for the Correction of the 12th Ch. of the Statute of Gloucester was Signed under the Great Seal and sent to the Iustices of the Bench after the manner of a Writ Patent with a Certain Writ closed Dated by the King's Hand at Westminster 2 Maiâ— 9 Edw. I. Requiring that they should do and Execute all and every thing contained in it though the same doth not accord with the Statute of Gloucester in all things 19 Hen. 3d. a Provision was made de assisa praesentationis which was continued and allowed for a Law until the Statute of Westminster 2 which provides the contrary in express words So that in the Old Statutes it is hard to Distinguish what Laws were made by Kings in Parliament and what out of Parliament especially when Kings called the Peers only to Parliament and of those how many or whom they pleased as it appears Anciently they did it was no easy matter to put a Difference between a Council-Table and a Parliament or between a Proclamation and a Statute Not but that I own in Old Times there was a Distinction between the Kings Special or Privy Council and the common-Common-Council of the Kingdom and yet his Special Council did Sit with the Peers in Parliament and were as part thereof and were of Great and Extraordinary Authority there as may appear by divers Acts of Parliament some of which I have already Recited as the Statute of Westminster I. Where it is said These are the Acts of Edward made at his I. Parliament by his Council The Statute of Acton Burnel 13 Ed. 1st hath these words The King for himself and by his Council hath Ordained and Established And in Articulis Super Chartas there are these Provisions Nevertheless the King and his Council do not intend And both the King and his Council and all they tâ—at were present Will and Intend that the Right and Prerogative of his Crown shall be saved to him in all things And before these the Commons often Petitioned the King As 1 Edw. 3d. where Magna Charta was confirmed the Preamble is thus At the Request of the Commonalty by their Petition made before the King and his Council in Parliament by the Assent of the Prelates Earls and Barons c. I could give you many more Examples of this Kind but that it is needless only these may suffice to let you see That the King's Council had a Great Authority in those times and perhaps was more Ancient than the Great Council it self Yet I cannot forbear to give you one or two Authorâ—tâ—es more to prove that the King with the Advice and Consent of a Council of his Earls Barons and other Wise Men hath sometimes taken upon him to Repâ—â—â— aâ— the Statutes made in a Precedent Parliament as contrary to the Laws and Customs of this Realm and to his Prerogatives and Rights Royal though Granted by him in manner of a Statute And for this you may see the Statute of 15th Edward the 3d. at large in Pulton's Collection So likewise in the Preface of the Statute of Westminster 20 E. 3. that We viz. The King by the Assent of our Great Men and other Wise Men of our Council have Ordained c. Where you may observe that here is no mention either of Lords Temporal or Commons I could give you more Examples of this kind were it not too tedious From which statutes it seems plain to me that this King did sometimes Exercise a Prerogative of Making and Repealing Laws without Consent of Parliament In the next place I desire you to take notice that these words you so much rely upon viz. by the Authority of this present Parliament and be it Enacted by the King Lords and Commons as if they were three Co-ordinate Estates was never in use till the Reign of Hen. 6th and Hen. 7th two Notorious Vsurpers And that the King 's Single Answer to the Lords and Commons Request is a Sufficient Act of Parliament without any mention of the Concurrent Authority of the Lords and Commons Enacting the same the President I gave you of King Charles's Answer to the Petition of Right may suffice though you have not vouchsafed to give me any Return to it So that I think these Instances may serve instead of many Arguments for the proof of this Truth that the Legislative Power as We Phrase it now is wholy and solely in the King although Restrained in the Exercise and vse thereof by constant Custom unto the Counsel and Consent of the Lords and Commons For Le Roy le veult or the King will have it so is the Imperative Phrase by which the Propositions of the Lords and Commons are made Acts of Parliament And let the Lords and Commons Agitate and propound what Laws they please for their Ease and Benefit as generally all Laws and Statutes are more for the Ease and Benefit of the Subject than the Advantages of the King yet as well now as formerly in the time of the Roman Emperors only quod Principi placet Legis habet Vigorem nothing but that which the King pleases to allow of is to pass for Law The Laws not taking their Coercive force as Judicious Hookeâ— well observes from the Quality of such as Devise them but from the Power that giveth them the Strength of Laws So that to Determine the matter Logically The Legislative Power is either largely and improperly or Strictly and Properly taken Largely taken it signifies any Power which hath the Authority to provide the Materials of a Law and to Judge what is Iust Convenient or Necessary to be Enacted and to declare when any Matters duly prepared are made and granted into a Law and this Ministerial sort of Legislative Power improperly so called the two Houses have and Exercise yet by Authority front the Grown But then the Legislative Power is Strictly and Properly taken for the Power of Sanction or for that Commanding Ordaining Power which gives Life and Being to the Law and force to oblige the Conscience of the Subject and this is radically and Incommunicably in the King as Soveraign And therefore as I have already said all the Ancient Acts run in the King's Name alone And from the Legislative Power thus properly taken the Laws are properly called the King's Laws and the Violation of them is punishable as such F. You have made a very long Speech and taken a great deal of pains to perplex a Question in it self very easy to be Resolved and to which I need return you no other Answer then what Bracton tells us in his 3 d. Book cap. 9. de actionibus Nibil aliud potest Rex in terris suâ—â— cum sit Dei minister vicarius nisi id solum quod de Iure potest nâ—â— oâ—staâ— quod dicitur quod Principi places legis habet vigorem quia sequâ—â—uâ— in fine legis cum Bege regâ—a quae de Imperio ejus laâ—a est i. e. non quiâ—quid de
voluntate Regis teâ—â—ere praesumptum est sed quod consilio Magistratuum suoâ—an Rege Authoritatem praesâ—aâ—â—e babâ—â—a super hoâ— deliberatâ—one So that you see in the time when this Author Writ the King could do no more by his Prerogative then the Law allowed him to do and though it is true it is his Will and Authority that gives Vigour to the Law yet this only as it is declared in Parliament and in those Acts which had before received the Consent of his Great Council here called the Kings Magistrates And therefore you have done what you can to confound the difference between the Kings Declaration or Writs Explaining and Enforcing the Common Laws of England or else Interpreting former Acts of Parliament already made which was a Prerogative often exercised by the King and his Council in Parliament which then consisted of all or most of the Iudges and Great Officers of the Kingdom of which I shall speak more at large by and by And I confess we are much in the Dark because our Ancient Parliament-Rolls are almost all lost and consequently the Statutes therein contained So that we have almost nothing left of them but such Copies or Remains as were preserved by Iudges and Lawyers in those and Succeeding times whilst they were still in Being And therefore I think I may at present boldly affirm that if that which you call the Statute of Ireland was not founded upon some former Statute not now in being it was no Act of Parliament at all but only the King 's Writ to the Chief Justiciar of Ireland Commanding and Enforcing the Common Law of England in the Case of Coparceners to be observed in Ireland The like I may say to the Explanation of the Statute of Gloucester which might be no more than the Interpretation of the King and his Iustices of the Sense of some Articles in that Statute and this for its Greater Authority Exemplified under the Great Seal and so sent to all the Courts at Westminster and often to the Sheriffs of all the Counties in England yet without altering that Statute in some Points as you would have it The like I may say of the Statute of Acon Burnel and therefore it is very rashly done to conclude that though we have not the Original Acts and Records of Parliament of that time that therefore such Statutes were made by the King alone in his Privy Council So that I must still continue of the same Opinion with the Great Selden in this Point who in his Marâ— Clausum tells us It is most certain that according to Ancient Custom no Answer is given either by the King or in the King's Name to any Parliamentary Bill before that Bill whether it be brought in first by the Lords or by the Commons hath past both Houses as is known to all that are versed in Parliamentary Affairs Which if it hath bin the Fundamental Law of this Kingdom it signifies very little in what Form the Law is express't whether in the King's Name only as giving the last Assent thereto or else as his Concession to the Lords and Common's Petition as long as you grant that their Assent was necessary For sure whosoever Petitions another to do a thing which he cannot impose upon him without his Request must give his consent to the Doing it unless you can prove that it could be done whether the Petitioner would or not And this by the way will serve to answer an Objection which though you insist much upon it is scarce worth it viz. The King's Answer to the Lords and Commons Petition of Right which was indeed no Grant or Concession of any New Rights or Priviledges from the King to the People But only a Declaration of several Ancient Rights and Liberties of the Subjects which had been very much broken and infringed of late and therefore the King's Answer was very proper soit Droict faict comme est desire The next mistake you fall into proceeds from your confounding the King 's extraordinary Council in Parliament with the King 's Special or Privy Council and in a manner making this a fourth Estate by whom as well as by the Lords and Commons Laws are often made whereas indeed neither the one nor the other is true For tho I grant that there is often made mention in our Ancient Statutes or Records of the Kings Council yet this is not to be understood of his Privy Council but of a Special Council with whom our King 's formerly sate during the time of Parliament and before whom and to whom we find by divers Records that both the Lords and Commons did often Petition as you your self do truly affirm But that this was not the King 's Privy Council but another quite different from it And to which it seems to me that Fleâ—a refers in his 2d Book Cap. 2. Habet enim Rex curiam suam in Concilio suo in Parliamentis suis praesentibus Praelatis Comit. c. And this Council consisted of all the Great Officers of the Kingdom viz. The Lord Treasurer Chancellor and Keeper of the Privy Seal Master of the Wardrobe the Judges of the King's Bench Common Pleas Barons of the Exchequâ—r Justices Itinerant and Justices of Assizes with such of the Dignified Clergy as it pleased the King to call Which that they were altogether distinct from the King 's Privy Council appears plainly by this that the later never included all the Iudges nor did the Privy Council ever exercise any Iudicial Authority in Parliament as this Council did in those days but that this Council consisted of the Parties above mentioned see the Statute of Escheators made 29 Edw. I. and in the Placita Parliamentaria of that year the Statute runs thus Per Consilium Regis concordatum est coram Domino Rege ipso consentiente c. But in the Close Roll of this year it is clearly explained who were of this Council their Names being there particularly recited viz. all the Great Officers above-mentioned together with the Iudges of the King's Courts and Justices Itinerant c. Which is likewise explained by the Parliament Roll 9. Edw. 2. Rex voluit quod Dominus Cancellarius Thesaurarius Barones Soaccarii Iustiâ—iarii alii de Consilio Domini Regis Londin existente convenirent I could give you many more Examples of this kind but I shall give you but two more to prove that this Council in Parliament could not be the King 's Ordinary Privy Council The first is in Placit Parliament 2 Edw. 3. in a Cause betwixt Thomas Fitz-Peter and Alienora Wife of Iohn de Mowbray Coram Rege The Record is long but concludes thus to the Justices Et si difficultas aliqua subfuerit quare praemissa facere non possâ—tis tunâ— placitum illâ—â—d usque in Prox. Parliamentum nostrum udjornetis ut ibidem â—unc inde fieri valeat quod de Consilio nostro fuerit faciendum By which we may very
stood but every General Rule may have some Exceptions till the beginning of the Reign of Henry 7th about which time that usual Clause at the Special Instance or Request of the Commons began by little and little to be laiâ— aside and that of their Advice or Assent to be inserted in the place thereof For which I do refer you to the Statute-Book at large which Form I confess continues to this day yet even in Hen. 7ths time in the first of that King and the 7th Chap. it runs in this Stile The King our Soveraign Lord of his Noble and Abundant Grace by the Advice and Assent of the Lords Spiritual and Temporal at the Supplication of the Commons in the said Parliament Assembled and by Authority of the same Ordaineth And though the Statutes of Hen. 8th do generally agree in their Style with those of his Father Yet in his time also many Acts were drawn up in Form of Petitions as 3 Hen. 8th c. 14. Prayen your Highness the Commons in this present Parliament Assembled and 5 Hen. 8. c. 4. Prayen the Commons in this present Parliament And in the Reign of his Son â—d 6th tho' I grant that most of his Acts do run in the usual Form yet this one is very Remarkable I Edw. 6. c. 4. Wherefore the King our Soveraign Lord c. At the Humble Petition and Suit of the Lords and Commons in this present Parliament Assembled doth Declare Ordain and Enact by the Assent of the Lords Spiritual and Temporal and the Commons in this present Parliament Assembled and by the Authority of the same Which last words though they may seem to refer to the Parliament and may make Men think that the Lords and Commons did then pretend some Title unto the Power of making Laws Yet neither Adviseing nor Assenting are so Opperative in the present Case as to Transfer the Power of making Laws to such as do advise about them or assent unto them nor can the Alteration of the Forms and Styles used in Ancient times import an Alteration of the Form of Government unless it can be shewed as I think it cannot that any of our Kings did Renounce that power which properly and solely did belong unto them or did by any Solemn Act of Communication confer the same upon the Lords and Commons convened in Parliament And therefore upon the whole matter since in almost all our most Antient Statutes it is precisely express't that they were made by the King himself the meaning of those general words used in latter times that the Statutes are made by Authority of Parliament are particularly explained in former Statutes viz. that the King Ordaineth the Lords Advise the Commons Consent as by comparing the Writs with the Statutes that expound the Writs will evidently appear F. In answer to those Authorities you have now brought I doubt not but I shall give you others of as great weight that prove the direct contrary to what you now Assert To begin with your Instance of Magna Charta I shall shew that those Charters that were granted and confirmed by Henry 3d. were not his Acts or Grants alone but the Grants also of the whole Kingdom Represented in Parliament We have two Express Declarations for the one in the 25th of King Edw. 〈◊〉 Where is to be found in the Parliament Roll of that Year a Confirmation of the Great Charter of Liberties and Forests in these Words which I shall render to you in English out of the Old French for your better understanding Know ye that the Honour of God and Holy Church and for the profit of our whole Realm We have granted for us and to our Heirs that the Great Charter of Franchises and Forests which were made by the Common Assent of the whole Realm in the time of King Henry our Father should be held in all Points without any Blemishment So likewise we find another Confirmation of those Charters in the Parliament Rolls of the 15th of Edw. 3d. which being in Old French I shall render it into English Imprimiâ— it is Accorded and Assented that the Franchise of Holy Church and the Great Charter of Forest and the other Statutes made by our said Lord the King and his Progenitors the Peers and the Commons of the Land for the Common profit of the People shall be firmly kept and maintained in all Points So that you may hence plainly see that the King himself with the whole Parliament declare and that in two several King's Reigns that the Great Charters were not only the Free Grants of King Henry but also the Ioynt Acts of the Common Council of the whole Kingdom and why King Iohn's Charter should not be made by the like Authority being one of his Progenitors I see no reason especially if we consider that that Charter was first drawn up by the Barons in the Form in which we find it and was past by that King under his Great Seal in that vast General Council or Assembly at Running-Mead And certainly whoever can draw up a Law and can offer it to a Prince to Confirm and without which consent of theirs it would not be good must necessarily have a share in the making of it As for your other Instances of those Old Statutes made in the Reign of Heâ— 3d. though I grant they begin as you say in the Kings Name Yet if you would but have read a little further you would have found that in divers of them the Bishops Earls and Barons gave their Consents to them And for the Proof of this I shall begin with one of the Antientest Statutes we have left us viz. that of Merton in the Preamble of which it is recited Provisum est in Curia Domini Regis apud Merton where after the parties that were present at the making of the Laws it concludes thus in the Latin Copies ita provisum est Concessum tam a praedictis Archiepiscopis Episcopis Comitibus Baronibus quam ab ipso Rege aliis where you see the Providing and Enacting Part is Ascribed to the Bishops Earls and Barons as well as to the King who is here mentioned almost last of all And though I confess that there was then no Set Form of Penning of Statutes in that honest and plain Age when Parliaments did not last so many Days as they do now Weeks and that the King's Judges and Council drew up the Acts after the Parliament was up in what Form they pleased sometimes leaving out any mention of the Bishops sometimes of the Temporal Lords and most commonly of the Commons Yet that they did all give their Consents to such Acts appears by the Statute of Westminster the 1st which you have already Cited where the Assent of the Arch-Bishops Bishops c. Counts Earls Barons and all the Commonalty of the Land is expresly mentioned So likewise the Statute of 51. of King H. 3d. concerning Measures begins thus Per
well gather that this was none of the King 's Ordinary or Privy Council or else to what purpose was this Cause adjourned to the meeting of the next Parliament Since if it had been to be determined by the Privy Council it might have been done forthwith I shall give you but one Instance more out of the Close Roll of the 41 of this King wherein a Cause between Elizabeth Wife of Nicholas D'Audley and Iames D'Audley in a Controversie between them touching certain Lands contained in in the Covenants of her Marriage is said to have been adjudged Devant Son Conseil c'est a scavoir Chanceller Thresorier Iustices Aâ—ires Sages assemblez en la Chambre des Etoiles i. e. Before his Council viz. the Chancellor Treasurer Justices and other wise men assembled in the Star-Chamber So that when any thing in our old Statutes is said to be Ordained by the King and his Council it is always to be understood not as if this Council were a fourth Estate whose Assâ—nt or Advice was as necessary to the making of Laws as that of the Lordi Spiritual Temporal and Commons for then they would have had the same Power still but only according to the Custom of those times when most Acts of Parliament were drawn by them and that the King past none without their advice it was then said to be done by the King and his Council viz. in Parliament and I conceive the Power of this Council continued till the beginning of the Reign of Henry the Seventh when this Court being by Act of Parliament annexed to that of the Star-Chamber where also this Council of the King used to meet before as appears by the Case I have last cited and having afterwards only to do with Criminal Causes and that as well out of as in Parliament and that King Hen. 7 th not caring to exercise his Iudicial Power in private Causes as his Predecessors had done or to make use of their advice either in the drawing or passing of Bills which now began to be drawn by Committees in either house wherein those Bills were preferred this Council came by degrees to grow quite out of use as it is at this day I hope you will pardon this long digression which I have been drawn into to rectifie a Common mistake of the Gentlemen of your opinion who when they find any thing in our ancient Statutes or Records wherein the King's Council is mentioned presently entertain strange fancies of the Antiquity and Authority of the Privy Council M. I am so far from thinking this Discourse you have now made to be at all tedious that I give you many thanks for it since it gives me a light into many things which I confess I did not know before and I shall better consider the Authorities you have now given me and if I find they will hold shall come over to your opinion in that point tho I am not as yet satisfied as to the Legistative Power of the two Houses and therefore pray proceed to answer the rest of the Presidents I have brought on that Subject F. I shall readily comply with your Commands and therefore to come to those Statutes of the 15 th and 20 th of Edw. 3. which you suppose to have been repealed by that King without the Consent of the Lords and Commonâ— I grant indeed that the Statutes you mention were intended to be repealâ—d by the King without Assent of Parliament Yet was this not done by himself and his Council alone as you suppose but by a Council of Earls Barons and Commons which the Kings of England in those days were wont to call upon emergent occasions and for the doing of that which they thought Parliaments could not so speedily perform as in this pretended repeal of the Statute you mention And tho I grant this was a great brâ—â—ch upon the fundamental Constitutions of the Kingdom yet that it was done in such a Great Council as I have now mentioned I refer you to this pretended Statute its self and to your recital of it And that the King often called such Great Councils appears by an agreement of Exchange made for the Castle of Berwick between King Hen. IV. in the fifth year of his Reign and the Earl of Northumberland where the King promiseth to deliver to the Earl Lands and Tenements to the value of the Castle by these words which I shall render out of French from the Original which remains in the Tower By the advice and â—ssent of the Estates of the Realm and of his Parliament so that the Parliamâ—nt happen before the Feast of St. Lucie otherwise by the Assent of his Great Council and other Estates of his said Realm which the King will cause to be assembled before the said Feast in case the Parliament do not happen c. And yet notwithstanding this high strain of Prerogative King Edw. III. himself was not satisfied with this repeal of those Statutes you have mentioned but in the next Parliament held in his 17 th year he procured a formal and Legal repeal of them as by the Parliament Rolls of that year remaining in the Tower doth plainly appear And which I could give you at large did I not fear to be too tedâ—ous But I think it fit to let you know this because most ordinary Readers seeing no more appear in Print in our Statute Books are apt to imagin that the Kings of England in those days did often take upon them without Authority of Parliament to make and repeal Laws But as for your next Instance of the Statute of Edw. III. it is much weaker since tho I confess that in the Preface to these Acts there is only mention of the Great Men or Grantz as it is in our old French and other wise Men of our Council yet I shall prove at another time that under this word Grantz were meant the Lords in Parliament as by the wise men of our Council are understood the Commons And therefore it seems most reasonable to interpret the sense of many ancient Statutes wherein the King alone is said to make and ordain Laws by those later or more modern ones wherein the King by the Consent of the Lords and Commons or by Authority of Parliament is said to have Ordained them Since the true Stile and Meaning of ancient Laws which were penned with the greatest brevity ought to be still Interpreted by the Modern ones and not the Modern ones by the Ancient So that I am of the Learned Mr. Lambardâ— opinion who in his Arcbâ—ion or Discourse upon the High Courts of Justice in England expressly tells us That whether the Laws are said to be made by the King and his Wise Men or by the King and his Council or his Common Council or by the King his Earls Barons and other Wise Men or after such other like Phrases whereof you meet with many in the Volumes of Parliaments It comes all to this one
and the other Less Barons or Tenants in capite ever since the 17th of King Iohn were summoned by one Common Writ directed to the Sheriff of the County since which time if not some time before I grant these Tenants in capite were not look'd upon as Barons or Peers of the Kingdom properly so called Yet did their Votes in Parliament still conclude and charge their Tenants in the making and imposing of Taxes or Laws which they alone together with the Bishops and greater Barons still performed until the Times I assign F. I see you are in a Wood and do not know well under what Class to rank your Tenants in capite for if they were at first all Lords or Peers how could they serve upon Juries in Hundred or County Courts If they were meer Commoners then there were Commons in Parliament before the 49th of Henry III. and why might not others as considerable Commoners have Places in the Great Council as well as they whether they were the Kings Barons or Tenents in capite or not But in answer to this you tell me that we never had any Barons held by mean Tenure here in England this is plainly equivocal for if you mean it of Baronies in capite it is true if of other Baronies it is false by your own Confession And Sir H. Spâ—lman tells us in the Title last quoted that the Barons of Burford pleaded to hold of the King per Baroniam and yet he was never any Baron of the Kingdom Now I desire you to shew me if he and such like Barons as himself had no place in Parliament who it was represented them there And therefore in answer to your Dilemma I grant that every Baron by Tenure was a Tenant in capite but every Tenant in capite was not a Baron and this I think is so plain that you your self cannot deny it But in answer to your next Question I can answer it without asking the Gentleman from whom you suppose I borrow the Notion that there might be other Barons or Lords of Mannors who by reason of their Estates might have Places in Parliament supposing Knights of Shires were not introduced till after Henry the II. or King Iohn's Time when such Freeholders became too numerous all to appear in person and yet these might not be Barons by Tenure And therefore all your Questions conclude nothing For you suppose that which is still to be proved That because all the Barons of England properly so called held of the King in capite and were consequently his Barons that therefore none but Bâ—rons and Tenants in capite had any place in our Great Councils which is the thing you only suppose and I as positively deny M. Well Sir since you put it to that issue I hope I shall fully convince you that none but the Persons I have mentioned were the constituent Members of the Common Council or Parliament before 49th Hen. III or 18th Edw. I and who done gave assent to all Laws that were made and all Taxes that were to be imposed on themselves and their Under-Tenants who were then concluded by the Acts of their Superior Lords But not to wrangle with you any longer about the signification of the Word Barones I grant there were Nominal or Titular Barons very many such as I have mentioned nay that there were several other Great Subjects who had Tenants that held 5 6 7 8 〈◊〉 nay more Knights Fees under them and who had the Name and Title of Barons But what is this to the purpose I desire you would prove to me by any direct proof that these sort of men had any Voices either by themselves or their Representatives in our Great Councils till after the time we allow them and this besides the Proofs I have already brought I think is sufficient Since it is plain that the Barones Regni or Terra and the Milites and Homines sui are all one and the same Persons that is they were the King 's Great Barons or Tenents in capite who alone constituted the Baronage or University of the Baronage of England or of the Kingdom in our Great Councils or Parliaments And for the farther proof of this I need go no farther than those very Arguments your own Author Mr. P. hath made use of in his Right of the Commons asserted wherein he would prove from certain Letters that were sent from the Baronage or University of the Baronage of England to the Pope against the Church of Rome's Exactions here in England And therefore I shall not bring only Fragments Phrases or single Words out of the Records or Histories which seem to countenance my Opinion contrary to the true meaning of those Records and the sense of the Historians as some of your men do but shall give you the Quotations out of those Authors whole and entire and shall make such reasonable Deductions from them as I think you will have no reason to deny to be fairly raised from the Words themselves And also as Matt. Paris relates in the 29th Hen. III. the Earls and Barons sent Letters to the Pope then at the Council of Lions to complain of the Pope's Exactions which Letters are said by this Author to be directed A Magnatibus Universitate Regni Angliae And tho it is also true that in the same Year there were other Letters sent thither from the same Parties to the Cardinals there assembled which are recited by the Old Manuscript to have sent Messengers to the Cardinals and the Old Manuscript in the Cottonian Library that they sent to the Cardinals assembled at the Council of Lyons Letâ—ers a Baronibus Militibus universis Baronagii Regni Angliae per procuratores 〈◊〉 Rogeram Bigod Comitem Norff. Willielmum de Cantelupo Iohannem silium Galfriâ—â—â— Radulphum filium Nicholas Philippum Basset Barones Procuratores Baronagii Angâ—â—â— tunc temporis Innocentio Papa Quarto celebrante Concilium ibi generale Anno Gratia 1245. And the Letters are thus directed Venerabilibus in Christo Fratribus uniâ—â—sis Singulis Dei Gratia Salutem Barones Milites Universitas Baronagii Regis Angliae And that Matt. of Westminster does likewise agree in this Relation only stiles the Persons last named Milites whom Matt. Paris calls Viri Nobiles discreti But this will make no difference as I shall shew you by and by And to these Matt. of Westminster adds Mr. William Powic Clark who seems to have been their Secretary But notwithstanding it will appear that all these Persons so sent named Barones Milites universitas Baronagii did not represent the Commons of England at all but only the Great Earls Barons and Tenants in Capite For first it appears from Sir W. Dugdale's Baronage of England that every one of the Persons here named was either an Earl Baron or Great Tenant in capite and nâ—â— Common Persons as your Author would have them And tho it true the Cottonian Manuscript
of Parliament and Taxed with the rest of the Kingdom as often as there were Laws made and Taxes given when their Bishop or Earl was present which was not so for in the first place as for the County of Chester if the Earl had been the Representative in Parliament of his Tenants by Knights Service or otherwise as also of all the Abbeys and the City of Chester it self and all other great Towns in that County his Vote in Parliament would have obliged all of them and there would have been no need of a Common Council or Parliament of the States of the whole County in which they then made Laws and Taxed themselves as a Separate Body from the rest of the Kingdom as may appear from these following Records which Mr. A. hath given us the first of which is a Writ of K. Edw. I. directed Archiepiscopis Episcopis Abbatibus Prioriâ—us Baronibus Militibus omnibus â—liis Fidelibus suis in Comitat. Câ—striae reciting that whereas the Prelates Counts Barons alii de Regno had given him a 15 th of their Moveables He desires that they also would of their Benevolence and Courtesie in Latin Curialitate grant him the like Subsidy which Note could not be done out of a Common Council So likewise in another Writ of the 20 th of this King reciting that whereas the Probi Homines Communitas Cestriae sicut caeteri de Regno nostro 15 mam partem omnium mobilium suorum nobis concesserunt gratiose Now supposing as the Doctor always does that these Probi Homines were the Earls Tenants in Capite what can this word Communitas here signifie but another sort of men distinct from them viz. the Communalty or Commons of that County And which is also remarkable this County was now fallen to the Crown for want of Heirs male of the last Earl and so according to the Doctors notion the King being their sole Representative needed not to have been beholding to them for these Subsidies since tho not as King yet as Earl of Chester he might have Taxed them himself which yet he thought not fit to do because he knew it was contrary to the Rights and Priviledges of that County which had ever since the grant of it to Hugh Lupus by Will I. always been Taxed by themselves Which Priviledges are also expressly set forth in a Supplication of all the Estates of this County Palatine to K. Henry the Sixth which Mr. P. has given us from an Ancient Copy of it then in the hands of Sir Thomas Manwaring of that County Baronet Wherein the Abbots Priors and Clergy Barons Knights Esquires and Commonalty set forth that they with the consent of the Earl did make and admit Laws within the same c. and that no Inheritors or Possessors within the said County were chargeable or lyable or were bounden charged or hurt of their Bodies Liberties Franchises Lands Goods or Possessions unless the said County had agreed unto it Now what can here be meant by County but the Common Council or Parliament thereof since otherwise they could make no Laws nor do any other publick Act The like I may say for the County Palatine of Durham which from the Grant thereof by William Rufus to the then Bishop had always been Taxed by themselves and not by the Bishop in Parliament and that as low as the Reign of Edw. 3. as appears by this Record of the 14 th of that King containing a Letter or Commission to R. Bishop of Durham reciting that whereas the Prelates Earls Barons and the Commons of Counties had given him a 9th of their Goods there mentioned that therefore the Bishops should convene the Magnates Communitatem Libertatis vestrae to wit of his County Palatine ad certum diem locum with all convenient speed and that done to perswade and excite the said Magnates Communitas to grant the King the like or a larger Subsidy or Aid towards the maintainance of his Wars which had been altogether in vain if the Bishop or the King could in those days have Taxed this County at their Pleasure Now if these great Tenants in Capite could not Tax their Mesne Tenants without their consents much less could the rest of the Tenants in Capite in England impose Taxes on their Tenants in Military Service or in Socage without their consents which last had a much less dependance upon them M. I must confess I never considered these Precedents of the County Palatine of Chester and Durham and therefore can say nothing to them at present since it is matter of fact but as to Reason and Law I think it is consonant to both that not only Tenants in Military Service but Socage Tenure should be found by the Acts of their Superior Lords of whom all the Lands of England were formerly held by Knights Service And tho in Process of time many of these Estates and Lands became free Tenements or were holden in Socage that is were Free holders yet the Lords retained Homage which in the times we now write of was no idle insignificant word and by that a Dominion over the Estate whereby upon Disobedience Treachery or Injury done to the Lords c. the Lands were Forfeited to them and although the Lands nor the Tenants of them which were termed Free-holders were subject to any base Services or Servile works yet the Lords had a great Power over these Tenants by reason of their doing Homage to them which tho now antiquated yet eo nomine their Lands were many ways liable to Forfeiture and Taxes too So that upon all thesâ— accounts it was then as reasonable that the Tenants in Capite should in those days make Laws and grant Taxes for all the rest of the Kingdom as the Tenants in Capite in Scotland should do so to this very day for all the Inhabitants of that Kingdom of never so great Estates and to this Argument which is certain in matter of fact you have yet answered nothing nor do I believe can F. I cannot see notwithstanding what you have now said that the Superior Lords by reason of Homage should have an absolute Power over their Tenants Estates For tho in the Profession of Homage to the Lords I grant the Tenant thereby promised to become the Lords Man yet he never thereby meant to become his slave and there were mutual Duties on both sides so that if the Lord failed to protect his Tenant in his Estate or unjustly oppressed him he might have refused nay renounced his Homage till the Lord had done him right nor can I see how a bare right of having the Forfeiture of the Estate in the Cases you have put which yet let me tell you were never so strict in respect of Socage as Military Tenure as I could shew you were it worth while for if this right of Forfeiture alone could give the Superiour Lord a Power over his Tenants Estate to make Laws for
and Burroughs from times beyond all Memory sent their Proxyes and Representatives to the Parliament in Scotland and that each Citizen and Burgess so sent had as good a Vote in their Parliament as the greatest Bishop or Earl of them all M. I desire no better proofs then what your self have now brought to make out that the Tenants in Capite are not only at this day but have been from the very beginning of Parliaments in that Nation For I shall appeal to those very Statutes and Records you have now cited which compared with divers subsequent Statutes of that Kingdom will make the matter plain enough that the Communitas and these probi homines mentioned in these Laws you have cited were the Community of the Tenants in Capite only In the first place therefore let me observe from that very Law of King Alexanders the Title of which you have but now quoted that these words per essenssum Communitatis cannot here signifie the Commons since they alone could neither advise nor give their consent to make Laws and therefore they must needs refer to the whole Community or Assembly of Estates consisting of Tenants in Capite only as I shall prove by a Parliament of King Rob. III. who began to Reign Anno. Dom 1400. in the 10th year of our Richard II the Title is thus Parliamentum Domini nostri Roberti III. Scotoâ—um Regis c. vocatis summonitis more solito Episcopis Prioribus Duâ—ibus Commitibus Baronibus Liberis Teâ—entibus Burgensibus qui de Domino Rege tenent in Capite and this is also confirmed from the Title to a Parliament held at Perth Anno. Dom. 1427. being the 23d of King Iames I. Summâ—nitis voâ—atis mâ—re solito Episcopis Abbatibus Prioribus Comitibus Baronibus Liberi Tâ—nentibus qui de nobis tenent in Capite de quolibet Burgo certis Buâ—genfibus so that I think nothing can be plainer from these ancient Statutes then that the Scottish Parliaments did anciently consist of no other Members then the Bishops Abbots and Priors Dukes and Earls Barons Free-holders and Burgesses which held of the King in Capite Having thus shewn the ancient Costitution of the Scotish Parliaments for your satisfaction I shall farther shew when and how it was altered In the Seventh Parliament of King Iames the First held at Perth A. Dom. 1420 there was a Law made which I shall contract That the small Barons and Freeholders need not to come to Parliaments and that for the future out of each Schirefdome there should be sent two or more wise men after the largeness of the Schirefdome the which shall be called Commissaries of the Shire and that these should have full power finally to hear and determine all causes to be proposed in the Great Council or Parliament and that the said Commissaries should have Costage of them of each Shire that ought to appear in Parliament or Council I have only given you an Abstract of this Statute because it is pretty long and pen'd in old Scotish English but you may consult it at your leisure And this is farther confirm'd by a subsequent Act of Parliament of King Iames the Sixth holden at Edinburgh Iuly the 29 th 1587 wherein after a repetition of the former Act of King Iames the First and a Confirmation of the same it follows thus And that all Freeholders of the King under the degree of Prelates and Lords of Parliament be warned by Proclamation to be present at the choosing of the said Commissioners and none to have voit in their Election but sik as hes Fourtie Shillings Land in free tenandrie halden of the King and hes their actual dwelling and residence within the same Schire c. I need give you no more of this Act but I think it is most clear from this as well as the former Act of Parliament that the Commons in Scotland were only the Kings Tenants in Capite and are so at this day since none but they can either choose or be chosen Commissioners for the Shires but as to the Buroughs who do each of them send but one Commissioner or Burgess except the City of Edinburgh which sends two all which are chosen by the Common Council of the Towns Now there are in Scotland three sorts of these Burghs that is to say Royal Burghs Burghs of Regality and Burghs of Barony but only the Royal Burroughs the Burgi Dominici Regis or qui de Rege Tenent in Capite send Commissioners to Parliament and are in number Sixty To conclude that I may apply what hath been said concerning the Constituent parts of the Scotish Parliament to ours anciently it seems to me that from the great affinity there was between ours and theirs 't is certain that our and their Communitas Regni was the same that is they were the small Barons and Tenants in Capite F. I cannot deny but that the Parliament of Scotland hath for above these two hundred years consisted of the Bishops Abbots and Temporal Lords together with the lesser Tenants in Capite or their Representatives the Commissioners for Shires and Burgesses of Cities and Towns till the Reformation that the Bishops and Abbots were quite taken away tho the former were restored to their places in Parliament by a Statute made in the latter end of King Iames the First yet I cannot allow that from the beginning of that Government the Scotch Parliaments have consisted of no other Members than those since the word Communitas coming as it does in these old Statutes and Records I have now cited immediately after the Praelati Comites Barones Milites c. must signifie a distinct order of men from the Tenants in Capite called in the Statute of King Iames the First the small Barons and since the Citizens and Burgesses though none of those Barons were also comprehended under this Communitas and whom you grant to make the third Estate why this word might not comprehend all the other great Freeholders I can see no reason to the contrary And therefore I suppose that in the Reigns of K. David 2 d. or Robert the 2 d. or else the beginning of Robert the 3 d. there was a great alteration in the constituent parts or Members of the Scottish Parliament and about that time the chief Freeholders or Lords of Mannors who held of Bishops Abbots and other Temporal Lords as well as of the Tenants in Capite or else of the King by petty Serjeantry or Socage Tenure as also many of the small Towns or Baronies might either forbear coming at all or else desire to be excused because of the great trouble and charge of attendance as you see the smaller Tenants in Capite afterwards did when Commissioners for Shires were appointed in their steads and so might by degrees leave off coming or be excluded by some Law not now extant and thus the Tenants in Capite might become the sole Representatives of the
Commons as at this day But that this Statute was made by the Common Council of the Kingdom and not by a Conventicle of a few of the Lords and Tenants in Capite Summoned ad Libitum Regis appears by all the original Writs founded upon several branches of this Statute whâ—ch are to be seen in the Register reciting that this Statute was made de Communi Concilio Regni Now the word Commune signifies no more than General and how could this be call'd a General Council which only consisted of a few of the wiser sort of Bishops Lords and Tenants in Capite As for what you and the Doctor cite out of Cambden's Nameless Author of King Henry's sending Writs of Summons and culling out a few of the Earls and Barons out of a great multitude that were Seditious after the War with the Barons was ended if you will have it extend to those who never forfeited by reason of Montfort's Rebellion I need not say much to it since Mr. Selden in his Titles of Honour hath sufficiently baffled that Authors authority for if it was never true as to Earls it was not like to be truer in respect of the greater Barons But as for your lesser Barons or Tenants in Capite I know not but he might be much more in the right in respect of them What you say as to Robert Walrand is not much material for tho he was never so great a Baron or Lawyer yet he could draw up this Law but as being one of the Kings Council who in those days drew up and prepared all Bills that were offered in Parliament And thus Britton might well say that this was made by the Common Assent of the Grand Seigneurs this Act being so highly for their advantage and yet the Commons might be also there as well as the Great Lords for otherwise if Britton must be literally understood what becomes of your Minores Discreti mentioned in this Statute to have given their consents as well as the Majores whereas this Author mentions none at whose request it was made but the Great Lords only But that by these Minores Incolae Regni mentioned at the end of this Statute were meant the Knights Citizens and Burgesses Pray see a Writ of Summons the 24th of Edward I. with the Doctors note upon it in his answer to Mr. P. the Writ is directed to the Arch-bishop of Canterbury and concludes thus that he should warn the Procuratores Cleri there mentioned to appear with him ad tractandum ordinandum faciendum noâ—iscum cum ceteris Praelatis Proâ—eribus aliit â—ncâ—lis Regni nostri in the Margin over-against these last words the Doctor gives us this Note the Incolae Regni were the Knights Citizens and Burgesses mentioned in the former Writ but not here particularly enumerated Now though it is true that this Writ is after the time that the Doctor will acknowledge the Commons to have been constantly Summoned to Parliament yet if these words could mean the Commons in this Writ why they should not signifie the same in this Statute I can see no reason but the Doctors strong prejudices to the contrary But if you have no more Authorities to alledg from the Reign of Henry the Third pray go on and shew me the rest of your Arguments why you suppose the Commons were never called in above half the Reign of Edward the First till the 18 th And I desire this the more because as I have already proved from the Statute of West 1. 3 Ed. 1. the words tout le Communalty de la Terre coming immediately after the Counts Barons and those other words foregoing must needs signifie the whole Commonalty of the Land and so the Doctor himself has rendered it in his Answer to Mr. P. M. But first pray observe what the Doctor there tells you that by the word Commonalty he means not the Commons in the sense they are now taken but the Community of the Tenants in Capite only and for this pray consult the Writ of Summons to the Archbishop of Canterbury to come to this Parliament which I confess is the only Writ of this kind that is left upon the Rolls from the 49 th of Henry the Third to the 23 d. of this King in which you will find the Archbishop Summoned ad tractandum ordinandum una cum Prelatis magnatibus Regni that is as the Doctor explains it with the Prelates and Great Men of the Kingdom which Great Men very frequently comprehended as well the Barons Majores as Minores the Earls Barons and greater Tenants in Capite and the less which then were the Community of the Kingdom so that your Interpretation of the words des Greindres des Mendres in the Statute of Gloucester by which you would interpret the like words in the Statute of Marlbridge for the Commons as now understood will signifie nothing as being before the time we allow the Commons to have been Summoned to Parliament in this Kings Reign F. It were a very easie thing for any man of a confident undertaking temper to frame what Interpretations he pleases from the general or equivocal of Histories or Records if he could as easily find Authorities to support it but I see nothing like a proof for it but the Doctors bare Assertion Since I have already sufficiently proved that the words Communalty and Communitas coming in our Statutes and Records immediately the Counts and Barons after do always signifie the Commons as now understood and why they should not signifie so here I can see no reason for as to the words in the Writ to the Arch-bishop of Canterbury they prove nothing at all who were the Constituent parts of that Parliament for if the word Magnates must need signifie the greater and lesser Tenants in Capite only pray why do they not signifie so in the Writ of Summons to Parliament of the 49th of Henry III. to the Bishop of Durham which the Doctor has Printed where there is no mention made of his Treating or advising with any other Persons then the other Prelates Magnatibus nostris yet the Doctor within two Leaves after gives us the Writs of Summons for the Knights Citizens and Burgesses to this Parliament But it seems in his first Edition of his Book against Mr. P. he had not made those rare discoveries he did afterwards where he pretends not to carry this Opinion beyond the 49th of Hen. III. Therefore pray go on to shew this new Light by which the Doctor discovered that the Commons were never Summoned to Parliament all the Reign of Edward I. till the 18th M. In the first place you cannot shew us any mention of the words Communalty or Communitas in any of the Parliaments of this Kings Reign not in the Statute de Bigamis made in the 4th of this King the Preamble thereof runs to this effect That these under-written
translates the Clergy and Commons together with the Nobility being summoned And in 1 of Richard I. R. Hoveden also tells us of a great Council held at Pipewel Abby in Northamptonshire where the Archbishop of Canterbury produced a Charter of King William I. Coram Rege Vniversis Episcopis Clero Populo And an ancient Charter of primo of King Iohn now in the Archbishop of Canterbury's Library entituled Charta Moderationis seod magni sigilli recites the said King to have been Crowned Mediante tam Cleri quam Populi unanimi consensu savore and tho the rest of his Reign was Turbulent yet the Author of the Manuscript Eulogium quoted by Mr. Selden in his Titles of Honour mentions a great Council at London in the 16 th Year of King Iohn where the Archbishop of Canterbury was present Cum toto Clero tota secta Laicali i. e. says Dr. Heylin in the same place The Clergy of both Ranks and Orders with all the Laity called here Secta Laicalis and the Lords and Commons had then their places in Parliament and the Dr. proceeds thus and in possession of this Right the Clergy stood when Magna Charta was set forth by King Henry the 3 d. Wherein the Freedom Rights and Priviledges of the Church of England of which this evidently was one was Confirmed to them i. e. the whole Clergy in general I have here shewed you what Dr. Heylins sense was to let you see that a Person of great Learning and a high Churchman thought it no Heresie to be of our Opinion and to maintain as he does all along in that Chapter that the Inferior Clergy and the Commons were a Constituent Part of the Common Council or Parliament long before the 49 th of Henry 3 d and that the Inferior Clergy continued to be so till the Reign of Henry the 4 th at least But that their Consents was also anciently asked in the making of Laws we need go no farther than the Authority I have now given you from the Continuation of Florence of Worcester And farther that they were once a part of this great Council or Parliament besides the Testimony of the Modus tenendi Parliamentum who tho he be exploded as an ancient Author yet certainly is a good Witness for his own time viz. that of Edward the third where the Procuratores Cleri are reckoned among the Constituent Members or States of Parliament which is also confirmed by the two first Writs of Summons we have left us on the Rolls viz. the 23 d of Edward I. where in this Clause of Praemunâ—entes Clerum is particularly exprest which pray read from your Drs. Answer to Mr. P. Praemunientes Priorem Capitulum Ecclesiae vestrae Archidiaconos totumque Clerum vestrae Diocaesis facientes quod iidem Prior Archidiac in propriis Personis suis dictum Capitulum per duos Procuratores idoneos plenam sufficientem potestatem ab ipsis Capitulis Clero habentes una vobiscum intersint modis omnibus tunc ibidem ad tractandum ordinandum faciendum nobiscum cum coeteris Praelatis Proceribus aliis Incolis Regni nostri qualiter sit hujusae modi periculis obviandum viz. The dangers in the Writ mentioned to be threatned from France and that this was not the first time this Clause of Praemunientes was inserted in the Writs of Summons to Bishops might be easily proved had we all the Writs of Summons before the 23 d of Edward I. as well as since But we may hence observe that the Inferior Clergy are not onely summoned to treat with the Prelates but are as well as they here authorised to Treat Ordain and Act with them and the Lords and Knights Citizens and Burgesses for so your Dr. himself here in the Margin translates Aliis Incolis Regni and how they could thus Consult and Act with them if they had not beeâ— then as well as the Prelates a part of the same Body of the great Council or Parliament of the Kingdom I confess surpasses my Capacity to understand nor is this Clause found in this Writ alone but is also in most other Writs of the Bishops Summons to Parliament as low as our own times and that these Writs were not to Convocation but Parliament appears in Pryns Parliament Register plainly by the Letters of Procuration made by the Prior and Chapter of Bath to William Swynham and Iohn de Merston appointing them to appear and Act for them as their Lawful Procurators in the Parliament summoned Ann. Dom. 1299. being the 27 th of Edward I. which is of a different form from another Letter of Procuration of the same Prior and Chapter Ann. Dom. 1295. 231. Edward I. to their Procurators therein named to act for them in the Convocation then summoned at Westminster the same difference is also observed in all the Writs of Summons to Convocation different from those whereby the same Persons are summoned to Parliament the former being directed onely to the two Archbishops or their Vicar Generals to Summon all the Bishops Abbots Priors and Clergy of their respective Provinces without any particular Writs issued to any other Bishops Abbots Priors or Clergy-men as in Summons to great Councils or Parliaments wherein there are commonly particular Orders to the Bishop to warn all the Inferior Clergy in the manner but now mentioned as Mr. Pryn very well observes in his first part of his said Parliamentary Register where you may see there is a Writ of Summons to Parliament of the 31 st Edward 3 d to the Archbishop of Canterbury reciting that he intended a Parliament for divers arduous and urgent Businesses concerning Himself and Crown and the necessary Defence of the Kingdom and Church of England And then proceeds thus Et quia Negotia praedicta perquam Ardua sine Maxima deliberatione tam Praelatorum Cleri quam Magnatum Communitatis ejusdem Regni c. and therefore it behoved him to Summon the said Clergy Great Men and Commons and then requires him to summon all the Bishops Abbots and Deans and Priors and Arch-deacons to appear personally and the rest of the Clergy by two Procurators with full Power ad tractandum consulendum super praemissis una vobiscum ad consentiendum Illis quae tunc ibidem super dictis negotiis divina savente Clementia contigerit ordinari M. But what can you say to their being omitted to be summoâ—ed in divers Writs to Parliament as appears in Pryns Register you now cited and from whence himself has there made this Observation That there is no Clause of Praemunientes c. in any Writs of Summons to Councils of State but onely to Parliaments and that not always but at the Kings Pleasure Which shews plainly that tho they were sometimes summoned as a part yet were certainly no Essential Constituent part of this general Council since they were omitted in so many of them
became less necessary we must have recourse to the Bull of Popâ— Boniface the 8 th in the 24 th of Edward I. by which he forbad all the Clergy of the Western Church as well Superior as Inferior to give any more Taxes of Subsidies to Temporal Princes without his Holinesses Licence whereupon the King summoned the Bishops and Clergy to Parliament at St. Edmunds-Bury in the 24 th of â—is Reign where when they then reâ—used to grant him any supplies he then as all the Historians tell us held his Parliaments at Westminister Cum Baronibus suis excluso Clero without either Bishops Abbots or Inferior Clergy which was the first Precedent of this kind that we ever read of in this Parliament the King with the consent of the Lay Lords and Commons seized all the Temporalities of the Clergy as well Bishops as others and put them out of his Protection untill they were forced to redeem themselves by paying a 5 th part of their Moveables for doing of which they were afterward forced to procure the Popes Absolutions some of which Mr. Pryn has given us in this said Register and yet for all this the Pope maintain'd this Power over the Clergy for the future so that they could not be taxed without his express License which since it could not always be obtained no wonder if our Kings did more frequently omit summoning any more than the Bishops and Abbots who were bound to appear in Parliament by their Tenures and so left out all the Inferior Clergy as useless the main business and cause of their summoning to Parliament viz. giving of Money being now taken away by the Popes usurped Power tho whenever his Licence was obtain'd yet that their own express Consents in Parliaments or Convocation was necessary appears by that Passage in the Annals of Burton in Anno 1255. already cited when the Inferior Clergy being extravagantly opprest between the Pope and King they sent express Messengers when they met in Parliament who were to set forth their greivances to his Holiness I have given you as good an account as I am able how the Inferior Clergy which as well as the Superior did once make a Constituent part of our great Councils before the Conquest nay for above 200 Years after did at last cease to be so partly by the prevailing Power of the Bishops partly by the Usurpation of the Pope tho chiefly by their own silence and consent not complaining of their want of Summons to Parliament as long as they could 'scape scot free and all the rest of the Kingdom pay Taxes notwithstanding which the clause of their Acting and Consulting with all the rest of the Estates in Parliament still remaining in the Writs of Summons is a sufficient Monument to Posterity to prove their ancient Right And the Clergy of the lower House of Convocation was so sensible of this that among certain Petitions by them made to Dr. Cranmer then Archbishop of Canterbury and the rest of the Prelates in the higher House of Convocation in the Reign of King Edward the 6th the 2 d Article of which runs thus Also that according to the ancient Custom of the Realm and the Tenor of the Kings Writ for summoning of the Parliament which now and ever have been directed to the Bishop of every Diocess the Clergy of the lower House of Convocation may be adjoyned and associate with the lower House of Parliament or else that all such Statutes and Ordinances as shall be made concerning all matters of Religion and causes Ecclesiastical may not pass without the sight and assent of the Clergy and there is in the same place a second Petition as also a Paper of Reasons offered to Queen Elizabeth and after to King Iames to the same effect And lastly to shew you that the Government of the Church and State of Scotland was anciently all one and the same in respect of their Clergy as well as Laity with that of England in their great Councils or Parliaments appears by the Agreement between King Edward the â— and the States of Scotland concerning the Marriage of his Son Prince Edward with the Princess of Norway then Heiress of Scotland which is publisht at large in Mr. Pryns 1 st Vol. of the Popes Usurpation where you will find this Agreement to have been made between the said King Edward ex una parte venerabiles Patres custodes scil Scotiae Episcopos Abbates totum Clerum nobiles viros Comites Barones totamque communitatem Regni Scotiae ex altera de matrimonio contrabendo c. From whence you may observe that as the same stile was observed there in the Titles of their general Councils or Parliaments as with us and as the Inferior Clergy there put after the Bishops and Abbots did not hold in Capite but frank Abnoign in that Kingdom So likewise by the same Analogy between the lowest Temporal State with the Spiritual the Commonalty of Scotland here stiled Communitas Scotiae could not then consist onely of Tenants in Capite as your Dr. and those of this Opinion suppose it did M. I must confess you have shewn me more for the Inferior Clergies being once a Constituent part of the Parliament than ever I knew before I will take time farther to consider them but that the word Populus must needs then take in any more than the Tenants in Capite I much doubt since the other word Plebs which you so much insist upon from the old Book of Ely signifies no more than Populus which as the Dr. shews us in his Glossary In it self signifies neither Great nor little People but only Laity and therefore as it is used and restrained signifies either the Lay Plebs or the Lay Magnates as I can shew you by several Examples as particularly out of Mat. Westminster Ann. Dom. 1295. 23 d Edward I. where speaking how the Popes Legates were received in England who came to make up the differences between England and France He thus relates their Reception Quos in Regnâ— Angliae applicatos excepit Plebs debito honore accita per Regem apud Westmonasterium Primatum Optimatum suorum Caterva Here the Plebs were the Kings Great or Chief Men that is the Earls and Barons which he had called to Westminster who so honourably received these two Cardinals So likewise the same Author Ann. Dom. 1297. 25. Edward I. The King and Barons being at some difference about the Observation of Magna Charta and the Charter of Forrest speaking how the King declared that he intended to observe those Charters after this he relateâ— that the King thereupon required to be given him by the Incolae or Inhabitants the eighth Penny and says thus Articulos in praedictis Chartis Contentos innovari insuper observari Rex Mandavit exigendo pro hac Concessione ab Incolis Octavum denarium sibi dari qui mox Concessus est a Plebe in sua
the Kingdom of the West Saxons I have now instanced in but in almost all the other Kingdoms of the Heptarchy in which there are to be found many more Instances of the Deposition of their Kings thaâ— what were in the West Saxon Kingdom this waâ— then very just and necessary since these Kingdoms were all Elective and none of them Hereditary and that the general Meeting of the great Council of the Nation was always at set and constant Times and did not depend upon the Will and Pleasure of the King either to call or dissolve them as I have already proved and that this Power was no unusual thing I appeal to all the Antient Kingdoms of Europe founded after the same Model as ours and which I mentioned at our last Meeting so that nothing is more frequent in their Histories and Annals than the Deposing of their Kings for the above-mentioned Crimes of Tyranny or Misgovernments But that some of these Gothick Kingdoms as Denmark and Sweden whilst they continued Elective have exercised this Power even till of late is so notorious in matter of fact that it needs no proof since the Kings of those Kingdoms held their Crowns at this day by that Title and on those Conditions which the Nobility and People gave them after the Deposition of their Predecessors But tho this were so anciently also in England it does not therefore follow that it must be so now for since the Crown of this Kingdom became Hereditary and that the Calling and Dissolving of great Councils or Parliaments came to depend wholly upon the King's Will I must allow that the Case is quite altered and that the Two Houses of Parliament have now no power to depose the King for any Tyranny or Misgovernment whatsoever The first Parliament of King Charles the Second in the Act for attainting the Regicides have actually disclaimed all Coercive Power over the King and yet for all that the Nobility and People of England may still have a good and sufficient Right left them of defending their Lives Religion and Liberties against the King or those commissioned by him in case of a general and universal Breach and Invasion of the Fundamental Laws of the Kingdom or Original Contract if you will call it so and not to lay down those Defensive Arms till their said just Rights and Liberties are again restored and sufficiently secured to them So that tho' I will not bring the Custom of the English Saxons as a precedent for the Parliament's Deposing of the King yet I think I may make use of it thus far that this Nation has ever exercised this necessary Right of defending their Liberties and Properties when invaded by the King or his Ministers either by colour of Law or open Force And that this hath been the constant practice from almost the Time of the Conquest down to later Ages I think I can make out from sufficient Authorities both from Histories and Records M. Tho' your Doctrine is not so bad as I expected yet it is still bad enough and I never knew this Right of Resistance carried home but that it always ended in Deposing and Murdering of the King at the last as we have seen in our own Times But let the constant practice have been as it will I am sure such Resistance hath been always condemned by our Ancient Common Law as well as Modern Statutes as I shall prove farther to you by and by and therefore pray give me leave to tell you that the never so constant practice of an unlawful thing can no more justifie the doing of it than that constant usage time out of mind for Thieves to Rob between London and St. Albans not that I fore-judge you or refuse to hear any Instances and Authorities from Histories or Records to make good your Assertion F. I thank you for your patience what therefore if I prove that such Resistance has been not only actually exercised by the Clergy Nobility and People in former Ages but that it hath been also allowed by our Kings and approved of by great Councils or Parliaments in those Times for lawful and the Actors in it wholly indemnified and saved harmless nay a power given them and that by the King himself to resist him and defend themselves in case he broke his Charters and Agreements made to and with his Nobility and People or else with some Forein Prince may appear from this remarkable Instance of King Henry II at the end of whose Reign Hoveden in his Annals gives us the Conditions of the Peace made in the last Year of this King between him and Philip King of France with the Consent of their Bishops Earls and Barons where among other Articles you will find this for one particularly relating to the Barons of England who were also to swear to the Peace in these Terms Et omnes Barones Angliae jurabunt quod si Rex Angliae noluerit has Conditiones tenere quod ipsi tenebunt cum Rege Franciae Comite Richardo cos adjâ—vabunt pro posse contra Regeâ— Angliae c. Whence we may without doubt conclude that the Resistance of Subjects in some cases against their Kings was then allowed of even by the King himself and thought not inconsistent with the Allegiance they bore him tho' it might suspend it for a time M. I confess this Instance would be of some weight were it not for the Critical Time when this Peace was made viz. when Richard Earl of 〈◊〉 the King 's Eldest Son had Rebelled against his Father and taken part with the King of France and had drawn over a great many of the Norman and Pictavian and English Barons to his Party which when King Henry perceived this very Author you have quoted here tells you Quod Rex Angliae in arcto positus Pacem fecit cum Rege Philippo that is was constrained to make Peace with him so that King Henry being in this streight the King of France and Earl Richard with the Barons of his Party forced King Henry to sign what Conditions they pleased for there it no such Clause so much as mentioned for the French Barons But make the most of it it is but a Temporary Relaxation of Allegiance from King Henry to his Barons and the King might surely thus release them if he pleased But it is plain they could not have acted thus without this Condition had been expresly inferred F. Well supposing King Henry to have been never so much constrained to the making of these Conditions and that it was his own Act that rendred it lawful it still proves as much as I urge it for viz. that neither the Kings of France or England then thought this Resistance absolutely unlawful for then the King 's own Act could never have dispensed with it But to shew you farther that the People of this Nation have ever maintained this Right of Resistance even with the allowance of our Kings themselves and for the doing
why you cannot take this new Oath of Allegiance since you have the Judgment and Declaration of the Convention which is the Representative of the whole Nation to justifie you in so doing M. I must tell you once again that I think Allegiance is not only due to the King by the Law of the Land but also by the Laws of God and Nature and consequently cannot be dissolved by any subsequent Judgment of a Convention who are and always ought to be Subjects to him and his Right Heirs as long as they are in Being and therefore I should not allow the Prince and Princess of Orange for such were the King now actually dead nay if King Iames himself had stayed in England and had been so over awed by fear or overcome by persuasions as to have declar'd in Parliament that the Prince of Wales was not his true and lawful Son born of the Queen and had thereupon setled the Crown upon the Princess of Orange as his Heir Apparent I could never have thought my self oblig'd to swear Allegiance to her or to own her for my lawful Sovereign as long as the Prince of Wales or the Heirs of his Body are in Being since I am very well satisfied and that by unexceptionable proofs that he is really the Son of the King and Queen for I think I have sufficiently made out by several Declarations of Parliament that the Hereditary Right of the Crown can never be defeated nor alter'd by any Statute whatsoever but according to the Act of Recognition of King Iames the first 's Title which I have already urged the Crown ought to descend to the next Heir by Blood according to the rules of Descent I have now laid down F. I cannot but admire your obstinacy in this matter which proceeds from your old errour of believing that there is a Natural or Divine Right of Succession to Crowns different or abstracted from the Civil and Political Laws and Constitutions of particular Kingdoms which I think I have already confuted by shewing you that there was no such thing in Nature as a Patriarchal Right in Adam or Noah or their Heirs nor yet to any other King as their Assigns or Representatives and therefore though I grant that Allegiance to every lawful King is due by the Laws of God and Nature yet who that King is or who is to be his lawful Successor in limited or mixt Monarchies as ours is can only be determined by the Assembly of Estates of the whole Nation for notwithstanding all you have said there is a very great difference between the Legal Rights of Princes and the natural Rights of Fathers and Husbands which yet may cease and be dissolved in some cases as I have already sufficiently proved for I think it is evident that not only a Legal Title and Legal Authority may be parted from each other but that Legal Titles and Legal Authority may be rightfully separated from the persons to whom they were once due which natural Rights can never be A King may cease to be a King though a Father can never cease to be a Father for Laws have not the same force and power that nature has Now all men confess this separation may be made by a voluntary resignation as also by Conquest in a just War both which will divest such a Prince of all Right and Authority to Govern and if it may be done by either of these ways his Right and Authority is not inseparable from his Person since then there is no natural inherent property in Lands or Kingdoms but what proceeds from the particular Laws of each Kingdom or Common-Wealth therefore who ever the Supream Power appointed by the Constitution of such Kingdoms shall Judge or Determine to have a true and legal Right to the same are to be own'd and esteemed as the true legal owners and possessors thereof by all the Subjects so that if a King can part with his Kingship it is possible he may lose it too since there are more ways than one of parting with that which may be parted with If then a voluntary Resignation of a Crown or Conquest in a just War can give another Prince a just Title to it I cannot see why a â—acit Abdication or Forfeiture of a Crown upon a limited Kings total breach of the Fundamental Laws and Constitution of the Kingdom should not as much discharge all the Subjects of their Allegiance to him and also give the great Council as the Representative of the Nation a like Right of Ordaining a Successor upon such a Vacancy of the Throne and who being once placed therein all the people of the Nation ought to pay the same Allegiance to him as they did to his Predecessors But as for the latter part of your supposition that the right Heirs of the Crown by blood must always necessarily succeed to it that is likewise sounded upon two very false principles first that a lineal hereditary succession to the Crown is established by the Fundamental Laws and Customs of the Kingdom Secondly That the Succession to it cannot be limited by the Parliament or Great Council of the Nation the former of which suppositions I have confuted at our last meetting and as for the other you cannot deny but the Crown has been frequently setled and limited by Act of Parliament contrary to the common rules of Succession as hath been sufficiently proved by the Statute above mentioned of Henry the VII th as also by those several Acts concerning the Succession in Henry the VIII ths time and so it continues at this day by the Statute of the 13 th of Queen Elizabeth whereby it is declared Treason during the Queens Life for any person to affirm that the Queen and Parliament had not power to make Laws to limit and bind the descent and inheritance of the Crown or that this Act was not of sufficient force to bind limit and govern all Persons their Rights and Titles that in any way claim any Interest or possibility in or to the Crown of England in Possession Remainder Succession Inheritance or otherwise howsoever and every Person so holding or affirming after the decease of the Queen shall forfeit all his Goods and Chattels So that I can see no just reason you can have to refuse Swearing Allegiance to Their present Majesties and Their Successors according to the limitation in the said Act. M. Well I see it is in vain to argue these Points any longer with you since it would only force me to repeat the same things over again which will neither edifie you nor my self only give me leave to tell you this much that the last part of your Argument which is the only thing that is new in all your Discourse is founded upon a very wrong ground for though I should grant as I do not since this Act you last mentioned is expired that the Crown may be limited or intail'd by Act of Parliament contrary to the due Rules
in Law since we find by the whole Course both of Law and History that the Statutes made by Kings de facto are as truly and as much Laws as those made by your Kings de jure and Attainders for Treason committed against them have been so far from being declar'd void that they could not be revers'd by any other means than by particular Acts of Parliament made for that purpose as I have already shewn you from divers instances both from History and Records Nor is your exception against the present Parliaments not being call'd by the Kings Writ of any force since I have already prov'd at our last Meeting from the example of the Great Council that assembled to recognize and ordain Edward the first to be King when he was in the Holy-Land as also by the Parliaments of Edward and Richard the Second by which they were deposed and Edward the Third and Henry the Fourth declar'd to be their Successors That those Parliaments could not be summon'd by those Princes whom they so recogniz'd and therefore though they were call'd by the Writs of the former Kings yet their Authority determin'd as to be the Parliament of that King that call'd them upon his ceasing to be King and therefore must owe their sitting longer wholly to the Authority of him they had already declared King whose Presence and Authority was then looked upon as sufficient to give them power to sit and make Laws with the succeeding King though they were never summon'd by him To these Parliaments I may add that of the first of King Charles the Second which called home the King and after his return made several Statutes both publick and private which stand good to this day so that to conclude you have no reason either from Law or History to maintain that there can be no vacancy of the Throne or that none can be declar'd King or Queen but in a Parliament summon'd by the Writs of that Prince whose Title they are to recognize M. I shall not deny the matters of Fact to have been as you lay them as to the Great Councils or Parliaments you mention but in answer to this you may remember that as for those Parliaments call'd in the name of Edward or Richard the Second there is no Procedent to be drawn from them because they serv'd only to depose their Lawful Kings and to set up those who had no right at least as long as they liv'd and you very well know that any coersive power in the two Houses of Parliament over the King is expresly renounc'd and declar'd against in the Parliament of the thirteenth of K. Charles the Second as I have already shewn you but as for the Convention which was call'd in the first year of that King I have also given you my judgement of it that though they might lawfully meet to vote the return of their Lawful Sovereign and to recognize his Title yet were they not for all that a lawful Parliament as to the raising of Moneys or making of Laws and therefore what ever they did to both these they were fain to be confirmed by the Parliament of the 13th I now mention'd But indeed I cannot but admire as this mungrel hodge podge course of Succession which you now suppose to take place in England for you cannot deny but the Crown is hereditary and has been always claim'd as such for near 500 years and yet for all that when ever an Usurper and a Parliament shall agree together he to take the Crown by force and they to recognize his Title as soon as he pleases to call them he must then be looked upon as a lawful King and the just and rightful Title of the true King or lawful Heir of the Crown shall be so far destroy'd as that Allegiance must be due to this Usurper though perhaps he obtain'd the Crown by the most horrid vilanies in the World as the deposing and murthering of his Lawful Sovereign as Henry the IVth did and which would also have been the case of Oliver Cromwell had he ever taken upon him the Title of King so that is to set on foot at once two contrary legal rights a legal right and title to the Crown by descent of blood without a right to exercise the Authority belonging to a King and a legal right to wear the Crown and exercise the authority belonging to it without any antecedent legal right to the Crown it self which would indeed render the legal authority in England to be like the right that men have to those Creatures that are ferae naturae which belong to him who can get them into his power for as to the consent or recognition of Parliament I look upon that as a meer â—auble since your self cannot shew me any Usurper since the Conquest though never so wicked and notorious who ever fail'd to have his Title so recognized and confirmed by Parliament as you your self cannot deny which methinks is a high derogation from the Dignity of a true Hereditary Monarchy such as ours either is or at least ought to be F. I shall reply but this once upon this head since I see there can be nothing new said upon it and therefore you your self are forâ—ed to repeat what you have already â—urged at our last Meeting only you strive to support it by fresh Authorities therefore as to the Parliaments which deposed King Edward and Richard the Second I cannot blame you for denying them to be lawful precedents because they make directly against your opinion but you say nothing to that of the first Great Council or Parliament of Edward the First which not only ordain'd he should be King but also appointed all the Great Officers of the Kingdom which were to govern it in his absence but you may deny the authority of those Parliaments of the first of Edward the Third and first of Henry the Fourth as much as you please in a Chamber but if you should do the like at Westminster-Hall against any Act of Parliament because made whilst Edward or Richard the Second were living you would soon be over-rul'd and told that those Laws had still continued in force and unrepeal'd and it did not belong to private men to question those Acts that have been hitherto receiv'd for Law But as for what you have said against the authority of the Acts of that Parliament that brought in the King I have already prov'd that they were only confirm'd 〈…〉 cantela and that they had been good without it appears by this that all their private Acts though never confirm'd in the following Parliament are still in force But if the solemn Recognition of a Kings Title by Parliament be such a bauble and so easily obtain'd as you suppose I may say the same of that Act which recognized King Iames the firsts Title that it was done meerly out of flattery upon his Accession to the Crown nor can you reply that they might do this because he
8. p. 580 581. W. All Burroughs that sent Members antiently held in Capite of the King D. 8. p. 557 578. W. They sent such Members by an inherent Right or at the Discretion of the Sheriffs Ib. p. 593. 604. C Cain W. he forfeited his Birth-right by the Murther of his Brother D. 2. p. 67. W. His Eldest Son was a Prince over his Brethren Ib. Canons of 1640. their validity discussed D. 4. p. 284. to 286. King Charles the Firsts pretended Commission to Sir Philim O Neal considered D. 9. p. 636 637. Great Charter of King Iohnâ— W. it was the sole Act of that King or else made by the advice and consent of all the Freemen of England D. 5. p. 324. D. 7. p. 455 456. Great Charter of Hen. the Third W. all the Copies we have now of it were his or else Edward I. his Charters Ib. 461. Children how far and how long bound to be subject to their Parents D. 1. p. 45. to 52. Christians W. as much obliged to suffer for Religion now as in the Primitive Times D. 4â— p. 230. to 234. Chester its County W. the Earl thereof could charge all his Tenants in Parliament without their consent D. 7. p. 501. Church of England W. Passive Obedience be its distinguishing Doctrine from other Churches D. 4. p. 292 293. Cities and Burroughs more numerous in the Saxon times than now D. 6. p. 379. to 400. W. They had any Representatives in Parliament before the 49th of Henry the IIId D. 5. p. 565 572. Whether Cities and Burroughs had not always had Representatives in the Parliaments of Scotland D. 7. p. 505. Clerici terras habentes quae ad Ecclesias non pertinent who they were D. 7. p. 450.451 Clergy a part of the Great Council of the Kingdom in the Saxon Times and long after D. 8. p. 544 to 550. W. None of the Clergy but such as held in Capite appeared at such Councils Ibid. W. The Inferiour Clergy had their Representatives in Parliament different from the Convocation Ib. 546 to 558. Commandment Vth in what sence Princes are comprehended under it D. 2. p. 106. to 109 111. Communitas Regni W. that Phrase in ancient Records and Acts of Parliament does not often signifie the Commons as well before the 49th of Henry the Third as afterwards D. 7. p. 412 to 415. W. That Phrase does not also signifie the whole body of the Kingdom consisting of Peers and Commons D. 6. p. 416. The Drs. proofs to the contrary considered 417 to 423. W. It does also often signifie the Commons alone D. 8. p. 572. to 574. Their Declaration to the Pope in the 48th of Edward the Third D. 8. p. 581 to 582. Their Petition to Henry the Fifth Their Protestation in Parliament in Richard the Seconds time 584. Commons of Cities and great Towns had their Representatives in the Assemblies of Estates of all the Kingdoms in Europe founded by the ancient Germans and Gothes Ibid 607 to 612. Commons their request and consent when first mentioned in Old Statutes D. 5. p. 329. W. Ever summoned to Parliament from the 49th of Hen. the Third to the 18th of Edw. the First D. 7. p. 522. Commons W. part of the Great Council before the Conquest D. 5. p. 369 372. The words Commune de Commune les communes do frequently signifie the Commons before the 49th of Henry the Third D. 6. 423. D. 7. 423 to 484. Common-Council of the whole Kingdom W. different from the Common-Council of Tenants in Capite D. 7. p. 437. to 474. Communitas Scotiae W. it always signified none but Tenants in Capite Ibid. p. 505. to 508. Conquest alone W. it confers a right to a Crown D. 2. p. 128 129. W. It it gives a King a right to all the Lands and Estates of the Conquer'd Kingom D. 3. 168. to 170. W. Any Conquest of this Kingdom was made by King William the First D. 10. p. 715. to the end Constitutions of Clarendon their Title explained D. 6. p. 430 431. Contract Originel W. there were ever any such thing D. 10 p. 695 to 709. D. 12. p. 809 8â—3 Convention W. its voting King James to have abdicaâ—ed the Government be justifiable D. 11. p. 809 to 834. W. Its Declaration of King James's violations of our fundamental Rights be well grounded Ibid. p. 816 832. W. It s voting the Throne vacant can be justified from the ancient constitution of the Government D. 12. p. 839 to 883. W. Whether its placing K. W. and Q. M. on the Throne may be also justified by the said Constitution Ibid. p. 883 to 894. W. It s making an Act excluding all Roman Catholick Princes was legal Ibid. p. 894 to the end Convocation Book drawn up by Bishop Overal its validity examined D. 1. p. 6 8. Copy Holders why they to have no Votes at Elections to Parliament D. 5. p. 513. Great Councils or Convention the only Iudges of Princes Titles upon any dispute about the succession or vacancy of the Throne D. 12. p. 895. D. 13. p. 917. to 919 924. Council of the King in Parliament what it was anciently D. 5. p. 334. Great Council or general Convention of the Estates of the Kingdom W. legal without the Kings Summons D. 5. p. 353. D. 12. p. 894. to 898. Curia Regis what iâ— anciently was and W. it consisted of none but Tenants in Capite Ibid. 368. Crown W. it can by Law be ever forfeited D. 12. p. 833 834. D Defence of a Mans self in what case justifiable D. 3. p. 148 149. Declaration of the Convention setting forth King James's violation of the fundamental rights of the Nation W. justifiable or not D. 11. p. 816. to the end Private Divines their Opiâ—nions about Passive Obedience and Resistance of what Authority D. 4. p. 291 294. W. Many of them have not quitted the ancient Doctrine of the Church of England declaring the Pope to be Antichrist vid. Append. Dispencing Power W. justifiable by Law D. 12. p. 119 to 828. Dissolution of all Government W. it necessarily follows from the Conventions declaration of the vacancy of the Throne D. 12. p. 890 891. Durham W. its Bishop could lay Taxes in Parliament on the whole County Palatine without their consents D. 7. p. 501 502. E Earls of Counties their ancient Office and Institution D. 5 p. 363 to 370. King Edward the Second being deposed W. any vacancy of the Throne followed thereupon D. 12. p. 158 to 861. Queen Elizabeth W. she had any Title to the Crown but by Act of Parliament Ibid. p 872 873. England when first so called D. 5. p. 362. English-Men W. they lost all their Liberties and Estates by the Norman Conquest D. 10. p. 753. to the end English Bishops Earls and Barons W. then all deprived of their Honours and Estates Ib. 756 to 762. English Saxon Laws W. confirmed or abrogated by K. William D. 10. p. 760. Estates of the Kingdom
E. I. ib. p. 554. Rot. cl 31. Ed. III. ib. p. 555. Rot. Pat. 54 H. III. ib. 573. Rot. Wal. 11. Ed. I. ib. 574.575 Rot. cl 28. E. I. Rot. Pat. 8. Ed. II. ib. 576. Rot. Pat. 52. H. III. ib. p. 578. Bundel Brev. 5. Ed. II. Rot. Pat. 40. Ed. III. ib. p. 581. Rot. Pat. 2. H. V. ib. p. 582. Placit Parl. 18. E. I. Rot. Parl. 18. Ed. III. ib. p. 584. inter Com. brev in Scac. 34. Ed. I. Prins Par Reg. p. 26.28.30 Ed. I. ib. p. 586. Parl. Reg. 8. Ed. II. 887. Rot. cl 15. E. II. Rot. cl 2. E. III. Rot. cl 50. E. III. p. 588. Rot. Pat. 42. E. III. p. 599. Rot. Pat. 17. Ed. III. Rot. Parl. 51. E. III. p. 605. A Regency W. legal or practicable in England upon King James's departure D. 12. p. 877. Religion in what Cases we are bound to suffer for it without any resistance D. 4. p. 222. to 235. The Remedies against Tyranny the People of England can have without Resistance considered D. 4. p. 262. to 664. Resistance of Fathers Husbands and Masters by their Wives Children and Servants W. ever lawful D. 1. p. 41. to 44. to 52.60 Resistance of the Supream Powers in what cases absolutely lawful D. 3. p. 146. to 149 D. 4. p. 270. In what cases absolutely unlawful D. 3. p. 176 177. All the evil Consequences of such Resistance considered D. 4. p. 261. to 264. D. 9. p. 649 659 to 666. W. All resistance be forbidden by God in the Old Testament D. 3. p. 190. to the end W. Forbidden by the word of God in the New Testament D. 4. p. 220. to 264. W. Contrary to the Doctrine of the Church of England Ib. p. 283. Resistance of the King and those in Commission by him W. absolutely â—orbid by the Statute of the seventh of Edward the First against bearing of Arms D. 8. p. 612. W. Contrary to the 25th of Edward the Third concerning Treasons Ib. to the end Resistance of Arbitrary Power in our Kings W. lawful both before and since the Conquest D. 9. p. 615 to 637. Such Resistance granted to be lawful by some of our Kings themselves D. 9. p. 617.620.622 Rights and Liberties of the Subject what they are D. 9. p. 666 to 669. Rolls Clause how many wanting in the Reigns of King John and Henry the Third D. 7. p. 517 518. S Sapientes its signification in Ancient Histories D. 6. p. 377. Late Schism upon the Deprivation of the Bishops W. justifiable D. 13. p. 963 to 966. Scotland W. it s ancient constitution were the same with England D. 7. p. 503. to 505. D. 8. p. 559. W. None but Tenants in Capite ever appeared at the Great Councils of the Kingdom Ib. to 510. Scutage Service W. different from a Scutage Tax D. 7. p. 439. to 440.479 to 481. Sermons for the Kings Absolute Power censured in Parliament D. 1. p. 5. Servants and Sons W. all one in the State of Nature D. 1. p. 54. Sheriffs Pardoned by Act of Parliament for holding above one year D. 12. p. 821. States General of the Vnited Provinces W. their making War upon King James the Second were justifiable D. 11. p. 781 782. Ancient Statutes W. the three Estates have not always given their Assent to them as well as the King D. 5. p. 330. to 348. Notwithstanding the different forms of Penning them Ibid. D. 7. p. 484 485.525.528 529. Statue of the Eleventh of Henry the Seventh Cap. 1. W. still in force D. 13. p. 909. to 933. Statute of the Thirteenth of Elizabeth Chap. 1. W. still in force D. 12. p. 894. to 898. All Statutes though made by Vsurpers W. they hold good till repeal'd D. 12. p. 909 911 912. Doctor Stories Case D. 13. p. 950. Subjects how different from Slaves D. 4. p. 251. to 261. W. Particular Subjects may resist the Supream Powers for satisfaction of their own private injuries D. 4. p. 252. Succession to Crowns no certain procepts to be found about it in Scripture or the Law of Nature D. 2. p. 89. to 90. Succession to the Crown of England W. always Hereditary since the Conquest without any vacancy of the Throne D. 12. p. 839 to 875. Sufferings of Christ how far an Example to us D. 4. p. 227. to 233. Suffering for Religion without Resistance when necessary Ib. p. 231. T Tenants in Capite W. they were all Barons D. 6. p. 399.400 W. They could anciently Tax the whole Kingdom at their pleasure as well the Lands held of them as what was not D. 7. 440.479 to 483.500 W. They or else Tenants by Knights service were anciently the only Persons who served upon Iuries D. 10. p. 741. to 746. W. They represented all their under Tenants in Parliament D. 7. p. 512. Tenants in Sâ—â—age W. they were bound by the Acts of those of whom they held their Estates D. 6. p. 420. Tenants in Demesne claimed to be discharged from the Knights Wages by prescription D. 8. p. 588 589. Tenure by Knights service W. in use before King Wil. I. D. 10. p. 750 751. A new Test Oath opposed by a great party of the Poeâ—s in the Reign of King Charles the Second D. 9. p. 659. Testaments W. valid in the meer State of Nature D. 2. p. 86 87 91. The several Texts of Scripture made use of for or against absolute Non-resistance examined viz. in the Old Testament D. 3. p. 190. to the end Texts of Scripture out of the New Testament urged for the like purpose D. 4. p. 220. to 279. Thanes the ancient signification of that Title discussed D. 6. p. 374. to 379. The divers sorts of them amongst the English Saxons D. 5. p. 370. Treason against the Kingdom anciently as well as against the King D. 5. p. 344. Trials by Combate W. in use before the Conquest D. 10. p. 758. Trust committed by the People to the Supream Powers W. unaccountable and irrevocable D. 3. p. 152.154 Insupportable Tyranny W. worse than the State of Nature Ib. 155. Tyrants W. Ordained of God D. 4. 245 246. U Vavasors or mesne Tenants W. anciently reckon'd as part of the Baronage of the Kingdom D. 6. p. 405 406. Universitas Baronagii Angliae Regni what it signified and W. the Commons were comprehended under that Title D. 6. p. 408 409 415 416. Universitas Communis the meaning of that Phrase in Matthew Paris D. 7. p. 470. W. It comprehended no more than the less Tenants in Capite Ib. 471. Primate Ushers Opinion in his Treatise of the Power of the Prince and Obedience of the Subject considered D. 4. p. 271 272. Vsurpers by Sir R. Filmers Principles to be obeyed before the Lawful Prince and his Heirs D. 2. p. 126 127. When Vsurpers may be obeyed before the Lawful Prince and his Heirs D. 4. p. 246. Usurpation W. it gives a rightful Title after three Generations D. 2. p. 128. Vulgus what that word signified in the
auire homme de People Mes Ed. Roy son fils ordeign que home sueroit vers Roy per Peticion Mos unques Roys ne seront adjugez Si non per euâ— melmes lour Iustices So that if the former part of it â—e Law the latter must be so too and then it will directly contradict what you have quoted before out of Bracton That in the time of Henry the 3d in which he lived there lay no Remedy against the King but only by Petition Whereas this Opinion makes him before the time of Edward the First to have been liable to the same Legal Process with other Men. But notwithstanding this Passage in the Year-Book may very well bear a legal Interpretation only by supplying what is indeed to be understood after the Words non pas les Peers le Commune viz. Sans assent du Roy which as it was then true So I hope it will ever be so But I think I can give you a much better Authority than this Year-Book to prove where the Power of Making and Dispensing with Laws doth truly reside viz. The Solemn Declaration of the King Lords and Commons in the 25th Henry 8. a Prince as Jealous of â—is Prerogative as any of his Predecessors where in the Preamble read these words It standeth therefore with Natural Equity and good Reason that in all and every such Human Laws made within this Realm or induced into this Realm by the said Sufferance Consents and Custom your Royal Majesty and your Lords Spiritual and Temporal and Commons Representing the whole State of your Realm in this your High Court of Parliament have full Power and Authority not only to dispense with those and all other Humane Laws of this your Realm as the Quality of the persons and matter shall require And also the said Laws and every of them to Abrogate Annull Amplifie and Diminish as it shall seem to your Majesty and the Nobles and Commons of your Realm present in your Parliament Meet and Convenient for the Wealth of your Realm c. Whereby you may plainly see that the Power of Making Abrogating and also Dispensing with Laws is by this Act ascribed joyntly to the King and the Two Houses of Parliament But though I do not affirm that they have a Co-ordinate Power with the King in making Laws yet they have a Co-operative Power therein which yet is no more than your Co-operation for what is a Co-operation but a Power of working together and how can three Distinct Bodies work together without each contribute their share to produce the Intended effect M. Perhaps I may have bin too unwary in my expression but pray answer the Authorities I have brought from our Ancient English Saxon Laws Wherein it seems plain to me that the King had then the Sole Legislative Power F. I grant he had a chief share in the Legislative Power but not the Sole Power that is He could make no Laws but in the Great Council and by their Consent And this you might have seen as well as I if you had not slyly past by what made against you and therefore in the first place to begin with your Instance of Offa's giving that Boon to the Roman School I think the Authority you bring for it is very Slight for though I own that Matthew Paris who writes his Life Relates this Donation to have been made at Rome without mentioning any Consent or Confirmation of his Great Council Yet this seems but an imperfect account of the matter and according to the usual way of the Writers of those times who are not so exact in such matters as they should be And therefore though Offa did give or vow these Pence at Rome yet the Gift might receive its force from the Consent of his Great Council after he came home Since all his Laws and the Acts of his Councils are lost unless it be one which Sir H. Spelman hath given us from such Remains as have bin saved out of the Libraries of several Monasteries at their Dissolution And this contains no less than the Consent and Confirmation of his Great Council Assembled at Calcuith Anno 940. for the Foundation and Endowment of the Abby of St. Albans as also that of another Council at Verulam for the Conferring of divers other Lands of his own to that Monastery Now I leave it to any indifferent Man to judge Whether that King who could not bestow his own Demesnes upon the Church without the Consent of the Common-Council of the Kingdom could give away at once the 30th Peny of all his Subjects Estates for ever without their Consents I am sure the Donation of the same sort of Pence by King Edward the Confessor which is now to be found among the Laws of King William the First is said to be granted Communi Confilio Regni and that the Saxon Kings could not bestow their Lands upon Religious Uses See Sir H. Spelmans Councils where Baldred King of Kent is an evident Example who though he had given the Mannour of Mallings in Sussex to Christ-Church in Canterbury Yet because his Principes and Great Men that is his Great Council consented not thereto it was revoked untill King Egbert and his son Ethelwulf did afterwards renew the said Grant with the Consent of a Great Council held at Kingston An. 840. as you may see in the same Volume last cited And I am sure after the Heptarchy when our Kings were more Powerful the same King Ethelwulf could not by his meer Prerogative Grant the Tythes of his Subjects Estates to the Clergy without the Consent of a Great Council of his Bishops and Principal Men held at Winchester An. Gratia 855. and Intituled thus Celebris ilâ— donatio Ethelwulfi Regis decimae manfionis omnium benorum per terram suam Deo Ecclesiae factae confirmaâ—â—â— M. I Grant that perhaps these Kings could not dispose of their own Lands or the Estates of their Subjects without the Consent of their Great Council any more than the Kings of France could formerly yet I hope they were Absolute Monarchs for all that F. I beg your pardon if I have bin somewhat long in answering your Example of King Offa. But I will now shew you that they could no more make Laws than dispose of their own or their Subjects Estates without their Consent and which you your self might easily have seen if you had pleased to have Consulted Sir Henry Spelman as Diligently as you have done Mr. Lambard for there you might have found that about the Year 712. King Ina Assembled a Great Council or Parliament wherein he made Ecclesiastical Laws concerning Marriages c. and did other things ad concordiam publicam promovendam peâ— commune Consilium Assensum Episcoporum Priâ—cipum Procerum Comitum omnium Sapientum Seâ—iorum Popillorum totius Regni So likewise if you will please to look into the Decem-Scripâ—ores you will find how Althesian's
and all along the Authoritative parts are expressed by Statuimus volumus interdicimus probibemus praecipimus So that by these Expressions in his Laws the absolute soveraignty of the Conqueror in the point of Law-giving is manifest I shall content my self with a very few Authorities because the matter is so plain Ordoricus Vitalis saith thus Eamque i. e. England Gulielmus Rex suis Legibus commodò subegit And Eadmâ—r Contemporary with the Conquerour in his History thus Vsus atque leges quas patres sui ipse in Normannia solebâ—nt in Anglia scribere volens Cuncta divina simul humana ejus nutum expectabant From whence you may see that all matters as well Spiritual as Temporal depended upon his sole will And tho we have no particular account of what Laws his Son William Rufus made yet we may presume according to the Testimony of Historians that he was altogether as absolute in those Councils he called as his Father as may be seen in Eadmerus his account of his Transactions with Archbishop Anselm So that it is certain he governed by his own absolute Authority raising what money he pleased upon his Subjects 'T is true that in the Reign of his Successor Henry the First the People found some little relaxation by reason of the Charter he made them containing several mitigations of the severity of the Feudal Laws as also those of Forests yet even these are said to be made by his own single Grant and Authority tho I confess it was granted in a great Council So likewise in Florence of Worcester we find that in 28 th of Hen. I. That King confirmed the Acts of a Synod or Council of the Clergy of the Province of Canterbury and gave his Royal Assent to them As for King Stephen tho he was a Notorious Vsurper and Set up and Crown'd by a Faction of Bishops and some few Temporal Lords and that not long after his Coronation he in a Great Council at Oxford granted to all his Subjects another Charter of divers Priviledges and Freedoms from the former Exactions yet the words of the Charter are in his own name and by his own authority solely as appears by these words Observari praecipio constituo But Richard Prior of Hexham alias Hagulstad in his Chronicle closes his Charter thus Haec omnia concedo confirmo salva Regia justa Dignitate mea From which words it is plain that he never meant to part with any of the just and necessary Prerogatives of his Crown So likewise King Henry the Second in a Great or General Council held at London confirmed the Great Charter granted by King Henry the First his Grand-father but this Charter also runs wholly in the King 's own name without any mention of its being assented to either by the Bishops or Nobles And as for the Constitutions made at the Great Council of Clarendon tho that King made the Archbishops Bishops with all the Clergy as also the Earls Barons and Nobility all swear to observe them yet the Enacting part proceeded only from the King as appears by their very Title thus Assissae Henrici Regis factae apud Clarendon c. And Mat. Paris concludes these Constitutions with Decrevit enim Rex From whence it appears that it was the King alone that decreed and Constituted those Laws I shall not say much of the Great Councils in Richard the First 's time since he did not reign long enough to call many but in that held at Notingham we find that the King diseized Gerard de Canville and others and that the King appointed to be given him two Shillings on every Carucate of Land throughout England c. From whence I shall observe that the words Rex praecepit constiâ—uit c. as they are in this Historian shew that the King then had solely the Authoritative Power of passing all Consultations of these Councils into binding Laws even where money was to be levied on the Subjects and that seisure was to be made of their Estates But to come to the more troublesome and perplext Reign of King Iohn in which there were many Great Councils holden yet I shall instance but in some few of them mentioned in Mat. Paris as that of St. Albans held by Ieffery Fitzpeter and the Bishop of Winchester in this King's Absence where ex parte Regis it was firmly enjoyn'd under penalty of Life and Limb that the Laws of King Henry his Grandfather should be kept by all in his Kingdom From whence we may observe that the Laws had their force only from the King's Authority as appears by this expression ex parte Regis firmiâ—er est praeceptum And when afterwards at Runningmead he was compelled to sign the first Magna Charta I own it was done in a Great Council of Bishops Earls and Barons as well those who stood for him as against him Yet that it proceeded wholly from his own good will is plain from the Charta de Foresta of this King as appears by these words Ad emendationem Regui nostri spontanea bona voluntate nostra dedianus concessimus pro nobis haredibus nostris has libertates subscriptas From all which Charters of Liberties we may conclude that the Petitions of the People were drawn into the form of a Charter and passed under the King's Seal as his meer voluntary free Grants and Concessions without their Votes Suffrages and Authority And sometimes such Rights or Liberties have been bestowed and declared by our Kings by way of answer to the Petitions of the Lords and Commons and that this custom is not yet discontinued appears by the Answer of K. Charles the first to the Petition of Right when no other answer would please the Commons but the King 's expressed Assent to their Petition in these words Sole Droâ—â—t faict comme esâ— dâ—sire But to return to the Reign of Henry the Third F. I beseech you Sir give me leave now to answer what you have already alledged out of our Hiâ—â—oâ—iâ—ns for the Supreme and Absolute Power of our Kings before we proceed further to less obscure times And therefore I must tell you that you have in this long speech of yours made use of all the Artifice of an Advocate for a Party viz. in urging all that can any way make for you and slyly passing over whatsoever may make against you And to begin with your story of King William the First I shall not now dispute whether there were any Englishmen in those Great Councils or whether they consisted only of Tenants in Capite since I shall defer that Question till anon But as for the English you have put upon the French Title of the Laws of this King it is not fairly rendred for in the French it is Apres le Conquest dâ— la â—erre which doth not always signifie a subduing by force but by any other ways of acquisition different
Point namely That the King his Nobility and Commons did Ordain and Enact the same And which is more if you shall find any Acts of Parliament seeming to pass under the Name and Authority of the King only as there be some that have that shew indeed yet you must not by and by judge that it was established without the Assent of the other Estates As for the rest of your Insinuations rather than Arguments against the Antiquity of those Expressions Be it Enacted by Authority of Parliament or Be it Enacted by the King Lords and Commons which bear so hard upon you to prove that these last have a share in the Legislative that they were introduced in the Reigns of Henry VI. and VII two Usurpers and but in the Nonage of the former I think I shall be able to shew you that you are very much out in your account for I will shew you much ancienter Authorities wherein the same words or others equivalent have been used in our ancient Statutes And first pray call to mind the Statute of Measures already recited where it is said That by the Consent of the whole Realm of England the Measure of our Soveraign Lord the King was thus made c. which certainly must mean the Assent of all the Estates assembled in Parliament And my Lord Coâ—e tells us in his Third Institutes of an ancienter Record that he had seen of the 7 th of this King wherein it was Enacted by the King the Lords Spiritual Temporal and Commons But since I have given you Presidents enough of Statutes which are said to be made or ordained by the King with the Assent of Lords Spiritual and Temporal and Commons I will shew you one where the King is not at all mentioned and that is in Rastal's Statutes 4 Hen. 4 cap. 24. concerning Aulnage of Clothes wherein it is said to be ordained and accorded by the said Parliament without any mention at all of the King And to let you see that these fatal words you except against were in use before the Reign of Hen. 6. pray see 9 Hen. 5. cap. 4. concerning the Misprision of Clerkâ— in writing which runs thus The King hath now declared and ordained by Authority of this Present Parliament that the Iustices c. which must certainly refer to the Lords and Commons unless you can make the King alone to carry the whole Parliament in his own person But whereas that Phrase had began from Vsurpation it would have been first found in the Statutes of Henry the 4 th But to let you see that Edward the 4 th tho no Usurper yet did not think that these words did abate any thing of his Royal Prerogative pray see in the 4 th of that King Cap. 1. wherein it is recited That the King by the advice assenâ— request and authority of the Lords Spiritual and Temporall and Commons in Parliament assembled hath ordained and established But that by Assent of Parliament and by Authority of Parliament is all one and the same since the Assent of Parliament makes its Authority Pray see the express Judgment in this point of the Lord Chief Justice Crew and Justice Doderidge given in the Great case of the Earldom of Oxford reported in Judge Iokes's Reports To conclude tho I do not deny His Majesties Negative Vote to all Acts of Parliament yet this Prerogative can be concluded only from his giving his last Assent to a Law for when a Bill begins from himself the two Houses have likewise a Negative upon him which is evident in an Act of Pardon which proceeds from the King first and sent down to the Parliament this neither the Lords nor Commons can add or alter one tittlâ— to yet may they notwithstanding his prior Asent refuse the whole Bill if they please tho already past under the Great Seal And tho I likewise grant that it is the Le Roy le Veult that by yielding the highest and last Assent gives the Enacting force to the Law and thus the King may in a Logical sense be said thereby to make the Laws according to that known Maxim Quod dat formam dat esse â—ei Yet this does not hinder but in a Legal sense according to the express declaration of our old Lawyers and Acts of Parliament the Laws owe their obligation to the joint consent of King and Parliament and his giving his last assent or form to the Law no more proves his sole Legislative Power than it would do that of the Lords or Commons if either of them by the Constitution of the Government were to give their Asents last thereunto So that I think upon the whole matter no man can reasonably deny but that Legally the Two Houses of Parliament have also their share not only in framing but Enacting of all Bills that shall pass for otherwise they would signifie no more than the Committee of Estates in Scotland or the King and Council of England in relation to Ireland the former of which draws up all Bills that are to pass in the Parliament of that Kingdom and the latter must approve or reject all Bills that shall pass in the Parliament of Ireland Whereas the Authority of our Parliament consists in their consenting to and Enacting together with the King all Statutes whatsoever And this Distinction I think may very well reconcile Bracton with Fortescue the former of which says Quod leges ligant suum Lâ—torem meaning the King and the latter in the place I have already cited affirms that the People are governed by those Laws quas ipse feâ—t which they themselves make and this I think is to ascribe to the King as much Power as is requisite to a Civil Soveraign and yet to leave a sufficient share to the People to secure themselves from Tyranny M. I must beg your pardon if I cannot be satisfied with your division of the Legislative Power beiween the King and the Two Houses of Parliament since it is against the sense of our old Lawyers Glanville and Bracton who as you your self confess make the King the Sole Legislator And tho I confess Fortescue gives the People a share in it yet he is but a Modern Author in comparison of the other two and writ to support the Vsurped Title of Henry the Sixth So that I cannot comprehend how the Two Houses can have any share properly speaking in the Legislative Power without falling into that old error of making the King one of the three Estates and so co-ordinate with the other two whereas if the King be a Monarch that signifies in Greek the Government of one person whereas by giving the Two Houses a part in the Legislative you divide it into three several shares Whereas there is so close a conjunction between all the Parts of Soveraign Power that the one cannot be separated from the other but it will destroy the form of the Government and only set up an Irregular Commonwealth in its place
defer till another time But I think I shall be able to shew you from undoubted Records and Acts of Parliament from the Reign of Hen. III. as low as Richard II. that these Words when used as I have now said after the Earls and Barons cannot refer to them but to another distinct Estate or Order of Men then called les Communer or les Communes in English the Commons of the Kingdom distinct from the Bishops and Lords M I shall nor now dispute with you concerning the Sense you have put upon the words you mention but I grant they often signifie the Commons after the 18 th Edw. I. in some Acts of Parliament and Parliamentary Records but I must beg your pardon if I cannot allow Communitas to signifie the Commons at this time in your Sense and therefore am not yet convinced that the words la Communalty de la terre mentioned in the Statute of Westm. I. ought to be understood or englished by the word Commons who I do not suppose were then above once called to Parliament till the 18 th of this King But as for what you argue from the Knights of Shires being often called Magnates and Grantz des Countees I allow they are often so stiled in our Statutes and Rolls of Parliament but if you consider the reason of it this will do you little Service since they were so called from their being most commonly at the beginning of their Election chosen out of the Greatest and most considerable Tenants in capite under the Degree of Barons in each County and no other who were chosen to represent the Omnes alios qui de Rege Tenent in capite mentioned in King Iohn's Charter or them and all the other Military Tenants by mean Tenure For 't is scarce to be believed that those Tenants in capite who made such a noise for their Liberties would part with this main point of being personally present or else the Body of them represented by some of their own number in every County And it may be upon this account they had the Title of Notable Knights c. in the ancient Writs of Summons directed to the Sheriffs So that only the Tenants by Knights Service as suitors to the County Courts were the Electors And this was very likely the reason of the Statute of the 7 th Hen. IV. that the Election should be made in the County Court by all the Suitors and also why the Statute 18 th Hen. VI. by which any man that had 40 s. per Ann. of any Tenure who was before permitted to be an Elector was altered by 10 th Hen. VI. and so explained that none but Freeholders of 40 s. per Ann. should afterwards be Electors with respect to the least part of a Knights Fee viz. 40 s. per Annum which were now come into the hands of very ordinary Men. For anciently soon after or near the Conquest there were very few or no great Socâ—agâ— that is such as held great Estates in Soccage and neither the small ones nor the Nativi or Copyholders were reputed Liberi ot Legales Homines as before mentioned or performed the service proper to such Military Tenants or those to whom they had alienated part of their Fees But since I have tired you as well as my self in wrangling about the sense and meaning of the words in dispute between us I shall for the future take a shorter cut and give you two or three Authorities from our Ancient Laws of VVilliam the Conqueror and Hen. II. and Rich. I. which together with King Iohn's Magna Charta will I think make it plain enough in conscience that the Commons as now represented were not summoned to Parliament during the Reign of King Iohn and whether they were so summoned before 49 th H. III. when they were called but once till above twenty years after will be the other part of my Task F. I approve of your Method very well and I assure you I love pedantick Disputes about the Grammatical signification of words as little as your self unless where it is absolutely necessary as indeed you have rendred it so by raising the greatest part of your Arguments from the equivocal use of those general words whereby our Ancient Laws and Historians have stiled the Constituent Members of our Great Councils which if they are well cleared I think it is high time to fall upon some more solid Arguments But before you come to that I cannot forbear observing that your self do allow that in all Acts of Parliament and Records after the 18 th Edw. I. the words Communitas and lâ— Commune when put after the Earls and Barons do signifie the Commons in the same sense in which they are now taken but I must confess it seems incredible nay almost impossible to me that these words should signifie the Community of the Tenants in capite In the 48 th Hen III or 18 th of Edw. I. begin where you please and yet that the next Parliament after those the same words should be taken in quite another sense for the Knights of Shires Citizens and Burgesses and that no Statute Record or Historian of that or succeeding Ages should take the least notice of it is understood But before I conclude this part of the Question I cannot but rectifie a great mistake you have fallen into by adhering to the Dr. with too implicite a Faith For whereas you suppose that the reason why our Knights of Shires were called anciently Grantz des Countees was because they were at first elected out of the Tenants in capite only and who with the other Tenants by Military Service were also the only Electors of them at first till the Statute of 7 th Hen. IV. ordained the Election should be made in the County Court by all the Suitors as if it had not been many Ages so before Whereas if you please to peruse that Statute a little better you will find it was not made to enlarge the number of the Electors of Parliament men for long before that time all sorts or degrees of Freeholders as well Tenants in capite as their Tenants by any kind of Tenure or whether holding of such Tenants in capite or else of others as Abbots and Priors and other Mesne Tenants did alike owe Suit and Service to the County Court and consequently were all alike capable of giving their Voices there at the Election of Knights of Shires however small their Estates were Nor was that Statute of Hen. IV. now cited which requires the Election of Knights of Shires to be made by those that were summoned and all other that were there present made to confer any new Right upon such Feeeholders but only to prevent the Abuses of Sheriffâ— who were wont before that Statute to procure Knights of Shires to be chosen clandestinely without any due Summons or notice given to the Freeholders of the Election much less doth the Statute of 8 th Hen. VI.
you by undoubted Testimonies but since you are now upon the proving part pray shew me that these words I now mentioned did ever signifie the Commons of England in the sense they are now taken before the times we insist on and I have the more reason to desire this from you because it is chiefly from the mistaken Application of these Words that the Gentlemen of your opinion have imposed their false notions upon the World F. I shall undertake what you desire and I hope if I cannot satisfie you the fault will not lie in my Authorities but you prejudices against them In the first place therefore let me mind you how far you and I agreed at our last Meeting when I granted you that these words now in dispute were very equivocal and were often taken in different senses as sometimes you say true for the whole Representative Body of the Kingdom sometimes for the Community of the Barons and sometimes for the Community of the Bishops and Clergy but never as I know of for the Community of the Bishops Lords and Tenants in Capite much less for the Body of Tenants in Capite alone nor were you then able to prove to me that these words must necessarily be understood in your sense for the Community of the Tenants in Capite And tho you should prove them sometime to be taken in that sense yet would it rather make against then for your Opinion since they must then signifie a different Body of Men from your great Lords and consequently as meer Commoners as your Knights of Shires at this day which is against your first general assertion that by these words are always understood the Community of the Baronage only But to come to my proofs which I shall divide in two parts first I will prove that these words Communitas le Commune and Communalty when coming immediately after Comites Barones or Counts and Barons or Proceres in our old Statutes and Records do always signifie the Commons in the same sense in which they are now taken And for proof of this I will begin with the Reign of Hen. III when these words came first to be generally in use and so descend to his Successors as low as Rich. II. and if I can shew you that these words so put always signifie the Commons as well before as after that time I think you have reason to be satisfied that these was never once upon a time such a strange alteration in the constituent parts of our great Councils as you supposed yet none of our ancient Historians or Statutes should ever take any notice of it till these modern Antiquaries took upon them to disperse these Clouds To begin first with the words le Commune pray remember the Patent Roll of the 48th of Henry III. which I mentioned at our last Meeting viz. the â—orâ— of the Peaâ—e between this King the Prince his Son and the whole Body of the Kingdom Assembled in Parliament the Title of which is thus Haec est Forma pacis à Dom. Râ—ge Dom. Edw. Filio suo Praelatis Proceribus omnibus cum Communitate â—ota Râ—gni Angliae communiter concorditer approbata Now pray what can these words Communitate â—ota here signifie but another Body of Men distinct from the Earls and Barons or else it would be a gross Tautology And pray compare this Form of the Peace now mentioned with the Writs of Summons of the 49th of this King when your Dr. grants the Commons were Summoned to Parliament after the same manner as they are now and see if there be any change in the Terms and for proof of this we need go no further then the very Writ of Expences for the Wages of the Knights of Shires which the Dr. himself has given us at large in his answer to Mr. â— it is the 49th of Hen. III. to the Sheriff of Yorkshire wherein after other recitals it follows thus Cumque communitates Comitatuum dictorum variâ—s hoc Annâ— â—â—cerinâ— prastationes ad defensi nâ—m Regni nostri c. He therefore commands the said Sheriff quod danbus militibus qui pro Communitate dicti Comitaâ—â—s praefaâ—o Parliamento interfuerunt c. should be paid their reasonable Expenses De Communitate Comitatus praedicti For going to and staying at and returning from the said Parliament c. from whence it appears that the words Communitas and Communitates in this Writ cannot signifie the Community of Tenants in Capite alone but the Commons of the Coâ—nty in general unless you can prove to me that none but Tenants in Capite had performed these varias praesâ—aâ—iones in the Writ and that none but they then contributed to these Expences of the Knights of Shires otherwise these words must plainly signifie the Commons in general as they did in the like Writ of the 28th of King Edward I. which I shall give you by and by but I shall first shew you a few other Records of this Kings Reign concerning the word la Câ—mmunâ— which Mr. P. has given us they are in the Patent Roll of the 51st of this King wherein He by the Council and Assent of the King of the Romans des Counâ—s des Barons la Commune de la Terre Pardons the Earl of Gloucester and all his Company So likewise in the same Roll the King by the Council and Assent of the said Counts Barons de la Commune de la Terre Pardons the City of London all manner of Rancour and ill Will Now pray tell me a reason why should not the word la Commune in these Acts of Pardon signifie the same thing as the word Communitas in the form of the Peace and in the Writ of Expences of the 49th now cited Since they come immediately after the Counts Barons and so must needs signifie a Body of men distinct from them for there is the same reason why the words la Commune de la Terre should here signifie the Commâ—ns of the Land as that the word Communitates Comitatus should signifie the Community or Commons of the whole County M. Will you give me leave to answer this Question presently because I confess it is very material before you proceed farther There may in my opinion very good reasons be given 1. Why the words Communitas la Commune may signifie the Community of the Tenants in Capite in the Form of the peace and Acts of Pardon and yet signifie the Commons of the County in general in the Writ for Expences you have now mentioned As first because the subject matter is different in the Form of the Peace and Acts of Pardon from that in the Writs of Expences the one being the Communitas Regni and the other Communitas Comitatus only called also in the Plural Number Communitates Comitatuum and then I grant when thus used it always signifies the Commons in general and there may
to the like Exactions of his Son Hâ—n the Third which are branded by all Writers as horrible and illegal oppressionâ— nay are owned to be so by this Kings frequent Confirmations of Magna Charta and Acknowledgments of his breach of them and promised to observe them better for the future But I am sorry to find your Doctor whom you follow both in his Answers to Mr. P. and Mr. A. as also in his compleat History still to cite the most violent and illegal Actions nay the very perjuries for â—lowers of the Crown and Royal Prerogatives But as for the Authorities you urge for this Kings Talliating his Demesnes without consent of Parliament you your self grant that this Talliage was not general upon the whole Kingdom and if so could only concern his own Tenants in ancient Demesn and none else who were always exempted from being taxed with the rest of the Nation because they were lyable to yield the King a reasonable Talliage ratione Tenurae whensoever he needed it yet this was counted rather a priviledge than otherwise since they were not only free from all other burthens and Parliamentary attendance but were also Taxed much less than the rest of the Nation in regard of their Tilling the Kings Lands but when this reasonable Prerogative grew to be abused and the Exactions levyed upon them became intollerable then they would no longer suffer it but got it taken away by the Statute de Tallagio non concedendo after which we find the Tenants in ancient Demesne frequently giving their shares of Aides and Subsidies in Parliament by Delegates of their own as in the Record of the 35 th of Edward the First which you have now cited till at last they came to be resolved into the common body of the Kingdom but aâ— for the City of London it was never taken for part of the Kings Demeans and so is not to be found in Dooms day Book but as appears by Record held of the King in Capite and therefore could be no otherwise Taxed then as the rest of the Tenants in Capite that is by the Common Council of the Kingdom And this made the Londoners deny to be otherwise Talliated as appears by this Record of Henry the Third which you have now cited But the truth is they had this Exaction first laid upon them in the exorbitant Reign of King Iohn and this was afterwards trumped again upon them in all the ill part of his Sons Government because his Father had done it before and I doubt not but if Ship-mony had passed unquestioned and been as often paid in the Reign of K. Charles the First but that it would have been urged as a Precedent in the Reign of Charles the Second But as for your last Authority of the 33 d. of Edward the First pray take notice that it is before the Statute de Tallagio non concedendo and extends only to such Estates in ancient Demesn as were held of the King by Noblemen or Gentlemen either by Gift or Purchase and which for all that still kept the ancient custom of being Talliated by the King as their under Tenants were by them to enable the Lords to pay the Kings Talliage and in this sense I understand these words in this Record unde sunt in Tenantia i. e. of which they are in Tenancy to the King Nor does the Record call them Dominica sua as it does the Kings Demesns that follow so that this could not be a Tax upon all under Tenants by Knights Service as you suppose sinâ—e their Estates were never called Antiqua Dominica and therefore I think after all you cannot shew me any legal Precedent that our Kings claimed a Right under colour of their Prerogative of Taxing the whole Nation de Alto â—â—sso at their pleasure M. I shall not now dispute it longer with you whether the Kings of England had not anciently a power of Taxing the Lands held of them without the consent of their Great Council but thus much I think I may safely aver that when this Great Charter was made the Tenants in Capite as the Common Council of the Kingdom gave Taxes and made Laws not only for themselves but their Mesne Tenants and the whole Nation also Nor was this at all unreasonable that those who thus held Estates by Mesne Tenure under the Tenants in Capite should be bound by the Acts of those of whom they held them since we see in Scotland that at this day none sit there either as Commissioners of Shires or Burgesses for the Royal Buroughs but such as hold in Capite of the King for anciently before the Law for excusing the smaller Barons and free Tenants in Capite and sending Commissioners of Shires in their stead was introduced by a Statuâ—e made in the Seventh Parliament of K. Iam. 1. A. Dom. 1420 it consisted all of Tenants in Capite viz. of the Bishops Abbots Priors Earls Barons Libere Tenentibus qui de Râ—ge tâ—nent in Capite as appears by the very words in the Latine Titles to divers of those Statutes as you may find them in Slenes Collection of Scotch Laws Now if this Law did anciently and does still prevail in Scotland that the Tenants in Capite should be the sole Representatives of that whole Kingdom I cannot see any Reason why it might not have been so anciently in Englâ—nd also especially since I can give you so good Reasons to back this opinion M. I will answer your Argument from Scotland by and by but in the mean time give me leave to tell you why I think it could never have been the custom in England and that for two Reasons first because it was against Reason and 2 ly because it was against the known Law of the Kingdom that it was against Reason is apparent since what reason was there that if a Man in those times purchased an Estate for a valuable consideration of a Lord or any other Tenant in Capite as certainly thousands did to be held either by Knights Service or in Socage that such a Tenant should lye at the Mercy of his Lord to dispose of his Estate in Taxes and make Laws for him at his pleasure however exorbitant those Taxes were or inconvenient those Laws might prove the Lord being no Representative of his own choice or appointment In the next place that this was contrary to the received Law and Custom of the Kingdom in those times I can prove by two very sufficient Authorities the one of the Earl of Chester the other of the Bishop of Durham Now it is certain that both this Earl and Bishop helâ— their County Palatines in Capite immediately of the King nor had those Counties any Representatives in Parliament till long after that they had Knights of Shires and Burgesses granted them by particular Statutes made for that purpose now according to your Hypothesis all the Freeholders and Inhabitants of those County-Palatines should have been bound by all Acts
Inferiour had either themselves in person or else by their Representatives a place in the Saxon Witten Gemots or Mycel Synods and made together with the Laity one entire Council or general Assembly without the joynt consent of both which no Laws or Constitutions whether Ecclesiastical or Civil could be enacted for proof of this we need go no farther than Sir H. Spelman's first Volume of Saxon Councils and particularly in the Councils or Synods of Clovesho first and second that of Kingston A. D. 838. that held under King Egbert and Withlafe King of the Mercians and that of Winchester under the same King Egbert in which Tithes were first granted in all which you will find that both the Clergy as well the Inferiour below the degree of Bishops and Abbots as also the Laity below your Earls and great Aldermen and Wites had a share And that this continued so both in and after the Norman Times appears by the first great Councils we have left us that were held under the first Kings of the Norman Race M. I should be very glad to see that proved for I always hitherto believed that none of the Clergy had then any Votes in the Great or Common Council of the Kingdom but those Bishops Abbots and Priors who all held in Capite of the King alone and tho' it is true there was also a Synod or Convocation of the Clergy often held at the same time when the Common Council of the Kingdom was assembled yet was it no part of that Council and as the Clergy had nothing to do in the making of Temporal Laws so had the Laity no hand in the making of Ecclesiastical Canons or Constitutions for the Popes Legate or Arch-Bishop of Canterbury often held these Synods at other times when the Common Council of the Kingdom was not assembled at all and thus it continued till the 25th and 26th of Henry the 8th when the King was first by the Clergy in Convocation and afterwards by the whole Parliament recognized and declared Supreme Head of the Church of England under Christ and from that time the King reassumed the Power which the Pope had before usurped and his consent alone under the great Seal is the only Ratification of all Canons or Ecclesiastical Constitutions passed in either of the Convocations of Canterbury or York at this day F. I grant that for between three hundred and four hundred years the matter of fact hath been as you say but that it was not so from the beginning is also as certain for first in the Saxon times before the Popes Usurpation came in it is evident from the Councils or Synods I have now cited that the King had no more power to make or confirm any general Ecclesiastical Laws or Constitutions without the consent of the Wittena Gemot or Mycel Synod consisting of the Clergy as well as Laity than he had to make Temporal Laws without it So far were they in those times from having any notion of any personal Supremacy in the King in Spiritual more than in Temporal matters and that this continued so till the Pope did not only usurp upon the King 's Right but that of the whole Kingdom in general may appear by those Memorialâ— we have left us of such common Councils or Synods in the Reigns of our first Norman Kings For the Proof of which I shall begin with the Reign of William l. in whose 14 th Year the Priviledges of the Abby of Westminster were Confirmed by that King in a Common Council as well of all the Clergy as Laity of the whole Kingdom as may be proved by a Charter still to be sound at large in the Old Charâ—ulary of the Abby of Westminster now in the Corronian Library Collected by Sulcardus an ancient Monk of that Abby the Conclusion of which Charter of Priviledges makes it very plain of what Members this Council then consisted and who gave their Consents to the Acts of it which pray read In solemnitate Pentecostâ— haebito consilio in celeberrino loco praescripti Westmonast a nostra regia Majâ—sâ—ate Conventis in unum cunctis Regni nostri Primatibus ad audiendes confirmandas quosdam Synodalis decreti causas necessarias communi consensu maxime Episcoporum Abbatum alioâ—um insignium Procerum c. Scripta est haec Charta sigillata ab ipso Regâ— supradicâ—is personis testificata confirmat auctorizata in Dei nomine c. This being one of the first and most remarkable Councils of this Kings Reign I cannot let it pass without observing First That all the chief men of the Kingdom were there as well of the Clergy as of the Laity and that the Words Primates and Proceres here mentioned are very Comprehensive and may take in many others besides your great Lords and Tenants in Capite I have already proved at our last Meeting but one Secondly Pray observe that this Charter of Priviledges tho' all of them concern meer Temporal Things is authorised Confirmed by the common Consent and Subscriptions of all the chief men as well of the Clergy as Laity from all which nothing can appear more plain to me than that in the Reign of this King the Clergy and Laity made one Common Council without whose joynt Consents nothing could be transacted in the Legislative Whether of Ecclesiastical or Civil Concernment I could give you more Instances of this kind in this King's Reign but I make haste to that of his Son William II. in whose 7th Year Eadmeâ—â—s tells us there was a Common-Council held at Rockingham about the difference between Archbishop Anselme and the King at which were present Episcopi Abbates Principes ac Clericorum ac Laicorum numerosa multitudo noâ— that by Principes or Chief Men may be here meant many more than your Tenants in Capite I have already sufficiently proved and that this Numerosa multitudo must mean somewhat more than those I shall prove fâ—rther by and by In the long Reign of Henry I. I could give you many Instances of this kind buâ— let these suffiâ—e In the 7th Year of this King Bromton tells us in his History speaking of the Council in which this King gave up his Right of Investituâ—es Clero Populo ad Concilium Londoniae congregato and who this Clerus and Populus then were he immediately explains himself thus Astantibus Archiepiscopis Episcopis caeteraq multitudine maxima Procerum Magnatum under which words I have already proved that divers others besides your Tenants in Capite might be comprehended and their great number shews them to have been more than those But tho' this Author does not here expresly say it yet that the Inferiour Clergy were likewise at these Councils appears from Sim. of Durham and the Câ—ntinuator of Florence of Worcester A. D. 1126. being the 25. of this King where they both make mention of a Synod or Council held at London at which were
place as to the dispensing Power which the King has lately assumed to himself in matters of Religion and thereby putting into Offices and Commands persons uncapable by Law of bearing them without taking the Test as I shall not now dispute the Legality or Illegality of the Kings Declaration concerning it so as to that part of it that concerns Liberty of Conscience or dispensing with the Papists and Dissenters to meet in Assemblies for their Religious Worship notwithstanding all the Acts made against Mass and Conventicles it was no more than what King Charles the IId had done before with the Advice of his Privy-Council in which if it had been Rebellion to have opposed him sure it is the same crime in the Reign of his Brother 2. As for the Commission for causes Ecclesiastical F. Since I foresee your discourse upon this Subject is like to be long and to consist of many more heads than I doubt my memory will serve to bear away pray give me leave to answer all your instances one after another as you propose them First then as to the late Declaration concerning the Dispensing Power it was so far from being done by Law or so much as the Colour of it that besides its being against divers express Acts of Parliament which tye up the Kings hands from dispensing with the Act against publick Mass and Conventicles as also that disable all Persons whatever to act in any publick Imployments till they have taken the Test appointed by the said Act in which all non obstances are expresly barred But this Declaration was never so much as shewn to the Privy Council till it was ready to be published and then indeed the King caused it to be read in Council declaring that he would have it issued forth tho' without ever Putting it to the Vote or so much as asking the consents of the Privy Councellours there present though I grant the Title of it sets forth that it was done by his Majesty in Council to impose upon the Nation that stale cheat whereby this King as well as the last would have had us believe that their Declarations had been issued by the consent of the Council when God knows there was no such thing And as for any judgment or opinion of the Judges to support it and make it pass by colour of Law it was never as I can hear of so much as propos'd to them in their judicial capacities though perhaps it might be propos'd to the Lord Chancellor and some of the Judges who were of the Cabal which is nothing to the purpose all that I ever heard to have been brought judicially before them was the Case of Sir Edward Hales taking a Commission for a Collonel of a Regiment after he had openly declared himself a Papist in which great point though I grant the Major part of the Judges gave their opinion for the dispensing Power yet was it only in the case of Military commissions as several of them afterwards declared and not of all sorts of Imployments as well Civil as Military much less for Popish heads of Colledges Parsons and Bishops to hold their Livings Headships and Bishopricks if they pleased to turn to the Romish Religion or that the King should please to bestow them upon Popish Priests it would have been as legal in the one case as in the other Since as for Popish Heads of Colledges and Parsons we have had too many instances of it and if we had none for Bishops we must thank either the constancy of most or the timorousness of some of them if they have not openly declared for the Romish Religion and yet might have kept their Bishopricks notwithstanding but I do not at all doubt but that such a general dispensation for professed Papists to take and hold all sorts of Offices and places of Trust not only Military but Ecclesiastical and Civil would have in a little time brought all Offices and Imployments into their hands Nor is this dispensing power in matters of Religion the sole thing aimed at by this Declaration as appears by the very words and whole purport of it which is not confined to matters of Religion only but claims an unlimited power of dispensing with all sorts of Statutes in all cases whatever none excepted and if so pray tell me what Magna Charta or the Statute de Tallagio non concidendo or any other Law will signifie whenever the King pleases to dispense with them either as to raising Money or taking away mens Lives or Liberties or Estates contrary to Law nay the Papists already give out and that in Print that all Laws for taking away Religious Orders and Suppressures of Monasteries are against Magna Charta by which holy Church that is the Popish Religion then in being is to injoy all her ancient Rights and Liberties and the Abbots and Priors do thereby as well as the Bishops and Lay Lords reserve to themselves all their Ancient Rights and free Customs now whether this unbounded Prerogative would not quickly have destroyed not only the Ecclesiastical but Civil constitution of this Kingdom as they now stand establisht by Law and would have soon introduced both Popery and Arbitrary Government on this Nation I leave it to your self or any indifferent person to consider And though I do not say that the bare giving of Papists or Protestant Dissenters a Liberty of Religious Meetings or Assemblies for Mass or Preaching is an infringment of the free exercise of our Religion establisht by Law yet pray take one thing along with you which is a matter of great moment both to the Dissenters and to our selves that if the King can thus by his Prerogative give both Papists and Fanaticks a Liberty to meet publickly contrary to Law let the latter look to it for he may by the same Prerogative whenever he pleases dispense only with the Papists and keep the Laws still on foot against the Dissenters nay he may by the same unbounded Prerogative dispense with all the Laws for the publick exercise of our Religion and under pretence of dispensing with them only in some particular cases shut up our Church Doors one after another beginning with the Cathedrals and so proceeding by degrees to Parish Churches and though I grant King Charles the IId did assume a power of dispensing with all Statutes concerning Religious Meetings contrary to Law yet the Nation had not then any sufficient reason to rise in Arms against this Declaration since it did not extend the Kings Prerogative beyond those Acts concerning Religious Worship and farther the Nation was not out of all hopes of having it redressed by the next Parliament and so was not in that desperate condition in which it was lately before the Prince of Oranges coming over And you may remember that the Late King upon the joint Address of the Lords and Commons against that Declaration was forced to call it in and cancel it which certainly ought to have been better considered
make so light of this Testamentary Doâ—â—tion of Edward the Confessor which the greatest part of the Writers nearest that time do suppose to have been really made on the behalf of Duke William and that notwithstanding this bequest Harold unjustly and contrary to his own Oath did by force set the Crown upon his own Head without any precedent Election of the Clergy Nobility and People as was required at that time since it was impossible for them to meet in so short a time for King Edward dying on the Eve of Epiphany was buried on Twelfth day and on the same day Harold took upon himself the Crown by the consent of some of the Bishops and Nobility of his Faction then at London so that he was certainly no better than an Usurper and therefore by the Conquest of Harold and his party your Conqueror could acquire no right upon the free People of England since they never gave their consents to place Harold on the Throne and consequently K. William could have no just cause of making a conquest upon the whole Nation since neither did he ever in all his Reign as I can find call a common Council of the Kingdom to recognize or confirm his Title and tho' it is true Harold proving a Valiant and Popular Prince got the good will of the common People by divers Acts of Grace which he had lost by his violent taking the Crown while Edgar Atheling the only remaining Male Heir of the Saxon Race was in being and found very many who were willing to fight for him not only against the King of Norway who had a little before Invaded the Kingdom but also against Duke William yet all those in his Army could amount to nothing near the whole Kingdom who never contributed to the War by any publick Vote or Tax and therefore did not countenance it by giving Money or raising of Men as you suppose so that D. William could not pretend a right of making War against any body but only Harold and his Accomplices but as for the Testamentary Donation of Edward the Confessor tho' you make so light of it yet Ingulph says expresly that Edward the Confessor some time before his Death sent Robert Archbishop of Canterbury as his Ambassador to D. William to let him know That he had designed him his Successor not only by Right of Kindred but by the merit of his Vertue and that after this Harold coming into Normandy promised upon Oath to assist him in it and Will. Malmesbury says also that Edward the Father of Edgar Atheling dying almost as soon as he came into England K. Edward his Cozen being dead gave the Succession of this Kingdom to William Duke of Normandy with whom also agree Florence of Worcester and William of Poiâ—tou and all the rest of the Historians of that Age as well English as Normans nor do I know any of them except Simeon of Durham and Roger Hoveden who make Harold to have been appointed Successor by K. Edward or to have been so much as solemnly Crowned by the Archbishop of York But I confess your main objection is still to be answered viz. what precedent Right Duke Wâ—lliam could have to the Crown of England by this Testament of King Edward since it was then either an Elective or else an Hereditary Kingdom and so this Donation could confer no right on this Duke in Prejudice of the Peoples right to Elect or else of the next Heir to succeed In answer to which I must tell you that which perhaps you may have never considered that the Crown was then neither properly Elective nor Successive but a mixture of both M. That seems a kind of a Paradox and what I never heard before pray explain your self for I do not understand how it could be F. Why then I will tell you the Crown of England in those times was very like what the Crowns of Denmark and Sweden were not long since and as the Empire is at this day in which tho' the Estates or Diet might chuse whom they pleased for King or Emperor yet they still kept to the same Family or Line as long as there were any Males left of iâ— fit to succeed which custom often gave the King in Being a power which by degrees came to be looked upon as a kind of Right either upon his Death Bed or else at any time before to nominate one of his Sons or near Kinsmen to be his Successors by his last Will or Testament especially if he had no Sons of his own as happen'd in the case of King Edward the Confessor now this nomination tho' it did not alone confer a right to the Crown yet it made the person so named the fairest candidate for it and was such a recommendation to the Estateâ— or great Council of the Kingdom as they never passed by or denied as I can ever find by the best inquiry I have made and for proof of this I shall appeal to the Testament of K. Alfred as you will find it Printed from an Ancient Manuscript in the second Appendix to his Life in Latine publisht at Oxford Which begins thus Ego Alfredus Divino munere labore ac Studio Athelredi Archiepiscopi nec non totius Westsaxoniae Nobilitatis consensu pariter assensu occidentalium Saxonum Rex quos in Testimonium meae ultimae voluntatis complementi ut sint advocati in disponendis pro salute animae meae regali electione confirmo tam de haereditate quam Deus at Principes cum senioribus Populi misericorditer ac benigne dederunt quam de haereditate quam Pater meus Aethelwulfus Rex nobis tribus fratribus delegavit viz. Aethelbaldo Aethelredo mihi ita quod qui nostrum diutius foret superstes ille totius Regni dominio congauderet c. From whence you may collect first that tho' this King in the very beginning of his Testament ascribes his obtaining the Crown not to any Hereditary Right but the consent and assent of the Nobility of West-Saxony yet he also here mentions the entail of the Crown by his Fathers Will upon his two Elder Brothers and himself successively before any of his Elder Brother's Sons who were living at the time of the making of this Testament of K. Alfred's as appears by the Will it self in which they are expresly mentioned now how could this be that he was King as well by the consent or election of the West-Saxon Nobility as by his Father's Will unless both these had been required to make him so Also Will. of Malmesbury tells us of K. Athelstan the Grandson of K. Alfred that Iussu Patris in Testamento Aethelstanus in Regem est acclamatus but in the beginning of this chapter he also tells us that Aethelstanus electus apud Regiam aulam quae vocatur Kingston Coronatus est quamvis quidem Alfredus cum factiosis suis obviare tentasset upon that pretence that Athelstan was a Bastard so that you may
permit his Son to Reign in his stead which though with some reluctance he at last agreed to and thereupon Prince Edward took the Crown not by Election as you set forth but by the cession and resignation of his said Father as appears by the account which this King gave of it to the Sheriffs of all the Counties of England within a few days after his taking upon him the Crown which Writ or Letter is still to be seen among the Roll's in the Tower and is also published in Walsingham as a Proclamation which because it will give very great light in this matter I pray now read it at length Rex vicecom Ebor. Salutem quia Dominus Edwardus nuper Rex Angliae pater noster de communi confilio assensu praelatorum Com. Baron Alior Magnat necnon Communitat totius Regni praedict spontanea voluntate se amovit a Regimine dicti Regni volens concedens quod nos tanquam ipsius primogenitus haeres Regni gubernationem regimen assumamus nosque ipsius patris nostri bene placito in hac parte de consitio avisamento Praelator Com. Baron Magnat Communitat predict onnuenâ—es pubernacula suscepimus dicti Regni fidelitates Homagia ipsorum Praelitor Magnat recepimuâ— ut est moris teste Rege apud Westmonast 29. Ian. So that you here see this King takes no notice of the deposition of his Father or the Election of himself but only that by the Common Council and Assent of the Prelates Earls Barons c. The King his Father had by his own free Will removed himself from the Government of the Kingdom and that therefore he had by the good Will of his said Father and by Council and Advice of the said Prelates Earls c. taken the Government of the said Kingdom upon him But King Edward the 3 d. being dead his Grandson Richard the 2 d succeeded him having been before recognized by Act of Parliament as Heir Apparent to the Crown in his Grandfather's Life Time immediately upon the Death of his Father Edward the black Prince so that he succeeded to the Crown though an Infant and having great and powerful Uncles then alive and though by his ruling too Arbitrarily and being too much govern'd by Flatterers be became hated of his Subjects and thereupon gave occasion to Henry Duke of Lancaster whom he had before banished to come over and take the Kingdom from him without striking a stroak and having taken the King Prisoner call'd a Parliament in his name who took upon them most unjustly to Depose King Richard tho' 't is true he also made a solemn resignation of it by his own seeming consent but it is certain it was forced from him for fear of worse usage if he refused it F. Pray give me leave to answer what you have now said before you proceed farther in this History of the Succession In the first place I shall not deny but that from the Reign of King Edward I. the Crown has been always claim'd tho' not constantly enjoy'd by right of Blood yet that the custom was otherwise before I think the Instances I have given from the time of your Conquest are more than sufficient it is likewise as certain that this Succession by right of Blood was never setled by any positive Law and therefore must be purely derived from that Tacit consent of the People called Custom Secondly That the two Houses of Parliament have often notwithstanding this claim placed or fixed the Crown upon the Heads of those Princes whom they very well knew could have no Hereditary Right to it Thirdly That such Princes have been always obeyed and taken for lawful Kings all their Laws standing good as this day without any confirmation by their Successors tho' they pretended to a better Title Now if I prove every one of these three propositions I think the case will be very plain that though the Crown has been claim'd and often enjoy'd by right of blood yet hath it been held near as often otherwise since that time so that the Succession to it hath been still declar'd under the direction and limitation of the Present King and Parliament This being premis'd I shall proceed in the next place to answer what you have said concerning King Edward the first 's being only Recogniz'd and not Elected King by the Parliament it is plain from this History that the Great Council still maintain'd their anâ—ient right of assembling upon the death of the King and of Judging who should be his Successor and that without any summons from him which will serve to justifie as do all the other instances aforegoing that the late Convention meeting and setling the Crown without any Writs or Authority derived from King Iames was no new thing but that they have therein done no more than what hath been antiently practised in like cases and tho' 't is true the words in Walsingham is recognoverunt yet there is also other words which seem to intimate that it was then in the power of the Great Council whom to declare for lawful Successor the words are Paternique Successorem honoris ordinaverunt that is they ordain'd or decreed him Successor of his Fathers Dignity which sure is somewhat more than a bare Declaration of an undoubted precedent Right and what power the Great Council was then looked upon to have in the ordering of this Kingdom appears by that Writ of Dedimus for all mens taking the Oaths of Allegiance in the Country which is still to be seen in the close Rolls and begins thus Quia defuncto jam celebris memoriae Domino Henrico patre nostro ad nos Regni Gubernaculum successione Haereditaria Procerum Regni voluntate fidelitate nobis praestita sit devolutum c. where besides the Hereditary Succession the good Will and Fidelity of the Great Men is reckon'd as one of the means by which the Kingdom came to him and that this course was also observed upon the accession of his Son Edward the 2 d. to the Crown seems likewise as evident from the same Author who tells us in the beginning of the Life of this Prince that he succeeded his Father King Edward non tam jure Hereditario quam unanimi consensu Procerum Magnatum which observation had been altogether needless had an unalterable Hereditary Right to the Crown been the setled But as to what you say of King Edward the 3 ds Right whilst his Father was Living to have been wholly due to his resignation tho' the place I cited out of Walsingham be express in this point yet against this you urge a Writ or Declaration as also a Proclamation of this Kings wherein he thus sets forth his Title viz. That by the Voluntary resignation of King Edward his Father and by the Council and Advice of the Prelats Earls and Barons c. he had taken upon him the Government of the Kingdom and consequently that
against himself therefore if Richard the IIId had been a King in the sence of this Law we may be sure he would not have had such an infamous censure past upon him after his death Bradshaw and his High Court of Justice were the first that were so hardy as to pronounce a King of England guilty of Treason Fourthly If this notion of a King de facto had been allowed in the 11th of Henry the VIIth the Principal Assistants of Richard the IIId could not have been attainted for Richard being actually in the Throne he was according to your Modern way of arguing Rightful King and consequently the People ought to own him as such and defend him against all opposers and if so certainly they ought not to be condemned as Traytors for doing their duty as we find many of those were who fought for King Richard Fifthly at the end of this Parliament Henry the VIIth granted a General Pardon to the common people who had appeared against him in the behalf of Richard the IIId now Pardon supposes a fault and the breach of a Law which they could not have been charged with if the plea of a King de facto had been warranted by the Constitution F. I must freely tell you that you do not argue so much like a Lawyer in this Argument as you did in your former and you have in that forgot to what end those Statutes you mention were made and what is the purport of them or else some body hath misinformed you for though I grant that all those hard expressions you mention are given of the Kings of the Lancastrian Line in those Statutes of the 1 st of Edward the IVth yet do none of these expressions prove that they were not true and legal Kings in the eye of the Law all the while they Reign'd since divers Persons were attainted for High Treason against them whose attainders were never reversed but stand good to this day as in particular the attainder of the Earls of Kent Salisbury and of Huntingdon who were all attainted by Act of Parliament in the second of Henry the IVth and also the Earl of Northumberland and his Son the Lord Piercy attainted in the 5th of this King all which attainders were never reversed So likewise Richard Earl of Cambridge was found guilty of Treason by his Peers and his Attainder confirmed by Act of Parliament in the second of Henry the Vth and though it is true this Attainder was afterwards reversed in the first of Edward the IVth because the said Richard was not only his Grandfather but was also Condemned for endeavouring to make Edmund Earl of March his Brother-in-law King of England from whose Sister King Edward the IVth claimed the Crown yet the very reversing this Attainder by Act of Parliament declares it to have been good untill that Repeal since it was not declared void all which are plain and evident proofs that Treason may be committed against the King de facto and consequently that Allegiance is also due to him and not to the King de jure I have likewise also proved that all those Statutes which were made by those Kings and are not repealed stand good at this day without any confirmation by King Edward the IVth and this you have no way to answer but by instancing in Patents of Honour or Charters of Priviledges granted by those Kings and confirmed by Edward the IV th from whence you would inferr that some other Acts of like nature were in the same condition which let me tell you in no good argument against them for if you please to read that Statute of Edward the IVth you mention and you will there plainly see that the Grants Patents and other things there confirmed or either judicial Proceedings in the Courts of Justice or else such Charters or Patents which being thought to the prejudice of the Crown were ex abundanti cautela thought necessary to be confirmed by those particular Persons Religious Houses and Corporations who thought themselves concerned nor were all others of like nature who were not so confirmed thereby void since they hold good at this day and if you understand any thing of our Law you cannot but know that no Grants of the King can be made void by implication and to shew you farther that the Letters Patents made by Henry the VIth were looked upon as good in the Reign of Edward the IVth appears good from Bagot's Case in the Year-Book of the ninth of that King where a Patent of Naturalization granted by Henry the VIth though it were not confirmed by that Statute of Edward the IVth was by the greatest part of the Judges held to be good and the reasons there given for it are very remarkable since it was urged by the Council in behalf of the Plaintiff that King Henry was then King in Possession and it behoves that the Realm should have a King and that the Laws should be kept and maintain'd and therefore though he was in only by Usurpation nevertheless every judicial Act done by him concerning Royal Jurisdiction shall hold good and bind the King de jure when he returns c. So likewise a Charter of Pardon of Felony and Licenses of Mortmain shall be good and also the King that now is shall have the advantage of every forfeiture made to the said King Henry c. and mark this farther it is there also held that a Man shall be Arraigned for Treason done against the said King Henry in compassing his death and the reason is very remarkable because the said King indeed was not meerly a Usurper for the Crown was intail'd upon him by Parliament and this being not at all contradicted by the Court is still taken for Law and upon this report and not only upon the Statute of the 11th of Henry the VIIth did my Lord Coke found his Opinion I now mention'd that a King de facto was within the Statute of the 25th of Edward III. and though now it is true that the farther arguing of this Case of Bagots adjourned to a farther day when the Justices did not argue but the Serjeants and Apprentices at Law that is the Baristers as we now call them yet it seems to have been allowed by the whole Court that if King Edward who was then King had made his Charter before he was declared so it should be void at that time for every one who shall make a Charter of Pardon ought to be King in Deed at the time of the making thereof M. Pray Sir give me leave to reply to what you have now said against my first two Arguments before you go on to answer the rest for I confess the Authorities you bring seem so express against me that if I cannot take them off there will be no further need for your answering the rest I will not therefore deny but that all publick Acts and Proceedings at Law which are for the publick good and safety of the
also to those of justice and right reason for an Usurper not only to seize the Throne by force but if he can once get himself solemnly Crown'd and then recogniz'd by an Act of Parliament of his own calling which your self cannot deny but to have been ever too obsequious to the will and power of Usurpers as appears by those instances you have given me in Henry the IVth Henry the VIth and Richard the IIId the consequence will then be that the whole Nation would not be only bound to swear Allegiance to him but would be also oblig'd by this Act to desend him in his Tyranny and Usurpation to the utmost of their power and it would also indemnifie them for so doing which would be to establish iniquity by a Law and would destroy all the setled foundations of right and wrong which I affirm God himself is not able to alter without departing from those great attributes of immutability and Justice so essential to his Divine Nature F. It will not be very difficult to reply to these Arguments since they are grounded on such false Principles as are already answer'd As first that this Kingdom is by the fundamental constitution of it an Hereditary Monarchy and that consequently none but he who has a right by inheritance can require our Allegiance but pray tell me where you can find this fundamental constitution for I think I have sufficiently prov'd that there never was any such thing known in England till between four and five hundred years since that King Edward the First succeeded to his Father Henry the Third without any Bequest of the Crown by his Testament and before any Election or Coronation since he was then in the Holy-Land But suppose it now to be an Hereditary Monarchy it doth not therefore follow that the Monarchy should continue always in such a Family for that may sail or may be changed by Conquest or Usurpation as has often been and the constitution continue So that the most that can be said is that when any particular Family by the Providence of God and the consent and submission of the People is placed in the Throne of right the Crown ought to descend to the Heir of that Family but suppose it does not must we pay Allegiance to no other person though pâ—ssessed of the Throne Pray Sir shew me that fundamental constiâ—ution for its being an Hereditary Monarchy does not prove it and according to the Judgement of the best Lawyers the Laws of the Land require the contrary viz. that we must pay our Allegiance to him who is actually King not to him who ought to have been King but is not and to think to confute this by pretending this fundamental constitution of an Hereditary Monarchy is to take that for granted which is still to be proved And therefore I am not at all frighted at the dreadful consequences which you suppose must follow if this Statute of Henry the VIIth should be Law viz. that it would be in the power of every Rebell and Usurper who could get himself Crown'd and then own'd to be King by a Parliament of his own calling to have a legal right to our Allegiance and that Cromwell if he could have got himself once Crown'd and recogniz'd might have been defended in his unjust Usurpation against King Charles the Second But admit this to have been so yet it is still to be understood that at this Coronation he had taken the Oath anciently taken by our Kings and that the Parliament he had summon'd to recognize his Title had consisted of the antient Lords and Commons consisting of Knights Citizens and Burgesses which never was observ'd in any of those Mock-Parliaments which Cromwell call'd had all these Conditions been observ'd I believe he would have been as legal a King within this Statute of Henry the VIIth as he himself ever was before he Married with the Princess Elizabeth which was not till near half a year after he had the Crown setled upon him by Act of Parliament So that though upon every translation of the Crown from one Family to another the first Prince of that Family could have no Hereditary Right to it yet we find such Princes to this day taken for Lawful Kings thus your William the Conquerour King Henry the IVth and King Henry the VIIth are each of them looked upon as true and lawful Kings according to our constitution as if they had been right Heirs of the Crown by lineal descent and though you may say that as to William I. he had a good right by Conquest that is only gratis dictum since I have already prov'd that he could be really no Conquerour And if the English Saxon Monarchy was hereditary before the Conquest as the Gentlemen of your opinion suppose he could be no other than an Usurper upon Edgar Athling the right Heir of the Crown by blood and as for Henry the IVth and Henry the VIIth though they both pretended a feigned Title to the Crown as Heirs by blood yet it is plain by the very Acts of Recognition I have cited that they durst not insist upon that Title since I have already prov'd there is no such thing mention'd in that Act of Parliament wherein the Estates of the Kingdom unanimously agreed that Henry Duke of Lancaster should Reign over them nor yet in the subsequent Act whereby the Crown was intail'd upon himself and his four Sons successively so likewise the Statute of the first of Henry the Seventh it is only drawn in general terms declaring that the Inheritance of the Crown of England c. shall rest remain and abide in the Person of King Henry the VIIth and the Heirs of his Body lawfully coming c. Nor is there indeed any breach made upon this Statute as you suppose nor yet upon the Act of Recognition of King Iames which you so much insist upon since the Crown is certainly setled upon two Princes who are not only lineally descended from them but who are also to be looked upon as right Heirs unto them since the Great Council of the Nation who are the Supream Judges have declar'd them to be so But as for the rest of your Speech whereby you would prove that this Act must needs be void because contrary to the Laws of Justice and right Reason this also depends upon your former errour in supposing that Princes have a Divine or Natural Right to their Crowns antecedent to the municipal Laws of their respective Kingdoms which is already sufficiently confuted so that tho' I grant it is not in the power of God himself to alter the natural foundations of right and wrong just and unjust yet it is likewise as certain that the Civil Rights of Princes as well as those of Subjects can no ways be accounted for according to those Natural Laws since all Civil property as well in Crowns as other Possessions must depend upon the particular Laws and Constitutions of each Kingdom and
Latine Translation of the Old Coronation-Oath D. 8. p. 560. to 563. W Wales W. it s Titular Prince be really Son to King James the Second and Queen Mary D. 11. p. 784 to 789. W. He ought to have been received as the true Son and Heir of the said King D. 12. p. 875. to 877. and that let the consequences be what they will Ib. p. 879. to 881. Wardship Marriage and Relief W. wholly derived from the Normans D. 10. p. 750.751 Its advantages and inconveniencies considered Ib. A Wife W. she can ever be discharged from the Power her Husband hath over her in the state of Nature by any means but by his express consent D. 1. p. 43. King William the First why stiled the Conquerour D. 5. p. 325. W. He claimed to be King of England by Donation of King Edward the Confessor or by Conquest D. 10. p. 715.718 719. W. He was ever Elected and took the same Coronation-Oath as the English Saxon Kings had done before D. 10. p. 716.722 to 737. W. He might justly have seized all the Lands in England to his own use D. 2. p. 171. W. He gave most of the Lands of England to his followers Ibid. p. 721 to 729. and to 747. W. He alter'd any thing in the fundamental constitution of the Government D. 5. p. 320. to 322. W. He altered all the Old Laws of England or confirmed those of King Edward D. 10. p. 737. to 760. His Second Oath upon the Relicks of St. Alban Ib. 761 762. His Laws concerning all Freemens exemption from Taxes upon their finding Arms D. 6. p. 426 427. W. He and his Son William Rufus made Laws and imposed Taxes without the consent of the Great Council D 10. p. 744 755. King William the Third W. he hath any Title by Conquest over King James or else from his Marriage with the Princess and the Act of the Convention D. 12. p. 883. to 899. His Religion and Principles vindicated Ib. 886 887. Wites or Wise-Men in the English Saxon Councils the true signification of that term D. 6. p. 373. to 378. Wittena à Gemots or Great Councils among the English Saxons W. they consisted of more than the higher Nobility Ib. p. 381. Wives how far obliged to be obedient to the Commands of their Husbands D. 1. p. 40. Writ of Summons to the Commmons of the 49th of Henry the Third W it was the first of that kind D. 7. p. 519. to 521. W. Any Writs of Summons of Bishops or Lords to Parliament are to be found before that time Ib. p. 516. Writ of the 19th of Henry the Third to the Sâ—eriffs to levy two Marks Scutage upon Tenants by Knights Service holding of Tenants in Capite Ib. 445 Writ of the 24th of Henry the Third commanding all Men holding a whole Knights Fee of whatsoever Tenure to be Knighted D. 6. p. 432. Writs of Summons to Knights Citizens and Burgesses to Parliament at Shrewsbury in the 11th of Edward the First D. 8. p. 574. Writ of Summons to Knights of Shires cited by Dr. B. in the 18th of Edward the First W. it was to a Parliament D. 7. p. 530. to 536. Writ of the 22d of Edward the First W. a Summons to Parliament D. 7. p. 533 534. Writ of the 30th of Edward the First commanding the Levying of Forty Shillings upon each Knights Fee which had been granted ever since the Eighteenth Ibid. p. 479. W. The Commons Granted that Tax Ibid. Writs of the 28th of Edward the First and 45th of Edward the Third W. of Summons to Parliaments Ib. 537. Writs for Expences to Knights of Shires how ancient D. 8. p. 589. to 591. Y Duke of York Richard his Title declared in Parliament D. 12. p. 863. Edward Duke of York Recognized by Parliament to be lawful King from the Death of his Father Richard Duke of York Ib. p. 865. Duke of York James W. he was not intirely in the French Interest and Designs before he came to the Crown D. 11. p. 802. AN APPENDIX Containing some Authorities sit to be added for farther confirmation of some things laid down in the foregoing Dialogues TO be added to Dialogue the Fourth p. 290. at the end of F s Speech after these words no particular Church can read thus And that divers of the most Eminent Divines of our Church have used the same freedom with several other Doctrines contained in these Homilies may appear from Dr. Hammonds Dr. Heylins and Dr. Taylors with several other Eminent Writers expresly denying that the Church of Rome is guilty of Idolatry or that the Pope is Antichrist tho' both these Doctrines are as plainly laid down in the Homilies as the Doctrine of Non-Resistance And yet none of these Men are ever taxed by those of the Church of England for quitting her Ancient Orthodox Doctrines and I desire you to give me a good Reason if you can why it is more lawful and excusable to part with the former of these Doctrines than the latter The like I may say also for the Doctrine of Predestination which tho expresly asserted in the 36 Articles of the Church of England as interpreted by all the Bishops and Writers in the Reign of Queen Elizabeth and King Iames as also the Bishops and Divines sent as Delegates from our Church to the Synod of Dort who joyned in the interpretation of that Article in the strict Calvinistical sense you find in all the determinations of that Synod against the Doctrines of the Arminians which then began to prevail yet since the time that Arch-Bishop Laud had the nominating of what Persons he thought fit to be made Bishops Deans c. not one in ten of them but have been Arminians in all those Points wherein they wholly differ from the Doctrine of Calvin which is but the same with that of our 36 Articles so interpreted yet none of the Divines of our present Church who hold these Opinions are branded with Apostacy from its Ancient Doctrine but if any well meaning Divine out of love to his Country and to prevent Popery and Slavery from breaking in upon us have but Preach'd or Publish'd any thing in derogation to these Darling Doctrines of Passive Obedience and Non-Resistance he is straight branded with Apostacy from the Church in quitting its main distinguishing Character and we have lately seen Degrading nay the most cruel Whipping and Imprisonment thought too little for such a Man but one may say of some Men with truth enough Dat veniam Corvis vexat censura Columbis So Dialogue the Sixth p. 397. at the bottom after these words in those times read this But that the House of Commons were anciently often comprehended under the stile of Grantz which is the same with Magnates in Latine pray consult the Parliament Rolls of Edward the Third where you will find in the 4 th of that King this passage est assentu accorde per nostre Seigneur le Roy tous les Grantz