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THE

CONSTITUTION,

Laws and Government,

O F

ENGLAND,

Vindicated, in A Letter to the Reverend

Mr. William Higden.

On Account of his

View of the Englijh Conjlitution, with Re Jpeft to the Soveraign Authority of the Princey &c.

In Vindication of the Lawfulnefs of Taking the Oaths , &c.

By a Natural Born Subject.

The Law is Good — but Sin takirg occafion by the Law-) becomes exceeding Sinfutl. Rpm. vii II, 12, 13-

Thonjhall not follow a Multitude to do Evil: Nei- ther fhalt thoufpeak in a Canfe> to Decline after Many^ to Wrejt Judgement. Excd.xxiii. 2.

/ Counfel thee to keep the King's Ccmmandn.ent. and that in Regard to the Oath t>j Cod. Ecclef. viii. 2

LONLON Printed, and Sold by theBooklellers of London and Weftminfter. 1 709.

CONTENTS

MR. Higden do's not 6. Juflifythe Revolu- tionist PerfwadesCom- plying voith it. Three Preliminaries, i. What he means by Con- stitution, p. 5«

2. What by de Jure and j, de Fa&o. p. 6.

3. Haw far he wo'Sd make Precedents an Argu- ?nent. ibid.

(I.) What the Conftituti- on is. ibid.

1. It is the Legifiative Po- wer, ibid.

2. Of the King and Three Eltates. ibid.

3. The Three Eltates De- rive from the King. p. 7.

4. Tlic Corruption of the Parliament of Forty One. ibid.

5. They run M&d^evcn to Blafphemy, upon the No- tion of Parliaments, p. 8.

A

The Three Eftates aw not the Fountain Con- stitution. The Third Eftate of the Commons not Admitted till the 49. of Hen. III. according to Dr. Brady. p. 9.

7. Not Settled as now long after that. The Mem- bers of former Parlia- ments Re-Summoned to make a New Parliament, without any New Electi- ons, except in the Room of thofe that were Dead or Sick. p. 10.

The King Summoned more or fewer Knights and BurgefTes as he thought fit. And Named thofe who (1)0 uld be Returned. p. 11.

Difputes about Elections Determined by^je King and Council. ibid.

8. The King did de Jure Tap his Dcmeafns. And the City of London by

l 1 hi

CONTENTS.

the Advice of his Coun- cil, p. ii.

Sr. Henry Spelman fays ther were no Commons in the Parliaments of the Saxons. Nor of the Nor- mans, from Will. I. to Hen. III. p. 12.

King Jofin by his Charter Referved to himfelf the Power of Taxing infome Cafes. p. i j.

7 he Commons in Parlia- ment then were none un- der thofe who held of the Kmgin Capite. ibid.

Several Ads of Parliament, after Hen. III. Even as to R.aifmg of Taxes with- out the Commons, pi 14.

Receivers and Tryers of Petitions. Each Order Taxed it [elf. p, 15. The Original of the Junf diftionoftheLordsp. \6.

9. This no Breath of tl e Constitution While the King holds only of God, and is free from all Co- ercion, p. 17.

Limitations of Concellion and of Coercion, ibid.

Acts of Parliament agamft

//^Prerogative areYoid.

-ibid.

The Supreme Powtr fully

Recognized to be in the

KING.z/c;<\ . p. 19*

10. Tloe Commonwealth 1649, a total Breach of the Conftitution ibid.

The Cafe if Oliver had ta- ken the Name of King. p. 20.

11. Mr- HigdenV Argu- gitment Confider'd as to the Coining of Money.

p. 22. Oliver and the Regicides dcfpjfed the Title of Pof* feflion. Which is worfe than that of the Power of the People. p2$.

12. A Plea for our Ance- flors in thofe Times.

p.2S-

(II ) De Facto tmfi have ti-jc People on its Side,

. P- 25-

1. And de Jure when it pulls '

downdz Facto, p. 26.

2. The Parliaments ownd de Jure again]} de Fa&o.

ibid,

3. Air. Higden Quarrels the Parliaments for this.

1 ibid.

4. Ther was none then thought that PofTeffion alone ga ve Right, p. 2J.

5. Nor do we Now. p-29.

6. It woiid Dejlroy the De- Urine of Repentance, ib.

7. // was Alanifeflly over- Ruled by the Parliament 1660. p. 31.

S. And

CONT

8. And by all the Parlia- ments both of York and Lancafter.

9. The Cafe of Queen Jane ft ill fi Proof of this, not- withftanding the Excepti- ons of Mr. Higden. p. 32.

10. Our Laws fiippofe a PofTeffion to be de Jure in the Right King, even •when he is de Facto §ttt of PofTeiTiori by an Ufur- per. p. 34.

11. Mr. Higden's Mlftake in Reclining Thirteen Kings from Will. I. to Hen. VII. who came not in by Hereditary Title. None Claimed by Bare PofTeffion. p. 35.

12. Of the Non jurors in thofe Times. And his Afifreprefentation of Ro- bert Earl of Gloucefler.

p. 40

(III.) He brings his Prece- dents from the Times of Ufurpation. p-43.

The Length of the Ufurpa- tion made it Neceffary not to Vacat the Ju- dicial Proceedings, nor the Ads of Parliament, on which they Depended. ibid.

(1) Several Ads of Par- liament which were n«t

E N T S.

Right at firfty yet have Obtain d by Cttftom, and the Allowance of our Kin^s. p. 44.

(2.) Ads of Ufurpers have been Confirm' d or An- null'd. 1 Edw. IV. par- ticularly Confiderd. p.47.

No Ad of any King_ de Jure either Confirm'd or Annull'd. p. 50.

fj,J It was not tobeEx: peeled that an U fur per frond Vacat the Ads of Another for being an llfurper. ibid.

Two Cafes 1 of Hen. VII. brought by Mr. Higden make both again}} him. And deter min Abfolutly againft de Fado being always de Jure. p. 5 1.

(4) The Judges cannot De- termirt of the Right of the Crown. p. 54.

(5) Mr. Higden thinks Lawyers WStates-Men better Caufuifb as to the Oaths than Divines.

P-SS-

(6.) He def.resjpiit One

Instance of what was done

every Day, that is, Men

fimijV'd tor Fighting for

the

CONT

the King in PofTeflion. P-S9>

(7.) TkdcFaflo Defcent of thcCxovin do's not always Purge Attainders, p. 61.

(8.) The Repeal 1 Edw. Ill Dcclar'd Void in Parliament, becaufe his Father Edw. II. was than Living. ibid.

(9) The Ads of Ucn.W. after he took the Crown from Edw. IV. Jttdged Void, and are not Prin- ted in our Statute-Book. p. 65.

(io) An Excufc for our Anceftors in theTimts of York and Lancafter, which we have not. p 66.

And why the Pretenders then did not take the Regal Title. ibid.

TheirLoyahy then moreRe- m.rrkabls than at any time fwce. p. 70.

The Example of Poland at Pre fan. p. 71.

(11.) Parliaments ,j^to£ the jame Caufe Back and Forward. And always follow'd floe Sword, p. 72.

(12.) Mr. Higden puts the Legislative Authority in the King. p. 73.

E N T S.

No Conftitution will Suffer its Authority to be Di- fputed. p. 74.

Ther is no Judge be- tween Competitors for the Crown. ibid.

(13.) Of Natural and Le- gal Allegiance p. 75.

Lord Chief Juftice Coke and Hales both under Temptation againfi the Prerogative. ibid.

Anfiver to Mr. Higden'.* Quotations from Lord Bacon, Coke, Bridge- man, and Hales p. 76.

The Argument Sumd up in the Cafe of Queen Ma- ry, p. So.

(14) The Laws are Ra- viflied by every Ufurper.

Toe Refloration of K.Qhw.

II. was againfi the Oaths

and Laws of de Facto.

ibid.

The Statute 1 Will, and Mary Determins exprejly for de Jure againfi de Facto, ibid.

Something EfTential ^Par- liaments p. 86.

But Mr, Higden fays, the de Facto Power may Al- ter all Rights, even of the Crown. p. 87;

dS)Tbt

CONT

(15.) The Right of the Crown, and its Defcent is own d by the Law to be from God. p. 88.

Mr. Higden woud have a

Law made agastofl Con-

queft and Ufurpation.

p. 89,

(16.) Some Account of the

Statute 11 Hen. VII.

p. 91.

Mr. Higden fays fome Kings de Jure fince the 1 of Jam. I. have owned the Legiflative Authority of Kings de Fado. tie is Defired to fiew it. p. 94.

(17.) Mr. Higden'.* Mi- flake in faying, they ne- ver Proceeded againft thofe who Fought for a King in Pofleflion, but only by way of Attainder *>zP?rliament. p-94-

The Nation prefer d Here- ditary Right to Poflefli- on. p. 96.

(18.) The Jews Submitted when they were Con- quer'd , but Refcud themfelves when they Cou'd. P 97-

E N T S.

Their Allegiance was Due

to the Roman Emperors

in our Saviour'j time.

p. 98.

(79.) Mr. Higden makes very Short Work with the Scriptures, p. 99.

(20.) And as to the Do- ctrine of the Chnrch of England. p. 101.

(21.) He brings in the Whigg Cant of Kings being made for the Peo- ple. But dares not fi and by it, and it do's him no Service. Only gives Encouragement to Ufur- pation and Rebellion, p. 103

(22.) Every thing has Right but the Crown ! A New Gofpel for Kings ! p. 104."

(23.) The Behaviour of the Primitive Christi- ans to Kings in PolTef- fion. p. 106.

(24.) An Expoftulation with Air. Higden upon the Whole. ibid.

A

SUPPLEMENT.

She.wing

I.r\*- Wake'j >./?#- H. Mr. Tyrrell's ObjeFH* %<J cation of what I om againfi it. p 1 16. have [aid concerning the Conftitution. p. m. Advertifement.

Concerning the Jacobite Converts*

ERRATA.

PAge 4. 1. »3- f. ta. r. at. p; 8. 1. 6. f. Crabled. r. Garbled. p. 15. 1. 20. r- Parliament, of which the Bifhops were the Principal part, and were. p. 44. beginning of 1. 5. put (1.) p. 85. 1. 27. f. aftually. r. aftual. p. 105. 1. 27. r. as to. In the Advertifement p. ult. 1. 4. r. Reafons.

C * ]

A

LETTER

T O The Reverend Mr. William Higden.

O U befpeak in your Freface great Charity and Moderation in thofe who fhall Anfwer you. But not without a Sting if they come too near,

j4nimafque in Vvlnere fonnnt.

Yet, Sir, I muft venture, and freely tell you wherein I think you have overfiiot the Mark.

You are come into the Government. But up- on what Terms? You once thought it all a Wickednefs and Vfurfation. And have you Al- ter'd your Mind ? No. You ftill think it was fo. But you have found Rcafons that notwithitand-

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t you ought to Comply with it. So .:ion of the Gozernmen;y but : .-.. : your own Compliance. And you are as Free to part with it to Morrow, if it keep not its Ground, and C ■ - ■ :aia with what- ever I ife up in its Place. It cannot Sink down with me how any Man can be Hearty to he thinks a Wickednefs t Therefore the Government is not beholding td ; err who (hall come in otherwife than upc -Princlf.es. For tho' he may Sa-

" himfelf in it, ye: i: his Arguments ( Tail he i ettle Thoufands. I will not be

fo Unc: : to Suppofe yon had this in

De:~. : Bat however it has the fame Effect. .: I may fet this down as a Certain . whoever St. to his Old P*f-

Obedience Dccrrin, cannot be a true Friend : : the Rm And this Appears in that Vmcillmgneft with . in. And they go

ftfof that time. 0*ak with a X)f- :hatfomethingw"- ith them,

ond not be tho:

to A - Ijfed ?l.

Marries oa v4&-

- :hey v,ou;d not I • any Ab- rote againft it, and :ut Sinful. But . Li e know

:whatf -done. But there were

:"e who f^fc it it as

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^ou Carry 'd it to I

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[*] ijig all that you ought to Comply with it. So that this is no Juftification of the Government^ but only of your own Compliance. And you are as Free to part with it to Morrow, if it keep not its Ground, and Comfy again with what- ever fhall Rife up in its Place. It cannot Sink down with me how any Man can be Hearty to Support that which he thinks a Wkhdnefsf

Therefore the Government is not beholding to any Convert who fhall come in otherwife than upon Revolution-Principles. For tho' he may Sa- tisfy himfelf in it, yet if his Arguments pre- vail he will Unfettle Thoufands. I will not be fo Uncharitable to Suppofe you had this in your Deflgn. But however it has the fame Effect. And I think I may fet this down as a Certain Rule, That whoever Sticks Ibill to his Old Paf- fwe Obedience Do&rin, cannot be a true Friend to the Revolution.

And this Appears in that Vnwillingnefs with which thefe Men come in. And they go not an Inch farther than juft they muft for that time. Thus thofe who took the nrft Oath with a De- claration fhcw'd that fomething Stuck with them. And what was that ? They wou'd not be thought to Abjure the Right of the Difpojfejfed Prince. But I think he who Marries out Wife does Ab- jure all others. However they wou'd not have it fo, and freely Dcdar'd againft any Abjura- tion. Doctor StittwgfUet Wrote againft, it, and Made it not only Pnfignificant but Sinful. But he Liv'd not till.it was Imposed, fo we know not what he wou'd have done. But there were thofe who Voted and Argued againft it as Vn- lavoful, and yet took it as foon as the Major Vote Carry 'd it to be Lawful* I

[?]

I obferve that thefe Men draw not the Condit- ion from the Premifes, bnt firft they fix a Conch* (ion, and then find out Premifes that will An- fwer to it. Thus Dr. Sherlock having nothing in his View but the nrft fliort Oath of Allegiance^ Adapted his Arguments accordingly, and tho' he made it Lawful to Comply with the Go- vernment, yet he Referv'd a Right in the Difpojfejfed Prince, which he might Recover if he cou'd. And made a Diftindtion between a Right by Pojjejfwn, a Legal Right, and a Right by Inheritance.

But the Abjuration Difclaiming any Right Tohatfoevery you, Sir, were forc'd to come up to this, if you wou'd Comply.

Well, I mult fay it of the Clergy, whether Compilers, or Non-Compliers, whether it may be to their Juflificatioii or not, That they came in with the worft Grace of any, they were brought to the Oaths as a Bear to the Stake, and have the leaft Share in the Merit of the Revolution. Which they faid wou'd other wife have overturned the Church, as was done in Scotland for the fame Reafon. Befides that moft now, being then young, took all upon Truft.

You told us, Sir, in your Preface of the Sue- cefs your Papers met with while in MSS. which Encouraged you to Print them. This made us hope for a plentiful Harveft of the Nonjurors who wou'd have follow'd your Example. But as yet we fee very little of it, and you fcem to Stand Alone.

But if they come in upon your Principle ;

they had as good ftay where they are. For I

mufr tell yd, That no Friend of the Govern-

B 2 went

C43

ment, neither Whig nor Tory, are Pleas'd with it. They think it Calculated only for Time-fervers and Trimmers, to whom none are Criminal but the Unfortunate

Title by Inheritance, Election, or Conquefi in a juft War, or Pojfejfion where none claims a better Might, all thefe we have heard o£ and they are Intelligible. But bare Poffeffio-a without Bight, and againfr. the Right Heir Claimant, and Obtain'd by Manifeft Injuftice^ and contrary to the Laws of God and Alan, is the moll Unaccountable of any Plea ever was Advanc'd, and an Affront to any Government that is Supported by it, and not likely to gain Ground, while the Kotion of Right and Wrong remains among Men ! What ! For Right to be- come Wrongs only becaufe it Suffers Wrongfully! And Wrong to become Right by being ftill more Wrong, and Improving in Wickedntfs, without Repentance, and being fully Hardened, after Kil- ling to take Pojfejfion ! Does this purge Defects, an dfet all Right again !

You fet up the Crown like the Goal ta Prifon- bafe, the belt Runner carries it. That if a Jack Straw with his Mob fhou'd Surprize Whitehall^ Seize the King, and Ufurp the Government, it is all his own, he has Gain'd your Goal of Pojfejfion, and the Right of the Lawful King, and his Heirsis Ex- tinguifh'd for Ever ! So that the King wou'd be a Rebel againft Jack Straw, if he Sought to Re- cover his Right f But if he did Recover it, he might Hang King Jack for a Traitor ! Every thing Jack did was Treafon by the Law, and yet for Doing it, the£*np Indemnifies him, and gives him the whole Kingdom for his Pains! Yet do's not Indemnify

him

[5]

him becaufe it may Hang him for it afterwads ! Sir, this is a Contemptible Notion of the Law. And the Revolution and the Title of the Queen which Depends upon it, needs no fuch Defen- ces as thefe. The Wloirgs whom you defpife, defpife fuch a Plea as this. They never faid, ther might not be a Prevailing Wickednefs, and that Juftice was to be Meafur'd by Succefs.

You make the Revolution an Iniquity EftablifiYd by Law. And therefore plead Submiflion to it. Which looks not like good Divinity, whatever Law ther may be in it. But I will not Prejudge.

Thus much in the general. 1 now come to your Arguments, which I will endeavour to un- ci erftand if I can. Towards which I Ihall want your Help in the following Particulars.

i. To know what you mean by the Confii- tution ? You make this your whole Foundation. And therefore it is necefiary it ihou'd be Di- ftin&ly and Clearly underltood.

There are many Frames or Conflitutions of Government in. the World. And the fame Coun- try has undergone feveral Frames. Is it your Meaning then, That no Frame or Confiiuttion of Government ought to be Submitted to but that which was firft EftablinYd ?

Or, Secondly, no Alteration in the Conftitn- tim but what was Regularly 3nd Fairly made by the Confiitution it felf ?

Or, Thirdly, That a Conftitntion once Settled, is to be Obey'd, however Wrongfully it was brought in?

I will prefume for feveral Reafons that you will pitch upon the Third. And that you will allow of de Fatto Conftitutions, as well as de Fa- Bo Kings. B 3 2.

2. Then the next thing is to know what you mean by de Fatlo and de Jure ? In your Book you make de Fatlo to be always de Jure. So here is a DiftimBion without a Difference.

3. The third thing I wou'd know, is, Whe- ther you make Precedents (which you take for your Argument) a Subftantial Ride in all Cafes ? Otherwife they may be none in this.

This, Sir, is a lhortView of your Hypothefis, and of your Defence of it.

(!.) I will begin with the Conflitution. And by this I fuppofe is to be Meant fomething Standing and Perpetual, which is not to be Chopped, or Changed, or Alter d ; but to Re- main Firm and Intire it felf, tho' it can Change all other things, all our Laws, Cuftoms, and Inferior Conftitutions. It is the Primum Mobile^ ynmov'd it felf, but fetting every thing elfe in Motion. The Fountain whence all Laws and Subordinate Authority in the Nation flows. The Streams may take different Channels, but the Fountain ftill Remains the fame.

1. And this is no other than the Legiflative Authority, which is ty'd to no Law, but may Enatb and Repeal at Pleafure. For the Law is nothing elfe but the Declar'd Will and Plea- fure of the Legi/latvre.

2. And this I fuppofe in England is Gene* rally Underftood to be in the King and the three Efiates, that is, I. The Lords Spiritual, 2. The Lords Temporal) and 3» The Commons.

Thefe

C 7]

Thefe are our Cotiftitution > in. Conjunction with the King, and without thefe no Law is to %q made. Thus it ftands now.

3. But then we mull fay, That from the Beginning it was not [0. For Parliaments were not from the Beginning. They were Call'd by Kings, and all the Authority that they have is Deriv'd wholly and folely from the Crown. So that they are not the Original and Fountain CO NSTITV TJO N.

It is Certain that the Whole Legijlativc Authority in England was once in the Crown, as well as the Property in all the Lands. And to this Day all Lands are held of the Crown, and all the Authority as well Parliamentary as any other Civil Authority is Deriv'd from the Crown, and .from it only.

GOD made Kino-s, and Kinq-s made Varll^w msnts.

4. Let no Man here Miftake me, as if I was fpeaking againft Parliaments, No, I think them an Excellent Conititution ; for in the Multitude of Councellers ther is Safety. And it is moft Happy when the Publick Affairs are Carry'd on with the moft Univerfal Confeilt and Agreement.

But as the Corruption of the Befl things is the Worft, fo when Parliaments Degenerate from their Original Confiitution, they become the Authors of the Greater Mifchief. And we fpeak not by Guefs, but from Dear-bought Experience. The Parliament of Forty One be- gan at jfirfl to Contrafi with the King-, and B 4 Difpute

[8]

Difpute his Authority. Then they fet them- selves up as a Power Co-Ordinats and upon'the Level with him: And at la ft they A'lTerted an Authority over him, to Judge and Condemn him. The Prevailing Fatlion in that Houfe of Commons, having firft Grabled their own Houfey and Secluded the Loyal Members, got the firft of the three Eftates, the Bifhops, turn'd out of the Houfe of Lords. And loon after Di- scarded, by their own Authority, all the Tern- foral Lords, and took the whole Government into their own Hands, and Created them- felves a Commonwealth, thus totally Subverting the Constitution.

Then it was that any Number of Men get- ting into St. Stephens, Chappel, not only with- out any Authority from the King, but in Di- rect Oppofition to him, cou'd Vote themfelves a Parliament, Defpifing the Old Rules, or. to Qualify themfelves according to the known JLaws then in being, but Men Attainted and who had Forfeited their Lives to the Law, cond fit and Vote themfelves Acquitted, and true Members of that Houfe !

5. Nay, fo Mad were they in thofe Times upon the Notion of Parliaments, that Baxter in his Saints everlafling Reft, Printed 1649. p. 83. Defcribes Heaven as a Parliament, with their Speaker, &:c. and inilead of the Kingdom of God, calFd it Parliament vm bcatum. And in the Veiw of the Governments of Europe, by T. R. Efq^ Printed for R. Baldwin. 1689. p. 10. from thefe Words, Let iu make Man, he Alludes, That God Summoned a parliament

ef the Trinity. And I believe ther are many in England who think that a Parliament was the firft Government in the World. Tho' I know not how they will find it in Adam, of where he or Noah call'd a Parliament. But the Jefuits, Presbyterians, and all our Republicans^ fuch as Parfons alias Dolema* the Jefuit, Knoxy Buchanan, Milton, Sidney, Lock, &C. who place the Original of Government, in the People, and make all to be Commons at firft, muft think that the lafi Refort of Government is ftill with them, and that the Houfe of Commons, as Reprefent- ing the People, have an Authority Prior and Superior to King or Lords. And fo indeed they make the Houfe of Commons the only Original and Vnalterable CONSTITVTIO N.

Therefore to Correct thefe Excejfes (fome of them Blafphemous) it can be no Reflection upon the Juft and Lawful Authority of Par- liaments, or the Prhiledges of the Honourable Houfe of Commons, to fet this Matter in a Clear Light ; it is a Vindication of them to be, what they Profefs themfelves, His (or her) Majefiy's moft Dutiful and Loyal Subjects.

6. The Lords and Commons are now Part of our Conftitution. But they are not the Foun- tain Conflitutiom The Lords are all made by the King, and were his Great Council long be- fore the Commons were taken in. Which was not (as Doctor Brady fays, in his Introdn&ion to the Old Englijl) Hiftory. Printed 1684.) be- fore the 49th of (lett; III- For in his Short In- troduHion to that Book he Affirms and Under- takes to Proye thefe two things,

S! l.

[ io]

" I . That tfie Commons of England Repre- cl fented by Knights, Citizens, and Btrrgejfes in ct Parliament, were not Introduced, nor were cc one of the Three Eflates in Parliament be- " fore the 49th of Hen. III.

u 2. I affirm {fays he) that before that " time, the Body of the Commons of England, " or Freemen (as now Underftood, or as we <c now frequently call them) Collectively taken, " had not any Share or Votes in making of cc Laws for the Goverfiment of the Kingdom, ct nor had any Communication in Affairs of <c State, Unlefs they were Reprefent'ed by u the Tenants in Capke.

The Do&or was Keeper of the Records in the 7W?r, and Quotes the Parliament Rolls, which are the Fountain Proof in this Cafe. And I hear not that he has been Detected in any falfe Quotations,

7. After the Cxmtnms were thus taken in- to Parliament, it was a long Time before they were Settled, and their Elettions Regulated in that Form as now, or their Authority ib Afcertairfd or thought Neceffary. Thefe things came by Degrees. The Doctor p. 152. fets down at large a Writ of Summons to Parlia- ment, 21 Edw. I. Wherein the Sheriffs were Commanded to Return the fame Aicmbers that ferv'd in the Preceding Parliament, and to make New ElcElions only where any of thefe Old Members were Dead or Difabled by Sick' mfs.

And

[« ]

And p. 151. ther are other Writs Com- manding the Sheriffs to Return wo Knight* befides the two that were firft Return'd. So that at that time the King was not Limited to any Certain Number of Knights. And p. itfi. The Writ Commands but one Knight to be Return'd for a County, one Citizen** for a City, and on Burgefs for a Burgh ; and the Names of thofe to be Return'd are fet down in the Writ, fo that the King then had the Naming of them, when he thought fir. And in Dr. Brady's Continuation, in the Reign of Edrv. 1. p. 96. he Quotes the Parliament Rolls, where four Knights were Summon d from every Country. And p. 98. one or two Bur- gejfes to be Return'd, as the Burgh was Greater or Lefler. So that at that time ther was no Fix'd Rule for the Election of Parliament Men, and it was left wholly almolt in the King's Breaft.

And any Difpute about Elections or the Right of EUUions was Determined by the King and Council in the time of Edw. II. of which ther is a plain Proof in Brady's Introduction p. 37, 38.

8. And as the Elections were in this Con- dition, fo the Neceflity of the Confent of the Commons in Parliament to the making of Laws, or even as to the Rafing of Money, was not then known or taken for a General Rule. For ther were feveral Acls of Parliament made without the Commons, even after Hen. III. as Dr. Brady fhews all were before. See the Ap- pendix tp his Introduction p. 49. &c. Of the

Great

[ " ]

Great Councils and Parliaments before and after the Conqueft.

Our Ancient Kings did de Jure Tax their Demeafns. Jntroduft. p. 180.

The City of London Tax'd by the King with the Advice of the Privy Council, p. 178.

He gives a long Quotation out of Spelman\ Gloffary upon the word Parliament, beginning at p. 231. And you find Spelman making this Observation, p. 232. Nvfquim me reperiffe in- ttr SAXONES Noftros PLEBI locum. That in all the Saxon Parliaments ther were none of the Commons.

Then coming to the Normans, he fays, p. 23 3 i 234. That William the Conqueror gave all the Lands among his Great Men (the Nor- mans) terram tot am inter Magnates Suos fie dif- foftiit, that the Great Men, or the Magnates, held of the King per Baroniam, in Capite, that is, from the Head the King, whence they were Call'd the King's Barons or the Barons of the Kingdom. And thefe Barons gave the Lands to others under them, to hold of them in Military Service, and thofe again to Tenants under them for Agriculture, or what we call Soccage. The Barons in their Courts had full Authority overall thefc under them, to Decide all Controverfies among them, and give them Laws. And the King with the Advice and Confent of his Barons, made Laws for the. whole Kingdom. And Spelman fays, Ltidunt qui Parliamenta Nofira in his qu#m runt. It is a Jeft to feek for our Confiitution of Parliaments in thofe Times.

And

[i3]

And be Adds, Collegijfe me Centenas That

of aboat a Hundred Great Councils (or Parlia- ments, if we will call them fo) which he had Collected from the beginning of Will. I. to the end of Hen. III. he cou'd not find any thing de Plebe, of the Commons, among them all.

Then he fpeaks of the Charter of King Johny which the Rebellious Barons, having Subdu'd him, Forc'd him to Sign, wherein he Grants, that he wou'd not impofe any Tax but by the Common Council of the Kingdom* for the Word Parliament was not then in uh. Yet in this Charter (which Sir Henry Spelman faid he had feen) that the King might not feem to part with his whole Prerogative, ther are Three Ca- fes, Referv'd wherein he did not Diveft him- felf of the Power to RaifeTkve; without Con- fent of this Common Council i. To redeem his Perfon. 2. To make his Eldeil Son a Knight. 3. For the Marriage of his Eldeft Daughter. Only he Promis'd that thefe Taxes fhou'd be Reasonable

l>ut to mew what was meant by this Com- mon Council, he Promifes after in the fame Charter, that for the Railing of Taxes (except in the Three Cafes before mentioned) he wou'd call the Bifiops, Abbots, Earls, and Great Ba- rens of the Kingdom, and thofe others who held of him in Capiie. Which is far from the Notion of the Commons as Reprefented in our Parliaments-

And Sr. Henry obferves, That after the Com- mons were let in to Parliaments, the Power ot the Barons or Great Men Decrcas'd, who only before were Able to raifc Rebellions againit the

Crown •

Crown ; but then, fays he, the Commons being Loos'd from their Subjeftion to the Barons, Ecce novus jam Leviathan grajfari ccepit — — A new Leviathan of the Commons afofe, who made Terrible Rebellions, which they never had done before. See this more at large in the Intro* duel, p. 235, 236.

But now from the End of the Reign of Hen. III. When the Commons came firft into Parliament, according to £>r. Henry Spelman and Dr. Brady, their Rights and Conftitution was not of a long time fo Settled and Afcertaind as at this Day. For we find after this feveral-^<fo of Parliament, even as to the Raifing of Mo- ney, which were made by the King and Lords without the Concurrence of the Commons, as you will find in Cottons Abridgment of the Re- cords. Printed 1689. There p 17. n. 6. and 19. n. 8. in the 13 Edw. III. The Lords grant Aid to the King for themfelves, without the Commons. And the like 12 Edw. IV. p. 688. n. 9. And 13 Edw. IV. p. 691. n. 43.

An Imposition upon Merchandize, 21 Edw. III. by the King and Lords without the Com- mons. P. 53, 54. n. i6".

The 4 of Hen. VI. It is Decreed by the Aflent of the Lords, that the Subfidy of Ton* nage and Poundage granted Conditionally, fhou'd be Simply Paid, notwithftanding any Condition, p. 584. n. 22.

21 Edw. III. An Impofition upon Cloth by King and Z^rd; without the Commons, and a- gainft their Petition, p. 57. n. 31.

The Bills of the Commons were then by way of Petition. For the iu>g and the Lerds were

the

C i5l

Sole Judges 'An. Parliament, the Commons on- ly Petitioners. p< 392. n. 80.

And of thefe Petitions or Bills in Parliament^ the King fometimes Granted Part, and Deny'd Part. p. 48. 57. 74. 138.

Again Granted with Exceptions, Additions, Explanations, or upon Condition, p. 39, 46, 48, do, 62, 166.

And 1 j Rich. II. ther are feveral >#?.r which were Ena&ed by the King with the Afient of the Lords only, p. 354.

Again the Receivers and Tryers of Petitions were in thofe Days a Part of the Confutation of Parliament, who might Receive or JfeyVff any Petition to the Parliament. But this Authority was afterwards thought too Great, and a Bri- dle upon the Parliament, and is now wholly laid aiide. As that Committee calPd the Lords of the Articles in Scotland, to the fame Purpofe, for Trying all Petitions to the Parliament, and was in being and Part of the ConfiHution there till the fir It Year of the Revolution, and were laid afide without any Afl of Parliament for it.

In thofe Old times it was likewife the Cu- ftom for every Order to Tax themfelves. The Lords by themfelves, as above in the 1 3 Edm. III. &c.

The Knights, Freer. en, and Communities of Counties for themfelves -, and the Burgeffes, and Communities of Cities and Burghs for themfelves. As you may fee in the Roils of Parliament pun- dually Quoted by Do&or Brady in his Comi* nuation, at the End of the Reign of Edw. II. p, 180.

And

DO

And in the 1 5 Edw. II. After the End of the Parliament, the King Iilu'd his Writs to the Pre- lates and CVejgy to meet in a Provincial Coun- cil at Lincoln, to Treat of a Competent Aid to be Granted by them. In which Writs, as it were for a Direction, he Recites what the jE*r/.f, Barons, Noblemen, and the Communities of the Kingdom had Granted him in the Parliament at Torjfc. I- bid. p. 180, 181.

It was not then Obje&ed, That the Convoca- tion could not lit after the Parliament, or with* out the Parliament, which was made the great Clamour againft the Canons, 1640.

The Bijlwps and Clergy Enjoy'd this Privilege of Taxing themfelves, till Interrupted by the Rebellion of Forty one, and the 1) furcations that follow'd, till the Reft oration. 1660. But this Privilege Was not Reftor'd to the Church, and the Clergy have been ever finceT^W inCommon with the Laity. Tho' ther is a Salvo for their Right of Taxing themfelves, only for the prefent Ne-

ceffity and till things cou'd be Settled But

it has fard like other Salvoes for Right againft Fatl, the EaUs grow into Precedents againft the Right.

But notwithftanding all thefe Ancient Cu- ftoms, it has now obtain'd, that as the King lays on no Tax but by Common Confent of all the three Efates in Parliament ; fo none of the Eftates can Tax themfelves, but it muft be by the Joint Confent of the Whole. And fo ftands our Conftltntion at this Day.

Again Appeals lay Anciently from all Caurts to the King in Perfon, fome he heard himfelr^ in others he Delegated whom he thought fit,

commonly

[i7]

commonly Lords, to Examine and Report to him. And in fome Cafes he referr'd it to the Honfe of Lords to He.tr and Determine. Which laft obtaining by Cuftom this Jurifdi- tlion came to be Settl'd on them, and is now Part of our Cmftitxtion. See Book Cafe 22 Ed. III. n- 3. and parliament Roll 25 Ed. III. n. 4,'

9. If you ask whether thefe things are not an Altering or Breach of the Confiitution ?

I think not. For while the Fountain Confti- wiw Hands Secure, any various Runnings of the Rivulets are no Breach of the Confiitution.

Thus while the Crmn is Declar'd to Hold only of God, and to be in no Earthly Subjection as by the 16 Rich II. c. v. And to be Abfo- lutcly free from all Coercloji, and ever to have been fo by the Fundamental Law of this Realm, as by 12 Car. II. C. 30. the Fundamental or Fountain Conflitutien is preferv'd Inviolable.

The King may Grant Limitations of Conceffion, as God does with Men when he makes Cove- nants with them. And this takes not away his Power or Authority. But if the King Oiou'd Grant any Limitation of Coercion againlt Hin> felf, the Grant mull either be Void, as Contra- dictory in it felf: Or otherwife he ipfo facto is Vn-\ingdy and the Confiitution broke to pie- ces.

But if we fippofe him frill to be King, then the Grant is Void, even tho' it were Pafs'd into an Act of ^Parliament. For it is a Maxim ill our Law, That an Act of Parliament! Defirutlive of the Prerogative is Void, as being Contradictory to the AUTHORITY which made C • it

[ «8]

it. For how can any thing Deftroy that Authority by which it felf Hands ? And this is fupported too by Atls of Parliament. By the 17 Edw. III. the Statute made at Wejlmii.jter the 15 Edw. Ill- was Utterly Repeat d, and to loft the Name of a Statute, as Contrary to the Laws and the Kings Prerogative. Cotton's Abridg. p. 38. N. 23.

And the 1 5 Rich. II. it was Enafted that the King ihould enjoy his Prerogative as larg- ly as any of his Progenitors, Notwithfianding any Statute. And the Statute of Gloucefler par- ticularly, made in the time of Edw, II. was Vtterly Repeat W, as Encroaching upon the Pre- rogative. Cott. Abridg. p. 342. N. 13-

And fo it wou'd be at this Day, if an Aft of Parliament were mads any way Retrenching the Power of Parliaments, it wou'd be Voidy. as Contradictory in it felf.

My Lord Bacon puts it among the Maxims of the Law, Suprema Poteflas fcipfam Diffblvere foteft, Ligare non potefi. That the Supreme Po- wer may Dijfolve it felf, but cannot Limit it felf. For while it is Supreme it cannot be Limited, elfe it eou'd not be Supreme. And the fame Anthority whkh Enatls can Annull, And where Inferiors wou'd Limit their Supe~ rior, their Alls mult be Void^ becaufe they can have no fuch Authority,

Therefore any Aft contrary to the Original and Fountain Constitution is Void, The Constitu- tion Hands, but the Aft falls. And while the Conftitution is Preferv'd free from Coercion^ k is Supreme and Intire. And this Supremacy

we

£l9l

we Swear to be in the King, his Heirs and Lawful Succejfors.

And because the Power of the Srrord is the Supreme Power, therefore it is Recogniz'd, that %\)t »>oTe £>upjemc (Eouernmmr, Command ana Ctfpofltfon of tijt SBflfti'a, ana of aH forces lip. &ca ana £antoj ana of all £ o?ttf ana jpfes of &rccngt^ (0, ana bp clje Hatog cf England caer toa0 t^e <Hnooui)t?a ftfgljt of f)W S0ajsap, ana f)f0 fto?<tf P;cafceu>ja, Miff J ana ^D.jftns of England -, ana tfjat 26otfj 02 <Btf)<:t of tpe Houfejs of ^atltainent cannot, no? ougfjr to fp$r* tcna tj tfjefame; jpoj can, J£c? Haif'uUp map Hfcafle 0? Eetp m\v (tfUac Cffcntfee 0? 9DffcnQfcc apinff i)(0 9p-.ie(Ip, f)f0 ^iccs cn3 fcatofut ~>uc- C£U~o?0. 13 Car. II. c vi.

I have faid thus much of the Ctnftitution* that we be not Dece'v'd with Words, and think every Crack or Flaw in the Admini- jiratnon a Change of the Confihution. A Finer may be ^/rfc^ or not know his Authority. He may Tield too much, and Confound his Af- fairs, as King Car. I. did, and Rebels may grow too Strong for him. But while we have a King fecur'd by the Laws from Coercion^ and the Hereditary Svcceffion duely Settled, we cannot fay the Constitution is Broken, tho* it may be much Shattered.

10. Indeed when the Commonwealth was fet up in 1649, the Constitution was Intirely Broken? and Rooted up from the very Foundation. Tho' they laid it was only a fmall Alteration in. the Form. For none will own they Break the Conjlitution. But it was a dt fatto Conftitu- C 2 ftofy

03

\im. And this I began upon, and now Ask from you Mr. Higden? Whether a de Fatlo Cot- fiimticn is not as mnch to be Subjnitted to- and own'd as a de Faflo King ? They are both e- qually Righy and equally Wrong. And the fame Arguments for the Good of the People? and that ther be . an End of Conteft, hold in the one Cafe as well as in the other.

And if Oliver their Protetlor had' taken the' Kame of King? it wou'd not have Reftor'd the Conflitution? while King Char. II. or any of his two Brothers? or any nearer to the Crown than Oliver did Claim. For our Confutation is not only Monarchy but Hereditary too, and we are Sworn to Botn.

Oliver was as much a King as if he had ta- ken the Title? for his Power was the fame. Pro- nEior is as good a Word. And I hope we think not there is a Charm in the Syllables. It is Childrerus Play to Difpute about Words? it is the Thing we Contend for. Our Kings had once the Title of Grace? then of Highnefsy and at laft of Afajefty? but did this make any Alteration in their Power ? And fuppofe they fliou'd take a new Name? of Emperor? Cafar? or Cz,ar? of Puler? or Governor? or Leader? or D«fo which is the fame, wou'd that make their Authority either more or lefs ? Our Kings were call'd on- ly Lords of Ireland till 33 Hen. VIII. were they not therefore as much A7»£ j of it as after- wards ? The Czar is call'd Dnke of Mufcovy? but he is as much JS»g there as in ^/^ where he has the Name ot Emperor. Has the Duke of Brandetiburgh one bit of Soveraignity more fince he took the Title of King of J r«/p* .? The

[21]

Duhs of Savoy, Tufcany, &c. arc as much So- veraigns as if they had the Name of Kings. And Oliver was. as much a Soveraign as any of them. We gave Philip the Title of King of 5j*9B for a good while. But have we not ta- ken it from him again ? What .iignify Titles ?

But if Old Oliver had underltood your New Dottrin, Mr. Higdtn, it wou'd certainly have Determin'd him to have taken -the Name of King, when his Ambition prompted him to it. For, according to Tou, it wou'd have brought him within the Purview of the u Hen. VII. and made him a Lawful King. And then all that Aliened the .Right of K. Char. II. againft him, had been Rebeb and Traitors with Mr. Hig- den. The Defcent of the .Crown had Purged all Olivers IDefe&s, the Laws had then been on his Side, and the Conjlitntion had Defined to Mim\

But he was a Rajljfrl Sinner, and for want of going one Step further, and ftealing the Ti- tle as well as Dominions of his Trince, he Loit all ; the Hereditary Right ftill remain'd, and he atid his Accomplices ftand Branded to Pofteri- ty by the Name of Wretches, Defperately Wick- ed, §nd Fanatic k Mi [ere ants, in the Statute 12 Car. II c. 30.

Inftead of all which, if he hid proceeded in his /nju/Hce, and added one Wickednefs to ano- ther, by Ailuming the Royal Character, and Broke the Laws throughout, he had then been a Jufi and Lawful King, and had ftood in our Annals by the Name of Oliver I Aad wou'd have been called a Glorious Deliverer I All this had been, according to Mr. Higdtv,

c 3 3"

[22] if when he had Vacated the Throne by the Mur- der of the King, and Banifhing his Heir, he had Stept into it himfelf : He had then been Rightful and Lawful, and in a Condition to Summon Parliaments, to Remove the Ancieflt Land-Marh, to Enatt and Repeal at Difcre- tion ! Thus Wrong, if you go far enough in it, becomes Right! As a Man may fail Weft, till he comes to the Eaft at laft.

If the Woman of Samaria had call'd her Paramour her Husband, fhe had been Safe, by this Dotlrin !

■Monmouth feeing what Oliver had Loft by his Mode fly, caus'd himfelf to be Proclaim'd King. And if he had Succeeded, wou'd have been as Good a King for Mr. Higden, as any Heredita- ry Monarch ill Europe I

it. His Reign was too Short to Coin Money. But Oliver did it and the Commonwealth of £»- gland, with their own Image and Super fcript ion upon it-, which you, Mr. Higden, make a Full and Indifputable Title to the Obedience of the Subject, without any further Enquiry, and Quote Grot ins and Ariftotle his Criticifms of voiua^ Mo- ney coming from j^? the Z«ra?. Whence to Adulterate the Coin is reckon'd amonglt Trea- sons. And if you had liv'd then, and Adulte- rated their Coin, you might have found it fb. For why fhou'd they who had Vfurfd every Part of the Soveraignity Stick at that of Coining ? They AlTum'd the whole Soveraignity. And as fuch, they were Owrid and Treated with Abroad, Recognized and Obeyed at Home. Only fome wou'd Trifle about the Word King. You wou'd not have had the Commonwealth to have taken that

JVame f

[23]

Name! And their Image and Superfcription upon their Cow, and Oliver's, afterwards wou'd have Determin'd your Allegiance to them, if you had liv'd then, and been of the fame Triu- mphs you Profefs now. You think this fo Ma- terial an Argument and Decijive in this Point, that you fpend from p. $9. to p. 94. upon it, to {hew that our Allegiance muffc follow the

Coin. It generally do's indeed But this

wouM have Deceiv'd one, while the late King James was in Ireland, and his Coin cur- rent here, to have ask'd, whofe is ibis Image and Superfcription t

But, Sir, this Argument about the Coinage was made ufe of by Dr. Sherlock, and is Sub- stantially Anfwer'd in Dr. Sherlock'^ Cafe of Allegiance Ccnfider yd, rwith fome Remarhs upon bis Vindication. Printed 1691. p. 59. to 62. to which you have made no Anfwer. And it is itrange that you have not Confulted what your late Brethren have Wrote upon the fame Argument you fet up, before you had Determin'd your felf to the other fide, in fo very Important a Caufie, and for which you had Suffer d fo long, by lofing Time and Expectations.

No more can be Infer'd from Coinage but Pojfejfon. Which is a full Right where ther is no better Right, as in the Cafe of the Roman Emperors in our Saviours time. But Oliver and the Regicides Defpifed the Title of fojfefon. They pleaded the Right of the People to judge and Condemn their King, and Refume that Authority which they Pretended he held by their Commiffion, and had Forfeited to them C 4 by

[ H 3

fcy breaking the Original Contrail:. See King Charles his Cafe. Or, an appeal to all Rational Men, concerning bis Tryal at the High Court of Juftke. Being for the rnoft part that which was intended to have keen deliver d at the Bar, if the King had Pleaded to the Charge, and put himfelf upon a fair Tryal. By John Cook of Grays-Inn, Barrifter. Printed, 1649. This Cook was Sollicitor againir. the King at his Tryal, and Suffer'd "with other Regicides after the Reft an* -ration. And in this Argument of his, he fays, p. 21. PoJJcJfion is a vain Plea, when the Matter of Right is in queftion, for Right can never dye. The Notion of Pojfejfion extinguishing Right was Abhorrent even to Thefe.' And indeed it has lbmething in the 'Conferences of it more jPata'l to Human Society, and to all good Prin- ciples, than even the Pretence of the Power of 'the People, which Murdered K. Char. I. 'For that is a Principle, (be it Good or Bad) and there : is " lbmething to be Pleaded, fomething to be Proved in if, as you fee they here brought the King to a Tryal, and 'had Witneffes ready to be Examin'd againft him, and he had Li- berty to make his Defence. But the Principle 'of Pojfejfwn giving Right being once Admitted, ther Remains no other Principle in the World, no Right, or Wrong, no Juft or Vnjnft, i#> Proof, no Ewiwination, no Tryal ! But if you Thruft out a King (no Matter How) and Re- fufe to Hear any Defence he can make, his Right and of all his Heirs is Immediately and for ever ExtingmJJjed, and becomes the Right of thofe whq " have Difpoftefs^d him againft all Right ! This is Raphe, Capite, Catch who

Catch

Catch can, Rob, Murder, Steal, all is your own you can Carry off/

12. And here, Sir, I wou'd Plead for a lit- tle of that Regard you Contend for fo Moving- ly, p. 6, and 7. to be paid to our Amefiors who fubmitted to de Fatlo Kmg; in the times of Tork and Lancaster, Not to think there fioidd be None who Vnderfiood the Co ffitHtion and their Duty, or had Virtue enough to Suffer for it. For this wou'd be, as you fay, to enter- tain a very mean, or a very Hard Opinion of our Ancefiors. In Modefiy, we cannot but al- low them to ZJnderftand what the Cov.fi itut ion, was in their own times. And fhall not we, Sir, have as much Deference for our more Imme- diate Ancefiars, your Father and Mine, Sir, who did not Underftand de Fatlo Conftitutions in their time, and had the Virtue (as wc Us'd to call it) to Suffer for it ? But now wc mult make them all Fools, or VVorfe !

Befides, thofe long ago were our Pepijh Ancefiors, who had the Pope to Solve their Conferences, and he was Generally on the de Fatlo Side. If we Blame them for being thus Blindly led by him, then do we not Accufe our Ancefiors of Ignorance ? Nay, we have had Heathen Ancefiors too, But Truth and Religion muft not be Meafur'd by our Ancefiors. This is an Argument for Women and Children. To move Pajjions, rather than Convince Reafon.

(II.) I come now to de FaHo and de Jure. You fay it was Common Vfage, that is, Com- mon Law, to Submit to de Fatlo Kings. You

are

[ 2<j]

are Certainly, Sir, in the Right of it. Kay, I will tell you more, it was Impofftble to be otherwife. For none cou'd be de Fafto, un- lefs the People, and the Major Part too, at leafl the Strongest were of his Side.

i. But then you mult Allow me, That it was Common Law or Vfage likewife for de Jitre to pull down de Fafte, and the People muft Join in tliis too. And you give many In- itances of it your felf. So that the Common IJfagc runs not all on your Side, as you think } and you are fo fure of it, as to Ask, p. 49. but one Infiance againft it in aU our Laws or Hijlory.

2. If the Notion of de Fatto being likewife de Jure had been fo the Common and Re- ceiv'd Notion as you fay, what an Eafy An- fwer had the Parliament to give to Richard Duke of Tork, when he put in his Claim for the Crown, before the Parliament of Hen, VL he being then prefent and A&ually upon the Throne? Might they not have faid to Richard. do you not fee Henry upon the Throne t And de Fatto is de Jure. Then what have you more to fay ? But initead of that they De* clard, upon Richard's, fetting forth his Proxi- mity of- Blood, That his, TitU coud not be Defeated.

3. 1 know, Sir, you call this a Partial De- claration, and Labour to Prove it from p. 53* to 58. But, Sir, all the Ufe 1 have to make ©f it is to flicw, That de Fatto being always

de Jure

[*7]

de Jure was riot the Receiv'd Notion of thofc Times. And againft this you have faid no- thing.

Nay, you own the Caufe goes againft you, upon this Point, while you find fault even with Atls of Parliament for Attainting of Vfur- pers and thofe who Ad her 'd to them. You call thefe Attainders, p. $6. Stretches beyond Law, in the Heat of the Vicious Rage againft his Rival. And you fay plainly, p. 53. That the Diftin&ion of de Jure and de Fatlo was Mifapptfd in the Statute r Edw. IV. But you are very Free and fay, p. 57. This Declaration of Parliament proves too much, and therefore proves nothing at all. And fpeaking of Atts of Recognition you, fay, p. 76. In which Parliaments have ever been Liberal of their Exprejfions*

4. This is an Eafy way, Sir, to put off

A&s of Parliament ! Will you Allow the fame

Liberty as to thofe Quoted on your fide ? But

let the Parliament be Faulty which way it

will, Yet this is Clear on Both fides, That

de Fatlo and de Jure being the fame thin*

was fo far from being the Comon Notion of

thofe Times, that it was as Singular then as it

is Now. I do not think ther was one Man in

all England of your Opinion, Mr. Higden

during the Difpute of Tori and Lancafter,

which is the Time whence you bring your

Precedents, and whereon you Build your Hy~

pothefis, and wou'd perfuade Us that it was

the Opinion of every Man at that Time. For

how cou'd it be their Opinion, or of any

one of them, when every Battle that was

fought

[?8 ]

fought was again ft the King in Pojfcgien, on behalf of him who Pretended to have the Right ? You know that both York and Lancafter did Pretend to be next in Blood to the Crown, and fb to have the Right. But neither of them thought this Right cou'd be Extinguifh'd by Pojpjfwn, for Each of them fought againlt the Other who had got into PoJJeJfwn, and fet up his de Jure againft the Other's de FaBo* Cou'd any of them then think that de Fatto and de Jure were the fame, or that the Right Was Extinguifh'd by Poffeffw?

If this had been the Current Notion, why wou'd the Vfurpers after they had got into Pojjcjfioz be fo Sollicitous for Reflations from the Depofed Primes} As in the Cafe of Edw. II. and Rich. II. And even not to thinjcthem- felves fecure in thefe forced Rejignations ftho* they made them fay they did it Willingly and Freely) till they had taken the Lives too of thefe Kings who once had Right. They wou'd not truft to the Extingutynng by PoJMioH. Which they might fafely have done, if the Kotion had been fo Vniverfd and even to be the Common Law, as you fay, Mr. Higden.

Can you Name any King |ince the Con- ejueft who did not Pretend fome Right befides Toffeffion? Even Rich. ILL did pretend that the Children of Edw. IV. were Illegitimate. And as Great a Monfter as he was, he wou'd not have Murdered the poor Young Princes his Nephews, if he had thought Poffejjion alone

.a good Title.

5: Pray,

r

?5> ]

5. Pray, Mr. Hlgden, what do you think of onr Kings and Queens taking the Arms of France? and the Style of Kings and Qveens of France^ calling Lewis only the French King, or the Mofi Chrifiian King, to Avoid calling him King of France? Is it " not to Preferve what we think our Right againft a very long P&JfeJfwn >

Suppofe this French King, or any other King? fhou'd take any of our Countries from Us, wou'd not we think our Right a juft Caufe of War againft his Fojfcffwn ?

Do we not think fo in our War againft Philip of Spain ? For he was in Quiet Poffeffwn of all Spain when We fet up the Right of Charles againft him. Do wre think then that Pojfejfion does Extinguilh Right ?

it it does, then the French King has a Juffc Right to all his Conquefts. And it is againft Right to ieek to Recover them.

UnJefs you Mean, That Pojfejfion giving Right is a Privilege only to the Vfurpation of Re- bels againft their Natural Soveraign, as being the Moft Juft and Confcientious Conquefl that is Poffible to be Made/ And that none can keep a King's Country from him but his Sub- je&s, which is fome Favour !

6. But, Sir, I know you Condemn all Vfur- patisn and Rebellion. Your Book fays fo plain enough, and that you think thefe Heinou3 Sins- and of the firft Magnitude.

That which I wou'd know then is, Whe- ther this Great Sin ought not to be Repented of? And if you were Con fe for to fueh an Vfur- fer (fuppofe Oliver or any other) wou'd yoti

not

[3o]

not Exhort him to Repentance f And what Re- fcntance without Reft it ut ion ? For Non dimitti- iur Veccatnm nifi refiituatur Ablatnm. WouM you give him Abfiolution if he wou'd not Re- pent and Refiore ? And is it Poffible that he fhou'd be Oblig'd to Reftore, and yet theC?»- fcience of all the Subjehs be Oblig'd to Sup- port him in his Vfiurpation t Will he be Damned for not Refioring, and will they go to Hea- ven for Maintaining him in his Vnjufi Acqui- fitiofls ?

But he Cannot Refiore. For none can Re- fiore but to the Injured who have the Right. And Mr. Higden has Extinguified the Right of the Difpetfefied.

And I think taken away the injury done him too. For ther is no Injury where ther is no Reparation due, when it may be made. And Reparation is due only where ther is an Injury.

So that by this it is no Injury to Kill the King and Seize his Dominions!

To kill any other Man is Murder, but the Defcent of the Crown purges this in an Vfnr- per !

And Rebellion is an Injury only where it is Little, and Robs the King of a Share. But if it takes AIL, it is no Injury at all !

But if to Avoid this you fay, That the Vfur- per is Bound in Confidence (tho' not by Law) to make Refiitution, then you own a Right in the Difipojfejfed Prince or his Heirs, which overthrows your whole Hypothefis. And that Right can be no other than a Right to the So- veraignity, and confequenty to the Allegiance

of

tit 1

of all the Suhjetts, which Neceffarily follows the Right of the Sovereignity.

7. And if you will take the Judgment or Authority of the Parliament 1660, King Char. II. was True and Lawful King from the D3V of his Fathers Death, tho' others were in Pofefion all that While. And he gave Commif- fions, Pardons, and Grants when he was in Exile, and all other Regal Ads that he had oppor- tunity to do. And thefe'were never Quefti- on'd for his being then out of Pojfejjion. But on the other hand the Als of the Ufurping Tojfejfors ".nd their Valiamems were Declared Null and Void, for want of Sufficient Authority in the Enactors, and becaufe their Poffejjion was Contrary to Right. They cou'd not think then that every PoJJejfwn gave Right % or that Rigit was Extinguished by an Ufurped Tof-

feftox, *

Prince OUver was Hanged and his Head let

tip for his Ufurped Pojjejfion.

Queen Jane was Beheaded for the fame.

2. And ther was not one King of the Houfc of Tork or Lancafter, during their Difpute, but who was Attainted for being only de Fatloy by the other fide who faid they were de Jure. Thus Hen. IV. V. and VI. were Attainted by Edw. J.V. Who was likewifc Attainted by He;-:., VI. And Rich. III. was Attainted by Hen. VIL And all this was done by Parliament. Which if it be the Conflitution, then how can a King de FaUo be a King bv the Gmftkutl&j when

tfas

[32]

the Confiitution Attaints him for being a King de FaHo?

Hen. IV. was Attainted by the Name of Hemy of Darby, and Rich. III. by the Name of Richard Duke of Gloucefter. Which fhews that tho' they did Afliime the Royal Style, ds Fatlo, yet that it did not de Jure belong to them.

9. You except againfl the Inftance of Queen Jane, and fay, p. 68. That She was not Queen de FaBo, but in Fieri. Why ? What did fhe Want ? You fay, She had no Recognition by Aft of Parliament.

Then it feems ther is fomething elfe need- ful befides Pojfejfion to give a Right. Kay, to make a de FaElo. For Q. Jane had Pojfejfion, and yet you fay fhe was but in Fieri. The Duke of Northumberland Pleaded the Great Seal of the Queen de Faflo, and Order of her Privy Council. The Judges did not fay fhe was only in Fieri, they Allow'd her to be de FaBo, but their Anfwer was, That the Great Seal of me that was not Lawful Oueen, could give no .Authority, nor Indemnity, to thofe that Afted on fuch a Warrant. Dr. Burnet's Reform Part II. p. 243. who tells Us ibid. p. 257. That Cran- rner Arch-Bifhop of Canterbury (and others) were Attainted by Parliament for Adhering to Q; Jane. Yet his BiJJwprick was not De- clar'd Void, nor he Deprived till it might be done Canonic ally.

And ther wanted not. Pretence for Q. Jane, becaufe Q. Mary was Declar'd Illegitimate by M of Parliament. But that Signify'd No- thing,

[ 33]

thing, nor did Exxufe any who Afted againft Her.

And as to Q. Jane not being Recognized by Parliament, it was only becaufe ther was not time for it.

Neither had Queen Mary at that time any Recognition by Parliament. And if this be Ne- cefTary to make a King or a Oueen, then nei- ther Mary nor Jane were Ojceen's at that time. And then it was very hard upon the Duke of Northumberland and others who were Ar- raign'd and Executed as Traytors to Mary before file was a Queen.

As Watfon, Clerk, &c. were for a Confpiracy againft Kiug Jam. I. before his firfl Parlia- ment in England. Watfon pleaded it cou'd not be Treafon, becaufe the King was not then. Crown d. He was Crovrned on St. James Day, July 25. 1603. And his fir ft Parliament did not Meet till the March following. So that Re- cognitions of Parliaments are not necelTary to make Kings- Our Law fays, f&e 7C7/70- ^eWr Dies. And Recognition is Acknowledging a .£/£/# that was before.

However the Lady Jane was Equal to the Lady Mary in this Point. But in all others ilic far Exceeded her, except only that of Right. For the Lady Jane, was Proclam'd Queen at London, and Own'd by all the Face of Authority then in the Kingdom, the Privy Council and Great Lordsi with the City of London. All the Judges but one Subcrib'd to' her Title, with the Lord Archbifoop {Cranmer) the Lord Chancellor, and 33 of the Privy Council. And Ridley Bllhop of London Preached itupat Sr.P.Ws

D G-o/i,

[34]

Crofs. See Dr. Burnet's Reformation. Part. 2. p. 223. and p. 238.

On the other hand, the Lady Mary made then but a very Slender Figure, Skulking as it were from Place to Place, even to the Sea fhore, not knowing where fhe was Safe. She was within half a Days Journey of London when her Brother Edward VI. Died but was Advis'd by her Friends to Retire, as fhe did, and left the Pojfcjfwn to Jane her Rival.

To fay /he did not keep Pojfejfion long, is nothing to the Purpofe, for one Day is as good as feven years to Determine Right. Or elfe, Mr. Higden, you mult tell us, how long Tojfejfion muft continue to make it Pojfejfion.

Blood's PofTeffion was a little with the fhor- teft, for he cou'd not Carry off his Prey^ But if he cou'd have kept it, he wrouM have had a- Right to the Crown he Stole , by your Do&rin, as Good and Lawful as any Here- ditary King ever was in England \

10. But, Sir, by Pojfejfion the Law means only a Just and Lawful Pojfejfion. And fup- pofes a de Jure Pojfejfion, even where an Vfur- fer has the Pojfejfion de Fatto. As you may fee in the Statute 1 Mar. Sell'. 2. c. iv. where Queen Alary her Aloft Lawful Pojfejfion is faid to have been for a time Disturbed and Dif- quieted, by the Trayterons Rebellion and Vfurpa- ticn of the Lady Jane, <8cc. Now this wTas be- fore Queen Alory had any Pofieflion de FaFie, for the Lady Jane never Difturb'd her after- wards. But this is Explain'd in the faid Statute, where it is faid, That Jmmedietly after the Deceafe of Edward VI. the Imperial Crown of this Rsdzn^ with all the Dignities &C there-

X 35 3

tmto belongings did not only Defend, Remain'^ and Come unto our mofi dread Soveraign Lady the Queens Majejly, but alfo the fume was then Immediately and Lafully Invefled, Deemed and Adjudged in her Highnefs moft Royal Perfon, by the due Courfe of Inheritance, and by the Laws and Statutes of this Realm.

And that Statute was made to Confirm fuch Proceedings during the Short Reign or Vfurpation of the Lady Jane as Concerned the Benefit of the Subjecl, and that they fhou'd be as Valid, as if done by Queen Mary her felf, and in her Name. This I think Sufficiently Evinces that Lady Jane was in Pojfejfion, and a Queen de Fatlo. Elfe why fhou'd any of her Ads as Queen be Annulled (as feveral were, all particularly after fuch a Day, the vi of July laft paft) and others Comfirmed ?

And fuch a de Jure Pojjejfion in the Deeming of the Law, the Parliament did own to have been in King Char. II. during the 12 Years of his Banijliment, while the de FaBo Pojjejfion was in the Vfurpers. But all the Right was ftill in the King, tho1 he had never been de Fatlo in Pojfejfion.

11. You begin your Book with Calling a Stumbling-Block in the way, and fay, p. 1. That ther were Thirteen Kings from the G?»- qneft to Henry the VII. who came to the Crown without Hereditary Titles.

This is to give Countenance to Vfurpation,

and make it Popular. But the Repeating of

IVickednefs makes it not lefs but much the more

Wicked* And your Principles Condemn Vfur-

D 2 ' pation.

patton. Therefore this makes nothing for yon. It was only to Call a Mifi before the Eyes of the Readers.

But then you fhou'd have told them, That tho' feveral did Vfurp the Crown, yet that they- cou'd not be Settled nor Enjoy it Peaceably, till the Death, Refignation, or Comprornije of thofe who had the Hereditary Right.

William the Cor.queror left England by his WiV/ to William II. his Second Son, but left his Eldeft Son Robert to Inherit Nomandyy which he had by Hereditary Right I iuppofe he thought that he might Difpofe of England as he pleas'd, being his own Acquiljtion by Conquefi. Sir John Davis fays -he was more a Conqueror of England than Hen. II. was of Ere- land, which as a Conquefi he gave to John his Youngeft Son. Who if he had not come to the Crown of England, he and his Pofteri- ty had Enjoy'd Ireland, Independent of En± gland, which Devolv'd to his Elder Brother by Hereditary Right.

But Robert the Eldeft Son of the Conqueror Contended with his- Brother William II. for England, and ai laft came to a Compromife with him, to have it after his Death, and a Cer- tain Sum to be yearly pay'd him in the mean time.

He made the like Comoro? ife with his o- ther Brother Hen. I. who Marry'd- the Heirej* of the Saxon Line, Edgar Athelmg having be- fore Submitted.

And Stephen the Vfurper made the like Com- promife with Maud the Emprefs Heirefs of J R and with her Son Hen. II. who accor ,; ]y

. 1

[37]

x!icl Succeed him. And received an Hereditary Kingdom without Diminution. And therefore ilecailcd the Crown Lands which were Granted away by K. Stephen, for that the Charts of an Invader ought not to Prejudice a Lawful Prince. -Brady's Hifi. England, p. 298.

Arthur Duke of Britany did Homage to his Vnele King John. ibid. p. 465, And foon after Died, fome lay was Murder'd by K. John.

Edw. III. when Young was Carry 'd about by the Queen his Mother and other Rebels, to give Countenance to their Conffrracy again ft his Father K. Edw. II. And when they would nave made him King, Juravit quod invito Patre Nnnquam Sitfciperet Coronam Regni. He Swore he wou'd never t3ke the Crown againft his Father s Will, whereupon they brought him a Refignation (they forced his Father :to give) wherein he Declar'd that he Willingly and Freely did Refign to his Son. Whereupon, and his Mother s perfuafions, he was fet upon the Throne, being then but Fourteen Years of Age. About half a Year after his Father was Mur- dered by the Rebels, and he Reign'd after- wards by Hereditary Right. And did Juflice on the Murderers, ConnVd the Queen his Mo- ther during her Life, and Hang'd the Great Mortimor her Accomplice, at Tyburn.

Hen. IV. Claimed the Crown by Proximity of Blood, as next Heir. And the Heirs of Tork Submitted to him.

*Hen. V. and VI. the fame.

And Rich. III. Pleaded the Illegitimacy of the •Children of his Brother Edw. IV. And fo to be Next Heir.

D 3 Thefe

[38]

Thefe are all upon whom any Vfurpation can be Charged from Will, the Conqueror to Hen. VIL for Hen. II. Rich. I. Hen. III. Edw. I. II. and III. and Rich. II. all Reign'd by Hereditary Right. And all the others make but Eight. Out of which if we Except Will. II. to whom the Conqueror left the Crown. Edw. III. for the Reafons above. And the three Henrys who Claim'd as Next Heirs, and were Submitted to by the other Heirs, this will leave but Four of the Thirteen Mr. Higden Reckons. And Rich. HI. Claiming as next Heir, own'd the Right to be in the Next Heir. So that this will leave but Three, that is, Henri. K. Stephen and K. 3^? upon whom |t can be Alledg'd that they came to the Crown, without Pretence of Hereditary Right. And none of thefe Three cou'd be Eftablifh'd but by Com- pront/fe with thofe who had the Hereditary Right. Was the Thirteen then that Mr. Higden fpeaks of a Miftake of the Printer for Three that it fhou'd have been ? And I will take even thefe Three from him in the next Page, and leave his Sum Total a Nought.

But, Mr, Higden, you are fo Fond of Mul- tiplying Vfuryers upon Us, that you Repeat this again in another Form, p. 62. and of Eleven Kings from the Conquefi to Edw. Ill* you make no lefs than Eight to have been de Fatto or Vfurpers. And fome of them (you fay) through their whole Reigns, by which you muft mean thofe who never Obtain'd any Right by the Death or Ceffwn of thofe who had the Right. ■ And of this Sort you cannot Name One. Willinm I. Conquer'd Harold an Vfurper. And Edgar Atheling the true Heir Submitted

and

[ 39 1

snd Swore Fidelity to him. And the other Zlfwpers made Compromifes with the Right Heirs, or Survived them, as I have fhewed. And thefe were bat Four at molt. But you make Edro. II!. an Vfurper, when he was a Childy and Impos'd upon by his Mother. What {hall I call this Straining in favour of Vfurpation !

But, Mr. Higdcn, this whole matter is For- reign to your Purpofe. For it iignifies no- thing what Encroachments were made upon the Hereditary Right, or what Falfe Titles were fet up, I fay this is nothing to your Point, if None fet up the Title of baxziPojfejfion -, Which was only ImpofTible, iecaufe none could make that a Plea till lie was in Pcffeff.on. And therefore they muit makeufe of other Pretences to Gain the Pofleffion. And they wou"d not Renounce thefe afterwards, for Popularity, and becaufe none will call Himfelf a Knave, and fay he fet up Sham Pretences. So that you cannot give one Inflame of any who Claimed by mere Pojfejfion. That never was ^tt up, and jever was Exploded by all Sorts. Even William the Conqueror Claimed by the Will of Edxo. the Coxjefjhr. Willi cm 11. by his Will. Hen. I. by Proximity of Blood (as he pretended) beiides the Election of the Barons, who Voted his Brother Robert to be Illegitimate. Brady's In- troduction, p. 370. K. Stepfen pretended that Hen. 1. upon his Death-Bed had Dilinherited his Daughter Maud the Emprefs, and left the Crown to him. Which was Sworn by the Steward of Hen. I. his Houmold before the Arch-Bifhop woifd Crown Stephen, ibid. p. 37 1 • And K. John in his Charter fays he D 4 came

C4o]

caffie to the Crown Jure Hcercditario, ibid, p. y1-]. He was then in Pofejfwn, it was in the firft Year of his Reign, yet he wou'd not Plead that Pojfejjlon as a Title. He had alfo the Donation of his Brother Rich. I, who up- on his Death-Bed left the Crown to him, and made all prefent Swear Fealty to him. ibid. p. 374. And when all other Pretences faiFd they Pleaded th: Choice of the People, that is, of their own Party, for none of them ever yet meant any thing elfe by the People. But none were fo wanting to Themfelves as to think Pojjejfion alone a Sufficient Title.

12. And you further fay, p. 2. / don't know there were a?iy NON-JVRORS to be found in all thofe Reigns.

This was a kind Memorandum for your Quon- dam Friends !

But you let all thofe Efcape here who Hand out upon:the Abjuration. Unlefs you can fhew that fuch O^ta were in fafhion iu thofe Days. I fancy you will hardly find any before the Year 1659. when Monk faid it was Swearing againft Providence. But he ftarted at a New thing, before it was Rightly Explained. The Kings then Contented themfelves with Swea- ring Men to be Faithful to them, without Abjuring after Turns, which it was in no Hu- man Power to Prevent.

But, Mr. H.gden, in all thefe Turns ther were many Oppofers, who loft their Lives and Eilates for it. And if you will Suppofe that all thefe Swore contrary to what they Acted, you will pafs a very hard Cenfure upon our

Ancejtorsy

Anceftors, for whofe Reputation you feem fo Tender. Otherwife you mutt fuppofe that thefe Non-Compliers were likewife Non-Jurors, at leafl fome of them.

And all the Advantage you can make of it, is, to fhevv Us, That ther have been thofe in Other Ages as well as This, who cou'd Difpenfe with their Oaths to ferve their ln- tereft,

You fay p. 5. " When we hear of a a Numerous Party that Efpoufed the Caufe " of the Houfe of Totk, we are apt to look " upon them to have been fo many Non-Ju- 4C rors to the Kings of the Houfe of Lancafter. u But this is a great Miftake, for all the Par- cc tizans of that Houfe lived in Submiffion, ** and took Oaths of Allegiance to the Three <c HenricJ.

Are you fore they All did it? We know Some did. But how Trudy did they do it? To take Oaths to the Houfe of Lane after, and at the fame time to Efpoufe the Caufe of the Houfe of Tork ' Do you Juftify this Practice ? Elfe to what Purpofe do you bring this Pre- cedent ? You had as good have let them been Simple Non-Jurors, as fuch fort of Jurors as thefe, who Swore to Lancafter, but Wrought for Tork, and Fought for it too when ther was Occafion.

You tell us in the fame Page, " That the " Conditions upon which Robert Earl of Glow u cefter Swore to K. Stephen, had no Manner " of regard to the Titles, either of Maud or Mr Stephen, as may be k^a in Willi tm of

'c Malmsbury

p4* J

«c Matmsbury who livxl at that time, and De- " dicated his Hiftory to that Great Earl.

It is not likely he wou'd be very Severe to the Earl in a Hiftory he Dedicated to him, and of Tranfactions wherein the Earl had fo Great a Share.

I have not that Hiftory*, nor can come at it where I am. But Dr. Brady in the Reign of K. Stephen Quotes Malmsbury, and the fame Page you Quote, p. 101. (among others) to fhew that the Earl did this to Dijfembte his Defign, which was to Promote the Interelt of his Sifter Maud and her Children. It was like the Part which Hujhai the Friend of Da- vid Aded with Abfalom. And the Condition he put to his Oath was, That fo long as he (Stephen) freely permitted him to enjoy bis Dig- nity and Eftate, he jhould be true to him. Brady, p. 273. Which had a double Meaning, for he knew that when he Appear'd for the Right of Maud, K. Stephen wou'd feize his Honours and Eftates, as he did. p. 275.

Now, Sir, You fhou'd have told this too, and not by faying that the Condition of the Oath the Earl took had no Refpect to the Titles of Maud or Stephen, lead your Reader to think that the Earl had no Refped to thefe Titles, but look'd only to the King in. Tcffejfion ; the Contrary of which is molt Evi- dent, for he Fought for Maud, and took K. Stephen Prifoner in the Field, and Adhered to her Caufe molt Firmly, p. 287.

Sir, Not telling the whole Truth is falfe Evi- dence. You fhould have told likewife, That the Pinch of the Queftion lay here, the Earl

(as

C43 3

(as all the other Great Men) had fworn to Maud, in the Prefence of her Father Kwg Hen- ry I. as the true Inheretrix of the Crown. And after Swore to K. Stephen, when he had got in- to Pojfejfion, and Maud had never been in Tof- fejfisn, fhe being then beyond Seas, and theQue- ilion was, which of thefe Oaths fliou'd take Place? And it was Determin'd by the Tope and the Religious Men of thofe Days for the firfi Oath made to Maud* tho' but then in Re- verfion, againft the Oath to the King in Poffef- /ten. p. 275. But, Sir, this Matter of Fail wou'd not have ferv'd your Hypothecs.

(III.) I come next to your Precedents. And the firft thing I {hall obferve is, That they are all brought out of thofe Times of Confu- fion, in the Difpute betwixt York and Lancaster, when ther was nothing but Rebellion andvfur- pation making the Laws ipeak what they thought fit. And this was far from being an Age of Precedents.

The Reigns of Hen. IV. V. and VI. lafted about 60 Years, fo that ther was even a Ne- ceffity not to Vacate the Judicial Proceedings and Suits at Law betwixt Party and Party. This Anfwers the Quotations you bring upon that Head.

And this cou'd not be done, without allow- ing the Ails of Parliament in thofe Times, up- on which the Judicial Proceedings did Depend.

And thofe Atts being Good in themfelves, fo far as related to the Subject, the Lawful Kings when they came in were willing they fliou'd be continu'd.

Yet

[44 'J

Yet fo, as that a fufficient Afarl fhou'd be put upon the Vfurped Authority by which they were Enabled. Which I will fhew you in the next SeEhion.

As a Preparative to which, it may be -con- iider'd, That things may obtain the Force of Alls of Parliament, and be reckon'd as fueh, ■which were not fo in their firft Formation.

Thus Magna Charta is plac'd the nrft in our Statute-Book. And yet it is nothing in it few but a bare Charter from the King. But after jicls ef Parliament being burtt upon it, and confirming it, it now obtains the Force and Name of an Alt of Parliament. And beyond any others, infomuch that it has been thought Vn-Repealable, as being the Foundation of all our Laws.

Again, I have ihewed you feveral 'Acts of Parliament fo made as would not be Allowed now . Yet they pafs for good Atls of Parlia- ment ftirl, and are fo Pleaded in our Courts.

Nay, Parliaments fo Call'd and fo Conftitu- ted as I have fhewn, would not be Allowed for Parliaments at all now. Yet by Cuftom this alfo has Obtained.

You tell p. 9. how before the i Edw. Vf. All Aft ions, Suits, C\C. were Difcontinued, upon the Demife of the King, in whofe Name and by whofe Authority the Laws were Admini- ftred. Then p. p. 10, n, 12. You Quote ma- ny Cafes out of the Te.rr Booh where fuch Actions and Suits were Difcontinued upon the Demife of an Vfurper as well as of a Lawful King. ' Thence you Infer that the Law takes

Vftirpersy

L 45 1

Vfurpers, when in Tojfeffion^ to be as Good a°. Lawful Kings.

But, Sir, the Laws were Adminiftred in the Names of Vfurpers while they kept in Potfef fwn. And rt was ImpofFible to be other wife-. And the Judicial Proceedings of thofe Times' mult have been Allowed by Rightful King? when' they came in, without an Utter Rum to the Sitbje&s: Ther was an Aft r Mar. Sefs. x. e. iv. to Confirm what of this fort bad pafs'd in the Name of Queen Jane during her Ten Days Reign. How much more during the Sixty Tears Reigns of the Three Henries ? So that this is no Proof at all of the Legali- ty of thefe Kings or Queens de Fafto, more than the Hiftories which tell Us ther were Such.

You your felf ihew this, p. i 5. where you give a long Quotation out of the Tear Books of Bagot\ Cafe, who was Naturalized by Hen. VI. And this was Allowed to be Good in the Reign of Edw. IV. by the fame Judges (likely) who had been under Hen. VI. But the Rea- fon given in the Tear Book is, Becaufe it wai Necejfary that the Realm fliould have a King tra- der whom the Laws fiould be kept and Main-. tain7d. But that this might not be Interpreted to Imply the Legality of that King de FaHoy it is Ordered in the fame Cafe, as Quoted by you, " That for a Trefpafs committed in " Hen. Vl's time, the Writ mall run Contra " Pacem Henrici VI. Nuper de Fatlo et non de " Jure.

Then the Cafe is put of Compafiing the Death of Hen. VI. And it is called T,safon%

bec&ujs

.[ 4*3

hecaufe the [aid King was not Mterly a Vfurper^ for the Crown was Entailed upon him by Parlia- tnent. Other wife it feems by this Refolution of the Judges (wherein their own Cafe might be concerned) it had been no Treafon to have Compafs'd his Death, if he had been Mterly an Vfurper.

But is not Shooting at the King a Compaf- iing his Death? And was any thought Guilty of Treafon or Murder for Killing King Rich. III. in Bofworth-field ? And he had a Parlia- mcnt to Entail the Crown upon him too. Which his Judges might likewife have Plea- ded in the Reign of Hen. VII. Bui: this was no Part of their Plea, they only Infifted up- on his being King de Fatlo, as we fhall fee prefently.

But, Mr. Higden, how could thefe Kings be Called V fur per s, and de Fafto and not de Jure, if de Fa&o is always de Jure? And how' can he be an Vfurper who has the Full and the Legal Right ?

You brought thefe Cafes to fhew, That by the Judicial Proceedings in the Time of Vfur- pers being Allow'd, it would follow that they were Lawful Kings. But as the Conference will not follow, fo thefe Cafes you bring have Turn'd upon you,and have expreflyGuarded that Feint againft you, and left you to Anfwer thefe fame Authomes you have Produc'd to Maintain your Caufe.

I know nothing you can Alledge againft this, but to Blame the Conduct of our later Kings and Parliaments, to Suffer fuch Parlia- ments as I have Named to pafs as fuch, and

their

[47 ]

their Ails to be Allow 'd as ,AEls of Parlia- ment. And likevvife that the Judicial pro- ceedings in fuch Times, and all Times of Vfurpation, and in the Name of the Vfurpers^ fhould ftill be Pleaded in , our Courts. If you think this Impolitic/:, for that it may give Oo cafion to Others, as it has to you, to Miftake Vfurpers for Lawful Kings, it may be Anfwer'd in their Defence, That this hap- pens fo feldom, and when it do's, is fo E3fily fet Right, that the Danger is not Great, nor would Countervail the Inconveniences on the other Side, For how can we miftake thofe for Lawful Kings whom our Laws At- taint as Vfurpers, however it Allows the Laws made in their times?

But fuppofe this to be a NegleEl or Overfight^ it can Amount to no more than a Negative or Prefumptive Argument. And that is too Weak a Foundation to Build any Principle up- on, efpecially fuch as overturns the Right of Crowns, and the Peace of Kingdoms.

(2.) But that which wou'd be Bed five in • in this Cafe is, if we cou'd find any One In- ftance of any Law made by an Vfurper which was Confirmed by the King de Jure, or De- clared Null from the Beginning for want of Sufficient Authority. This wou'd be an Affirma* tive, and worth a hundred Negatives or Negle&s.

And of this we have a very flagrant In- ftance in the firft Statute of Edw. IV. who was the firft of the Houfe of Tork recover'd the Crown atter the Three Henries. And now being about to fettle the Government in the

Might

C 4« ]

Right Line, the firft thing done was^ for the Quiet and Eafe of the Subject, to Declare, Which Acls done by the Three Henries fiioud Con- tinue good, and which not. And accordingly Confirms the Judicial Proceedings, the Creation of Noblemen, and feveral other things, Excep- ting fuch as the King thought fit. And the Reafon for fuch Confirmation is given, becaufe thefe Acls were done by Vfurpers, who were Kings de Fatlo, but not de Jure. And the Manner of Confirming was, That they fhou'd be of like force and Effect as if made by any King Lawfully Reigning, and obtaining the Crown by juft Title, as it is worded in the Statue, t Edw. IV. You come to Anfwer this Chap. III. p. 49. That ther was no Need of any of thefe Con- firmations. This, Sir, is making very Free with that Parliament, as if they had been Trifling all this while. But you fay that this was done, thro* the Caution probably and at the De- fire of thofe that were Concerned in them (thofe Alls of Parliament then Confirmed) which did, not however fland in Need of that Confirmation. This puts the Fool upon thofe Concern d, but takes it not from the Parliament, which fhou'd Gra- tify them in what was perfectly Needlefs. But your Argument is, That other Atls which were not Confirmed ftand ftill Good. That may be, for the Reafon aforefaid. But they were ftill Liable to be Queftion'd, for want of Sufficient Authority. And therefore thofe Concern d in thofe Atls made for the Benefit of the Town of Shrewsbury, and of fbme Re* ligious Houfes, were not fo Quite out of Pur- pofe as you Imagin, to Defire thofe Atls to

be

[4?1

be Confirmed. If they did Defire it, which Ap- pears not. But that it was an Inftance of the Legislative Authority being only in Law- ful Kings.

But why were any of thefe Ads Confirmed ? It fhews ther was fome Defect in the Autho- rity that made them. Can you give one fin- gle Inftance out of all our Records of any Aft of Parliament made by a Rightful King that ever was Confirm' V, for want of Suffici- ent Authority? This fhews you the Difference. And the whole Difpute mews ther was a Difference made betwixt de Jure and de Faclo.

Were any Judicial Proceedings in the Reigns* of Kings de Jure ever Confirm d, or Titles of Honour granted by them, or any other Regal Ad ? Here the Caufe' Pinches. And till ycu can fhew this, yo*u cannot fay as you do, p. 8. and p. 23. That Kings de Jure own the Authority of Kings de Fatlo in as Ample a. Manner as of Kings de Jure, and of Equal Authority with Tbemfehes, or any of their Pro- genitors of ^Undoubted Right. How can this be laid ? When we fee that Kings de Jure have Annulled fome, and Confirmed other Acls of Kings de Faclo, but never eitheir of thefe was done to any Acl of a King de Jure.

To have Annulfd all the Judicial Proceed- ings, and all the Acls of Parliament during the 60 Years of V fur-pat ion, wou'd have put the Nation into the Utmoit Confufidri.

And to have Confirmed them all without Difcrimination might have been too much.

E Therefore

[5o]

Therefore the Statute i Edxo. IV. Confirmed fuch as was thought fitting. And left the Reft, without being either Annultd or Con* frni'd, to be Commonly Pleaded; It being frill in the Power of the Government to Declare them Null and Void, whenever they faw any inconvenience by them.

And as no King de Jure, fo None de Faflo ever did either Annul or Confirm any At! of a King de Jure*, as fuppofing it to Want Suf- ficient Authority. So that the Difference ap- pears Plain, even by the Confelfion of Kings de Faflo>-

f3-) But, Sir, I think you Expect' too much,, when fpeaking of the Laws made in time of Vfiirfersy you fay, p. 19.

" They who would fet afide any of their u Grants, or Oppofe fome Right that was " claim'd by Vertue of them, as of Richard ct the Third's for example, did not pretend, " no not in Hevry the Seventh's Courts, where " they might fafely have done it, if it had " been Law, they did not pretend, I fay, u that Richard had not the Regal Authority, " and Gonfequently his Grants were Void.

Sir, wou'd you have had ffleri. VII. who Was an Vfurper upon the Line of Tork, have Declar'd the Ads of Richard III. to have been Void, becaufe he had Vfurfd upon thofe in the Line of Tmk who were Nearer than himfelf ? This I call Expeding too much from an Vfur- per, to Declare all Ads made by aii VJurper to be Void.

Alld-

C Si ]

And for the Judges, was it not very Na- tural for them who had been Judges under Richard III. to make the Bell of what they had done ? Nor wou'd it have been over fafe for them in the time of Hen VII. to have voided Laws on Account of Vfurpation. They might have Hanged themfelves by the lame Law. The Vicar of Bray who Complies with All, muft find Fault with Nm-

You bring a Cafe p. 38. where the Judges, the firft Year of Hen. VII. were Commanded by him to Confult about the Reverfal of the Act made in the Reign of Rich. III. which Ba/rardiiLed the Children of King Edw. IV. and Elizabeth his Wife.

This, Sir, I think makes again 11 you. For who ever Difputed the Validity of an ./#? of Parliament made in the Reign of a Lawful King ? But then the ^Difficulty lay upon Hen. V1L who was an Vfurper, to Declare the A :1s of another iV#/? for being an Vfurper.. And fuch he mult call Rich. III. Elfe why did he Fight againlt him ? And fuch he does call him in this fame Tear Book which you Quote, p. 39. giving him only the Style of Richard late Duke of Gloucefter, and afterwards in Fail, and not of Right , King of England. And it was better tor Hen. VII. That the Ails olVfur- pers fhouM be taken tor Good, and Co Re- peal'd9 rather than to be Dechr'd Null from the Beginning. Here was the Cafe wherei.i he Confulted the Judges. And th'efe muft be fuppos'd very Plyable^ not only as put in by him, but as having been in Place, molt probably Judges^ the Year before under Rich. III. For E 1 vr~

t m m f *

AYS

we Read not that Hen. VII. did Change all the Judges. And in molt Revolutions ther is no Occasion.

You put another Cafe, p. 40. in the fame firfi Year of Hen. VII. Concerning thofc who were Attainted in the former Reign of Rich. III. and were Retunfd Members of Parliament the firft Parliament of /&;;. VII. Whether they jhould fit in Parliament before their Attainders were Reverfed? And the Judges gave their Opinion that the Attainders mould be firft Reverfed, and the Attainted Perfons themfeives mould not be in Parliament at the Reverfd of the Aft, for as you tranflate the Tear Bool? p. 41. Thofe that are Attainted, cannot be Legal Judges. Tho' the Words are only, it neft Con- venient— It was not Convenient, that thofe who were Attainted fhould be taken for Legal Judges. But tho"1 it was not Convenient then, it might be another Time. I dare fay if you wou'd fet about it, you cou'd find an foftance. And will you ftand to it, That Men Attain- ted or Vncapable by Law to fit in Parliament, cannot be Legal Judges ? And will you make that fuch an Error in the firft Concoction as to Void all their Laws, and all the Confe- cjue?2ces of them for this? will a de Falls CON- STITVTJON Solve all this too? If fa* why do you perplex Us with Tear Booh and Cafes ? Let Us take whatever is Vppermofi,bQ it Right or Wrong ! If this is not your Meaning, I do not Underftand your Book. And if thofe Attainted Perfons, had fat in the Parliament of Hen. VII. before their Attainders had been Reverfed, and that Parliament had been never

the

^*-V»ViY»V»> * t ,

[ 53 1

the Worfe Parliament for all that, then to what Purpofe was this Cafe brought?

Quod fieri non debet FaHnm Valet, will not hold in all Cafes. But if it does in This, it will aJib in That of the Acts of Vfuryers be- ing Suifer'd to be Pleaded id the Reigns of Lawful Kings. And will be a Jhort Anfwer to the Alain if not the only Argument in your Book, which is all taken froni fuch Precedents as thefe. And that of Oliver and the Com- monwealth of England as Good as any of them.

But Rich. III. is here call'd King in FaB and not of Right in this Quotation you have brought, in the firft Year of the Reign of Hen. VII. This is the King from whom you bring your belt Precedents and trom the Atls of Parliament in hfc Reign. Now let him be judge ; Did he think that .Allowing the Atls of Parliaments in tlie Reign of Rich. III. made for the Benefit of the Subject, did Imply Richard to be a King of Right, when here he exprefly Denies him to be a King of Right $ Yet he Grants him to have been a King in Fact. Then he did not think that a King in Fail was alwas a King of Right. Nor that the Statute made in the Eleventh of his Reign, to Indemnify thofe who had fought for a King in Fail (Suppofe that to be the Mean- ingj did Infer that fuch a King was of Right, but rather the Contrary, elfe ther had been no need of an Ac~l to Indemnify them. But if a King in Fail be not Always a King of Right alfo, your whole Book falls to the Ground. And this Hen. VII. has given againlt you in E 3 Exprefs

ill *J**JtJF'

t Kit;* *.*JK.

>$6

J i 3

I I ^ ' '\ •-

::, . ■■'*•

r :

C 5O

we Read not that Hen. VII. did Change all the Judges. And in molt Revolutions ther is no Occafion.

You put another Cafe, p. 40. in the fame firfi Year of Hen. VII. Concerning thofe who were Attainted in the former Reign of Rich. HI. and were Return'd Aiembers of Parliament the firft Parliament of Hen. VII. Whether they jhould fit in Parliament before their Attainders were Reverfed? And the Judges gave their Opinion that the Attainders mould be firft Reverfed, and the Attainted Persons themfelves mould not be in Parliament at the Reverfd of the AVv, for as you tranilate the Tear Boot, p. 41. Thofe that are Attainted, cannot be Legal Judges. Tho' the Words are only, it nefl Con- venient— It was not Cotrvenient, that thofe who were Attainted mould be taken for Legal Judges. But the' it was not Convenient then, it might be another Time. I dare fay if you wou'd fet about it, you cou'd find an Tnftancs. And will you ftand to it, That Men Attain- ted or Vncapable by Law to fit in Parliament, cannot be Legal Judges ? And will you make that fuch an Error in the firft Concoclion as to Void all their Laws, and all the Confe- rences of them for this? will a de Fatls CON- STITVTION Solve all this too? If fo> why do you perplex Us with Tear Booh and Cafes ? Let Us take whatever is Vppermof^ht it Right or Wrong ! If this is not your Meaning,. I do not Underftand your Book. And if thofe Attainted Perfons, had fat in the Parliament of Hen. VII. before their Attainders had been Rmtrfed, and that Parliament had been never

the

C 53 ]

the WoiTe Parliament for all that, then to what Purpofe was this Cafe brought? .

Ouod fieri non debet F aft am Valet, will not hold in all Cafes. But if it does in This, it will alfo in That of the Acts of V farmers be- ing Suffer'd to be Pleaded in the Reigns of Lawful Kings. And will be a Ihort Anfwer to the Main if not the only Argument in your Book, which is all taken from fuch Precedents as thefe. And that of Oliver and the Com' monwealtb of England as Good as any of them.

But Rich. III. is here calPd King in Eatt and not of Right in this Quotation you have brought, in the firft Year of the Reign of Hen. VII. This is the King from whom you bring your beft Precedents and from the Atls of Parliament in hfc Reign. Now let him be judge ; Did he think that .Allowing the ABs of Parliaments in the Reign of Rich. III. made for the Benefit of the Subjefb, did Imply Richard to be a King of Right, when here he exprefly Denies him to be a King of Right ? Yet he Grants him to have been a King in Fat?. Then he did not think that a King in Fall was alvvas a Kir.g of Right. Nor that the Statute made in the Eleventh of his Reign, to Indemnify thofe who had fought for a King in Fail (Suppofe that to be the Mean- ingj did Infer that fuch a King was of Right, but rather the Contrary, elfe ther had been no need of an Atl to Indemnify them. But if a King in FaU be not Always a King of Right alfo, your whole Book falls to the Ground. And this Hen. VII. has given againft fou in E 3 Exprefs

C54]

Exprefs words. As alfo thofe Al~ls of Parli- ament which have Attainted Kings in Fatl for not being Hkewife of Right. Is it not Plain then they made a Difference ?

(4.) Sir, I think you lay too much Strefs upon the Opinions of Judges. And but of foine of them too, as in moll of the Tear Book Cafes, and as at this day, where often fome of the judges Differ from the others. And thefe Cafes are not Certain Rules. We find not their Authority Undifputed in our Courts. But I have giveu you a better Authority, that is, the Records and Ails of Parliament.

You fay, p 20. That the Vnanimms Opinion of the fudges is part of the Common Law cf the Realm. It may be fo, in particular Cafes of Afe'um cr Tuinn betwixt Party and Tarty. And yet not Always fo, for we have found their Judgements Reversed. As in the Cafe of Ship-Alcney, which all the Judges at firif. gave Under their Hands was Legal. And but Two cou'd be brought afterwards to Re- tract. Thcr is Difference betwixt Common Law and Citftom firil Infiit. Every Cuftom is not Common Law.

But will you take the Opinion of all the -.f, and in Parliament too ? Which you ^Q_aote, p. 53. When being Confulted about the Right of Richc.rd Duke of Tcrk to the Crown, in Opposition to Hen. VI* then King dc Fatlo. they Anfwer'd, That the Matter was too High, and tonend the Kings high Eftate and, Regaly, which is above the Law, and paffed their Learning. Unlefs ycu fay, they Complemented

Now.

Ess]

Now. But when they fpeak on your Side, they are in £arneftj But the Reafon they give is ftrong, That the King fs Above the Law. For what makes the Law muft needs be Above it. And that the .Right of the Crown did Surpafs their Learning. Their Com- mijjton is only to Difpence the Law in private Cafes betwixt Subject and Subject. But as to the Right of the Crown, they have no more Power to Judge of it than You or I.

(5.) Therefore I can by no Means be of the Opinion yon fet down, p. 88. That the Inter- pretation of the Obligation of the Oaths, taken to the Civil Magifira'.e, is the Province of States- Men and Lawyers, not ,of -Divines. This may \ be the way to have your Conference Solv'd more .Eafily ! For thefe Cafuifis you have Chofen, were never thought to be very Strait- Lac d. A StAies-Mans Confcience- is a Proverb. I obferve our Homiles and Bifhop Overalls Ccn* vocation Book took another Method, and iu- ftead of Quoting Magna Charta and the Tear Books, they endeavour to fettle Confcience, as to Government, upon the Foundation of the Holy Scriptures. Whence they fhew the Ori- ginal of.Gozx-ment, and how Tnjcitutsd of God •from Adam. They begin with Lucifer the -firfb Rebel, and thence Deduce Rebellion among Men. They Exemplify the Duty of Subjects hi the Behavionr of David towards Saul, and other Scripture Examples, .But States-A-fen will tell you, that all this -M ;Kothing to Us, and bid you look to the Conftitution for the Me a of your Obedience ; and Deduce that from the

E 4. Power

[ 5<?3

Power of the People, which they tell you is the Voice of God; and that every thing is 'Right wThich the People does ! But the Scripture bids you not follow a Multitude to do Evil. And tells you of Iniquity EftablifiYd by Law, If it had been faid, he who Refills fhall be Jiang' d, I wou'd Advife with a Lawyer : But when it is faid, fhall Receive to himfelf Damnation, I think a Divine ought to under- ftand it.

It is faid 1 6 Rich. J.I. c. v. That the Crown of England is in no Earthly Subjection, but Im- mediately Subjetl to God, and to none Other. Now whether is this Tenure from God the bufinefs of Lawyers or Divines ? It is faid likewife, That any A:l of Parliament againfl the Law of God. is Void. I hope Divines have fomething to. do here. If not to Alter Laws, yet to fettle Confcicnce. And rhis High Prerogative of Kings, which was once above the Law, and Unal- terable by the Law, can be Lcarn'd only from the Law of God, from which only they hold the Crown. But they wTho wou'd Ex- clude God out of the Government, begin with turning Divines out of the Caufe. They might be too Stritl in the Matter of Oaths. It is a Law Oath, fay you, therefore let the Lawyers determine it. But, Sir, it is the Oath of God too, and He will Require it. And where God is Concern'd, Divines, and not Lawyers, have ufually been taken for Confeffors. Nor is the Nature of Government to be taken froai every de Facto Covftitvtion that may happen, Right or Wrong ; but from the Original Infti- mtion of it by God, and how it was Deliver'd

bv

[57]

by Him to Men. For from thence only arifes any Obligation of Conference to Government. And this is more the Work of Divines than of Lawyers. ■ And fome States- Men are not willing to be Confin'd to thefe Rules. They Confider Fatt more thin Right, and what is Convenient (may be to Themfelves) more than what is ftrifrly Juft and Confcie-ntious. They ftudy Macbiavel more than the Bible. And he tells them that a Politician muft not be over Religious. And if we think of Govern- ment only as a Politick, for our own Con- venience, Confcience will not trouble Us much ! This, you know, is the Opinion of our Com- monwealth-Men, That Government was the In- vention of Men, and therefore Lyable to alt the Turns People pleafe to Make. And wou'd you feek to Convert thefe out of the Tear Books, or tell them of our Conftitution ? Wou'd you not rather Carry them to the Bible, and there fhew them the true Original oi Government, and the Obligation God has laid upon our Confcience to fubmit to it, as to His own Or- dinance ? In fhort, wou'd you talk to them as a Divine, or a Lawyer, or a Politician t In which of thefe Capacities, do you think, you cou'd belt Inforce the Obligation of their Oaths to the Government ? Whether to keep a Law- ful Oath, or to Break an Vnlawfnl One ? And whether this is to be Mealurd by the Law of God, or by any Law the People make? And whether a Lawful Oath may be Difcharg'd, by taking another that is Contradictory to it ~< I fhou'd- think a Pious and Learned Divine more Proper to be Advis'd with in fuch

Cafes,

[53]

Cafes, than the Ableft Lawyer or States-Man. But above all, an Honesi and Sincere Heart, for ther wants not much Vnderfanding in thefe Matters, Unlefs it be to Perplex and Puz.de the Caufe. And he that S^cks will Find, in a iW Senfe, as well as in a Good. Balaam had a Mind to the Reward, but wanted an Ex- cufe, and he Found it. He was Importunate for Leave to go, after Coi had Refus'd him, and God yielded to his Importunity and gave him Leave at kit ', but this Excus'd him not, and is call'd the Madnefs of the Prophet. The befl: way in fuel: Cafes is this, to Ask ones own Heart, Wou'd you take this Oath, if you were neither to Gain -or Loo fe by it? Otherwife you do not take it Voluntarily and Freely. And all your Diftin&ions, and High and Low Senfe, &:c. Where the Law allows of no fuch DiftmVtUm, fnews you take it in a Senfe contrary to the Law, and your own Confid- ence too. For he who Cannot take an C.ith in the Plain and Common Meaning- of the Words, and according to the Senfe ot the Le- gislators, Declar'd not only in Words as Ex- prefs as they can Devife, but likewife in all their Attions and whole Government, I fay, he who Cannot take the Oath thus, without any Mental Refcrvation or Equivocation whatfoever, ought to let it alone. And all his Reafons and Biftinclians and Salvos, fhew only, That he has Deceived himfelf, and wou'd Deceive others. Do's he do in this Cafe as he wou'd be done to ? Wou'd he be Content that any Oath taken to Himfelf fhou'd be thus Diftin- gtiifiid away? Wou'd he Truft that Man's

Gath

C 59 ]

Oath whom he faw make Faces at it, and had

itood out many Years againft it ? But a Poli- tician cou'd help with feveral Maxims in this Cafe, as, Fallere fa/lentem? to do Evil that Good ma) come^ to Look one way and Roy another^

Thefe are the Reafons, Sir, why I except againft thofe Cafuijis you Propofe. And think the Nature of Government as from 6W, to be out of the Compafs of the Study of the Com- mon Law? and more the Province of Divines* than oi Lawyers or States-Afen, efpecially where ther are Oaths in the Cafe.

((5.) And now I return to the bufinefs of Precedents. And Conftfs my felf not able to Underftand the lail Paragraph with which you Conclude your Second Chapter, p. 48, 49 .1 will fet it down tnat Miltake not. It is the Ccnclr.fion \ on have made from all the Prece- dents you have bi ought for fubmitting to a King de Fa?;oy and is in thefe Words,

" But now on the other fide, did the King u in PoiTefllon, or his Parliaments, or the " Parties concern'd, ever think an Act of u Parliament was Wanting tor thofe who " Fought for Him, againlt a Perfon out of cc Polleflion, whatfoever Title he had, or Pre- " tended to have. Can there be One In- " ftance given of this, in all our Laws or " Hiftory ?

Sir, I wou'd not put fuch a Trilling Mean- ing upon your Words, as to fay you Inten- ded this only, While the King in Pojfefjion re- rnain'd in Poffeffwn. For then, no doubt, he

was

[6o ]

■ms able to Protefl thofe who Fought for him. But after he was Difpojfefs^d, and his Rival upon the Throne, was ther then no Need of an Aft of Parliament to fecure thofe who had Fought for him ? Unlefs you mean that an Aft of Parliament made by the Difpof- (effed King wou'd have Signify'd Nothing. And then that will Turn upon you another way, and fhew the no Validity of an Aft of Parli- ament made by do Fatlo againft de Jure. And this Certainly was the Cafe, for in every Turn betwixt York and Lancafter, the Viftor always Attainted and put to Death whom he thought fit of thofe who had Fought againft him, for the King in Poffejfwn. And this GccafienM, as the Hiftory tells Us, the Utter Extirpation of many Noble Families in England. And thofe who Fell on either fide make Equally to my Purpofe, becaufe both Rivals did Pretend to be de Jure ; and this fhews the Notion of thofe Times to be for de Jure againft de Fatlo. Whereas if the Notion of de Faclo being always de Jure, and the Allegiance of the Subjeft due only to ds Fafto, and to look no further, if this had been fo the Common Vfage as to make it the Common Law, as you fay it was, and if no One Infiance can be given againft it in all oar Laws and Hifiory, then that long Civil War betwixt Tork and Lancafler, which lafted a- bove an Hundred Years, mult all pafs for Ro- mance ! Otherwife to bid me give One Fnftance of Attainders for Fighting for a King in Pof- feffion, is to bid me fhew you a Drop of Water in the Sea!

0 3

I have taken Notice, Sir, before, that you like not thcfe Acts of Attainders^ that you call them Stretches beyotid Law, in the Heat of the Finer' 's Rage, &c But they were Acts of Parliament ftill, make them as much beyond Law as you pleafe ! And then you will tell Us, Which Acts of Parliament were made out of Heat, and are Law, and which are beyond Law. And then give others Leave to Except too, and it will Reduce our Statute Book to a more Reafonable Compafs !

(7.) You Urge often, That the Defcent of the Crown purges all Attainders. But whe- ther this is Meant of a de Fatlo, or a de Jure Defcent, is the Queftion ? If you Mean that while de Fatlo is in Pojfejficn (and it is no longer de Facto) it is pretty Safe from At- tainders, you are Sale. But if it Purgd throughly, then cou'd not the Attainder be put upon it again, as a Crim-e once Legally Pardoned, is Purgd for Ever. But we find not that the de Facto Defcent of the Crown did thus Purge Hen. IV. For he was afterwards Attainted as an Vfurper and a Traitor. As like wife Hen. VI. See Cotton's Record, p. 6~o 671.

(8.) And if all Acts of de Fazio are as Valid* as or' de Jure, how came the Repeal 1 Edw- III. to be Judg'd Void in Parliament, becaufe made while his Father Edw. II. was ftill Li- ving, tho' Difpofejfed, and then in Prifon f Cott*

Pecord. p. 373.

The

The Leared Dr. Stillingjleet Quotes this Cafe in his Grand Oueflion, concerning the Bi- fhofs Right to Vote in Parliament in Cafes Ca- pital. Printed, i tfSo. And gives Us the very words of the Rolls of Parliament, p. 81. Becaufe Bdw. II. was Livings and true King, and Im- prifen'd by his Subjects at the time of that 'very Parliament of i Edw. ///. Rot. 64. 21, Rich. II. And fpeaking of the Repeal of 21 Rich.

II. by 1 Hen. IV. he asks this Quefcion p. 83. Whether a Parliament calPd by a Lawful King, and the Atks of it, ought to be deemd Legal- ly Repealed by a Parliament that was calPd by an 'Ufurper, and held whilfi the Lawful King was alive, and detain d in Prifon ? For he had Quoted the Lawyer's Words before, p. 82. Owning that Rich. II. was their Lawfil King. And he fays, p. 85. That the Repeal 1 Edw.

III. was no Legal Repeal, becaufe Edw. II. was dive and Lawful King, (or elfe Edw. III. coud 'never have been fo) in the time of that firft Par- liament of Edw. Ill and Confequently Edw. III. at that time was an Ufurper, and the Proceed- ings of that Parliament Null and Void.

I have Quoted this Book of Dr. Sti!!ingfleet\ becaufe I cannot doubt but you have Read it, it fo. nearly Relating to the Church. And he fhews himfelf Excellently and Critically Skill'd in our Laws and Conftitution, even be- yond nioft Lawyers, and by their own Com- mon Suffrage. And in the Efteem of the Houfe of Lords, while he fat there after he was made a Biflwp.

In anfwer to this Precedent you fay, p. 58. That the Ad 1 Edw. III. was not declared Void,

21

21 of RICH. //• but Repeal 'd, and therefore valid untill Repeal' d. To which I will give the An= fwer of Dr. Sfillingfleep, p. 80. That the AR 1 Edw. 111. was net barely Repeal' d, but Declard in Parliament to be Unlawful, becaufe Edw. IT. was Livings and true King, occ, as before Quoted from the Rolls of Parliament, which are more Authentic)*, than our Printed Statutes.

But you fay, Secondly, That the Repeal 21 Rich. It was Repeal' 'd I Hen. IV.

The fame was Objected by Dr. Stillingfleet's Oppofer, to which he Anfwers, p. 83. That the Repeal of Hen. IV. was Void, becaufe it was made while Rich. II. was Living, tho' Depofed, and then in Prlfcn. So that the Cafe was juft the lame as that of the Repeal 1 Edw, HI And the Dctlor inferces this upon the Lawyer whom he Anfwers, p. 85. by that Lawyer's owning, That Rich. II- was then Law* fid King, tho' Difpojfijfed, .and Hen. IV. art IJfurper.

And becaufe you lay your Strefs upon the Word Repeal, I will lhew you that word may be Us'd without any Intimation of the Le- gality of the Ad Repealed. See 12 Car. \\. c. 12. §. 6. where the Attainders of the Royalifs by the Vfurpers are Repealed and Difcharged.

And whether the Authority of the Vfurpers while in Pcfcjfwn was hereby own'd, you may fee, §, 12. of the fame Statute, where it is faid,

And altho' in this Confirmation of Judicial proceedings, it was Neceffary to Mention divers pretended ABs and Ordinances, by the Names and Styles which thefs Perfons then Vfurped who mads

the

[ *4 J

the fame — — let this pre Cent Parliament doth Declare, and it is further Enabled by Authority ef the fame. That the Names and Styles afore- faid, and Every of them, are mofi Rebellious, Wicked, Traiterous, and Abominable Vfurpati- ens, detefied by this prefent Parliament, at Op- pofite to his Sacred Majefty's mofi Jufi and un- doubted Right, &C.

Here this is not only Declared but Enabled. Yet ineither this Enacting, nor Repealing did Suppofe the Validity of thefe Alls before they were Repealed, and the Contrary Enacted, nor the Legiflative Authority of thofe who made them, even while they were in Poffeffon.

But you have a Third Anfwer, p. 59. *c That all the other Acts of Parliament that " were made in the 1 of Edw. III. whilft " his Father was alive, were ever held for Laws <c of the Realm, and one of them cited as ce fuch 16 Charles the I. c. 16. about the " Boundaries of Forefts. Whereas by Aft of cC Parliament made in thefirfi Tear of the Rei<?n of " King Edward the Iff. &c.

Ther are two Sets of Acts in our Statute Book made 1 Edw. III. And this about the Perambulation of the Forefts is the Firfi of the Second Oafs. And whether made during the Life of Edw. II. I cannot tell. For he was Murder'd about half a Year after his Son Edw. III. was upon the Throne. But I infill not on this.

Therefore I fay, This about the Perambula- tion of Forefts being a Common thing, and no ways Concerning the Right of Succejfion to the Crown, might be Suffered to Pafs, as I have be- fore

[*5 1

fore fhew'd other Acls have been, which yet were not Right in their Conftitution at firft.

It wou'd be almoft to make a New Statute Book, to Ranfake all the Laws about Common things made in times of Vfurpation in En* gland, and to Determine which fhou'd itand, and which not.

It is Sufficient that fome of Confequence have been not barely Repealed, but Declar'd Vnlawful for want of Lawful Authority in the Enatlors; and others of lingular concern Con- firmed, for the fame Reafon. And one Liltance (but you have more) on this fide, is Suffici- ent, where ther is never a one to be pro- due'd on the Other fide ; that is, of any A% of a Lawful King that was either Repeal* d or Confirmed for want of Sufficient Authority in. the Enabling.

(9.) But, Sir, you have help'd me to ano- ther Inftance, and a Remarkable one, tho' you tell it not out, for it made againft you. You fay, p. 57. "This Declaration of the 39 of <* Henry the VI. as well as the A{ts of the 1 " Edward the IV. were Repeal'd and An- u null'd by the Ad of Parliament, when Henry ** the VI. Recover'd his Throne.

Now, Sir, where are thefe ABs of Hen. VI. to be found ? Ther are None in our Statute Bosk after his 39th Year. It feems then, That after he had Expeird Law. IV. from the Throne, he was look 'd upon as a Meer de Fafio King, and Confcquently all the Alls of Parli- ament made in that time, were thought Null

F and

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<c it, yet th.ey never afllim'd the tfega/ Title u againft the Regnant King.

But notwithstanding this Remark, £^tp. III. took the Tide of King of France, and his SucceJJors have kept it on to this Day againit: all the Regnant Kings that have been iince in that Kingdom.

Maud Daughter of hen. I. took not the Title of Oueen, becaufe (he had that of Em- frefs which" was Higher. And fhe kept the Title of Emprefs as well after fhe was Rccog* niHd by the Englijh, as before.

Hen. II. her Son, cou'd not take the Title of King, becaufe in his Mother 's time he had made a Compromife with K. Stephen to let him Enjoy the CVfuw during his Life, and was thenceforward call'd Heirt® K. Stephen.

Then for the Heirs of 7Vr£, they had fub- mitted to Hen. IV. V. and VI. And fo cou'd not take the Title of Kings.

And their Children who let up their Claim, after 60 Years Pojfejfion of the Lane aft rian Line, took not prefently that Title which their Fa- thers had not, in whofe Right they Claimed, but were Content to Win it rirft by the Sword, before they Wore it. Which leem'd the moll- Prudent Courfe, becaufe the I flue of War is Uncertain.

And here we may Obferve two things by the way, Firft, That whoever has Right to a Crown cannot Hurt his Heirs by any Sub- mijjions he can make.

Secondly, That Vfurpation even for three Score Years together, do's not Extinguifh the Right to the Crown.

F 2 But

I t 1 1 t t I

V » ML* A*i

vwvavv

.v.vfe

I 66 ]

and Void) and have no Place in our Statute Book.

If you fay, Was he not an Vfurper before ? I anfwer, yes, but it was not fo Apparent. For Richard Duke of York, the Father of Edw. IV. had fworn Allegiance to Hen. VI. and become his Liege Sv.bjctl. And this was Ob- jected to him in Parliament when he put ia his Claim for the Crown. And Edw. IV. be- fore he was King had Sworn Allegiance- too. But after that Hen. VI. had broken the €bm- fromife he made with him, and Edw. IV. had gotten the Crown which of Right belong'd to him, then when Hen. VI. put him out again, this was thought raeer Vfurpation, and fo rwne of his Ails of Parliament afterwards were put among our Statutes.

(10.) Nov/ let me fpeak' a word m Miti- gation at leaft of the Behaviour of cur A?i- cejiors, for whom you fhew fo great a Con- cern. For they might think the Right of York to be Extinguifh'd, becaule the Heirs of that Hoitfe had all along under the Three Henrys^ carry'd themfelves as Si<bjetfsy taken Commif- ftons from them, and Promised, fome Swore Obe- dience to them.

And this may be an Anfwer to the Obfer- vation you make, and Repeat it again, p. 51. where you fay, " Give me leave to Repeat " an Obfervation I have made already, that " before this time (that is, of Edw. IV.) tho* <c others Pretended a better Right to the: M Throne, than the Perfon that Poflefs'd

K

[*7l

<c it, yet th,ey never aflum'd the Regal Titk fc againfl the Regnant King.

But notwithstanding this Remark, Edw. III. took the Title of King of France, and his SucceJJors have kept it on to this Day againfl: all the Regnant Kings that have been fince in that Kingdom.

Maud Daughter of Hen. I. took not the Title of Oueen, becaufe fhe had that of Em- prefs whicK was Higher. And fhe kept the Title of Emprefs as well after ihe was Recog- nized by the Englijh, as before.

Hen. IJ. her Son, cou'd not take the Title of King, becaufe in his Mother 's time he had made a Compromise with K. Stephen to let him Enjoy the Crswn during his Life, and was thenceforward call'd Heirte K. Stephen.

Then for the Heirs of Tork, they had fub- mitted to Hen. IV*. V. and VI. And io cou'd not take the Title of Kings.

And their Children who fct up their Claim, after 60 Years Pojfejfton of the Lancaftrian Line, took not prefently that Title which their Fa- thers had not, in whofe Right they Claimed, but were Content to Win it jrtrft by the Sword, before they Wore it. Which feem'd the moll- Prudent Courfe, becaufe the Iflue of War is Uncertain.

And here we may Obferve two things by the way, Firft, That whoever has Right to a Crown cannot Hurt his Heirs by any Sub- mijfions he can make.

Secondly, That Vfurpatian even for three Score Years together, do's not Extinguiih the Right 50 the Crowy.

3F 2 But

[<J8]

BvXEdw. IV. who was the flrfb of the Hou/e of Tork that Recovered the Crown, after this long V furcation, took the Title of King, when the Earl of Warwick Join'd him, even while he was out of Pojfejfion, and in Order to Re- cover his Bight.

Queen Mary whofe Father was King, took the Royal Style before (he got into FoJ[ejJlony 3nd while another de Fafto Queen was upon the Throne.

}n like Manner King Char. IL Aflum'd the Royal Style from the Day of his Father's Death.

But ther is another thing might hinder the Claimants of Tork to take the Name of Kings before they got into Poffefwn, which was the Cultom of thofe times, wherein it was not Ufual for Kings to take that Style, till they had Receiv'd the Benedittion of the Bifljop at their Coronation. As it is faid, Benedixit eum in Begem. The Bifhop BleJJed him to be a King.

For Kings holding the Crown from Geo, thought themfelves Oblig'd to Receive it from the Hand of the Minificr of God.

But in thofe PopiJIi times the King's Right was not thought Compleat, till the Church had own'd him. This was one of Becket's falfe Principles. See Co/liar's Church Hifi. p. 359. and 374. and Hubert Arch-Bifhop of Center* bury his Speech to K, John at his Coronation, in Matth. Paris. And Lambard in his Saxon Laws, pi. 142. Mentions a Letter of Pope >/v?, shat the King fhould 5irfw to Defend Holy

Church,

Church, &c. before be be Omid by the Arch" Bifhops, Bifhops, &c.

This was Popifi Error, for tho' the Kin? receives his Crown from the Hand of GOD s Minifter, to fhew that he holds it from GOD alone, yet his Right is not from the Mini- Jier but from GOD. And the Title of King and all the Regal Power belongs to him from the time that his Right Commences, that is, from the Death of his Predccejfor, not from his A&ual Pojfejfwn.

But to come to a Modern Inftance now before Us, did not our prefent Charles take the Title of King of Spain before he was mPojfeJfion of a foot of it, and while Philip was in Quiet Pojfcjfton of the Whole f

in fhort, Mr. Higden, this Critkifm of yours Signifies nothing, for in all Times, as well before as fince the Conteft of fork and Lan- c after y whether the Competitor took the Name of King or not, it is Plain he thought he had a Right to make War upon the Pojftffor who Detain'd it from him. And fo mult all they think who took his Part and Fought for him. Which will be Abundantly Sufficient to Con- fute your Hypothefis, that Pcfefien do's Extin- guifh Right, and that this was the Vnherfal and Received Opinion,

And the General Compliance with the Three Henrys will not make out your Point. Of which I have a Word more to fay. For be- fides the Grounds they had to think that the Right of Tork was Utterly Extinguifh'd, by their Submiffim for fo long a time, of w 1 fpoke before.

F 3 An

[70 1

Another Confideration in favour of our 'Ancefiors in thofe Times, may be the Great Power of the Popes in thofe Days, who took upon them to Difpofe of all Crowns, parti- cularly that of England, which they once had put in Subjection to them by King John* And thefe own'd the Three Henrys, which muft go a great way with the Generalty of their Popift Subjects, and they were all fo then.

And this might Carry too with that Pious Man Hen. VI. who faid his Prayers, and per- haps thought not himfelf an Vfurper, becaufe thofe about him Told him fo, and gave him Leave to Repent no further than they thought fit. They carry'd him up and down, and made him Quit the Cwxvn, and take it again, juft as fuited their befigns. For he only Reigned, they Governed.

Again, both Edw. II. and Rich. II. had fign'd formal Renunciations of the Crown. And tho' this was not without Force upon them, yet every body might not Underftand that, to whom their Renunciations we&e Proclaim'd. At ieaft you will fay, That the Cafe had not been Exactly the fame, if None of thefe things before Mention'd cou'd have been Alleged, no Resignations, no Submijfions, or fo much as any Imply d giving up of their Rights.

But it they thought that Notwithftanding of all thefe Pleas, yet that the Right cou'd not be Defeated, then that Age will be a Precedent of the moll Inflexible 'Loyalty, which the Vfurpations for 60 Years Continuance to- gether, nor Succefs, nor Prefcription, nor AUs of Parliament ; no, nor the Submijfions or Re- flations

fig-nations of thofe who had the Right cou'd A bate J They faw thefe were not Free and Voluntary, therefore wou'd lay no Strefs up- on them. They thought Themfelves, as weil as the Prince -Concern'd in the Rights of the Crown and its due Succeffion. And therefore Contended for it, as for .their own Rights and Liberties.

Therefore this Difpute cou'd never End, till the Right was at laft Reftor'd, tho' they Waded through an Hundred Years of Blood for it.

And is this the Age, Sir, that you have Chofen to fbew that de Fatto was always thought de Jure, and that they never look'd further than to the King in Popjfion ? Where- as all thele Wars, and every Battle that was fought, was againft the King in Pojfejfwn, and againft him only.

But, Sir, let me give you a Prefent Infvance frefh before our Eyes. King Augufius did e- ven Literally Abdicate the Crown of Poland, he Renounced the Title, Quit the Kingdom, and lc/t them to themfelves. And England and Holland are Guarantees of the Treaty of Alt Ranfted by which he did Abdicate, and at his own Delire. And Stanislaus was Chofen into the Vacant Throne, by what they call'd the Voice of the People, and was owned by Neighbouring Princes, particularly by En- gland. Yet all this Notwithifomding, a Great Party there, even the Crown General, becaufe they faw ther was a plain Force upon :King Augufius, did not think themfelves Abfolv d from the Allegiance they had Sworn to him, even in an Elective Kingdom, but ftuck to him, and having Removed the Force, now Re- F 4 ceive

[

72 J

ceive him again as their Lawful King] and Reckon Stani/lans an Vfurper. For tho' ther was a Pretended Eletlion of the People? yet it was under the Influence of a Forreign Prince, with an Army of Foreigners. And King Au- gustus tells Us now in his Manifeflo, That he couid not Abdicate without the confent of the States.

(n) You fay, p. 87. That whofoever fiands Excluded by the Legijlative Authority, whatfoever they may have had, have novo no longer any Right or Title to the Crown.

I will not fay of what it is Now. But I will go to that'^e whence you bring your Precedents, and I will fhew you, in the Com- pafs of Half a Year, one Parliament Pro- claiming Edw. IV. an Vfurper, and Hen. VI. the Lawful King : And another Parliament Pro- claiming the fame Edward the Lawful King, and Henry the Vfurper. And fo it wou'd hare been ten times a Day, if the Fate of War cou'd have Turn'd fo often. For None of thefe Competitors .ever Gain'd the Field, but they got a Parliament to Confirm their Title. Now,^ according to you, both thefe Parliaments were alike Lawful-, for both were under Kings de Fa- 0. And you might have Sworn to Henry and Abjur'd Edward, and Sworn to Edward, and Abjurd Henry, both as it were in the fame Breath! Both R'-ght, and Both Wrong! King and No King, before one can Ad tne Play out ! This is very like the Cafe of Fron- tier Towns (which you too Urge as a Salvo for Oaths) but why then will you fet up any

Right

[73 3

Right but that of the Sword} Suppofe a Man mou'd get a Oon?» by the Sword, and Never heed a Parliament. Wou'd it be a good Title, or not ? It" not, then their wants Something be- fides Pojfeffv.n to give Right. But if it is 2 good 77r/* (for it is de Fatto) then what Sig- nifies a Parliament ? But Parliaments are fo Eafy to Conquerors, that every one will have them, to Cajole, and Pump the People, and make them Fancy themfelves Free! Let the Parliament do the //*r^ things, and all the Gracious things come from the Sovereign. A Wife King will never be without a Parlia- ment.

(12) But how came you to lay fo much Strefs upon Parliaments, when you put the whole Legijlative in the King? You Mention, the King and his two Houfes of Parliament fometimes, but you Prove it as to the King. You fay, p. 23. The Legijlative Power is in all Forms of Government Ejjential to the Sirpertne Po- wer (in a Afonarchy to the Regal Power) and. In- feperable from it. Purfuant to which you Un- dertake to Prove in the fame Page, That Kings, as well by Statute Law, as Common Law, have the Legijlative Power of this Realm. And p. 22. You begin this Chapter faying, Having (hewn that the Legijlation of Kings is owrfd to be good

at Common Law And p. 52. you fay, That

the Soveraign Authority of the Englifli Government, as well Legijlative as Executive, hath b&en ever Acknowledge dy both by onr Laws and Lawyers, to be Lodged in the R ing ; and that the Allegiance of the Subject has been due to Him, and to Him jilone. And p. 65. 7W the Kings have ever

been

C 74 ]

been ownd for Legiflators in our Conjtitutim. Hence in your Title Page you call it the So- 'veraign Authority of the Prince. And the Con- tents of your Chap. I. are, The Supreme Autho- rity of the Englijl) Government refls in the' King. In the Cmtents of Chap. ii. you flip in the two Houfes of Parliament. But then again you give the Contents of Chap. iii. The moft Ma- terial Objections to the Legislative Authority of thefe Kings anfwer'd.

Kow if the Supreme Authority be in the King, then ran it not be Limited by Parlia- ment. Becaufe (as you fay) it is a Contradicti- on to fuppofe a Superior to the Supreme, for then were it not Supreme. And all Limitations mult come from a Superior. And therefore, as you add, the Supreme Power muft be both Legijlative and Executive. And both thefe are Ejjfential to the Supreme Power, and Pnfepa* rable from it, and as you Exprefs it, from th£ Regal Power in a Monarchy* And therefore, you Obferve, that Allegiance is due to the King, and to him Alone. Ther can be no Sharing of this Supremacy.

And from this Doctrine which you have here laid down, it was perfectly Needlefs for you to bring in the Parliament at all into this Caufe. Only for Popularity I Wou'd you make them Judges over the Supreme ? But whoever has the Power will keep it while they can. In fhort, no King or Constitution whatfocver will Suffer any to Judge of them but them- felves. And in a Corupetition for the Crown, ther is Nothing elfe to be done, but every Man to fatisfy his own Confidence the belt he can

as

£75]

as to the Right of the Competitors. But as to any Judicial Determination, ther can be None up- on Earth. For that Judge wou'd be Above all the Competitors. And who is Judge among the Gods, but the Great God alone? Parlia- ments never yet Determin'd tire Right of any King-) till it was Determin'd to their hand by Succefs. And then they follow'd it as Katurally as the Mobh with their Shouts. The Law do's not Make the King, but Recognizees him. For how can any thing Make its Ma\ far ? And Kings were before Municipal Laws or Parliaments, for all thefe were made by Kings. Therefore we muft look for the Tenure of Kings Higher than our Municipal Lams. And Divines not Lawyers are the befl Judges in this Cafe.

(13.) Ther is* a Natural Allegiance, which is by the Law of Cod, and is Antecedent to the Legal Allegiance, requir'd by any Municipal Laws, as Lord Chief Juftice Coke tells you in Calvin s Cafe.

And the Legal Allegiance is but in Affir- mance of the Natural Allegiance, and cannot Alter it.

This may ferve 'as an Anfwer to your Chap. VI. p. 80. &c. Of the 'Reading of Law- yers upon the Import of Seignior le Roy. You Quote Lord Bacon, Coke, Bridgeman, and Hales.- And fay, p. 84. There wot not the leaft Tempta- tion to Byafs them on this fide (that is, your fide) of the Ouefiion. But I except againft this as to Two of them, that is, Coke and Hales. For Coke was plainly Chagrin after his Difgrace

at

C 70

at Court, when from Lord Chief Juflice he was made Sheriff of the County, and took to his Motto Prudens qui Patiens, which was put to his PiPures in the Year 1629. And it is Obferv'd of him, That as before, he Wrote High for the Prerogative, he LelTen'd it as much as he Cou'd afterwards.

Befides his Second and Third Inftitutes, whence you bring your Quotations, are Pcfthu- nous, and not Printed till long after his Death about the Year 1644, at London, then Engag'd in Rebellion againft the King, and how the Copy might be Alter' d or Interpolated to ferve their Turn then we cannot tell, but ther is Caufe of Sufpicion, being Publifh'd at that Time.

Then for Hales, he was a Judge under Oliver, as you may. fee in his Life by Dr. Bamet. And therefore ther lay, not the leafi Temptation in his way , to Palliate and Smooth over a Caufe wherein Himfelf had been fo far Concerned.

But in his large Treatifc of the Pleas of the Crown, which is in MSS. and left to be Publifh'd after his Death (of which what is Printed are but Minutes) he AfTerts moll fully the Right of de Jure againft de FaBo.

But it is not for fear of any thing they have faid, that I eater this Caveat againft them.

Therefore I will look over the Authorities you Produce.

And firft for my £ord Bacon. Let me Ob- ferve that he is of a Different Opinion from you as to the Statute 1 1 Hen. VII. for he

thinks

[77 3

thinks it was a New Law, and not in Affir- mance of the Old Law as you fay it is. And I am of your Opinion, as I will fhew when I come to Confider that Stating in Setliort 1 6.

But now as to the Point before Us. Your Quotation of Lord Bacon, p. 81. fays no more than, That it wot agreeable to Reafon of State (at that Time, in the Reign of Hen. VII.) that the- S.tbje'd flioitld not enquire into the Jujlmfs of the King* Title.

This was very Agreeable ■ then to Reafon of State (for my Lord fpeaks now as a States- Man) bccaufe if the Subjeti had Enquir'd into the Title of that King, they would have found it altogether Bad. But mull Subjetts therefore never Enquire ? Is not your Book an Enquiry into the Titles of Princes.? Muft nothing be done to Satisfy Confcience ? Or have the Sub- jells no Confcience ? Muft they not Enquire into the Title of a Matfaniello, or an Oliver, but take all upon Content they find in Pof- fejfion !

As for the Confcknce part of the Quotation, That whatfoever the fortune of the War was, the

Subjetl (l)ould net Suffer for his Obedience =>

No. But for his Dif obedience and Rebellion. Arid this has ever been thought Agreeable to good Confcience.

As to the Example he brings of David in the Matter of the Plague, it makes againfi him, for God determin'd it quite otherwife. He fpar'd the King asd Puniflvd the People, tho' ic was for the Sin of the King.

And

[78 j

And this affords Us an Obfervation I fuppofe will not be Unpleafing to you, of the Near Relation God has plac'd be- twixt King and Subjects, as betwixt Parent and Child -, That as the Sins of the Parents are Vi- lited upon their Children to the Third and Fourth Generation, fo are the Sins of Kings upon their Subjetls. Tho' it is likewife a Pu- n foment to thofe Kings and Parents whofe Sub- jeEls 'and Children are Deftroy'd. But this Teaches Us the Obedience to Kings in a very High Degree. And that the Relation betwixt King and Subject is not to be Diflblved barely by Poffeffion, more than that of Parent and Child. Suppofe a Man came to Ravifh your Mother, and you Defend her all in your Power. But at laft you are both overcome, and the Vfnrr per gains Pojfejfwn, and fhe Atturnes to him. Wou'd you then fight for the PoJJejfor againft your Father, and tell him his Right was Fx- tinguifiid ?

The Cafe is Parallel, if the Obedience to Kings is as ftrongly Enforc'd upon Us by God, as ^Obedience to Parents. Which I believe you will not Deny. And that Kings Repre- ient the Perfon of Gad to Us more than our Natural Parents \ who are not calPd Gods, and the Anointed of God,- as King, are. And are themfelves Subjed to Kings.

I come now to your Quotation from Coke, p. 8r, 82. who fays, That a Kingde Fatto and not de Jure is Seignior le Roy within the Pur- view of the Statute 25 Edw. III. c 2. And that a Pardon granted by a King de Jure, who is not alfo de Faclo, is Void.

Before

L79l

Before I anfwer this, let me take Notice, That he makes a plain Difference betwixt a King de Faflo and a King de Jure, and fup- pofes a King out of Fojfejfwn to be itill King de Jure. Which is Dire&ly Oppofite to your Principle, That Pojjejfwn do's Extinguijl) the Right, and that the Difpojfejfed Prince has no Manner of Right whatsoever, as" you fay, p. 87.

And now in Anfwer to Coke, I Oppofe to his Authority that of the Parliament 1660. See their Proclamation Dated May 8 \66o. wherein they Declare, That his Majeflys Right and Tithe to his Crowns and Kingdoms, is, and tpo4 every way Compleated by the Death of bis Mofi Royal Father— — Without the Ceremony or Solemnity of a Proclamation, &c. And that Im- mediately upon the Death of his Father, the Impe- rial Crown, &c Hid by Inherent Birth Right, and Lawful and ^Undoubted Succeffon, Defend and Come to him, as being Lineally, Jujily, and Law fully -j next Heir of the Blood Royal of this Realm.

And as his Right was every way Compleated? tho1 • mt of Poffejfwn, fo he did Exercife it too> and Granted Pardons before his Refloration, which held Good, and were not Void, as C^efays. He executed one for Treafon, while he was A- broad, He gave Titles of Honour, and did otjjer Regal Ads, which never were Queftion'd after- wards, nor Confirmed, as needing any other Autho- rity.Now I fay to Coke, That if the Right Heir has a Power to Pardon tho' Vnpojfeffed, he is by Consequence Seigmor U Roy, tho' Vnyofcjfed,

toi

[8o j

for by the Cenftitutim none can Pardon but the King,

Your next Quotation is from the Lord Keeper Bridgemnn, at the Tryal of the Regi- cides, where Cook who was a Lawyer pleaded the Statute n Hen. VII. But was Anfwer'd, That what he did was againft his King, and that they Call'd him King in the Charge at his Tried \ Charles Stvart King of England. But what fort of a King was this? Was he a King in Tcjftjjion? When his Neck was upon the Block the Executioner call'd him his Ma- jefty. Was he a King then? Not de Fatlo certainly. It muft be therefore a King de Jure which the Lord Keeper Bridgeman meant. And he palled Sentence upon thefe Regicides for their Treafon againft a King de Jure tho' then Difpofijfed.

The Lord Chief Juftice Hales fays, as you Quote him, p* 84. That the Right Heir of the Crown, yet not in Pcjfcjfion, is not a King within this Aft. To which 1 have fpoke already. On- ly Obferve that he calls the Heir out of Tof~ fejfwH the Right Heir. Whereas you allow him no Right at all, nor to be any Heir to the Crown.

But, Sir, as to the Opinion of Lawyers, you will find more againft you, than for you. See Calvins Cafe. The Cafe del Vnion. And Clark and Wat [on1 % Cafes.

I wou'd Ask one Queftion. During the Con- teft betwixt Queen Mary and the Lady Jane, which of them was U Reign, and within the Purview of the Statute of Treafons 25 Edw. III. According to Coke and Hales, Queen Mary was

then

C 8t ]

then only the Right Heir, but not in Poffejfhnl and fo not within the Purview of that Statute. But for all this thofe who Acted againft her in that time were Executed for Traitors, and tho' they did it under the Shelter of a Queen de Fatto.

If you fay Neither of them was Queen till the Matter was Settled,. then no Treajon could be Committed againft Either, for ther is no Treafon but againft the King or Oueen.

The King never Dies. Therefore one of them muft be Oueen. If it was Jane, then you can- not Deny but fhe was Queen de Facto. And not in Fieri, as you Diftinghifh it, p. 68. And I muft mind you of that Maxim you Repeat

fb often, Vbi Lex non Diftinguit That we

muft not Difiinguijh where the Law do's not Diftinguifl). Therefore you muft fhew this Diftinttion in. the. Law. And I believe the Law knows no fuch thing as a King in Fieri. It muft be King or No King, eitheir de Facia or de Jure.

But if Mary was Queen, then here is a King (or Queen) out of Vofleflion, and who never was in Pojfejfion, (as Queen Mary never had been at that time) and yet within the Pur- view of the 25 Edw. III. Here is de Jure Ex- prefly Prefer'd to de Fotlo, and the Gaufe of Right Determined againft PoJJeJfwn. Here is the Hereditary Succejfion Maintain'd againft Vfur- fation. Here is not only the Abettors of de Fatlo, but the Queen her felf Executed for be- ing deFatlo. And if Rich. III. had Surviv'd the Battle of Bofworth he had been another Exam- ple-, but he was Attainted after his Death as

G a

[ 82 ]

a Falfe Traitor, &c. for his de Fa&oflrip, and by the- Name of a King de FaBo, and for ha- ving been fo

And is it not very ftrange, Mr. Higdeny That the Law (as you fay it is) mould know of no other King, nor Allow of any other but a King de FaBo, and mould Purge him of all Defers by the de FaBo Defcent of the Crown upon him, and Defend and juftif. 'im againft de Jure, nay Extinguifli the de Ju in the Right Heir, and Transfer it to the FaBo, with the Allegiance of all the Snbje . tho' Sworn to the Hereditary Sntvejfion and Transfer thefe Oaths too to the de F*#* agairift whom they v/ere made : And yet after all this, ihould Attaint and Execute thefe fame Trinces for being de FaBo, and for that only ? And fay at the fame time that the King can do no Wrong ? Is ther a Paradox in. the World, if this be not one? I leave this to your Cooler thoughts to Confider. For if ABs of Parlia* ment may be made in a Heat, as you fay, and therefore not to be Regarded: May not You or I Write in a Heat too, and be apt to Over- fjioot? And fome Lawyers may be in a Heat too, and Strain the Laws. And whatever Kings de Jure are, it is Certain that Vfurpers, who are Pavifiers, are always in a Heat. And if they Succeed, will Force the Laws to Bend to their Bow. Hen. VI. and Edw. IV. At- tainted one another, and Annultd each others Z*nv, as the ViBtory turn'd. And what is the Meaning ot Lawful King fo often ufed in our haws f For ther can be none Unlawful, if the df Fdio Do&rine be true.

(M-) No

mi

(14.) No Vfurper can come to the Crown but by Kavijhing the Municipal Laws, thefe are in his Power, and he can make them fpeak as he pleafes. Ther is not one Exception. And tho' you like not the Rape, became it was againft Law, yet you Jvfitfy it and the Ravifier too when it is done, and are for Maintaining his Foffeffion againft the lawful Husband, becaufe the Laws are Conquer d, and mult do fo too ! If Monmouth had Prevail* d% the Laws wou'd have Hmg'd thofe who Fought againft him: And if Another had Mifcarryd^ the Laws wou'd have Hangd thofe who Fought for him. What a Weather-Cock have you made Guide of your Confcience !

If the Laws mult be Judge, let it be when they are Free and not under Force. And fliew me that Time if you can. Shew me that Government or Conftitution ever yet that wou'd Suffer the Laws to be Pleaded againft it? Wou'd Old Oliver, or any other Oliver ? Wou'd the Commonwealth of England let you ask the Legality of their Constitution ? So that tho' you wou'd by no Means have had any hand in the Murder of the King, or the Ex- pulsion of his Son King Char. If. Yet you wou'd be Oblig'd, by your New Principles, to have Fought againft him, and Endeavour'd to have hinder'd his Refloration.

But, Sir, ther is a Cafe nearer Home, which I think will come up to all your Pofitions. By the Statute 1 Will, and Mary SefT 2. c. 2. And 12 Will III. c. 2. " A King or Queen * who fhall turn Papift, or Marry a Papifl: " fhall be Excluded, and be for ever Unca- G z "

[ «4]

** pable to Inherit, Pollefs, or Enjoy, the * Crown and Government of this Realm* &c. " And the People of thefe Realms fhall be, *c and are herereby Abfolved of their Allegiance, ic and the faid Crown and Government fhall cc from time to time Defcend to and be En- " joyed by fuch Perfon or Perfons, being Prote- '* Hants, as fhou'd have Inherited and Enjoyed u the fame, in cafe the laid Perfon or Per- <c fons, fo ReconciPd, holding Communion, or t<m Marrying* as aforefaid, were Katurally <e Dead.

Now Suppofe any of our Kings or Queens ihould hereafter turn Papift, or Marry a Pa- fifi7 I ask you, Mr. Higdtn, whether by this Law fuch King (or Qjfeeri) wou'd not Forfeit his Right to the Crown, and all the Subjetts b? jibfoh'd of their Allegiance ?

And then, Secondly, whether the Law would not make it Treafon in any who took Arms againlt fuch a King, while he kept Pojfeffion ? And then how mould he be put out of Pof- feffwn ? The Law puts him out of Pojfejficn, as if he were Naturally Dead. Yet Maintains his PoJJeJfion, by making it Treafon to take Arms againlt him. And do you think he could not get Judges (fince he had the making of th em- all) to Declare this to be Law ? Take up now the Authority of Judges in Revolutions, with which you fill your Book. Arid1 if thefe Judges Survived till another Revolution, and that the Right came to take place, do you not think they would be Inclinable to Palliate and Mol- lify and put the belt Face upon their former Practice all that they could? Would they not

Plead

1 85 'J

Plead de Facto, and the n Hen. VII. &c. An# yet do you think that the Protejiant Heir had the Right all this while ? Or would you be for the Pofifo Popjfor againft: him ? If fb, you mult think this a V§id Law, or made in a Heat, as you fay of others.

And you mult not make the Law the Meac fure of your Allegiance. For here the Law Abfolves you from your Allegiance to the Pojfejfor, and Transfers it to the King de Jure -7 And yet you will ft ill Stick to the Pojfejfor.

Or elfe you muft: Quit your Book and all you have faid in it, and Retrafl the Maxim with which you Conclude it thus,

And to End where J began., Jince the Laws, which are the Rule of Civil Subjection, require This, that is-, our Allegiance to the King do FatJo,

Ofortet Nemincm ejfe Safientiorem Legibm.

And will you be wifer than this Lawy which Determines exprefly for de Jure againft de FaHo, as much as Law can do ?

For if a King in Pojfejfion be Irrejiftable, then this Law was made in vain. But if he may be Rep/led and fet afide, than bare Pof- fejfion is no Foundation for Legal Right. And if fo, the Royal Title and actually Admimftra- uen of the Government can give him no Juit Claim to the Allegiance of the Subject, The n Hen. VII. c*n do him no Service, for in the Eye of the Law he is not the King jor the time being For when the Law Deter- mines his Reign, and Extinguiihes his Authority, lie has no more Pretence to the Allegiance of G 3 the

the Subjects, who are by this Law Abfolve# from their Allegiance to him.

But if Breach of Conditions in a King is Sufficient to Unmake him, why mould the Breach of Loyalty in a Subject be thought Suf- ficient to make him a King ? But this is the de Va.Ho Doctrine. For if a Rebel proves Succesful and Snatches the Crown, his Violence gives him a Good Title, and he becomes a Legal Monarch, according to this Principle, And no former Laws or Conftitiition, or Ails of Parliament can ftand in his way.

But, Mr. Higden, you have no Regard at all to the Conftitiition, or Acls of Parliament ^ tho' you Build all upon them. For pray tell me, is thcr not fomething Ejfential to the Conli^tvtion of a Parliament ? Elfe what need Qualifications, without which, Men are Difablcd tc ... in Parliament ? Otherwife any Company of Aien may call themfelves a Parliament, tho' called together without any Lawful Authority, Kay, in direct Oppojiticn and in Rebellion againfc the Lawful Authority. And then the Rump, &o in ere Lawful Parliaments. For thus you Pefcribe their Power when once they are got into Pojfejfon, and fay, p. 87.

" They can do any thing by Virtue of the " Supremacy of their Power, which cannot be cc Bound by any prior Law cr Settlement (for tc then the Supreme Power, wou'd be Superior cc to its felf) cut off and Extinguifn Old ** Rights, and Create and Eftablifh new Legal " Rights and Titles, not only to private In-

cc heiita.ices, but to the Crown it felf So

ct that whofoever ftands Excluded by the Le-

u gifiaths

C 87 j

■"** gijlatiiie Authority , whatfoever they might 11 have had, have now no longer any Right or u Title to the Crown.

If you fay, That the Legislative Authority of the Commonwealth of England, was only de Fatto, but not de Jure, you overthrow all you have faid* And if you wou'd have been for K. Char. II. againft that Commonwealth, you wou'd have fought for ds Jure againft de Fa8o. But I know not whether you wou'd or not? So I will not put this upon you.

Only let me fpeak as to your Argument* And there I find you put more in your Con- clnfion than was in your Prcmifes. Your Premifes fpeak only of Legal Rights, whence you Infer in your Conclufwn to any Right or Title? as if ther were no other Right but what we call Legal. Whereas the Law do's only Recognize the Right of the Crown, not Male it ; for the Crown is Trior to the Law? and Above the Law, as has been faid. And the Law can take away no Right but what it Gives. ' And if it fhou'd Ceafe to Recognize the Right of the Crown, and you fhou'd call this a taking away its Legal. Right, it will not therefore follow, that it has no Right or Title at all. It has {till that Right which is Prior to the Law? and Independent of the Law. Even the fame Right it had when it made the firft Law. And againft which if any Law be made, it is Void in the Nature of the thing, as well as fo own'd by our Law, which I have before fhew'd, p. 17, 1 3.

The SupremePower may (as is there faid) Dijfolve

it felf, but cannot Limit it felf. It may Alter

G 4 any

[88]

any Part of the Confiitution which is not Ef- fential. As a Man may Cut off an Arm or a Leg, but if he Cuts off his Head, he is no longer that Man. Thus when the Common- wealth Dillblv'd Monarchy, it was no longer that Confiitution. Therefore our Confiitution cannot, as you fay, Mr. Higden, Cut off and Extinguifh the Right of the Crown, without a total DiJJolution of the Confiitution. Which I fuppofe you will not Adventure to fay, after what Dr. Drake did fuffer for it.

And if a Juft and Legal Confiitution cannot Alter forne things without Deftroying it felf5 much lefs can an Vfurped and Illegal Confiitu- tion (fuch as was that of the Commonvoealth of England, and other Vfurpations) have fuch an unbounded Authority, to Remove all Ancient Land-Marks, tho' Placed by God Himfelf!

(15.) In your Chap. V. in Anfwer to the All of Recognition of K. Jam. I. You ovyn that the Crown defcended on him by Inherent Birth- right, and Proximity of Blood. And that the Parliament did promife and think their Obedi- ence due to him, and to his Royal Progeny and Tofierity for Ever. But you have not put in thefe Material Words, being Boundcn thereunto both by the Laws of Cod and M.an. Where by the Laws of Alan, I fuppofe was not meant the Municipal Laws of England only, but the General Law of the whole Earth, in former Ages from the Beginning, as well as at this Day, concerning the Defcent of Crowns by the Proximity of Blood. And by the Laws of Gad, no doubt Reference is made to the Holy

Scriptures.

Scriptures. So that we muft Advife with ch thers befides Common Lawyers in this Mat- ter.

But you own this Hereditary Right. Only, fay you, what if they fhou'd be DlfpoJfcffeJy and others get in ? And you think it was not enough for them to have AiTerted this Rights but you fay, p. 70. It had been abfolutely Ne- cejfary for them (the Parliament) to have Dc dared and Enabled, that the Subjects jhould never hereafter Swear or pay Allegiance to any but He- reditary Kings ', that no Statutes for the time to. Come jhould be valid-, but fuch as were made by them.

Really, Sir, this is a pretty Odd Propofal; It is the fame as for a Law to be made that ther fhpu'd be no more Conquefis or Vfurpa- tions. No doubt, the Laws Intended it, and were made for that Purpofe. But to fay that they never fhall be, wou'd look very Foollfh! Is the like done in any other Cafe? We have Laws againft Murder, Adultery, Treafon, &C. But do's the Law fay, That ther never ihall be any Adulterers, or Robbers ? Why then fhou'd it lay, Ther fhall be no more Traitors?

But fuppofe fuch a Law were made, wou'd it Cure you, or have hindred you from what you dave done ?

Would not that Claufe be Void in it felf, to Limit the Power of after Parliaments from Repealing it ? Or to fay, That no Statutes fhould be Valid but fuch as were made by de Jure ? For does not every de Facto call it felf de Jure ? And who Dare difpute it with de Facta,? Would you, Sir, in the Mind yo.u arc

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None of them thought Poffeff.on againft Righ* was any Ilea at all. If that had been the Rule, the Difpute of Tork and Lamafier cou'd not have la lied a Day. Nay, ther cou'd ne- ver have been any fuch Diftute.

You fay, j - /. That the Word Heirs was in the Oath of Allegiance from the time of Edw. I. This (he as i: w Always the Rule. And only tells Us the In, ty of thofe Times whence you bring y ur Pr lents. 1 fee not what Advantage you can make of this.

(16) I have taken no Particular Notice of the Statute ii Hen VII. of which you make fo much Ufe. It is A.fwerd in what go's before. It was made by i a Vfurper to figure thofe who fought, for hi*n J erkin wh'j pre- tended to be Heir of Tork being then in Arms againft him. If Perkin had Prevailed, it wou'd have fignify'd little:, However it was all iheSecu- rity hecou'd give. Valeat quantum — For ther were Always fuch Pools as thought an Aci of Parli- ament a Great Matter on their Side. The Regicides pleaded this very Act, but it did not Availe them. No nor all thofe neither who were under Attainders by Hen. VII. him- felf for fighting againft him for the King in Poffcjfiony as the Duke of Norfolk, the Earl of Surrey, &c as 1 will fhew you prefently.

Tho' you tell us, p. 47, 48. That thofe who fought for the King fir the time being, Wanted no A% of Parliament to Indemnify the-}, Nor had they any. But you fay in the next Words, King Hen. VIK indeed to Quiet their Minds, faffed a Pardon for them under the Gre.it Seal.

It

i ■ .

AW

_ _ • 1

iVii

'i

i t

:

[9o]

of Kow ? Otherwife to what Purpofe do you Propofe it, and call that Absolutely Ncceffary, which wou'd be perfectly Vain and of no Im- portance in the World ?

For if the Laws were Stuck to as the Rule, ther could ' never be any Vfefation, or Re- bellion.

And if the Lam were fo Worded as you Propofe, would that hinder Rebels and Vfvr- fers to Break through it? Or others to own them when they had once gotten into Pojjcf- fion ?

Will you Difown that Poffejfwn which is Ob* taincd by Committing a Violence upon the Law? Then we (ball foon have done !

And if it is Impoflible for any Rebellion or Vfurfation to be, without Committing a Vio- lence upon the Laws, then are they not Plain enough Worded ?

Can you produce any Law which fays in Plain Words, That we ought to Submit to Rebellion or Vfnrpation if it Prevails ? And may not I fay, That this is as Abfolutely Necejfrry for your Scnfe of the Laws, as you fay the other is for mine ?

Butthefe are wild Fancies. The Law tells Us our Duty plain enough. And that in He- reditary Monarchies the Crown defcends to the Heirs. And tho' the Law muft always Vail to Poffeflion, (becaufe it fpeaks out of the Mouth of Judges in Poffejfwn) yet when the Right re- covers, it will Punilh thofe who Oppos'd it. This was Always done, in all the Turns of Tork and Lancajiery and in all other the like iince the World began. Which fhews, That

None

[9i ]

None of them thought Pojjeffon agajnft High* was any Ilea at all. If that had, been the Rule, the Difpute of Tork and Lanlafier cou'd not have lalled a Day. Nay, ther cou'd ne- ver have been any fuch Diftute.

You fjy, p •■ ). That the Word Heirs was in the Oath of Allegiance from the time of Edvo. I. This (hews it w Always the Rule- And only tells Us the/?, - 91 °f thofe Times whence you bring your Pre idem. I fee not what Advantage you can make of this.

(i<5) I have taken no Particular Notice of the Statute u Hen VII. of which you make io much Ufe. It is Aufwerd in what go's before. It was made by s a Vfurper to ftcure tKofe who fought, for hUn ierkin wh;j pre- tended to be Heir of Tork being then in Arms againil him. If Perkin had Prevail'd, it wou'd have fignify'd little^ However it was all iheSecu- rity hecou'd give. Valeat quantum. — For ther were Always fuch Pools as thought an AB of Parli- ament a Great Matter on their Side. The Regicides pleaded this very Act, but it did not Availe them. No nor all thofe neither who were under Attainders by Hen. VII. him- felf for fighting againft him for the Kwg in PotfejUon, as the Duke of Norfolk, the Earl of Surrey, &c as I will fhew you prefently.

Tho' you tell us, p. 47, 48. That thofe who, fought for the King for the time being, Wanted no Ail of Parliament to Indemnify the;:, Nor had they any. But you fay in the next Words, King Hen. VIU indeed to Quiet their Minds, faffed a Pardon for them under the Great Seal.

It

[** ]

It feems then their Minds cou d not be Quiet, till they had a Pardon fome How or Other ! So that this Notion of the Abfolute Security of fighting for a King de Fa3o, was not fo Univerfal as you wou'd have Us believe.

I obferve that Hen. VI (. here avoids the Scandal of being Call'd a King de Falo, which always means an Vfurper when it is Us'd in. Oppofition to a King de Jure. But he puts ki -the Softer Word of King for the time being. As we fay Mayor or Sheriff for the time beings and that may belong either to the Right or the Wrong, tho' the Meaning is ealily Under- stood.

Hen. VII. having Marry'd the Heirefs of York, thought it now full time to put an End to that Mortal Divifion of the two Houfes, which had Coft the Nation above an Hundred Years of <:ivil War, and as the Hiflory tells Us, fpent England more Blood and Treafure than twice Conquering of France. The Great Men of the Nation were almoft all Attainted on the One fide or the Other. Hen. VII. wou'd not fay that his own Houfe of Lancafier were the Vfurpers, but having now both Titles in himfelf, he had a Mind to take away all fur- ther Caule of Difpute, and to Indemnify thofe who had fought for the King for the time be- ing, and to that End made this Healing A%. And with a Profpect too that his Son, if he outliv'd his Mother, had a better Title to the Crown than himfelf, he had therefore a Defign to Secure the PoJJejfion of the King for the time being all that he Cou'd. And to that end put a Claufe to this Ad Vacating all af- ter

I 91

1

ter Attainders by Parliament contrary to the Tenor of the Ac~i, and that all fuch after ASlsof Parliament fhould be Vtterly Void. Which fpeaks not much for theSenfe of thofe who made thaty#?, as if it cou'd Bind after Parliaments. And the la ft Words are, Provided alway, That no Perfon or Perfons ft) all tale any Benefit or Advantage by this Aft-, which fliall hereafter Decline from his or their [aid Allegiance. Which looks as if it had only a Retrofped to Clear what was Paft. But betwixt the Paft and the Future Profpett that Hen. VII. had, this Ac! is perfectly Confus'd, and like a Heathen Oracle, may be taken in different Meanings, according to the different Views in which it may be Confider'd.

You fay p. 64. That this Acl of 1 1 Hen. VIL did not Introduce a New Authority, or a Nero Allegiance^ but was made only in Affirmance of what was the Law before.

In this I agree with you. And it is the only Reafonable Senfe can be put upon this A3. But then I am fure it go's upon Here- ditary Right, and Allows not that bare Pof- feffwn can Extinguifh it, as I think I have fhewed Sufficiently from our Laws before that time, as well as Aiferted by all our Laws fince. And therefore the King for the time being in that A:- mult Mean only the King de Jure^ to which the Lancaflrian Kings did Pretend, as well as thofe of Tork. And purftunt to this, Rich. III. was Attainted and the Principal Perfons of his Party, 1 Hen. VII. And there- fore he did not come under the Meaning which Hen. VII. Intended by a King for the time being, tlio' he was Certainly a King de

[94-3

Failo, and Hen. VIL called him fo (as you your felf have Quoted, and \ have Mention'd before p. 51.) a King in Deed but not of Right.

And do you Fancy that Hen VII. Meant by this Aft to Exclude his own Children, fo that if any mould Thruft them out, he Bound the Subjects to Adhere to the Vfurper againft his own Lawful Heirs ? Do you lmagin this to have been his Intention, and not rather to Secure the Crown to his Poflerity? Nay did he Defign to Arm all his Subjects againft Himfelf, and that none mould Aflift him, if he happen'd to be Un-horfed and another get into the Saddle?

But, Sir, you fay; p. 74. That the King for the time being (meaning a King de Facto) with his Parliament, are Acknowleded to have the Legiflative Power, by Kings de Jure and their Parliaments even Since the 1 of K. "James I. Pray, Sir, do me the favour to let me know thofe Kings de Jure fince Jam. \. who Acknowledged this? For to be fure you do not fpeak without Book. And I cannot find them.

(17.) You put a Material Objection againft the Security of Fighting for the King in Poffef- fion, p 47, in thefe Words, That thefe Princes fometimes Attainted fome of the Leaders of the Ofpofite Party, for Adhering to their Rivals. To "which you fay, But when they did this, their Conflant way of Proceeding aga.'nfifuch Perfons was% by Attainders in Parliament ex poft fa&O, and, not by Indictments in the Ordinary Courfe of Pro- ceedings, which (hews I think (fay you) at the

famz

[ 95 ]

fame time, thai to ferve the King in Poffeffict: was not a Fault, nor could be Punifoed as fuch, by the Laws that were then in force.

Anf. i. This do's not follow For if a King may either Indift or Attaint, he may do which he will. Was not Monmouth In- dictable, becaufe he was Attainted? Were not others in the fame Rebellion, fome IndiUed and fome Attainted?

2. ' This was not the Confiant way of Pro- ceeding, for many were put to Death without Attainders. The Duke of Somerfet and feveral other Lords and Gentlemen were put to Death, without Attainders, by Edw. IV for fighting for Hen. Vf. The Cafe was fo Common on both Sides, that it is very Strange to hear you fay this ! They that Fled after Battles, or ftood out in Arms, or were Dead, were At- tainted, ther was no other way, and fome o~ thers were fo too. But it was far from being the Conftant way.

3. Wou'd Parliaments Attaint Men for fight- ing for the King in Fojfeffion ? What Opinion have you then of Parliaments ? Or was it fo Com- mon a Notion as you fay p. 48. That none thought he Needed a Pardon for fighting for the King in ■"offeijion? Many loft their Lives and Efiates for want of it. And for what other Purpofe was the 1 1 of Hen. VII. made, but to Secure Men for Fighting for the King in Toflejfutn? If no Man had ever thought ther had been any need of it, that Statute had ne- bsen Made, And why do you make fo

much

[96 ]

much Ufe of it, if you think ther it no Need of it?

You lay, p. 47. Thofe who fought for the King for the time being (you are fpeaking of Rich. III.) wanted no Act of Parliament to Indemnify them. And yet it is Evident that the Duke of Norfolk-, the Earl of Surrey) and Five or Six more Perfons of Quality were Attainted for Adhering to Rich. III. And iny Lord Bacon fays (Hift. Hen. VII.) that the Reft of his Party had been in the fame Condition but for the King's Tar don. And that Ben. VII. Chofe to Indemnify thofe of Richard' $ Party by his Royal Pardon^ rather than by Parliament) that the Clemency might be wholly owing to Him- felf. But let thofe be Attainted in Parliament whom he had no Mind to Pardon. There was no ill Policy in that. Befides it was more 5o- lemn and of more Publick Example than a Pri- vate Tryal.

But you fay, p. 48. That they who Fought againft Rich. III. for Hen. VII. had an Atl of Parliament to Indemnify them. That was a- gainft another Day. For Hen. VII. was nei- ther de Jure nor de Fatto King, nor did Ailiime the Royal Style till after the Battle of Bofworth where Rich. III. was Slain. So that they did not fight fo much as for a King de FaltO) and therefore were very Lyable to be Queilion'd if another Turn had Come.

You fay, p. 35. That Edw. IV's Daughters fled to San&ury to Secure their Titles. Tftow could this be if Pojfejfton did Extinguish their Titles ? The Nation thought Hereditary Right A better Title than Poffejfion) for which Reafon

the

[ 97 1

the Marriage of the Earl of Richmond (Hen. VII.) to Edw. iV's Daughter was Concerted, in Order to Difpojfefs the Ufurper Rich III. And for the fame Reafon Perkin Warbeck was fet up againft Hen. VII. And the Lord Stanley who had fet the Crown upon his Head, loft his own Head for faying, That if he beliv'd Perkin to be the Son of Edw. IV. he wou'd not draw a Sword againft him. And many of the Nobility who did believe it Adhered to him. And the Lord Bacon Obferves, that Hen. VII. Died fortunatly for jrftrrifelf, becaufc his Son might have fet up his Mother\ Title againft him, if he had liv'd longer.

(18.) You bring an Argument, p. 74. for the Lawfulr/efs of Submitting to a Prince , whom it was Vn lawful* to fet ftp. And for this you -Quote Scripture? and the Old Tcjlament tod Jjeut. XVII. 14. The only Place except one Text p. 102. where you Name it in your whole Book. But what was this Cafe? It was only that of Conquejly when Strangers got the Rule over the Jews? and then, fay you, they Cpnfiamly Submitted to them. I mult Allow it was Ge- nerally the Cuftom to Submit to Conquerors, For till Men Submit they are not Conquered. But this Word Confront puts you to Incon- veniences. For tho' they Confiantly Submitted, they as Copftantly Revolted, whenever they cou'd get an Opportunity. As you may fee in the Hiftery of the Judge/? and of the Mac-

cabees.

But you fay further, Tioat our Lord juflify'd thfm ("the Jews) in their Submijfion to the Siran-

H ftr

[?8]

ger that then Rnled over them, the Heathen Em ftror Tiberius.

Firft as to the Submiffion of his Subjetls in General. The Roman Empire was not then % Hereditary. And where ther is no Right but Pojfejfion, no doubt Poffeffion gives the Right. As you fay, ipeaking of Tiberius, p. 90. The Submijfion of the- Romans (Such as it was) was his only Title. Neither You nor I lay much Strefs upon the Senate. But however he had that too, fuch as it was. And the LexRegia whereby the Senate and People of Rome gave up the whole Authority of the Roman Government to Aitgufiiis, tho? it did not Defcend to Tibe- rius as Heir, yet it did as Succejfor. And None was Wronged by his Afluming the Co- vervmenty, becaufe None had any Right to it.

But now as to the Cafe of the Jews under Tiberius. Ther was None who Claimed as Heir of David, for they all Submitted. So here was no Competition. But you fay, p. 90, 91. That the Generality of the Nation, were, in the Mean time, in- Expectation, that a Prince of the Tribe of Judah would fjiortly break the Roman Toke7 and Reflcre the Kingdom to Ifrael. And that Prince did: come, and Was then among them. And he too gave it up, and Comman- ded them to Submit to Tiberius, tho' He calPd Himfeif the Son of David. For the Time was then come, that the Scepter fhou'd Depart from Judah, that is, from the Jews fo call'd from Judah. And from that time to this Day the Jews have never had one of their own Nation to Ruk over them, which they always had

before.

C 99 ]

before, tho* in Captivity, and Subjection to their Conquerors.

But you fay, p. pi- " That our Saviour " did not Refolve the Lawfulnefs of their lc Subje&ion to Cafar, into his Right to the " Government of Jnd*a, but into his PoJJeffion ,c of it ', the Coining of Mony and Railing of " Taxes, which our Saviour lays down, for <c a Sufficient Ground of their Subje&ion, be- " ing no manner of Proof of the Former, but " an Undeniable Sign of the Latter.

To which I Anfwer,. That the Coining of Mony and Railing of faxes are indeed an Un- deniable Sign of Pofefjlon, but, as you fay, no Manner of Proof of Right, that is, in an Here- ditary Government. But it is a full Proof of Right too, where ther is no other Right but Pojjejjion, which I have fhew'd to be the Cafe .here.

(19.) I have got now to your Chap. VII. which you Intitle, Our Laws in thit Point not Contrary to the Holy Scriptures and the DoHrine ef cur Church, but rather Agreeable to Both, And here I was in Expectation that you wou'd have gon into the the Old Tefiam'em, where only is to be found the Original and Founda- tion of Government as to all the Earth, and particularly of that Government which God did Eftablifh among the Jews. But you have laid this wholly A fide, and given Us only a Word of the Jews, when they loll their own Government, and were in Subje&ion to the Romans. I doubt not you had Reafon for this. For then you Wou'd have been Oblig'd to have taken Notice, H 2 among

[ ioo ] among many other Exceptions to your Kuk1 of the Flagrant Inftances of David and Abfx- icmrof Joajl) and Athaliah, and of others, where ic is Plain that PoJJejfion did not give Right. And, keeping your Eye upon tbcte.Cafa£l deilre you wou'd \Atifwer your own One ft ion as to Providence, which you Ask near the End of this Chapter, p. 94, 95 " That after the " Divine Providence has Placed, Permitted,, as H leaft, a Pcribn to be placed in fuch a tc Station,- that the Laws of the Kingdom u acknowledge his Regal Authority, and Re- u quire the Allegiance of the Subject to be u paid to him. Whether to Refufe to Ac- cc knowledge him,, for our King, or to pay " Allegiance to him as fuch, is not to Oppofe xt both Providence ■ and Law T • Then, Sirx you think that all who Adhered to David, and Kef n fed to Acknowledge and pay their Allegiance to his Son Ahfalom, did Op- pofe both Providence and Law. And you Ap- prove of the de Fatto Plea of tfijhai, 1 1 Sam, xvi. 1 8, 19. " Nay, but whom- t-he Lord <c and this People and all the Men of Ifrael *f Choofe, his will I bes and with him will I 4t abide. And again, whom fhou'd I fcrve? *c Shou'd I not fcrve in the Prefence of his tc Son? As I have ferved in thy Father7^ pre» *' fence, fo will I be in thy Prefence.

Here was the Lard, that was Providence . And the .Choice of the Pehfi&, that was Riglx . And ferving in- the Prefence of his Son, that was Regard to the family !

And if it be not too much trouble to voir* you may Call your Eye upon that faying at

the

[ ioi ].

the Prophet, Hof. viii. 4. They have fet up Kings but not by me j they have made Princes, and 1 Rtftnf it not.

And Conclude with ii Chr. xxiii. 3. Behold?

the King's Son fliatt Reign, as the Lwd hath [aid

# xh6 Sons cf D.nid. Yet Athaliah hid been

-n Years in Quiet Pojjejfon, \Vithout ib much

: Claim againft her.

•(20.) But you Mifs'd all this, and much more Trouble by Excluding the Old Tefiamem. Having thus very Briefly Dijpatctid the Scri- vtiires, you come next to the.' Doftrine. of ou>- Church, p.. 95. where you flay as flier t awhile. You give XJs but one Quotation our of the HomiUcs, which is Blaming their Fopijfj Ancc- fiors in the time of King *>/;«, for Adhering to the Pope againft him, and Swearing Allegi- ance to the Daitphins of France, to whom the Rebellious Barons had given the Kingdom, Con- trary to the Oath they had taken to. King John. Hence you Infer (elfe you can Infer No- thing) That the Compofers of this Homily did in this Conllder King John as an Vfurper, and Juftiry'd the Oaths taken to him as fuch. But to my Apprchenfion they had not a bit of this in their View, but fpoke of him here only with Relation to the Claim of the Pope and the Dauphine of France. In which Rcfpect he was Jufi and Lawful and every thing againfb Tliem. And who wou'd not have fought for him againft Them ? And the Oaths they had taken to him might Juftly have been Uvs'd to thofe who fet up the Pope er the Davphine, not only againft him, bift all our Kings and H 3 the

[ 102 3

the Nation it felf. The Difpute betwixt him and his Nephew Arthur was not here Con- iider'd at all. But Arthur had Refignd, and befides was Dead before the Barons fent for the Dauphine. And his Sifter Eleanor was a Prifoner in King Johns hands, and her Life at his Mercy every Hour. So that ther was no Claim made by her or for her. And the Compliers of the Homily might think, me was at that time Dead too. And fo that King John was Rightful King.

In the fame Sixth Homily againffc Rebellion ther is Mention made of the Pope's having Depos'd feveral Emperors and other Princes, and Abfolv'd their Subjetts from their Allegi- ance, as well as this lnftance of King John in England. And we are not to fuppofe that the Homily meant any thing herein of what Dif- pute of Titles ther might be in any of thefc Countries among Rivals of their own. For the Pope's Claim was over all Kings and Countries whatfoever.

I fhall only Qbferve, That this {Homily at- tributes the Chief Caufe of thefe People's be- ing drawn fo ealily into Rebellion, to their Ig- norance of the Holy Scriptures, not of the Tear Books. And concludes thus, In Cod's Word Princes muft learn how to Obey God, and. to Govern Men : In God's Word Subjects mufi learn Obedience both to God and their Princes.

And may I not add, better than from States- Men or Lawyers ?

Therefore, Sir, I deflre that if you think fit to make any Reply to this, you wou'd give me QhQtatiws out of tjje Holy Scriptures, to for- tify

C i°3 3

tifie your Zaw-Cafrs, for it will have more Weight towards Satisfying Conference . And I mult ltill think that your Talent is better there than at the Law.

And that you may fee how Exactly you a- gree with the Doctrin of the Church of En* giand, pleafe to Perufe the 10th Proportion of the 27 Condemned in the Decretum Oxonienfe, in the following Words j " Pofleffion and 4t Strength gives a Right to Govern. Succeis u in a Caufe or Enterprize proclaims it to be " Lawful and Juit.

" To Jufbifie it is to Comply with the Will " of God, becaufe it is to follow the Conduct u of His Providence.

Hobbs, Owen, Baxter, Jenkins, C\C. are Quo- ted as the Allertors of this Pernicious Pofition. « 1

(21.) I was forry, Sv. to fee you Chap, viii. p. 97. fall into that thread-bare Cam of our Commonwealth-men, That the fever al Communities of the World were not defignel, as fo many Scenes for a few Perfons to difplay t\yeir Glory in, and all the refl of Mankind to be only Jnfirnments of their Power &c. Thence they ln(er the Lawtulnefs of Rcfifiance, when their Princes purfue not) as they think, the Ends of Government.

I know you Guard againft this Confequence, p. s>y, and 100. by fhewyig that this Remedy deftroys the Thing, that is. Government, by making every Man Judge or' it. But then to what Purpofe was this Flounjb'l For your Prin- ciple of Submitting to the Vfurper, only Chan- ges the Perfon, the fame Scene of Difplaying Glory, &c. remains, and as Vncentroulable as the H 4 Scene

.[ i°4 ]

Scene of Right, But with this rail; Addition of 'Encourage merit to Rebellion and Zfurpation, That it it once Succeeds, all Crime s a#d Defects arc, PiTg'd, and. the ,£/£&£ upon which they have ZJfvrpcd is Extingitijhed as to the former Rightful Owner , and Transferred to the Vfurp- er and his //e/r} for Ever. So that it is only being Boldly Wicked, and he is Safe ! Whereas if he were made Liable to be Queftion'd by the Right, and all Men Oblig'd in Confcience to Hand by the Right, it wou'd be" much more Teirible to Vfurpcrs,- than if they had but one Puff to make for the Whole. And Government wou'd be better Secur'd. Elfe God and our Forefathers had never Eftablifhcd Hereditary Mc- ■Lvchies. To what Purpofe Hereditary, if Thru- iring One out of his Place, Excludes the whole Line ?,

(22.) Has the G-cnv, whence all Subjetls de- rive their Rights^ has this fountain of Right no JR/jSi at ail "it fell ? If a Man be Wrongfully Dijfeis'd of his Efiate, he has a Remedy at Law* Does Fojfffwn againlt Right give a Title to no- thing but to the down ? Unhappy Government! >Viiich of all things ought to be belt Settled, is left in the moft Vnfettled Condition -, Float- ing like a Cu,h upon the Face of the Waters, Jus own whoever cm Snatch it firft, or after- wards from any other that has it ! And no Remedy for this, or any Puniflwicnt ! But the Greatcft Reward upon Earth! And to bind Confcience too! Is it a Sin to Steal? But when I fee a Thief, may 1 Confent unto him, and be a Partaker with the u-idulterers ?

If

,1 $ ]

if Pojjejfion gave Right to Goods Or Eftate d* mong Subjects, we fhoifd think our Property in an ill. Condition. And do we think that GW has no.tSecur'd the Right of Kings, of His own Anointed, as much as the ^/W;r of the Meaneffc

•n r -y Feajant :

Is it not an Encouragement to 5re*/, to tell a Man All is his own he can Run away with} And that if he Steal the' Crown, he may take it for bis Pains?

If a Man Steal a Groat, is he bound to Re- fiitution, but not if he Steal a whole Kingdom? And if he is bound to make Reftitution, am I bound to affift him not- to .make Reftitution?

If this be fo only in the Cafe of Kings, then are they of all Men in the Worft Condition. But is ther any. Exception in the Holy -'crip- tures which Excludes Kings from the Common Benefit of Mankind, that they only may be In- jur d, and no Reftitution due to them ? [f not,. then, Sr. remember the Rule you' Preis fo of- ten, That we muft not be J^T/tr than the L:r,vs, nor Except or Diftinguiflj where they do not. And then you muft make a New Lavr, and a New GoJ'pel, a New Set of Morals too, for Kings only by themfelvcs, to Alter, the Na- ture of Jufticc as them, and New Lam for En- gland likewife, for they are very Tender of 'the Crown, and give it the Preference before any Subjecl to Recover its Rights. It is Strange then they fhou'd be to Rcmifs as to its Cliief- elt Right* and Hang it up as a drift for every hungry Dog to Leap at, and make it his own who can Snap it firfi; !

(23.) Your

[ io* ] (23.) Your laft Chapter beginning at p. 100' tells us to p. 1-05. That the Jews Submitted when they were Conquered.

From thence to the End is concerning the Behaviour of the Primitive Chriflians. But as to the Prefent Cafe, you have Clear'd it at the Beginning, where you fay, p. 105. " We *c have no Instance of DifpofTefTed Empe- " rors claiming againft their Rivals (except ct it be that of Maximinus Tbrax and his Son) 66 and the Empire not being Hereditary, there " could be no Claims of Heirs.

And you fay we have no certain Account how the Chriftians, in the Earlied Ages of the Church behav'd under t\>e Rival Emperors. So there is an End of that. But, p. 106. you fay, That in the 4th, 5 th, and tfth Ages We have fever at Jnftances of the Chriflians becoming Subjects to New Emperors, whilfi the Difpoffeffed Emperor wot alive. And giving two or three Inftances of this Sort Ends your Book.

To all which I fay, That he who has no Right but Pojfejfion, iofes his Right with his PoJJeJfiott.

You cannot but be fenfible that this Cafe is very Foreign to that of an Hereditary Mo- narchy. And as I cannot fee to what End it was brought, fo it wou'd be loll time to Ex- amine thefe fnfiances which make nothing to the Purpofe.

(24.) And now, Sr. upon the whole give me leave to Reafon a little freely with you. When this Topick of Succefs againft Right was firft fet up by Dr. Sherlock, as the Ground of his Conversion, it was Generally Dillik'd by the

Belt

C i°7 1

Belt Friends to the Government. No Govern' ment can Like it. For as it Sets them up to Day, it Pulls them down to Morrow, if the Weather-cock comes About. It tempts Men to Betray every Government, but makes them Stea- dy to None. This gave the Vogue to thofe Anfwcrs were wrote to Dr. Sherlock. And in- deed, Sr. the Town fays, you have added no- thing New to the Argument, only given a few more Quotations out of the Tear- Books, which Alter nothing of the Cafe. You have Re- viv'd a Difpute has been now Eighteen Years afleep, and brought People back to think, That the Government has no Right but Pojfefion, and that Wrongfully come by •, And that their Right Determines with their Pojfeffon. Which by no Means is thought any Service to the Government. And you are Referr'd back to thofe Anfwcrs wrote to Dr. Sherlock [[particu- larly, The Cafe of Allegiance to a King in Fo(fe(f- on. 1690 Dr. Sherlock V Cafe of Allegiance Confi- derd. 1691. An Anfwer to Dr. Sherlock's Cafe of Allegiance. 1 69 1. The Duty of Allegiance fettled qn its true Grounds, <5cc. 1691.3 which are as much an Anfwer to you as to him.

You fay in your Preface, p. 2. That you were very Free and Qpen in Difcourfing with as many of your Old Friends, as vrere willing to talk with you upon this Head. And fay, Could I not have folvd their Objections, to my own Satisfaction, I fnotid have flood here ', and thefe Papers, as they were never Intended for the Publick at fir ft, had never feen the Light.

Sr. I know nothing of all this Matter. But when you were refolv'd to Print, you fhou'd for the Satisfe&ion of others, have Anfwer d

thofe

[ro-8]

thole Booh of your Old Friends which arc hi %riiii, and which neither Dr. Sherlock, nor any for him, have yet Attempted to Anfwer. But, without tins, to letup his Hypothecs as a New thing, and not fo -much as to Name him, or the Anjwers had been made to him •, but Refer to the private Coiwerfation you fay you have riad with fbine Namelcfs Friends, is, Sr. by no Means batish&ory to trie Public}; :, which frill wants a Replj to'thefe Arifwers^ till which m done, ybur Work, Sr. is not over. Others fay, That if you had Intended your own Con- viction, you wou'd have fray'd a While to See •what might have beea faid -ev^n to this £ook of yours.

But Men that Write Faradexes expect not Anfwers. Cameades Wrote in Favour of In- juftice, and, another Great Man in Praiie of Folly. But the Elopements of Exuberant Wits, ~muf; not Alter the Nature of things,' and make Wrow to be Ri<rht, and Rifcht to 'be Wrong- 1 Or which is yet more Monfirow, That Wickcdn:fs by being Exceeding Wicked, that is, Accom- flif'rihg all its Defgns, every Step againft the Law of God a:id A fan, Ihon'd by that, become Perfectly Hegat, and Right too in 'the Sight of God, and Bind our Confcien-ce to Submit to. it, and Support it agaiuit what we own was No- torious Right and Truth! And which, bec.ujfe it is once Overpower d, mult never be AJert.ed or Defended' any.moie ! What had become of Chrift'uihity at this Rate ?

But,.Sr, vou- have all the Moral World too •igaihft you in this Argument. You know vvhat . a::

[ *°9 J

sn Heathen -.Pott laid, making, pretty freewith their Gods^

ViBrix Caufa Dijs placuit^ fed Ficla Catoni.

They wou'd not take the Decillon of the Gods, that Succefs cou'd give Right, But it is more Strange in Chr.ijlianity, which was to Overcome by Suffer rug.

The Mahometans Plead it in Point of Reli- gion- And why not? For what is Religion but "Right? And if the Nature of Right can. be Al- tered by Snsccfs m one thing, wiry not in a nei- ther?

The Principle of Succefs dHTolves all Notion of Right and Wrong out of the World, What Prevails is Fefi ! * Whence fome have Refolv'd all the Authority of God over us into that oi Power only, without any Regard to Jufiice. But Abraham was not ol that Opinion when he faid, Shall not the Judge of all the World do Right *

And may not I ask your little Tear Booh and a few1 Statutes^ ihould they not do Right ? They are not the Rule of Right. But are to be Judged by a Seperior £'///<?, of Reafon, Jufticc^ and the Zany of God. Some think England the Original Ot Qovemment to all the WrrUl, and that ther were //^; of Parliament before the Creation — But it rail ft be brought down, and made to Submit to thofe Rules of Government^ which God has given to all the Earth. Other- wife, it may Force my Submijfion, but can ne- ver Satisfy my Confcience. Which if you will be fo Charitable to Undertake, I delire you

v/oii'd

[ no ]

wou'd give me good Authorities out of the Hd- ly Scriptures, and let me See the Law of God in the Cafe. I will allow the Tear Booh 'to Determine whether your Cow or mine be the Trefpaffer, and who lhall make up the Fence. But ii they talk of the Right of the Crown, or the Nature of Government, they Exceed their Commijfwn, and what they fay is of no more Weight, than what any other Perfons lhou'd offer upon the lame Subject.

Miftake me not, as if I thought the Laws of the Land were againft me in this Matter. I hope I have made the Contrary appear, and that they are on my Side of the Queftion. But I fay, They are not the Foundation whence we are to Begin^ nor the Laft Refort neither, by which we ought to be Determin'd, as to the Nature of Government, and the Right of Crowns. That is Referv'd to the Law of Gody Whence all Governments Derive their Authori- ty, and from which only Kings do Hold.

I will Conclude with this Prayer ^ wherein I hope you will Join with me,

That God wou'd Support the Right, a"nd Re- drefs the Wrong.

And give us Grace to be Co ur agio us in His Holy Fear, and neither be Afl)am'd nor Afraid to Repent, Confefs, and Return, whenever we are Convinc'd of our Error.

SUPPLEMENT

[ I" }

SUPPLEMENT.

I Put this here by way of Supplement to what I have faid of the Confiitution, Sed. I. N- tf, 7, 8, p. 9. to p. 17. It woifd have been too- Tedious there, and an Interruption to the Thread of the Difcourfe. But I think, it Ne- ceflary as well for my own Vindication, as the Support of the Truth. To both which it will be a Conftderablfc Addition, to fee the fame things Aflerted and Juftify'd by the Learned Dr. Wake (iince Promoted to the See of Lin- coin) in his State of the Chunk and Clergy of England. Printed 1703.

(1.) In which he Aflerts, and comes fully in with Dr. Brady, That there were no Com- mons (as now Underftood) in our Parliaments till the 49 of Hen. III. nor from that time till the 18 of Edvo. k So long they were Difcon- tinued after their being firft Admitted inta Parliament. See State of the Church, p. 212. Again, p. 227. he fripports Dr. Brady in mew- ing, That Atls of Parliament were made (par- ticularly the Statutes of Wejlmhifter) and Taxes Raifed upon the whole Kingdom by the King and Lords only. And that one or more Knights for the Counties were ReturnU as the King

pleas'cL

[ H2 ]

pleas'd. And p- 230. That there were no JR'e- vrefentathes from the Cities or Burroughs in. Parliament, but that they Taxed theihfelves' feparately j as they did even after they were Summon'd to Parliament, the Communities of Counties, of Cities, and Burroughs, gave each for themfclves. And p. 231. That the Bijhopr and Clergy Taxed themfelves, without Conjun&ion with the Parliament, and fitting at different Times and Places. And p. 215. That the Cler- gy of each Diovefs being Called by their Refpe- a:ivc Bifiops, Taxed themielves in their Dioce- fan Synods, feparately from thcfe of other Die- cefes. And in the Appendix, p. 8. Num. VII. There is a Writ to the Bijlop to Tax the Cler- gy of his Diocefs. And p. 7. N. vi. There is a Writ to the Bifiop of Worcefier to pay the 2cth Part of his Goods and of all his Villains, and with it one to the Sheriff of the C6unty to Levy it, Mxnu forti, if there were Occa- iion. And the Reafon given was, becaufe other Bifwps had done the like. And the King had not time (being upon his Voyage to the Ho- ly Land) to have a particular Parli amentum vel Tratlatum vobifcum, a Parliament or Confe- rence with that Bijlwp. Of which lays the State of the Church, p. 214. concerning this Bijlwp and others in the like Cafe, All the Ceremony that the King ufed was to fend his Letters to them to acquaint them with what the others had doney and to defire them to Confent to the fame. And this was in the 54th of Hen. III. as in the Tefie of that Writ, 5 Years after the Commons were iirft let into Parliament. And none of their Confent was had or asked to this Tax. It

was

E "3 ]

was Granted by the Bifiops and Lords in Parliament, upon- their own Lands, and the Lands of their Villains. And fuch Writs or Letter* from the King were fent it feems to thofe who were abfent, to have their Con- fent likewife. Which was a different Method from our Atls of Parliament now.

i^he King did. Parliament or Confer with the BifJwps and Lords. But when the Commons were firft Summoned to this Parliament or Colloquium (as then called) it was not that they fhou'd have any Share or Part in the Collo- quium, or to Advife at all in it, but barely to Confent to what the Bifiops and Lords had done, as the words of the Writ runs, ad Con- fent iendum, not to Advife, as it is in the Writ to the Lords, and to have a Colloquium with the King. And the Reafon of this feems to have been a Meer Politique, that they might Pay their Money the more freely, having firit Confenhd to it. But now it is Grown into a Bight, and the Sole Bight of the Commons to give Money, and the Lords cannot Tax even Themfelves, for all Money Bills muft now Pro- ceed from the Commons, and the Lords only Confent, but can Alter Nothing, as it was with the Commons formerly. And every Speech now from the Throne, when it comes to the Money part, Addrefies only to the Commons*

This of bringing the Comm ns firit to Con,- fent, was the Moderation of the Lor fa, to the End, i fuppofe, that the Commons might not Grudge at the Taxes lay'd on them by the Lads. But it has far'd with them as with other l'o~ lithians, who fee not whither things will Run, I *nd

[ "4]

and often have their own Cannon turn'd up- on them. I will give you the Words of the State of the Church, that I may not Miftake. There p. 227. you will find as follows.

" The King (Edw. I.) being Return'd— — " IlTued his Writs for a Parliament to Meet. " The Perfons called were here again totius cc Regni Magnates: The Annals of Waverly *' Style it a Parliament of all the Lords, and " Mention not any other as either CalPd, or " Coming to it.

" In the 1 8th of this King, after Eafter7 a " famous Parliament was held at Weftminfter, " in which the Third Statute of Weftminfter " was made*, and an Explication npon the *' Statute of Quo Warranto, as Hemingford Re- tc lates it. The Records agree with this Ac- ct count, and will Inform Us who were Called " to it, and Afted in it.

" For the Statute of Wefiminfter, it is faid, u that the King, ad Inftantiam Magnatum Regni tc fui, Granted, Provided andEftablLnYd. c. i. <c In that de Quo Warranto, That the King " of his fpecial Grace and AfFe&ion, towards <c his Prelates, Earls, Barons, and Ctteros de 4t Regno fuo, Granted, &c. But there is ano- tc ther Record that will fpeak more plainly *' in this Cafe. For on the firft of June, the lt Prelates, Earls, Barons and Great Men of the a Kingdom, with one Aflent in full Parlia- 4t mem, grated to the King for Themfehes c' and the whole Community of the Kingdom-. *c forty Shillings of every Knights Fee tor an tl Aid to Marry his Eldeft Daughter, as the u Words of the Re 11 arc,

This

fee

u

[ »5 3

" This Parliament firlt met after Hilary-, a Anno 1289. It Re-AfTembled after Ea&er? cc and on the firlt of $ww, Granted the Aid " I before Mentioned. Upon the 14th 01 tc June, at the Requeft of the Lords, and " Great Men there AfTembled, the King iflued tc out Writs to the Sheriffs of every Conwy, to " order Two or 7W to be Chofen for their " Refpe&ive Counties, and Returned up to " this Parliament, (which was then fitting, and had fat fo long, and done fo much Bulinefs without them) within three Weeks after the Feaft of St. John Baft iff, July the 15th. " Before they came, the King, with his Lords " only, made the Statutes of Wefiminftcr be- il. fore Mentioned -, which were palled in Par- " liament the xvth. of St. jfo/w Baptift, that is " to fay, July 8th. The A«^kj being thus *' Summoned for the feveral Counties, were " Returned accordingly, from fome Th>ce0 " from others Two, as the Sheriffs thought u fit ; Which mews this Matter not to have ** been yet come to any Certain Eftabliffi- " ment. They were defign'd to Reprefent <c all the Military Tenants of the Counties in " Capite; and they did accordingly Ccnfent " for them to a xvth then Granted* per u Archiepifcopos, &C by the Archbifiops, Bifiops, " Abbots", Priors, Earls, Barons, et Omnes Alios " de Regno-, the very Style that was ufed " when the Body of thofe who held by u Military Service were Perfonally Summon- " ed, according to the Charter of King " JOHN.

I 2 tb*

This Charter is fet down p. 191. and ex- preily Limits the Commons who were to fit in Parliament to t.hofe only who Held of the King in Capite. And thefe were to be Summon- ed by the Sheriffs, (as the Peers were by the King's Letters) not Chofen by the People. For after Naming the Lords, who were to be Summon'd Singillatim, per Literas Noftras, it is added, Et pneteria faciemus Submoneri in Gene- rali per vice Comites et Ballivos noftros, omnes alios qui in Capite tenent de Nobis. This fhews what the Omnes alios was, who, befides the Lords, then fat in Parliament.

(II.) Thefe Authorities are DenyM. by none, nor have been Attack'd by any but James Tyrrell Efq , in a long Appendix to the Second Part of his third Volume of the General Hijtory of England, Piinted 1704. Wherein he At- tempts to Anfwer what Sr. Henry Spelman, Mr. Prynne, Dr. Brady and Dr. Wake have Wrote upon this Subjed. He owns they have Quoted the Records truly. Only he wou'd put another Senfe upon them. But I mult take Notice.

1. That he is not fo Pofitive to fay the Senfe he puts upon them, is the True Senfe of them ; but that it May be fo, and If it be fo, and Perhaps is fo.

2. Thence he Concludes, That Perhaps by the Words Vrincipes, Proceres, Magnates, Optimates, JSarones, &cn Not only the Lords, but the Com- mons too May fa Meant* And he mult Mean

it

[ »7 ]

it as Low as thofe very Poor Commons who have Votes in the Elections for Parliament- Men at this Day. Elfe he cannot Maintain Our Prefent ConfiittiPion of Parliaments to be the fame it was from the Beginning ; which is the Point he Labours. And it will take more than a Perhaps to (hew, That thefe were Called the Princes, the Great Men, and Barons, and Lords of the Nation! If he can Confound Words at that Rate, his Hiftory will not be very Intelligible.

But the Method he takes is to go to Lit- tleton's Dictionary, which he Quotes p. 77. and there tells us how many ways thefe words are Engliped. That Principes lignifies not only Princes by Birth, but Chief or Principal Gover- nors or Magiftratei. And if you mould ask, where? He Explains it, in any City, Nation, or Kingdom. Then (fays he) for the Word PROCERES, it is Rendered in our Dictionaries (and puts Littletons DiPionary on the Margin J the Heads or Principal Men of any City or Com- monwealth. And fo for the Words Optimates and Magnates, which (fays he) Signifies not only Noble Men, but fuch Chief and Principal Men as before. And if he will look the Word Nvbilis, he will find in his Dictionary that it fignifies not only Noble by Birth or Creation, but Excellent, Famous, Remarkable. And alfo a Noble, Six Shillings and Eight pence. And then we fhall find a Great many Nobles in England! And yet many of our Ele^.ors not Worth One. And who cannot come in under the Lowell Senfe that any of our Dictionaries give of Principes, Proctres, &C* But Ml*. 7>! rdl I 3 Supply s

[ »8]

Supplys this with a Suppofe, and fays ibid. Which Terms may (/ Suppofe ) as well take in the Knights Citizens and Bitrgeffes, as the Inferior Tenants in Capite. But what fignifies all this ? For the Greateft Part of our Elettors are no Tenants in Capite at all, neither Superior nor Inferior. What a Pity it is fo much Pains fhou'd be taken to fo little Purpofe !

3. J3ut he has a Reafon which Forces him to all this, and he begins his appendix with it, p. 2. where he fays, But how they (the Under -Ten ants to the Tenants in Capite) could be fo Obliged (that is, to have Taxes lay'd upon them) Vnlefs they were fome way or other Reprefented, J can by no Means Under ft and. This is a Foundation Maxim with the Orators for the Tower of the People, and their being the Original of Government, That None can be Taxed but by his own Confent. And rather than Depart from this, they will by Princes Mean Coblers, and leave no Word of any Signi- fication ! But this it felf will not do it. For how do they Confent who have no Votes in the Election of Parliament- Men ? And thefe are much the Major Number of the People. And fome of them too the molt Coniiderable for Riches, and moil Beneficial to theNation in Trade, &C I3ut if they have not a Freehold of Forty Shillings a Year, they have no Votes. And all they have may be Given away by Men who Clean their Shoes !

As to the Imply'd Property and Authority of ihofe who have the Terra Ftrma, do's this Reach only to the Ter-Tenants, or thofe who

Labour

Labour the Ground with their own Hands ? But if the Land-Lords have a Superior Proper- ty, the King is the Supreme Land-Lord, for all the Lands are Held of Him, and are Forfeita- ble to Him. Yet thefe Men who Cry out againft the King having Power to Tax thofe who Hold of Him, give to Freeholders of Forty Shillings a Year a Power to Tax thofe who Hold of them, and all the Reft of the Na- tion too who do not Hold of them ! And this, by I know not what, Imply'd Confent, when ther is no Confent at all Given. But, Mr. Tyrrell, the People are Tax'd not by their own Confent, but by thofe who have Authority to Tax them. And it is not a Farthing Mat- ter whether they^ Confent or not. Ther are many in England wou'd not pay Taxes now if they cou'd Help it. And if they were to be Polled, wou'd Perhaps be the Major Part of the Nation.

And is not the Major Part of the People the Original of Government f And muft not the Freeholders derive their Authority from Them ? How elfe came they by it ? You muft mew then When and How the People did Impower the Freeholders to Vote for Them. And that they Limited it to Freeholds of fuch a Value, and Excluded all the Others. And may not the People Recall that Power they gave to the Freeholders, if they Abufe it ; as well as what they Entrufted with Kings and Parliaments ?

Sir, 1 find you are at a Puzzle whether

Kings or Parliaments were fir ft ? For you fay

-in your Preface to the Appendix, p. 2. That

Great Council muft have been before, or at haft

I 4 as

D 120 3

as Ancient as Kings themfelves. But why are you in this Doubt? For Kings and Parliaments did not Start out of the Ground both toge- ther. One mull be before the Other. Be- caufe one mult Make the Other. Either Kb.gs made Parliaments, or Parliaments made Kings. If the latter, then you are to fhew that Parliament which made the firft King, And tell us by whom it was Called, and by whofe Authority it Sat. &c.

I intend not to go over Mr. TyrrelVs Ap- pendix, which is a large Book by it felf. But all his Anfwers being' the fame, and with- in the Topicks I have before fet down, I will give the Reader one Inftance or two, by which he will k>iow all the Reft, as much as if had Read them all.

At the end of p. 13. he comes to An- fwer an Authority produc'd by Dr. Brady*, wheie a Tax was Granted to the King by the Magnates and Fideles. Which / fuppofe, Fays he, May be better urged to the Contra-* 17. Then p.. 14. he plays upon the Word Fideles, and Proves that the Meaneft of the Commoners, thofe under the Tenants in Ca- pite, May be Comprehended under the Sig- nification of this Word, for may not a Mean Mail "be Faithful? And for this he Quotes the Gloffary, that Fideles Signifies Faithful. But then he brings to his Aid Water of Co- ventiy the Hiftorian, who Reckons the Mem- ber* of this Parliament to Confift of the Archi- efifcopi, Fpifcop Abbates, et Procercs Anglit. And with the Help of / fuppofe, he finds the Inferior Commons here too. For, fays he,

'< Ua-

[1*1 ]

tC Under the General word Proceres in this " Hiftorian, and Fideles in the Record, / fuf- " pofe not only Tenants in Capite to be here cc Underftood, but their inferior Tenants, or " their Reprefentatives, are Comprehen- " ded.

Then he goes on in the fame Page to ano- ther Jnflance brought by Dr. Brady in the 8th. of Hen. III. where a Carucage of two Shillings of every Plough throughout all England, was given to the King in Parliament, where were A fie m bled the Archbijlwps, Biflwps, Earls, Barons, and Multis aliis. u From whence " (fays be) the Do&or Colle&s, that the Alii ct Multi above Mentioned, were the Abbots, " Priors, and other Lay-Tenants in Capitei " But / think we* May well underftand thefe tc Words to Extend not only to the Te- " nants in Capite, but to other inferior Te- cc nants, by whatsoever free Service, who were M there by their Reprefentatives. For how tC otherwise ( as I faid before ) could a gene- tc ral Carucage upon all the Plough-Lands cc throughout England be Legally impofed ? u Since the great Prelates, Earls, Barons, and " Tenants in Capite cou'd never Reprefent u the Tenants of fuch Abbots and Priors, who u held their Lands in Frank-Almoign, and " not in Capite, and fo were not Summoned " to this Parliament ; as alfo all Tenants in " Ancient Demefne and by Socage and Burgage " Tenures; and laftly, Tenants by Petty Ser- " jeantry, and thofe who held Lands of the - u King by Ftc Farm, paying a Certain Rent : u All which, together with their under-Te-

nants,

[ 122 ]

cu nants, could never be Taxed or Rated by " thofe who were none of their Chief Lords*, " fince upon thefe Gentlemens Principles, w whom we Oppofe, the only Reafon why cc the Tenants in Capite could grant Taxes " for their Under-Tenants, was, that liold- " ing their Lands of them in Fee, they did <c in fome manner Reprefent them, and were tc Bound by their Afts: They could never " Reprefcnt or Difpofe of the Eftates of thofe <c who had no fuch Relation •, and therefore " by thefe Multi Alii muft be meant other u than meer Tenants in Capite.

Thus Mr. Tyrrell. I have given his Words at Large, that he may not fay I miftook his .Meaning. All his Argument is Built upon Re^refeming, that none can be Taxed but by their Reprefent atinjes. Whereas he muft know, That the far Greateft Part of the People of England have no Votes in the Choice of Parlia- ment-Men^ and fo are not Reprefented at all. Yet they are Taxed.

And as for his faying, That People are in fome Manner Represented by thofe of whom they hold in Fee. 1 wou'd be Glad to know his Meaning. Do's every Man of whom I hold a piece of Land in Fee Reprefent me, and am 1 Bound by his Atls, fo that he may Difpofe of me, my Life and Eftate at his Pleafure ? If that be true, then the King may Difpofe of all the Men in the Nation who have any Land in Fee, becaufe they all Hold of Him, and Ke Represents them all.

And if the Multi AUi here, and the Omnes Alii in the Charter of King John^ mean All

thofe

[ i*3l

thofe who are Taxed, befides the Tenants in Capite, it will make a large Army of our Parlia- ment ! And if you will go to the Dictionary to know what Omnes Alii Means, it will tell you that it fignifies All others, and fo you may bring in every Man in the Nation ! But can any thing be Plainer to fhew what is meant by All Others here than this Charter exprefles it, when it fays, All Others who hold of Vs in Capite? Yet Mr. Tyrrell will not have it fo, but in this fame place, p. 15. he Quotes Dr. Wake's State of the Church, and the lame Page of it where this Charter is Inferted, p. 191. And Difputes againft it for this Reafon, be- caufe (fays he, very Refpe&fully of the Do&or) ** Had he been a little better Verfed in our " Records, he would have found that under u Magnates, the Knights of Shires, called Grantz, " de Countees in French, are often Compre- " hended, as well as the Earls and Barons. No doubt ther are Great Men among the Commoners. And the Knights of Shires were then the Grantz, or Great Men of the County. But what is this to the pooj> Creatures that Vote in our Eletlions, to the Tag Rag and Bob-Tail Shouting in Tut tie- Fie Ids ? You muft make all thefe Grantz, too, to find a Precedent for them in our Records.

But ther is part of the Cafe yet behind. As this Parliament gave a Carucage to the King, fo He granted to His Great Men a Scutage, viz. of every Knights Fee, two Marks Ster- ling. To which Mr. Tyrrell fays, ibid. p. 15. . " That it had nothing to do with this Tax, " neither did it extend to all the Sub-Te-

" nants

[ 124 ]

u nants by Military Service, but only to fuch ct of them as had been fpared from performing cc their Services at the Siege of Bedford-Caftle^ <c the King by his Prerogative, granted the cc Lords Writs or Warrants to receive Service " from all fuch Tenants proportionable to <c the Time their Lords had been in the c< King's Service, fometimes one Mark, fome- tc times two or three, as Dr. Brady acknow- " ledges.

This Mr. Tyrrell thought an Anfwer to Dr. Brady. But whither has he brought himfelf, to fay, That the King by his Prerogative may Tax the People, or fuch of them as He pleafes ?

I fuppofe the Reader will Excufe me not to go further with Mr. Tyrrell. He is all of a Piece. But it wou'd not have been Fair to Conceal the Strength of the Objections made againft our Confiitution, which Mr. Tyrrell has taken great Pains not to Underftand.

Adver-

Advertifement.

Concerning the Benefit the Government receives by Ja- cobite Converts.

IN all Revolutions ther have ever been Diffatisffd perfons. And no Change of Principles becomes Univerfal at the Firft. It muft take Time and Patience to Wear out old Prejudices. And it is Natural to give Reafons for ones Change, that he may not feem ByalTed by Temporal Intereft, when he go's to the Stronger Side.

Of this fort we have had but Two fince the Revolution, Dr. Sherlock, and now Mr. Htgden. The Firji Perplex'd the Caufe, and Shook the Principles of

the

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Advertifcmcnt.

Let Us have no more of thefe ( verts, at leaft no more of their / fins. But if they will come in, them come Modeftly without R

The Jews comparted Sea and Lam make Profelytes^ But they had a Mdj Not to Trull a Convert to the third ( neration. For they made him Twofold more than them 111 ves.

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FINIS.

Advertifement

the Revolutiony nor .has the Latter come up to them. And both have given Oo cafion for more Objections againft the Efiablijhment than We heard from the Jacobites before.

Mr. Hoadly has long Purfued the Lord Bifhop of Exeter for Affuring the World (as he fays) that her Majeft/s Title is on- ly that] of a Successful Vfurpation. Which he wou'd draw as a Confequence from his Lordfhip's Principle of Non-Refijlance. But Mr. Htgden, without the Trouble of Confequences, openly Maintaines the Tittle of a Succefsful Vfurpation^ and gives her Majejiy no other Right or Title what- foever. And to Prove this upon her, is the Bufinefs of his Book.

This is all fhe Gets by the Jacobite Converts! They Expofe her to Excufe themfelves. It is Impofible for a Jacobite to be a real Convert ! Something ftill Sticks with them, and they cannot Help it 1 They are only Dangerous when they play the Hypocrite. And they think the Government ought to Thank them for Proving it an Vfurpation!

Let

Advertifement.

Let Us have no more of thefe Con- verts, at leaft no more of their Rea- fons. But if they will come in, let them come Modeftly without Reafon I

The Jews compafTed Sea and Land to make Profelj/tesy But they had a Maxim, Not to Truft a Convert to the third Ge- neration. For they made him Twofold more than themfelves-

FINIS.

->-*'

THE

DUTY

0 F

Praying for our S U PE R I O R S

CONSIDER'D,

1 N

REMARKS

O N Mr. TatrickCockburn's Printed SERMON.1

Prated in th£ Year MDCCXXVIIL

( 3 )

THE

DUTY

O F

Praying for our SUPERIORS

CONSIDER'D,

I N

REMARKS on Mr. (Patrick CockhurnU Printed SERMON.

MR. Cock-burn takes his Text from St. tPdftt, i Itm. ii. 2. where he bids us pray for Kings and all that are in Authority, that we may lead a quiet and peaceable Life, in all Godli~ Kefs and Honejiy.

Thefe Words [Kings'] and [Authority] might Teem to imply fbmething of a rightful Title ; but our Author, not being fo fond of the Terms in his Text, does in his Title- Page, and in the mod remarkable Part of his Sermon, pre- fer the Word [Govemours] which we know is often ufed for all Thofe who exercile Dominion, let their Title be whac it will. And accordingly hisDefign, it feems,isto prove,that we ought to pray for all Sorts of actual Govemours, whe- ther their Authority be good or not.

Here, if he appeals to the Original, and (ays that the Greek Text, ^di'Tav %$ lv "CtSpoy* . m ■ , bears net [all that are in Authority] but [all that are in Eminence] we (hall not now difpute it with him ; but fa] iy there is an unjuft and criminal Eminence, which St. Tatil never meant that

A a we

( 4 )

we fhould commend or blefs. And it being impoffibie to prevent -all Ambiguity in Words, we ought to give them the faireft Interpretation we can.

Mr. Ccckburu prays daily for all that travel by Land or by Water, and yet would be (hy to pray by Name for High- waymen and Pirates: And ,if he were to ufe a Form for them, he would no doubt pray that they would repent and ref tore, and not that they might proiper and go on. For tho' we cannot refufe abfolutely to pray for the molt unjuft Man living, yet we ought to lofe all, rather than pray that he may be fupported in his Injuftice, or at any Rate continue to be urjjoit.

Suppoling a Robber to have over-run the Country, and that fo entirely, as to make us all pay him a Tax for his Protection, fuch as we call here in Scotland, Black-Mail C wherein he would make good to us Mr. Cockbum's Words, Pag. 22, 25. " That tho' Governours may not always ftudy " the'Eafe and Plenty of their People, yet vhey muft ftudy tc to keep them in Peace and Quietnefs " ) Would it be therefore lawful for us to ufe fuch a Prayer for him as this, 'That ixe and all his Subjefls, duly confidering ivhoje Au- thority he hath, may faithfully ferve, honour, and humbly obey him, in and for God ? And yet this Author would perfwade us, that we may ufe all the Forms in the Englifi Liturgy for any Governours, be their Title what it will.

And here, becaufe iie finds Teace*, Godlinefs, and Honefiy, in the fame Text with Kings and thofe in Authority, he feems to think that thefe Blefiings have fuch a neceflary- Connexion with Governours of all Kinds, that-we can hard- ly wiih them heartily, but at the fame Time we mult pray for all Thofe who actually govern us. He would have us believe that every Government encourages Godlinefs and Honcfy; and is not fenfible that there may be fuch a violenc and unrighteous Sort of Government, as that there fhall be no true 'Peace while it lafts. And yet, in this, all Men are not of his Mind. However, cannot we pray for Godlinefs , tho' it mould bring us no Gain ; and for Honefiy, even tho' it fhould bring Hazard and Ridicule ? And, allowing Teres to be ever defireable, is it the worfe for having Righteouf- nefs along with it ?

But

( * )

But to return. According to this Author, we mufr pray lor Unlawful Governours, if they have got the Govern- jnent ; but not for the Lawful, if they have loft it. And he even thinks it an abfurd Thing to call One our Gover- nor, if he does not actually govern us; fo that, if the King is taken Prisoner, or banifhed by Rebels, our Allegi- ance to him is diflblved. And yet the Law reckons that LAarles I reignea even when in Prif n, and Charles II when in Bamfhment; tho', befides his Banifhment, there was a Price let upon his Head, and he was abjured This our Authorvery well knows, and yet he is confident that fj ? not ad:ual]y govern us, is not to be called or coniidered as our Governour. According to him then the moft r ghtful King, if difpofieis'd, is plainly no ionaer our Governour. G

And now all Difputes about Government may be abridg- ed, and a very knotty Controverfy ended ; for we need not conlult our Conscience, but our outward Senfes, lince it is the Event and not the Merit of the Caufe, it is Succefs and not J uince, that mult determine us.

Tor Mr. Cockiwn's Scheme at Bottom (tho' gilded over n otner Words) is. That <ft s &&? and that

Right without Tojfeffion is good for nothing Here I ap- peal to every Man's Confcience, whether this be an honpur- ibJe Principle or at all tolerable in private Life > I ask alfo, Whether it does not lubveit all Principles, and refolve all nto Fear and Force? If we will ehus plav faft and loo'e vith all Governments, and recognize all Titles, fair or foul rialJ we not unavoidably entangle ourfelves in ContradicV- >ns, and call Good Evil, and Evil Good? Solomon fays hrov. xxiv. 21. My Son, fear thou the LORD and the yng and meddle not with them that are 7 wen to Chance • 5ut, by this new Dotfrine, we muu fa ike in w ith ail Chin- es and Cnances, and lubiift by Inconfiitency itfeif.

We are not bid (fays this Author, p. 3i.) to pray for thole as our Governors, who fhould govern us, but for thole who do govern us. » With him, it feerns, Prote- tion and Allegiance are reciprocal, and we are to pay no )uty where we can have no Benefit. 'Page 3 z « »Tis they who govern us ("fays he) who muff maintain the Peace lecure our Civil Rights, Liberties and Properties. They'

A 3 (f wha

( 6 )

<c who do not govern usj can do none of all thefe Things Cc to us ; They can neither procure us Good, nor fecure (c us from Harm. " Are we then to meafure our Duty by our Intereft ? and are we bound to no Obedience but what is mercenary ? This is ftrange Doctrine in a Sermon, efpe- cially fince the Preacher elfewherc (p. 13V) would have us <( purged from all Selfifhnefs, " and obferves, (p. 29.) <c That, in Matters of Duty, we ought to take efpecial {C Care that we be not milled by our Intereft '; That the tc Duty of Juftice often croiTes our Intereft, which we might cc advance by fecret Fraud, Theft, or Robbery." And then asks, cc Is cur Intereft then to govern us in this Cafe, or is ts God's Word to be our Rule ? "

But now we muft ccnftder fome of Mr. Ccck&WTz's ftrong- eft Arguments, that we may fee how his Doctrine is fup- ported.

(c We are not bid (fays he, p. 51.) to pray for thofe tc who fhould govern us, but for thofe who do govern us tc - For if they who fome think fhould govern them,

fC did acrunHy govern them, others 2gain would think they <e ought not, and fo refufe to pray for their actual Gover- fC nours,and chufe to pray for thofe whom they efteemed to <c have the beft Right ; and fo one Party or other wculd cc perpetually neglect or refufe what we all muft acknow- cc ledge to be our Duty to our Governours, and our own cc Advantage. "

Thus the RoyalHts refufed to pray for Cmmvel as their Governour, even when he actually governed them ; and the Covenanters refufed to pray for Charles II. even after his Reftoration. But Mr. Cockbitm thinks it fo necefTary to pray for all Sorts of Governours,that he makes it a Duty to pray even for Ufurpers : And,fuppoftng him to have lived in thofe Times, in order to make the Covenanters pray for the King againft the Time he fhould be reftored, he himfelf du- ring the Ufurpation will pray for Cromixely tho' unluckily, in this Cafe, if his Prayers are heard, we fhall never fee a Reftoration : For he is obliged to pray for Succefs not only to Oliver > but alfo to Richard 3 and the reft of the Pro- tectoral Family.

But

( 7 )

But here our Author will complain that thcfe Inftances are invidious, and he will not defend an Ufurpation, if it is expired : For he argues only for prefent and actual Gover- nburs : And the Force of the Argument lies here., That where there are Two Rivals for the Crown, it is not eafy to know who has the Right; and therefore we mult, pray for him who is in Pofleffion.

Is it then fo very hard to know what is the Conftitution of our Country, and whether a Kingdom, for Inftance, is Elective or Hereditary ? to know, in an Elective King- dom, who has the Majority ; or who is the nest Heir, in an Hereditary One ? If this be the Cafe, how much worfe is the Fate of Kings, than that of the loweft of their Sub- jects 1 The Right of Subjects is afcertained by the Laws, but that of Kings (it feems) is not ; and yet, by our Law, the King is considered as the Fountain of Property and Au- thority. We can all judge when a private Man feizes his Neighbour's Eftate, but not (it feems) when the Kingdom is invaded by a Foreigner : We all know when a private Fa- mily is forfeited by the Grown, but not when a King is for- feited by his Subjects.* For what if it fhould be Forty Years fince any fuch Thing happened, muft, we go and enquire fo far backward ? We muft therefore always in a Difpute about the Crown, pray for the fortunate Competitor, and againft the unfortunate One, tho5 injured. We are to pray for the actual Governour, whether juftly fo or not, that he may get the ViEiory over all his Enemies.

To abate the Odium of this Doctrine, Mr. Ccckbirm has Recourfe to Scripture, and would fain produce fome Texts for it. And (p. 6, 7.) he inftances particularly in the Cafe of paying Tribute to Cafar3 how our Saviour, finding defer in Pofteffion of the Country, and having feen the Tribute- Money, allowed of it, faying, Rcr.icr into Cxlar the T'hings that are CxfarV, Matth. xxii. 16, &c.

Here then, firit of all, he is defired to tell us who was Ccefar's Competitor, or who elfe claimed that Tribute but C<efar ? It is true, the Romans, in whofe Right Ccffar claimed, had no Right but that of Conqueit; but then that Conqueit had been pretty fully eitablifhed and fubmitted to, and it was iuch as molt of the known World then lay un- der. And for one Nation., after a reafonablc Defence, to

A 4 fub^

( g )

fubnut to another that is an Hundred Times (tronger than itfelf is neither reckoned ihameful nor unlawful, while they furrender only their own Right, and not that of another, who has juft "Right to their Allegiance ; efpecially if all that is required be but a paflive Acknowledgment, fuch as Tri- bute, which may be paid for Wrath's Sake, even where One cannot in Corifcience make an exprefs and forma Recogni- tion, or pray for Succefs to the Conqueror, which of ail Recognitions is the ftrongeft.

Our Author obferves indeed, that Cafar was a Foreigner, and that the Kingdom was entailed on the Houfe of 2) avid. « The feus thought it unlawful (fays he,/. 6.) to fubnut t< to a foreign Power] becanfe God had commanded them in « the Law, that when they chofe a King, He fiould be " One from among Their Brethren, and not a Stranger. But, tho' God had commanded his People not to chuie a Foreigner, had he therefore forbid them, where tney ihould have no Choice, to iubmit to fuch a foreign Power, as was, in Fired, irrefiftible ? For tho' it is not natural to chuie a Foreigner, yet One may fubmit to him where no third 1 er- fon is injured. Even Herod, who at that Time governed the fiats under Cafar, was a Foreigner, tho a Proielyte : And we fhall quickly fee that the Scruple of the Jews was of another Nature. ,

As to the Houfe of 'David, our Author knows that they had not claimed the Crown for federal Ages ; that the Pro- rrife made to that Houfe, related to the Spiritual Kingdom et'&zMegat,: And yet, when 'Pilau ? would have decla- red the true Mefjiah to be King of the Jews, the Chief Priefts anfwered/'« e have no King but Cas ar, John xix. i < . He knows alfo, that the Meffiab, when the People would have made Him a King, hid Himfelf, gohny% 15. and when Pilate examined Him concerning His Title, tie an- fwered, My Kingdom is not of this World. ,

Since Cafar then governed the Jews without a Rival, it will be asked, why any fcruoled to pay him Tribute ? And here we fhall not dare to offer any Expofition of our own, but have Recourfe to that of the Ancients.

They (how us, that it was the <Phanfees chiefly who thus krupled to pay Tribute, as we find it was their &ifam who asked our Saviour the Quezon; for as to tne Hero*-

gm f who came with them) they were the very Perfons who Srfted that Tribute, by the Command of Herod. But vJheTein now was the Scruple of the Vhanfees founded, ha thy could not pay Tribute to »? Truly in tnis, That they were come fuch a Length in Refinement in Reli- gion that chev doubted whether it was confident with their Section to be fubject to earthly Princes *| at leaft if hey mult be fubject to Hmd (who was of their own Reh- rion) vet thev pretended it would be an In.uftice done to Sob himfelf, if the People of GOD ftiould be fubjeCi to an Idolater, fuch as C<efttr. ra

And vet our Saviour, feeing no Injufhce nor Inconfiften- cy in the Matter, bid them render onto£4* what was Cefrrh and unto GOD what was GOD s.

fhis'is the Account given us by Or»i M, by St. £ yta, (*•), mdSt,Cbrtfopm (c), and alfo, after them^by

* Thn'thofe who refufed abfolutely to acknowledge any earthly wJc leKcMcdGaniws, from Jiudas of Galilee , having however , ncar'Rclemblance with the ^arifees^ ^ ^. ^ ^ fi 2

, * T„«wi urnnriam habentes converfationem ex lege, extraneam ab

rn.ei

tohefcmdm Greek) I few* «/fy copied the Words as they are to U had in the Latin Union, by Alcenfius, Paris, 151--

tto Pharifxis qui fibi aj> plaudebant de juftitia, dicentibui, non debere ( }.„r?S ^.ii decinu/iblveret & primitiva aaret, humams legibus

58K«te Hie"'Vm- Comment- Lib- 3' * Mattk'

(C) %t* ha fxn £*«<riv, bfyfrrus vyZs •Mirms\\'^

Wyt, y) t£ £ 0,« t50«£ Vfa, yd? £«p«w«f ™ «™

' 7 3 ' Chryfoft. Horn. 70. in Mat*;

( « )

Erafimis (d). Now, had Ccefar been asking of them any Religious Acknowledgment, as that they mould build a Temple for him, or Iwear by his Genius, they had then had good Reafon for refufing it: But, feeing what h^ asked was a Duty purely Civil, and they had nothing to object to him, as their Governour, but his Religion ; leeing aifb the Tribute-money itielf appears not to have been the old She- kel, with the Religious Reprefentations of Aaro7iys Rod and the Pot of Manna upon it, but a Coin quite different, the Impreffion on it being Cafar's Image and Superfcription ; Could there be any Thing more clear than that as they were to render unto GOD what was GOD's, fo they were to render unto C<efar what was Ccefar's ? And is it not alfo clear, that as we Men were created in the Image of GOD, but hold our Temporal Poileflions of the Prince, we ought therefore to give GOD the Worfhip of our Heart, and our Prince the Tribute of our Fortune (e) ? We fee now, that the Scruple of the Pharifees was rather enthufiaftical than rational, and much a-kin to thofe Queitions in our Days, Can Covenanters be fubject to an uncovenanted King, or Proteftants be fubjecl: to a Papift ? And tho' the 'Pharifees were in ar Error, we might think that the Pretence of Re- ligion would have excufed them, and yet" we find our Savi- our called them Hypocrites.

We have now done with Mr. Cockbum's Inflance about the paying Tribute to Ccefar : "But another of his Texts, Page 16. (which is alfo much in the Mouth of all thofe of his Opinion) is that of St. Paul to the Romans, Rom. xiii. 1. There is no Po-iver but of God; the Powers that be, are ordered, or fet in Order of God. The Sermon quotes no

fur-

(d) Quibufdam indignum videbatur, populum Deo facrum pendere tributum Principibus idololatris. Arque hac in fententia erant qui Pharifeis adh^rebant. * —

Si pronunciaflet die reddendum tributum, jam calumniarentur ilium ridulari Principibus impiis, minus faventem Religioni Divinse.

Erafm. Paraph: in isov. Tejiam. ad locum.

(e) Rcddite, ait, qux. funt Ca&faris Csefari, & qux. funt Dei Deo, id eft, imaginem CiESARIS CiESARl, quse in nummo eft; 8c imagi- ncm DEI DEO, qux in nomine eft j ut C.ESARI quidem pecuniam VCddas, DEO temetipfum.

TertuJl de Idokhtna.

( » )

f farther, but St. Paul afterwards adds, He therefore that rs~ Xfijteth the 'Power, refijteth the Ordinance of God; and they i that refift, pall receive to themfehei 'Damnatimi.

If this then be the Cafe abfolutely as to all the Powers < -that be, it muft have been a damnable Sin to refill Cromwel: I And if our Author thinks it was, let him fpeak it out plain- ly ; but if he does not, then he muft contefs that St. 'Paul defigns only to fpeak of Lawful Pffivers ; Lawful, I mean,, according to the known Conftitution of every Country re- spectively," and not abfolutely of all Powers whatfoever, tho' contrary to the Law and Conftitution. It is true, the Jinglip Word [P*&wer] is ambiguous, and Signifies 'Domi- nion, however acquired ; but in the Original the Word is &xcnc>.3 [Authority] which Signifies properly a rightful Power. Accordingly St. Chryfofc?ri, explaining this Text (f , obferves, That Government taken in general is indeed from GOD, but fo is not every Governour : even as Mar- riage (fays he) is inftituted by GOD, but fo is not every Sort of Cohabitation with a Woman. As therefore all Pro- perty is from GOD, but not if it be obtained by Theft ; and as the Union of rMan and Wife is from GOD, but not if it be founded in Adultery : So neither is the Relation between a Governour and thofe governed by him from GOD, if it be founded in Ufurpation ; becaufe, tho' all juft Poileflion be from God, yet unjuft Pofleffion is not.

And

(/). Ov yap \?iv $fy<ria, omh, <h /-oj \mm <ra 0«?. T< \iyenl rrrcis h kpyjuv «to th 0*a KiyeipoTovnTcu; lv --nnv Kiyu, pttsiy. v<Ai -arspi 7uv Kadi-KXTov dpyovruv o k'oy©- (xot vvZy aWa mp} dvrk <ry Tfdyy.ciT©-. tv yap dpyct-s eivaj, k. tk? uh apyjiv, t£s Si «p^?<S$, km [j.r\£i ciTzhuf kcu eivi<Pr,v 2.TCLVTCL <?eps^, a><mzp KU~

[J.&T(yV TH<^2 XotX,«(T£ TUf fmfs.UV ^ipiAyOfAiVUUy T1JJ n 0«a; COty'lCti

ioyov &va.i $\)fxi. &tcL Tint) vk ttTtv, ov yip lr/y apyav> « f/ri •t&ro 0is, a\ax inti TV ir ea.y ix.a.rQ)- (Picthkysjai hky&v, ov yap \<?iv jfyo-iet, & fj.ii vara 0sk. Ai <N strcu $po-'icu -&n> 0£k inety fj.kvcu eio-'iv. ti'vra kcu otclv hiyn ti< itoqIs, tn <£ty Ki/pu df- fMo^iTou ivJ\ex yvvii, txto xiye., oti -riv yd^ov o Qibt l&Qt»o~evt

ivyj OTI iKOSOV GWloVTO. yvVtUKt" Ctl/T©" <TVV<L7TTel. kcu yap vpuu-lV <bqX\xs ivt KetKa, kcu k vofxa y&u.* ffvvioVTct? d\\nko{{ «C«I vx, ay 7W ©j« t»75 hoyio'eu/j.z^a.-

Chryfofl, Homih 23. in fy'jl. ad&omwo.

( » )

And if all, for Inftance, who have poflelTed a Throne, and been called Kings, had had their Authority from G O D, He Himfelf would not have thus complained of the Ifrae- lites, Hof. viii. 4. 'They have jet up Ki?igs, but not by Me ; They have made 'Princes , and I k/ze-w it not.

But here, Mr. Cockbum, being driven to an Extremity, would make GOD the Author of Usurpation ; a T fo hideous, that it mult, raife Horror to mention it. I lhall fet down his own Words, which ought to be read warily; for he has fo fmoothed his Expreilion, as if no Harm were to be feared; and the Reprefeniatbn is Jo artfi I, while Error is glozed over with Tru.h, that it is not eafy to unravel his Sophiftry.

He had been obferving (p. 19.) that we ought not to be carried aftray from our Duty by our Defires or Paflions ; and then, bringing home all this to the Subject of Govern- ment, he proceeds in this Manner (p. 50.)

<c How juit, or right, or necef fary our Defires or Paflions ec may feem to us in our own Eyes, they mud be all fub- " mkted to the unerring Will of the Supreme Governour, tc without whofe particular Providence and overruling Pow- rc er, no great .Revolution in any Kingdom or State ever " did, or can poilibJy happen ; nay, they mult all be re- cc nounced, if they are not agreeable to His Will, whole *'c Judgments are unlearchable, far above out of our Reach, <c tho' always juil and righteous in themfelves. He is in ee no Man's Debt, and can do no Man Injuftice. Men can- " not tye the Almighty down to their Forms, nor prefcribe fC their Laws to Him as a Rule in the Government of the cc World : For the Mojl High ruleth in the Kingdom of ec Men, and giveth it to whomfoever He will, Dan. iv. 7. " It is our Duty then to pray for thofe to whom GOD ff has given the Government of the Kingdom."

Alas ! Here is a great deal of Ambiguity in the Senfe, un- der a feeming Simplicity of Expreffion ; and we are put oft with downright Shuffling, when we looked for Plam-deal- iiig. A felfifh Unconcernednefs for Juftice is recommended under the Notion of Resignation ,• and, in order to conceal Mens Wickednefs, the Divine Providence is calumniated.

The Author says, <c No Revolution ever happened with- " out a particular Providence; " And fo it is faid in Scrip-

ture,

( *3 )

mre, Amos, iii. 6. Shall there be Jb. VIL in the City', and the Lord hath not done it ?

But now, Is there no Difference between the Evil of Sin, and of Punifhment ; between the Calamity of an Ufurpa- -tion, and the Injuftice of the Uiuiper ; between that Free- will and thole natural Faculties v. hich GOD h2S given to Man, and the wicked Ufe which Man makes of them? It is true, the Wickednefs of Man is over-ruled by GOD, and it can break out no oftner, nor proceed farther than He plea- feth. The Wicked is a Scourge in His Hand to chaftile us, but Wickednefs is ftill Wickednefs.

When 2) avid had ortended GOD, he was threatned thus, z Sam. xii. n. Behold, I will raife up Evil againji thee out oj thine own Hotife , and I will rake thy Wives be- fore thine Eyes, and give them to thy Neightour, and he pall ly with thy Wives in the Sight of the Sun. And when Abfalom verified all this, by feizing his Father's King- dom, and lying with his Concubines, Might he not have pleaded that what he did was C( by the unerring Will of tc GOD, by a particular Providence, " and even by an ex- prefs Prophecy j " 'ffiat the Mofi High ruleth in the King- <c dom of Men, and giveth it to whomfoever He will ; That {C He is in no Man's Debt, and can do no Man Injuftice ? "

This was Shimei's Reafoning, w hen he curfed 2)avid, and faid, l"he LO R2) hath delivered the Kingdom into the Hand of Abfalom thy Son ; and behold, thou art taken m thy Mifchief, because thou art a bloody Man, z Sam. xvi. 8.

Was there any Injuftice done here to 2) avid by GOD ? and yet, Was not Abfalom unjuft ? Could not the Divine Providence have been acknowledged in thisRevoiution,and yet Abfalom's Impiety abhorred ? And whether were the People of Jertifalem at that Time to have prayed for Da- vid their difpoflefs'd King, or for Abfalom their actual Go- vernour ?

But perhaps it will be faid, This was not a thorow Set- tlement, and Abfalom was loon routed. Here then Crcm- weV% Image comes again into the Mind, whetl er we will or not : For certainly he had a thorow Settlement ; he died in his Neft, and might have pleaded Providence, as we know he did.

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mot we pray that it would ceafe, and yet confel the Finger of Cod ? And yet in a Plague, how ■active, there is nothing criminal, as there is in i!s that are brought upon us by Men. 1 and Earthquakes are but Diforders in r. -hich obey tjQD blindly, iri 1 ue not ca| Whereas in Ufurpation there is always ( iuilt and 1 Ts in the Will; it is founded in erjury, Bribery and OpprelTion : How then (hall •ipon GOD to blefs it ? We believe indeed I kicked Ufurper is His InftruirK without offending Him, that :' 1 come to an hud. Mr. Cockbwn indeed tells us, Th.it, however i Deilres may feem, we mult fubmit them all to Will of G O D, and even renou-^e them, if the agreeable to His Will: And here he ( But then we may miftakc His Will, if we take Hi fwn for His Approbation ;e of what is futui

is prefent.

Thus, in the Beginning of Chrifthnity, it was 1 1 that it ihould be perfecuted, and yet it was His V more that it mould be fpread : It was H;s Will that it be born down ; Years together, and yet that at I fhould o\'ercome. Since thercf >re we know not v. Will of GOD, as to outward pray for them with great R Juration and > then it does not appear that we are never to : 1 Event, but that all Things mould c< It does not appear that we are never to ' ill, tho' we ought indeed to fay always, , ine be done. now, to conclude, Mr. Cockbum has the Ch i natur'd and agreeable Gentleman ; and J this Sermon there are many excellent Vr\ . :er One's Character is, be and Error, when mingl

and poifons more e'r ik-

in Wine. Finding thi Sermon, I could not but wii to mult regret this has not ?-.

a

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( H )

If any One had complained that his Power was me>e Violence, that he had overturned the Conftitution, and highly injured the King's Houfe_, and therefore had paffio- nately defired to fee the Monarchy and the Honfe of Stewart reftored ,• Could not Cromwel have argued thus, ie How cc juft, or right, or neceflary our Delires or Paffions may cc ieem to us, they muft be all fubmitted to the unerring ec Will of the Supreme Governour. And feeing there is cc no Pswer but of God, the 'Powers that be are ordered, ec or fet in Order, of God. He is in no Man's Debt, and cc can do no Man Injuftice. Men cannot tye the Almighty <c down to their Forms, nor prefcribe their Laws to Him. tc For the Mofi High ruleth in the Kingdom of Men, and Tc giveth it to whomfoever He will/' And if he would have quoted a Text yet more particular, he might have added Pfal. cxiii. 7, $. He raifeth up the Poor out of the tDufty and lifteth the Needy out of the 'Dunghil, that He way fet him with Princes, even with the Princes of His "People.

Thus we may fee, that the mofi: Religious Language, when perverted, is no better than downright Cant. Is there any Need of Scripture to prove that Cromwel had Succefs ? Or, Can any Scripture whatfoever prove that he had Au- thority from GOD ? Scripture therefore, when mifapplied, ought not to dazzle us ; nor are Men to be frighted merely with high Words : Otherwife, How eafy had it been for Cromwel to have frighted the Royalifls from their Prayers, by fuch a tragical Harangue as we have in the End of this Sermon, (p. 33.) tc That to pray for One as King and Go- cc vernour, who is not Governour, is not only a very great ** Abfurdity, but is an Affront and Indignity ottered unto <c GOD Almighty : 'Tis the flying in the Face of His Au- cc thority, the quarrelling with His Providence, and the €c telling GOD that we will not have him to rule over us, <c whom He has appointed to rule over us. "

Cannot we then adore the Providence of GOD, without partaking in the Injustice of Men ? Cannot we difcern His Permifp.on in all the Events that happen, and yet diitinguifli it from His Approbation bv His Word ? When He puniihes us, cannot we be allowed to intreat for Merc ) , and yet ac- knowledge that His Wrath is juft ? When a Plague ragesj

cannot

.( |5 )

cannot vve pray that it would ceafe, and yet confefs that it is the Finger of Cod ? And yet in a Plague, however de- ftructive, there is nothing criminal, as there is in all thofe Evils that are brought upon us by Men. Plagues, Hurri- canes and Earthquakes are but Diforders in the Elements, which obey GOD blindly, and are not capable of Sin : Whereas in Ufurpation there is always Guilt and Perverfe- nefs in the Will ; it is founded in Injuftice, and thrives by Perjury, Bribery and OpprerTion : How then fhall we call upon GOD to blefs it ? We believe indeed that the moil wicked Ufurper is His Inftrument ; yet fure we may pray, without offending Him, that the V/ickedjzefs of the fficke.i may come to an End.

Mr. Cockbum indeed tells us, That, however juft our Defires may feem, we muft fubmit them all to the unerring Will of G O D, and even renounce them, if they are not agreeable to His Will: And here he certainly fays well. But then we may miftake His Will, if we take His <Permif- fion for His Approbation, or judge of what is future by what is prefent.

Thus, in the Beginning of Chriftianity, it was His Will that it mould be perfecuted, and yet it was His Will much more that it fhould be fpread : It was His Will that it mould be born down 300 Years together, and yet that at laft it fhould overcome. Since therefore we know not what is the Will of GOD, as to outward Events, we ought indeed to pray for them with great Refignation and Referve : But then it does not appear that we are never to defire any out- ward Event, but that all Things fhould continue as they are; It does not appear that we are never to have any Will at all, tho' we ought indeed to fay always, Not my Will, but thine be done.

And now, to conclude, Mr. Cockbum has the Character of a good-natur'd and agreeable Gentleman ; and I frankly own that in this Sermon there are many excellent Truths : But then, the brighter One's Character is, he is the more capable to do Harm ; and Error, when mingled with Truth, is drunk more greedily, and poifons more effectually, like the Juice of Hemlock in Wine. Finding therefore fome ftrange Dodrines in this Sermon, I could not but wifh to fee them check'd j tho* I muft regret this has not been

done

( w )

elone by another Sort of Perfon_, than One (6 unworthy a I am.

If Mr, Cockbttrn can be brought to fee the Matter in th lame Light with me, he will certainly yield to Conviction coft him what it will : And how then fhould I rejoice t< lee him give Glory to GOD, by acknowledging his Mil take!

In the mean Time, tho5 I have fought to avoid th< throwing any Reproach upon his Perfon (my Quarrel be- ing with the Doctrine, not with the Man) yet ftill I hum bly and flncerely intreat his Pardon, if I have given hiir any juft Offence.

Aiigufl 2:8th. 1728.

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