer this violence may not judge when his life is really in danger to be destroyed because he may pretend so when really it is not This is no just reason to overthrow so great a Right as self Preservation since if this were a sufficient objection it would have the same force against all self defence whatsoever For it doth often happen that wicked and unreasonable Men will pretend that they were forced to take away the lives of others only to preserve their own when indeed it was altogether false and needless and they only killed them to satisfy their own malice or passion And therefore as there is no reason that the abuse of this natural Right should be used as an Argument against the use of all self-defence by any Man whatsoever So likewise neither ought the like abuse hereof by some wicked Children to be brought as an Argument against its being made use of at all by others who are never so unjustly assaulted and in danger of their Lives from their Fathers violence If the first principle be true on which this is founded that a Son may excercise this Right of self-defence in such Cases without any intrenchment upon his Fathers Paternal Authority or that Filial duty and respect which he must always owe him when ever he returns to himself and will behave himself towards him as becomes a Father and not like an Enemy or Cut-throat And as for the quarrels and confusions which you alledge may happen in Families between Fathers and Children in case such a liberty should be allowed those inconveniencies will prove very inconsiderable if you please to take Notice That first I do not allow this Right of resistance to be exercised by any Children before they attain to years of discretion Secondly that after they have attained to these years no resistance ought to be made against a Father whilst they remain part of their Fathers Family but only in defence of their own their Mothers Wives and Childrens Lives since I grant that a Son as long as he continues a member of his Fathers Family ought to bestow all his own labour for his Fathers profit and cannot acquire any property either in Lands or Goods without his Fathers consent And since you conceive this Right of self-defence if allowed to Children would be the cause of so great mischiefs in Families if Children should have no Right to judge when their Fathers abused their power over them let us a little consider on which side this abuse is most likely to happen for if you please but to look into the World and survey the Nature of Fathers and Children and set the faults of the one against the other you will find that as I confess it is the Nature of many Children to contradict and disobey their Fathers Commands and that most young people hate restraint and love too much liberty and may oftentimes think their Fathers too harsh or severe to them when really they are not yet doth such false surmises and disobedient actions seldom end either in absolute resistance or taking away their Fathers lives by force or if they do so it is really done for their own defence or whilst they are assaulted by them in their own Lives or those of their Children but is commonly acted privately to satisfie their own revenge or malice which I hold to be utterly unlawful so likewise let us consider on the other side those temptations that Fathers lye under of injuring their Children or taking away their Lives or uâ—ing them like Slaves without any just Cause you 'll find that they by reason of their age natural temper or infirmities may be easily transported to that degree of passion that not considering the follies of Youth they may oftentimes in their passion either beat them so cruelly as utterly to disable or maime them or else take away their Lives for little or no Cause And besides Fathers being often covetous and ill-natured which are the vices of old age may where there is no power over them to restrain them from it either keep them as Slaves themselves or else sell them to others for that purpose as I
of this Divine Power of Adam but this I am sure of Parents can never signifie Heirs Male or Female much less a Child who may sometimes according to your hypothesis happen to be Heir but since I am gotten into this mistake I shall not leave my hold but shall make bold a little to argue our Great Grand Mother's Title for indeed I cannot see any reason why her Eldest Son for Example should have any right to Govern his Mother and all his Brothers and Sisters whilst she was alive For first if your Argument from Generation must be good that every man that is born becomes a subject to him that begets him this Argument will serve for Eve as well as Adam since as I have already proved the Mother hath as great if not a greater share in the Generation of the Children than the Father Or secondly if you insist upon the Divine grant you so much â—â—lked of last time of Adam's Dominion over the Creatures in which his Children were included I then proved to you that this Grant was made as well to Eve as Adam And consequently thâ— either she must have thereby an equal right with him or at least after his Decease to this Dominion as a Husband and Wife when joynt Purchasers have to an Eâ—tate at Common Law And lastly If the Commandment of Honour thy Father and thy Mother were then in Force by the Law of Nature or by express Command from God and that by Honouring obeying must be meant as most Commentators agree then it will follow that after Adams Decease all Eves Sons and Descendants tho' never so remoâ—e were to have obeyed or been subject to her and not to her Eldest Son unless you can shew me that the Salique Law against the succession of Women was made by Adam the first Monarch which I suppose you will not undertake to prove M. I must confess I did not consider this difficulty for indeed it might never have happened since Eve might have died before Adam or if she did out-live him which is uncertain yet she was then very old and consequently besides the natural weakness of her Sex uncapable or unfit for Government and so might very well leave it to Seth since Cain the Eldest had by the Murder of his Brother and his flying away into another Country forfeited his Birth-right and made himself uncapable of the Succession F. So then here is a Forfeiture and an Abdication of this Divine Right of Succession in the very first Descent whereas indeed I supposed that this Divine Right had been at least as unforfeitable as the Crown of England the very Descent of which as our Lawyers tell us purges all defects in the next Heir tho' he had murdered his Father and Elder Brother too But I only shew you the absurdity of this Notion and shall not longer insist upon it therefore pray procâ—ed M. I cannot tell what might have been said if Cain had come to claim his Birth-Right but this is certain that he neither did or could come to do it since God condemned him to live in a strange Country far from his Brethren and we read That Cain went out from the presence of the Lord and dwelt in the Land of Nod on the East of Eden and he built a City and called the Name of it Enoch after the Name of his Son Enoch And there are four descents set down immediately of his Family which could be no other than the Princes of that City of Cain's Race So that you see even in Cain's Line the Principality descended to the Eldest Son F. I confess Cain's Children and Grand-Children are particularly set down in Scripture but that they were Princes or Monarchs over their Posterity or which way this City was Governed after Cain's Death whether by one or by all the Sons of Cain is no where mentioned but I see some Men can find even absolute Monarchy in a Text where the Scripture mentions no such thing and no wonder for the Alchymists have found out likewise the invention of their Elixir or Philosophers Stone in such Texts as you or I can see no such thing But to be more serious That a Father should be Lord over his Children and Posterity I confess there may be some colour of reason tho' none cogent enough to make it out But that an Elder Brother hath any Natural or Divine Right to be Lord over all the rest of his Brethren I can find no ground for in reason even upon your own Principles for if every Man by his Birth become the subject of him that begets him it will necessarily follow that a Man by his Birth cannot become a subject to his Brother who sure did not beget him Therefore I suppose you will still insist upon that place in the fourth of Genesis which you cited at our last Meeting when God told Cain speaking as you suppose of his Brother Abel His desire shall be subject unto thee and thou shalt Rule over him From which words I then told you I thought an absolute subjection of Abel and of all younger Brothers whatsoever could not reasonably be inferred for you may remember I shewed you that this Promise by God to Cain concerning Abel might be only personal and relate to Abel only and not to the rest of his Brethren much less all other younger Brothers that should be in the World And in the next place this Ruling might only have been by advice and perswasion and not by any Authority or Right of commanding him So that if this be the place as I suppose it is from whence you would deduce your Divine Right of Elder Brothers being Monarcâ—s over the younger in all Hereditary Monarchies I must freely tell you I think it a very bold undertaking to found a Divine Right upon such doubtful expressions as these of God to Cain M. I confess I was now about again to urge this place to you for as I was not then well satisfied with your explanation of it which you now again repeat so upon second thoughts I am much more unsatisfied with your Paraphrase upon them For you seem to me plainly to pervert the sense of the words and make them signifie just nothing For sure when God spake the same Words to Eve concerning Adam as he did to Cain concerning Abel can you conceive they were meant personally to Eve only and concerned no other Wife that should be after her Or can you assign any Reason why these words should be rather meant personally in the last and not in the first case Unless you will do it out of pure Love to Anarchy and confusion And if you say these words do not signifie any despotick Power but a Ruling or Governing by fair means or persuasion this seemeth meer trifling with Gods Word who says expresly Thy Brothers desire shall be Subject to thee That is say you as far as he thinks fit and thou shalt rule over him that is if
Indeed you tell me that God ordered it so by appointing every Nation a distinct Language and to be led by the Ancestor of their Family This is altogether gratis dictum for tho' it be true that the Scripture says That this Division of Tongues was made according to the different Tribes or Families of these Descendants of Noah yet doth it no where mention their being led or commanded by Seventy two Grand-fathers Patriarchs and there might be for ought that you or I know not only Seventy two but Seven-score such Captains or Leaders of them Nay every distinct Father of a Family when this Monarchical Power came to be crumbled into so many parts might as well have claimed a share in this Regal Power they being by this Confusion wholly reduced again into a State of Nature Nor are your Reasons sufficient to convince me of the contrary As for your first Reason that God hath not suffered it to be so signifies little for either he hath hindered it by an express Command or by the Ordinary Course of his Providence The former I am sure you can no where shew me and as for the latter when ever any Nation or People shall be pressed with the like Necessity of separating themselves from the Government under which they were born as the several Families of Mankind had at this Division of Tongues I see no reason why they may not have a like Right of quitting their Countrey and becoming Subjects to another Government or else of setting up one of their own if they can As for your second Reason that Monarchs would be sure to reduce to their Subjection any person that should offer to divide himself and Family from the rest and set up for an Independant State without their good leave and liking This is a good Argument indeed thaâ— they might not be able to do it but none at all that they ought not to do it if they could since this were but to exercise that Supreme Paternal Authority with which God hath invested them as much as ever â—e did any of those Seventy two Descendants of Noah who set up so many New Governments without the Consent of Noah's Heir Your third Reason I confess is somewhat better That the Necessity of Mankind prevented it but this also makes quite against you and only proves that the Heads or Masters of Families being sensible they could not preserve themselves but by uniting with others for their mutual Safety and Protectioâ— were fain to submit tho' bâ— their own Consents to some Common Power for their own as well as their Families Preservation So that I cannot see from any thing you have said that God had that great care you suppose of maintaining your Patriarchal Power much less this Divine Right of Primogeniâ—ure M. I see it is to no purpose to wrangle with you any farther about the Patriarchal Power of these Sons of Noah and therefore I shall proceed to the Times after the Confusion of Tongues in which the first Instance I shall give you is that of Iacob who when he had bought his Brothers Birth-right Isaac blessed him thus Be Lord over thy Brethren and let the Sons of thy Mother bow down before thee By which is plainly denoted a Regal Power or Dominion over Esau his Brother and the rest of his Brethren if he had had any So likewise we find F. I pray give me leave to interrupt you alittle for I have a great deal to say to this Instance you have now brought of Iacob and Esau and therefore I desire I may speak it before you proceed any further And first by the way I cannot but observe that this Divine Right of Primogeniture which you suppose here to be meant by the word Birth-right was capable of being sold for a Mess of Pottage and all Esau's Heirs disinherited of their Right because their Father preferred his Belly before his Honour or Interest But if your Principles are true a Divine Right never dieth nor can be lost or taken away The second thing I must take notice of is your unfair dealing in making Isaac to have presently after this Sale of the Birth right and as it were in confirmation of it to have given Iacob his Blessing whereas it is apparent by this story in Gen. 25. that many years past perhaps twenty or thirty between Iacob's buying of this Birth-right and Isaac's conferring of the Blessing upon him as any one that will but read the 26th of Genesis may easily see But if you had better observed this Text you would have found that this Blessing was nor intended for Iacob but Esau for whom Isaac then mistook him but be it as it will whether the Blessing was given to Iacob or Esau it matters not for from these words I can by no means gather that any Government or Superiority was thereby conferred on Esau over Iacob or Iacob over Esau. For first as to Iacob this Blessing was never fulfilled as to be â—ord over Esau who was Prince of Mount Sâ—ir in Iacob's life time and as for bowing or any other token of Superiority we read indeed that Iacob at his meeting his Brother Esau bowed seven times towards him to the ground tho' he had before sold his Birth-right to Iacob and therefore this Birth-right cannot mean any Ruling Power or Lordship over his Brethren since it is manifest from the Text that Iacob had no more Brothers than Esau nor had Isaac any consideration of Iacob's having then bought this Birth-right for when he thus blessed him he took him not to be Iacob but Esau nor did Esau understand any connexion between the Birth-right and the Blessing for says he to his Father He hath supplanted me thâ—se two times he took away my Birth right and behold now he hath taken away my Blessing Whereas had this Blessing to be Lord over his Brethren belonged to the Birth-right Esau could not have complained of this second as a Cheat Iacob having got nothing but what Esau had sold him long before So that it is plain Dominion was not then understood to belong either to the Birth-right or Blessing And therefore it is more rational to suppose that this word Birth right only relates to the Right of Priesthood which the Jews supposed always to descend to the Eldest Son before the Law was given And that by Blessing is meant no more than that double portion of Goods which by the Jewish Law was due to the First-born and that this is the true sense of this place I desire you to look in Gen. 21.10 if you please to give me your Bible I will shew you the place and will read the words to you where Sarah taking Isaac to be Heir says Cast out this Bond-woman and her Son for the Son of this Bond-woman shall not be Heir with my Son Whereby could be meant nothing but that he should not have a Pretence to any equal share of his Fathers Estate after
his Death but should have his Portion presently and be gone And Farther we read Gen. 25.5 6. That Abraham gave all that he had unto Isaac but unto the Sons of the Concubines which Abraham had Abraham gave Gifts and sent them away from Isaac his Son while he yet lived that is Abraham having given Portions to all his other Sons and sent them away that which he had reserved being the greatest part of his Substance Isaac as Heir possessed after his Death but by being Heir he had no Right to be Lord over his Brethren For if he had why should Sarah desire to rob him of one of his Subjects or Slaves by desiring to have him sent away So likewise if you look into the first of Chron. chap. 5. v. 12. you will find a place that plainly confirms this Interpretation where it is said Reuben was the First-born but for as much as he defiled his Fathers Bed his Birth-right was given unto the Sons of Joseph the Son of Israel and the Genealogy is not to be reckoned after the Birth-right for Judah prevailed above his Brethren and of him came the Chief Ruler but the Birth-right was Joseph's tho' he was the Youngest Son and that this Birth right was Iacob's Blessing on Ioseph Gen. 58.28 tells us in these words Moreover I have given thee one Portion above thy Brethren which I took out of the hand of the Amorites with my Sword ' and with my Bow Whereby it is not only plain that the Birth-right was nothing but a double Portion but the Text in Chronicles is expresly against your Opinion and shews that Dominion was no part of the Birth-right for it tells us That Joseph had the Birth-right but Judah the Dominion So that unless you were very fond of this word Birth-right without considering in what sense it is to be taken you would never bring this Instance of Iacob and Esau to prove that Dominion belongs to the Eldest Son over his Brethren For if this Blessing of Isaac upon Iacob signifies any thing more than this it could not relate to his own Person who never Ruled over his Brother at all and therefore it is at most no more than a Prophecy shewing that the Jews as being descended from Iacob should in after-times Rule over the Edomites or Posterity of Esau according to what Rebekah had been foretold from God Two Nations are in thy Womb and two manner of People shall be separated from thy Bowels and the one People shaâ—l be stronger than the other People and the Elder shall serve the Younger And so Iacob blessed Iudah and gave him tho' not in his own Person but in his Posterity the Scepter and Dominion From whence you might have argued as well that the Dominion belonged to the Third Son over his Brethren as well as from this Blessing of Isaac that it belonged to Iacob they being both but Predictions of what should long after happen to their Posterities and not declaring any Hereditary Right of Dominion in either Iacob or Iudah M. I will not rigorously insist that Primogeniture is such a Divine Right as cannot be altered by any Humane Act or Constitution but yet I take it to be such a Right that without the Father orders it otherwise in his life-time or that the Elder Brother doth of his own accord depart from his Right he will have a good Title to his Fathers Government or Kingdom and consequently to Command over the rest of his Brethren and therefore Grotius makes a great deal of difference between Hereditary and Patrimonial Kingdoms the former being to descend to the Eldest Son only but the latter are divisible amongst all the Sons if the Father please And hence I suppose it was that as Mankind encreased one petty Kingdom grew out of another Thus the Land of Canaan which was Peopled by six Sons of Canaan and Philistim the Son of Mizraim had eight or nine Kings in the time of Abraham and above thirty Kings in Ioshua's time which could proceed from no other Cause but the Fathers dividing their Kingdoms in their life-times or at their Death amongst their Sons and Descendants for we hear not of one Tittle of Popular Elections in those early days And I have proofs enough of this in Scripture Since thus we find it to have been among the Sons of Ishmael and Esau as appears by Gen. 25 and 26. where it is said These are the Sons of Ishmael and these are their Names by their Castles and Towns c. Twelve Princes of their Tribes and Families And these are the Names of the Dukes that came of Esau according to their Families and their Places by their Nations And hence it is that in after Ages Princes did often divide their Kingdoms amongst their Children of which you may see divers Examples in Grotius de I. B. L. II Cap. 7. which Divisions when made and submitted to by the Eldest Son I doubt not but were good Yet I think it cannot be denied for all this that by the Law of Nature or Nations where there is no Will of the Father declared to the contrary the Eldest Son ought to inherit And this is the Judgment not only of Christian but Heathen Writers Thus Herodotus the most Antient Greek Historian lays it down for a general Custom of all People or Nations that the Eldest Son should enjoy the Empire and the Romans were likewise of this Opinion and therefore Livy when he speaks of two Brothers of the Allâ—broges contending for the Kingdom says The Younger was more strong in Force than Right And in another place he calls this Right of the Eldest Son the Right of Age and Nature as also doth Trogus Pompaeius in his Epitome of Iustine when he calls it the Right of Nations and in another place a Right of Nature when he says that Artabazanes the Eldest Son of the King of Persia challenged the Kingdom himself which the Order of his Birth and Nature it self appointed amongst Nations I could give you many other Authorities from more Modern Authors but I rather chuse to give you these because you cannot except against them as Writers prepossest by either Jewish or Christian Principles So that if this Right of Primogeniture be not absolutely Divine yet it is at least most Natural and Reasonable F. I see you are convinced that this Divine Right of Primogeniture is not to be proved out of Scripture and therefore you are contented to fall a Peg lower and to take up with the Right of Eldership by the Law of Nature or Nations which howsoever you are pleased to confound them are for all that two distinct things for if the Succession of the Eldest Son were by the Law of Nature it were no more to be altered by the Will of a Father than the Law of God it self and therefore notwithstanding all your Quotations your Right of Primogeniture amounts to no more than this
that it hath been a Common and received Custom in many Kingdoms or Nations to observe it and therefore Herodotus whom you have now quoted calls it very rightly a Custom of Nations that the Eldest Son should enjoy the Empire Which yet is not true amongst all Nations or People by your own confession For then there would have been no difference between Hereditary and Patrimonial Kingdoms but the Eldest Son should have inherited alone in the one as well as in the other Unless you can suppose as sure you will not that some Kingdoms are to be disposed according to the Law of Nature and others not But if you would have considered Grotius whom you have now made use of he would have instructed you better For in the Chapter you have now cited he makes the difference between them to depend upon the manner of acquiring the Kingdoms he speaks of if you please I will shew you the words Sed in Regnorum Successione distingui debent Regna quae pleno modo possidentur in Patrimonio sunt ab his quae modum habendi accipiunt ex populi consensu de quo discrimine egimus supra Prioris generis Regna dividi possunt etiam inter Mares foeminas ut in Aegypto Britannia olim factum vidimus Nullo discrimine Sexus Reginam scit ferre Pharos ait Lucanus de Britannis Tacitus Neque enim Sexum in imperio discernunt But look a little farther and you will find the reason of the difference be-between them At ea Regna quae populi libero consensu facta sunt haereditaria ex praesumbia populi voluntate deferuntur Praesumitur autem populus id voluisse quod maxime expedit And of this you may see he giveth divers Examples which we need not particularly recite But this much is apparent that Patrimonial Kingdoms are divisible among all the Children because they are supposed to be wholly in the Father's Power either by Conquest or the first Plantation of them But Hereditary ones that descend to the Eldest Son can only become so by the free Consent of the People by whom they were Instituted and therefore both Ishmael and Esau whose Territories were wholly Patrimonial might very well divide them alike amongst all their Sons but then your Natural Right of Primogeniture is quite destroyed The like may be said of other Kingdoms where this Custom took place And therefore those places which you have cited out of the Greek and Roman Authors of the Succession of the Eldest Son to be by the Law of Nature is to be understood according to the sense of those Authors who often confounded the Law of Nature or Reason properly so called with those commonly used or received Customs among Civilized People which they called the Law of Nations which yet were not Laws properly so called since they may without any transgression of the Law of Nature be practised different ways And therefore tho' I allow Primogeniture as well in Families as Kingdoms to have had a just Preheminence by the Practice of many Civilized Nations and look upon it as an excellent sort of Natural Lot where the Elder Brother is fit to Govern that he should succeed before the Younger to avoid Strife among such Relations and Civil Wars in Kingdoms Yet that this is still to be understood according to the Custom of the Country or Will of the People that Instituted the Monarchy I desire to go no farther than that Example that you have but now brought of Artabazanes who was the Eldest Son of Artaxerxes but born before he was King and Xerxes his Younger Son but born after his obtaining the Crown the matter being referred to the People they determined it in favour of Xerxes as you will find in Herodotus and Iustin whom you have but now quoted And tho' I grant that when afterwards in the same Kingdom the like Controversie was started between Cyrus and Arsicas who was afterwards called Artaxerxes Mnemon iâ— was judged just the quite contrary way whether by Right or Favour I will not determine yet this may let you plainly see that this Antient and Wise Nation had no settled â—aw either Natural or Municipal concerning this matter I could give you several other Instances of the same kind which you may consult at your leisure in Grotius and other Authors only this much may be certainly gathered from what your self as well as I have said concerning it that there is no certain Rule or Law either of Nature or Nations concerning this matter And therefore your Instances of the Sons of Esau and Ishmael are so far from making out your Hypothesis that if their Fathers could divide â—heir Kingdoms into as many parts as they had Sons without any Subjection to the Elder Brother I can see no reason why every one of their Children or Descendants might not have done the like if they had pleased till their Principalities had become as small as those of the Princes Ashalt or Dukes of Saxony are at this day so that I cannot see to what purpose you have brought these last Instances out of Scripture unless it were to make against your self and to prove that there were then as there are now in the World a sort of Princes who may be lawfully so without claiming any Title from Adam or Noah much less by any Right of Primogeniture M. It is sufficient for my purpose to be able to shew you from these Examples of the Sons of Esau and Ishmael that as well Hereditary as Testamentary Kingdoms did Antiently commence according to the Law or received Custom amongst Nations without any consent of the People or Descendants of those that were to be Governed by them and as long as the Succession to such Kingdoms were by any certain or known Rule constantly practised among Mankind the matter is not much whether the Eldest Son succeed to his Father alone or that his Brethren shared with him in the Inheritance For since it was God's will to institute Civil Government amongst Mankind it must be also his Will to make the Succession to it clear and certain to all the Subjects that were to submit to it as he hath done whether one Brother or many succeed since the Will of the Father is as certain a Rule of Succession as that by Inheritance and therefore what you have said in answer to my last instances of the Sons of Esau and Israel signifies not much F. I did not then deny but grant at your last meeting that Families might at first grow up into Kingdoms but yet I do still as I did then assert that such Governments could not be instituted by any Father or Grand-Father alone without the express or tacit consent of his Children and Descendants supposing them once Married and separated from their Fathers or Ancestors Families but it is needless to repeat what I then said only give me leave to mind you that at the beginning of this Discourse you maintain'd that
not only Kingly Power in General but also the succession to it by the Eldest Son or his next Brother is of Divine Right or Institution or else all that you urged concerning the Natural right of Dominion of Cain over Abel was to no purpose But now you insist that succession by a Testament or Will of the Father is also as much by the Law of Nature as the other in which I think you are very much mistaken since the right of bequeathing Kingdoms or any thing else by Testament is neither prescribed by the Revealed Will of God nor the Laws of Nature since all setled Property in Lands or Goods before the institution of a Civil Government proceeding only from occupancy or possession must cease in the State of Nature with the life of the occupant or possessor Therefore in that state a Testament cannot take place by the Testators Death since as soon as he Dyeth his right in the thing bequeathed is quite lost and extinguished so that the Dead not having an interest in any thing the Legatee cannot sustain the person of the Testator whose Right ceases before that of the Legate can take place And therefore the Testament or Disposition of such things may then without any Crime be neglected or altered by the Survivors unless all those who pretend an interest in it do agree to it or swear to see it fulfilled during the Testators Life time And for this cause we find Abraham binding his Servant that ruled over his House with an Oath not to take a Wife for his Son of the Daughters of the Land And Iacob taking an Oath of Ioseph not to bury him in Egypt because they doubted whether they could oblige their Sons or Servants to do it by their Testaments So that it appears evident to me that the Power of making Testaments and bequeathing Lands or Goods is but a consequence of that Propriety in Lands Goods or Dominions which arises from compact or common consent in a Kingdom or Common-wealth after it is instituted as I think I am able to prove whenever you please to discourse with me farther about it But as for the Right of bequeathing Crowns or Kingdoms by Testament as I will not deny but that some Kingdoms may have been bequeathable by their Original Constitution and others become so by Custom yet I cannot grant that this Right belonged to the Prince or Monarch by the Laws of God or Nature but proceeded pâ—rely from the received Law or continued Custom of that Kingdom so that you must either confess that there is no such thing as a Divine Right of Succession or else it is such a one as signifies as much as nothing since humane Laws or Constitutions can alter it or take it away So that after all this Pother about this Divine Right it is not so good as an old Estate Tayle which formerly no fine could bar And I must farther tell you that I cannot assent to your opinion that succession by a Will or a Testament is so certain as that by Inheritance since all such Testaments must depend upon the Credit of the Witnesses whose Credit may often be questioned by the Subjects and who may very well for their own ends make a Younger Son to have the whole or at least a share in the Kingdom to whom his Father never intended any and which was likewise more easie to be done before such time as Written Wills or Testaments solemnly published according to forms of Law came in use But because you suppose that the Natural Laws of Succession to Kingdoms are so plain and certain that I may a little convince you of your mistake in this matter I shall for the present suppose that the Succession of an Elder Son or Brother is sufficiently easie to be known Yet I doubt it will not prove so in many other Instances And therefore to let you see I do not make this Scruple without cause suppose Abel for example to have left a Son or a Daughter behind him when his Brother murdered him pray tell me who was to succeed after the Death of Adam this Son or Daughter of Abel or Seth their Uncle M. We do not read of any Children that Abel had and therefore I cannot tell what to say to it F. Well but since it is probable he might have had Children pray tell me supposing he had whether this Child were it Son or Daughter or Seth the Uncle was to succeed M. Since you will needs have me speak my opinion in a thing so uncertain I think this Child were it Son or Daughter ought to have succeeded before the Uncle F. Pray Sir tell me by what Law or Rule you thus Judge Whether by the Law of God or Nature M. I must confess God hath prescribed nothing expresly concerning it more than what he says Numb 27. that if a man dies leaving no Sons ye shall cause his Inheritance to pass unto his Daughter with diverse other Rules of Succession to Inheritances there specified and besides it is more suitable to the Laws of Nature that the Children of the Elder Brother should inherit before their Uncle there being no reason that they should be punished for their Misfortune in having their Father Dye before he could succeed to the Government F. I doubt the place of Scripture you have cited doth not reach this Case of Kingdoms for first this being a Municipal Law of the Iews could only concern that Common-Wealth and secondly it only relates to Private Inheritances and that this is so may be proved from the next verse where it is said that a Mans Brethren shall be his Heirs that is all of them were to be Heirs alike only the Eldest was to have a double portion And if this Law concerning Daughters were to reach the Succession of Kingdoms at this day the Laws of France and other Countries where Women are barred from succeeding to the Crown would be against the Laws of God and Nature And the like may also be said concerning the Succession of the Nephews before their Uncles or of Uncles rather than the Nephews whose Fathers never injoyed the Crown diverse Nations having different Customs and that with a like appearance of reason concerning it For on the one hand if the Son of Abel might have pleaded that he was the first born of the Eldest Son of Adam and so ought to represent his Father Seth the Uncle might likewise with as good reason urge that he was more nearly related in Bloud to Adam as being his Son than the Son of Abel who was but his Grandson and besides being older than he was endued with more Wisdom and Experience and consequently was â—itter to Govern But if Abel left only one Daughter or more I doubt not but the question would have been harder to be decided since if Women are not permitted to Govern in Private Families they will not especially amongst Warlike Nations be admitted to Govern Kingdoms especially since
his People will no more prove that Government belonged to Adam's Heir as to his Fatherhood than God's chusing Aaron of the Tribe of Levi to be Priest will prove that the Priesthood belonged to Adam's Heir or the Prime Fathers since God could chuse Aaron to be Priest and Moses Ruler over Israel tho' neither of those Offices were settled on Adam's Heir or the first Patriarchs So likewise for what you say concerning God's raising up the Judges to defend his People proves Fatherly Authority to be the Original of Government just after the same rate and cannot God raise up such men unless Paternal Power give a Title to the Government But to come to your darling Instance the giving of the Israelites Kings whereby you suppose God re establisht the Antient Prime Right of Lineal Succession 〈◊〉 Paternal Government This I can by no means understand for if by Liâ—â—â—l Succession you mean to Adam I desire to know how you will make it out that either Saul or David could be Heirs of Adam's Power or how the Power that those Kings were endued with by God was the same Power which Abraham Isaac and Iacob enjoyed before For if you please to consider it your Hypothesis consists of two Propositions the first is that all Paternal Power is the same with Regal Power which if it be proved not to be true the other convertible Proposition which is but the Conversion of this will likewise be as false viz. that all Regal Power is Paternal Nor is what you said last of all any truer than the rest that whensoever God made choice of any person to be King he intended that the Issue I suppose you mean his Issue should have the benefit thereof For either Moses and Ioshua and the Judges were no Kings tho' you have asserted the former to be so or else they had not the benefit of this Grant But certainly Saul was a King and yet his Issue never succeeded but you speak very warily to suppose this Grant to be made to the Issue in general without specifying in particular who should enjoy it because I suppose you are sensible that Solomon whom God expresly appointed to be David's Successor and Iehoahaz whom the People of the Land made King in the room of Iosiah were neither of them Eldest Sons of the Kings their Fathers To conclude I desire you would shew me what Relation or Title all Kings or Princes now-a-days have or can claim as Heirs to Adam or Noah or how that Power with which God endued those Fathers of Mankind is the same which you say all Princes or Monarchs may now claim to be given them by God For I confess I can see no likeness or Relation at all between them M. It may indeed seem absurd to maintain that Kings now are the Fathers of their People since Experience shews the contrary It is true all Kings are not the Natural Parents of their Subjects yet they all either are or are to be reputed the next Heirs to those first Progenitors who were at first the Natural Parents of the whole People and in their Right succeed to the exercise of Supreme Jurisdiction and such Heirs are not only Lords of their own Children but also of their Brethren and all others that were subject to their Fathers And tho' I have all along supposed that Paternal Government was at first Monarchical yet I must likewise grant that when the World was replenished with People that this Paternal Government by Succession ceased and a new kind of it started up either by Election Conquest or Usurpation yet this was still Paternal Power which can never be lost or cease tho' it may be transferred or usurped or it may be ordained a new in a person who otherwise had no Right to it before Thus God who is the Giver of all Power may transfer it from the Father to the Son as he gave Saul a Fatherly Power over his Father Kish So that all Power on Earth is either derived or usurped from the Fatherly Power there being no Original to be found of any Power whatsoever for if there should be granted two sorts of Power without any subordination of one to the other they would be in perpetual strife which should be Supreme for two Supremes cannot agree if the Fatherly Power be Supreme then the Power of the People must be subordinate and depend on it if the Power of the People be Supreme then the Fatherly Power must submit to it and cannot be exercised without the Licence of the People which must quite destroy the frame and course of Nature F. If this be all you have to say for the proof of so weighty an Hypothesis I confess I wonder how you or any rational Man can lay so great stress upon it For tho' I should grant you that some Fathers of Families at first became by the tacit or express Consent of their Children and Descendants to be Kings or Princes over them doth it therefore follow that all Kings Govern by Right of Fatherhood at this day 'T is true you tell me that all Kings tho they are not now the Natural Fathers of their People Yet are still to be esteemed as such by them as Succeeding either as Heirs or Successors to those that were so I grant indeed if any Kings now adays could prove themselves right Heirs to Adam or Noah this were somewhat to the purpose but to talk of a Paternal Power proceeding from Election Conquest or Usurpation is perfect Iargon to me for pray tell me can a Man become endued with Paternal Power over me by my Electing him to be my King or can a Man by Conquest or Usurpation oblige me to yield him a Filial Duty and Obedience for if this were so if a Father of a separate Family such as Abraham was should be conquered by the head of another separate Family nay tho he were a Thief or a Robber if once the true Father were Killed or destroyed all the Children and Descendants of the Family must pay the same Duty and Obedience to this unjust Conquerour or Robber as to their true Father and the same may be said in Usurpations in case after the death of such a Father of a Family a Younger Brother or Nephew should get possession of the House and Estate and force all his Brethren and Kinsmen to Submit to him they must then all own him to be endued by God with the same Paternal Power which their Father or Grand-father had and consequently must Honour and Obey him as their true Father Both which examples being contrary to the Common sense and reason of Mankind may shew you how absurd this Hypothesis is whereas indeed Fatherhood being a Relation of Blood and the Duty and Respect we owe to him that is our Father proceeding from that Piety and Gratitude we owe him both for our Generation and Education how can this Relation or these Obligations be ever transferred to or
usurped by any other so that any other man can become my Father or I owe him that Filial Duty and Respect as to him that begot me and brought me up And tho' I grant that God may confer a Regal Power on whom he pleases either by his express Will or the ordinary course of his Providence yet when such a person who was not a King before doth become so I utterly deny that the Power he hath then conferred upon him is a Paternal Power in relation to his Subjects which is evident from your own Instance of Saul's becoming a King over his Father Kish For tho' you say that God then conferred a Fatherly Power on Saul over his own Father this is a great mistake For then Saul would have been immediately discharged from all the Duties of Piety and Gratitude which he owed his Father and they were all transferred from Kish to Saul so that after he became King he might have treated his Father with no more Respect or Deference than any other Subject which is contrary to God's Commandment that bids all Men Honour their Father and Mother And I know not how Kings can be excepted out of this Precept So that your mistake arises from this preposterous confounding of Paternal Authority with Regal Power And because Adam Noah or any other Father of a separate Family may be a Prince over it in the State of Nature that therefore every Monarch in the World is also endued with this Paternal Power Which that they are distinct may farther appear from your own supposed Monarchical Power of Adam who tho' granting him to have been a Prince over his Posterity yet did not this discharge any of his Descendants from their Duty and Obedience to their own Father And tho' I confess you talked at our last meeting of a Fatherly Power to be exercised in subordination to the Supreme Fatherly Power of Adam yet this is a meer Chimera for Filial Honour and Obedience being due by the Commandment only to a Man 's own Natural Father can never be due to two different persons at once since they may command contradictory things and then the Commandment of Honour that is obey thy Father cannot be observed in respect of both of them and therefore granting Adam or Noah to have exercised a Monarchical Power over their Children and Descendants it could not be as they were Fathers or Grand-fathers when their Sons or Grand-children were separated from them and were Heads of Families of their own for the reasons already given so that if they were Princes in their own Families whilst their Sons or Grand-children continued part of them it was only as Heads or Masters of their own Families but not by any such Patriarchal or Paternal Authority as you suppose But as for the Conclusion of your Discourse it being all built upon this false Foundation that all Power on Earth is derived or usurped from the Fatherly Power I need say no more to it For if that be false all that you argue from thence concerning the subordination of all other Powers to this will signifie nothing M. I think I can yet make out my Hypothesis notwithstanding all you have said against it For tho' I grant the Paternal Relation it self can never be usurped or transferred yet you may remember I at first affirmed that Adam was not only a Father but a King and Lord over his Family and a Son a Subject a Servant or a Slave were one and the same thing at first and the Father had power to dispose of sell or Alien his Children to any other whence we find the Sale and Gift of Children to have been much in use in the beginning of the World when Men had their Servants for a Possession and an Inheritance as well as other goods whereupon we find the Power of Castrating or making Eunuchs much in use in old times And as the Power of the Father may be lawfully transferred or aliened so it may be unjustly usurped And tho' I confess no Father or Master of a Family ought to use his Children thus Cruelly and Severely and that he sins mortally if he doth so yet neither they nor any Power under Heaven can call such an Independant Father or Monarch to an account or punish him for so doing F. I am glad at last we are come to an Issue of this doughty controversie and tho I forced you at our last meeting to confess that Fatherly Power was not despotical nor that Fathers upon any account Whatsoever were absolute Lords over their Children and all their Descendants in the State of Nature Yet now I see to preserve your Hypothesis You are fain to recur to this Despotical Power of Fathers in the State of Nature Because without supposing it and that it may be transferred or usurped Princes at this day whom without any cause you suppose to be endued with this Paternal Despotick Power could never claim any Title to their Subjects Allegiance And then much good may do you with your and Sr. R F's excellent discovery For if as you your self acknowledge Princes are no longer related in Blood to their Subjects any nearer than as we all proceed from Adam our Common Ancestor that relation being now so remote signifies little or nothing so that the true Paternal Authority being lost as you confess the Despotick Power of a Lord over his Servants or his Slaves only remains since therefore you make no difference in Nature between Subjects and Slaves then all Subjects Lye at the mercy of their Kings to be treated in all things like Slaves when ever they please And they may exercise an absolute Despotick Power over their Lives and Estates as they think fit So that I can see nothing that can hinder them from selling their Subjects or castrating them as the King of Mingrâ—lia doth his Subjects at this day and as the Great Turk and Persian Monarchs do use those Christian Children whom they take away from their Parents to make Eunuchs for their Sâ—raglio's and then I think you have brought Mankind to a very fine pass to be all created for the Will and Lust of so many single Men which if it ever could be the Ordinance of God I leave it to your self to judge M. I was prepared for this objection before and therefore I think it will make nothing against this Absolute Power with which I suppose God to have endued Adam and all other Monarchs at the first So that I am so far from thinking that this Doctrine will teach Princes Cruelty towards their Subjects that on the contrary nothing can better inculcate their Duty towards them For as God is the Author of a Paternal Monarchy so he is the Author of no other He introduced all but the first Man into the World under the Subjection of a Supream Father and by so doing hath shewn that he never intended there should be any other Power in the World and whatever Authority shall be
extended beyond this is accountable to him alone so that Princes are bound to treat their Subjects as their Children with Mercy and Lenity as far as they are capable of it and not as their Brutes And granting that Subjects and Servants or Slaves were at first all one yet I think even they ought to be treated only as Younger Children yet as Children still Nay even conquered People that are in some Countries treated as Slaves and but a little better than brutes have certainly a very good appeal to the Tribunal of God against their Princes who will undoubtedly right them in another World if they suffer patiently in this If it be the Character of a good Man that he is merciful to his Beast I doubt not but the very Brutes have a Right to be Governed with mercy and Justice and that God who is their Creator as well as ours will punish cruel men if they Tyrannize over them and much more if any man shall exercise Cruelty on another man who is of the same not only Nature but Blood Whereas all other Hypotheses leave the Prince at Liberty to make his Bargain with his Subjects as well as he can and if they be brought by force or fraud to an entire Submission at Discretion they may then be treated accordingly and must stand to their Compact be the terms never so unequal and then the Case of a Man and a Brute may differ very little and if the Subject may resist the Prince may take care to prevent it and the War may be just on both sides which is impossible I could likewise shew you many other Benefits that would accrew both to Princes and Subjects were this Hypothesis but once generally taught and believed by both of them F. I pray Sir spare the giving your self that trouble for I will not dispute how honestly this Hypothesis may be designed or what mighty Feaâ—s it might do were it once universally received But this neither you nor I can ever expect will come to pass because neither Princes nor People will ever believe it to be true For in the first place the People will never be convinced of it it being above a vulgar understanding that their Princes whom they are very well assured are not their Fathers nor yet right Heirs to Adam or Noah should notwithstanding lay claim to a Paternal Authority over them In the next place Princes can never believe that they are Fathers of their People for the same Reason I grant indeed that they may be very willing to believe one half of your Hypothesis that they are Absolute Lords and Masters over them and so would be willing upon that account to use their Subjects like Slaves but that they should look upon themselves as Fathers of their People and the Heirs or Assigns of Adam or Noah I think no Prince in Christendom can be so vain to believe So that whatever Power Adam or Noah or any other Father might be intrusted with by God because of that Natural Affection which they were supposed to bear toward their Children yet sure Princes at this day can lay no claim to it since none but true Fathers can be endued with this Paternal Affection And whereas you suppose that Princes ought to treat their Subjects nay even those that are conquered like Children and not like Slaves or Brutes This can have very little effect upon them who can as little believe it as the People for if Monarchical Power is not Paternal as I think I have clearly made out then there can lye no obligation upon Monarchs to treat their Subjects like Children and therefore Since the Despotical or Masterly Power only remains which is ordained Principally for the good and Benefit of the Master and not of the Servant or Slave Who can blame Princes if they exact the utmost of their due Prerogatives and so treat their Subjects like Slaves whenever it serves their humour or interest so to do nor are they any more to be blamed for thus exerting their Power than a Master of Negroes in the West-Indies is for making the best of the Service of those Slaves whom he hath bought with his Mony or are born in his House Whom tho I grant he is not to use like Brute Beasts for the Reasons you have given Yet doth it not therefore follow that he is obliged to use them like his Younger Children for then sure he could not have a Right to keep them for Slaves as long as they lived to let them enjoy nothing but a bare miserable Subsistance and there is very good reason for this for almost every Planter in Barbadoes knows very well the difference between the Relations of a Father a Master and a Prince and that the one is not the other and it is from your jumbling together these three different Relations of a Son a Slave and a Subject that hath led you into all these mistakes For tho' it should be granted that the right of a Master over his Slaves may be acquired by Conquest or assigned to or usurped by another yet certainly the Authority or Relation of a Father and the Monarchical or Civil Power of a Monarch can never be acquired by Conquest nor yet usurped without the Consent and Submission of the Children and Subjects And therefore to conclude I do not think your Hypothesis one jot the better by your founding it upon an Imaginary Paternal Power rather than upon Compact which I am sure can never be made upon so unequal termâ— as to render the Case of a Man and a Brute very little different since it would be to no purpose for any Subject to make a Bargain with their Monarch or Conqueror and yet to leave themselves in as bad or worse condition than they were in the State of Nature So that however convenient your Hypothesis may be either for Prince or People it signifies no more than the Popish Hypothesis of the Infallibility of the Pope and General Council which because they suppose necessary and is indeed very beneficial for the Church therefore God hath conferred it upon them But how false a way of reasoning this is hath been sufficiently demonstrated The Application of this Comparison is so obvious that I leave it to you to make M. I cannot but think for all you have yet said that God hath endued all Princes with a Paternal Authority and for this I have the Church of England on my side which in its Catechism in the Explanation of the Duties contained in the 5th Commandment Honour thy Father c. doth comprehend under that Head not only to Honour and Succour our Fathers and Mothers but also to Honour and Obey the King and all them that are put in Authority under him as if all Power were originally in the Father So that this Command gives him the Right to Govern and makes the Form of Government Monarchical And if Obedience to Parents be immediately due by a Natural Law and
Subjection to Princes but by the Mediation of an Human Ordinance what reason is there that the Laws of Nature should give place to the Laws of Men As we see the Power of the Father over his Child gives place and is subordinate to the Power of the Magistrate And that this is not the Doctrine of Christianity alone but was also believed by the best Moralists amongst the Heathen may appear by this remarkable passage out of Seneca de Clementia which is so put to this purpose that I took the pains to translate it into English in my Common-place-book Some of which I will now read to you What is the Duty of a Prince That of kind Parents who use to chide their Children sometimes sweetly and at other times with more sharpness and sometimes correct them with blows And after having shewn that a good Father will not proceed to disinherit his Son or inflict any more severe punishments upon him till he is past all hopes of amendment He proceeds thus No Parent proceeds to Extirpation till he hath in vain spent all other Remedies That which becomes a Parent becomes a Prince who is stiled without flattery The Father of his Country in all our other Titles we consult their i. e. the Emperours Honour We have called them the Great the Happy the August and heaped upon ambitious Majesty all the Titles we could invent in giving thâ—se to them But we have stiled him The Father of his Country that the Prince might consider the Power of a Father was given him Which is the most temperate of all Powers consulting the Welfare of the Children and preferring their Good before its own And as for your Objection why Princes should not be loved and reverenced as if they were our Fathers because not being our Natural Fathers they may possibly want that Natural and Fatherly Affection to their Subjects and consequently may Tyrannize over them I think this is easily answered For First God who is and ever was the True Disposer of Kingdoms hath in his hands the hearts of all Princes and endows them with such Affections as he thinks fit not only towards the People in general but towards each particular person And therefore as he was the Author of all Government and is still the Preserver of it so no inconvenience can happen but he is able to redress it 2. That there was as great or rather greater Inconveniencies which sprung at first from the too great Lenity of these Natural Princes for want of Power or Will to punish the Disorders of their Subject Children as have ever sprung since from the Tyranny and Cruelty of the worst Princes And I believe to this was owing that excessive wickedness which forced as it were God Almighty to put an end to the first World by that time it had stood about 1600 years And we see afterwards Eli and Samuel good men and severe Judges towards others were yet too indulgent to their own Children which shews the weakness of your Reasons and the greatness of the Wisdom of God in making all Government to spring from Paternal Power which is the mildest of all Powers and to descend by degrees to Hereditary Monarchies which are the Divinest the most Natural and the best of all Governments and in which the People have the least hand F. I see plainly that you think the Laws of Nature or Reason are not on your side and therefore you are forced to recur not to the express words of Scripture but to the Paraphrase or Explanation of them in our Church Catechism which certainly never was intended to have that consequence drawn from it which you have made for tho you are pleased to omit one part of the Commandment with an c. Yet the Words are as you your self must acknowledge Honour thy Father and thy Mother and if from Honour thy Father you will gather that all Power was Originally in the Father it will follow by the same Argument that it must have been as Originally in the Mother too Father and Mother or Parents being mentioned together in all Precepts in the Old and New Testament where Honour or Obedience is enjoyned on Children And if these Words Honour thy Father must give a right to Government and make the form also Monarchical 〈◊〉 if by these Words must be meant Obedience to the Political Power of the Supream Magistrate it concerns not any Duty we owe to our Natural Fathers who are Subjects Because they by your Doctrine are divested of all that Power it being placed wholy in the Prince and so being equally Subjects and Slaves with their Children can have no Right by that Title to any such Honour or Obedience as contains in it Civil Subjection But if Honour thy Father and thy Mother Signifies the Duty we owe our Natural Parents as by our Saviours interpretation Matth. 15.4 and all the other places 't is plain it doth then it cannot concern Political Obâ—dienâ—â— but a Duâ—y that is owing to Persons who have no Title to Soveraignty noâ— any Political Authority as Monarchs over Subjects For Obedience to a Private Father and that Civil Obedience which is due to a Monarch aâ—â— quite different and many times contradictory and inconsistent with each other And therefore this Command which necessarily comprehends the persons of our Natural Fathers and Mothers must mean a Duty we owe them distinct from our Obedience to the Magistrate and from which the most absolute Power of Princes cannot absolve us And to make this yet plainer suppose upon your Hypothesis that Seth as Eldest Son of Adam was Heir of all his Patriarchal Power how could all his Brethren and Sisters Honour that is Obey Eve their Mother at the same time supposing Seth and her to have commanded them things contradictory at the same timeâ— So that tho' I grant the Compilers of our Church Catechism did intend in this Explanation to comprehend all the great Duties towards our Governours Yet it is plain they never dreamed of this far-fetched inference that you have drawn from their Explanation of it for tho under this Command of Honour thy Father and thy Mother they do indeed comprehend Obedience and Honour to be due to the King c. this no more proves that they believed all Kingly Power to be Paternal than that because they likewise there Infer from this Command a Submission to be due to all Governours Teachers Spiritual Pastors and Masters that therefore all these Parties here named do likewise derive their Authority from Adam's Fatherhood or that because under the Command against bearing False-Witness we are taught to refrain our Tongues from Evil Speaking Lying and Slandering that therefore all Lyes and Evil Speaking whatsoever is down-right bearing False-Witness against our Neighbour Since nothing is more certain than that a man may commit either of the formerr without being guilty of the latter And to Answer your Query if Obedience to Parents be immediately due by a Natural Law
Foundation of all other and I have ever thought God's Love and Kindness to Mankind did never appear in any thing more except in Man's Redemption than in Creating only one Man and out of him only one Woman So that Adam was a kind of a Father to his Wife That Marital as well as all other Power might be founded in Paternal Iurisdiction That all Princes might look upon the meanest of their Subjects as their Children And all Subjects upon their Prince as their Common Father And upon each other as the Children of one Man that Mankind might not only be United in one common Nature but also be of one Blood of one Family and be habituated to the best of Governments from the very Infancy of the World Were this well considered as there could be no Tyrants so neither would there be any Traitors and Rebels But both Prince and People would strive to outdo each other in the offices of Love and Duty And now do you or any Man living read Sir R. F's Patriarcha or other works and see if either he or I have ascribed one Dram of Power to Princes which will not Naturally Spring from this Supream-Paternal Power So that upon the whole I think reason it self would conclude that this way of Solving the first Rise of Government is true and that it is the Duty of all who by the Blessing of God are under Paternal Monarchies to be very thankful for the favour and to do the utmost that in them lies to preserve and transmit that best form of Government to their Children after them And surely there is no Nation under Heaven hath more reason for this than the English who are under a Paternal Monarchy which has taken the best care that can be to secure them not only from oppression and wrong but from the very fear of it F. Since you lay the chief stress of your assertion upon the Original of most of the Kingdoms and Monarchies now in the World and of our own in particular I think I may safely joyn issue with you on both points and in the first place affirm that an unjust Conquest gives the Conquerour no right to the Subjects Obedience much less over their Lives or Estates and if our Norman William and his Successours had no more right to the Crown of England than meer conquest I doubt whether they might have been driven out after the same manner they came in But I believe you will find upon second thoughts that Unjust Conquests and Usurpations of Crowns be no firm Titles for Princes to relye on lest the Old English Proverb be turned upon you viz. That which is Sauce for a Goose is Sauce for a Gander but I Shall defer this discourse concerning Titles by Conquest and in particular that of our Kings to this Kingdom to some other time when I doubt not but to shew that it is not only false in matter of fact but also that it will not prove that for which it is brought And therefore what you say in your conclusion in exaltation of God's Love and Kindness to Mankind in Creating one Man and out of him only one Woman that Adam might be a kind of Father to his Wife is a very pretty and indeed singular Notion and you would do very well to move the Convocation next time it sits that this explanation may be added to the fifth Commandment that Women may be taught in the Catechism that Obedience to Husbands is due by the Precept of Honour thy Father and thy Mother And therefore I need give no other Answer to all the rest you have said however Specious the Hypothesis may seem as you have drest it up for Princes and People yet till you have proved that all Paternal Power is Monarchical and that all Monarchical Power is derived from Fatherhood it signifies nothing Nor can these Piae Fraudes do any more good in Politicks than Religion For as Superstition can never serve to advance the True Worship of God but by creating false Notions of the Divine Nature in Meâ—s Minds which doth not render it as it ought to be the Object of their Love and Reverence but Servile Fear So I suppose this asserting of such an unlimited Despotical Power in all Monarchs and such an entire Subjection as Sir R. F. and you your self exact from Subjects can produce nothing but a flavish Dread without that esteem and affection for their Prince's Person and Government which is so necessary for the quiet of Princes and which they may always have whilst they think themselves obliged in Conscience and Honour to protect their Lives and Fortunes from Slavery and Oppression according to the just and known Laws of the Kingdom and not to dispense with them in great and Essential Points without the Consent of those who have a hand in the making of them And all false Notions of this Supreme Power as derived from I know not what Fatherly but indeed Despotick Power are so far from settling in Peoples Minds a sober and rational Obedience to Government that they rather make them desperate and careless who is their Master since let what Change will come they can expect no better than to be Slaves Nor are Subjects put in a better condition by this Doctrine of Absolute Non Resistance since all Princes are not of so generous a Nature as not to Tyrannize and Insult the more over those whom they suppose will not or else dare not resist them and therefore I cannot see how such a submission can soften the hearts of the most Cruel Princes in the World as you suppose much less how Resistance in some cases can inrage the mildest Princes to their Peoples Ruine since all Resistance of such mild and merciful Princes I grant to be utterly unlawful nor do I hold Resistance ever to be practised but where the People are already ruined in their Liberties and Fortunes or are just at the brink of it and have no other means left but that to avoid it To conclude I so far agree with you that I think it is the Duty of all that are born under a Kingly Government Limited by Laws to be very thankful to God for the Favour and to do the utmost that in them lies to preserve and transmit this best Form of Government to their Children after them without maintaining such unintelligible Fictions as a Paternal Monarchy derived from Adam or Noah And tho' I own that some of our former Kings have taken the best care they could to secure this Nation from Popery and Arbitrary Power yet whether the Method of our three last Kings have been the readiest way to secure us from the fears of it I leave it to your own Conscience if you are a Protestant to judge But since you defie me to shew you out of Sir R. F's Patriarcha that he hath ascribed one Dram of Power to Princes which doth not naturally arise from a Supreme Paternal Power and that this is
Fourth Dialogue AUthors made use of in this Dialogue and how denoted in the Margin 1. Dr. Sherlocks Case of Resistance of the Supream Powers S. C. R. 2. Mr. Bohun's Preface to Patriarcha B. P. P. 3. Mr. Dudley Digge's Unlawfulness of Subjects taking up Arms against their Soveraigns Ed. 1643. U. S. A. S. 4. The History of Passive Obedience H. P. O. THE Fourth Dialogue BETWEEN Mr. MEANWELL a Civilian AND Mr. FREEMAN a Gentleman M. YOur Servant Sir I see you are better than your Word since you come somewhat before the time appointed F. I do not deserve any great Commendation for it for this Evening being a time of leisure I had nothing else to do but to wait on you and indeed I was impatient `till I was with you since I desire nothing more than to receive satisfaction in this weighty controversie since I know how great a Master you are both in Divine as well as Civil Knowledge and therefore I beseech you to proceed in the Method I at first proposed by giving me these places of Scripture out of the New Testament which you suppose prove your Doctrine and in the next place shew me that they were always undersâ—ood by the ancient Fathers as well as the Practice of the whole Primitive Church in that Sense M. I very well approve of your Method and therefore to go on where we left off I shall in the first place lay down some plain and easie Propositions as the Grounds of our future Discourse which I suppose you will have no Reason to deny First Therefore I suppose that our Saviours Kingdom not being of this World he came not to alter the Civil Government or Polity of it as you have already asserted And therefore did not alter any of those Rights of Soveraign Powers and those measures of Obedience and Subjection which were before fixed and determined by God himself Neither hath given the People either considered as particular men or as a collective Body any Power or Right to resist or rebel against such Supream Magistrates tho' they never so much abuse their Power by their Tyrannical Government either by persecuting the true Religion or by any other Violences and Oppressions whatsoever And our Saviour himself tells us That be came not to destroy 〈◊〉 Law and the Prophets but to fulfil it that is to fulfil the Ancient Types and Prophecies in his own Person to perfect an External and Ceremonial by a Real and Evangelical Righteousness to perfect the Moral Laws with new Instances and Degrees of Vertue and Obedience but he abrogated no Moral Law and therefore not the Laws of Obedience and Subjection to Princes which have always been reduced to the fifth Commandment Pray tell me how you approve of this Doctrine F. I do readily agree to the greatest part of it but yet as our Saviour hath not been pleased expresly to enjoyn us to resist the Supream Powers when they manifestly break and transgress all the Ends of Civil Government and consequently dissolve it so on the other side he came not to destroy those Natural Rights which Mankind enjoyed before his coming of defending themselves and providing for their own Happiness and Security when their Civil Governours either could not or would not protect them And as I grant that our Saviour made no Alteration in Civil Government by abridging the Rights of Soveraign Power so likewise hath he not conferred upon them any new Rights or Prerogatives of destroying or ensâ—â—â—â— their Subjects without any Contradiction or Resistance and consequently hath altered nothing in those Natural Rights or means which the People had before his Coming of hindering the Supream Powers from perverting those main Ends of Government the Happiness and Preservation of the People And that this Liberty doth not any way destroy those Rights or Prerogatives which are necessary for their own Security and the Well-governing of theâ— People I have I think sufficiently proved in our last Conversation So that unless you can now shew me by such express Authorities as that I can have no reasonable ground to deny it I hope you 'll pardon me if I cannot believe that Christ by his coming into the World has taken away or abridged that Natural Right which Mankind before enjoyed even after the Institution of Civil Government of Resistance or Self-defence in Cases of Extremâ—ty against those who exercise nothing of that Supream Power with which God hath invested them but the meer Title For had the intent of our Saviours coming been for this End he had instead of freeing us from the Yoâ—â— of the Law laid a much heavier upon our Necks if the Doctrines of Passâ—â— Obedience and Non-resistance are to be taken in that large Sense and â—â—â—mited extent that their Asserters have been pleased to give them So that tho' I grant our Saviour came to perfect and not to abrogate the Moral Law with new Instances of Vertue and Obedience and therefore hath not abrogated any Laws of Obedience and Subjection to Princes so hath he neither abrogated the great Law of Nature of Self-defence in the People whâ—â— they are universally assaulted or oppress 't in their Lives Liberties or Properties And tho' I grant Obedience to Princes hath been reduced to the fifth Commandment yet neither doth that by commanding us to Honour our Father â—nd Mother forbid all Resistance of Children to the Violent and unreasonable â—ctions of their Parents much less of those whom they may command or â—et on to kill or ruine us as I have I think sufficiently proved at our first Conference And therefore I pray proceed to your Proofs themselves and shew me that they prove as much as you have affirmed M. Before I come to my Proofs I pray give me leave to observe it â—ou by way of â—ntroduction that as our Saviour hath left the Government of the World as he found it So he hath besides all this given such admirable Laws as will both teach Princes to Govern and Subjects to Obey better which is the most effectual way to secure the publick Peace and Happiness to prevent the Oppression of Subjects and Rebellion against Princes But he has not interposed in new modelling the Governments of the World which is not of such consequence as some Men imagine It is not the External form of Government but the Fatherly Care and Prudence and Justice of Governours and the dutiful Obedience of Subjects which can make any People Happy If Princes and Subjects be good Christians they may be happy under most forms of Government if they be not they can be so under none Had our Saviour given Subjects Liberty to Resist to Depose to Murder Tyrannical Princes he had done them no kindness at all For to give Liberty to Subjects to Resist is only to proclaim an universal License to Factions and Seditions and Civil Wars and if any Man can think this such a mighty Blessing to the World yet methinks it is not
de Temps dont momorie des Homes ne curgâ— al contrarie in any Records they are always to be understood of a time older than that now mentioned you may prove a contrary usage if you can but before that time no Deed can be given in Evidence nor Custom alledged beyond it And that this is not the sense of Littleton alone who indeed makes a query about this time beyond memory I appeal to all our Year-books and if you please to see all the considerable Law-Learning at once about this Point pray consult Roll's Abridgment or Com-mon-place-book Title Prescription where he gives you these Conclusion from the Year-books which I shall here read to you in English 1. It is clear enough that there was a certain time called Time of Memory in a Prescription and for this he cites the Year-books of 19 H. 6.75 per Newton 1 E. 4.6 B. 9 H. 7.11.14 H. 7.1 2. The said Time of Memory in a Prescription was from the time of King Richard I. 20 H. 6.3 D. Mar. 119.5.3.4.9 B. the time of K. Iohn is within memory Lit. Sect. 170.34 H. 6.36 B. 47. So that the said Time of Memory was from the beginning of the Reign of K. Richard I. who was Brother to King Iohn who was Father to Henry the Third for the whole time of his Reign was within Time of Memory 20 H. 6. per Newton again 13 H. 4.9 B. where the Seisin of King Richard is allowed for a good Title and so a Warranty in his time So it seems by these words a tempore cujus contrarii memoria non existit is properly and generally intended for all the time before that and before the Statute of Limitation was meant of that against which no proof could be made to the contrary either by Testimony or Evidence in any time before without any limitation of time the 34 H. 6.36 B. 37 seems to prove this So that the time of all Prescription was in those days the same with the time of Limitation of Seisin in a Writ of Writ as Littleton tells us And since you have not as yet brought any considerable proofs but only bare negative ones which have been answered against this Prescription of the Election of Knights of Shires time beyond memory what you have said to the contrary is little to the purpose for all the Modern as well as Ancient Law-books are against this notion of Mr. Prin's for in Judge Telverton's Reports Gibson and Holcrose's Case you will see that whereas unity of Possession is by the Statute of the Dissolution of Monasteries a good discharge of Tithes yet if the Monastery were founded deins Temps de Memoire as this Abby of Vale Royal was in the time of Ed I. a constant Unity since the Foundation was held by the whole Court for no good discharge of Tithes by Prescription as the Plaintiff had laid it for the Defendant shewing that the said Abby was founded since time of memory tho' above three hundred years old was a sufficient confessing and avoiding So that Mr. Prin's Arguments whereby he would have the words all times passed and Time of which no memory is to the contrary to signifie a much less space of time in these Writs I have now cited and to be restrained within the 49th of Henry the Third will not signifie much since they are expresly against all our Law-books neither doth he cite any Cases for his Opinion out of Brook or Fitzherbert tho' he quotes their Titles but as for this Quotation from Cook 's first Institutes there is nothing there to countenance his notion more than he tells us that from Bracton and Fleta upon the words de Temps dout memorie c. docere opertet longum tempus longum usum viz. qui excedit memoriam hominum tale enim tempus sufficit pro Iure but without telling us what was then understood by this memoria hominum and a little after upon these words Ascun proof al contrarie for it there be any sufficient proof of Record or Writing to the contrary albeit it exceed the memory or proper knowledge of any man living yet it is within the memory of men For memory is twofold First By knowledge by proof as by Record or sufficient matter of writing Secondly By his own proper knowledge and for this he cites divers Year-books in the Margin But as for all that long Quotation Mr. Prin has here given us I know not whence he had it for there is not any thing in Hobart's Reports to that purpose in the places he has cited And as for the Year-book of 34 Henry the Sixth and Brook they are both directly against his notion as you may see by what Rolls has been already quoted from the same places And tho' it is true in Prescriptions of ways Commons and other such petty thing laid time beyond memory the Judges or Jury are not so exact as to make the Plaintiffs prove their Prescription beyond the time of any man then living yet if they prescribe for never so long it is still in the power of the Defendant to prove that there was no such Prescription and this as high as before Richard the First but no higher and thus high we assert the coming of Knights of Shires to Parliament for I do not pretend to lay it as high as the Conquest or before as Mr. Lambard does if it prove beyond the time now specified it is sufficient to disprove Mr. Prins Notion But to let you see I am a fair Adversary I will admit for once that this time beyond Memory shall be taken in a sticker litteral Sense for only as far as is beyond the Memory of any man living Now pray see what you will get by it if you remember that the Writ I but now cited from the Register for the Tenants in ancient demesne their being discharged from Contributing to the wages of Knights of the Shires was laid a tempore cujus contraii memoria non existit and these Writs are proved also to have been issued within the 15th of Edward the 2d and if so pray reckon onwards and see if the 49th of Henry the 3d. when you suppose Knights of Shires to have been first chosen does not fall within the memory of most men then living for Henry the 3d reigned somewhat more than seven years after this 49th to which seven years if you add the almost 35 years Reign of Edward I. It makes 42 years then add these 15 years of Edward the II. and if you please see if whole makes above 57 years which certainly was within the Memory of many Men then living and it had been a sensless thing for the Chancellor and Clerks of Chancery that then were to have granted these Writs of Exemption for a time beyond Memory when they themselves might have remembred when wages for Knights of Shires first began M. As for what you have said for this Prescription
this Letter I now mentioned was writ to the Pope which transaction I shall give you almost verbatim out of Mat. of Westminster and Henry de Keyghton in Anno 1297. being the 26th of Edward the First when the King having extorted a great sum of Money from the Clergy and People contrary to Law and being then going into Flanders he called a Parliament at Westminster where most of the Earls and Barons refused to appear until such time as their Petitions for the ease of their Countrey were heard and that the King would again confirm Magna Charta Yet nevertheless the King upon his confession of his Male Administration which he made before all the People with Tears in his Eyes and promise of amendment then obtained of the Commons an Aid of the Eighth Penny of their Goods But as soon as the King was gone over the Constable and Earl Mareschal with other Earls and Barons went to the Exchequer and there forbad the Judges to levy the said Tax upon the People by the Sheriffs because it was done without their knowledge without whose consent no Tax ought to be exacted or imposed so that the said Earls and Barons being thus gathered together and the greater part of the People joyning with them at last Prince Edw. then Lieutenant of the Kingdom was forced to call a Parliament to which the Earls and Barons came attended with great multitudes both of Horse and Foot but would not enter the City of London till the Prince had in his Fathers name confirmed the great Charters and had passed the Statute de Tallagio non concedendo both which were afterwards again confirmed by the King his Father some time after his Return And this will serve to explain the last Article in this Statute which comprehends the King's Pardon or Remission to Humphrey Earl of Herâ—ford and Essâ—x then Constable and Roger Bigot Earl of Norfolk Mareschal of England the two principal Leaders in the late Resistance with all other Earls Barons Knights and Esquires of their Party all Leagues and Confederacies as also all Rancour and Ill-will with all other Transgressions against them And pray see Sir Edward Coke's Comment on these words you compare our English Histories with this Act of Parliament the Old saying shall be verified That Records of Parliamentâ— the truest Histories The King had conceived a deep displeasure against the Constable Mareschal and others of the Nobility Gentry and Commons of the Realm for denying that which he so much desired yet for that they stood in defence of their Laws Liberties and Free Customs c. I suppose he refers to the Resistance but now mentioned whereupon he did not only restore the same to them as aforesaid but granted special Pardon to those against whom he had conceived so heavy a displeasure c. and such a one as you will scarce read the like and after a short gloss upon the words Rancour and Ill-will he thus comments on these words etiam transgressiones si qâ—as fecâ—inâ— here the words si quaâ— sicâ—iâ—t were added lest by acceptance of a pardon they should confess they had transgressed So careful were the Lords and Commons to preserve their Ancient Laws Liberties and Customs of their Countrey so that it is plain that Sir Edward Coke then thought the Lords and Commons had not transgressed in thus standing up tho' with force of Arms for their just Rights and Liberties and which sufficiently proves that this Author did not conceive such a Resistance to be making War against the King and so Treason at that time at Common Law and consequently not to be afterwards Treason by the Statute of 25th of Edward the Third as you would have it since that Statute dâ—es not make any other Overt-acts to be Treason but what had been so by Common Law before this Statute was made But in the Reign of this King's Son Edward the Second there were much more pregnant and fatal proofs of the exercise of this Right of Resistance by the Earls Barons and People of England against Peirce Gaveston whom having been before for his Mis-government of the King banisht the Realm by Act of Parliament and coming over with the King's License but without any reverse of the said Act Thomas Earl of Lancaster the King's Uncle with the rest of the Earls Barons and Commons of the Land took up Arms against him And tho' he raised some Forces by the King's Commission yet they fought with him and took him Prisoner and beheaded him near Warwick Some years after which the said Thomas Earl of Lancaster with Humphrey de Bohun Earl of Hereford together with divers other Earls and Barons took Arms and spoiling the Lands of the two Spencers Father and Son came up to London where the King had called a Parliament in which the King was forced to banish the said Spencers out of the Kingdom tho' they quickly returned again against whom when the said Earls above mentioned and divers other Barons and Knights again took Arms but being fail'd by some of their Consederates were over-power'd by the King's Party and the Earl being taken Prisoner was attainted and beheaded at Portfract yet was the this Judgment against the Earl and those of his Party afterwards reversed in Parliament in 1 mo Edward the Third and their Heirs restored in blood as also to the Lands of their Fathers as besides the Act it still to be seen upon the Rolls appears more plainly by a Writ of this King 's reciting that whereas at a Parliament at Westminster among other things it was agreed by the King the Prelates Earls Barons and Commons of the Kingdom that all those who were in the Quarrel with Thomas E. of Lancaster against the Spencers should have their Lands and Goods restored because the said Quarrel was found and adjudged by the King and the whole Parliament to be good and just and that the Judgments given against them were null and void and therefore commands restitution of the Lands and Tenements now in the Crown to the Executors of the said Earl and the like Writs are found for the other Lords and Gentlemen that had been of his Party And further that not only this Resistance made by this Earl and the rest of his followers but also that which this King himself made together with Queen Isabel his Mother against the Mis-government of the King his Father through the evil Counsel of the two Spencers appears by the Act of Indemnity passed in the first Year of this King in the preamble of which there is recited a short History of the wicked Government and Banishment of the Spencers Father and Son and also how Thomas late Earl of Lancaster was by their procurement pursued taken executed disinherited and how the said Spencers and Robert Baldock and Edmund Earl of Arundel by the Royal Power they had usurped had caused the King that now is and the Queen his Mother to be utterly forsaken of the King
his Father and to be Exiled from the Realm of England and that therefore the King that now is and the Queen his Mother being in so great Jeopardy in a strange Countrey and seeing the destructions and disinherisons which were notoriously done in England upon holy Church the Prelates Earls Barons and the Commonalty of the same by the said Spencers Robert Baldock and Edmund Earl of Arundel by the Encroachment of Royal Power to themselves and seeing they might not remedy the same unless they came into England with an Army of Men of War and have by the Grace of God with such puissance and the help of the great Men and Commons of the Realm vanquished and destroyed the said Spencers c. therefore our Soveraign Lord the King by the Common Council of the Prelates Earls Barons and other great Men and of the Commons of the Realm have provided and ordained c. as follows That no great Man nor other of what Estate Dignity or Condition soever he be that came in with the said King that now is and with the Queen in Aid of them to pursue their said Enemies and in which pursuit the King his Father was taken and put in Ward c. shall be impeached molested or grieved in person or in goods in any of the King's Courts c. for the pursuit and taking in hold the body of the said King Edward nor for the pursuit of any other persons not taking their goods nor for the death of any Man nor any other things perpetrated or committed in the said pursuit from the day of the King and Queens Arrival until the day of the Coronation of the said King This Act of Indemnity is so full a Justification of the necessity and lawfulness of the Resistance that was then made against King Edward the Second and his wicked Councellors the Spencers that it needs no Comment And tho' King Edward the Third took warning by the example of his Father and was too wise then to follow the like Arbitrary Courses yet Richard the Second his Grandson being a wilful hot headed young Prince fell into all the Errours of his great Grand-father and found the like if not greater Resistance from his Nobility and People for when he had highly mis-governed the Realm by the Advice of his favourites Alexander Arch-Bishop of York the Duke of Ireland and others a Parliament being called in the 10th Year of his Reign the Government of the Kingdom was taken out of their hands and committed to the Bishops of Canterbury and Ely with Thomas Duke of Gloucester the King's Uncle Richard Earl of Arundel and Thomas Earl of Warwick and nine or ten other Lords and Bishops but notwithstanding this the King being newly of Age refused to be governed by the said Duke and Earls but was carried about the Kingdom by the said Duke of Ireland and others to try what Forces they could raise and also to hinder the said Duke and Earls from having any Access to him But see what followed these violent and arbitrary courses as it is related by Henry de Knighton who lived and wrote in that very time and is more exact in this King's Reign than any other Historian he there tells us that when Thomas Duke of Gloucester and the other Bishops and Earls now mentioned sound they could not proceed in the Government of the King and Kingdom according to the Ordinance of the preceding Parliament through the hinderance of Mich. de la Poole Robert de Vere Duke of Ireland Nich. Brembar and Robert Tresillian Chief Justice and others who had seduced the King and made him alienate himself from the Council of the said Lords to the great damage of the Kingdom whereupon the said Duke of Gloucester and the Lords aforesaid with a great Guard of Knights Esquires and Archers came up towards London and quartered in the Villages adjacent and then the Arch-Bishop of Canterbury the Lord Lovat the Lord Cobham the Lord Eures with others went to the King in the name of the the Duke and Earls and demanded all the persons above-mentioned to be banished as Seducers and Traitors to the King and all the Lords then swore upon the Cross of the said Arch-Bishop not to desist till they had obtained what they came for the conclusion of this Meeting was that the King not being able to withstand them was forced immediately to call that remarkable Parliament of the 11th Year of his Reign in which Mich. de la Poole and the Duke of Ireland were attainted and Tresillian and divers other Judges sentenced to be hanged at Tyburn upon the Impeachment of the said Duke of Gloucester and the Earl of Arundel for delivering their Opinions contrary to Law and the Articles the King had not long before proposed to them at Nottingham I shall omit the Resistance which Henry Duke of Lancaster made after his Arrival by the Assistance of the Nobility and People of the North of England against the Arbitrary Government of this King being then in Ireland not only because it is notoriously known but because it was carried on farther than perhaps it needed to have been and ended in the Deposition of this King Only in the first Year of Henry the 4th there was the same Act of Indemnity almost word for word passed for all those that had come over with that King and had assisted him against Richard the Second and his evil Councellors as was passed before in primo of Edward the Third I shall not also insist upon the Resistance of Richard Duke of York in the Reign of King Henry the 6th who took up Arms against the Evil Government of the Queen and her Minion the Duke of Suffolk because you may say that this was justifiable by the Duke of York as right Heir of the Crown nor will I instance in the Resistance made by the Two Houses of Parliament during the late Civil Wars in the time of King Charles the First since it is disputed to this day who was in the fault and began this Civil War whether the King or the Parliament Only thus much I cannot omit to take notice of that the King in none of his Declarations ever denied but that the People had a right to Resist him in case he had made War upon them or had introduced Arbitrary Government and expresly owned in his Answer to one of the Parliaments Messages that they had a sufficient power to restrain Tyranny but denied himself to be guilty of it and still asserted that he took up Arms in defence of his just Right and Prerogative to the Command of the Militia of the Kingdom which they went about to take from him by force M. I have with the greater patience hearkened to your History of Resistance in all the Kings Reigns you have mentioned because I cannot desire any better Argument to prove the unlawfulness of such Resistance than those Acts of Pardon and Indemnity You cannot but confess have
Legitimi Barones who as Ordericus tells us came in with his Father and setled themselves here after the Conquest But as for your Quotations out of William of Malmesbury and Ordericus Vitalis â—â—ncerning the English assisting King William Rufus against his Brother Robert by using the common bait of Liberty viz. promising that he would alleviate the Rigid Laws of his Father and give free Liberty of Hunting in his Forests 't is true he thereupon raised an indifferent Army consisting chiefly of English who as Mathew Paris tells us were no better than Mercenary or Stipendary Souldiâ—â—â— and who had either no Estates or else had been turned out of them before so that this does not prove that they were men of any Fortunes who thus assisted William Rufus F. As for what you have now said against the citations of the names out of Doomesday book is not material since if English names were then common to the Normans and them then the Norman names might be as well common to the English and then many of those in England whom by their names we suppose to have been Normans might be Native Englishmen and as for what you urge against the express words of the Charters I have now cited I think it is a downright wresting of the words Francis and Anglis since no Author that I know of but your Dr. and is of that opinion For that the word Franci or Franâ—igenae does signifie such Frenchmen who held Baronies in England is granted on all hands but how Angli must also signifie Frenchmen seems a Paradox to me for how could these Frenchmen or Normans be termed Englishmen only because they held Estates here and not in Normandy for if the having such and such Estates in England would have turned Frenchmen into Englishmen there needed no such distinction to have been made between French and English Barons in these Charters since according to your Doctors Notion the French Barons could be no other ways mentioned here but as they had Estates here and therefore could be only writ to in that capacity since as meer Frenchmen they had nothing to do here so that if this Epithete was so in respect of the Tenure of their Lands they would have been stiled English Barons as well as the other nor is your other evasion more to the purpose that by the Angli might be meant in the Charters of Henry the I. such Norman or French Barons who because they were born in England might therefore be called English for who can believe that in so small a time as from the beginning of the Reign of King William the I. to that of King Henry the I. which was but a little above 30 years so many of the Norman Nobility were dead as should make it necessary to use this distinction of French and English Barons since by their Tenures they were both alike English and thus to make Angli signifie Normans is to confound and make all words tho' never so plain uncertain and equivocal but that a residue of the English And as for what Ordericus says of the old Norman Barons it would have signified if you could have proved he had called them Englishmen as he does not But if you carry it further to the time of the Empress Maud and King Stephen when all the Old Race of Normans were certainly dead then there was much less need of this distinction when all that were born in England were English alike and therefore the word French could only extend to those few Barons who being born in Normandy had Estates here But since you are forced to confess that for the first four or five years of King William the I. Reign there were both English Earls and Barons till the King had by degrees rooted them out there cannot be a better argument against your pretended right of Conquest since it is plain King William could never pretend to take away their Honours and Estates as a Conqueror since by his Coronation Oath he was sworn to restrain all Rapines and unjust Judgments and that he would behave himself modestly toward his Subjects and Treat both the English and French with equal right so that if he afterwards took away the estates of English Nobility or Gentry it was either because they deserved it by Rebelling against him then it was justly done or else it was done without any cause at all but only to oppress and root out the English Proprietors and if so such actions being contrary to his own claim from Edward the Confessor as also to his Coronation Oath could no more give him any such right to Rob or Spoil Men of their Estates without any just cause then it could give him a right to Rob the Churches and Monasteries of all the Plate Money and Jewels which he found in them even to the very Chalaws and Shrines as Matthew Paris and other Authors tell us he did in the fourth year of his Reign when likewise according as you your self set forth he began to shew himself a Conqueror or rather a Tyrant in the taking away the Estates of the English without any just cause But however the Authors of that time do not make so great a Tyrant of your Conqueror as the Doctor for William of Poictou expresly tells us who was Chaplain to this King concerning his taking away the Estates of the English and giving them to the Normans that nulli tamen Gallo datum est quod Anglo cuiquam injustè fuerit ablatum And Ordoricus Vitalis speaking of his dealing with the English it the beginning of his Reign says expresly neminem nisi quèm non damnare iniquum foret damnavit and therefore Sir Henry Spelman shews us in his Glossary out of an Ancient Manuscript belonging to the Family of Shurnborn in Norfolk That Edwin of Sharborn and several others that were ejected out of their Estates and Possessions went to the Conqueror and told him that never either before or in or after the Conquest they were against him the said King either by their Advice or any other aid but kept themselves peaceably and quietâ—y And this they were ready to make out which way soever the King pleased to appoint whereupon the said King ordered an Inquisition to be made throughout all England whether it were so or no which was plainly proved therefore he presently commanded that all those who so kept themselves peaceably in manner aforesaid as these had done should be repossessed of all their Estates and Inheritances as fully amply and quietly as ever they had or held them before this Conquest This is so plain an Authority that it needs no Comment I shall now conclude with a reply to what you have said to evade the Authorities of those Ancient Authors I have brought to prove that in the beginning of the Reign of King William the Second there were many English Gentlemen left of considerable Estates which you and your Doctor would â—ain make
those Affairs But not to be partial to one Opinion I have faithfully recited all those Authorities and Arguments made use of by the Author of the Treatise Intituled The Hereditary Succession discuss'd as also by the Learned Dr. Brady in his exact History of the Succession of the Crown wherein those Authors endeavour to prove that the Crown of England is and hath always been Hereditary from the very beginning of our Monarchy notwithstanding the many and various Breaches that have been made upon it which Authorities and Arguments whether they prove the Matter in debate I shall leave to your better Iudgment but hope those Gentlemen will not take it ill if I cannot let all they write pass for clear Demonstration and therefore have taken upon me to cite all those Arguments and Authorities that either have been or as far as I know of may be made use of by those of the contrary Opinion in the performance of which if I have not dealt candidly with both Parties in fairly representing the utmost that they had to say I shall be obliged if any Friend to Truth will shew me my failings But tho it is true I have not gone higher in this History than the coming in of K. William I. yet I hope I may be excused looking farther back for these Reasons First because an Examination of the Succession before that time would not only be tedious by swelling this Discourse to an unreasonable Bulk but would also be superfluous since the Gentleman whom I suppose Freeman here Argues against makes K. William I. to have been an absolute Conqueror and to have altered all the former Laws in the Saxon Times and if so sure then those concerning the Succession of the Crown And I desire them to shew me any Reason if he and his Descendants held the Kingdom as Absolute Monarchs by Conquest why they might not bequeath or make it over as is justifiable in Patrimonial Kingdoms to which of their Sons Kindred or Relations they should think fit and if so what will then become of this Fundamental Right of a Lineal Hereditary Succession And besides all this it is needless upon another Account since I have already proved in the Tenth Dialogue from no less Authority than K. Alfred's Will that before the Conquest the Crown was partly Testamentary and partly Elective sometimes wholly Elective as in K. Edward the Confessor and whoever doubts of this I shall only desire them to read impartially Dr. Brady's above-mentioned History of the Succession and then I shall leave it to them to consider whether he does not grant in effect what he takes upon him to Confute viz. That there was no Lineal Descent of the Crown known or setled in those Times but what was Alterable by the Testament of those Kings But since the rest of this Discourse besides the enquiry into bare Matter of Fact is chiefly the applying those Precedents I have here made use of to the Case of their present Majesties I hope neither they nor any that wish well to their Government will resent it if I have not gone in the common Road of former Writers in supposing the Titular Prince of Wales to be an Impostor without any other proof than those bare Suspitions that have been publish'd in the Printed Pamphlets yet since however they may incline a Man to doubt they cannot make a Child Illegitimate whom his Father and Mother have hitherto bred up and owned for theirs and therefore I have rather chosen to suppose him at present to be the Lawful Son of King James and Queen Mary and yet that what the late Convention have done in passing him by without taking any notice of his Title was all that they could or were obliged to do his present Circumstances considered But if it be here made out that King William and Queen Mary are Lawful and Rightful King and Queen of this Realm no Man can doubt whether Allegiance may be sworn too them or not and perhaps there was no need of writing any thing farther yet since I find a great many of the Clergy as well as Laity of this Nation could not go higher than their swearing Allegiance to them as King and Queen de facto and that even this has been violently opposed by the sâ—iff Asserters of K. James's Right I have thought fit to add in the next Discourse which I promise shall be the last on this Subject all that hath been said Pro and 〈◊〉 upon that Question and to make it of the same Bulk with the rest I have for the satisfaction of those of the Church of England as well as Royal Interest endeavour'd to shew the great difference between this late Revolution and that fatal Civil War that ended with the Deposition and Murder of King Charles the First These two Questions together with an Index to all the Dialogues being dispatch'd as I hope they will be shortly shall be the last I shall trouble the World with upon these Subjects since I know nothing more that can be well added to what I shall there set down THE Twelfth Dialogue BETWEEN Mr. MEANWELL a Civilian AND Mr. FREEMAN a Gentleman M. I Am glad Sir you are come for I was wishing for you pray sit down and let us begin where we left off you may remember you promised me when we last parted that the next time I saw you you would make out to me from undeniable proofs and precedents from our Antient Histories and Laws that the present Convention had done nothing in Voting the Throne vacant and then placing the Prince and Princess of Orange therein but what may be justified by the Fundamental Laws and Constitutions of the Kingdom for I must still believe till I am better instructed that there can be no Inter Regnum in England but that it hath been from the first Institution of the Government an Hereditary Monarchy where the next Heir by Right of Blood unless in some manifest Usurpations has always succeeded to the last Predecessor as also our best Lawyers with one consent maintain in their Books of Reports and the Learned Finch in his description of the Common Law lays it down as an undoubted Maxim That the King never dies and therefore it seems altogether new and unheard of before for the Convention thus to declare the Throne vacant for admitting that King Iames had never so justly Forfeited or Abdicated the Kingdom term it which you please yet certainly there could be no Vacancy of the Throne since the next Heir by Blood ought immediately to have been declared King or Queen and so placed therein whereas we heard in the Countrey that there was almost ten days time before the Lords and Commons could agree whether the Crown should be declar'd vacant or not and when it was so declar'd it took up almost a weeks time more before they could agree who should be placed therein whereas it was a difficulty only of their own making for sure the Prince of
without Children should be Heir to the Deceased And so far were they from thinking this Agreement stood in need of Ratification of a great Council that there was but twelve of the Principal Men on each side sworn to see it duly observed But if we come to consider the next putting by of Duke Robert from his Right to the Crown you will find it to have been done with a far less colour of Right than the former for he being then absent in the Holy Land at the time of Rufus's death Henry his Younger Brother laid hold of the opportunity and assembling divers of the great Men of the Kingdom he promised them to make a full Restitution of all their Antient Laws and Liberties and confirm them by his Charter and abrogate such severe ones as his Father had made thereupon they did unanimously consent to Crown him King Now I cannot see how this managed with so much Artifice corruption can properly be call'd an Election since that ought to be a deliberate sedate Action and at which all the persons concern'd ought to be present but this could not possibly be for King William was kill'd on the second of August and buried the next day and the day after that being Sunday this pretended Election was made and the Saxon Chronicle tells us That those great Men who were near at hand chose his Brother Henry King So that this looks more like the Combination of a Faction of Bishops Lords and great Men than the free Election of a King since it was impossible for all that were or ought to be present from all parts of the Kingdom to have notice to assemble and dispatch that great Business in two days time But to let you see that Duke Robert did not fit down contented with this Usurpation upon his Right for as soon as ever he came from the Holy Land he straight made War upon his Brother and many great Men of the Normans took his part and this War was eagerly carried on for some time and Duke Robert Landing in England with an Army K. Henry marcht against him with all his Forces but as the Saxon Chronicle also tells us some principal Men going between them brought them to an Agreement upon conditions that K. Henry should pay Duke Robert 3000 Marks Pension yearly and that he of the Brothers who surviv'd the other should be Heir of all England and Normandy unless the party deceas'd should have Children of his own so that though I grant King Henry recites in his Charter in Matthew Paris that he was Crowned King by the Common Council of the Barons of England yet his saying so could not give him a Right and he must say this or nothing for no other pretence or Title he could have and there never was any other Usurper in his circumstances but must say that or some such thing to make out a Title and therefore to answer your Question why Duke Robert took not upon himself the Title of King neither upon the death of his Father nor after that of his Elder Brother I think this may serve for an Answer that he parting with his Right to both his Brothers successively he then lookt upon it as needless to take the Title of King upon him as not looking upon himself then to be so F. I confess you have from your Dr. together with some assistance of your own made a very cunning gloss upon these two great Instances of Vacancy and Election to evade if it were possible that Right which the Common Council of the Kingdom then challeng'd to themselves and therefore I shall make bold strictly to examine what you have now said In the first place as to the Title of King William Rufus though I grant it was founded upon his Fathers Testament yet you see that this was not good alone without the consent and approbation of the Common Council of the Kingdom I think I have sufficiently prov'd at our last Meeting but one when we discourst of the Force of the like Testament made by King Edward the Confessor to King William the First which according to the English Saxon Law that â—as still observed was never valid until confirm'd by the consent of the Wittena Gemot or Great Council and he that had both these whether next Heir by Blood or not was always esteem'd as lawful King as I have also proved from the Testament of King Alfred and though you will take no notice of it yet was this Testament of King William I. then produced and read in the Common-Council of the Bishops Earls and Barons of the Kingdom as appears by all the Antient Historians who treat of this matter I shall only give you a taste of them Matthew Paris expresly relates the circumstances of it in these words Optimates frequenteâ— â—d Westmonasterium in concilium convenere ubi loci post long am consultationem Gulielmum Rusum Regem fecere and Abbot Brompton tells us that it was done in a full Council Convocatis Terrae magnatibus so that here was nothing wanting to a full Election or Confirmation at least of King William's Title and till this was done it is plain the Throne was Vacant But as for the claim that Duke Robert made to the Crown though I do not deny but he might think himself to have a just Title to it by a received custom among divers Nations by which the eldest Son is looked upon to have a right before the younger yet that this is no Law of Nature or Reason and consequently not Divine I think I have sufficiently prov'd at our second meeting But that this right of Succession of the eldest Son to be no fundamental Law of this Kingdom I think I can sufficiently prove from our English Saxon Histories as well as Laws and as for what you say concerning those Norman Lords and Bishops who joyn'd with Duke Robert after his Brother was Crown'd King it is call'd no better than Treason by all the Writers of those times for Florence of Worcester and Sim of Durham both tell us that the King thereupon call'd together the English and open'd unto them the Treason of the Normans and the Saxon Chronicleâ— who seem'd to have lived about that time compares the Treason of Bishop Odo to that of Iudas Iscariot against our Lord and though I grant King William might make such an agreement with his Brother Duke Robert as you mention yet as for the 3000 Marks Pension which you say he was to pay him I very much doubt it since no Historian but Matthew of Westminster who lived between two and three hundred years after makes mention of it and therefore I think it is to be referr'd to the following agreement betwixt this Duke and his Brother King Henry which the Saxon Chronicle expresly mentions Having now examin'd and clear'd the Title of King William Rufus I come next to justifie that of King Henry I. to the Crown
notwithstanding all you have alledg'd against it which yet is no more than what you said before that Duke Robert had an Hereditary Right and therefore he could not be put by which is to beg the Question for you cannot prove to me that he had this Right either by the Law of Nature the Law of England or the Law of Normandy not by the two former as I have already prov'd for your Conqueror himself being a Bastard had no better Title to the Dutchy of Normandy than his Father's last Will before he went to the Holy Land which was not good without the consents of the Nobility of that Dutchy as appears by the Historians of that time so that the greatest Objection you have to make against King Henry's being elected in a true Common-Council of all England is this that the time was so short between the Death of William Rufus and his Election that it was impossible for all the Parties that had Votes to be there present which is a very bold assertion for how can you or your Doctor tell that at the time when King William was kill'd he might not then have held a great Council at Winchester where he then Lay who might immediately upon his Death chuse his Brother Henry for their King for it is certain the Election was there the Day before his Coronation at London and therefore it is very rashly done to affirm that this Election was not in a Common-Council of the Kingdom when all the Historians and particularly W. Malmesbury tells us the manner of it and the Disputes there were about it viz. that Henry was elected King as soon as King William's Funerals were over Aliquantis tamen ante controversiis inter proceres agitatis c. and H. de Knyghton reciting the cause why Duke Robert was set aside viz. because he had been always contrary and unnatural to the Barons of England therefore quod plenario consensu consilio totius Communitatis Regni ipsum refutaverunt pro Rege omnino recusavâ—â—â—nt Henricum fratrem in Regem erexerunt which plainly shews that it was the opinion of all the Antient Writers out of whom Knyghton took this passage that this election was made by the free consent and in a full Council of all the whole Community of the Kingdom nor does the after claim of Duke Robert to the Crown at all alter the case for the reasons already given as also because the agreement that was made between them that he that surviv'd should succeed the other was never confirm'd or agreed to by the great Council of the Kingdom and therefore those Norman Lords that join'd with Duke Robert here in England are justly taxed by William of Malmesbury and the Saxon Chronicle with Infidelity and Rebellion and though I grant that Mat. Paris or rather Roger of Wendover whom he transcribes seems to condemn King Henry's taking the Crown as unjust and contrary to Right and that he therefore feared the Justice of God eò quod fratri suo primogenito cui jus Regni manifestè competebat temere usurpando injustè nimis abstulcrat yet this author writing about the middle of the Reign of King Henry III. who had succeeded his Father by a pretended right of Inheritance as well as Election it is no wonder if He who writ near a hundred years after this transaction should give his judgment in this matter according to the common opinion and prejudice of that age and must certainly speak by guess for how could he otherwise affirm unless he had been acquainted with that Kings thoughts as he doth in the same place that he felt conscientiam suam in obtentu Regni cauteriatam since no other Writer either of that time or after it does thus blame King Henry for taking the Crown But as for the account you give why Duke Robert never took upon him the Title of King if the Throne had not then been looked upon as vacant because of the agreement which he made with his Brothers by which he parted with his Right for a Pension during his Life is not at all satisfactory for in the first place neither of these agreements were made till above a year after his pretended Title did acrue to him by the Death of his Father and Brother and therefore he ought if he had look'd upon himself as true King to have immediately taken the Title upon him which he never did so likewise the agreement it self makes wholly against your notion of any hereditary succession to the Crown to be then setled since the main clause in both these agreements is that the survivor should be heir to him that died first unless he left Children of his own to succeed him which plainly shews that in the opinion of both those Princes and of the great men that swore on either side to see it observed they knew of no such setled Right of Succession in their Heirs which they themselves could not part with or else this Clause had been wholly in vain since both King William and King Henry's Children were to have succeeded to the Crown of England by vertue of both these agreements before the Sons of Duke Robert had his Son William who was only Earl of Flanders survived him But now if you please you may proceed with your other exceptions against the rest of the Instances I have here given you of the Vacancy of the Throne till such time as the Common Council of the Kingdom had agreed whom to place therein M. As to what you have said in defence of the Vacancy of the Throne after the death of King Henry I. carries less shew of Reason than what you urged in the former Cases since all Writers agree that this was a manifest Usurpation in Stephen who could pretend no sort of Title to the Crown himself as well as Perjury in the Bishops Lords and great Men of England who having sworn Fealty to King Henry's Daughter Maud in his life-time made Stephen Earl of Blois their King therefore William of Malmsbury and all the Writers of those Times do accuse Stephen of down-right Perjury and Usurpation and likewise relate that he was advanced to the Crown through the power of the Londoners and Citizens of Winchester but yet all these Endeavours had been in vain unless he had been assisted by his Brother Henry Bishop of that City and then the Popes Legate in England and favoured by the Arch-Bishop of Canterbury who Crowned him and yet for all this there was but a very small Faction of the Bishops and Lords who were for his Croonation for W. Malmsbury tells us Coronatus est ergo in Regem Angliae Stephanus tribus Episcopis praesentibus nullis Abbatibus paucissimis Optimatibus And many of the Nobility and great Men of England were so sensible of this that being headed by Robert Earl of Gloucester the Empresses base Brother they raised a War against Stephen which after her coming over hither was
the power of the two Houses of Parliament I am very well satisfied that such a Declaration must be void in it self since I have sufficiently proved that there was no such Law of Succession ever setled by any general Custom or Common Law since it hath been near as often broken as observed and as for any positive or Statute-Law enacting any hereditary right of Succession you do not so much as pretend to show it so that I think I have sufficiently proved the three Propositions I laid down viz. That ever since the time of Edward the First though the Crown has been claim'd by right of blood yet has it not been very often enjoy'd by Princes who had no just pretence to that Title Secondly that the two Houses of Parliament have often notwithstanding that claim placed or at least fixed the Crown upon the heads of those Princes who they very well knew could have no hereditary right to it Thirdly That such Princes have been always taken for lawful Kings all their Laws standing good at this day without any Confirmation by their Successours M. I did not think that you who were so great an admirer of the two Houses of Parliament should now be so much against their power in joyning with the King to declare what the true right of Succession to the Crown is and hath ever been from time beyond memory But I see Acts or Declarations of Parliament signifie nothing with you if they are against your Hypothesis or else you would never go about thus to expose those Acts of Parliament of King Edward the IVth and King Iames the Ist. Whereby they are declared both by the Law of God and Man undoubted Heirs of the Crown And the last Act I cited viz. That of King Iames the Ist. doth sufficiently confute your Notion of a Vacancy of the Throne Where it is expresly declared That immediately upon the decease of Queen Elizabeth the Crown of England with all the Dominions belonging to the same did by Inherent Birth-right and Lawful and Undoubted Succession descend and come to his Majesty King Iames. So that if there then were no Vacancy of the Throne I cannot see how there could be any such thing now the next Heir to the Crown be He who they will being certainly not so far removed from King Iames the Ist. as himself was from King Henry the VIIth under whom he claimed F. I must still confess my self to have a great veneration for the solemn Declarations of King and Parliament made by any Statute yet not so as to Idolize them or to look upon all their Declarations as infallible I grant indeed that whosoever is by them Declared and Recognized for King or Queen of England is to be acknowledged and obeyed as such by all the Subjects of this Kingdom without farther questioning his Title But if not content with this they will also take upon them to declare that such Kings or Queens have an undoubted Hereditary Right by the Laws of God and Nature When I plainly find from the Holy Scriptures as well as the History of matter of Fact and the knowledge of our Laws that they have no other Tiâ—le than what the Laws of the Land have conferred upon them and therefore you your self cannot deny but that it was gross flattery in the two Houses of Parliament to declare that Richard the IIId for-example had a true and undoubted Right to the Crown by the Laws of God and Nature and also by the Laws and Customs of this Realm when you know he was a notorious Usurper upon the Rights of his Brother King Edward's Children now how can I be assur'd that the like Declaration made to Kâ—ng Iames the I. was not lâ—kewise a piece of Courtship of the Representative of the Kingdom to this King then newly setled in his Throne since we find the People of this Nation when they are in a kind fit never think they can say or do too much for their Princes and therefore I must freely tell you that it is not the bare Declaration of a Parliament that this or that has been always the Law or Custom of this Realm when we can find from History that it has never been so held for above four hundred years at least and therefore not beyond the memory of Man as you suppose since that must be before the Reign of Richard the First as I have already proved to you at our Eighth Meeting But to answer your Objection against the vacancy of the Throne I do freely grant that aâ— often â—s the Crown descends by lineal Succession there can be no vacancy of the Throne as it did in the Case of King Iames the First yet doth it not therefore follow that there can never be any such Vacancy in any Case whatsoever since certainly it may so happen that all the Heirs Male of the Blood-Royal may fail as it happen'd in the Case of Scotland when Iohn Balioll and Robert Bruce contended for the Crown which not being to be decided by the Estates of the Kingdom they were forced to referr it to our King Edward the First and as also happen'd in France when Philip of Valois and our Edward the III d both claim'd the Crown which was decided by a great Assembly of the Estates of France in the favour of the former who claim'd as Heir of the Male Line against King Edward who was descended by a Woman and if King Iames's Abdication or Forfeiture call it which you will is good pray give me a sufficient Reason why the Convention of the Estates of England should not have as much Authority as those of France or Scotland this being as much or more a limited Kingdom thau either of the other ever were M. I do not deny that but pray shew me any sufficient Reason why the Convention should now Vote a Vacancy of the Throne since there was certainly an Heir Apparent not long since in England and I hope is now safe in France who ought to fill it or at least there should have been some sufficient cause alledged against him to prove that he was not true Son either of the King or Queen and till this was done they could not with any Right or good Conscience place any other Relation of his in the Throne since every Person ought to be esteem'd the Son of that Father and Mother that publickly own him for such for it is a Maxim in our as well as your Law Filiatio non potest probari F. How this could be performed without first declaring the Throne vacant I cannot apprehend for you your self must grant that there have been great doubts and suspitions of the Realty of this Prince of Wales and therefore that being one great reason of the Prince of Orange's coming over The truth of this Child whether he was really born of the of the body of the Q. is first to be examin'd and determin'd before he can be declar'd K. of England in the
as we read Chancellor Fortescue did Prince Henry Son to Henry the VIth and I hope he will come over again to practise them in his own Country before he comes to be infected with the Arbitrary Principles of the French Government but as for those of not keeping Faith with Hereticks and a propagating his Religion by Persecution I doubt not but the King his Father will take care not to commit his Education to any of those who are infected with such Principles and I am the more inclin'd to believe it because it is very well known that his Majesty's tenderness and moderation in matters of Religion and not persecuting any body for the belief or bare profession of it as it was the greatest cause of his late Declaration of Indulgence so it was the main original of all his late Misfortunes nor can I see any reason why a King by being a Roman Catholick must necessarily be a Tyrant and a Persecutor since you cannot deny but that we have had many good and just Kings of that Religion and it is from those Princes that professed it that we derive our Magna Charta and most of the priviledges we now enjoy F. Though I would not be thought to affirm that the Romish Religion is every way worse than the Mahometan yet this much I may safely affirm that there is no Doctrine in all that Superstition so absurd and contrary to Sence and Reason as that of Transubstantiation held by the Church of Rome in which the far greatest part are certainly Idolators which can never be objectâ—d against the Turks and therefore though I will not deny but that a Man may be saved in the Communion of the Romish Church yet it is not for being a Papist but only as far as he practises Christ's Precepts and trusts in his Merits that he can ever obtain that favour from God But as for those evil Principles both in Religion and Civil Government which you cannot deny but are now commonly believed and practiced in France and which you hope King Iames will take care that the Prince his Son shall be bred to avoid I wish it may prove as you say but if you will consider the Men that are like to be his Tutors and Instructors in matters of Religion viz. his Fathers and Mothers Confessors the Jesuits and for Civil Government those Popish Lords and Gentlemen of notorious Arbitrary Principles and Practises who are gone over to King Iames you will have small reason to believe that there is ever a Fortescus now to be found among the English-men in France or who is likely to instill into him those true English Principles you mention And though I do not affirm that every Popish Prince must needs be a Persecutor yet since that wholly depends upon those Priests that have the management of their Consciences shew me a Prince in Europe who has a Jesuit for his Confessor and tell me if he hath not deserved that Character But though I am so much of your Opinion that King Iames ownes the greatest part of his Misfortunes to his Declaration for Liberty of Conscience yet was it not so much to the thing it self as to his Arbitrary manner of doing it by assuming a Dispensing Power contrary to Law and you may be very well assured by the little opposition which the late Acts met with for taking off the Penalties against Conventicles and not coming to Church in respect of all Dissenters except the Papists that King Iames might have as easily obtain'd a like Act to pass in respect of those also as to the free profession of their Religion and having Mass in their Houses which is more than the Papists will allow the Protestants in any Country in Europe And therefore I must beg your pardon if I still find great reason to doubt whether K. Iames his tenderness towards those that differ'd from him in matters of Religion and the Indulgence he gave them were purely out of consideration of tender Consciences and not rather thereby to destroy the Church of England Established by Law since the Dispute began between King Iames and his Parliament was not about Liberty of Conscience but those Offices and Commands which the King was resolved to bestow upon the Papists whether the Parliament would or not And certainly there is a great deal of difference between a Liberty for a Man to enjoy the free profession of his own Religion and the power and benefit of having all the chief Imployments of Honour and Profit in the Common-wealth But that the Indulgence of Popish Princes towards those that dissent from them in matters of Religion may not always proceed from pure Tenderness and Compassion appears from a Manuscript Treatise of F. Parsons that great Jesuit in Queen Elizabeth's time which I have been told was found in King Iames's Closet after his departure This if you can see it will shew you that the subtil Jesuite doth there direct his Popish Successor in order to the more quiet introducing the Romish-Catholick Religion to grant a general Toleration of all Religions out of a like design Thus did Iulian the Apostare long ago tolerate all the Sects and Heresies in the Christian Religion because he thereby hoped utterly to confound and destroy it But as to what you alledge concerning Magna Charta's being granted by Popish Princes and that there has been many good Kings of that persuasion As I will not deny either the one or the other so I desire you to remember with what struglling and great difficulties this Charter was at first obtain'd and afterwards preserved though it was no more than a Declaration of most of those Antient Rights and Liberties which the Nation had always enjoy'd And you may also remember that they were Popish Princes who more than once obtain'd the Pope's Dispensation to be discharged from those solemn Oaths they had taken to observe those Charters and though there hath been divers good Princes before the Reformation yet even the very best of them made the severest Laws against Protestants and were the most cruel in their Persecutions witness King Henry the IVth Henry the Vth and Queen Mary And indeed it is dangerous to rely upon the Faith of a Prince who looks upon it as a piece of Merit to destroy all Religions but his own and when he finds it cannot be done by Law will not stick to use any Arbitrary means to bring it about To conclude pray consider whether the strict observing or violation of Magna Charta and his Coronation Oath hath been the cause of King Iames's Abdication Pardon this long Discourse which your Vindication of the Opinion and Practises of Popish Princes hath drawn from me M. Pray Sir let us quit these invidious Subjects which can do no good since Princes must be own'd and submitted to let their Principles and Practice be never so Tyrannical and let us return again to the matter in hand I will therefore at present suppose
before his Marriage with that Princess and whilest he was and Usurper upon her Right so that certainly it is no argument that since Parliaments have acted illegally therefore your Convention may do so too for it is a known Maxime in our Civil Law a facto ad Ius non valet consequentia therefore whatever they have done toward creating a good Title to King William in respect of the Queen his Wife and his Issue by her yet this doth no way excuse the wrong done to the Princess of Denmark and her Issue in case they survive your King F. 'T is very wonderful to me to see how ingenious some Men are in finding faults with the present settlement of things though never so much for the best if not done exactly according to suit with their Humour or Hypothesis when indeed there can no fault be justly found with it for you agree that if the Queen hath a Right King William hath so also during his Life and whether the Princess of Denmark and her issue may survive the King is yet uncertain but if either she or they should happen to survive his Majesty yet since she hath made no claim or protestation in the Convention against the Kings holding the Crown after the Decease of the Queen I cannot see why this should not pass for a tacit Resignation oâ—â—er Right as well as in the case of the Princess Elizabeth you but now mentioned But admit his present Majesty according to the late received rules of Succession hath not a Title by Descent yet according to those principles I have already laid down he certainly has not only a Right to the Crown from that inherent power which I suppose doth still remain in the Eslates of the Kingdom as Representatives of the whole Nation to bestow the Crown on every Abdication or Forfeiture thereof on such Prince of the Blood Royal as they shall think best to deserve it and upon this account I conceive there is none of the Blood that can stand in competition with his Present Majesty for Prudence Valour Moderation and all other Royal Vertues and therefore it is not at all to be wonder'd at if the Convention hath in this case exercised that Original Power which the People reserved to it self at the first institution of Kingly Government in this Island especially if we consider his present Majesty not only as a Conquerour over King Iames but as our Deliverer from his Oppression and that Arbitrary Government that we were so lately under and which was like to be much worse had his reign continued a little longer Therefore I cannot but here take occasion to vindicate his Present Majesty from those exceptions you have made against his Country and Civil as well as Religious Principles First As to his Country 't is true he is a Foreigner yet that can he no exception against his admission to the Throne since it was none against his great Grand-father King Iames and I doubt not but his Majesty may understand as much of the English Constitution and Government as his said Grand father did when he first came to the Crown But as for his principles in Religion I cannot see any reason to suspect him more inclinable to the Church Government of Holland then that of England since he was bred up under a Mother who was always firm to the Religion and Discipline of our Church and ever since he was Married to the Princess he hath always shew'd a very great respect to its Liturgy and Ceremonies by his so constant frequenting his Princesses Chappel so that besides his Majesties Interest to maintain Episcopacy as most agreeable to the Monarchy and Antient Constitution of this Kingdom it is likewise if he were able not in his power to destroy the Church of England since the main body of the Clergy Nobility and Gentry of this Nation is to zealous for its preservation that if he had any such inclinations it would not be easie for him to effect it and he is too wise a Prince to let others persuade him so visibly against his own interest and having so late an example before his Eyes that it was King Iames's ruine to attempt it As for what you say of Scotland 't is true Presbitery is for the present set up there but it is uncharitable to impute this to the Kings inclinations for it is notorious that of them which call themselves Episcopal in that Kingdom a very great number did either out of prejudice to the Princes Cause or in contempt of his Power refuse to be chosen Members of the Convention or else after they were chosen did so far adhere to King Iames's interest as to desert it as did my Lord Dundee and many others and by that means gave the Presbyterian Party an advantage to carry all things as they pleas'd and this Party finding the King not well settled here and the Irish in Ireland in Arms against him took hold of that opportunity to put the abolishing of Episcopacy into the very instrument of Government and to press it upon him at a time when an unavoidable necessity and the obstinacy of too many of the Episcopal Party forced him to consent to it wherefore this no way shews his Majesties inclinations to set up Presbytery even in Scotland much less doth it prove he would set it up here where the Circumstances are quite different for here the main body of the People hate that Government and will be so far from desiring it that they will never endure it so that as to this your fears of King William are as vain as your hopes of King Iames. I shall conclude with a few words in answer to your reply against those examples wherein I have shewn you that the Crown hath always been under such a disposition as the two Mouses of Parliament should appoint to which you have nothing else to object but that their admission of Henry the IV th to the Crown was condemned as unlawful by two Acts of Parliament which I have already answer'd by showing you that those Acts were obtain'd by Richard Duke of York and Edward the IV th his Son by actual Rebellion and by as great a force upon King Henry the VI th as ever was used against King Richard the II d by Henry the IV th and as for the Statute of the first of Henry the VII th you have found out a very easie way of answering it by affirming that it was done whilst he was an Usurper and before his Marriage or that he had any right to be King But by this way of arguing no Act he ever passed would be good since It is certain he did never take upon him to Govern in right of his Queen as all those that have writ his Life do acknowledge and therefore if the Parliament would then settle the Crown upon him and his right Heirs without any respect to his Queen or her Issue or Sisters in case she should die
Land though in words you deny it for every hereditary right is either a continued Usurpation by force which can give no right at all or a right by Law which is by the consent of the People to entail the Crown on such a Family which certainly is to make a King by Law that is by the consent of the People But if you will suppose that it was the Authority of the first King alone who thus intail'd the Crown upon himself and his right Heirs I desire you would shew me how the Crown could be so intail'd without the consent of the People so as that his Successor may not alter it and give it by his last Will or Testament to which of his Sons or Daughters he pleases since Sir Robert Filmer himself acknowledges that a testamentary heir to a Crown in an absolute Monarchy is as much by Divine right as if he had come in by Succession as appears by the instances he gives in Seth who could have no right to succeed his Father Adam in the Government of Mankind while Cain his Elder Brother was alive by the Will of Adam his Father the like I may say of Solomon who by his Fathers Crowning him King in his life time and thereby making him his Successor gave him a right to Rule over Adonâ—jah his Elder Brother so that I may very well ask you if the present Law of the Land did not proceed from the free consent of the People testified by long Custom or express Declaration of the People by their Representatives in Parliament I desire to know why the King of England cannot as well settle the Crown by his last Will upon which of the Blood-Royal he pleases as that it should be Lawful for the English Saxon Kings to exercise this Prerogative as Dr. Brady supposes they did before the Conquest without the consent of the Great Council of the Nation So that I think I may much better ask you what that Law was and who made it which you suppose to make Kings prior to and independent from the consent of the People since if there be any such Law it is either as yet unknown to Mankind or else all those who are once possess'd of Kingdoms have an equal Title to them by Divine Right But indeed it is only some Divines who were more scrupulous than knowing in Politicks who first started this question whereas indeed there is no such great Mystery in it for that Law by which the first King of England for Example was Elected was not in being before the King was made nor yet was the King in being before that but when the first King was made so by the consent and election of the People the King and the Law that made him so began both together that is the People by chusing of him to Govern upon certain Conditions and he by accepting the Crown upon those Conditions was that Law by which he then took the Crown and by which it has been held ever since that time So that if the Crown ought to be enjoy'd according to a legal right and that there must be some Judges appointed of this right when ever any Disputes may happen about it either every pretender to the Crown must judge for himself and then he will be both Judge and Party in his own Cause or else it must be left to the conscience of every individual Subject in England to side part with what Party he pleases that may thus pretend to it and so there may be a dozen Competitors for the Crown at once and all with equal right as for ought that any body knows or lastly this right must be left to the determination of some Civil Judges to judge whose Right it is and who can these Judges be who shall thus judge what are the antient Laws of Succession and Rules of Allegiance but the Great Council of the Nation therefore if they have already declar'd and recogniz'd King William and Queen Mary to be lawful King and Queen of this Realm I think every Subject of the same may very well justifie their Swearing Allegiance to them not only by vertue of this Statute of the 11th of Henry the VIIth which requires Allegiance to be paid to the King in being but also from the equity and reasonableness of the thing it self to hinder the Nation from falling together by the ears and to entail Civil Wars from Generation to Generation if the Subjects were oblig'd by their former Oath of Allegiance to the King de jure to endeavour to restore him by force of Arms and therefore the Preamble to this Statute very well and truly sets forth that it is not reasonable but against all Law Reason and good Conscience that the Subjects going with their Sovereign Lord to the Wars any thing should lose or forfeit for doing this their true duty and service of Allegiance to the King for the time being M. But pray tell me is not this very strange and unjust and that by your own showing that a Prince should have a legal Right and Title to the Crown without a right to exercise the Authority belonging thereunto for they must now pay Allegiance to the King in being let him be never so great an Usurper so that indeed the preamble to this Act is expresly false since I think it is very unreasonable nay against all Law Reason and good Conscience to Swear Allegiance to an Usurper since by that means not only all good Subjects would be put out of a capacity of endeavouring to restore the King de jure to his Throne though never so unjustly depos'd or driven out as in duty they ought but also those who were instrumental in this Rebellion and in depriving the Lawful Prince of his just Rights may not themselves endeavour to restore him which would put them out of all possibility of making amends for the wrong they have done him and of making restitution by again restoring him to his Throne F. If this be all the difficulty that is left upon your mind I doubt not but to prove to you not only from the Law of the Land that Allegiance may be lawfully Sworn in this Case but also that it is for the common happiness and peace of the Nation which is the main end of all Government that it should be so and therefore I shall first freely grant that though it is Rebellion unjustly to deprive a King and his right Heirs of the Crown and that those who had a hand in it are bound in conscience to endeavour to restore him or them to their just rights again yet this must be done by no other methods but what are consistent with the publick peace and safety of the Common wealth for if a King de facto has once got possession of the Throne and has been Crown'd and Recogniz'd by Parliament from what has been already proved I think it is very plain that they ought to obey him not only from the