make them the first breachers of it whereas you may find that it was the opinion of the whole Convocation for many years before ever those Divines or that Gentleman began to Preach or write upon this subject Nor were these the only men who maintained these Principles but Archbishop Usher and Bishop Sanderson whom I suppose you will not reckon among your flattering Court Bishops have as learnedly and fully asserted those Doctrines you so much condemn as any of that party you find fault with and have very well proved all resistance of the Supream Powers to be unlawful not only in absolute but limited Monarchies Of the Truth of which you may sufficiently satisfie your self if you will but take the Pains to read the Learned and Elaborate Treatises written by those good Bishops viz. The Lord Primate Usher's Power of the Prince and Obedience of the Subject and the Bishop of Lincoln's Preface before it as also the said Bishop's Treatise de Iura nouto written whilst he was Doctor of the Chair in Oxford F. I must beg your pardon Sir if I have never yet seen or heard of that Convocation Book you mention much less of the opinions therein contained since there is no mention made of their proceedings in any History or Record of those times either Ecclesiastical or Civil as I know of But this much I am certain of That these Determinations or Decrees you mention call them which you please never received the Royal Assent much less the confirmation of the King and Parliament one of which if not both is certainly requisite to make any opinion either in Doctrine or Discipline to be received by us Lay-men for the Doctrine of the Church of England otherwise the Canons made in 1640 would oblige us in Conscience tho' they stand at this day condemned by Act of Parliament so that however even according to your own Principles you cannot urge this Book as the Authoritative Doctrine of the Church of England unless their Determinations had received the Royal Assent which you your self do not affirm they had for you very well know that as in Civil Laws no Bill is any more than waste Parchment if once the King hath refused to give his Royal Assent to it so likewise in Spiritual or Ecclesiastical matters I think no Decrees or Determinations of Convocations are to be received as binding either in points of Faith or Manners by us Lay-men till they have received the confirmation of the King and the two Houses of Parliament or otherwise the consequence would be that if the King who hath the nomination of all the Bishopricks and Deaneries as also of most of the great Prebendaries in England of which the Convocation chiefly consists should nominate such men into those places which would agree with him to alter the present establisht Reformed Religion â—n Governmenâ— and to bring in Popery or Arbitrary Power the whole Kingdom would be obliged in Conscience to embrace it or at least to submit without any contraditioâ— to those Canons the King and Convocation should thus agree to make which of how fatal a consequence it might prove to the Reformed Religion in this Kingdom this Kings choice of Bishops and Deans such as he thought most fit for his turn would have taught â—s when it had been too late M. You very must mistake me Sir if you believe that I urge the Authority of this Book to you as containing any Ecclesiastical Canons which I grant must have the Royal Assent but whether that of the two Houses of Parliament I very much question since the King without the Parliament is Head of the Church and diverse Canons made under Queen Elizabeth and King Iames are good in Law at this day tho' they were never confirmed by Parliament But I only urge the Authority of this Book to you to let you see that these Doctrines are more Antient than the time you prescribe and also that the Major part of the Bishops and â—lergy of the Church of England held these Doctrines which you so much condemn long before those Court Bishops or Divines you mention medled with this controversie and I suppose we may as well quote such a Convocation Book as a Testimony of their sense upon these subjects as we do the French Helvetian or any other Protestant Churches Confessions of Faith drawn up and passed in Synod of their Divines tho' without any confirmation of the Civil Power F. If you urge this Convocation Book only as a Testimony and not Authority I shall not contend any further about it but then let me tell you that if the Canons or Decrees of a Convocation though never so much confirmed by King and Parliament do no further oblige in Conscience than as they are agreable to the Doctrine of the Holy Scriptures sure their determinations without any such Authority can only be look'd upon as the Opinions of so many particular private Men. And tho' I have a very great Reuerence for the Judgments of so many Learned Men yet granting those Doctrines you mention to be contained in this Book I think notwithstanding that we may justly examine them according to the Rules of Reason and express Testimonies of Scripture by either of which when I see you can convince me of the falshood of my Tenets I shall count my self happy to be beâ—â—er informed But as for those Treatises of Bishop Usâ—er and Bishop â—anderson which you now mentioned I must needs confess they are learnedly and elaborately writen and tho' I am against Rebellion as much as any man and do believe that subjects may too often be guilty of it yet am I not therefore convinced that it is absolutely unlawful in all cases whatsoever even in the most Absolute and Arbitrary sort of Civil Government for the People when violently and intolerably opprest to take up Arms and resist such unjust violence or to join with any Foraign Prince who will be so generous as to take upon him their deliverance So that though I freely acknowledge that those good Bishops you mention were very Pious and Learned men â—im â—hat I bear great reverence to their memories yet doth it not therefore follow that I must oâ—â— them to be Infallible or as great Polititians as they were Learned Divines or that they understood the Laws of England as well as they did the Scriptures or Fathers and perhaps there may be a great deal more said on their behalfe than can be for divers others who have since Wâ—â—een and Prâ—â— so much upon those subjects for if you please to consider the times of their writing those Treatises you will find them written about the beginning or middle of the late Civil Wars which they supposed to be begâ—n and carried on contrary to all Law and Justice under the pretenced Authority of the two Houses of Parliament against King Charles the First and therefore it is no wonder if they thought themselves obliged to Write very high for the Prerogatives
Arms against their Kings offensive or defensive upon any Pretence whatsoever is at least to resist the Powers which are ordained of God And tho' they do not invade but only resist St. Paul tells them plainly they shall receive to themselves Damnation From which you may plainly see that this Convocation which consisted of as great Men as I think had been for divers Ages do clearly maintain Monarchy to be of Divine Right and Resistance to be in no Case lawful F. I should grant the Canons of this Convocation to be a good Proof of the Iudgment of the Church of England were it not for two very good Reasons I have against them The one I will tell you presently and the other I will keep a while to my self In the first place therefore I suppose you cannot but very well know that this Convocation sate and passed these Canons which likewise received the King's Confirmation after the Parliament that was summoned together with this Convocation was dissolved And I suppose you know that by the Law of England the Convocation having from all times been looked upon as an Appendix to the Parliament was till then always dissolved with it For which Reason all Acts and Proceedings of this Convocation were condemned and declared null and void by the Long Parliament that began to fit the latter End of the same Year And which is more was likewise condemned by the first Parliament after the Restauration of King Charles the second And therefore I think I have very little Reason to own thâ—se Canons as Conclusive M. In the first place I might reply to what you have now said that that very Parliament which first condemned these Canons afterwards ruined the Monarchy it self In the next place that in old time the General or Provincial Synods were not Dependant upon the Assembly of the States at the same time And I likewise farther Answer that these Canons were made and confirmed in a full Convocation of both Provinces of Canterbury and York and the making of Canons being a work properly Ecclesiastical these Canons were made by the Representatives of the whole Clergy of this Kingdom 2. The Canons were confirmed by the King which was all that was of old required in such Cases and tho' the Convocation sate after the Dissolution of the Parliament yet this is not without President even in the Happy Days of Queen Elizabeth not to look back unto Henry the eighth or the Primitive times And as for your Objection that these Canons were reprobated since the Restitution of Charles the II. I say that I quote them not as Law but as the known Sense of the Church of England at that time F. Your first Answer in behalf of these Canons is altogether Invidious For it was not this Parliament that ruâ—ned the Monarchy but only the Rump or Fag end of it after it had suffered divers Violences and Exclusions of Members by the Army and that the House of Lords being by this Iunto voted useless and dangerous were shut out of doors nor is your second Answer any more true for antiently in the Saxons time the Wittena Gemot or Great Counsel and the General Synod made one and the same Assembly consisting both of Clergy-men and Lay men and then all matters of Ecclesiastical Discipline were enacted and confirmed by the King as also the Spiritual as well as Temporal States Nor can you shew me an Example of any General or Provincial Synod which met independently and without the States of the Realm until after the Reign of Henry the first when the Popes took upon them to encroach upon the Royal Authority as also upon our Civil Rights and by his Legaâ—s to call Synods and make Ecclesiastical Constitutions in which neither the King nor the States of the Kingdom had any thing to do And tho' I grant that upon the Reformation the King was restor'd to those Rights as Supream Governour of the Church which the Pope had before usurped yet is not this Act of the Supremacy to be so understood as to give the King all that Power which the Pope unjustly took upon him to execute before for that had been to make their Case no better than 〈◊〉 was before and therefore this Act of the Supremacy being only an Act of Restoration of the King to his Pristine Rights of which that of Calling Synods and Convocations was one of the Principal the King could not call nor continue those Assemblies in any other form or after any other manner than they were held before the Popes Usurpation in taking upon him to call such Independant Synods and notwithstanding what you tell me I am confident you cannot shew me any Precedent of a Convocation so turned into a Synod as this was in all the Reigns of Henry the eighth and Queen Elizabeth But as for your last reply that you quote not these Canons for a Law that obliges the Church but as the Sense of the Church of England at that time if they do not now oblige the Church neither in Point of Belief nor Practice as you may seem to grant it signifieth no more to me what was the Sense of the greatest part of the Members of that Convocation in this matter nor doth it any more shew me what is the true Doctrine of the Church of England than if I should tell you that because in the Reign of Queen Elizabeth the Major part of the Bishops and Clergy of our Church were rigid Calvinists in the Interpretation of that Article about Predestination that therefore Calvinism was then the Doctrine of the Church of England but is not so now And therefore we ought not to take that for a Doctrine of any National Church unless the Synod or Assembly that declares such Doctrine be solemnly and Lawfully assembled according to the Laws and Customs of that Nation or Country wherein they are so declared M. Since you so much contest the Authority of these Canons I shall no longer insist upon them but I shall here shew you out of the Books of Homilies to which all the Clergy in England are bound to subscribe by Act of Parliament as well as to the Articles and Canons as containing wholesome Doctrine and nothing contrary to the Word of God so that these Homilies do indeed thereby become a part of the known Laws of the Land that in these very Homilies there are divers passages so very full and Plain against all Resistance of the Sovereign Powers for any Cause whatsoever that if you are a true Church of England Man as I hope you are you can have no just Reason to deny their Authority The Homily or Exhortation to Obedience was made An. 1547. in the Reign of King Edward the sixth in the second part of which Sermon of Obedience we are told in these Words which I desire you to read along with me That it is the Calling of God's People to be patient and on the suffering side
of those who hold Resistance in some Cases necessary of those that maintain our Monarchy to have been limitted by the very constitution it self of those that suppose all our rights and Liberties 〈◊〉 the very Being of Parliaments themselves to owe their Original wholly to the gracious Concession and Favour of our former Kings Having made some impartial Collections of this Nature I showed them to some Friends who told me they thought they might prove of great use for the satisfying of some mens doubts and scruples concerning Lawful Obedience to the Government of their present Majesties as looking upon it as the best and most ingenious way of Conviction to propose the Arguments fairly on both sides without interposing my own Iudgment but to leave it to the intelligent and impartial Reader to embrace that side on which he found the most rational and convincing Arguments This task tho' troublesome enough I was prevail'd with to undertake not for Fame's sake since I do not desire to be known but meerly for the puplick good and happiness of my Country but being also satisfied that a Subject of this great important deserved more pains than what I had yet bestowed upon it and to be handled in a more Artificial Method than the old dry Schâ—lastick way of Objection and Solution I therefore thought that it would prove more pleasant as well as profitable for the Readers especially those of our young Nobility and Gentry for whom I principally design this undertaking to digest all that I had written on these Subjects into so many distinct Dialogues or Conversations supposed to be held between two intimate Friends who notwithstanding their different Principles and Opinions in Politicks had always maintained a strict and generous correspondency but I was the more inclined to this way of writing not only because I have observed that Controversial matters written by way of Dialogue according to the true Rules thereof have very well obtained among all intelligent Readers but also since the Subjects I treat of are of a nice nature and that the Collections I had made contained strict Inquiries into the Principles and Tenâ—â—s in the Writings of diverse persons of Reputation for Learning and Ingenuity I was sensible how invidicus a Tâ—â—k it must be to write on purpose against so many great men as also how troublesom and â—edious is would prove to my self as well as the Readers to pursue and confute the Opinions of any Author page by page since it must be chiefly imputed to that mannar of managing of Controversies that answers to Books prove so unacceptable to the World And though I grant that this way of writing hath also its difficulties and objections as being more diffuâ—ive and so taking up more time both to write and read Discourses Dialogue-wise where either one or other of the Disputants 〈◊〉 often apt to rove from the Subject yeâ— I must also affirm that this may be in great part prevented by the Writer who may if he pleaâ—â—â— take care to keep close to the Question and not start afresh Har◠〈◊〉 the old one is run down and aâ— for the diffusiveness of Dialogues above Polemical Discourses that is no considerable Objection since a man may either make or answer Objections in almost as few words this way as the other And thô it be granted that matter of â—een form in Dialogues the more tedious yet the Reader as well as Traveller will find that the 〈◊〉 of the Road often 〈…〉 for its 〈◊〉 somewhat 〈◊〉 But whether I have truly put 〈◊〉 the Rules of Dialogue in that 〈◊〉 the â—â—suing Discourses I intend to publish on these Subjects Tiâ—â—st 〈◊〉 to the Readers Iudgment but this much I think I may safely affirm that I have carefuly avoided all bitter reflecting language on either side since I designe these Discourses for common places of Arâ—giâ—â—â—â—ntâ—â— noâ— forms of 〈◊〉 And I have also declined showing my self a Party or giving my own opinion in any Question proposed and therefore I have 〈…〉 either 〈◊〉 my Disputants converting each other to his own Opinion since I know nothing is more easie in writing of Dialogues well as Romances than to make the Knight Efrane always beat the Gyant But it is fit I give you some account of this present Discourse as also of the rest that may follow it This first Dialogue then 〈◊〉 chiefly on this 〈◊〉 Whether any particular Specâ—es of Government is of Divine Right or Institution â— The next shall be Whether there can be made out from the natural or revealed Law of God any Succession to Crowns by Divine Right The third and fourth Whether Passive Obedience as it is called or an absolute Nonresistance of the Supream Powers in any case whatsoever be enjoyed by the Law of Nature and the holy Scriptures As also Whether this hath always been the Doctrine of our Reformed Church of England The fifth concerns the Original of Civil Authority in what sense it is derived from God and in what form the People and whether their Consent be always necessary to make any Government to be obeyed for Conscience sake The sixth shall treat of the Original and Fundamental Constitution of our English Government whether it was an absolute or limited Monarchy in its first Institution and whether the King is and hath been the sole Legislative Power of the Nation The seventh Whether the Parliament or great Counsel owe its Orignal to the meer Grace and Favour of our Kings or whether it is not as Antient as the Constitution it self The eighth and last Whether our late Revolution and the Conventions and present Parliament's Declaration and Recognition of their present Majesties K. William and Q. Mary be not Legal and according to the Antient Constitution and Fundamental Govâ—rnment of this Kingdom and consequently Whether the Oath of Allegiance may not be taken to them not only as King and Q. de facto but de Iure In all which Discourses I have considered and contracted the best Arguments that I could find made use of by the most considerable both Antient and Modern Authors either in Latine or English especially the Pamphlets that have been writ on either side since the late Revolution But as for those in our own Language when-ever any Author speaks so well and argues so closely that to put it into other words would make it worse I have still put the Arguments of either one or other of the Disputants in his own word thô because I would not be thought guilty of Plagiary I have truly quoted the book and page from whence I took it and I hope no Author will take it ill if I have made bold sometimes to contract their Arguments without altering their sense or words farther than by putting in or out a word or expression to make the style run the more smoothly and I desire they would not think I write on purpose to confute them since I freely declare my design is not to
disobeying of the Parliament out of his hands much less will I justifie the Murder of this King or of any others above-mentioned as being no necessary consequences of that Resistance I only allow for lawful viz. that of the whole or major part of the Nation nor were Edw. the Second or Richard the Second put to death by any Act or Order of Parliament but were murdered In Prison and the Murderers of Edward the Second were afterwards attainted by Act of Parliament and Executed as they deserved But as for the Murder of King Charles the First it is not to be taken into this account it being not done by the Authority of the Lords and Commons in Parliament but by a Factious Rump or Fag-End of the House of Commons who fate by the power of the Army after far the major part of the Members who were for the King were shut out of doors and the Lords Voted useless and dangerous M. I confess you have made as good an Apology for these Actions as the matter will bear but that neither of the Two Houses can at this day have any Coercive Power over the King or to call him to an account for any thing he has done appears by the express Declaration of both Houses in the Statute of the 12th of Charles the Second as also in those but now cited in which they utterly disclaim all making War whether offensive or defensive against His Majesty much less can he be subject to any other Coercive or Vindictive Power or ought any ways to be resisted by private persons therefore supposing I should grant as I do not that the Parliaments had formerly a power of Deposing of their Kings or that the Clergy Nobility and People had formerly a right of taking up Arms against the King in case of notorious Tyranny and Misgovernment yet is all such Resistance expresly renounced and declared unlawful by the Oath and Declarations now cited so that tho' in the dark Times of Popery such Resistance might be counted lawful not only by Laity but also by the Bishops and Clergy who ought to have taught the people better Doctrine yet I think it had been much better for the Nation to have endur'd the worst that could have happen'd from the Tyranny of Kings than to have transgrest the Rules of the Gospel and the constant Doctrine of the Primitive Church by Resistance and Rebellion against the Supreme Power of the Nation F. I shall not now maintain that the Two Houses of Parliament have any Authority at this day to Depose the King or maintain a War against him upon any account yet that they have still a power to judge of the King's Actions whether consonant to Law or not and whether he has not broke the Fundamental Constitutions of the Kingdom is no where given up as I know of But that Resistance in some cases is not contrary to the Doctrine of the Gospel I have already proved and that it was not directly contrary to the Laws of the Land before these Statutes you do partly grant But since the main strength of your Cause lies in this Oath appointed by these Acts of Parliament therefore if I can give a satisfactory Account of the true meaning and sense of these Acts to be otherwise than you suppose I hope you will grant that Resistance may still be lawfully made by the whole body of the people in the Cases I have now put against any persons who under colour and pretence of the King's Commission should violently assault their persons in the free exercise of their Religion as it is by Law Established or should go about to Invadeâ— their Just Liberties and Properties which the Fundamental Laws of England have conferr'd upon every Free-born Subject of it And in order to the clearer proof of this I shall make use of this Method I shall first explain the Terms of this Declaration and then I shall proceed to shew you that in a legal sense all Defensive Arms or Resistance of the King's Person in some cases or of those Commissioned by him is not forbidden nor intended to be forbid by these Statutes and Declarations First then By taking Arms against the King is certainly meant no more than making War against the King according to the Statute of the 25th of Edward the Third which declares making War against the King to be Treason and this is unlawful upon any pretence whatsoever Secondly The Clause by his Authority against his Person is only to be understood of the King 's Legal Authority and by his Person is meant his Natural and Politick Person when acting together for the same ends as I shall shew you by and by So that both these Statutes are but declaratory of the Ancient Common Law of England against taking up Arms and making War against the King and do not introduce any new Law concerning this matter so that whatever was Treason by the Statute of the 25th of Edward the Third is Treason by these Statutes and no more viz. all taking up Arms or actual making War against the King in order to kill depose or imprison him c. as Sir Edward Coke shews us in his third Institut in his Notes upon this Statute yet notwithstanding after this Statute of the 25th of Edward the third the Clergy Nobility and People of England assembled in Parliament did suppose it still lawful to take up Arms against those illegally Commissioned by the King in case of notorious Misgovernment and breach of the Fundamental Laws of the Nation as appears by that general Resistance made by reason of the evil Government of the Duke of Ireland and those concerned with him in the 11th of Richard the Second which as I have already proved was allowed for lawful by Act of Parliament and consequently by the King 's own consent without which it could never have been so declared The like I may say for that Resistance which was made in King Henry the Sixth's Reign by Richard Duke of York and the Earls and Barons of his Party agaist the Evil Government of the Queen and the Duke of Sommerset who governed all Affairs in an Arbitrary and yet unsuccessful manner by reason of the easiness and weakness of King Henry But tho' this Resistance was also approved of in the next Parliament of the 33d Year of this King yet I shall not so much insist upon it because I know you will alledge that this was made by the lawful Heir of the Crown against an Usurper since the Crown was not long after adjudged to be his right tho' King Henry was allowed to wear it during his life yet however it shews the Opinion of the Clergy Nobility and People of England at that time concerning the lawfulness of such Resistance before this Declaration of the Estates of the Kingdom concerning the Legality of the Duke of York's Title was made in the Parliament above-mentioned Thirdly That the Parliament by these Statutes of the
by his Majesty and those of the Popish â—unto that advised him to issue out the late Declaration so expresly contrary to Law and the sense of both Houses of Parliament and which gave the Archbishop of Canterbury and the rest of his Brethren a sufficient ground of petitioning against it and this was so evident that a Jury in which the greatest part were high Prerogative Men could not upon a fair trial but acquit them M. I shall not further dispute this point since you have dwelt so long upon it though I must still tell you I do not look upon this as a sufficient cause for the Nations taking up arms for a reason I shall shew you by and by and therefore I shall now proceed to the next head complain'd of in the Princes late Declaration viz. the late Commission for erecting a new Court for Causes Ecclesiastical but as I will not enter upon the question of the Legality of it so on the other side it was also done by colour of Law and the King as supream head of the Church was told by his Ministers that he had power to erect what new Court Ecclesiastical he pleased provided it was not of the same kind with the High Commission Court which had been abrogated by the Stat. of the 17th of King Charles the I. as likewise particularly excepted in the Proviso in the Stat. of the XIIth of King Charles the II. for restoring Ecclesiastical Jurisdiction to the Bishops Courts so that admitting that Court was not legal yet the Persons who advised the King to erect it and the Commissioners who sate in it were only answerable for it in the next Parliament and though the Bishop of London was suspended and the President and Fellows of Magdalen Colledge were unjustly expelled by this Court yet sure none of these miscarriages could give the Subjects of this Kingdom any just pretences to take up Arms to redress them being done as I said before by colour of Law without any force or violence and was also submitted to by the Parties against which these Decrees were given and was at the most but a matter of particular concern and reacht no farther than the said Bishop and Colledge and did not touch the Religion and Civil Liberties of the whole Kingdom and consequently was not of that general importance as to be any just cause of the whole Kingdoms taking Arms much less for the Kings Officers and Souldiers to run over to the Prince of Orange as they lately have done F. To answer what you have now said concerning the Ecclesiastical Commission that I must also tell you was issued forth without so much as any colour of Law for it and though the late Chancellor and some of the worst and most Mercenary Judges countenanced it by appearing for and acting in it yet it is very well known that it was never proposed to all the Judges to be argued in the Exchequer Chamber as it ought to have been before a thing of that great importance to the whole Nation had pass'd the Seals as to what you say that the Kings Ministers told him it was according to Law and that they alone ought to answer for it in the next Parliament and that no publick disturbance ought to have been made about it because the things that that pretended Court did were but of a particular concern and only reacht the Bishop of London and one single Colledge that is but a fallacy which you put upon your self for sure if you had better consider'd of it you would find that what these Commissioners have already done is of a little more publick concernment than you are aware of for pray tell me why by the same Law by which the Bishop of London was suspended for his refusal to silence Dr. Sharp all the Bishops in England might not have been suspended one after another by that pretended Court if they had refused to obey or execute any Letters or Orders from the King tho' never so illegal or unreasonable since what command could be more illegal than the King 's positive order to the Bishop to suspend a Clergyman from his Diocess without first hearing him or giving him leave to answer for himself So likewise for the case of Magdalen Colledge by the same Law by which these Ecclesiastical Commissioners took upon them to turn out the President and Fellows for disobeying the Kings Mandamus by the same Law the King might put upon any other Colledge in either University Popish Heads and Popish Fellows till instead of Nurseries for the education of our youth in the Protestant Religion they may become as absolute Popish Seminaries as the Colledges of Doway or St. Omers and though I grant that the persons concerned in these unjust Decrees might have patiently submitted to them without any protestations against the jurisdiction of that pretended Court since they might for some prudential reasons have thought fit to submit to them without making any such protestation and yet for all that not allow their Authority but indeed the matter of fact was far otherwise for when a part of these Commissioners sate at Magdalen Colledge to expel the said President and Fellows from their places contrary to Law and the express Statutes of the Colledge they did all severally protest against their whole proceedings and appealed to the Kings Courts at Westminster And it is a plain proof how willingly Dr. H. the President of this Colledge submitted to this Sentence by his locking the Doors of his Lodgings and leaving the Commissioners to break them open before they could get in and put in his pretended Successour by force But as to what you say that the King was told he might as supream Head of the Church set up what new Court he pleased for the execution of his Ecclesiastical Jurisdiction it is certainly a great mistake for I utterly deny that the King has power to erect any new Courts either Ecclesiastical or Civil unless by Authority of Parliament the Kings power to make a Vicar general being only confirmed by the Statute of King Henry the Eighth as was also the Authority of the high Commission by the Statute of the first of Queen Elizabeth and if either of those high spirited Princes hadâ— believed themselves to have been invested with such an unbounded Prerogative they would certainly have exercised it without being beholding to the Parliament but indeed it is but a subterfuge to alledge that this Court was not of the same Nature with that of the high Commission because it did not take upon it to â—â—ne or commit Men to Prison nor to administer the Oath ex Officio to those that were convened before them since it is not the different name or some small difference in the manner of the judicial proceedings but the Causes or Matters that a Court pretends to take Cognizance of that can make it a Court of a quite different nature now it is notoriously known that this late Ecclesiastical
but private single Persons which you your self granted and condemned as unlawful And therefore I desire to know who shall Judge when this Body or Major part of the People are thus assaulted so that they may justly defend themselves But indeed this Licence of taking up Arms is not only unpracticable but unreasonable too For it supposes that after the People have given up all the Power they had of Iudging what was bad or good for the Publick they have this Power still left in them which would make them at once both Subjects and Soveraigns which is a Contradiction F. Had you been pleased but better to have observed what I said the last time I spoke a great part of this Objection had been saved For I there expresly asserted that the Security of mens Lives Liberties and Estates being the Main Ends for which men entered at first into Civil Society and likewise desired to continue in it as being the only means why Civil Government is to be preferred before the State of Nature the People neither did nor can give up their Right of Iudging when these are invaded or taken from them And therefore you are very much mistaken to believe that at the Institution of Civil Society Men must have given up their Common senses and reason too of Iudging when they are like to be murdered or made Slaves of or their Fortunes unjustly taken from them by those whom they have ordained to be their Governours and I suppose you will not say that they thereby acquire a Power of altering the Nature of things or of making War Slavery or Beggery the means of procuring the Welfare and Happiness of the People any more than they can enact that hunger or diseases should conduce to the preservation of any mans life And therefore as the Judgment of these things was obvious and natural to every mans senses and understanding in the State of Nature so it is as plain they never intended wholly to give up all their Right of Judging concerning their own Preservation and Happiness and all means necessarily tending thereunto but only in such Cases and concerning such matters as are beyond the Power or above the Knowledge of every ordinary private subject thus in a disease tho' I give up my self to the skill and Judgment of a Physician yet I do it not so absolutely but that I still reserve to my self a Right of Iudging whether he gives me Poyson instead of a Purge and if Princes or Supream Magistrates were thus absolutely invested with an Arbitrary Power of doing whatsoever they pleased with the Lives Liberties and Estates of the People they would then be in a much worse condition under Civil Government than they were in the State of Nature as I have already proved And therefore there is no need of any such general Meetings or Assembâ—ies of the whole Body or Representatives of the People to Iudge when these Fundamental Conditions of all Government are notoriously violated and broken Since it will be apparent to every mans sense and reason that is thus assaulted or injured And as for the other part of your Objection how the People can know when the whole Body or Major part of them is thus assaulted or opprest and being so assaulted or opprest what number are necessary to justifie this Resistance To this important Question I thus answer that if such a War or assault be made upon such a considerable part of the People as may justifie their Resistance to be much better for the Good of the Common-VVealth than that so many People should be destroyed Resistance certainly is then Lawful And the reason why every particular person when unjustly assaulted by his Princes Order or his Estate taken away by his unjust Edicts or Decrees ought not to make any publick disturbance only to save the one or recover the other I have given you before viz. because the publick peace is to be preferred before that of any private Person Yet even then such a private Person may very well defend himself if unjustly assaulted by Assassinates whom the Prince or other Supream Magistrates shall send to take away his Life without any just Cause or Legal Tryal tho' I grant he may not sollicit others to rise with him and take his part or help him to defend his Life or Estate Yet as a Reverend Dignitary of our Church very well observed No Man can want Authority to defend his Life against him who hath no Authority to take it away But much more when this assault or oppression is either made upon the whole People in general or upon so considerable a Part or Member thereof as the Common-Wealth could not well subsist without if it were destroyed in all such cases I suppose the People thus assaulted or opprest have a sufficient Right to defend their Lives and free themselves from that slavery and oppression they lye under and thus the People of Rome might very well have justified their Resistance of Nero's Incendiaries when he sent to Burn the City tho' they had been his own Guards We read likewise in the Hist. August that the Emperour Caracalla the People happening to laugh at him for his Folly in playing the Gladiator in his Circus Maximus sent his Guards to kill them So likewise in Herodian that upon another supposed affront he sent his Pretorian Bands to Murder most of the Inhabitants of Alexandria who came out to meet him with a Solemn Procession And I suppose no rational Man will deny but that if the Citizens of Rome or Alexandria had had Arms in their hands they might have Lawfully defended their Lives against these Murdering Guards For I think it was much better that those should be destroyed who were the Aggressors than that so vast a Body of Innocent People should be made Sacrifices to the undreasonable Passion or Revenge of a Cruel Tyrant So that when the oppression or Violence to Mens Liberties and Properties is general and notorious and affect the whole Body of the People I do then suppose that any Part of them that are sufficient to defend themselves may do it till they can find Assistance either from the rest of the People or else from some Forreign Prince or State who will vindicate their cause and come in to their Assistance And thus we read the Town of Brill in Zealand under the Conduct of the Count of Mark first revolted from the Tyranny of the Duke of Alva which example was afterwards tho' not immediately followed by most of the Cities of Holland and Zealand and the Courage and Resolution of this Count as also of the Citizens of this Town is highly commended by the Historians of that time for so nobly venturing their Lives and Fortunes to â—â—diem their Coâ—utry from that slavery it then lay under till at last they were relieved and assisted by Queen Elizabeth to whom the Vnited Provinces owe that Freedom they now enjoy M. I shall not now dispute with
the mentioning of them since I grant that about the End of the Fourth Century when these things happen'd not only the common People but also the Clergy began to grow very corrupt in their Manners And therefore I cannot much value any Precedents that you can bring in that time to justifie Resistance in Christians unless you could have shewn me any before the time of Constantine which I am sure you are not able to do much less any Authority from any of the Primitive Fathers which justifieth Resistance of the Supream Powers upon any account whatsoever F. 'T is a very hard matter to satisfie you by Quotations for before the time of Constantine it is evident the Christians were not only weak dispersed and disarmed but had also the Laws of the Empire against them And I have already granted That Self-defence against Persecution upon account of Religion was unlawful but when in the time of Constantine's Son and Successor the People having the Law on their side stood upon their defence against those that would have taken away their Lives as in the Examples I have brought of the Inhabitants of Paphlagonia then the Instances come too late and the Age is grown so corrupt that they are no longer Primitive Christians than they observe your Doctrines But as for express Precepts or Testimonies out of the Scriptures and Fathers to justifie Resistance I think it is very needless to bring any for the great Mr. Hooker shews us very well that it is the intent of the Scripture to deliver us all the Credenda and Agenda necessary to Salvation but in other Matters within the compass of our Reason it is enough if we have evident Reason for them Scripturâ non contradicente and if the Scripture doth not forbid such Resistance for Self-defence as I hope I have now proved to be Lawful I do not value whether there be any Express Authority to be quoted out of the Fathers for it or not For whatever the Scripture leaves free I think the Fathers have no Power to forbid M. I see it is to no purpose to argue longer with you from Primitive Examples or Testimonies And therefore I come now to the last thing I proposed which is to shew you that the Doctrine of our Church of England as it is contained in the 39 Articles Canons and Book of Homilies is as expresly for passive Obedience and against All Resistance of the Supream Powâ—rs as the Primitive Church it self And therefore I shall begin with the Infancy of the Reformation under Henry the VIII For there I begin the Restoration of Religion to its Purity in this Kingdom F. I pray Sir give me leave to interrupt you for I must tell you I will not be concluded by any thing that the King or Church in those times did publish concerning matters of Faith or Practice since unless it were in that one Political rather than Religioâ—s Article concerning the Pope's Supremacy the Church in all other Speculative and Practical Doctrines was as much infected with Popâ—ry as it was before And therefore if you will have me to be converted by your Authorities I pray begin with the Purer Times of Edward the VI. and Queen Elizabeth M. I shall comply with your desires since you will have it so And therefore I shall begin with the 39 Articles of the Church of England where in the 37 Article as they were past under Queen Elizabeth Anno 1562 you may find it runs thus The Queen's Majesty hath the Chief Power in this Realm of England and other her Dominions unto whom the Chief Government of all the Estates of this Realm whether they be Ecclesiastical or Civil in all Causes doth appertain and is not nor ought to be subject to any foreign Iurisdiction It is true this Doctrine is not limited to the particular Case of Subjects taking up Arms but it seems to me by two necessary Consequences to be deduced from it First Because if the Pope who pretended by a Divine Right had no Power over Kings much less have the People any such Power who pretend to an Inferiour Right that of Compact Secondly Because the Article makes no distinction but excludes all other Power as well as that of the Pope And in truth the Plea is the same on either side the Pope says as long as the Prince Governs according to the Laws of God and the Church of which He is the Interpreter so long the Censures of the Church do not reach him and say the People as long as the Prince governs according to the Laws of the Land and of the meaning of those Laws they themselves will be the Interpreters so long are they bound to be obedient but as soon as the King doth any thing that may contradict the Pope then he is deservedly say the Romanists excommunicated deposed and murdered and when he usurâ—s upon the Peoples Liberties then he ought to be deposed by the People The Arguments on either side are the same and for the most part the Authorities F. I must confess this is the first time that ever I knew any Man go about to prove Passive Obedience and Non-Resistance out of the 39 Articles and indeed I should have thought you might have deduced any thing else from these Articles as well as that But let us see how what I have saiâ— in this Discourse can come within the Contents of this Article which only says that the King or Queen of England is Supream Governour over all Persons as also in all Causes whether Ecclesiastical or Civil and is not subject to any foreign Iurisdiction from whence you raise this Argument that if the Pope who claims by a Divine Right hath no Power over our Kings much less have the People who can pretend to no such Right as he does but only that by Compact Now pray tell me whether this be conclusive I assert that the People have by the Law of God and Nature a Right to defend themselves against the Supream Powers in case they are violently Assaulted in their Lives Liberties or Estates Now I would very fain have you prove to me how Resistance for Self-defence doth subjâ—ct a Prince to any Iurisdiction either Foreign or Domestick and whether the People can have no Right to Resist such Violence unless they have also an Authoritative Power over them M. It is not worth while to dispute this any longer with you to so little purpose And therefore I shall come to the Canons of the Church and in particular those of the year 1640 which I look upon as a full Explanation of the Belief of our Church in this Point where you may see in the first Canon these two plain Propositions among others First That the most Sacred Order of Kings is of Divine Right being the Ordinance of God himself founded in the Prime Laws of Nature and clearly Established by express Texts both of the Old and New Testaments Secondly For Subjects to bear
whole People or Nation together with the Religion established should be thus ruined and destroyed rather than that such Resistance should be made M. But pray tell me can there be any thing more express against your Interpretation or more plainly oblige us to a patient Suffering without Resistance of the cruellest and most intolerable Tyranny than these Words I last read The farther and farther any Earthly Prince doth swerve from the Example of the Heavenly Government the greater Plague be is of Gods Wrath and Punishment by Gods Iustice unto the Country and People over whom God for their Sins hath placed such a Prince and Governour And by what there follows you will see that tho' such a Prince be so great a Plague to them Yet they cannot without Sin judge such a Prince or Rebel against him but must patiently wait God's Leisure to remove him F. I confess this is the strictest Passage of any in the whole Book yet doth not this expressly reach the Case here put or if it had do I think my Self or any Body else obliged because of one or two unwary Passages in this Homily which perhaps neither the Parliament nor Convocation closely considered the evil Consequence of or so much as knew they were there things of this kind usually passing such great Assemblies by the Lump as relying upon the Testimony of some Leading Bishops or Clergy men without considering the Book of Homilies strictly Or reading over the whole So that the Parliament might very well declare that they contained sound Doctrine and nothing contrary to the Word of God without asserting the literal Truth of every particular passage in them much less that all that is contained therein is to believed upon pain of Damnation and therefore I must beg your pardon if I cannot suppose that all Resistance whatsoever tho' in the most necessary Cases of Self-defence which I have now puâ— is absolutely unlawful and rebellious or that the Fathers of our Church ever intended to lay so hard a Yoak upon the Neck of this Nation which neither they nor their Fathers were ever able to bear much less that there is thereby taken away from this Nation defending those fundamental Rights and Priviledges which are essential to the Nature of the Government and which as it distinguisheth it from a Despotick Monarchy So it doth the Subjects likewise from those of other Nations for if the Scriptures themselves were never intended to alter Civil Constitutions much less certainly can either our Canons or Homilies do it And therefore to deal freely with you if the Canons and Homilies had been nâ—ver so express on your side yet as long as no such Consequence can be drawn from the Holy Scriptures I should not much value what they say unless you can prove the Church of England to be infallible And for this I have the sixeenth and twentieth Article of the Church of England made in the Year 1562. to bear me out The former of which concerning the sufficiency of the Holy Scriptures for Salvation runs thus The Holy Scripture contains all things necessary to Salvation So that whatsoever is not read therein nor may be proved thereby is not to be required of any Man that it should be believed as an Article of Faith or be thought necessary or requisite to Salvation Therefore if I have plainly proved by sufficient Authority that your Doctrines of Passive-Obeâ—ience and Non Resistance are not expresly found in Scripture nor by necessary Consequence may be rationally deduced from thence they cannot be required of any Man to be believed or practiced as necessary to Salvation And therefore if either this Church or any other imposes such a Burden upon me I am not obliged to bear it And this the latter of these Articles of the Authority of the Church expresly asserts in these Words It is not Lawful for the Church to ordain any thing contrary to Gods Word Written c. after which it follows thus So besides the same it ought not to enforce any thing to be believed for necessity of Salvation Where Note that besides the same is to be understood any thing that is not found therein or may be proved thereby by necessary Consequence as was said before and if the whole Church it self cannot do this certainly no Particular Church can M. Methinks Sir it is a great Presumption in you and those of your Party to make your selves the sole Interpreters of those Places of Scripture which so expresly forbid all Resistance of the Supream Powers and then when you have wrested the Scriptures to your own Mind to cry out that you are not bound to believe these Christian Doctrines because you suppose they are contrary to Men's humane Reason and the too great Love they have to their own concerns which is but the same way of reasoning which the Socinians and Arians make use of against our Saviour's God head because their narrow Understandings cannot comprehend it But besides all this I could shew you out of the best Writers of the Reformed Religion both in this and other Protestant Churches who interpret these Places of Scripture against all Resistance in the same Sense as our honest Homilies have done but I find it grows late and I have not time now to shew you them or if I had do I believe you would be much Edified by them since you make so slight of the Authority of our Homilies F. You are very much in the Right of it and indeed I do not desire you should put your self to that trouble for the Papists themselves will not own any thing for a Doctrine of their Church which is not expresly found in the Council of Trent or the Catechism composed according to its Decrees and therefore will not be concluded by the Sermons or Theological Treatises of any of the Divines of their own Church as to any thing or matter in debate between us And I think I that am a Protestant may certainly claim alike Christian Liberty especially since I am very sensible upon what account too many Men have carried these Doctrines of Passive Obedience and Non-Resistance to so great a heighth as they have done of late years But since you tell me that so many Learned Writers both of this and other Protestant Churches have been of your Mind So I could also if I had a mind to Cap Quotations with you produce a sufficient number of places out of Luther Calvin Zuinglius and other first Reformers as also of our own Writers at home who have in many places of their Works allowed Resistance for self-defence in case of Intolerable Violence and Oppression to be Lawful and of these I can give you a Large Catalogue whenever you please to command me But since they will convince you as little as I suppose your Writers would do me I shall forbear mentioning them any further M. I value not much what Luther Calvin or any other violent Men of that sort may out of Passion
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
will not affirm that the Ecclesiastical Authority of Bishops as to their Right of meeting in publick Synods or Councils is derived from the Crown But the Truth is the Sense of this Statute is no more then that all such Iurisdiction is immediately derived from the King though Originally from the People which Fortesoue calls Potestatem à Populo effuxiam and by them intrusted with him as the Supream Magistrate to Distribute it to all Inferior Courts which yet he cannot at this Day Create anew without an Act of Parliament so that this will not extend to the whole Assembly of the Estates themselves Since I doubt not but to prove by undeniable Testimony that that Constitution is as Ancient as the English Nation it self M. I see you have a mind to wrest the true sense of this Statute by a forced Interpretation but I hope at our next meeting to prove to you that our first Saxon and Norman Kings were Absolute Monarchs and that not only all the Liberties and Priviledges we enjoy but also our Civil Properties were wholy derived from him and if so it will also necessarily follow that all Difference and Distinction in Honour or Power by which the Bishops and Temporal Lords can claim to Sit in Parliament is wholy derived from those Kings For as to the Commons I need not go so high for their Original since it is the Opinion of our best Antiquaries and I think the Learned Dr. Brady hath sufficiently proved it against Mr. Petyt that they are no Ancienter than the latter end of Henry the 3ds or perhaps the 18th of Edw. the 1sts Reign Nor do the Authors you have quoted for the Independant Authority of Parliaments viz. â—â—acton and the Mirrour mention any other than the Curia Baronum or that of Counts or Earls as the Author of the Mirrour hath worded it by which can be meant no other than the House of Lords for as to that of the Commons had they bin then in Being or had they had any thing to do in the Government it is not likely these Ancient Authors as well as our Acts of Parliament of those times would have omitted particularly to mention them So that the higher I go and the more I look on the History of our Ancient English Kings the more Absolute I find their Power and the less dependant upon the People Therefore I have very great reason to believe that our first Kings were Absolute Monarchs not only by the Original Constitution of Parliaments but also that our very Liberties and Properties proceeded at first from their meer Grace and Pavour F. I know you have Asserted the same things more than once All the Difficulty lies in the Proof And therefore I would not have you be too positive or rely too much upon the conciseness or Silence of the Ancient Monkish Writers of those first times For since as I own they have never given us any exact account of our Ancient Civil Government nor yet of the History of their own times We are forced for the most part to pick out the Truth from other Circumstancâ—s or such Passages as we can meet withal in their Ancient Laws and Customs nay sometimes from those of their Neighbours who lived under the same kind of Government and Laws with our Saxon Ancestors as proceeding from one Common Stock or Original as I shall shew you before we have done But since we are already in Possession of our Ancient Laws and Liberties and of a Right to Parliaments once every Year or oftner if need be by two Ancient Statutes yet in force at farthest once every three Years by a late Act of Parliament it ought to be your Task to prove to me the Absolute Power of our first English Monarchs and by what Steps and Degrees they came to part with their Power and to be thus limited as we now find them and when you can shew me this I do assure you I will come over to your Opinion M. I shall observe the Method you prescribe And therefore to begin with the first Entrance of the English Saxons into this Island I suppose you are not Ignorant of so Common a piece of History that all the Title they had to this Island was by the Sword or Conquest of their first Princes or Generals who being sent by Lot together with the Armies that followed them out of their own Country because it was too narrow or barren to sustain such great Multitudes they came over hither to seek new Dwellings Now whether these Princes were made Kings before they came over or that they made themselves so immediately after their Conquest will be all one since if we consider them as Military Captains or Leaders of Armies their Power was Absolute as that of all Generals ever was and must be by the necessary Laws of Military Discipline If we look upon them as Kings or Princes as it is very likely they were also before they came over since they were certainly of the Blood Royal all of them deriving their Pedegree from Woden their God as well as first King being thus made Kings by their Fathers or other near Relations there is no Ground to believe they owed their Titles to the Votes or Suffrages of their followers But after they had Setled a Heptarchy or Seven Kingdoms in this Part of Britain called England We find them Governing and Leading their People like Absolute Kings and Monarchs over their little Principalities And since each Kingdom was Conquered from the Britains under the Conduct according to the Laws of Nations and Right of Conquest all the Lands of each Kingdom belonged to the Conquerors who though they cantoned them out into shares to their Captains and Souldiers according to each Man's Valour or Desert Yet did this wholy proceed from their Bounty and Favour who might have kept the whole to themselves if they had pleased and hence it is that not only since the Norman Conquest but also long before all the Lands of England were holden of the King as the Supream Lord And if so I suppose you will not deny but that according to your own Principle all our other Priviledges and Liberties must have been derived from him since you have already Asserted that whoever is Lord of the Soil of a Country he is so also over the Persons of the People F. Before you proceed any farther I pray give me leave to answer what you have now said I doubt with greater shew and appearance of Truth than the matter will justly bear when well canvassed But since I grant our earliest Writers are very short in giving us the true Form or Original Constitutions of our Ancient Saxon Government it is necessary we look into the Roman Authors who treat of the Laws and Customs of the Ancient German Nations a Stirp of whom our Ancient English Saxons certainly were and in those Authors you will find that they as well as other Nations of the Gothic Original were
that because the Emperour Theodosius as likewise divers of his Predecessours did Nominate Bishops to Sees therefore they did likewise receive from them all the Authority they had of appearing and acting in General Councils which I am sure you are too good a Church of England Men to affirm M. I must confess I never did so closely examine the Ancient Form of conferring of Bishopricks before the Conquest as I find you have done and I will better Examine your Authorities and if I find this Custom to have been constant and uniform I shall come over to your opinion tho' I doubt it will not prove to have been so general as you would make it since by the Authority you have now brought out of Mat. Paris it appears that it was the King who gave leave to this Election of Bishop Wulstan in the Great Council which I am not yet convinc'd did then take upon them to meddle in Ecclesiastical matters without the Kings Consent but since you have spoken enough concerning the Right and Antiquity of the Bishops sitting in our Great Councils it is time you now speak of the Right of the Peers or Temporal Lords which certainly could have no place there but from the Favour and Concession of our Kings So that whether we consider those Lords in the Saxon time as Rulers of Counties called in old English Earls or Aldermen in Latin Duces or Comites or else as Judges or Counsellors called in old Saxon Wites or Wisemen in Latin Sapientes or lastly as Thanes in Latin Ministri who were either Military Tenants or Civil Ministers or else Officers of the King in his Court or other Employments none of them were Hereditary in those times but all of them either depended upon the King's VVill or else owed their Honours and â—states to his Favour F. I hope notwithstanding the Confidence you put in this part of the Argument that it hath no more weight in it than the former For tho' I grant there was no such thing as Hereditary Earldoms before the coming in of the Normans so that tho both the Earls and Aldermen might have places in the Great Councils ratione officii as the Earl Mareschal of England has at this day and not by Tenure as they did after that time Yet I very much doubt whether they sate there only ratione officii and not as Thanes or by reason of their great Lordships or Estates in Lands but if they sate there as Earls or Aldermâ—n yet might they not be the only Persons that sate in those Councils by that Title For there were besides these Aldermen of Cities and Burrougâ—s who were Elected by those Places and who it is very likely appeared for them as their Representatives in those Councils until by Succession of time those Towns began to send two Burgesses in their stead some Footsteps of which still remain in London where the Aldermen of every Ward are first proposed to be Elected Parliament Men before any other and it is certain that these Aldermen in the most Ancient Cities as London York Lincoln â— are not Elected by any Grant or Charter from the Crown but by an immemoâ—ial Right of Prescription But admitting that these Earls or Aldermen appeared in these Councils by reason of their Offices or Dignities which the King conferred upon them yet doth it not prove that the very Office it self proceeded 〈◊〉 from him since we find the Authority of those chief Men whom 〈◊〉 calls Princes and which Answer these Earls to have been used among the Ancient Germans long before when he tells us in the same Chapter where we cited the rest Iura per Pagâ—â— Viâ—osque Principes reddunt â—enteni Singulis ex plebe Comites Consilium simul auctoritas adsunt Which exactly answers our County and Hundred Courts under the Saxon Kings wherein the Alderman of the County or his Deputy the Sheriff preâ—ided and the Free Men of the County or Hundred were the Iudges of all matters of Fact So that tho the King might appoint these Princes or Governours of Provinces or Counties yet doth it no more follow that they owed their Being and Place in the great Council wholy to his Will than as I said before supposing that the King had Anciently the Nomâ—nation of all the Bishops and Abbots in England that therefore they must also owe their Place in our great Councils or Synods wholy to them since the King performed both of them as a Publick Trust committed to him by the Common Weal in the one case as much as in the other But indeed I think the greatest part of the Members of this Assembly besides Aldermen and Burgesses for Cities and Towns consisted of those Thanes whose Names are often found in the Subscription of the Anâ—ient Charters of our Saxon Kings after the Principes Duces and Comâ—â—â—s and that tho many of them might be the Kings Feudal Thanes or 〈◊〉 Grand Serjeanty or Knights Sâ—rvice in Chief as Mr. Sâ—lden tells us in his Titles of Honour yet that Author no where excludes the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. middle or less Thanes from having Voices in those Assemblies who were afterward Stiled Vavissours or Lords of Townships afterwards called Maunors with Courts annexed to them under the Names of Sac Soc which were the same with our Court 〈◊〉 and Court-Baron Especially if you please farther to consider what a vast nâ—mber of Alâ—dariâ— or Free Tenants there were then who held their Lands Discharged of all Services but the Common Burthens and Taxes of the Nation none but the Lands of the Kings Thanes being held by Military Sâ—rvices before the Entrance of the Normans So that whoever will but consider the Nature of our Saxon Councils will find that the Greatest part of the Persons that appeared there did not owe their 〈◊〉 to their being the King's Ministers or Officers as you suppose but to their holding such Lands and Possâ—ssions as Capacitated them and gave them a Right to have places in those Great Councils And that this was 〈◊〉 we need go no further than the Laws of King Athelâ—â—an where you will find Gâ—mility it self annexed to an Estate in Land For if you will but be pleased to Consult King Athelston's Laws you will there find that if a Villaâ—aus or Câ—eorl could so thrive as to get an Estate of five Hides in Lands he was reckon'd a Thane i. e. a Gentleman or Nobleman as they were promiscuoully reckoned at that time So that tho I suppose there might not be in those times that exact distinction between Peers and Commons as there hath bin established since the coming in of the Normans Yet was it the same thing in effect since the Bishops Earls or Aldermen of Shires tho not enjoyed as Hereditary Honours might make then the Greater Nobility or Peers as the Thanes were the Less Nobility Gentlemen or Freeholders who all appearing in person might together with
England and Scotland there was no difference in Point of Priviledges as to being taxed or having Voices in the great Council of the Kingdom between the higher Nobility such as had the Titles of Dukes Marquesses and Counts and simple Gentlemen whereas in England it has been always otherwise at least since the Conquest and the Earls and Barons had by 〈◊〉 Tenures Places as Lords or Peers in the great Council of the Kingdom and so made a distinct Body from the rest of the People whereas in other Countreys the higher Nobility and Gentry are reckon'd as all one Estate and therefore it was but Reason that the rest of the Inferior Nobility or Gentry should have their Representatives in this great Council or Parliament or otherwise they would have been as very Vassals as to their Estates to the great Barons and Tenants in Capite as the Boors in Germany or the Paisants in France were to their Lords by whom they were taxed aâ— their Pleasures which they never were in England as we can find either from History or Records So that tho I grant that it is the municipal Laws of each Kingdom or Nation that must determine what are the governing part of the People in those Countreys yet tho that was not absolutely the same in all of them as it is in England yet we find it so in the main and the Representatives of the Cities and Towns do sufficiently assert the Right of the Plebians or Common People who make the 3d Estate in those great Councils But I must here except Sweden in which it is certain that the meer Rusticks or Boors had always their own Deputies in their Dyets as well as the Cities and Towns and if Sweden had this priviledge I cannot see why the English Gentry and Yeomanry who make but one body of Commons might not have had the like till you can shew me more sufficient proofs to the contrary M Well Siâ— I shall consider of what you say but since it grows late that we may wind up this Conversation as fast as we can give me leave to tell you that tho' I should admit all that you have hitherto averred for truth and that we should grant the Commons of England to have been as ancient a part of the great Council or Parliaments as any of the other two what is that to the main Point in question between us viz that of Non-resisâ—ance of the King upon any account whatsoever or how can you justsfie those of the Clergy Nobility and Gentry of the Church of England for taking up Arms against the King and contributing so much as they have done to the driving him away and in bringing things to this confusion they are now in since let your Constitution of great Councils and Parliaments be never so ancient let us also for once suppose them as you do to have a share in the Legislative Power of the Nation yet how can this authorize them much less any private persons out of Parliament to take up Arms against the King or those commissioned by him since the whole current both of Common as well as Statute-Law runs directly against you and all with one consent assert that the disposal of the Militia or Military Force of the Kingdom has been even so absolutely in the King's power and at his disposal that no man can without being guilty of Treason take up Arms whether offensive or defensive without his Commission to authorize him to do it so that no Government in the World is more averse to all forcible Resistance than our own the King having been even from your time beyond memory so fully possest of the whole Militia or power of raising offensive or defensive Arms in this Kingdom that it is expresly forbid by the Statute of the 7th Ed. I. against coming to Parliaments and Treatises with force of Arms in which the King sets forth That in the last Parliament the Prelates Earls Barons and the Commonalry in Latine Communitas or Body of the Realm have said that to us i e. to the King it belongeth and our part it is through our Royal Seignâ—ury to defend that is in old French to forbid force of Armour and all other force against our Peace at all times when it shall please us and to punish them according to our Laws and Vsages of our Realm and hereunto they are bound to Aid us as their Soveraign Lord as oft as need shall be From whence you may observe that it is the King's Prerogative to forbid all manner of Arms or Armed force within the Realm so that no man can lawfully Arm himself without his Authority And this is further confirm'd by the Statute of 25 Ed. the Third concerning Treasons wherein it is declared without any excepted Cases to the contrary That to Levy War against our Lord the King in this Realm or to be adherent to the King's Enemies in his Realm giving them Aid or Comfort in the Realm or elsewhere is Treason And Sir Edward Coke upon this Statute saith thus That this was High Treason before by the Common Law for no Subject can Levy War within the Realm without Authority from the King and if any man Levy War to expulse Strangers to deliver men out of Prisons to remove wicked Councellors or against any Statute or to any other End pretending Reformation on their own heads without Warrant this is Levying of War against the King because they take upon them Royal Authority From which Statute as also from your own Oracles Sir Ed. Coke 's Interpretation of it you may observe that it is not only Treasâ—n to make War against the King's Person but to take Arms to make any Reformation or Alteration in Church or State without the King's Authority nor can any Subject of England justifie the taking Arms upon any account whatsoever unless it be by the King's Commission and therefore all the Judges of England in the Case of Dr. Story who was Executed for Treason in the Reign of Queen Elizabeth did with one consent agree that the very Consultation concerning making War against the Queen shall be interpreted a making War against her Person and supposes a design against her Life So that nothing seems plainer to me than that by the Ancient as well as Modern Laws of England all defensive as well as offensive Arms are expresly forbidden and condemned F. I think I shall be able to make out notwithstanding what you have now said that all Resistance of the King or those commissioned by â—im is so far from being Treason as you suppose that it is every mans duty to oppose him in case he goes about to set up instead of a Legal Monarchy a Tyrannical Arbitrary Power in this Nation since this is but to preserve the Original Constitution of Parliaments which in some cases cannot be maintained without such a Resistance be allowed But to proceed to the Authorities you bring from our Statutes as for the first you urge
the Government in the unsetled state it is in to follow Cromwell's Example and to impose no Oaths of Allegiance at all since the Government may be as secure without it as for all that I can see they can be with it and as it is now managed I see little it can serve for but to distinguish and divide us one from another and besides its being a snare to the Consciences of so many that take it it is like also to prove the ruine of divers of our Bishops and other honest Men both of the Clergy and Laity who will certainly rather lose their Dignities and Imployments than ever take it which will also cause a great Schism in the Church as I doubt you will find when it is too late whereas if these men might have held their Bishopricks and all other Preferments and Offices without having this Oath impos'd upon them I doubt not but they would serve both the Church and State in their several stations according to their duties and as far as lawfully they could F. I cannot deny but you have spoken very honestly and like a good English Man in many things you have now said in case your intentions towards the present Government were real as your words are fair and therefore I cannot wonder that you have been formerly a stiff asserter of the lawfulness and necessity of the Oath of Allegiance should now be for taking it quite away now it grows too hard for you self and those of your Opinion to digest As if to oblige Subjects to defend their Governours were a necessary security for your rightful Princes but were unnecessary for those whom you shall think fit to suppose to be Usurpers And though I confess I must very much pity the over-nice Principles of those of your way who are truly peaceable and consciencious and are like to be ruin'd by their refusal of it yet for all that I very much doubt whether it would be for the best to take this Oath quite away since it would make a strange alteration in the Government to admit all persons into ordinary Charges much less into Imployments of Trust and Profit without taking any Oath at all Your only Objections against it are these First that you doubt that it is unlawful to impose promissary Oaths and the next is that it will not perform the end for which it is intended viz. to distinguish those who will serve the Government faithfully and those that will not since you confess that a great many who are not at all satisfied in their Consciences will for interest not only hold their old Imployments but will also take new ones under it which I grant is not to be avoided if men will venture to be damned So likewise on the other side I must tell you that the quite taking away the Oath of Allegiance will not at all mend the matter but make it much worse since then not only those whose Consoiences will give them leave to take the Oaths but also those who think they ought not to take them will be alike capable of Imployments and when they are in them though I grant they may be both alike free to act as they please against the present Government and for restoring of King Iames yet I must needs tell you for all that that I am much more fearful of the ill will or malice of those who think themselues oblig'd in Conscience to overthrow the present settlement and who continue stiff to their first Principles than of those who will so far comply with this present Government and their own interest as to take the new Oath of Allegiance in whatever sence they please for I am very well satisfied that such men though they are not so right for the Government as I could wish them yet either fear of punishment or else the consideration of their own self-interest will always make them desire to retain those Imployments they have already got since they can never be assured of bettering their Condition under King Iames and a Popish Government should he ever return whereas those that are bigotted to Principles will always think it their duty by vertue of this notion of a Natural Allegiance as well as their former Oath to endeavour to restore him by all the ways and means that can ever lie in their power But as for the unlawfulness of a promissory Oath since you your self speak doubtfully of it and few Casuists except Grotius have been of that Opinion I think it is not safe to quit our antient Laws which particularly prescribe that not only all Magistrates and Officers but also all other of the Kings Subjects should take the old Oath of Fidelity or Allegiance as we now stile it in the Court Leet or Sheriffs Torne when they come to the Age of fourteen years which Oath as appears by what we can find of it in Edward the Confessors and King William's Laws which we have already recited as also you may find it in Sir H. Spelman's Glossary Tit. Fidelitas was made to the King as their Leige Lord of Life and Limb and which implies an active Obedience to defend him against all his Enemies without any exception of such as may claim by Inheritance or right of Blood Now this being so I cannot be perswaded that the Government ought to quit any lawful means whereby it may preserve it self and distinguish those who would really serve it from those who will not and though perhaps the Government may find it self mistaken in its account in some Men whose Consciences are large enough to swallow any Oath whatsoever yet I think I may still safely maintain that it is still in less danger from a few such Libertines than from those of your Opinion who would not only keep their Places under this Government but will also continue in a perfect state of War against it let them be treated never so kindly and therefore as to those dreadful Consequences of Schisms in the Church and the lessening and dividing our Party as to the former we must run the hazard of it since it was never heard of that the Bishops who are in some respects Temporal Barons held their Bishopricks under any King since the Conquest without owning his Authority And I can also shew you that the King and Parliament have either actually deprived or else declared such Bishops Traytors to the Government So that if any such a Schism be made it will proceed from a scandal unjustly taken by some scrupulous Men and not by the Government And as for the other inconvenience I think it is much safer for the Government to imploy fewer Men then by not knowing who are Friends or Foes to trust all promiscuously though perhaps notwithstanding their utmost care some Men of little or no Consciences will places in this as well as they have done formerly which can by no other means be prevented as I know off but by chusâ—ing Men of honest Principles
no Reason since they are only Declarative and Persuant to the late Act of the Convention whereby after the Declaration of the Rights and Liberties of the Subjects King William and Queen Mary are Declared That they were and of Right ought to be by the Laws of this Realm our Soveraign Leige Lord and Lady and King and Queen of England c. M. Well it is late and besides to no purpose to argue this Point any longer since it concerns not me nor any of my Principles what new Oaths you make and impose upon those whose Consciences will never permit us to take them What I have said was only to shew you the Folly and Weakness of such Oaths and Consequently that they can be subservient to no other end then a renewal and aggravation of the Sin of Perjury among us which God forgive this sinful Nation among the many crying Sins it now growns under Yet give me leave still to mind you that you have not given any answer to the Objection I have made concerning the Schism that is like to follow from the depriving of all such Bishops and Clergy that shall refuse to take the new Oath by such a time which Deprivation being uncanonically ordain'd by the meer lay power of the Convention without the authority of a Convocation or Synod such proceedings are sufficient cause for all of our way to break off all Church Communion with you as soon as the Arch Bishop of Canterbury and those other Bishops shall happen to be deprived and new ones put in their Places since all Church Communion wholly depends upon the lawfullness of the Bishops who are the supreme Pastors of our Church F. I forgot to say any thing of this because I said so much to answer concerning the new Oath I proposed as sit to taken by those in places of Trust but since you desire it I shall say somewhat though not so large as I could speak upon this Subject First I must tell you it is altogether a new Notion and contrary to the Doctrine of the Church of England whereby it is declared that the Kings of this Realm have the same Power with Persons in the Church as the Kings of Iudah and Israel had among the Jews therefore you must either depart from the Doctrine of this Canon or else the King and Parliament who are certainly as much the supreme Power of the Nation as the Kings of Iudah were to that of the Jews may as well deprive the Arch Bishop of Canterbury for Example for Treason or Disobedience to the Government as Solomon did Abiathar for Anointing his Brother Adonijah King and besides this I can shew you many Examples of the like power exercised by the Roman and Greek Emperours in depriving and banishing not only Bishops but Patriarchs for the matters of State without any Sentence or Judgment of a Synod or general Council of other Bishops if your Doctrine were true the poor Greek Church would be in a sad Condition and all her Members in a perpetual Schism for some Ages past that there hath been scarce any Canonical Elections or Deprivations of the Patriarchs of any of the great Seats viz. Constantinople Antioch and Alexandria but they are all nominated and put in and out at the Grand Seigniors nay Visiers Will and Pleasure as any Man who will but peâ—uâ—e Sr. Paul Rycauts account of the Greek Church may easily see But indeed you fall into this Errour for want of considering the original of Bishop-pricks in England and the true meaning of this intended Deprivation for pray take Notice that though Episcopacy was setled in England in the time of the Britains yet all the Seas and Jurisdictions of the Bishops of this Realm in respect of such and such Diocesses have been wholly oweing to the bounty of our Kings and the Authority of our Great Councils which were also confirmed by the Popes Bulls and since the Reformation to the Authority of the King and Parliament as were all the Bishop-pricks erected in Henry the VIII ths Reign so that let the Bishops meer Spiritual Power of Ordaining Excommunicating c. be derived immediately from Christ if you please yet the Exercise thereof as limited and appointed to this or that Precint or See is as meer a temporal Institution as that of Parishes which was not introduced till long after Christianity was settled in this Island So that the Exercise of this Ecclesiastical Jurisdiction within the See of Canterbury for Example being a Civil Institution it hath anciently belonged to Supream Powers not only to confer this Power as appears by their ancient Investitures of our Bishops per Baculum Annulum but also to take it away for Treason or Disobedience against the State since the King and Parliament do not pretend to deprive them of their Spiritual Character or Episcopal Orders but only of their right to exercise it within such Sees or Diocesses thus although the Arch-Bishop of York and the Bishops of London and Wichester with the rest of the Popish Bishops were deprived by Act of Parliament in 1 o th of Elizabeth for not taking the Oath of Supremacy the Queen and Parliament never took upon them to degrade those Bishops of their Episcopal Orders but only to forbid their acting as Bishops in their former respective Diocesses and therefore I doubt not but that notwithstanding this Depriviation those Bishops might if they had pleased have ordained Priests and confirmed Children and that such Ordinations and Confirmations would been good even in our Protestant Church if such Priests or Children had afterwards turned Protestants since 't is very well known that the Church of England ownes the orders of the Church of Rome to be valid which is more then we do for the ordinations of meer Presbyters coming from those Protestant Countrys where there are no Bishops at all the like I may say for their Confirmations too But pray Sir consider how upon your Principles this Schism can be so Universal as to influence and involve all England in it for if the Arch Bishop of Yorke for example will rather take this Oath then suffer Deprivation and that the rest of the Bishops of his Province should be of the mind as I am credibly informed they will pray tell me how the People of that Province being a distinct Church or body Ecclesiastical from that of Canterbury as to all Spiritual matters as having a distinct Convocation of their own can ever be involved in this Schism by the deprivation of the Arch Bishop and Bishops of the Province of Canterbury And pray also tell me in the next place how all the Members of the two Universities can ever be involv'd in this intended Schism since they owe no Canonical Obedience to the Arch-Bishops of Canterbury or York nor to any other Bishop but only to their Chancellour and the Vice-Chancellour as his Deputy who exercise all Ecclesiastical Jurisdiction within the said Universities and therefore their Church
the only Iudges of all Disputes about the Succession of the Crown D. 2. p. 891 to 892. D. 12. p. 893. D. 13. p. 917 to 919 921. Eve W. by being subject to Adam all her Posterity became so likewise D. 1. p. 14. to 25. F Fathers W. by right of generation or of education Lords over their Children in the state of Nature D. 1 p. 13 14. W. Any such power was given by Divine Grant to Adam and in him to all other Fathers Ib. p. 26 30 to 36. W. Fathers of Families have power of life and death over their Children by the Law of Nature Ib. 19. to 26. W. They may sell their Children Ib. 26. to 31. W. They may be resisted by their Children in case of any violent assaults upon their lives Ib. p. 41. W. Perpetual Masters over their Children as long as they live Ib p. 45. to 51. Fideles the signification of the word before the Conquest D. 6. p. 390 391. D. 7. p. 448. to 451. Sir R. Filmers Principles W. they do not rather encourage Tyranny than Fatherly affection in Princes towards their Subjects D. 2. p. 118. W. They do not also favour Vsurpers Ib. 125. to 128. G Common Good of Mankind the main design of all Government D. 1. p. 55. to 61. Civil Government the end of its Institution D. 1. p. 11. 19. 21. W. There had been any necessity of it if Man had never sinned Ib. p. 11. What it is and its Prerogative D. 3. p. 173. W. it can be setled without liberty and property in Estates Ib. 174. Government of Families and Kingdoms its Original and Necessity D. 1. p. 10. to 12. Supream Governours in what cases they cease to be Gods Ordinance D. 1. p. 41. Government among the ancient Germans and Saxons always by Common Councils D. 5. p. 365. to 369. Grands or Grants in Parliaments what those words signifie in ancient Statutes and Records W. The Lords alone or the Commons also D. 6. p. 369. vid. Append. Guards of the King when when first set up D. 9. p. 639. H K. Harold W. William of Normandy had a just cause of making War upon him D. 10 p. 718. What Title he had to the Crown Ib. p. 720. Haereditamentum its derivation Ib. p. 721. Hengist and all the rest of the Kings who founded the Saxon Heptarchy W. so by Election or Conquest D. 5. p. 357. to 362. King Henry the IVth W. his Title to the Crown were by right of blood or Election of the Estates in Parliament D. 12. p. 861. to 863. King Henry the VI. W. his Son were not unjustly disinherited by the Duke of York and himself unjustly deposed by Edward the IVth Ib. p. 863. to 867. King Henry the VIIth W. he had any Title to the Crown by right of Inheritance Ib. p. 868. to 870. King Henry the VIIIth W. the several alterations he made as to the the Succession were legal D. 12. p. 871 872. Homage W. it rendred the Prince or Lord irresistible D. 10. p. 727.728 Homines Liberi its signification in English Histories D. 6. p. 428. to 430. Homilies of our Church the the chief passages therein against all manner of Resistance of Governours considered D. 4. p. 287.288 W. It be Heresie or Schism to deny their Authority in any point there laid down Ib. 289.290 vid. Append. Mr. Hookers Opinion concerning the Original of Civil Government D. 12. p. 129.130 W. The two Houses of Parliament or the whole People of England have any coercive Power ove the King D. 9. p. 634. W. The Two Houses have on the behalf of the whole People renounced all right of self-defence in any case whatsoever Ib. p. 636. to 658. I King James the Firsts Speech in Parliament against Tyranny D. 3. p. 148. The Act of Recognition of K. James's Hereditary Right how far it obliges Posterity D. 12. p. 871 to 874. King James II. W. he violatid the fundamental constitution of the Government before his desertion D. 9. p. 673. to 685. Or W. he had amended all those violations before his departure p. 685. to 689. W. His setting up a standing Army and puting in Popish Officers and Souldiers were an actual making War upon the Nation Ib. p. 683.687 W. He abdicated the Government by his breach of the Original contract or else by his deserting it D. 11. p. 790. to 799. W. He might have been again safely restored to the Government upon reasonable terms Ib. p. 801. to 807. W. He really intended to redress all the violations he had made upon it p. 805. to 807. W. He resumed the Government upon his return to London from Feversham Ib. 802. to 806. Iesus Christ did not alter Civil Government neither by taking away the Prerogative of Princes nor yet by abridging the Civil Liberties of Subjects D. 4. p. 216. to 220. Jews often rebelled and sometimes killed their Kings D. 3. p. 203 to 205. Their resistance of Antiochus considered Ibid. p. 208. to the end Jewish Government before Saul W. Aristocratical or Monarchical D. p. 93. to 101. Judah and Thamar the History considered D. 1. p. 33. Iudges over Israel their Power W. Monarchical D. 2. p. 95 96. W. Some of them were not Iudges of some particular Tribes p. 96 97. Iudgements Divine W. they may be removed by humane means or force D. 4. p. 259 260. K Kings W. to be reputed Fathers of their People as the Heirs or Representatives of those who were once so D. 2. p. 65. W. They derive their Power from God or from the People and Laws D. 11. p. 773. to 780. D. 12. p. 936 to 938. Saxon Kings of England W. absolute or limited Princes D. 5. p. 349. W. They were endued with the sole Legislative Power Ib. p. 338 to 345. Kings of the English Saxons Elected and often deposed by the Great Council Ibid. p. 365. The same done also in other Kingdoms of the Gothic Model Ib. p. 365. Kings of England ever since King William I. W. they derive their Title to the Crown from Conquest or some other Title D. 10. p. 713. Their Concessions to Subjects do no ways derogate from Royal Prerogative D. 10. p. 715.716 Kings of the Roman Catholick Religion W. many of them have not observed Magna Charta and their Coronation Oath D. 12.882.888 King by Sir R. Filmer's Principles above all Laws and alone makes them D. 2. p. 123.124 In what sence he is head of the Politick Body of the Common-wealth D. 11. p. 803. to 805. W. He could have anciently by his Prerogative Taxed all the Tenants in Capite at his discretion D. 7. p. 495. to 499. W. He could call or omit to summon to Parliament what Earls Lords and Tenants he pleased Ibid. p. 505 to 511.523 W. He could also summon those Knights of Shires who served befere without any new Election Ib. 537. W. He could by his Prerogative discharge what Knights of Shires he pleased after they were chosen Ibid.
nor a Iurisdiction it is by this very Body acknowledged to be wholy derived from him Nor have you yet answered this Argument nor I believe can you do it F. As for your History which you promise to give me of the absolute Power of our first Saxon and Norman Kings I desire you to defer the speaking of it till another time it being now late Yet I do not doubt but to prove that what I assert concerning the limited Power of our Kings even by the Original Constitution of the Government is no Romance but true History Nor are the Reasons that you have now urged to the contrary prevalent enough with me to alter my Opinion for I think I am able to prove somewhat more than I but now Asserted viz. that the Wittena Gâ—mote or Great Council met constantly once a year or oftner when need was under the Saxon Kings without any Summons from them as when we come to the particular History of this matter I shall shew you more at large And also that for the first Hundred Years after the Coming in of the Normans the Great Council or Parliament used to meet of Course at the King's Court at two or three of the Great Feasts of the Year without any other notice by Writ or Summons The first mention we find of such Writs being in King Iohn's Magna Charta But that when these Assemblies became less frequent by reason of the King ' Discontinuing of them and because of the case the Nobility and People found in being Discharged from so constant and chargeable an Attendance they came to be so discontinued at last that as you your self confess there were fain to be Express Laws made for their more frequent Meetings and though the Power of Summoning them was I confess left wholy in the King and that he did very often Dispense with the Calling them according to the intent of those Statutes Yet doth not this prove any Legal Prerogative in him so to do but that it was a High Breach of Trust and also of his Coronation Oath when he thus omitted to call them Since our Kings were formerly Sworn to keep and observe those Laws quas vulgus elegerit which the People either have or should chuse construe it which way you will though I own in French it is in the Preterit auera èleu should have chosen And as it is an Old Maxim à Facto ad Ius non valet consequentia So it is no true way of proof to argue from an illegal Exercise or abuse of Power to a Legal Right or Prerogative And though the Parliament might not always actually question or find fault with their Kings for thus neglecting to call them because perhaps the Publick Sustained no present Damage from it and that they thereby escaped the giving the King those Taxes and Aids which he usually demanded of them at such times Yet when the long Forbearance of Omissions of Parliaments became a general Grievance by reason of those Encroachments that the King and Great Men often made upon the People's Liberties in those Intervals and that the King lookt upon it as a Piece of his Prerogative to abuse this Trust as far as He pleased I grant then and not till then there was need of a Law that there should be a Parliament every Year and that in Case of any failure of Summons on the Kings part the People might proceed to Election without it which was not so properly a New Law as the Restoration of the Old Constitution since Anciently the People met the King at these Great Councils at such Set times of the Year as I shall prove when we come to the History of matter of Fact which I am not at all affraid to be judged by and then also I shall shew you that though the King is now Principium Caput Finis Parliamenti that is the Parliament properly so called yet that the Great Council or Assembly of the Estates had from the first Institution of the Government a Power of Assembling themselves in cases of necessity such as are Doubtful or Disputed Titles to the Crown or the absence of the Successor and then they have often met by their own inherent Authority and have either Setled the Succession of the Crown as they thought good or else have Recognized an Hereditary Right in the Absence of the Heir as when King Edw. 1st was absent being in his return from the Holy Land Or else to Depose the King's Iusticiar as in the Case of William Longchamp Bishop of Ely who was left Chief Iusticiar by King Richard 1st when he went into the Holy Land And though I own that some High-Spirited and yet Well-beloved Princes might take upon them a Power of Rebuking the House of Commons when they meddled with Business they did 〈◊〉 like Yet this Submission proceeded from the Great Râ—verence they had for their Persons and confidence they placed in their Government Since we find that only these Princes that were Wise and Successful in their Government and so became the Darlings of their People Such as Queen Elizabeth and King Edward 3d. for as for Henry 8th I remember no Instance of it who durst venture to Act thus As for the desire of Freedom of Speech it is but a Compliment for how can the Grievances of the Kingdom be Redressed without speaking freely of them And if one Great End of Parliament was to Redress these Grievances it were altogether in vain for them to Attempt any thing in this Kind if the King could Brow-beat them from it when ever he pleased But Bract on doth not only tell us Rex habet Superiorem Legem Curiam suam Baronum c. in the Place I have already Cited but the Old Book called the Mirrour of Iustices also teaches us the same Lesson in his 2d â—ection where speaking of the King's Power he tells us that though the King can have no Peer in the Land yet nevertheless if by his own Wrong he offends against any of his People none of those that judge for him can be both Iudge and Party It is therefore agreeable to Right that the King should have Companions to Hear and Determine in Parliaments all Writs and Complaints concerning the Wrongs of the King Queen and their Children and of them especially of whose Wrongs they could not otherwise have Common Right These Companions are therefore called Counts after the Latin Comites c. Not can I think that any King would have Erected a Court to have Redressed the Wrongs done by himself or his Family whether he would or not But as for your main Argument from the words of the Statutes of King Edw. 6. and Queen Eliz. That all Authority and Iurisdiction as well Spiritual as Temporal is derived from the King I do own it true that is if meant of all Derivative Authority such as that of all inferior Counts as well Civil as Ecclesiastical For I suppose you your self
Assembled the Archbishops Bishops Abbots c the Pope's Legate presiding over the Clergy and besides these cum innumera Cloi Populi Multitudine and the Continuator of Florence shews us the manner of their giving their Consents to those Constitutions as well Civil as Ecclesiastical there made and Published they being proposed with a Placet vobis and the Answer to them is Plaecet Placet Placet thrice repeated which is very like the Form still observed in the Bishops and Lords giving their Consent to all Matters proposed in their House by saying Content So likewise the Continuator of Florence in Anno Dom. 1127. being the 27th of this King mentions such another General Council or great Synod wherein William Archbishop of Canterbury Presided over the Clergy and after the recital of all the Superior Clergy as before he thus proceeds Confluxere quoque illue i. e. to Westminster magnae multitudines Clericorum Laicorum tam Divitum quam Mediocrium sactus est Conventus inaestimabilis sedit etiam tribus diebus acta sunt ibi de negotiis saecularibus nonnulla quaedam quidem determinata quaedam dilata quaedam vero propter nimium aestuantis turbae tumultum ab Audientia judicantium proâ—â—igata And tho' the Author gives us the Ecclesiastical Constitutions only yet it is plain from him that Civil Matters were also transacted in this very Council which consisted as well of the Superior as Inferior Clergy as also of the Nobility and Commons which are all expressed under the general words of Divitum Mediocrium and resemble the Phrases of the Majores Minores and the des Greindres des Meindres mentioned in the Statutes of Marlbridge and Glocester which words were debated at our last Meeting In the Reign of K. Stephen there were also several Councils held of the same sort and particularly that of his Third Year in which was granted a Charter of Confirmation of this Kings of the Priviledges of the Abbey of Westminster which is also to be found in Sulcardus's Chartalary above-mentioned wherein after the general words of habito universali totius Angliae consilio and a mention of the Pope's Legate who Presided over the Clergy It follows thus â—ffuerunt etiam Comites Regni mei Barones quamplurimi innumera Cleri Populi multitudo qui his omnibus interfuerunt Religioso favore voluntatem Assensum Authoritati nostrae paginae Privilegio praebuâ—rent c. So likewise in an ancient Manuscript Chronicle of the Abby of Ely under A. D. 1139. being the 4th Year of K. Stephen there is a remarkable Passage when speaking of a great Council then held at London he expresses it in these Terms Concilio adunato Cleri Populi and then explains of what Members these did consist viz Episcoporum atque Abbatum Monachorum Clericorum Plebisque infinitae multitudinis Now pray give me leave to make some Observations from these Passages in all these ancient Charters and Historians that besides these Bishops Abbots Earls and Barons of the Kingdom there were also an innumerable Multitude of Clergy and People or as the Ely Chronicle words it an infinite number of Clerks and Commons Now pray tell me what can be meant here by all these put distinct from the rest of the higher Orders but the inferior Clergy as the Deans Arch-deacons and Procurators of the Chapters of Cathedral Churches as also those of the secular Clergy of the whole Diocess And who can be meant by this infinite Multitude of People or Plebis which naturally signifies the common People distinct from the higher Nobility but the most considerable Free-holders or Lords of Manners whether Tenants in capite or not under the degree of the higher Nobility together with the Citizens and Burgesses of Cities and Towns and who came not only as idle Spectators since the Charter I last cited expresly mentions that they were not only present but also gave their Assents to this Charter of King Stephens M. And may I not with as good reason ask you why these words Populus and Plebs may not in the Historical barbarous Latine of that Age serve only to express not the Multitude or Rabble or meer common People but the whole Body of lesser Tenants in capite beneath the Dignity of the greater Barons F. I will give you two very good Reasons for that First from the great Analogy there was then between the Members of the inferior Clergy and those of the inferior Laiety or Commons the former of which even all the Abbots and Priors except those few that held in capite with all the rest of the inferior Clergy already mention'd holding only in Frank Alimoign and not by any Military Tenure at all Now pray give me any sufficient Reason why the Layety should not also consist of all other Orders of Men who did not hold in capite neither and by whom I do not mean the meer Vulgar or Rabble tho' Freemen of Free-holders of small Estates but the most considerable Free-holders or Lords of Mannors in England or else the Knights of Shires who I suppose represented not only themselves but their inferior Tenants whether Copy-holders or for Term of Years as also the Representatives of all the Cities and Borough Towns in England Now these might together with your Tenants in capite make so great an Assembly as might very well deserve the Title with an easie Hyperbole of Infinita or innumera multitudo as our Ancient Historians express it Whereas your Drs. Tenants in Capite could never in these first Times after this Conquest amount to so great a Multitude not being by his own Confession above 700 Persons besides the Bishops Abbots and Priors who did not make above 100 more which could never deserve the Title of an infinite and innumerable Multitude M. I must confess that neither your Notion nor your Authorities to prove it do any way satisfie me for in the first place your Argument from the Analogy between the Clergy and Layety who you say made up this Assembly does not hold for tho' I grant there might be in that part of it which we call the Convocation and was then called the Synod all the Bishops Abbots and great dignified Clergy-men nay Procurators of the inferior Clergy too if you please yet were not these who I grant were not Tenants in Capite Members of the great Council of the Kingdom but a distinct Assembly from it which treated only of Spiritual Matters and together with the Bishops and Abbots made Ecclesiastical Canons as the two Houses of Convocation do at this day yet medled not at all in Matters of a meer Civil or Temporal concern any more than the Lay Council could meddle with Spirituals and to let you see that this was true it is evident beyond dispute that this Ecclesiastical Synod was often assembled by the Authority of the Pope or Archbishops of Canterbury and York when the Common
Council of all the Layety were not summoned at all and so Vice versa the Common Council of the Kingdom often met when the Synod of the Clergy was not convened as appears by the most ancient Writs of Summons to the Bishops we have left us as particularly The first Writ of this kind that is upon the Rolls viz. That for the Bishops which Mr. Prin has Printed in the First Part of his Parliamentary Register in the 6th of K. Iohn and which I have cited from the Drs. Answer against Mr. P. at our last Meeting in which Writ tho' I grant there is a Clause for Summoning the Abbots and Conventual Priors yet there is none for the inferior Clergy But in the next Writ which the same Authors have likewise Published viz. That to the Archbishops of York there there is no Clause at all for Summoning any of the Clergy as such tho' it is true there is underneath an Eodem modo scribitur omnibus Episcopis Abbatibus c. Comitibus Baronibus which shews that this Writ was not to Summon them in their Spiritual but Temporal Capacities So likewise in the next Writ of Summons to Parliament we have left us on the Roll which is cited in Mr. Selden's Titles of Honour as also in the same Parliamentary Register and in Dr. B. against Mr. P. viz. That of the 49th of Henry the Third to the Bishop of Duresme without any Clause of Summons to the Clergy whether Abbots or others So likewise in the next Writ of Summons that is left us viz. That of the 23d of Edward the First Published also by Mr. Prin to the Archbishop of Canterbury in which there is no Clause of Summoning any of the Clergy and tho' there immediately follows another Writ of the 23d of this King in which I grant there is this Clause of Praemunientes Priorem c. viz. The Prior Chapter and other of the Clergy of his Diocess to appear in Parliament yet that they were no necessary part of it but only of the Convocation appears by the rest of the Writs of Summons to Bishops which Mr. Prin has also given us in that Chapter all which if you please to peruse you will find that in near 200 Writs to Parliaments or great Councils the Clause of Praemunientes Clerum is to be found in scarce half of them which shews that the summoning or omitting them depended wholly upon the King's Pleasure and so were no constituent part of the great Council or Parliament as you suppose they were under the first Norman Kings for then sure they would not have been omitted to have been constantly Summoned in all Parliaments as well as the Bishops and Abbots But to come to your next Argument from the numerousness of these Assemblies which you say could not be properly called Numerosa or Infinita Multitudo whereas all the Tenants in Capite as well Ecclesiasticks as Lay-men did not amount in all to 800 there may be an allowance made for this to the Monkish way of Writing of those times who might call such a great or more than ordinary Assembly of the Clergy and Tenants in Capite an innumerable or infinite Multitude when indeed they were but few more than our Lords and Commons are at this day F. I pray Sir give me leave to Answer what you already said before you proceed any farther because what I have to reply to it will be pretty long in the first place you cannot with any reason if you better consider of it deny that the Clergy as well the Superior as Inferior did before your Conquest as well as long after make but one Assembly or Body of a General Council tho' sitting in several Places as the Lords and Commons do at this day for the words in the Old Book of Ely are Adunato Concilio Cleri Populi which is to be rendred the Council of the Clergy and Layety being united and joyned together as I already shewed this word Adunato does always signifie as also by the Confirmation of that Charter of King William's to the Abby of Westminster and to which tho' a Matter of meer Temporal Concernment all the Clergy as well as Layety gave their joynt Consents as appears by the Conclusion of that Charter as also to that of K. Stephen but now cited which they could never have done had they not then made a part of the same General Council or Assembly Having proved to you that the inferior Clergy did anciently make a part of the General or Common Council of the whole Nation I shall now proceed to answer your Objection 'T is true that for a great part of some Kings Reigns for want of the Writs of Summons to the Superior as well as to the Inferior Clergy we cannot certainly tell tho' we may presume it from the general words of the Historians whether the Inferior Clergy were Summoned or not yet this I think I may boldly averâ— that wherever any ancient Author makes mention of the Clerus and Populus in general being present at any such Common Council it must necessarily mean not the Bishops and Abbots or the Superior Clergy alone or the great Lords and Tenants in Capite onely but those and the Representatives of the whole Nation both Clergy and Layety taken together as I think I have sufficiently made out Nor is your Objection considerable from that writ of the 6 th of King Iohn that no Inferiour Clergy were summoned because onely the Abbots and Priors are mentioned at the end of it to this I answer that granting it to be a writ of Summons to a Common Council of the Kingdom which is not yet proved the omission of the Inferiour Clergies being summoned is no cogent Argument to prove they were not there since for ought as you and I know there might be other writs issued to the Inferiour Clergy distinct from those to the Bishops and Abbots Which last used to have distinct writs to each by themselves and I may as well suppose these writs to be lost as you do that all the general writs to the smaller Tenants in Capite who were no Barons and yet were to be all summoned according to King Iohns Charter are all lost and as for the Abbots and Priors mentioned at the end of this writ of King Iohns they were such as held onely in Capite or else such as did not if the former this might be onely a Council of Tenants in Capite and none other of which I grant there were many held in those times upon occasion of Wars Scurages and other matters but if by these Conventual Abbots and Prioâ—â— summoned by this writ you will mean all Abbots and Priors of whatever Tenure then it appears plainly that this great Council consisted of many other Ecclesiasticks than what held in Capite and if so why might not the Inferiour Clergy as well make a part of it But as for your next Authority the writ