dare appeal to any indifferent Iudge for I think I have sufficiently made out that Resistance by the whole People or Major part of it against a general and Intolerable Tyranny is no Diminution of Supream Civil Power nor inconsistent with it nor is your Reason for your Opinion any truer than the rest that Private Persons whether taken single or in a whole Civil Society can have no Power but what is derived from the Supream which is by no means so for every private Man of the Society then acts by a Power precedent to it viz. the Natural Power of Self-Preservation or Defence which no man ever absolutely gave up neither for himself nor his Children when he became a Member of that Common-wealth Tho' he was obliged for the Peace of the Government or Civil Society to suspend that Right in order to a greater Good which once failing upon the Dissolution of the Government every Man 's Original Right takes place As for what you say against my Notion that Resistance is Lawful when it may prevent the Subversion of the Government your Reply to this is really Equivocal and consists in that false or wrong Notion you have of the Nature of our English Government which you suppose only consists in the Preservation of the King 's Personal Powâ—r without any respect to the Laws or Fundamental Constitutions of the Kingdom and that as long as the People are in Subjection whether to Legal Government or illegal Force it is all one the Government is still preserved which is a great mistake for the King receiving his Power from the Law and having no Authority but what that gives him when he overthrows the Fundamental Constitutions of the Kingdom he doth himself destroy the Government And therefore when in that Case the People do resist it is either to maintain it or else to restore it to the state that it was in before so that it is not the People in this Case who have subverted it but the King M. It now grows late and it is high time to give over but if you please to give me another Meeting I doubt not but to show you that by the Original Constitution of this Government the King not only hath the sole Supream Power but that by several Acts of Parliament all Resistance of the King or those Commissioned by him is absolutely against the Laws and fundamental Constitutions of this Kingdom and that they are all by our Laws Rebels that dare presume to make such unlawful Resistance And I desire that you would give me a patient bearing in this matter because I have so great a Kindness for you that I would not have you lye under so dangerous an Errour which may happen to prove fatal to your Happiness not only in the World to come but also to the Safety of your Self and Family in this Life if you should offer to put in practice what you have here maintained F. Sir I give you many thanks for your kind Intentions towards me since I do believe it proceeds from that real Friendship you have for me tho' as for the former of those Judgments you mention I hope I shall have no Reason to be afraid of it for any thing I can yet see from thâ—se Arguments you have hitherto urged But as for what may happen to me in this Life I hope I have as little Reason to fear it since I believe this great Revolution will not only Iustifie but for the future defend those Arms that have been taken up for the restoring the true Ancient Government of the Kingdom M. I confess Sir that you have now too much the advantage of me during these times of Anarchy and Confusion but yet I hope one day to see this unhappy Nation again recovered from this sad Apostacy into which I confess too many have lapsed and then I doubt not but these Primitive and Loyal Doctrines of Passive Obedience and Non-Resistance will be again restored to their former Integrity and Vigour F. Well Sir all I can say to you is that I see you are not only in Love with Slavery but also with thâ—se that would bring it in upon us yet however I think I may give you this good Advice that if you are not pleased with what hath been already done since you have had no hand in the doing of it you would be contented quietly to sit still and enjoy those Benefits that may thereby accrue to the whole Church and Nation since I thereby expect a firmer Settlement of the Protestant Religion as also of our Civil Liberties than we ever yet enjoyed M. I thank you for your Advice and you know as my humour is not to be Troublesome or Clamorous against that which is not in my Power to help so on the other side I heartily wish that the Prince may now agree with his Majesty upon such Terms as may prove for the good of the Church and security of the State But pray tell me when I may be so happy as to see you here again that we may fully resolve this last Question F. To Morrow I shall be engaged but the day after being one of the Christmas Holy-days I shall not fail to wait on you at the same hour and I am very well pleased to wait on you here since I foresee a great part of our next Conversation will depend upon Authorities out of Books with which your Study is very well furnished and my own are not in Town M. I shall expect your Coming with Impatience and in the mean time I am your humble Servant F. Sir I am yours FINIS Bibliotheca Politica Or A DISCOURSE By way of DIALOGUE WHETHER The King be the Sole Supream Legislative Power of the Kingdom and whether our Great Councils or Parliaments be a Fundamental Part of the Government or else proceeded from the Favour and Concessions of former Kings Collected out of the most Approved Authors both Antient and Modern Dialogue the Fifth LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford-Arms where also may be had the First Second Third and Fourth Dialogues 1692. THE Bookseller's Advertisement to the READERS THE Author has order'd me to beg your Pardons on his behalf that he hath made bold in this Discourse to deviate from the method he at first proposed for the subject of the ensuing Dialogue since instead of treating of the Original of Civil Authority and in what sense it is derived from God and in what from the People as he promised in his Epistle to the first Discourse he hath now made the Supreme Legislative Power and the Fundamental Constitution of our Government together with the Antiquity of Great Councils or Parliaments in this Nation whether they always consisted of Bishops Barons or Temporal Lords and Commons or not the Subject of this as well as of the ensuing Dialogue so that thâ—se grand Questions taking up two entire Discourses had the Author persued the Method he at first proposed
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
since by the subsequent words in this Oath it is restrained to the taking Arms by his Authority against his Person or those Commissioned by him which shews that nothing here is intended to be forbidden but taking up offensive Arms upon popular pretences without and against the Authority of the Law which is further explained in another Test by the Authority of both Houses of Parliament Thirdly 'T is observable this is but a Test upon some that were to come into Offices and can by no means make any change in the Ancient Law which cannot be changed by Implication nor does this amount to so much the first part of this Oath requiring only that the party admitted into Office shall so declare and believe and tho' the second Clause call it a Traiterous Position yet this is restrained only to these two particulars That Arms may not be taken up by the King's Authority against his Person or those Commissioned by him which can have reference to nothing but that distinction taken up in the late Times of Civil War when the Parliament pretended to take Arms and grant Commissions in the Name of King and Parliament by vertue of that Authority which they supposed he left with them at Westminster so that this Clause can by no means exclude any Arms made use of for Legal defence according to Law Fourthly and lastly Tho' the words against those Commissioned by him may seem to extend the matter further and is mistaken by some as if â—t required at least Passive Obedience to all Commissions of the King tho' never so illegal yet there is not the least colour for it since nothing is a Commission but the King 's Legal Command or Authority pursuant to some Law and for putting the same in Execution which is the Legal definition of a Commission and when this Test was first brought in to the second Parliament of King Charles the 2d and that the word Legal was offered to be added to the Bill upon a long Debate it was only left out because it was declared by all the Lawyers in the House even by Sir Hen. Finch then the King's Sollicitor and agreed to by the whole House that it was clearly implied and could bear no other construction but that all Illegal Commissions were Null and void and in no Legal sense could be called Commissions so that taking up Arms in the defence of the Law and pursuant thereunto cannot in any wise be called a taking Arms against the King's Person or those Commissioned by him and farther that by the words in pursuance of such Military Commissions are meant such as are warranted by that Act such as the King may issue by his Royal Authority which is bounded by Law and consequently cannot grant any Commissions but what are according to Law so that if these Commissions are granted to persons utterly disabled by Law to take them as all are that will not take the Test appointed by the Act of the 25th of K. Charles the Second intituled An Act to prevent the dangers that may arise from Popish Recusants as also all Commissions to do any Illegal violent action are absolutely void and consequently may be resisted or else our Magna Charta with all the other Laws that establish Liberty and Property as also our very Religion it self Established by Law may be either undermined by the King 's new Dispensing Power or else subverted by open force and every Commission Officer in a Red Coat will be as sacred and irresistible as the King himself But to conclude That the Instances I have given that the King's Commission may be abused to the destruction of the Nation nay of the whole Parliament are not so unlikely and remote as you imagine Pray let me put you in 〈◊〉 that as for that pretended Commission to Sir Phelim Oneal tho' it is true it did prove afterwards to be forged yet was it not known to be so till long after and therefore having all the signs of a true Commission under the King 's great Seal the poor Protestants in Ireland were to have had their Throats cut according to this Oath before ever they could be satisfied whether it were true or not But that a Popish King persecuting and destroying his Protestant Subjects only for matters of Religion is not so improbable a thing as you would have it the French King 's late Dragooning Imprisoning and sending to the Gallies all that refused to renounce Heresie as they call it and subscribe to the Articles of the Romish Religion has given us but too sad and recent an example and how you can assure me that the King acting upon these very Principles and being governed by like Confessors will never do the same things I should be glad to receive some better satisfaction than his bare word to the contrary Nor yet is my other Instance of its being left according to your Doctrine in the King's power to make a violent assault upon the persons both of the Lords and Commons assembled in Parliament whenever he pleased without any Resistance whatsoever so remote and improbable as you are pleased to make it since you may find it still upon Record among the Articles exhibited in Parliament against Robert de Vere Duke of Ireland Robert Tresilian Chief Justice and Sir Nicholas Brembur in the Parliament of the 11th of Richard the Second which I have already mentioned the 15th Article of which was That they by their false Council had caused the King to command the said Nicholas being then Mayor of London suddenly to rise with a great power to kill and put to death the said Lords viz. Thomas Duke of Gloucester and the other Lords there named and the Commons viz. of the Parliament of the 10th of this King who were not of their Party and Conspiracy for the doing of which wickedness the said grand Traitors above-said were parties and presents to the destruction of the King and his Realm So that if this Treason had not been discovered and that no private persons might then resist those Commissioned by the King it would have been Treason according to your principles for the said Lords and Commons to have resisted those that were thus sent to assault them and take away their Lives and what hath once happened 't is not impossible but it may happen again And we may remember how about little more than 30 years since that the K. of Denmark shut up the Senators and Nobility of the great Council of that Kingdom in Coppenhagen and threatned them with Death or Imprisonment if they refused to give up all their Liberties and from an Elective King make him and his Successors absolute hereditary Monarchs as they are at this day by means of the Bishops and Clergy of that Kingdom who then basely gave up and betrayed the Liberty of their Countrey and what they have now got by it they best know therefore this is a thing to be considered as a
there is no other means left but to resist it if they are able M. I can give you very good reasons to satisfie you why tho' I grant private Subjects may judge of the Legality or Illegality of the King's Commissions and also refuse to obey His Illegal Commands and also that all publick Officers ought to take care at their peril how they act by or execute such Illegal Commissions yet that it does not therefore follow that such illegal Commissions or Orders though executed upon the whole body of the People may be resisted by them for all limitation of the Royal Power being only voluntary and proceeding from the meer grace and favour of our Kings they are not compellable by force or resistable if they should impose their own Proclamations or Edicts upon us instead of Laws For tho' I grant that the King hath no Just or Legal Authority to act against Law and that if he knowingly put any Subject to death contrary to Law he is a Murderer and no Prince can have any such Prerogative as to commit open downright murders either in his own person or by those who act by Commission from him but what follows from hence That they may resist or oppose them if they do This I absolutely deny because God and the Law have Commanded us not to resist and I see no inconsistency between those two Propositions That a King hath no Authority to act against Law and yet that neither He nor those commissioned by Him though acting against Law may be resisted Both the Law of God and the Laws of our Countrey suppose these two to be very consistent For notwithstanding the possibility that Princes may thus abuse their Power and transgress the Laws whereby they ought to govern yet they also command Subjects in no case to resist and it is not sufficient to justifie Resistance if Princes do what they have no just Authority to do unless we have also a just Authority to resist he who exceeds the just bounds of this Authory is lyable to be called to an account for it but he is accountable only to those who have a Superior Authority to call him to an account No Power whatsoever is accountable to an Inferior for this is a contradiction to the very Notion of Power and destructive of all Order and Civil Government Inferior Magistrates are on all hands acknowledged to be lyable to give an account of the abuse of their Power but to whom must they give an account Not to their Inferiors not to the People whom they are to Govern but to Superior Magistrates or to the Soveraign Prince who Governs all Thus the Soveraign Prince may exceed his Authority and is accountable for it to a Superior Power But because he hath no Superior Power on Earth he cannot be resisted by his own Subjects but must be reserved to the Judgment of God who alone is the King of Kings F. In the first place I deny and I have sufficiently proved the contrary that all Limitation of Royal Power proceeded at first from the meer grace and favour of our Kings since the Crown of England has been from its first Institution Limitted by Laws and the People have likewise always enjoyed a property in their Lives Liberties and Estates by the same Laws Tho' I grant you and I are thus far agreed That the King hath no Just and and Legal Authority to act against Law and that if he put any man to Death or take away his Estate contrary to it it is Murder and Robbery And likewise that the Subjects may be capable of Judging concerning such illegal Commands but you will not allow that if such a Limitted Monarch should send his Mercenary Forces to take away our Estates or to Dragoon us till we will own our selves of his Religion that those Instruments of his Tyranny may be resisted or that I have brought any reason for it Whereas if you had but attended better to my discourse at our 3d and 4th Meetings you might have remembred that I plainly enough proved to you that God hath not given Princes nor those Commissioned by them any Authority to Murder or enslave their Subjects and your self then granted That every Man hath power to defend his Life against him who hath no Authority to take it away which holds more strongly in our Constitution where if the King give a Man a Commission to act contrary to the Law of the Land it is altogether void and the People may as well justifie their Resistance of those Officers or Souldiers who should come to Dragoon or persecute them for professing the Religion Established by Law as if he had sent them downright to cut their Throats and this being their Right by the Laws of God and Nature whether God hath taken away this Right by any express Precept in the holy Scripture I also examined at those Meetings but whether any Municipal Law of the Land hath restrained us from it I have also now considered and proved it contrary to the true intent and meaning of these Acts concerning the Militia And therefore to say that it is not sufficient to justifie Resistance if Princes do or command what they have no Legal Authority for unless we can also shew an Authority to resist is a mistake if by Authority you mean an express Civil Law for it because such Resistance in absolute Monarchies is justifiable by that which is Prior to all Civil Laws the Right of Self-defence or Preservation And so likewise in Limited Kingdoms there is the same necessity of Defensive Arms upon a general Breach or Violation of any Fundamental Constitution of the Government since it cannot be kept or maintained without such Resistance be allowed So that if the King hath no Authority to act contrary to Law he cannot sure delegate that to others which he had not in himself and consequently such Commissions to Persecute or Murder Men contrary to Law being in themselves void the persons that Execute them being no Officers may be justly resisted and the Resistance of such an Illegal Act doth not at all derogate from his Soveraignty as King since as I told you before that is limited only to the performance of Legal Acts and extends not to Illegal Orders or Commands and as for the rest of the Reasons you give against this Resistance viz. because he who exceeds the just bounds of his Authority is liable to be called to an account for it only by those who have a Superiour Authority to do it Whereas no Power whatsoever is accountable to an Inferiour You do but impose upon me and your self the same Fallacy which you have so often made use of in making being accountable all one with irresistible which are vastly different and therefore your Conclusion is as false that because the Soveraign Prince may exceed his Authority and is only accountable for it to God that therefore he cannot be resisted by his own Subjects for he may
be resisted and yet be still unaccountable those two differing as must us Self-defence does from punishment as I have more than once told you M. I cannot rest satisfied with this Reply for though I so far agree with you that an Act without a Legal Authority carries no Obligation at all along with it and therefore cannot oblige the Subject to Obedience Now this is true if by Obedience you mean an Active Obedience for I am not bound to do an ill thing or an Illegal Action because my Prince commands me but if you mean Passive Obedience it is as manifestly false for I am bound to obey that is not to resist my Prince when he offers me the most unjust and illegal Violence Nay it is very false and absurd to say that every Illegal is an Inauthoritative Act which carries no Obligation with it This is contrary to the practice of all Human Judicatures and the daily Experience of Men who suffer in their Lives Bodies or Estates by an unjust or illegal Sentence Every judgment contrary to the true meaning of the Law is in that sense illegal and yet such illegal Judgments have their Authority and Obligation till they are rescinded by some higher Authority This is the true reason of Appeals from Inferiour to Superiour Courts to rectifie Illegal Proceedings and reverse Illegal Judgments which supposes that such Illegal Acts have Authority till they are made null and void by a higher Power And if the higher Powers from whence lies no Appeal confirm and ratifie an Unjust and Illegal Sentence it carries so much Authority and Obligation with it that the Injured person hath no Redress but must patiently submit and thus it must necessarily be or there can be no end of Disputes nor any Order or Government observed in Human Societies And this is a plain Demonstration that tho' the Law be the Rule according to which Princes ought to exercise their Authority and Power yet the Authority is not in the Laws but in the Persons that Execute them For otherwise why is not a Sentence pronounced according to Law by a private person of as much Authority as a Sentence pronounced by a Judge or how doth an Illegal Sentence pronounced by a Judge come to have any Authority For a sentence contrary to Law cannot have the Authority of the Law And why is a Legal or Illegal Sentence reversible and alterable when pronounced by one Judge and irreversible and unalterable when pronounced by another For the Law is the same and the Sentence is the same either according to Law or against it whoever the Judge be But indeed the Authority of the person is not the same and that makes the difference So that there is an Authority in persons in some sense distinct from the Authority of Laws nay superiour to it For there is such an Authority as tho' it cannot make an Illegal Act Legal yet it can and often doth make an Illegal Act binding and obligatory to the Subjects when pronounced by a competent Judge F. I think notwithstanding all you have now said your distinction of a Supreme Authority in Persons above and distinct from the Authority of Laws will prove a meer Notion for you grant that the King hath no Just or Legal Authority to act against Law and that if he put any man to death contrary to it it is downright murder but you will not allow that if the King should thus murder never so many thousands either he or those Instruments of Tyranny may be resisted And therefore you would fain top upon me your old distinction of an Active and Passive Obedience The former of which I very well understand but as for the latter I have long since proved that it is so far from being any Obedience that it is indeed downright Disobedience or a refusal to do that which the Prince Commands so that truly your self have taught me to distinguish between the King 's Personal Authority and his Legal for otherwise why are you not as much obliged to yield an Active Obedience to the King 's Personal Illegal Commissions or Commands as to his Legal ones if there were no difference between them So then all the difference between us lyes in the measure of the Disobedience you maintaining that it is sufficient not to yield Obedience to such Illegal Commissions and Commands and I that besides this denyal of Obedience if it be in a fundamental point and that which generally concerns the whole body of the Kingdom that they may not only be disobeyed but resisted too if forced upon us with violence and therefore all that you have said to prove that the Authority to which we are bound to submit consists not in the Laws but in the Persons tho' acting contrary to Law is according to your own way of reasoning altogether unconclusive And farther when you say that it is false and absurd to affirm that every Illegal is an unauthoritative Act which carries no Obligation with it I shall prove that this absurdity lyes wholly on your side For 1. Legal and Authoritative are all one in our Law for that which is not Legal carries no Authority along with it so that Illegal Authority is in plaiâ—â— English unlawful lawful Power nor had K. Charles 1. any such extravagant Notion of his Royal Authority who certainly understood his own Power better than you or I when he owns in his Declaration to the Long Parliament dated from Newmarket 1641. That the Law is the measure of his Power which is as full a Concession of the thing I affirm as words can express For if the Laws be the measure of it then his Royal Power or Authority which is all one is Limited by it For the measure of any thing is the Limits or bounds of the thing Limited and when it exceeds those bounds it is an Illegal and consequently an Unauthoritative Act which carries no Obligation either Active or Passive along with it So likewise in the said King's answer to both Houses concerning the Militia speaking of the Men by them named to him to be Commissioners for it He thus replyed If more Power shall be thought fit to be granted to them than by Law is in the Crown it self His Majesty holds it reasonable that the same be by some Law first vested in him with Power to transfer it to these Persons c. In which Passage it is granted that all the Power or Authority of the Crown concerning the Militia is by or from the Law and that the King hath no more Authority than what is vested in him by the Law of the Land 2. Your Argument from the practise of Human Judicatures is also very fallacious for you Argue from the bare abuse of a Trust or Commission with the Execution of which all Judges Officers must be intrusted to that which is quite of another Nature viz When the Person intrusted Acts directly contrary to his Commission or without any Commission
downright Treason to resist them And if this be so the last difficulty will be easily answered viz. By what Authority or Commission the People may make this general resistance To this I say That in the first place all Commissions granted to persons uncapable by Law to take them or for illegal purposes are to be supposed to be issued contrary to the Kings will and knowledge and therefore are to be look'd upon as void in Law and consequently the Persons not to be commissioned at all and so may be resisted by the Kings legal Officers all over England as I have already proved but if once the King should Countenance and Abett such Robbers by his own personal presence this resistance may then be made and justified by the whole nation not by the King's Authority against his Person but by another higher and precedent right viz. The Right of Self-defence and the Common-safety of the whole Nation which the People must have reserved to themselves at the first Institution of the Government or else all Monarchies would be alike and there would be no difference at all between absolute and limited Kingdoms M. I shall not trouble my self about other Kingdoms but this much I firmly believe that our Kings are absolute Monarchs notwithstanding they have limited themselves by Law to the manner of their administration of these grand essentials of Government the making of Laws and raising of money so that since the supremacy of the Government is still in themselves as Gods Vicegerents here on Earth and not as the Peoples Deputies I cannot but still understand this Oath in the strict litteral sence in which I am confident this Parliament meant it and therefore since they have expresly declared the Law to be so I will not be wiser than the Law especially since it is most agreeable to the Scriptures and the known doctrine of the Church of England that the Kings Person is not only unaccountable but irresistable too upon any pretence whatsoever and I think I am able to shew you that it is much better for this Nation or any other of a like constitution to suffer the worst that may happen from the ill Government nay Tyranny of our Kings than to involve themselves in blood and confusion by Rebellion and Civil Wars as often as the People shall judge though never so falsly that their fundamental Rights and Priviledges are forceably invaded by the King F. I think I have very expresly proved at our 5th meeting and that from undoubted Testimonies from our ancient Histories and Writers of the Laws of England as also from the whole constant Tenour of the Statute Law of this Nation that the Kings of England are not limited by their own concessions in the manner of the Administration of their Soveraign Power but from the first constitution of the Government and if the King be not the sole supreme Legislative power I care not what some Divines have writ to the contrary and since it is a Law question the supreme Authority alone ought to decide it And therefore it is no matter in this case what the Scriptures say nor yet the Church of England the former hath not and the latter cannot determine what is the Legal constitution of the Government in this Nation and where the supreme power resides and therefore suppose it to have been the intent of this Parliament never so much to bar all resistance of the Kings Person in any case whatsoever yet I am sure it was not in their power to do things absolutely inconsistent and contradictory in themselves as they must have done had they made the Persons of all Officers however commissioned by the King absolutely irresistible and much more if they had induced the Kings Presence with an absolute power for them to commit the most violent and illegal action and yet have supposed they had thereby altered nothing in the constitution of the Government though they had rendred it instead of a Limitted an Absolute Despotick Monarchy which as I am not yet convinced it was in their will so neither was it in their powers to grant if they would And therefore as I do not desire to be wiser than the Law so I cannot allow this to be any Law at all in the sense you would put upon it so that make the most of it this was but the unwary declaration of a Parliament of very young Men not long after the King 's coming in who thorough the great Abhorrence they had of the late Civil War raised by the Parliament under colour of the King's Authority were drawn in before they were aware to be a little too free in their Expressions not considering the consequences that might follow But when this sond Fit was over and that a standing Army had been raised in England under pretence of the Dutch War and that the King had by his Declaration of Indulgence made some approaches to an Arbitrary Power and in order thereunto would in that very Parliament in 1675. have imposed this very Oath or Test not only upon those who were to take it before but upon all Peers and Parliament Men before ever they sate in the Two Houses as also upon all Officers in Church and State to the very Justices of Peace so that the Disguise being now seen thorough it made divers of the Peers even those of greatest Loyalty and Wisdom stiffly to oppose the laying this Test upon all the Clergy Nobility and Gentry of the whole Nation as it was then the design of the Bishops and Court-Party to have done Which vigorous Opposition tho' in the smaller number yet met with such good success that the Bishops and Lords of the contrary Opinion could not then carry it and the Eyes of the whole Nation were afterwards so much opened that the King durst never offer this Test any more to either of the Two Houses So that if you will but consider this matter of Fact how this Test was first obtain'd and how afterwards when it was thought to be intended to set up Arbitrary Power was also as vigorously opposed by them and their being sensible that the Parliament had gone too far already in doing what they had done I think none can take this Oath in your sense except those Clergymen who will allow none to be of their Church but those who are for this Passive Obedience according to their prejudicate Notions of Loyalty or else some few mercenary Lawyers who in hopes of Preferment which they can never otherwise obtain would interpret this Oath in such a sense as should make us all Papists and Slaves too whenever the King has a mind to it Now which of these extreams are worst that the people should judge for themselves tho' perhaps erroneously when the King or those acting by his illegal Commissions shall violently assault them in their Religion Lives Liberties and Estates that thereupon they make Resistance with one consent when they find themselves brought to this
Court took upon it to Judge of Matrimonial Causes about Alimony and concerning â—lmoniacal contracts and all other misdemeanours both of Clergy and Layety against Religion and good Manners which were the same things the late high Commission Court took upon them to determine and if they did not meddle with Popish or Non-conformist Meetings it was because their hands were so tied up by the Late Declaration of Indulgence that they had no power to meddle either with Papists or Dissenters M. I shall make no farther reply appresent to what you now say till I come to answer once for all therefore I shall go on to the next things excepted against in the Princes Declaration viz. the erecting of publick Chappels for Mass the protecting of Priests and the making a Jesuit a Privy Councellor all which tho' I confess they are against the express Letter of divers Statutes yet since all these things depend upon the Kings dispensing power set forth in His Majesties late Declaration which as I will not assert so I will not positively deny since the said Declaration of Indulgence and all proceedings thereupon have issued out and executed under colour of Law viz. of the Kings Ecclesiastical Jurisdiction without any force or violence upon the Conscience Religion or Properties of the Kings Protestant Subjects whom the King in his said Declaration solemnly promises to protect in the free possession and enjoyment of their Religion establisht by Law and I cannot see how a liberty granted to Popish Priests to say Mass or the putting in a Jesuite into the Privy Council or making Popish Judges or putting a Papist into the Ecclesiastical Commission can be lookt upon as any Invasion of the Protestant Religion the free and publick profession of which we have God be thanked as quietly injoyed as we did in the Reign of this King or in that of his Brother F. Since you cannot directly justifie the Kings setting up publick Mass Houses in London and in most other parts of the Kingdom and his so publick protecting and countenancing Papists and Jesuits even to the making a Jesuit a Privy-Councellor tho' they are all in judgment of Law alike publick Enemies and Traytors to the King and Kingdom and that all these as you cannot deny are contrary to the express words and intent of all Statutes against Priests and Popish Assemblies so you endeavour to palliate it under the Kings dispensing power which you suppose to have had a colour of Law at least to support it but tho' the giving Liberty to Popish Assemblies and the Conventicles of the Dissenters was no direct hindrance of the free exeâ—ercise of the Protestant Religion establisht by Law yet I must utterly deny that the King has any such prerogative as to dispense with those Laws and by his sole Authority to declare those that the Law calls Enemies and Traytors to be good Subjects and you may as well tell me that the King has not only a prerogative power to pardon High-way-men but may also protect them and put them into his Guards with a Commission to rob whom they pleased as to give Papists Power to bear Arms or to protect and imploy declared Traytors as Popish Priests and Jesuites are by Law as the King had done not the like I may say for putting in Popish Judges and Justices of Peace viz. that it was all done by force of the Kings Personal Orders without his Legal Authority which is that alone we can take cognizance of or render any Obedience to and tho' 't is true I do not deny the King a Power of making whom he pleases Judges yet this prerogative is still to be exercised according to Law and therefore if the King should make an illiterate man a Judge who could neither Write nor Read the Writ or Patent would be void in its self the same I may say of a Popish Judge the Law making no difference as I know of between a natural and a legal disability but however the turning out honest and able Judges because they would not give up our Religion and Liberties to the Kings Arbitrary Will is certainly a much greater breach of the Trust committed to him by his Coronation Oath wherein he swore he would maintain the Laws of the Land and mix Equity with Mercy in all his Judgements now where is the Equity or Justice of this that whereas the Judges anciently held their places quam diu se bene gesserint they should now by a notorious encroachment of the prerogative not only be made durante beneplacito but that the King should stretch this prerogative so unreasonably as to examine the Judges before hand whether they would agree to the dispensing power and to turn out those that refused to comply meerly because they would not serve his Arbitrary designs and then to put in the meanest and most mercenary Lawyers at the Bar nay some who never come thither at all into their places for no other merit or good qualities but because they would serve a turn is so notorious a breach of his Oath that it could not fail in a little time to destroy all our Common as well as our Statute Laws since these were all lately lodged in their Breasts and resolved into their Arbitrary determinations which yet as all the World knows were wholy managed by the influence and commands of the Court and this I say again was as notorious an abuse of the Kings prerogative as if he had put in High-way-men into his Guards with Commissions in their Pockets to rob whom they pleased since these Gentlemen in Scarlet have taken the same Liberty under colour of Law to raise Taxes upon the Subjects against the express letter of an act of Parliament as may be seen in their late determination concerning Chimney Money making Cottages built for the use of the poor and houses of persons exempted from payment liable to Chymney Money contrary to the express words of that Statute M. I cannot deny but the things you now mention have been great abuses of Prerogative but whether so great as to require resistance I must still disagree with you therefore I shall now proceed to the next particular complain'd of viz. the examining of the Lords Lieutenants Deputy Lieutenants Sheriffs and Justices of Peace to know whether they would concur with the King in the repeal of the Test and Penal Laws and turning all such out of Commission as refused to comply with the Kings desires in this matter now tho' I will not say it was well or prudently done yet it was no more than what I think the King by his Prerogative might Justifie the doing of since he may by Law give a quietus est to what Judges he pleases and put in or out of Commissions whether Civil or Military what persons he thinks fit and as for the persons so examined they might have chosen whether they would have given any positive answers to the questions put to them by the Lord Chancellor
why you cannot take this new Oath of Allegiance since you have the Judgment and Declaration of the Convention which is the Representative of the whole Nation to justifie you in so doing M. I must tell you once again that I think Allegiance is not only due to the King by the Law of the Land but also by the Laws of God and Nature and consequently cannot be dissolved by any subsequent Judgment of a Convention who are and always ought to be Subjects to him and his Right Heirs as long as they are in Being and therefore I should not allow the Prince and Princess of Orange for such were the King now actually dead nay if King Iames himself had stayed in England and had been so over awed by fear or overcome by persuasions as to have declar'd in Parliament that the Prince of Wales was not his true and lawful Son born of the Queen and had thereupon setled the Crown upon the Princess of Orange as his Heir Apparent I could never have thought my self oblig'd to swear Allegiance to her or to own her for my lawful Sovereign as long as the Prince of Wales or the Heirs of his Body are in Being since I am very well satisfied and that by unexceptionable proofs that he is really the Son of the King and Queen for I think I have sufficiently made out by several Declarations of Parliament that the Hereditary Right of the Crown can never be defeated nor alter'd by any Statute whatsoever but according to the Act of Recognition of King Iames the first 's Title which I have already urged the Crown ought to descend to the next Heir by Blood according to the rules of Descent I have now laid down F. I cannot but admire your obstinacy in this matter which proceeds from your old errour of believing that there is a Natural or Divine Right of Succession to Crowns different or abstracted from the Civil and Political Laws and Constitutions of particular Kingdoms which I think I have already confuted by shewing you that there was no such thing in Nature as a Patriarchal Right in Adam or Noah or their Heirs nor yet to any other King as their Assigns or Representatives and therefore though I grant that Allegiance to every lawful King is due by the Laws of God and Nature yet who that King is or who is to be his lawful Successor in limited or mixt Monarchies as ours is can only be determined by the Assembly of Estates of the whole Nation for notwithstanding all you have said there is a very great difference between the Legal Rights of Princes and the natural Rights of Fathers and Husbands which yet may cease and be dissolved in some cases as I have already sufficiently proved for I think it is evident that not only a Legal Title and Legal Authority may be parted from each other but that Legal Titles and Legal Authority may be rightfully separated from the persons to whom they were once due which natural Rights can never be A King may cease to be a King though a Father can never cease to be a Father for Laws have not the same force and power that nature has Now all men confess this separation may be made by a voluntary resignation as also by Conquest in a just War both which will divest such a Prince of all Right and Authority to Govern and if it may be done by either of these ways his Right and Authority is not inseparable from his Person since then there is no natural inherent property in Lands or Kingdoms but what proceeds from the particular Laws of each Kingdom or Common-Wealth therefore who ever the Supream Power appointed by the Constitution of such Kingdoms shall Judge or Determine to have a true and legal Right to the same are to be own'd and esteemed as the true legal owners and possessors thereof by all the Subjects so that if a King can part with his Kingship it is possible he may lose it too since there are more ways than one of parting with that which may be parted with If then a voluntary Resignation of a Crown or Conquest in a just War can give another Prince a just Title to it I cannot see why a â—acit Abdication or Forfeiture of a Crown upon a limited Kings total breach of the Fundamental Laws and Constitution of the Kingdom should not as much discharge all the Subjects of their Allegiance to him and also give the great Council as the Representative of the Nation a like Right of Ordaining a Successor upon such a Vacancy of the Throne and who being once placed therein all the people of the Nation ought to pay the same Allegiance to him as they did to his Predecessors But as for the latter part of your supposition that the right Heirs of the Crown by blood must always necessarily succeed to it that is likewise sounded upon two very false principles first that a lineal hereditary succession to the Crown is established by the Fundamental Laws and Customs of the Kingdom Secondly That the Succession to it cannot be limited by the Parliament or Great Council of the Nation the former of which suppositions I have confuted at our last meetting and as for the other you cannot deny but the Crown has been frequently setled and limited by Act of Parliament contrary to the common rules of Succession as hath been sufficiently proved by the Statute above mentioned of Henry the VII th as also by those several Acts concerning the Succession in Henry the VIII ths time and so it continues at this day by the Statute of the 13 th of Queen Elizabeth whereby it is declared Treason during the Queens Life for any person to affirm that the Queen and Parliament had not power to make Laws to limit and bind the descent and inheritance of the Crown or that this Act was not of sufficient force to bind limit and govern all Persons their Rights and Titles that in any way claim any Interest or possibility in or to the Crown of England in Possession Remainder Succession Inheritance or otherwise howsoever and every Person so holding or affirming after the decease of the Queen shall forfeit all his Goods and Chattels So that I can see no just reason you can have to refuse Swearing Allegiance to Their present Majesties and Their Successors according to the limitation in the said Act. M. Well I see it is in vain to argue these Points any longer with you since it would only force me to repeat the same things over again which will neither edifie you nor my self only give me leave to tell you this much that the last part of your Argument which is the only thing that is new in all your Discourse is founded upon a very wrong ground for though I should grant as I do not since this Act you last mentioned is expired that the Crown may be limited or intail'd by Act of Parliament contrary to the due Rules
should be so for it is not meerly a legal Title by descent but a legal investitute and recognition by Parliament that makes a legal King or a King in Law as it makes a legal Magistrate and then all Kings de facto who are placed in the Throne by a Legal Authority and with all Legal and acustomed Ceremonies are legal Kings and as such may require a legal Allegiance so that all those hard words in the Statute of the first of Edward the IVth that call those Kings of the House of Lancaster Kings in Deed and not of Right or pretended Kings mean no more than this that they were Kings for the time being and according to the Laws which had made them so though not according to that hereditary Right of Succession which those Statutes require If you have any thing to reply to this tell me or else I will proceed to answer your two other Arguments M. I will not at present say more to this than I have done and therefore you may proceed if you please F. Your two next Arguments are from the attainders of Richard the IIId and his principle Assistants which were by Act of Parliament as to that Prince himself as also his adherents the attainders of Kings de facto and their Assistants in after Parliaments do not prove that Subjects cannot be guilty of Treason against a King in possession nor does the Statute of Treason relate to a King de jure only for that Statute was not made to secure Princes Titles but the quiet of their Government whilst they sate upon the Throne for though a King if he be an Usurper when ever the Rightful King regains the Possession of his Throne if he were a Subject before may be attainted of Treason for his Usurpation as was Richard the IIId for Treason against his own Nephew King Edward the Vth yet this does no way prove that Richard the IIId was no true King during his Usurpation but only shews the Parliaments abhorrence of his Treason and to deterr others from falling into the like attainted him and several of his Accomplices who had assisted him in his said Usurpation for that they were not barely attainted for defending King Richard's Title appears from this that the Earl of Surrey Son to the Duke of Norfolk and divers other Noblemen and Gentlemen who fought for King Richard at Bosworth-Field were never attainted at all But as for the Pardon that you say passed in that Parliament of the 1 st of Henry the VIIth you are very much mistaken in the purport of it for if you please to look upon it again you will find that it was not a General Pardon for the Common People who had fought on the behalf of Richard the Third but of all those who had come over with Henry the VIIth himself or who were with him in the Field against Richard the Third for all manner of Murthers Spoils and Trespasses committed by them in taking part with King Henry against his Enemies so that you see the assisting of a King de facto was not only justifiable but those that had fought against him thought themselves not safe till they had their Pardons Nay farther that Attainders passed in Parliament are no proof that the Princes against whom they were passed were not lawful Kings appears from hence that when Edward the Fourth was driven out of the Kingdom and dispossessed of the Throne the next Parliament under Henry the Sixth passed an Act of Attainder against him and his Adherents But as for the Attainder of Henry the Sixth you are very much mistaken to suppose that it was for any Treason committed against Edward the Fourth but it was for breach of the agreement made with his Father the Duke of York and in making War again upon him for had he not done this he had continued lawful King during his life by the Duke of Yorks own consent for in the Parliament Roll you your self have already cited it is thus expressed That considering the possession of the said King Henry the Sixth and that he had before this time been named taken and reputed King of England and France and Lord of Ireland the said Duke is content agreeth and consenteth that he be had reputed and taken for King of England and of France with the Royal Estate Dignity and Preheminence belonging thereto and Lord of Ireland during his life natural and for that time the said Duke without hurt or prejudice of his said Right and Title shall take worship and honour him for his Sovereign Lord So that you see that by the Judgement of the Parliament and by the express consent of the Right Heir of the Crown a King de facto was to be own'd by this Right Heir for his true and lawful Sovereign and therefore could not be attainted for detaining the Crown from him or his Son M. I will not dispute this point any further but yet methinks though Treason might be comitted against the King de facto whilst he continues King yet this is not for any Allegiance due to him but because such Treason being against the due order of Government and the common peace of the Nation such actions are therefore Treason from the presumed or tacit consent of the King de jure F. I grant indeed that such Acts are against the Order of Government and very destructive to it which is the only reason why they are made Treason by Law and this is as good a reason why the Law should make them Treason against a King de facto as against a King de jure for they ere equally against the order of Government and destructive to it whoever is King and that is the only reason why they made it Treason at all Now this presumed or tacit consent of the King de jure is a very pretty notion and serves you for a great many good turns it makes Laws and it makes Treason and gives Authority to the unauthoritative Acts of a King de facto that is to say or you say nothing that the presumed consent of a King de jure invests the King de facto at the time with his Authority for if he have no Authority of his own unless what the presumed consent of the King de jure give him that cannot make any Treasonable Act done against him to be Treason for it cannot alter the nature of things nor make a Man guilty of Treason against any person to whom he ows no duty of Allegiance And if the presumed consent of the King de jure can invest the King de facto with his Authority it must transfer the Allegiance of the Subjects too and then Subjects are as safe in Conscience as if the King de jure were on the Throne for it seems there is his Authority and tacit consent though not his person But indeed this is all meer trifling the King de facto has Authority or else none of his Acts
of Government can have any for that which is done by a person who has no Authority can lay no obligation upon us whence then has he this Authority since he has no legal Right to the Throne not sure from the presumed consent of the King de jure which is nonsence to suppose but from the possession of the Throne to which the Law it self as well as the Principles of Reason have annexed the Authority of the Government M. I am so far of Bishop Sanderson's Opinion in his Case concerning taking the Engagement that when Usurpers or Kings de facto have taken upon them the Government they are obliged to administer it for the common good and safety of the People and as far as that comes to we are also obliged to live peaceable under them and to yield obedience to them in things absolutely necessary for the upholding civil Society within the Realm such as are the defence of the Nation against Foreigners the furtherance of publick Justice the maintenance of Trade and Commerce and the like But sure this is no argument for transferring our Allegiance from the lawful King and his Heirs whilst they are alive and therefore I must still suppose that this Statute of the 11th of Henry the VIIth can do no service to the present Government because it s vertually repeal'd by several Statutes as first by the 28th of Henry the VIIIth concerning the Succession of the Crown wherein it is expresly provided that if any of his Children should Usurp upon each other or if any of those to whom he should bequeath the Crown by his last Will or Letters Patents should take the Crown in any other manner than what should be thereby limited that such Children or others should be guilty of Treason for so doing Now it is plain such Treason must only have been committed against the right Heir and consequently the person so taking the Crown was not to be looked upon as King de facto It is also vertually repealed by the Statute of 1 o Elizabeth by which we are obliged to swear to be true to the Queen her Heirs and Lawful Successors i. e. those who have a right to the Crown by proximity of Blood as also by the Oath of Supremacy Enacted in the 4th of King Iames by which we are likewise sworn to bear true Allegiance to his Majesty his Heirs and Successors from which Oaths I argue first that if we are sworn by Act of Parliament to pay Allegiance to the Heirs of a King de fure who never were in possession than a fortiori to a King de jure who besides the legality of his Title had been actually recognized as Sovereign and enjoy'd an uncontested administration of the Regal Power Secondly If our Laws oblige us to swear subjection to the Heirs c. of a Rightful Prince than by undeniable consequence we are bound not to translate our Allegiance to those who are unjustly set up by the People for without all question the words Heirs and Lawful Successors were made use of on purpose to secure the hereditary Rights of the Monarchy and to prevent all Usurpations upon the direct Line And since by vertue of that Statute which framed the Oath of Allegiance and Supremacy we are not to acknowledge any pretended Governours to the prejudice or disinherison of the Heirs of the King de jure then most certainly we ought not to do this in opposition to the King de jure himself so that now we can have no pretence to make Right the necessary consequence of meer possession of the Crown any more than in private Estates F. In the first place I agree with you in what you have said that Kings de facto are to be obeyed in all things tending to the publick good of Society but then it will also follow that Allegiance is due to them from that great Law of prosecuting the same publick good since it were much better that Kings de jure should lose their Right than that a Nation should be involved in a long and cruel War to the weakning and impoverishing thereof and to the destruction of so many thousands of ordinary as well as Noble Families as was seen in the long Civil Wars between the Families of Lancaster and York so that I cannot but think it would have been much better for this Nation if that Family had continued to Govern us unto this day rather than that Edward the IVth should have obtained the Crown with so great a destruction of the People of this Nation and so great cruelty as was then exercised upon King Henry the VIth and the Prince his Son as you may read in the History of those times But I come now to answer the rest of your Arguments whereby you will prove this Statute of the 11th of Henry the VIIth to be vertually repeal'd and here by the way I must tell you Gentlemen of this Opinion that I cannot but admire your wondrous sagacity in discovering this Act to be repeal'd when my Lord Coke and all the rest of our Lawyers do still suppose it to be in force but indeed the reason you give for it is not urged like a Common Lawyer and therefore I think it will signifie little for though I grant that an Act of Parliament may be vertually repeal'd by a subsequent Act yet it is only in such Cases where they are absolutely contradictory and inconsistent with each other but if they are not so an Act of Parliament can never be said to be vertually repeal'd and therefore I shall now show you that notwithstanding the Statute of Henry the VIIIth and the Oaths of Supremacy and Allegiance you have now mention'd this Statute may very well continue in force and unrepeal'd First as to the Statute of Henry the Eighth whereby it was declar'd Treason for any one of his Children upon whom the Crown was setled to Usurp upon each other yet that part of the Statute which makes this Treason was repeal'd by the first of Edward the the Sixth and by the first of Queen Mary or admit it had not been so yet this Clause in the Statute of Henry the Eighth would haue been absolutely void in it self against any such Usurper when actually possessed of the Crown since it was held by all the Judges in the Case of Henry the Seventh who at the time of his coming into England stood attainted by Act of Parliament that this attainder need not be reversed since Possession of the Crown takes away all precedent defects But as to the Statutes of the first of Queen Elizabeth and the fourth of King Iames by which the Oaths of Allegiance and Supremacy were Enacted I conceive neither of these Oaths can amount to a vertual repeal of this Act for though I grant one end of these Oaths may be to secure the right of the King or Queens Heirs by lineal descent yet it will not therefore follow that a King de facto
or for the time being may not be legally defended in the Throne for as for that part of the Oath which was taken to King Iames himself it can hold no longer than whilst he continued King If therefore the Estates of the Kingdom have adjudged him to have forfeited or abdicated the Crown the whole Nation ought to take this as to have been legally done since it was done by the judgment of the highest Authority in the Nation when King Iames had deserted the Throne the like I may also say for the other part of the Oath of Allegiance whereby we are obliged to his Heirs and Lawful Successors for since there has been a dispute concerning the succession of the Crown between the Princess of Orange and your Prince of Wales if the Convention who are the sole proper Judges in this Case have thought fit for the reasons I have already given you at our last Meeting to declare King William and Queen Mary the lawful King and Queen of England all the Nation ought to accept them for such since it was done by the highest Authority at that time extant in the Nation and the only proper Judges of that right and if disputes about legal rights of which certainly that of succeeding to the Crown is of the highest importance ought to be decided by Law and not by the Sword which is not the decision of civil Authority but of force the sentence of competent Judges must end the dispute and if the Estates of the Realm be not the proper and legal Judges of such Disputes that concern the right to the Crown there can be none and if they be Subjects must acquiesce in their Judgments or it is all one as if there had been none for if Men may pretend Conscience and adhere to their own private Opinions as sole Judges the dispute must end in blows which is contrary to the reason and nature of humane Societies which were instituted to prevent Civil Wars and to end all Controversies by a legal Judgment without the Sword And to let you see farther that as to the Allegiance of the Subjects it is all one in respect of us who are Subjects whether the Convention have judged right or wrong in this case Let us suppose a Person who has only a pretence but no true right to an Estate should commence a Suit of Law for it and at last obtaine a Verdict of the Jury and also a Judgment of the Court of Kings-Bench for his Title can any Man deny but that the Sheriff is by vertue of this Verdict and Judgment oblig'd to put this Abator into possession of this Estate notwithstanding he may know of his own knowledge that the person who has obtain'd this Judgment has no true right to the Estate or will any Lawyer doubt whether all the Tenants of the Mannour are not oblig'd to swear homage and fealty to this suppos'd Lord if they are required by him so to do Now though the true Heir or owner has the legal right to the Estate yet by the supream Law of all Societies which refers the decision of all personal rights to a legal Authothority he who by a legal judgment is possessed of it has the legal right in the Estate against all other claims and legal Authority must desend him in it and all who will submit to Laws and Legal Authority must acquiesce in it And thus it must be with respect to the Rights of Princes as well as of Subjects the right to the Crown has been often disputed as we all know and to say that when such disputes happen there is no Authority in the Nation to decide them is to say that Princes have no rights to their Crowns by the Laws of that Nation for there can be no Civil Rights of which there neither are nor can be any Civil Judges for no man no not a Prince can be judge in his own Cause and if Princes have no legal rights they can lose no legal rights when they lose their Crowns and I doubt their natural rights swill affect the Consciences of very few Subjects Therefore every independent Civil Society which is not wholly governed by the Sword must from the nature of such Societies and the reason of their institution have authority within it self to decide all Controversies which may arise about the rights of every member of that Society and to preserve it self from falling into a state of War which is a dissolution of all Civil Government and if there ought to be such an Authority in every Civilized Nation when this Supream Authority has given sentence in such Disputes this must also determine all the Subjects and ought likewise to have the same effect upon the contending Princes themselves and no right or pretence of right ought to affect the Conscience after such a final Judgment unless Civil Rights can oblige Subjects to dissolve Civil Governments and to dispute Civil Rights not by the Law but by the Sword which is to overthrow all Civil Rights and put an end to the Authority of Laws I hope this may serve to shew you how much you are mistaken to suppose that there can be no King in an hereditary Monarchy but the next lineal Heir and tho' I grant no Allegiance can be due or ought to be paid to him who is no King yet will it not follow that none can be due to any Prince if he be not the next heir for that no obedience can be due to him who is no King I readily grant but yet he may be a legal King in this Kingdom who is not the next Heir by blood as almost half of the Kings of England since the Conquest were not and yet have been always own'd and obey'd as legal Kings M. I confess what you say would go a great way to satisfie me could you prove that there was no difference between the succession to Crowns and private inheritances where I grant that the judgement of the Supream Court of the Nation is to determine not only the possession but the right too in respect of the person who loses his Estate by an unjust verdict or illegal judgment whereas it is otherwise in the Title of Crowns to which Princes have a right as well by the Laws of God and Nature as also by the receiv'd setled Laws and Customs of the Kingdom concerning the Succession by descent which is call'd in the 13th of Queen Elizabeth in the Statute we have so much debated at our last Meeting the Common Laws of this Realm and it is there declared that it ought to direct the right of the Crown of England and it is there made Treason during the Queens life to affirm the contrary and this course of lineal Succession at Common Law was also declar'd by solemn judgment in Parliament in the case I have so often urg'd of the Duke of York's Title to the Crown against Henry the VIth that it could no way be defeated by
Nation as I have already sufficiently made out And therefore though I grant that all Legal Authority ought still to go according to just or rightful Titles yet since God makes no Kings at this day â—ut those who are made Kings by some humane Acts and have a legal right to Kingship by some humane Laws Now how can you prove from hence that in England none can have a legal right to govern but those who have the rightful Title of a Lineal Succession for if the Title alone does not conferr the the Authority but that the Law says a legal investiture by Coronation and Recognition by Parliament shall also conferr it it is evident that an Hereditary Title and a Legal Authority may be separated and yet the Authority continue Legal still for Legal Authority must be conveyed in such manner and by such forms as the Law has prescribed or appoints to that purpose for there is no other way of conveying it and then that Authority which is so given in form of Law and that only is the Legal Authority If then the Estates of the Realm who are the only proper Judges of such Disputes have adjudged the Crown to one whom we will at present suppose to have no antecedent legal Title to it yet he thereby becomes legally possessed not only of the external force and power but of the legal Authority of the Government also and therefore he may challenge as his due all Legal Obedience which is the true notion of Allegiance for nothing more than Legal Obedience can be due to a meer Legal Authority so that because he is invested with the Legal Authority the Crown is his Legal Property against all other Claims and his Subjects must defend him in it as the Legal Properties of private Persons being once determined by Judgements of inferiour Courts of Law are also to be defended by the Civil Power against the force of him who perhaps may have the better Title to the Estate by right of blood And if God makes Kings by humane Acts I hope it is no injustice in God to make him a King whom the Law makes a King and to enjoyn our Obedience to a Legal King which Legal Authority may be said to be annexed to the Legal Title while there is no Legal Judgement against it which was not the Case of Queen Mary and the Lady Iane her Competitor nor yet of King Charles the Second and Oliver Cromwell since neither the one ' or the other were ever Crowned or acknowledged as Lawful Queen or King by Parliament and therefore could obtain no Legal Title against the Right Heirs but on the other side when one is solemnly declar'd King or Queen being Crown'd or plac'd on the Throne by the Estates of the Realm he is then Legal King and has the Legal Authority as the Royal Estate and Dignity was owned to be in Henry the VIth when the Duke of York claimed the right to the Crown M. I am not yet convinc'd I am mistaken in this matter for waving at present any Natural or Divine Rights of Princes I think this Act of Henry the VIIth if suppos'd to be now in force is no ways to be reconcil'd with the former declar'd Laws and Statutes of the Kingdom much less can this last pretended Act of Recognition of King William and Queen Mary reverse the Statute of Recognition made to King Iames the First whereby the Parliament does not only own him for true and lawful King by descent from Henry the VIIth and Edward the IVth but also engaged themselves and their Posterities to his Majesty and his Royal Progeny for ever And they do likewise conclude in these words I have not yet mention'd which Act if Your Majesty shall be pleased as an argument of your gracious acceptation to adorn with your Majesties Royal Assent without which it can neither be compleat and perfect nor remain to all Posterity according to our most humble desires as a Memorial of your Princely and tender affection towards us we shall add this also to the rest of our Majesties unspeakable and inestimable benefits Here they plainly acknowledge these two things First that the Crown descendâ— by proximity of blood and that immediately even before any Ceremony of Coronation or otherwise so that there can be no inter-regnum or vacancy of the Throne and accordingly it is a maxim in Law that Rex non meritur Secondly That the Assent of the King is that which gives the life being and vigour to the Laws without which they are of no force therefore I shall plainly prove these Acts to the contrary to be void It is a Maxim in our Civil as well as your common Law ' that every Sâ—natus-Consultum or Decree of the Senate as also every Statute or Act of Parliament must be abrogated and repeal'd by the same Authority by which it was made since therefore that Act of the first of Edward the IVth whereby he was declar'd to be Lawful King as descended from Lâ—â—nel Duke of Clarence third Son of Edward the Third by Philippa his Daughter and Heir and that Henry the Fourth and Henry the Sixth who had successively held the Crown were Usurpers and only pretended Kings it would necessarily follow that none can after this so Solemn Law and Declaration lawfully succeed to the Crown of this Realm but such as have a true and just right as Heirs by blood according to the course of descent allow'd of by the common Laws of this Kingdom and therefore Henry the VIIth being an Usurper and enjoying no more than a Matrimonial Crown could not joyn with a Parliament in making any Law contrary to that of the first of Edward the IVth which had been so solemnly past and setled in Parliament by a King whose Title was by descent indisputable So likewise in the matter now in dispute between us I can never apprehend how a pretended Statute made in a Convention and not in a Lawful Parliament summon'd by the King can first declare the Throne vacant and then appoint those to fill it who certainly can have no just Title to it according to that Act of Recognition of King Iames which expresly declares that they themselves could not have made that Act to be compleat and perfect to remain to all posterity without his Royal Assent which being once past into a Law by a King whose Title was indisputable can never afterwards be alter'd if ever it can be at all but by a Parliament as legally call'd and that by a King whose Title is also as Legal as that of King Iames the First 's this Objection though I have often urg'd in other words yet could I never yet obtain a satisfactory answer from you F. Though I have already in part answer'd this Objection at our last Meeting and have also partly done it already in this yet since I see you so much insist upon it and do also urge it again in other words with a fresh
was the only right Heir this is to beg the question since if he had not been so it would have been all one as you your self confess As for the rest of your Arguments which you draw from the different means which our Law allows for Princes succeeding to the Crown which you call a mungrel hodge podge course of Succession and that it derogates from the Dignity of a true Hereditary Monarchy to which I shall only say if now our Law has established it so no private Man ought to judge otherwise for nemo debet esse sapientior legibus is a maxime as old as true but indeed though our Laws do establish a legal right in the present Possessor of the Crown when once Crown'd and Recogniz'd by Parliament since they will not allow the Parliament to judge of or examine the Kings Title or by what means he attain'd the Throne yet this does not to alter the ordinary hereditary course of Succession for the Law still looks upon the Crown as Hereditary and the change of the Person or Royal Family does not make the Crown cease to be so and therefore whoever has possession of the Crown has an Hereditary Crown and as such may leave it to his Heirs as long as they can keep it as is plain from the example of the three Henries who succeeded each other and who had not only Allegiance sworn to them but they who acted contrary thereunto were judged and executed as Traytors so that the Law did all it could to maintain the Crown in the right line of Succession and if any Kings have gain'd it by Usurpation though the Parliament have own'd the Authority of such an Usurper yet have they not thereby approv'd the action and you your self must acknowledge a great difference between these two since you have more than once acknowledged that an Usurper or King in possession has a good Title to a Crown in case all the right Heirs are extinct or by their not claiming it for any long time are suppos'd to have made a â—acit cession of their right since it is not so much to the Person as to the Authority which we grant to be from God that we pay our obedience But let us also for once suppose that there may be a legal Title to a Crown without a right to exercise the Authority belonging to it and a legal right to wear the Crown and exercise the Authority belonging to it without an antecedent legal Right to the Crown it self this is no such absurdity as you suppose if you please to consider that allow'd distinction between jus ad rem and jus in re with the reason of it for t is an approved distinction in Law that one may have a right to a thing and another a right in it the one is a right of a legal claim the other of a legal possession and that this may and must be in all Civil Governments and meer legal Rights appears from the different Laws and Customs on which such different rights are founded This I have hinted before but must now explain it more particularly in all Civil Societies there must be particular Laws to determine personal and particular Rights and whatever is due to any Man by such Laws is his legal Right But yet we know these Laws can determine no controversie without a living Judge for if every Man were to judge for himself every Man will make the Law to be on his side and then we had as good have no Laws at all and therefore the Fundamental Laws of all Societies which is superior to all particular Laws is this That the last and final Judgment of Authority shall be taken for Law and that shall be every Man 's right as to all the Effects of Law which is thus adjudged him whoever calmly considers these things will find that it is impossible it should be otherwise without overturning all Civil Governments And this I have proved to you from the Example of a right owner of an Estate when outed of his Possession by a Verdict of a Jury and an unjust Judgment in one of the King's Courts that no Man ought to restore him by force to his Possession till he has again reverst that unjust Judgment given against him M. Though I grant this is true in the Case of private Persons and their Inheritances yet is it not so as to Princes who hold their Crowns by a Title superior to the ordinary Municipal Laws and therefore are not only Kings by Law but by Divine Right and a Fundamental Constitution of the Government and so cannot have their Title adjudged by Parliament as you suppose for our best Divines have unanimously concluded out of Scripture that all lawful Kings and their Royal Power is from God by Divine right and is not from the People no not in Elective Kingdoms such as Poland for Example for even there the conferring of the Royal Authority is from God and not from any Law made by the People and neither they nor their Representatives have any thing to do to judge of it for I would gladly know who made that Law which made the King certainly the King did not make it for that Law which made the King must of necessity precede and be before the King who had his Royal Power and Kingly Office from that Law F. I see you are very hard put to it since you are again forc'd to flie back to your old Covert of a Divine Right in Kings which is not to be deriv'd from any Law made by the consent of the People and if this be true I desire you would show me how Kings can at this day owe their Crownâ— immediately to God and not to the Law since God does no longer confer Kingdoms by any express Designation of the Person but by the ordinary course of his Providence and then pray tell me why all Princes whatsoever when they are once seated in the Throne let them come by it which way they will must not derive their power alike from God and consequently Kings by an unjust Conquest or Usurpation are as much from God as those who ascend the Throne by the Consent or Election of the People for if the Peoples consent do no more then design the Person but that it is God alone which gives him his Authority then which way soever he obtains this power of the Sword which is the onely sign of God's conferring this Authority it will be also the Ordinance of God and consequently their present Majesties being once seated in the Throne are upon these principles as much to be obey'd as the Ordinance of God as King Iames or any other Hereditary Monarch whatever But if you do not like this Doctrine and tell me of a legal Successive right which King Iames and his right Heirs have to the Crown according to the Fundamental Constitution of the Nation this is plainly to own the King to be so by the Law of the
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
it were granted him by God F. I promise to give you full satisfaction to this question by and by but in the mean time pray let me make it a little more plain to you that this Power of Life and Death which may be exercised by Masters of separate Families over their Wives and Children in some cases is not by any Power they receive from God as Husbands or Fathers but only as Heads or Masters of such Families may by proved by this instance suppose a Master of a Family independant on any other as in the Indies hath neither Wife nor Children yet sure he hath notwithstanding the same Power of Life and Death over his Servants or Slaves for such great offences as you have mentioned in case there be no superiour Power over him to take Cognizance of such Crimes And to make this yet plainer suppose a Married Man having a Wife and Children will live together with them in the Family of such a Master as I have now described yet not aâ— a Servant but as an Inmate or Boarder and whilst he so continues his Wife Kills one of her Children or one of his Sons Murders his Brother who hath right to punish this offence but the Master in whose Family he is an Inmate And this follows from your own supposed for if every separate Family in the state of Nature be a distinct independant Government then all those that enter themselves as Members of such a Family must be subject to the Master or Governour of it Nor do you reduce me into any absurdity by your reply to my argument That if the Power of Life and Death were Originally in Fathers by the Law of Nature it could never be restrain'd nor taken from them without their consent that then this will make as much against the like Power of Masters of Families since I must grant this is taken away by Civil Laws And why not the other To this I reply that you do not observe the strength of these words Without their consent For I suppose that no Power whatever can take this out of the hands of such Fathers or Masters of Families in the state of Nature without they assign it to the Supream Powers of the Common-wealth upon its first Institution whereas you make this Power to be obtainable by Force as by Conquest or Usurpation not only over those that are not at their own disposal as Children and Servants but over their Fathers and Masters too without their consents which is contrary to the Law of Nature and Reason M. I see you take it for granted that I will admit your Instance of the Power of Life and Death to be in the Masters of Families and not as Fathers in the State of Nature But as plain as you think it since you question the Power of Life and Death which I suppose to be inherent in all Fathers I know not why I may not with more Reason question your allowing the like Power to Masters of separate Families since there is no reason in my Opinion which you can bring for such a Power in your Masters of Families which I cannot with like reason urge may be also exercised by Fathers and Husbands over their Wives and Children in case they deserve it For if it be for the good and preservation of mankind that great and enormous Crimes such as Murder and Adultery should be punished and that with Death Who is more fit to inflict these punishments or who can be supposed to judge more impartially of them than the Father or Husband himself Since he cannot put his Son or Wife to Death however they may deserve it without very great reluctancy since he aâ— it were thereby lops off a Limb from his own Body And therefore I cannot see any Reason why such a Married man as you describe should by coming under another Man's Rooâ— only as an Inmate or Boarder and not as a Slave which I grant would alter the Case should lose that Power of Life and Death which I suppose he hath by the Laws of God and Nature over his Wife and Children unless he had actually given it up to the Master of that Family with whom he came to Board And therefore as I do not deny but that a Master of a separate Family hath power of Life and Death and also of making Peace and War with other such Masters of Families nay with Princes themselves if there be occasion as we read in Genesis Chap. 14. That Abraham made War with the four Kings who had taken Lot Prisoner So likewise when Judah pronounced Sentence of Death against Thamar his daughter-in-Daughter-in-Law for playing the Harlot Bring her forth says he and let her be burnt Gen. 38. I own this was not done by the Authority of a Father alone she not being his own Daughter and his Son being then dead but as the Master of a separate Family who hath I grant power of Life and Death as he is Lord over the persons of his Children aâ— Servants and consequently over their Wives also for if he hath power over his Son he hath certainly the like over all that belong to him as long as they continue members of his Family and that he hath not thought fit to manumit or set them free But now I desire to know by what right these Patriarchâ— could exercise all these markâ— of Soveraignty especially this great Power of Life and Death unless it were derived from God at first since no Man hath any power to dispose of his own Life at his pleasure and therefore sure hath naturally no power over that of another man's So that not only this Power of the Patriarchs but also that of all Monarchs to this day must be derived from this Divine Original F. Well then I find you 're forced to quit the power of a Father as such by Generation since it plainly appears that this power of Life and Death which you affirm a Husband or Father may exercise over their Wives or Children in the state of Nature is not quatenus as a Father but Lord and Master over them which in the first place I cannot allow to be true in relation to the Wife nor that the submission of the Wife's Will to the Husband must imply a power of Life and Death over her for if she is not his Slave as certainly she is not for then a Man might sell his Wife when he pleased I cannot see how she her self could convey by force of the contract any such Power over her Life tho I grant indeed if she happen to commit Murder upon one of her Children or other Person of the Family he may proceed against her as an Enemy but not as a Subject and if it be for Adultery it self I cannot see that the Husband can by the Law of Nature punish her with Death for since that Crime doth really dissolve the bond of Matrimony Divorce or putting her away and deserting the Child born in Adultery
the sole Will of the first Princes in which the People had no hand for in the most Antient Monarchies there was a time when the People of all Countreys were Governed by the Sole Wills of their Princes which by degrees came to be so well known in several instances that inferior Magistrates needed not resort to them in those cases and the People being for a considerable time accustomed to such Usages they grew easie and Familiar to them and so were retained tho the Memory of those Princes who first introduced them was lost and after Kings finding it better to continue what was so received than to run the hazard and trouble of changing them were for their own ease and the good of their Subjects contented they should be still from Age to Age so continued Which custom may hold as well in Laws about Succession as other things And therefore we find that even in those Monarchies where the People have nothing to do in making Laws Women are excluded which could proceed at first from nothing else but the declared Will or Law of the first Monarchs So likewise the Original of the Salique Law is wholly ascribed to Pharamond the first French King and Mariana whom you lately cited tells us that Alphonso King of Arragon made a Law that where Heirs Male were wanting the Sons of a Daughter should be preferred before the Aunt which Law is wholly attributed to the King for he adds presently after Sic saepe ad Regum arbitrium jura regnandi commutantur F. Granting all this true that you have said you cannot but confess that the Laws of God and Nature have established nothing in this matter or else it could not be in the Power of Kings to make or alter Laws concerning the succession as your last Quotation intimates they may yet even in the most absolute Monarchies the Laws about the Succession of the Crown must wholly depend upon the Consent of the People who are to see them observed or else every Monarch might alter these Laws of Succession at his pleasure and the Great Turk or King of France now the Assembly of Estates is lost might leave the Crown to a Daughter if either of them pleased and disinherit the next Heir Male. But as for the Original of this â—alique Law in France you 'l find your self much mistaken if you suppose that that Law was made by the Sole Authority of Pharamond for the Antient French Histories tell us that the Body of Salique Laws which are now extant were made by the Common Consent of the whole Nation of the Francs who committed the drawing of them up to three Judges or Commissioners and which Laws Pharamond did only confirm and any one that will but consult those Histories may see that Kings were so far from having the Sole Legislative Power in their own hand that they were frequently Elected by the Estates nor is it truer that you suppose from Mariana that the Kings of Arragon had Power alone to make Laws it appears quite contrary from the Constitutions of that Kingdom where the King could do nothing of this kind without the Consent of the Estates and was not admitted to the Crown without taking an Oath to the Chief Justice in the name of the People that he would observe the Laws and Constitutions of the Kingdom otherwise that they would not be obliged to obey him But at once to let you see that about the Succession of the Sons or Descendants by Daughters the Cases are much more nice and intricate and that when such Cases happen in limited Monarchies where there is an Assembly of Estates they are the Sole Iudges of such differences may appear by two famous examples in modern History The first is in Scotland about four hundred years ago when after the Death of King Alexander III who died without Issue when two or three several competitors claim'd a Right to the Crown as descended from several Daughters of David Earl of Huntington great Uncle to the last King the Chief of which being Iohn Bayliol and Robert Bâ—uâ—â— the Estates of the Kingdom not being able to decide it they agreed to refer it to Edward I. King of England who adjudged the Crown to Bayliol yet did not this put an end to this great controversie for not long after Bayliol being deposed Bruce revived his Title and the States of Scotland declared him King whose Posterity enjoy it at this day A like Case happened in the last Age in Portugal after the Death of Henry surnamed the Cardinal without Issue when no less than four Eminent Competitors put in their Claim some claiming from the Daughters of Don Durate youngest Brother to the last King Henry But the King of Spain and other Princes as Sons to the Sisters of the said King Henry dying without Issue left ten Governours over the Kingdom to decide together with the Estates the Differences about the Succession who quarrelling among themselves as also with the Estates before it was decided Philip the second King of Spain raised an Army and soon conquered Portugal And yet we have seen in his Grand son's time that the Estates of Portugal declared this Title void and the Crown was settled in the Posterity of the Duke of Braganza who still enjoy it And how much even Kings themselves have attributed to the Authority of the Estates in this matter appears by the League made between Philip the Long King of France and David King of Scots wherein this condition was exprest That if there should happen any Difference about the Succession in either of these Realms he of the two Kings which remained alive should not suffer any to place himself on the Throne but him who should have the Judgment of the Estates on his side and then he should with all his Power oppose him who would after this contest the Crown To conclude I cannot see any means how if such Differences as these had arisen in the first Generation after Adam I say how they could ever have been decided without a Civil War or else leaving the Judgment thereof to the Heads or Fathers of Families that were then in being Which how much it would have differed from the Judgment or Declaration of the States of a Kingdom at this day I leave it to your self to judge M. I shall not trouble my self to determine how far Princes may tye up their own hands in this matter of the Succession and leave it to the States of the Kingdom to limit or determine of it but from the beginning it was not so and therefore give me leave to trace this Paternal Government a little farther For tho' I grant that when Iacob and his twelve Sons went into Egypt together with their Families they exercised a Supreme Patriarchal Jurisdiction which was intermitted because they were in Subjection to a stronger Prince Yet after the return of these Israelites out of Bondage God from a special
the Father please to sell one or two of his Children whom he least loveth to provide Portions for the rest he may lawfully do it for any thing I see to the contrary So likewise immediately after he asserts the Superiority of all Princes above Laws because there were Kings long before there were any Laws And all the next Paragraph is wholy spent in proving the Unlimited Iurisdiction of Kings above Laws as it is described by Samuel when the Israelites desired a King So that it signifies little what Laws Princes make or what Priviledges they grant their Subjects since they may alter them or abrogate them when ever they please M. But pray take along with you what he says in the next Paragraph you quote where you may see these words It is â—here evidently shewed that the scope of Samuel was to teach the People a dutiful Obedience to their King even in those things which themselves did esteem Mischievous and Inconvenient For by telling them what a King would do he indeed instructs them what a Subject must suffer yet not so as that it is Right for Kings to do Injury but it is Right for them to go unpunished by the People if they do it So that in this point it is all one whether Samuel describe a King or a Tyrant for patient Obedience is due to both No Remedy in the Text against Tyrants but in crying and praying unto God in that day And that Sir R. F. is very far from justifying Kings in the unnecessary Breach of their Laws may farther appear by what he says Chap. 3. Par. 6. of this Treatise where pray see this passage Now albeit Kings who make the Laws be as King James teacheth us above the Laws yet will they Rule their Subjects by the Law and a King Governing in a Settled Kingdom leaves to be a King and degenerateth into a Tyrant so soon as he leaves to Rule according to his Laws yet where he sees the Laws rigorous or doubtful be may mitigate and interpret them So that you see here he leaves the King no Power or Prerogative above the Laws but what shall be directed and employed for the general Good of the Kingdom F. But pray Sir read on a little farther and see if he doth not again undo all that he hath before so speciously laid down and if you will not read it I will General Laws made in Parliament may upon known respects to the King by his Authority be mitigated or suspended upon Causes only known to him And altho' a King do frame all his Action to be according to the Laws yet he is not bound thereto but at his good Will and for good Example Or so far forth as the General Law of the Safety of the Common-Weal doth naturally bind him for in such sort only Positively Laws may be said to bind the King not by being Positive but as they are naturally the best or only means for the preservation of the Common-Wealth So that if the King have this Prerogative of mitigating interpreting and suspending all Laws in Cases only known to himself and that he is not bound to the Laws but at his own good will and for good example I desire to know what greater Prerogative a King can desire than to suspend the Execution of any Law as often as he shall think fit For tho' I grant the Suspension of a Law differs from the Abrogation of it because the former only takes away the force of it in this or that particular case whereas the latter wholy annuls the Law yet if this Suspension be general and in every case where the Law is to take effect it amounts to the same thing with an Abrogation of it as may be plainly seen in the late King 's Dispersing Power For tho' it be true he pretended to no more than to dispense with this or that Person who should undertake a publick Employment either Military or Civil without taking the Oaths and Tâ—st yet since he granted this Dispensation generally to all Papists and others that would transgress this law it amounted to the same thing during his pleasure as an Absolute Abrogation of it And therefore I do very much wonder why divers who are very zealous for the Church of England and the King's Prerogative should be so angry with him for erecting that Power which not only this Author but all others of his Principles have placed in him And if the King may suspend this and all other Laws upon Causes only known to him I do not see how he differs from being as Absolute and Arbitrary a Monarch as the Great Turk himself and may when he pleases notwithstanding all Laws to the contrary take away Men's Lives without any due Forms of Law and raise Taxes without Consent of Parliament M. But pray read on a little farther and you will find that he very much restrains this Absolute Power in these words By this mean are all Kings even Tyrants and Conquerors bound to preserve the Laws Goods Liberties and Lives of all their Subjects not by any Municipal Law of the Land but by the Natural Law of a Father which binds them to ratifie the Acts of their Fore-fathers and Predecessors in things necessary for the publick good of their Subjects F. Were I a Monarch limited by Laws I would desire no greater a Power over them than this you have here brought out of this Author For he says Positive Laws do not bind the King but as they are the bâ—st or only means for the preservation of the Common Wealth In the next place you see that all Kings are bound to preserve the Lives and Estates of their Subjects not by any Municipal Law of the Land but by the Natural Law of a Father which binds them to ratifie the Acts of their Predecessors in things necessary for the publick good of their Subjects Now this Paternal Power is large enough of all Conscience to discharge Princes from any Obligation to the Laws farther than they please For it before appears that the Father of a Family governs by no other Law than by his own Will and not by the Laws and Wills of his Sons or Servants therefore if the Power of the King be wholy Paternal he may alter this Will of his as often as he please Nor can his Subjects who are all one with Sons and Servants have any reason to find fault with it For he says There is no Nation that allows Children any Remedy for being unjustly Governed And tho' it be true that he restrains this Prerogative both in Fathers and Kings to the publick good of their Children and Subjects yet as long as he is left the sole and uncontroulable Judge of what is for the publick good all these fine Pretences will signifie nothing For he is bound to observe or ratifie no Laws or Acts of his Predecessors but what he is satisfied tend to this End So that if he thinks fit to Judge that Magna
in all Democracies the People By the like reason in a Monarchy the King must of necessity be above the Laws there can be no Soveraign Majesty in him that is under them That which gives the very being to a King is the Power to give Laws without this Power he is but an Equivocal King And most part of what follows in this Treatise is only to prove that the Parliament or Assembly of Estates was a Creature wholy of the King's Creation and consequently that he alone makes the Laws in it And he hath also written a whole Treatise called The Free-holders Grand Inquest to prove that it is the King's Authority alone that makes the Laws and therefore that he can interpret and dispense with them at his pleasure So that Richard the Second had this Author lived in his time might have made him a Judge as weâ—l as Treâ—illian and Belknap since they all maintained the same Principles But lest we should mistake him see what he says at the conclusion of this Treatise For the confirmation of this Point Aristotle saith That a perfect Kingdom is that wherein the King Rules all things according to his own Will for he that is called a King according to the Law makes no kind of Kingdom at all This it sâ—ems also the Romans well understood to be most necessary in a Monarchy for 〈◊〉 thâ—y were a People most greedy of Liberty yet the Senate did free Augustus from all necessary of Laws that he might be free of his own Authority and of absolute Poâ—â—r over himself and over the Laws to do what he pleased and leave undone what he liâ—t and this Decree was made while Augustus was yet absent Accordingly we find that Ulpian the great Lawyer delivers it for a Rule of the Civil Law Princeps Legibus solutus est The Prince is not bound by the Laws So that upon these Principles all Kings are not only discharged from the Penalty but also the very Obligation of observing Laws farther than they shall think sit And indeed this Author carries this Prerogative beyond what the most moderate Roman Emperours ever pretended to as I can easily shew you from your own Civil Law-Books and therefore pray reach me down your Volume of the Code and fee here what the Emperour declares on this matter de Testamentis Ex imperfecto Testamento nec Imperatorem haereditatem vindicare posse sape constitutum est licet enim Lex Imperii Solennibus juris Imperatorem solverit Nihil tamen tam proprium Imperii est quà m Legibus vivere See likewise in the Theodosian Code these words Digna vox est Majestate Regnantis Legibus alligatum se Principis prositeri aded de Authoritate juris nosira pendet Authoritas re vera majus Imperio est submittere Legibus Principatum oraculo praesentis Edicti quod nobis licere non patimur aliis indicamuâ— viz. Successorâ—buâ— Theodosio Valentino So that you may here see that even the Roman Emperours were more modest than to declare themselves discharged by their Prerogative or thought of any of these subtile distinctions of this Author from their obligation to the Laws however they were from the Penalty which is the true sense of this phrase of being Legibus solutus But God be thanked most of our own Kings have been more conscientious than to maintain that they were not bound by their Coronation Oath farther than they pleased For you may see in the Preamble to the Statute of Provisours made in the 25th of Ed. 3d. where it is declared and acknowledged by the King himself and both Houses of Parliament that the Right of the Crown of England and the Law of the Realm is such that upon the Mischiefs and Damages which happen to the Realm he ought and was bound of his said People in his Parliament thereof to make Remedy and Law in voiding the Mischiefs which come thereof And the King seeing the Mischiefs and Damage aforesaid and having regard to the said Statute scil the former Statute of Provisours he here farther acknowledges that he is bound by his Oath to do the same to be kept as the Law of his Realm tho' by sufferance and negligence it hath been hitherto attempted to the contrary So likewise King Henry the fourth declares in full Parliament as appears by the Parliament Roll that whereas the Commons in Parliament had granted that the King should be in as great Liberty as any of his Noble Progenitors on which our said Lord of his Royal Grace and tender Conscience hath granted in full Parliament that it is not his intent nor will he alter the Laws Statutes and good Usages nor take any Advantages by the said Grant but will keep the ancient Laws and Statutes ordained and used in the times of his Noble Progenitors and do Right to all People in Mercy and Truth Selonâ— son Serment i. e. according to his Coronation Oath M. I will not affirm but Sir R F. observing how much the Kings Prerogative was run down by the long Parliament and how the least Slips and Miscarriages in Government were aggravated by the Demogogues that then Domineered as open and violent breaches of his Coronation Oath might be willing to make the best defence he could for such Miscarriages and this Treatise of Patriarcha being a Posthumous piece perhaps he would have altered many things in it had he lived to publish it himself but I doubt not but he was a very honest Man and meant well to the Kingdom for all that And therefore I hope you will not be too rigorous in your Censure of him F. I 'll assure you Sir I shall not because he hath been dead many years and therefore I had much rather censure his Writings than his Person which I never knew But if I may Judge from his Works he was certainly no Friend to Parliaments or the Power of the Laws above the Prerogative But that I may also shew you how dangerous and Derogatory his Opinions likewise are to the Titles of all Soveraign Princes and Monarchs now in the World however he may seem to write in their defence pray turn to his Patr. Chap. 1. Par. 9. and to a Question 〈◊〉 becomes of the Right of Fatherhood in case the Crown escheat for want of an Hâ—ir he thus replies which pray read It is but the Negligence or Ignorance of the People to lose the Knowledge of the true Heir For an Heir there always is If Adam himself were still living and now ready to dye it is certain there is oâ—â— Man and but one in the World who is next Heir altho' the Knowledge who should be that one man be quite lost The which he likewise repeats to the same Effect in his Treatise of the Anarchy of a limited or mixed Monarchy Pray see the place and read these words It is a truth undeniable that there cannot be a Multitude of Men whatsoever either great or small
absolute or Tyrannical soever the Power be under which they live that they are safe in God's hands and all the Powers of Men and Devils cannot touch them till God by a positive Decree appoints and orders their sufferings There could not be greater nor more absolute Tyrants than the Roman Emperours were at this time and yet they had no Power over the meanest Christian but by an express Commission from Heaven This is the special Priviledge of the Christian Church above the rest of Mankind that they are God's peculiar Care and Charge that he doth not permit any Sufferings or Persecutions to befall them but what he himself orders and appoints It is a great security to the World that there is no evil happens to men but what God permits and that he permits nothing but what he can over-rule to wise and good Ends but it is a greater happiness to have our Condition immediately allotted by God God may permit a great many evils to befall us in Anger and Displeasure but when he takes us into his immediate Protection and under his own Government whatever evils he appoints for us whoever are the Instruments of them they are certainly for our good And therefore there is no such danger in the Doctrine of Non-Resistance as some Men imagine how absolute soever this may be thought to render Princes sincere Christians can suffer nothing by it for they shall suffer nothing more nor less than what God appoints for them to suffer but as for the absurdity you think you have brought me to by granting that no man wants Authority to defend his own Life against him who hath no Authority to take it away that does not extend to Supreme Powers since though I grant they have no Authority to take away mens Lives contrary to Law yet does it not follow that we may resist and oppose them if they do this I absolutely deny because God hath expresly commanded us not to resist them and I see no inconsistency between these two Propositions that a Prince hath no Legal Authority to take away mens Lives against Law and yet that he must not be resisted when he does so for both the Laws of God and of our Countrey suppose these two to be very consistent F. To answer this long speech of yours the best way may be to shew you first how far I agree with you and wherein I must differ from you and I will also tell you what reasons I have for it In the first place I grant that though our Saviour was indeed the Messias and true King of the Iews yet was he not such a Messias as they expected nor was he to have a Temporal but Spiritual Dominion and therefore would not be such a king though the Iews would have made him so I likewise yield that Christ submitted to the most unjust Sentence and to the most ignominious and painful Death rather than he would resist the Higher Powers though he could easily have called for Legions of Angels to his rescue As also that he rebuked Peter when he drew his Sword in his defence and tells Pilate the reason why he was so easily apprehended and without any Resistance oâ— Opposition My Kingdom said he is not of this World if my Kingdom were of this World then would my Servants fight that I should not be delivered to the Jews but now is my Kingdom not from hence All which plainly shews that our Saviour's Subjection was no matter of force or constraint because he wanted Power to resist but it was matter of choice that which was most suitable to the Nature of his Kingdom which was not to be propagated by Carnal Weapons but by sufferings yet though it may not be propagated sure it may be defended by force In some Cases as if we were invaded by a Foreign Power who made War upon the Account of Religion and also in those Kingdoms or Common-wealths where Christianity or the true Profession of the Gospel is established by Law and makes a part not only of the Ecclesiastical but Civil Constitution of a Nation In these Cases if thoâ—e who pretend to the sole Legislative Power but have it not should go about to alter the National Religion by force and put Men to death contrary to the former Laws and Constitutions of that Kingdom I think such Illegal Powers may lawfully be resisted by the People they having as much right to the free Exercise and Enjoyment of their establish'd Religion as they have to their Liberties Properties or any other Civil Rights since by this Legal Establishment Religion becomes a part of the Civil Constitution of the Kingdom and so may be maintained by the same means as other Rights 2 dly I grant that in all other Cases our Saviour hath so far proposed his sufferings to us for our Imitation as we are engaged by our Baptismal Vow to suffer in the same Cause for which he himself suffered that is for the bearing witness That Iesus is the Christ or true Messias and Son of God And this the Apostle calls speaking of Christ himself the witnessing before Pontius Pilate a good Confession The like I also hold of all such Truths as are the necessary consequences of this great Doctrine 3 dly I farther grant that when our God calls any Person to suffer for the Testimony of his Truth by the Cruelty of those who are the Supreme Powers as the Apostles and Primitive Christians were by a particular Providence that then those Powers are not to be resisted but patiently submitted to by Christians at this day whenever it proves necessary for the same great ends for which Christ at first enjoyned it viz. for bearing witness to the Truth of the Gospel and for the further Propagation thereof by our constant Sufferings and Example according to that saying of the Primitive Fathers Sanguis Martyrum semen Ecclesiae yet is not this absolute Submission to the Supreme Powers in matters of Religion due by the Law of Nature or that delivered to Moses but if at all purely from the express Example of Christ so that all the difficulty lyes in discovering when we are thus called by our Saviour to suffer and bear witness to the Truth though with the loss of our Lives and all that is dear to us And therefore if I should grant that when ever we lye under the same Circumstances of giving this Testimony as the Primitive Christians then did and that it may serve as much for the same ends design'd by God thereby we are also under the same Obligations otherwise I think we are lawfully discharged from it As for Example suppose the King should instead of a Papist have turned Mahometan and to propagate or set up his own abominable Superstition here should have sent for from Turkey or Morocco a great Army of Turks or Moors and by them would force all the Christians in England to turn Mahometans by the same Methods of Dragooning Men and
the Power of any thing 1 Cor. 6.12 must signifie force and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 must signifie Authority and Dignity thus Ephes. 1.21 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which are several Names and degrees of Dignity and Authority as well as Power And in the second place you do much more mistake when you suppose by this word Powers to be meant only the true or just Exercise of Civil Authority whereas the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 are the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the persons themselves who exercise Authority and Dominion the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Rulers v. 3. the Ministers of God which bear the Sword v. 4. in St. Peter the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the King and his Governours and Magistrates 1. Pet. Ch. 2. v. 13 14. And therefore Imust tell you you do very ill to separate the Power or Authority from the Persons instructed with it But suppose I should grant you that this word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 doth here signifie the Exercise of Authority yet doth it not signifie the Right and lawful use of this Power but the Right to Exercise this Authority whether well or ill 't is all one as to the Submission due to it because no Resistance can be lawful for want of a superiour Iurisdiction over it The truth of this is evident from Iohn 19.10 11. Pilate says to Jesus Knowest thou not that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 I have Power to crucifie thee and have Power to release thee Jesus grants it and answers 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Thou couldest have no Power against me except it were given thee from above And therefore I shall reduce your Argument into the form of a Syllogism that you may more plainly see the absurdity of it Powers not ordained by God may be resisted without danger of Damnation But Powers used Tyrannically are not ordained of God Therefore we are not forbidden to resist them In this Syllogism the Minor is not true for though Tyranny be not the Ordinance of God yet the Power or Authority of which this Tyranny is but an abuse is of Divine Institution For though the Supream Power is commanded to rule justly yet is it withal enabled to act otherwise for the good or ill use of it is left indifferent in respect of the Subjects subjection though not of the Magistrates commanding or acting Power so that the abuse of this Power doth not make void the Authority though acting contrary to the Laws of God or Nature The Obligation not to resist the Supream Powers receiving not any Validity from their Justice nor is it weakened or annulled by their violence or injustice Saul was God's anointed and Pilate had his Authority from above notwithstanding their high abuse of it So that upon the whole matter I incline to believe that the reason which made St. Paul call the Magistrates by the abstract Powers was this He wrote to Christians living in the Roman Empire and it was the Custom of the Latin Tongue to call Persons endued witâ— Power Potestates You may observe it in Ulpiâ—n L quid sit D. de Aedil edict § 19. And in Augustine Epist. 48. who says sive Potestâ—s veritati savens aliquem corrigat laudem habet ex illo qui fuerit emendatus sive inimica veritati in aliquem saeviat laudem habet ex illo qui fuerit Coâ—natus and mark that Potestâ—s inimica veritati must needs signifie a Man abusing his Authority And in Iâ—venal we read An Fidenarum Gabirunque esse Potestas Aâ—d in Suetonius Iurisdictionem de siâ—ei commissis 〈…〉 tanâ—um in urbe deligari Mâ—gistratibus solitam in perpetuum atque etiam per Provincias Potestatibus delegavit The modern Languages Italian and French which were bred out of the Latin retain this antient way of speaking for potestat in old French and podesta in Italian express not the Function only but the Person who manages it Thus anciently the Latin word for the Chief Iustice was Iustitia as you may find in Glanvil Lib. 2. Cap. 6. and Roger Hoveden's Annals so our King is called in the abstract Majesty as the Graecian Emperours 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Many dangerous Consequences flow from thence but I desire not to make sport with that unhappy distinction which had almost ruined as flourishing and strongly temper'd a Kingdom as any in the Christian World It exposes Magistrates and all in Authority to the 〈…〉 and Injuries of the basest sort of People for when discontented it is very obvious for them to tell them tho' Reverence is indeed due to theâ— Function yet that setting their Office aside they will take the liberty only to kick their Persons and that the Magistrate is not at all affronted though the Man be soundly beaten Indeed it is against common sense to put such a difference between the Person and the Authority of Kings for if it were real neither God nor the Laws of the Land have made any Provision for the King's safety for his Authority is not capable of receiving any benefit and therefore it must be acknowledged by all sober and reasonable men that this Authority doth but convey such and such Priviledges upon the Person who only can be sensible of them and consequently whatever is attempted againâ—t his Person is attempted against his Authority likewise F. I doubt you will have no better luck in Criticisms than my seâ—f and that they will do your cause as little good for if there be no difference in the Scripture between 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as you affirm and that both of them signifie not the Authority alone but the Persons endued with it and that they are all from God then Tyrants and Usurters are ordained likewise by God and consequently Oliver Cromwâ—ll was as much the Ordinance of God as King Charles and if this be your Doctrine much goâ—d may it do you But pray keep it to your self lest iâ— your Friends the Old Cavaliers come to know it they will quite banish you their Company besides I can shew you other Consequences that will follow from it which I have not now a Mind to urge but may hereafter for I have no Mind to enter into that troublesome debate any more for I told you enough of my Mind concerning it the last time we met save one But since you will needs have these 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 not to signifie Powers or Authorities but the Persons themselves you shall have your will for once only I pray now Answer me one short Question when for Example Charles the sixth King of France fell mad and would have killed his Servants by what Authority did they distinguish and separate between his Person and his Power and thought that they might very well resist and bind the one without any Diminution to the other Or by what Right did the Portugueses seize and imprison their late King and make
Second He gives us in his Prologue to his Treatise of the Laws of England this Testimony Leges namque Anglicanas liceâ—â—on Scriptas Leges appellari non videtur absurdum cum boc ipsum Lex sit quod Principi placet Legis habet vigorem â—as Scilicet quas super dubljs in conâ—ilio definiendis Procerum quidem consilio Principis accadente Authoritate constat esse promulgatas So likewise Bracton in his very first Chapter speaks much to the same purpose Cum Legis vigorem habeat quicquid de Consilio de Consâ—nsu Magnatum Reipublicae commâ—ni Sponsione Authoritate Principis prâ—ceâ—â—nte justè fuerit definiâ—um approbatum And also in his third Book Chap. 2. When he speaks of the Antient manner of making Laws in England he says Quae quidem fuerint approbate concensu utentium Sacramento Râ—gum confirmaâ—ae non possunt mutari atâ— destrui fine communi consensu utentium consilio eorum quorum consilio Consensu fuerint promulgata Where you may see these Ancient Authors plainly declare that nothing hath the force of a Law in this Kingdom but what is approved of and consented to by all Orders of Men either by themselves or their Representatives And which is very Remarkable Bracton supposes the King's Authority or Royal Sanction of a Law may precede the Consent of the Great Council which quite destroys that Notion That it is the Kings giving his last Assent which gives it the Essence and Vigour of a Law And with these more Antient Sages of the Law Fortescue also agrees in his 9th Chap. Dâ— Laudibus Legum Angliae where he says Rex Angliae Populum gubernaâ— non mera potesâ—â— to Regid sed politica Populus enim ijs Legibâ— guberâ—â—tur quas ipse fert c. What follows is word for word the same with what Bracton had before in his first Chap and therefore needs not to be Repeated so likewise in the 18 Chap. speaking of the Absolute Legislative Power of Kings in some other Kingdoms he thus proceeds Sed non Sic Angliae Statuta oriri possunt dum nelum Principis voluntate sed toâ—ius Regni Assensu ipsa conduntur quo Populi laesuram nequiunt vel non eorum Commodum procurare But if they after prove inconvenient he immediately adds Concito reformari ipsa possunt sed non fine Communitatis Proterum Regni illius Assensu quali ipsa primitùs emanarunt To which I may also add an Authority out of that Learned Author St. German who in his Dialogue called the Dr. and Student written in Latin in the 10th Chap. Entituled de Sexto fundamento Legis Angliae The Student thus speaks Sexium Fundamentum Legis Angliae sâ—at in diversis Statutis per Dominum Regem Progenitores suos per Dominos spirituales Temporales per Communitatem totius Regni in Parliamentis Editis ubi Lex Rationis Lex Diviâ—a Consuetudines Maxima sive alia fundamenta Legis Anglia prià s Sufficere minimè videbantur Where you see the Legislative Power is here Attributed to the Lords and Commons joyntly with the King And therefore my Lord Coke in his Notes upon the Statute of Westminster I calls it a Compleat Parliament as consisting of all the Estates necessary thereunto for says he a Parliament concerning making or enacting Laws Consists of the King the Lords Spiritual and Temporal and Commons and 〈◊〉 is no Act of Parliament unless it be made by the King Lords and Commons M. I shall not much concern my self with what your Common Lawyers either Ancient or Modern have writ upon this matter much less what Sir Edward Coke a known Enemy to the Kings Prerogative doth maintain Since I have as good or a better Authority than he viz. that of the Year-Book of 22 Ed. 3. Wherein it is expresly declared by divers Earls and Barons and by all the Justices in the Case of one Headlow and his Wife who had a Suit with the King That the King makes the Laws by the Assent of the Lords and Commons and not the Lords and Commons and that He could have no Peer in his own Land and that the King ought not to be Judged by them So that it is I think evident that the Laws are primarily and properly made by the King and that the two Houses have a Cooperation but no Co-ordination of Power with him And though at this Day I grant that Custom hath made the Assent of the Lords and Commons necessary to the passing of all Laws yet it is still the King's word or le Royâ—le veulâ— that makes them so and I much doubt whether even this were part of the Ancient Constitution of this Kingdom or not or proceeded at first from the Gracious Favour and Permission of former Kings as I could shew by the whole Series of Councils in the Saxon times if it were not too tedious to mention them particularly therefore I shall only Select some of the most Remarkable For though I confess the English Saxon Kings performed all Great and Considerable things by the Counsel and Advice of their Bishoâ—s and Noblemen comprehended under the general names of Wits yet you will find by the Titles of almost all the Councils in Spellman Lambard and that these Kings alone made their Laws though by the Advice and Council of their Wittena Gemote which was then no other than the King 's Greater Council Since He called what Great Men and Bishops he pleased to it and omitted the rest And it is never mentioned that they were made by their Consent as necessary thereunto Nay sometimes we find that some of the Ancient Saxon Kings made Laws without the Assent of their Great Council Thus Offâ— King of the Mercians being at Rome out of his Royal Munificence gave to the Support of the People of his Kingdom that should come thither a penny to be paid Yearly for ever out of every Family by all whose Goods in the Fields exceeded the value of Thirty pence And this He made a perpetual Constitution throughout all his Dominions excepting the Lands Conferred upon the Monastery of St. Albans This Imposition and Law continued a long while in force though we find it not Confirmed by any great Councils in the time of his Successors only in the Laws of King Edgar and King Edward it is enjoyned to be paid as the King's Alms which implies it was the King's Gift and that Solely without the consent of a Great Council But to give you a more particular Proof of the Supream and Absolute Power of our Saxon Kings as well during the Heptarchy as afterwards in making ad establishing Laws I shall begin with the first we have extant which are those of Ina King of the West-Saxons who began his Reign Anno. 712. In the Preface to his Laws we find it thus express't which I shall render out of the Saxons Copy Published by
auire homme de People Mes Ed. Roy son fils ordeign que home sueroit vers Roy per Peticion Mos unques Roys ne seront adjugez Si non per euâ— melmes lour Iustices So that if the former part of it â—e Law the latter must be so too and then it will directly contradict what you have quoted before out of Bracton That in the time of Henry the 3d in which he lived there lay no Remedy against the King but only by Petition Whereas this Opinion makes him before the time of Edward the First to have been liable to the same Legal Process with other Men. But notwithstanding this Passage in the Year-Book may very well bear a legal Interpretation only by supplying what is indeed to be understood after the Words non pas les Peers le Commune viz. Sans assent du Roy which as it was then true So I hope it will ever be so But I think I can give you a much better Authority than this Year-Book to prove where the Power of Making and Dispensing with Laws doth truly reside viz. The Solemn Declaration of the King Lords and Commons in the 25th Henry 8. a Prince as Jealous of â—is Prerogative as any of his Predecessors where in the Preamble read these words It standeth therefore with Natural Equity and good Reason that in all and every such Human Laws made within this Realm or induced into this Realm by the said Sufferance Consents and Custom your Royal Majesty and your Lords Spiritual and Temporal and Commons Representing the whole State of your Realm in this your High Court of Parliament have full Power and Authority not only to dispense with those and all other Humane Laws of this your Realm as the Quality of the persons and matter shall require And also the said Laws and every of them to Abrogate Annull Amplifie and Diminish as it shall seem to your Majesty and the Nobles and Commons of your Realm present in your Parliament Meet and Convenient for the Wealth of your Realm c. Whereby you may plainly see that the Power of Making Abrogating and also Dispensing with Laws is by this Act ascribed joyntly to the King and the Two Houses of Parliament But though I do not affirm that they have a Co-ordinate Power with the King in making Laws yet they have a Co-operative Power therein which yet is no more than your Co-operation for what is a Co-operation but a Power of working together and how can three Distinct Bodies work together without each contribute their share to produce the Intended effect M. Perhaps I may have bin too unwary in my expression but pray answer the Authorities I have brought from our Ancient English Saxon Laws Wherein it seems plain to me that the King had then the Sole Legislative Power F. I grant he had a chief share in the Legislative Power but not the Sole Power that is He could make no Laws but in the Great Council and by their Consent And this you might have seen as well as I if you had not slyly past by what made against you and therefore in the first place to begin with your Instance of Offa's giving that Boon to the Roman School I think the Authority you bring for it is very Slight for though I own that Matthew Paris who writes his Life Relates this Donation to have been made at Rome without mentioning any Consent or Confirmation of his Great Council Yet this seems but an imperfect account of the matter and according to the usual way of the Writers of those times who are not so exact in such matters as they should be And therefore though Offa did give or vow these Pence at Rome yet the Gift might receive its force from the Consent of his Great Council after he came home Since all his Laws and the Acts of his Councils are lost unless it be one which Sir H. Spelman hath given us from such Remains as have bin saved out of the Libraries of several Monasteries at their Dissolution And this contains no less than the Consent and Confirmation of his Great Council Assembled at Calcuith Anno 940. for the Foundation and Endowment of the Abby of St. Albans as also that of another Council at Verulam for the Conferring of divers other Lands of his own to that Monastery Now I leave it to any indifferent Man to judge Whether that King who could not bestow his own Demesnes upon the Church without the Consent of the Common-Council of the Kingdom could give away at once the 30th Peny of all his Subjects Estates for ever without their Consents I am sure the Donation of the same sort of Pence by King Edward the Confessor which is now to be found among the Laws of King William the First is said to be granted Communi Confilio Regni and that the Saxon Kings could not bestow their Lands upon Religious Uses See Sir H. Spelmans Councils where Baldred King of Kent is an evident Example who though he had given the Mannour of Mallings in Sussex to Christ-Church in Canterbury Yet because his Principes and Great Men that is his Great Council consented not thereto it was revoked untill King Egbert and his son Ethelwulf did afterwards renew the said Grant with the Consent of a Great Council held at Kingston An. 840. as you may see in the same Volume last cited And I am sure after the Heptarchy when our Kings were more Powerful the same King Ethelwulf could not by his meer Prerogative Grant the Tythes of his Subjects Estates to the Clergy without the Consent of a Great Council of his Bishops and Principal Men held at Winchester An. Gratia 855. and Intituled thus Celebris ilâ— donatio Ethelwulfi Regis decimae manfionis omnium benorum per terram suam Deo Ecclesiae factae confirmaâ—â—â— M. I Grant that perhaps these Kings could not dispose of their own Lands or the Estates of their Subjects without the Consent of their Great Council any more than the Kings of France could formerly yet I hope they were Absolute Monarchs for all that F. I beg your pardon if I have bin somewhat long in answering your Example of King Offa. But I will now shew you that they could no more make Laws than dispose of their own or their Subjects Estates without their Consent and which you your self might easily have seen if you had pleased to have Consulted Sir Henry Spelman as Diligently as you have done Mr. Lambard for there you might have found that about the Year 712. King Ina Assembled a Great Council or Parliament wherein he made Ecclesiastical Laws concerning Marriages c. and did other things ad concordiam publicam promovendam peâ— commune Consilium Assensum Episcoporum Priâ—cipum Procerum Comitum omnium Sapientum Seâ—iorum Popillorum totius Regni So likewise if you will please to look into the Decem-Scripâ—ores you will find how Althesian's
and all along the Authoritative parts are expressed by Statuimus volumus interdicimus probibemus praecipimus So that by these Expressions in his Laws the absolute soveraignty of the Conqueror in the point of Law-giving is manifest I shall content my self with a very few Authorities because the matter is so plain Ordoricus Vitalis saith thus Eamque i. e. England Gulielmus Rex suis Legibus commodò subegit And Eadmâ—r Contemporary with the Conquerour in his History thus Vsus atque leges quas patres sui ipse in Normannia solebâ—nt in Anglia scribere volens Cuncta divina simul humana ejus nutum expectabant From whence you may see that all matters as well Spiritual as Temporal depended upon his sole will And tho we have no particular account of what Laws his Son William Rufus made yet we may presume according to the Testimony of Historians that he was altogether as absolute in those Councils he called as his Father as may be seen in Eadmerus his account of his Transactions with Archbishop Anselm So that it is certain he governed by his own absolute Authority raising what money he pleased upon his Subjects 'T is true that in the Reign of his Successor Henry the First the People found some little relaxation by reason of the Charter he made them containing several mitigations of the severity of the Feudal Laws as also those of Forests yet even these are said to be made by his own single Grant and Authority tho I confess it was granted in a great Council So likewise in Florence of Worcester we find that in 28 th of Hen. I. That King confirmed the Acts of a Synod or Council of the Clergy of the Province of Canterbury and gave his Royal Assent to them As for King Stephen tho he was a Notorious Vsurper and Set up and Crown'd by a Faction of Bishops and some few Temporal Lords and that not long after his Coronation he in a Great Council at Oxford granted to all his Subjects another Charter of divers Priviledges and Freedoms from the former Exactions yet the words of the Charter are in his own name and by his own authority solely as appears by these words Observari praecipio constituo But Richard Prior of Hexham alias Hagulstad in his Chronicle closes his Charter thus Haec omnia concedo confirmo salva Regia justa Dignitate mea From which words it is plain that he never meant to part with any of the just and necessary Prerogatives of his Crown So likewise King Henry the Second in a Great or General Council held at London confirmed the Great Charter granted by King Henry the First his Grand-father but this Charter also runs wholly in the King 's own name without any mention of its being assented to either by the Bishops or Nobles And as for the Constitutions made at the Great Council of Clarendon tho that King made the Archbishops Bishops with all the Clergy as also the Earls Barons and Nobility all swear to observe them yet the Enacting part proceeded only from the King as appears by their very Title thus Assissae Henrici Regis factae apud Clarendon c. And Mat. Paris concludes these Constitutions with Decrevit enim Rex From whence it appears that it was the King alone that decreed and Constituted those Laws I shall not say much of the Great Councils in Richard the First 's time since he did not reign long enough to call many but in that held at Notingham we find that the King diseized Gerard de Canville and others and that the King appointed to be given him two Shillings on every Carucate of Land throughout England c. From whence I shall observe that the words Rex praecepit constiâ—uit c. as they are in this Historian shew that the King then had solely the Authoritative Power of passing all Consultations of these Councils into binding Laws even where money was to be levied on the Subjects and that seisure was to be made of their Estates But to come to the more troublesome and perplext Reign of King Iohn in which there were many Great Councils holden yet I shall instance but in some few of them mentioned in Mat. Paris as that of St. Albans held by Ieffery Fitzpeter and the Bishop of Winchester in this King's Absence where ex parte Regis it was firmly enjoyn'd under penalty of Life and Limb that the Laws of King Henry his Grandfather should be kept by all in his Kingdom From whence we may observe that the Laws had their force only from the King's Authority as appears by this expression ex parte Regis firmiâ—er est praeceptum And when afterwards at Runningmead he was compelled to sign the first Magna Charta I own it was done in a Great Council of Bishops Earls and Barons as well those who stood for him as against him Yet that it proceeded wholly from his own good will is plain from the Charta de Foresta of this King as appears by these words Ad emendationem Regui nostri spontanea bona voluntate nostra dedianus concessimus pro nobis haredibus nostris has libertates subscriptas From all which Charters of Liberties we may conclude that the Petitions of the People were drawn into the form of a Charter and passed under the King's Seal as his meer voluntary free Grants and Concessions without their Votes Suffrages and Authority And sometimes such Rights or Liberties have been bestowed and declared by our Kings by way of answer to the Petitions of the Lords and Commons and that this custom is not yet discontinued appears by the Answer of K. Charles the first to the Petition of Right when no other answer would please the Commons but the King 's expressed Assent to their Petition in these words Sole Droâ—â—t faict comme esâ— dâ—sire But to return to the Reign of Henry the Third F. I beseech you Sir give me leave now to answer what you have already alledged out of our Hiâ—â—oâ—iâ—ns for the Supreme and Absolute Power of our Kings before we proceed further to less obscure times And therefore I must tell you that you have in this long speech of yours made use of all the Artifice of an Advocate for a Party viz. in urging all that can any way make for you and slyly passing over whatsoever may make against you And to begin with your story of King William the First I shall not now dispute whether there were any Englishmen in those Great Councils or whether they consisted only of Tenants in Capite since I shall defer that Question till anon But as for the English you have put upon the French Title of the Laws of this King it is not fairly rendred for in the French it is Apres le Conquest dâ— la â—erre which doth not always signifie a subduing by force but by any other ways of acquisition different
for the Correction of the 12th Ch. of the Statute of Gloucester was Signed under the Great Seal and sent to the Iustices of the Bench after the manner of a Writ Patent with a Certain Writ closed Dated by the King's Hand at Westminster 2 Maiâ— 9 Edw. I. Requiring that they should do and Execute all and every thing contained in it though the same doth not accord with the Statute of Gloucester in all things 19 Hen. 3d. a Provision was made de assisa praesentationis which was continued and allowed for a Law until the Statute of Westminster 2 which provides the contrary in express words So that in the Old Statutes it is hard to Distinguish what Laws were made by Kings in Parliament and what out of Parliament especially when Kings called the Peers only to Parliament and of those how many or whom they pleased as it appears Anciently they did it was no easy matter to put a Difference between a Council-Table and a Parliament or between a Proclamation and a Statute Not but that I own in Old Times there was a Distinction between the Kings Special or Privy Council and the Common-Council of the Kingdom and yet his Special Council did Sit with the Peers in Parliament and were as part thereof and were of Great and Extraordinary Authority there as may appear by divers Acts of Parliament some of which I have already Recited as the Statute of Westminster I. Where it is said These are the Acts of Edward made at his I. Parliament by his Council The Statute of Acton Burnel 13 Ed. 1st hath these words The King for himself and by his Council hath Ordained and Established And in Articulis Super Chartas there are these Provisions Nevertheless the King and his Council do not intend And both the King and his Council and all they tâ—at were present Will and Intend that the Right and Prerogative of his Crown shall be saved to him in all things And before these the Commons often Petitioned the King As 1 Edw. 3d. where Magna Charta was confirmed the Preamble is thus At the Request of the Commonalty by their Petition made before the King and his Council in Parliament by the Assent of the Prelates Earls and Barons c. I could give you many more Examples of this Kind but that it is needless only these may suffice to let you see That the King's Council had a Great Authority in those times and perhaps was more Ancient than the Great Council it self Yet I cannot forbear to give you one or two Authorâ—tâ—es more to prove that the King with the Advice and Consent of a Council of his Earls Barons and other Wise Men hath sometimes taken upon him to Repâ—â—â— aâ— the Statutes made in a Precedent Parliament as contrary to the Laws and Customs of this Realm and to his Prerogatives and Rights Royal though Granted by him in manner of a Statute And for this you may see the Statute of 15th Edward the 3d. at large in Pulton's Collection So likewise in the Preface of the Statute of Westminster 20 E. 3. that We viz. The King by the Assent of our Great Men and other Wise Men of our Council have Ordained c. Where you may observe that here is no mention either of Lords Temporal or Commons I could give you more Examples of this kind were it not too tedious From which statutes it seems plain to me that this King did sometimes Exercise a Prerogative of Making and Repealing Laws without Consent of Parliament In the next place I desire you to take notice that these words you so much rely upon viz. by the Authority of this present Parliament and be it Enacted by the King Lords and Commons as if they were three Co-ordinate Estates was never in use till the Reign of Hen. 6th and Hen. 7th two Notorious Vsurpers And that the King 's Single Answer to the Lords and Commons Request is a Sufficient Act of Parliament without any mention of the Concurrent Authority of the Lords and Commons Enacting the same the President I gave you of King Charles's Answer to the Petition of Right may suffice though you have not vouchsafed to give me any Return to it So that I think these Instances may serve instead of many Arguments for the proof of this Truth that the Legislative Power as We Phrase it now is wholy and solely in the King although Restrained in the Exercise and vse thereof by constant Custom unto the Counsel and Consent of the Lords and Commons For Le Roy le veult or the King will have it so is the Imperative Phrase by which the Propositions of the Lords and Commons are made Acts of Parliament And let the Lords and Commons Agitate and propound what Laws they please for their Ease and Benefit as generally all Laws and Statutes are more for the Ease and Benefit of the Subject than the Advantages of the King yet as well now as formerly in the time of the Roman Emperors only quod Principi placet Legis habet Vigorem nothing but that which the King pleases to allow of is to pass for Law The Laws not taking their Coercive force as Judicious Hookeâ— well observes from the Quality of such as Devise them but from the Power that giveth them the Strength of Laws So that to Determine the matter Logically The Legislative Power is either largely and improperly or Strictly and Properly taken Largely taken it signifies any Power which hath the Authority to provide the Materials of a Law and to Judge what is Iust Convenient or Necessary to be Enacted and to declare when any Matters duly prepared are made and granted into a Law and this Ministerial sort of Legislative Power improperly so called the two Houses have and Exercise yet by Authority front the Grown But then the Legislative Power is Strictly and Properly taken for the Power of Sanction or for that Commanding Ordaining Power which gives Life and Being to the Law and force to oblige the Conscience of the Subject and this is radically and Incommunicably in the King as Soveraign And therefore as I have already said all the Ancient Acts run in the King's Name alone And from the Legislative Power thus properly taken the Laws are properly called the King's Laws and the Violation of them is punishable as such F. You have made a very long Speech and taken a great deal of pains to perplex a Question in it self very easy to be Resolved and to which I need return you no other Answer then what Bracton tells us in his 3 d. Book cap. 9. de actionibus Nibil aliud potest Rex in terris suâ—â— cum sit Dei minister vicarius nisi id solum quod de Iure potest nâ—â— oâ—staâ— quod dicitur quod Principi places legis habet vigorem quia sequâ—â—uâ— in fine legis cum Bege regâ—a quae de Imperio ejus laâ—a est i. e. non quiâ—quid de
voluntate Regis teâ—â—ere praesumptum est sed quod consilio Magistratuum suoâ—an Rege Authoritatem praesâ—aâ—â—e babâ—â—a super hoâ— deliberatâ—one So that you see in the time when this Author Writ the King could do no more by his Prerogative then the Law allowed him to do and though it is true it is his Will and Authority that gives Vigour to the Law yet this only as it is declared in Parliament and in those Acts which had before received the Consent of his Great Council here called the Kings Magistrates And therefore you have done what you can to confound the difference between the Kings Declaration or Writs Explaining and Enforcing the Common Laws of England or else Interpreting former Acts of Parliament already made which was a Prerogative often exercised by the King and his Council in Parliament which then consisted of all or most of the Iudges and Great Officers of the Kingdom of which I shall speak more at large by and by And I confess we are much in the Dark because our Ancient Parliament-Rolls are almost all lost and consequently the Statutes therein contained So that we have almost nothing left of them but such Copies or Remains as were preserved by Iudges and Lawyers in those and Succeeding times whilst they were still in Being And therefore I think I may at present boldly affirm that if that which you call the Statute of Ireland was not founded upon some former Statute not now in being it was no Act of Parliament at all but only the King 's Writ to the Chief Justiciar of Ireland Commanding and Enforcing the Common Law of England in the Case of Coparceners to be observed in Ireland The like I may say to the Explanation of the Statute of Gloucester which might be no more than the Interpretation of the King and his Iustices of the Sense of some Articles in that Statute and this for its Greater Authority Exemplified under the Great Seal and so sent to all the Courts at Westminster and often to the Sheriffs of all the Counties in England yet without altering that Statute in some Points as you would have it The like I may say of the Statute of Acon Burnel and therefore it is very rashly done to conclude that though we have not the Original Acts and Records of Parliament of that time that therefore such Statutes were made by the King alone in his Privy Council So that I must still continue of the same Opinion with the Great Selden in this Point who in his Marâ— Clausum tells us It is most certain that according to Ancient Custom no Answer is given either by the King or in the King's Name to any Parliamentary Bill before that Bill whether it be brought in first by the Lords or by the Commons hath past both Houses as is known to all that are versed in Parliamentary Affairs Which if it hath bin the Fundamental Law of this Kingdom it signifies very little in what Form the Law is express't whether in the King's Name only as giving the last Assent thereto or else as his Concession to the Lords and Common's Petition as long as you grant that their Assent was necessary For sure whosoever Petitions another to do a thing which he cannot impose upon him without his Request must give his consent to the Doing it unless you can prove that it could be done whether the Petitioner would or not And this by the way will serve to answer an Objection which though you insist much upon it is scarce worth it viz. The King's Answer to the Lords and Commons Petition of Right which was indeed no Grant or Concession of any New Rights or Priviledges from the King to the People But only a Declaration of several Ancient Rights and Liberties of the Subjects which had been very much broken and infringed of late and therefore the King's Answer was very proper soit Droict faict comme est desire The next mistake you fall into proceeds from your confounding the King 's extraordinary Council in Parliament with the King 's Special or Privy Council and in a manner making this a fourth Estate by whom as well as by the Lords and Commons Laws are often made whereas indeed neither the one nor the other is true For tho I grant that there is often made mention in our Ancient Statutes or Records of the Kings Council yet this is not to be understood of his Privy Council but of a Special Council with whom our King 's formerly sate during the time of Parliament and before whom and to whom we find by divers Records that both the Lords and Commons did often Petition as you your self do truly affirm But that this was not the King 's Privy Council but another quite different from it And to which it seems to me that Fleâ—a refers in his 2d Book Cap. 2. Habet enim Rex curiam suam in Concilio suo in Parliamentis suis praesentibus Praelatis Comit. c. And this Council consisted of all the Great Officers of the Kingdom viz. The Lord Treasurer Chancellor and Keeper of the Privy Seal Master of the Wardrobe the Judges of the King's Bench Common Pleas Barons of the Exchequâ—r Justices Itinerant and Justices of Assizes with such of the Dignified Clergy as it pleased the King to call Which that they were altogether distinct from the King 's Privy Council appears plainly by this that the later never included all the Iudges nor did the Privy Council ever exercise any Iudicial Authority in Parliament as this Council did in those days but that this Council consisted of the Parties above mentioned see the Statute of Escheators made 29 Edw. I. and in the Placita Parliamentaria of that year the Statute runs thus Per Consilium Regis concordatum est coram Domino Rege ipso consentiente c. But in the Close Roll of this year it is clearly explained who were of this Council their Names being there particularly recited viz. all the Great Officers above-mentioned together with the Iudges of the King's Courts and Justices Itinerant c. Which is likewise explained by the Parliament Roll 9. Edw. 2. Rex voluit quod Dominus Cancellarius Thesaurarius Barones Soaccarii Iustiâ—iarii alii de Consilio Domini Regis Londin existente convenirent I could give you many more Examples of this kind but I shall give you but two more to prove that this Council in Parliament could not be the King 's Ordinary Privy Council The first is in Placit Parliament 2 Edw. 3. in a Cause betwixt Thomas Fitz-Peter and Alienora Wife of Iohn de Mowbray Coram Rege The Record is long but concludes thus to the Justices Et si difficultas aliqua subfuerit quare praemissa facere non possâ—tis tunâ— placitum illâ—â—d usque in Prox. Parliamentum nostrum udjornetis ut ibidem â—unc inde fieri valeat quod de Consilio nostro fuerit faciendum By which we may very
well gather that this was none of the King 's Ordinary or Privy Council or else to what purpose was this Cause adjourned to the meeting of the next Parliament Since if it had been to be determined by the Privy Council it might have been done forthwith I shall give you but one Instance more out of the Close Roll of the 41 of this King wherein a Cause between Elizabeth Wife of Nicholas D'Audley and Iames D'Audley in a Controversie between them touching certain Lands contained in in the Covenants of her Marriage is said to have been adjudged Devant Son Conseil c'est a scavoir Chanceller Thresorier Iustices Aâ—ires Sages assemblez en la Chambre des Etoiles i. e. Before his Council viz. the Chancellor Treasurer Justices and other wise men assembled in the Star-Chamber So that when any thing in our old Statutes is said to be Ordained by the King and his Council it is always to be understood not as if this Council were a fourth Estate whose Assâ—nt or Advice was as necessary to the making of Laws as that of the Lordi Spiritual Temporal and Commons for then they would have had the same Power still but only according to the Custom of those times when most Acts of Parliament were drawn by them and that the King past none without their advice it was then said to be done by the King and his Council viz. in Parliament and I conceive the Power of this Council continued till the beginning of the Reign of Henry the Seventh when this Court being by Act of Parliament annexed to that of the Star-Chamber where also this Council of the King used to meet before as appears by the Case I have last cited and having afterwards only to do with Criminal Causes and that as well out of as in Parliament and that King Hen. 7 th not caring to exercise his Iudicial Power in private Causes as his Predecessors had done or to make use of their advice either in the drawing or passing of Bills which now began to be drawn by Committees in either house wherein those Bills were preferred this Council came by degrees to grow quite out of use as it is at this day I hope you will pardon this long digression which I have been drawn into to rectifie a Common mistake of the Gentlemen of your opinion who when they find any thing in our ancient Statutes or Records wherein the King's Council is mentioned presently entertain strange fancies of the Antiquity and Authority of the Privy Council M. I am so far from thinking this Discourse you have now made to be at all tedious that I give you many thanks for it since it gives me a light into many things which I confess I did not know before and I shall better consider the Authorities you have now given me and if I find they will hold shall come over to your opinion in that point tho I am not as yet satisfied as to the Legistative Power of the two Houses and therefore pray proceed to answer the rest of the Presidents I have brought on that Subject F. I shall readily comply with your Commands and therefore to come to those Statutes of the 15 th and 20 th of Edw. 3. which you suppose to have been repealed by that King without the Consent of the Lords and Commonâ— I grant indeed that the Statutes you mention were intended to be repealâ—d by the King without Assent of Parliament Yet was this not done by himself and his Council alone as you suppose but by a Council of Earls Barons and Commons which the Kings of England in those days were wont to call upon emergent occasions and for the doing of that which they thought Parliaments could not so speedily perform as in this pretended repeal of the Statute you mention And tho I grant this was a great brâ—â—ch upon the fundamental Constitutions of the Kingdom yet that it was done in such a Great Council as I have now mentioned I refer you to this pretended Statute its self and to your recital of it And that the King often called such Great Councils appears by an agreement of Exchange made for the Castle of Berwick between King Hen. IV. in the fifth year of his Reign and the Earl of Northumberland where the King promiseth to deliver to the Earl Lands and Tenements to the value of the Castle by these words which I shall render out of French from the Original which remains in the Tower By the advice and â—ssent of the Estates of the Realm and of his Parliament so that the Parliamâ—nt happen before the Feast of St. Lucie otherwise by the Assent of his Great Council and other Estates of his said Realm which the King will cause to be assembled before the said Feast in case the Parliament do not happen c. And yet notwithstanding this high strain of Prerogative King Edw. III. himself was not satisfied with this repeal of those Statutes you have mentioned but in the next Parliament held in his 17 th year he procured a formal and Legal repeal of them as by the Parliament Rolls of that year remaining in the Tower doth plainly appear And which I could give you at large did I not fear to be too tedâ—ous But I think it fit to let you know this because most ordinary Readers seeing no more appear in Print in our Statute Books are apt to imagin that the Kings of England in those days did often take upon them without Authority of Parliament to make and repeal Laws But as for your next Instance of the Statute of Edw. III. it is much weaker since tho I confess that in the Preface to these Acts there is only mention of the Great Men or Grantz as it is in our old French and other wise Men of our Council yet I shall prove at another time that under this word Grantz were meant the Lords in Parliament as by the wise men of our Council are understood the Commons And therefore it seems most reasonable to interpret the sense of many ancient Statutes wherein the King alone is said to make and ordain Laws by those later or more modern ones wherein the King by the Consent of the Lords and Commons or by Authority of Parliament is said to have Ordained them Since the true Stile and Meaning of ancient Laws which were penned with the greatest brevity ought to be still Interpreted by the Modern ones and not the Modern ones by the Ancient So that I am of the Learned Mr. Lambardâ— opinion who in his Arcbâ—ion or Discourse upon the High Courts of Justice in England expressly tells us That whether the Laws are said to be made by the King and his Wise Men or by the King and his Council or his Common Council or by the King his Earls Barons and other Wise Men or after such other like Phrases whereof you meet with many in the Volumes of Parliaments It comes all to this one
his Inferiors because an Inferior Power can never limit a Superiour And since all our Laws as well as the Oath of Allegiance and Supremacy we take to the King do own him to be the Sole Supream Governour of this Realm I cannot understand how this Limitation can consist with the King's Supremacy for if he be thus limited and restrained how is he Supream and if Restrained by some Law is not the Power of that Law and of them that made that Law above his own Supream Power And if by the Direction of such Law only he must Govern where is his Supream Power So that when the Law must Rule and Govern the Monarch as a Superior and not the Monarch the Law he hath at best but a Gubernative and Exâ—cutive Power Lastly if this Power of the Prince were Limited at the Original Constitution there must be a Power appointed in some Council or Senate call it a Parliament or Assembly of the States or by what Name you please whose business it must be to see them exactly kept and performed Now these Men must either have a Power barely of Advising the Monarch and perswading him to observe these Fundamental Limitations or else they must also have a Power of Forcing or Compelling him if he will not hearken to their Advice and Remonstrances if they have no more than the former Power that you say signifies nothing since the King may refute to hearken to them if he pleases and may do what he will notwithstanding but if they have also a Coercive Power over him and may Resist or punish him for his Transgressions he will then cease to be a Monarch Since he cannot be so who is accountable to any Power either Equal or Superior to himself And this our late Parliaments have bin well aware of when they Renounced all Coercive Power over the Person of the King and any Right of making War either Offensive or Defensive against him So that besides the History of matter of Fact which I can further give you to prove our Kings to have bin at first Absolute Monarchs I think the very Hypothesis of a mixt or limited Monarchy labours under such insuperable Difficulties and Absurdities that I cannot conceive how those Limitations by which we find the King's Prerogative now Restrained could ever proceed from any Higher Cause than the free Grants and Concessions of the Kings Predecessors confirmed by his own Coronation-Oath Which though I acknowledge he is bound to observe and that if he breaks it he commits a great Sin against God Yet it is only He that must punish him for so doing since the Oath is not made to the People but to God alone F. Notwithstanding what you have now said I hope I am able to shew you that all your Arguments against a Mixt or Limited Monarchy are more subtile than true For as to your first Argument from the word Monarch I grant indeed that strictly speaking the Word Monarch and Monarchy signifie a single Ruler and the Government of one alone Yet in Common Acceptation or according to the Laws and Constitutions of several other Kingdoms besides England as in the Empire in Denmark and Sweden the Emperor and those Kings have bin called Monarchs and those Kingdoms Monarchies though by the Original Constitution of those Governments those Princes have not bin invested with a pure Imperial Authority such as that of the Roman Emperors of Old Yet since they had the Executive and Gubernative part of the Government committed to them and that they were lookt upon as the Heads of those Kingdoms and that the Government did therein partake more of Monarchy than of any other Form those Princes have bin always reputed and that justly Monarchs notwithstanding there was a very great mixture of Aristocracy in the Empire and in Denmark and both of Aristocracy and Democracy in Sweden The like may be said of England France and those Kingdoms in Spain that were instituted by the Goths and Vandals the Francs and Saxons after the Ancient Gothic Model of Government And though I grant this sort of mixt Monarchy is not to be Reduced to any of the three distinct Kinds of Government layd down by Aristotle yet are they not for all that to be Condemned but rather the more approved of since by this mixture they were capable of diverse Benefits and free from several Mischiefs which are incident to any of those Forms of Monarchy Aristocracy or Democracy when exercised purely and without any such mixture And that this as to England it self is no Invention of the Common-Wealth-Men as you call them you may read King Charles the 1st's Answer to the 19 Propositions sent him by the Parliament for the words are Remarkable This Kingdom says he is mixt of Monarchical Aristocratical and Democratical Government and that so wisely that we have all the Conveniences and none of the Inconveniences of any of those Forms taken single Nor doth this at all Derogate from the Nature of the Monarchy nor make any Division between the necessary Functions of Soveraign Power For I have already granted that the executive or gubernative part is wholy in him as also the Power of making War and Peace and as for the Legislative as long as the King hath a Negative Vote in all Laws that pass and that they cannot be made without his Royal Sanction the Legislative Power is not divided as I have already proved But as for your other Argument against a Prince's being limited by the Original Constitution of Government tho as I yield it is more Subtile so it is also more Sophistical and fallacious than the former For your Dilemma by which you would prove the Absurdity of that Nation will not do because a Prince at the Institution of the Government may be limited by those who are neither Superior nor Inferior to himself but only equal in the State of Nature as I suppose the People to be with a King before he was made so by them And that Equals may thus limit each other you your self will not I suppose deny in the Case of Princes who are Equals in the State of Nature As Queen Mary for Example made such conditions with King Philip of Spain before she Marryed him that if he offered to meddle with the Government of this Kingdom without her Consent it would be Lawful for her to part herself from him and to send him home into his own Kingdom and might she not with a Safe Conscience have done so upon the Breach of the Conditions on his side Apply this to the People in the State of Nature and the person they are about to make King before the Politick Marriage of a Coronation or Admission to the Crown and see if they do not exactly agree or whether the People can be blam'd if they repudiate their Politick Husband for Invading that part of the Government which they had reserved to themselves Nor doth this argue any more Superiority in the People
Dissolving of the Assembly of the Estates was a Power of Great Trust it was put into the Prince's Hands by Writ to Convocate as also to Prorogue or Dissolve such meetings But in Process of time some Princes not caring much to have their Government lookt into or to have any Power in Being but their own taking Advantage of this Power of Assembling these Estates did more seldom then need Required make use of it Whereupon provision was made and a time set by New Statutes within which an Assembly of Parliament was to be held Now when you have made these true Suppositions in your Mind you have the very Model and History of this Monarchy and we shall easily find what to answer to the Arguments before produced on either side For first it is his Parliament because an Assembly of his Subjects Convocated by his Writ to be his Council and to assist him in making Laws for him to govern by Yet not his as other Courts are as deriving their whole Authority from the King So likewise his Power of Assembling and Dissolving them proves him thus far above them because though as to the time of their meeting it depends on him Yet their Power and Authority quoad Specificationem i. e. the Being Kind and Exercise of it is from the Original Constitution For as to that they expect no Commission and Authority from him but only for their meeting to proceed to Act but when met they Acts according to the Original Rights of their Constitution and those Acts proceed from their Conjunct Authority with not from their Subordination to the King in the Legislative as also in laying of Taxes c. on the People The Oath of Allegiance indeed binds them as his Subjects to obey him governing according to Establisht Laws But yet it supposes them to be built upon the Foundations of his Legal Government and must not be interpreted to Vndermine and Destroy it He is hereby acknowledged to be Supream so far as to Rule them by Laws already made or to be made but not without them So that this is no Derogation to the Legislative Power of Parliament And I believe of these things no unprejudic'd Man can make any Question And herein consists the accurate Judgment of the Contrivers of this Form that they have given so much into the Hands of the Soveraign as to make him truly a Monarch Yet have reserved so much in the hands of the People as to enable them to preserve their Laws and Liberties M. I confess you have given a long and plausible account of the Original and Form of our Government though if it come to be examined I doubt it will prove a meer Romance and not at all agreeable to true History or Matter of Fact Since if we look to the Eldest times either after the Saxon or Norman Conquests We shall find the Power of our Kings to have bin still more Absolute then they are now And I think I could easily trace the Steps by which the People have attained to all the Power and Priviledges they now enjoy which as I do not grudge the Nobility and People of this Nation Yet they ought to exercise it with a due respect and Subordination to that Power from which they were all at first derived least if they should ascribe them to themselves the King should be tempted to destroy those Great Priviledges and taking away the very Being of Parliaments to make Laws without them But to shew you farther that this Notion of an independent Power in the two Houses by the Original Constitution of the Government is altogether inconsistent with the King's Prerogative appears from clear Matter of Fact even as you your self have put it For when Kings thought fit not to have their Power Controuled you acknowledge they called Parliaments less frequently than usual and that thereupon there were divers Laws made appointing certain times for their meeting from whence it appears that before this the times of their meeting were wholy left to his Discretion Nay farther that the King's Prerogative of Assembling them or omitting it when he pleases cannot be limited by any Act himself can make appears from hence that notwithstanding all those Laws that have bin made for Annual and Triennual Parliaments our Kings have never thought themselves obliged to call Parliaments ofâ—ner than they saw their own occasions or the necessities of the People which they themselves were Sole Iudges of required Nor did any Parliaments ever find fault with this till that Rebellious one in 1641. which had the confidence to present to the King a Bill to be past whereby it was not only Enacted that there should be a Parliament every third Year but that upon the King 's omitting to issue forth Writs of Summons the Sheriffs nay Constables might Summon the Free-holders and proceed to Election and that the Lords might also meet without any Writs from the King which was quite contrary to the Original Constitution by which as you your self grant there could be no Parliaments without his Summons he being Principium Capus finis Parliament And if so it seems wholy improbable nay impossible to me that your Two Houses should have by the Original Constitution any Power of meeting or doing any thing without his Majesties Consent and Allowance and we know that at this day the Spâ—aker in the Name of the House of Commons desires of the King Liberty of Spâ—ech And King Henry 8th and Queen Elizabeth did sometimes Rebuke the House of Commons and sent to them to Desist when they were about to pass any Bill they did not approve of or to meddle with those things which did not belong to them Which plainly declares that contrary to your Affection neither of the Two Houses have any Power to proceed upon any Business or to pass any Bill which the King disapproves of And though I grant that they do not ask the Kings leave for the bringing in or Passing of all Bills whatsoever in either House or that the King can command them to give him what Money or pass what Bills he pleases Yet this Priviledge must needs proceed from his Grant or Concession to the contrary Whereby though he hath discharged them from an Active Obedience to such Commands Yet hath he not thereby divested himself of any of the Essential Rights of Soveraignty or at all discharged them from a Passive Obedience or Submission to his Power supposing the worst that can happen that he should take away what share he pleased of the Subjects Estates without their Consent or make his own Edicts and Proclamations to be observed for Laws Since the King's Authority is prior to all others and that as the Statutes of Edward the 6th and Queen Elizabeth which I have already quoted expresly declare All Power Authority and Iurisdiction Spiritual and Temporal is derived wholy from the King so that unless your Legislative Power of Parliament be somewhat that is neither an Authority
made by him as indeed it is true he compiled them out of divers other Laws formerly in force in the other Kingdoms of the Heptarchy Yet that they were also shewn and assented to by the Wittenae Gemots pray see the Conclusion of these Laws in Sir H. Spelman The words are Remarkable Ego Aelfredus West Saxonum Rex ostendi haec omnibus Sapientibus meis dixerunt places ea custodiri So that the calling them the Laws of King Alfred or King Edward doth no more prove that they alone made them then our now Citing such or such a Statute of K. Henry 8th or King Charles the 1st do therefore suppose that those Kings made Laws by their own Sole Authority such Phrases among Ancient Historians as well as our selves at this Day being used only for Brevity sake and signifie no more then their Confirmation of them M. I shall not deny but that our Ancient English Kings did for the most part make no Laws without the Consent of their Great Council Yet I think I can give you an unanswerable Argument to prove that the very Being and Constitution of Parliaments or Great Councils did in the beginning wholy proceed from the Grace and Favour of some of our Ancient Kings thâ— to which of them to ascribe it is not easie to Determine But if we may believe your own Author the Mirrour he tells us almost at the very beginning That King Alfred for the Good State of the Realm caused to Assemble the Counts or Peers and then ordained for a perpetual Custom that twice in the Year or oftner for Business in time of Peace they should Assemble at London to treat of the Government of the People of God and how folks should keep themselves from offences and live in quiet and should receive Right by certain vsages and Iudgments And According to this Establishment were made divers Ordinances by divers Kings until the present King viz. Edw. 1st But to come to the proof of what I affirm it is certain that in those first times the Saxon Kings conferred all the Bishopricks and principal Abbeys in England per Annulum Baculum as Ingulf and Malmsbury expresly tell us And as for the Earls or Aldermen of Counties as also the Great Thanes Judges or Noblemen of the Kingdom they were only Offices held for life in those times which the King might Discharge them of at his Pleasure And hence we find the Titles of Aldermanus Regis and Thanus Regis so frequently to occur in our Ancient Histories and Charters These comprehended under the general Name of Wites were the only Constituent parts of the Great Council in those times for as concerning those we now call the Commons of England we do not so much as find the least mention of them or any Representatives for them till the latter end of the Reign of King Hen. 3d. or the middle of Edw. 1sts Reign as I think Dr. Brady hath Learnedly and fully proved in his last Edition of his Answer to Mr. Petyt's Treatise of the Rights of the Commons of England Asserted Now if it plainly appears that every part or Member of the Parliament did Anciently receive their very Being from the meer Grace and Concession of our Ancient Monarchs can you or any Reasonable Man assert with any Colour of Truth that our Great Councils or Parliaments could be a part of the Fundamental Constitution and as Ancient as the Government it self And if Parliaments did thus receive all that Authority they now Exercise from the Kings Bounty can any Man doubt whether all the Rights and Priviledges we now enjoy are to be Ascribed to any other Original For if the very Keepers as you will have it of these Liberties did all proceed from the King then certainly the things to be Kept must do so too and when you can answer this Argument I have now brought I think I may safely promise you to be your Proselite and to come over to your Opinion M. I confess this is the most plausible Argument you have hitherto urged and if I can't answer it I do likewise promise you to become your Convert But tho granting that Parliaments might have received their Being from the Favours of our Kings I might deny your Consequence that therefore it will follow that all the Rights and Liberties of the Subjects of England must do so too since they might very well have reserved to themselves both Hereditary Properties as also a Right to their Lives Liberties and Estates which the King should not take from them without just Cause and Legal Tryal which when they found invaded by succeeding Princes they might then and not till then find constant Great Councils and Parliaments to be necessary for that End and as the firmest Bullwark against the Tyranny of Succeeding Princes But the Author of the Mirrour in the Section before the place from whence you took your last Quotation expresly tells us that upon the first Election of a King to Reign over the rest of the Saxon Princes they first of all madâ— him to Sweâ—r that He would maintain the Holy Christian Faith with all his Power and would govern his People according to Right without regard to any Person and should be liable to suffer Right i. e. Iudgment as well as others of his People And tho I do not give any Credit to all the Story he there relates of 40 Soveraign Princes in this Island at once Yet the Substance of it may be true that this Election was made of King Egbert by the 40 Earls or Counts of Provinces which were afterward by King Alfred called Shires But that this Author ascribes the Beginning of Great Councils to the first Institution of the Government pray see what he there fâ—rther says And tho the King can have no Peer in the Land nevertheless if by his own wrong he offends against any of his People none of those that Iudge 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 Parliament all Writs and Complaints concerning the Wrongs of the King Queen and their Children of which Wrongs they could not otherwise have Common Right These Companions are therefore called Counts after the Latin Câ—mitâ—e Whereby you may see that this Author and Bracton who were Contempâ—â—aries were of the same Opinion in this important Point And I cannot imagine how any Prince who had Power sufficient in his hands to do what he pleased as you suppose our English Saxon Monarchs to have had at the first would ever if they could have helpt it have instituted a Court one of whose chief Businessâ—s it was to examine and redress the Wrongs and Oppressions of themselves their Wives and Children But besides all this what you say might be somewhat likely that our Parliaments or Great Councils did owe their Original only to the Kings good Will and Pleasure did we not find the like
Deputies to their Great Councils at all and since the Government of England as you your self grant did very much resemble that why might it not be so here too F. I think your Reply hath no more weight in it than what you have already urged For in the first place it lies upon your side to prove that none but the King 's or chief Thanes had any Places in the Great Councils of those times and wheâ—â— you can prove that you may do something But what I have now brought to prove the great Antiquity of our Cities and Burroughs in England is not so little to the purpose as you would make it since it confirms that Right of Prescription which all ancient Cities and Burroughs is England do claim of senâ—ing Members to Parliament and therefore pray 〈◊〉 what Mr. Lambard a Person whom all the Learned own extremely knowing in the English Saxon Government tells us on this Subject in his Archeion in these Words That whereas in the beginning of the Law viz. those made by the Saxon Kings he there mentions all the Acts are said to pass from the King and â—is Wisemen both of the Clergy and Laity in the Body of the Laws each Statute being thus And it is the advice of our Lord and his Wisemen So as it appears that it was then a received Form of Speech to signifie both the Spirituality and Laity that is to say the Greater Nobility and the Less or Commons by this one Word Witena i. e. Wisemen Now as these written Authorities do undoubtedly confirm our Assertion of the continuance of this manner of Parliament so is there also unwritten Law or Prescription 〈◊〉 doth no less infallibly uphold the same For it is well known that in every Quarter of the Realm a great many Burroughs do yet send Burgesses to the Parliament which are nevertheless so ancient and so long since decayed and gone to nought that it cannot be shewed that they have been of any reputation at any time since the Conquest and much lesâ— than they have obtained this Priviledge by the Grant of any King succeeding the same So that the Interest which they have in Parliament groweth by an ancient usage before the Conquest whereof they cannot shew any beginning Which thing is also confirmed by a contrary usage in the self same thing for it is likewise known that they of ancient demesne do prescribe in not sending to the Parliament for which reason also they are neither contributers to the VVages of the Knights of Shires neither are they bound by sundry Acts of Parliament tho the same be generally penned and do make no exceptions of them But there is no ancient Demesne saving that only which is described in the Book of Dooms-day under the Title of Terra Regis which of necessity must be such as either was in the hands of the Conqueror himself who made the Book or of Edward the Confessor that was before him And so again if they of ancient Demesnes have ever since the Conquest prescribed not to elect Burgesses to the Parliament then no doubt there was a Parliament before the Conquest to the which they of other Places did send their Burgesses From whence we may conclude that the Learned Author did not only believe that the Lords but that also the Inferior Nobility and Representatives of Cities and Towns were included under the Word VVites and also that these Placeâ— claimed that Priviledge by Prescription and not by Grant of any King since the Conquest or before M. I shall not deny but Mr. Lambard was a Learned Antiquary yet there are others more in number and perhaps of greater Learning who do suppose that no Cities or Burroughs sent Burgesses to Parliament but since the Conquest the I confess the time is not exactly agreed on but whenever they began to appeaâ—â— there it is certain they could have no right of coming but from the King's Summons or Grants since none but such Cities or Towns that held of thâ— King in Capite had anciently any place in those Assemblies noâ— of them neither any other but those whom the King pleased to call And from thence proceeds that great Variety we find in the List of those Towns which send Members to Parliament But I shall omit speaking any thing farther of this at present But as for those middle inferior Thanes or Vavassours as they were afterwards called whom you suppose to have made so great a Figure in the Saxon Great Councils I do not believe that they had any Votes there and I hope I shall be able to prove to you by and by that none but the King's Tenants in Capite appeared in those Meetings from the time of William the Conqueror to the 49 Hen. III. Now if it be true as you suppose King William made no alterations in the constituent parts of the Great Council of the Kingdom after his conquest of it it will likewise follow that the same sort of persons viz. Tenants by Knights Service were the only Members of it before the conquest too But if you have any express Authorities out of our Ancient Saxon Laws or Histories to prove that the Commons appeared at the Wittena Gemotes in the Saxon times pray let us see them F. I shall perform your Command immediately but in the first place give me leave to tell you that what you have said concerning Cities and Towns not sending Burgesses to Parliament till after the Conquest is a great mistake built upon a false and precarious Hypothesis that they all held in Capite of the King the contrary of which I shall make out when I come to treat of that Question So likewise is it as precarious that none but the King's Tenants in Capite had any Votes in our Great Councils in the times immediately succeeding your Conquest till the 49th of Hen III. and that therefore it must have been so before the Conquest For as I own that King VVilliam made no material alteration in the Government of the Kingdom after his entrance so I likewise affirm that as well after as before that time if not Knights of Shires yet all Thanes the or Barons i. e. great Freeholders of England had Places in that Assembly before 49th of Hen. III. But to proceed to the Authorities you desire I shall begin with the first and most ancient General Council we have left us in the Saxon times viz. that which was held at Canterbury A. D. 605. by King Ethelbert not long after the settlement of Christianity in this Island which is recorded by Sir H. Spelman in his Brittish Councils in these Words An. Incarnationis Dominicae 685. Aethelbertus Rex in fide Roboratus Catholica una cum Beria Regina silioque ipso Eadbaldo ac reverendissimo praesule Augustino caeterisque optimatibus Terrâ— Solenitatem Natalis Domini Celebrant Cantuariae Convocato igitâ—r ibidem Communi Consilio tam Cleri quam Populi Whence you may observe that
errant Slaves and Vassals notwithstanding their Tenure in capite as the meanest person of the Kingdom who was taxed as you would have it at the Will of his Superior Lord which whether so great and powerful a Body of men would ever have sufferd I leave to any indifferent person to judge M. I grant this may now appear somewhat hard yet since it was the receiv'd Law and Custom of the Kingdom it was not then look'd upon as a grievance and it was then no more unjust than it is now that persons under forty Shillings a year tho of never so good Estates in Money or Stock or that Tenants for years or for the Life of another should at this day have no Votes at the Election of Knights of Shires and consequently be without any Representatives in Parliament of their own Choice and yet be subject to all Laws and Taxes tho never so great when made and imposed by the King in Parliament And I am able to give you divers good Authorities to prove that even London it self and all other Cities and Towns which held of the King in capite and were called his Demesnes were often taxed by the King and his Council out of Parliament before the Statute De Tallagio non concedendo And I think Dr. B. hath proved this beyond exception in his Animadversions upon Mr. A's Iani Anglorum facies noâ—e and he there gives us the Record it self of 39 Hen. III. now in the keeping of the King's Remembrancer of the Exchequer That the King did that year as he had divers times before Talliate or Tax all his Demesne Lands in England and then likewise demanded of the City of London the sum of 3000 Marks in name of the Talliage or Tax so laid And the Mayor and Citizens at last yielded after a great Contest It appearing upon search of the Rolls in the Ezchequer that the Citizens of London had been several times before so taxed in the Reigns of King Iohn and the King himself and so they payed at last the Sum which the King demanded By which you see that the greatest and richest Cities and Towns in England were taxed at the King's Will nay I think I am able to prove were it now necessary that the whole Kingdom was often taxed by the King and his Council only before the granting of King Iohn's Magna Charta and the Statute de Tallagio non concedendo above mentioned But to return to the Matter from which you forced me to digress I think nothing is more plain than that our Ancient Parliaments were only the King's Court Baron for the dispatch of the Publick Affairs of the Kingdom and in which as in the Lesser Courts Baroa or Courts of Mannor the Suitors or Tenents were together with the Lord or his Stewards the sole Judges So that at first after the Conquest it belong'd to the King alone as the Supreme Lord of the Kingdom to appoint or call which or what sort of those Tenants be pleased to attend him with their Aid and Advice at his Common Councils or Parliaments And I think nothing is more evident as I shall prove more at large from our Ancient Histories Records and Statutes then that before the 49th Hen. III. and some years also after that time none but the Bishops Abbots Earls and Greater Barons and some of the Less called in King Iohn's Charter the other Tenents in capite then constituted the whole Body of the Parliament under â—he Titles of Baronagium Angliae or Communitas or Universitas Baronagii Angliae And for this I can give you so good Authorities that nothing but more cogent and evident Proofs can bring me from this Opinion And therefore I must tell you I do not value those loose and inconsiderate Expressions of Historians either before or after that time F. I see the Testimonies of Historians are of no credit if they make against your Hypothesis but I shall show you your Mistakes about the King's Taxing anon but the main force of your Argument lies in the signification of those Latin Words you have last mentioned and which I must needs tell you I think you take in too strict a sense For first as to the Word Baro I grant it was not much in use before William I. obtained the English Diadem Baro says Camden Britanni pro suo non agnoscum in Anglo-Saxonicis legibus nusquam comparet nec in Aâ—frici Glossario Saxonico inter dignitatum vocabula habetur For the English Saxons called those in their own Language Aealdermen which in Latin were named Comites and by the Danes Earls but it was of so extensive an import in its signification that we read of Aldermani Regis Aldermani Comitatus c. as I have already shewed you So that according to the strict Sense of this Word we had whole Regiments of Earls whose Titles seldom if at all descended Hereditary till the Confessors Time and after William I. the Saxon Words Aealderman and Thegnes began to be changed and in the room of Aldermanni Thani we find Comites Barones as in all our Ancient Laws and Histories Nor was the Word Barones only taken in those days for Great Barons and Tenents in capite but also for the Inferior Barons or Free Tenents which held great Estates of other Mesne Lords as well as of the King by certain Services and to whom the Great Lords or Earls as Sir H. Spelman shews us in his Glossary Title Baro often directed their Charters Barombus Fidelibus nostris tam Francis quam Anglis and we there also read some Quotations from the old Book of Ramsey Abby wherein the Barons of the Church of Ramsey as also the Milites and Liberi homines thereof are particularly mentioned all which as this Learned Author tells us non de Magnatibus sunt intelligenda sid de Vassallis feodalibus note Scil melioris And the same Author says a little lower that Barons are often taken pro liberè Tenentibus in genere hoc est tam in Soccagio quam per servitium Militare M. What then do you suppose that all the Freeholders in England by whatsoever Tenure they held appeared in Person in Parliament before the time Sir H. Spelman in his Glossary and Dr. B. Assign for the summoning of the Commons to Parliament At this rate every Yeoman or Petty Freeholder was a Baron so that this Assembly might then consist of above 50 or 60 Thousand Persons Since Spot in his Chronicle tells us that William the Conqueror reserved to himself the service of about 60000 Knights Fees which by the time I suppose might have been divided into many more lesser ones by Co-heirship or by sale and otherwise parcelled out by the King's License into Half-Knighs-Fees Third Part of Fees Fourth Part of Fees Eight Parts Sixteen Twenty Thirty and Forty Parts of Fees and so have been increased into as many more And these besides the Tenants in
Men of the Kingdom had then in full Parliament on the first of Iune granted him 40 s. on every Knights Fee to Marry his Daughter and it thence also appears that tho this Tax is said to be given for themselves and the whole Community of the Kingdom yet it was by the Community of Tenants in Capite alone because it was to be raised wholly upon Knights Fees so that hitherto in this Kings Reign there appears nothing that can plainly evince either the Summoning or being of any Commons in Parliament as now understood we are at least left at great uncertainties nay in my Opinion the proof is more strong on the Negative that there were none F. I wonder you should mention this Writ any more since I have already confuted the Doctors notion about it and proved that it was a general Tax granted by the Parliament upon the whole Kingdom and not laid either by or upon the Community of the Tenants in Capite alone nor does the way of Taxing by 40s upon every Knights Fee at all prove it for if it is to be understood of Lands only held by Knights Service then this Tax could not have extended to any other Estates as certainly it did since the King could by King Iohn's Charter have forced his Tenants in Capite to grant him an Aid towards this Marriage of his Daughter and if what you say be true could also have made all the Mesne Tenants of the Tenants in Capite to have contributed to it according to the Knights Fees they held and this without calling a Parliament at aâ— therefore pray give some better Authority then this for Iâ—e assure you I am not at all satisfied with it M. I will now give you the Writ the Doctor has discovered and by which it will plainly appear that this Tax granted in the 18th of this Kings Reign was given before ever the Commons were Summoned to it and for this the Learned Doctor has found out a loose bundle of Writs of this year directed to the Sheriffs of most Counties of England and they are the ancientest Extant or perhaps that ever were for in probability the calling of Knights Citizens and Burgesses according to that Example was discontinued from the 49th of Hen. III. unto this time by which two or three Knights were directed to be chosen for each County pray read the Writ it self since I look upon it as the first Pattern of this kind that of the 49th of Henry III. seeming to have been Written in haste without those Forms that were afterwards required in Writs of this kind and particularly in this Edwardus Dei Gratiâ Rex Angliae Dominus Hiberniae Dux Aquiâ—aniae Vice-comisi Westmâ—rlandiae Salutem Cum per Comites Barones quosdam alios de Proceribus Regni Nostri nuper fuisseâ—us super quibusdam Speciâ—liter requisiti super quibus tam cum iâ—sis quam cum aliis de Comitatibus Regni illius Colloquium haâ—ere volumus Tyactatâ—m tibi praecipimus quod duos vâ—l tres de Diâ—cretioribuâ— ad laborandum potentioribus Militibus de Comitatu praedicto â—ine delatione Eligi eos ad nes usque West monasterium venire facias ita quod sint ibidem à die Sancti Iohannis Bapt. prox futur in tres Septimanes ad ultimum cum plena potestate pro se Communiâ—ate Comitat. praedicti adconsulendum consentienoum pro se Communitate illâ hiis quae Comites Barones Pro. ere 's praedicti tunc dixerine concordanda habeas ibi hâ—c Breve Teste meipso apud Westmonast 14 die Jun. Anno. Regni Nostri 18. Whereby you may see in the first place that there was yet no certain number of Knights of Shires settled who were to be Summoned to appear at this Parliament And you may in the next place remember from a before mentioned Record of the 30th Ed. I. that on the first of this Month the King had Scutage then given him in full Parliament and now Fourteen days after at the Instance of the Earls Barons and other great Men of the Kingdom upon certain matters by them moved and propounded to him He Issued His Writs of Summons to the Sheriffâ— of the several Counties to cause to be chosen two or three Knights of each Counties to come to him at Westminster three Weeks after St. Iohn Baptist at farthest We may also further observe from this Writ that it is most probable though it is not here absolutely said so that the King was moved by the Earls Barons and great Men of the Kingdom to call these Knights to this Parliament and that as this Writ is the first to be found after that of the 49th of Henry III. so it really was the first Writ of Summons after that time for the Election of Knights to represent the several Counties In the next place that there could â—e no Citizens nor Burgesses chosen or sent to this Parliament by Vertue of this Writ as they were afterwards by directions contained in the Writs sent to the Sheriffs for Electing Knights of the Shires Lastly that by this Writ the Knights were to come to the King at Westminster three Weeks after St. Iohn Baptist at furthest which was the 15th of Iuly also that in the same year between the time of the date of the Writ and the time appointed for Meeting of the Knights The Statute of Westminster the third was made as may appear by this Clause at the beginning Dominus Rex in Parliamento suo apud West monasterium post Pascha-Aâ—o Regni sui Decimo octavo videlicet in Quindena Sancti Iohannis Baptist. that is the 8th of Iuly ad Instantiam Magnatum Regni sui Concessiâ— Providit Statuit Quod de caetero liceat unicuique libero homini c. So that this was the same full Parliament which gave the King Scutage on the first of Iune and then the King and Barons without the Commons made this Statute or the Knights had another Summons after the Date of this Writ for before that they were not in Parliament or the Knights came a Week before they had need to have done but neither of the latter are probable seeing the Knights then were great Husbands of their time and Expences and were not very forward to undertake this Service as being constantly bound with or engaged by Sureties or Manucaptors for the performance of it and their appearance in Parliament and therefore it seems reasonable to conclude that this Law was made without them and before their coming to Parliament So much of this Writ from which as well as divers following Writs and other Records it is evident that it was from this Kings Authority and at this very time that the House of Commons came to be fixed and establish'd in the present constant Form it is now and hath been in for many Kings Reigns and than the King in this Age was not altogether confin'd to any Number of Knights
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
from that 7th Edward the First I think that can by no means do the business for which you design it for in the first place this is only Declaration of the Bishops Lords and Commons of the Land that it belongs to the King to defend i. e. forbid all force of Arms but mark Sir what force sure it is only meant of such Force as belongs to the King's Prerogative to forbid viz. force of Arms against the Publick Peace and such as he might punish according to the Laws and Usages of the Realm and therefore the Statute expresly declares that as Subjects they are hereunto bound Aid him their Soveraign Lord the King at all times when need shall be but does this Act any where say that he hath an Irresistible Power to disturb this Peace by his own private Illegal Commissions or that any men are bound to assist him in it or because for example he hath Authority to punish all men according to Law that shall come to Parliaments with force of Arms that therefore he hath an unlimited power of raising what Forces he would and in prisoning or destroying the whole Parliament if he pleased and that no bodâ— might resist him if he had gone about so to do The like may be said if the 〈◊〉 should notoriously and insupportably by force invade all the Civil Liberâ—â—â—â— and Properties of his Subjects by Levying Taxes and taking away theâ—r Estates by down-right Force contrary to Law now can any body in his senses believe that the Act of 25th of Ed. 3. was made to prevent all Resistance of suâ—h Tyrannical Violence and that the Resistance of those Forces whether forreign or domestick that might be sent by the King 's private Commissioners to murder or enslave us is making War against his Person or that it comes within any of the Cases expressed in that Statute and therefore cannot fall within the compass of Sir Edw. Coke's Comment upon this Staâ—ute all the offences therein specified being Treasâ—ns at Common Law before that Statute was made nor is the Reformation there mentioned to be understood of a just and necessary Defence of our Lives Liberties Religion and Properties as setled and established by the Laws of the Land to be looked upon as making War against a weak or seduced King but is rather in defence of him and the Government by opposing Tyranny which will certainly bring both him and us to Ruine at last so the Reformation he there mentions is only to be be understood of such Insurrections and Rebellions as have been made under the meer pretence of Religion or obtaining greater Liberties for the common sort of People than they had by the Law of the Land such as were the Rebellions of Wat Tyler in King Richard the Second and Mortimers in Hâ—â—ry the 6th Reigns not to mention the other Rebellions raised by the Papists in the times of King Henry the Eighth Edward the Sixth and Queen Elizabeth's Reigns all which being begun by Seditious or Superstitious men were certainly rank Rebellions and so are and ought to be esteem'd by all good Subjects M. I grant these pretences seem very fair and specious yet notwithstanding this your pretended right or a necessity of Resistance of the King or those commissioned by him in case of Tyranny has been still looked upon as Rebellion in all Ages and the Actors dealt with accordingly where ever they were taken F. I do not deny but as long as Arbitrary and Tyrannical Princes could get the better of it and keep the Power in their own hands they still Executed for Traytors whosoever opposed or resisted their wicked and unjust Actions tho' they were never so near Relations to them thus both Edward and Richard the Second put their Uncles the Dukes of Lancaster and Gloucester to death meerly because they joyned with the rest of the Nobility and People to prevent their designs So that it is not the Execution of the Man but the Cause that makes the Traytor since Princes are seldom without a sufficient number of Judges and Jury-men to condemn whomsoever they please to fall upon But that the Clergy Nobility and People of England have always asserted this right of Self-defence in case their Liberties and Properties were uniustly invaded by the Tyrannical or Arbitrary Practices of the King or those about him I think I can prove by giving you the History of it in so many Kings since your Conquest as will render it indisputable if you please to give me now the hearing or else to defer it till the next time we meet M. I confess I was so weary of sitting up so long at our last Conversation that I made a Resolution not to do so any more and therefore since it grows late let us leave off now and I promise to meet you here again within a night or two and then I will hear how well you can vindicate your right of Resistance from Law or History but if you have no better proofs for it than the Rebellion of the Barons in King Iohn and Henry the Third's Reigns you will scarce make me your Convet since Impunity does never sanctifie a wicked action or render it the more lawful and you have already given it me for an Axiom that a facto ad Ius non valet consequentia F. I accept of your Appointment with thanks but pray do not forâ—judge my Arguments till you hear them and as for the Axiom I allow it for good provided I may urge it in my turn but in the mean time I shall wish you good night M. And I the same to you FINIS Bibliotheca Politica OR A DISCOURSE By WAY of DIALOGUE Upon these Questions Whether by the ancient Laws and Constitutions of this Kingdom as well as by the Statutes of the 13th and 14th of King Charles the II. all Resistance of the King or of those commissioned by him are expresly forbid upon any pretence whatsoever And also Whether all those who assisted his present Majesty King William either before or after his coming over are guilty of the breach of this Law Collected out of the most Approved Authors both Antient and Modern Dialogue the Ninth LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford Arms where also may be had the First Second Third Fourth Fifth Sixth Seventh and Eighth Dialogues 1693. Authours chiefly made use of in this Dialogue and how denoted in the Margin Dr. Sherlocks case of Resistance S. C. R. Mr. Iohnsons Reflections upon it I. R. S. Dr. Hick's answer to Iulian Intituled Iovian H. I. I desire the Reader to remember that whenever I make use of the word People in this or the following Discourse I mean thereby the whole diffusive body of the Nation consisting of the Clergy Nobility and Commons The PREFACE TO THE READER I Must beg your pardon if I have exceeded my intended design in the Preface to the first of these Dialogues of reducing what I had to say on the
the Kingdom of the West Saxons I have now instanced in but in almost all the other Kingdoms of the Heptarchy in which there are to be found many more Instances of the Deposition of their Kings thaâ— what were in the West Saxon Kingdom this waâ— then very just and necessary since these Kingdoms were all Elective and none of them Hereditary and that the general Meeting of the great Council of the Nation was always at set and constant Times and did not depend upon the Will and Pleasure of the King either to call or dissolve them as I have already proved and that this Power was no unusual thing I appeal to all the Antient Kingdoms of Europe founded after the same Model as ours and which I mentioned at our last Meeting so that nothing is more frequent in their Histories and Annals than the Deposing of their Kings for the above-mentioned Crimes of Tyranny or Misgovernments But that some of these Gothick Kingdoms as Denmark and Sweden whilst they continued Elective have exercised this Power even till of late is so notorious in matter of fact that it needs no proof since the Kings of those Kingdoms held their Crowns at this day by that Title and on those Conditions which the Nobility and People gave them after the Deposition of their Predecessors But tho this were so anciently also in England it does not therefore follow that it must be so now for since the Crown of this Kingdom became Hereditary and that the Calling and Dissolving of great Councils or Parliaments came to depend wholly upon the King's Will I must allow that the Case is quite altered and that the Two Houses of Parliament have now no power to depose the King for any Tyranny or Misgovernment whatsoever The first Parliament of King Charles the Second in the Act for attainting the Regicides have actually disclaimed all Coercive Power over the King and yet for all that the Nobility and People of England may still have a good and sufficient Right left them of defending their Lives Religion and Liberties against the King or those commissioned by him in case of a general and universal Breach and Invasion of the Fundamental Laws of the Kingdom or Original Contract if you will call it so and not to lay down those Defensive Arms till their said just Rights and Liberties are again restored and sufficiently secured to them So that tho' I will not bring the Custom of the English Saxons as a precedent for the Parliament's Deposing of the King yet I think I may make use of it thus far that this Nation has ever exercised this necessary Right of defending their Liberties and Properties when invaded by the King or his Ministers either by colour of Law or open Force And that this hath been the constant practice from almost the Time of the Conquest down to later Ages I think I can make out from sufficient Authorities both from Histories and Records M. Tho' your Doctrine is not so bad as I expected yet it is still bad enough and I never knew this Right of Resistance carried home but that it always ended in Deposing and Murdering of the King at the last as we have seen in our own Times But let the constant practice have been as it will I am sure such Resistance hath been always condemned by our Ancient Common Law as well as Modern Statutes as I shall prove farther to you by and by and therefore pray give me leave to tell you that the never so constant practice of an unlawful thing can no more justifie the doing of it than that constant usage time out of mind for Thieves to Rob between London and St. Albans not that I fore-judge you or refuse to hear any Instances and Authorities from Histories or Records to make good your Assertion F. I thank you for your patience what therefore if I prove that such Resistance has been not only actually exercised by the Clergy Nobility and People in former Ages but that it hath been also allowed by our Kings and approved of by great Councils or Parliaments in those Times for lawful and the Actors in it wholly indemnified and saved harmless nay a power given them and that by the King himself to resist him and defend themselves in case he broke his Charters and Agreements made to and with his Nobility and People or else with some Forein Prince may appear from this remarkable Instance of King Henry II at the end of whose Reign Hoveden in his Annals gives us the Conditions of the Peace made in the last Year of this King between him and Philip King of France with the Consent of their Bishops Earls and Barons where among other Articles you will find this for one particularly relating to the Barons of England who were also to swear to the Peace in these Terms Et omnes Barones Angliae jurabunt quod si Rex Angliae noluerit has Conditiones tenere quod ipsi tenebunt cum Rege Franciae Comite Richardo cos adjâ—vabunt pro posse contra Regeâ— Angliae c. Whence we may without doubt conclude that the Resistance of Subjects in some cases against their Kings was then allowed of even by the King himself and thought not inconsistent with the Allegiance they bore him tho' it might suspend it for a time M. I confess this Instance would be of some weight were it not for the Critical Time when this Peace was made viz. when Richard Earl of 〈◊〉 the King 's Eldest Son had Rebelled against his Father and taken part with the King of France and had drawn over a great many of the Norman and Pictavian and English Barons to his Party which when King Henry perceived this very Author you have quoted here tells you Quod Rex Angliae in arcto positus Pacem fecit cum Rege Philippo that is was constrained to make Peace with him so that King Henry being in this streight the King of France and Earl Richard with the Barons of his Party forced King Henry to sign what Conditions they pleased for there it no such Clause so much as mentioned for the French Barons But make the most of it it is but a Temporary Relaxation of Allegiance from King Henry to his Barons and the King might surely thus release them if he pleased But it is plain they could not have acted thus without this Condition had been expresly inferred F. Well supposing King Henry to have been never so much constrained to the making of these Conditions and that it was his own Act that rendred it lawful it still proves as much as I urge it for viz. that neither the Kings of France or England then thought this Resistance absolutely unlawful for then the King 's own Act could never have dispensed with it But to shew you farther that the People of this Nation have ever maintained this Right of Resistance even with the allowance of our Kings themselves and for the doing
at all And therefore you are quite out in your Law when you tell me that an Absolute Illegal Judgment is valid till it be reversed for if it be appearantly contrary to the known Forms of Law and practice of the Kingdom it is so far from being valid that tho' it be put in Execution it would be lookt upon as null and done without any Authority at all As suppose the King in person or any Inferiour Judge should condemn a Man to die either contrary to the Verdict of his Jury or without any Jury at all this is so far from being Authoritative or valid that such a Judgment is void in it self and those are guilty of Murder who execute it and it will need no Writ of Error to reverse it But I suppose by Illegal Judgments you mean such Judgments which have some Error in them either in matter of Law or Form for which they may be reversed I grant if these should not be lookt upon as valid and hold good till they are reversed in a higher Court there could not be any Judgment given at all since all Human Judicatories whatsoever are subject to Errors and Mistakes and there is sure a great deal of difference between such actions as are done by that Authority which the Law entrusts them with tho' not duly exercised and those violent and illegal acts which a Prince when he persecutes and enslaves his Subjects performs by his wicked Instruments contrary to all Divine and Human Laws So that the validity of such an Erroneous Judgment is not from the Judges personal Authority above the Law nor from his mistake or ignorance of the Law but from that high Credit and Authority which the Law hath given to all Courts and Judicial Proceedings which if they are done in due form are to be taken for Law however unjust and must be presumed to be free from Error till they are reversed in some higher Court. M. But if you please better to consider of it you will find a necessity of owning a Supreme Power in the King beyond all Appeal or Resistance and that there must be a personal Authority in him antecedent and superiour to all Civil Laws for there can be no Laws without a Law-maker and there can be no Law-maker unless there be one or more persons invested with the Power of Government of which making Laws is one principal branch for a Law is nothing else but the publick and declared Will and Command of the Law-makers whether they be a Soveraign Prince or the People And hence it necessarily follows that a Soveraign Prince does not receive his Authority from the Laws but Laws receive their Authority from him And I must be still of the same Opinion as to Bracton's words which you before quoted Lex facit Regem the Law makes the King by which I cannot believe that that great Lawyer meant that the King received the Soveraign Power from the Law for the the Law hath no Authority nor can give any but what it receives from the King and then it is a wonderful riddle how the King should receive his Authority from the Law And therefore I must stick to my former Interpretation that when he says the Law makes the King that is it distinguisheth him from a Tyrant as appears from the reason he gives for it i. e. Non est enim Rex ubi dominatur voluntas non Lex he is no King that Governs by his Arbitrary Will and not by Law not that he is no Soveraign Prince but he is a Tyrant and not a King And hence it as evidently follows that the Being of Soveraign Power is independent on Laws that is as a Soveraign Prince doth not receive his Soveraign Power from the Law so should he violate the Laws by which he is bound to govern Yet he is not to be resisted much less doth he forfeit his Power 'T is true he breaks his Faith to God and his Countrey but he is a Soveraign Prince still And now I hope it plainly appears that every Illegal act the King doth or Illegal Commission that he grants is not an inauthoritative Act or Commission but layes on the Subject an Obligation to yield if not Active yet a Passive Obedience And in the King 's most Illegal acts tho' they have not the Authority of Laws yet they have the Authority of Soveraign Power which is irrisistible and unaccountable In a word it doth not become any Man who can think three consequences off to talk of the Authority of Laws in derogation to the Authority of Soveraign Power The Soveraign Power made the Laws and can Repeal them and Dispense with them and make new Laws The only Power and Authority of the Laws is in in the Power that can make and execute Laws Soveraign Power is unseparable from the Person of a Soveraign Prince tho' the exercise of it may be regulated by Laws and tho the Prince doth very ill who having consented to such a Regulation breaks the Laws yet when he acts contrary to Law such acts carry Soveraign and irrisistible Authority with them while he continues a Soveraign Prince F. I am very well satisfied notwithstanding all you have hitherto said that the Government of England owns no such thing as this Arbitrary Power with which you would invest the King since I have already proved at our â—th meeting that the King is not the Sole Legislator and consequently not the Sole Supreme Power So likewise our Law it doth as little understand any such thing as a Personal Authority in the King antecedent and Superiour to all Laws For since God hath now left off making Kings by his own special appointment as he did among the Jews every King must either be so by the Law or Custome of that Countrey or else a bare possession of the Throne is sufficient to make him so and then every Usurper hath as much right to a Crown as the most lawful Prince and Oliver Cromwell was as rightful a Prince as King Charles the Second It is true the first King of any Race could not be invested with the Crown by the same Law as his Successors are that is by an Hereditary proximity of Blood Yet such a King whenever he began to be so could have no Legal Right without the Election Recognition or Consent of the People And as for an Hereditary Right that is but a Right by the Law of the Land or general Consent of the People testified by an uninterrupted Custom to entail the Crown on such a Family so that in either Case they are Kings by Law and therefore I conceive it can be only in this sense that Bracton says Lex facit Regem i. e. The Law of the Kingdom makes the King which more plainly appears by what immediately follows attribuat igitur Rex Legi quod Lex attribuit ei viz. Dominationem Potestatem in which words nothing seems more plain than that the
Question pray therefore satisfie me if you can those great Objections I have made First how this Resistance can consist with with that sacredness and inviolableness which you your self suppose to be due to the Kings person for either this Resistance in case of an invasion of our Civil Rights must be made even when the King's Person is actually present to back those Illegal Commissions or it must be forborn out of that due Reverence and Care of his Royal Person which the Law enjoyns If the former the King's Person is in danger to be destroyed whenever a factions Party is strong enough to rise in Arms and oppose the King's Commissions upon pretence of their being against Law But if on the other side this Resistance is not allowable when the King's Person is present then all such Resistance will signifie nothing since as soon as ever the King in Person shall appear in the Field to back his Commissions all your Defensive Arms as you call them must be immediately laid down unless they mean to destroy the Sacred Person of the King So that take it either way all Resistance is either Illegal or else unpracticable Secondly I can as little understand as I told you before how the Two Houses of Parliament should renounce all taking up Arms as well offensive as defensive against the King for themselves and yet should leave a Power in the diffusive Body of the Nation nay in any part thereof strong enough to make a Rebellion which they thought unlawful to exercise themselves Lastly By what Legal Authority the People or any part of it can justifie the taking up even defensive Arms since you your self acknowledge that no Arms can be taken up regularly but by the King's Authority and you have also disclaimed all taking up of Arms by his Authority against his Person or against those Commissioned by vertue of such Authority tho' I confess you except the Cases of Self-defence and in maintenance of the Law yet I cannot find those Exceptions allowed of in any of our Law-Books either ancient or modern F. I hope to give you such Satisfaction to every one of these Objections you have made as may serve any indifferent person therefore as to the first concerning the Sacredness of the King's person which I allow of as well as you we must in the first place distinguish between such Commissions as the King â—ssures by colour of Law when the Judges for example had given their Opinions in the Case of Ship-money for they being the sole Interpreters of the Law in the Intervals of Parliament I do acknowledge that their Determinations are not to be opposed by force but legally reversed when the next Parliament meeâ— and they are then to answer in Parliament for their false Interpretations and Opinions as Tresillian and his Companions did in the 11th of Richard II. and as the Ten Judges did upon the two Houses Declaration against Ship-Money and their Impeachment thereupon Thus tho' Mr. Hammpden refused to pay Ship-Money when demanded of him and rather chose to lye in Prison than pay it yet it had been downright Rebellion in case any resistance had been made by him against the levying of it But had this Tax been laid by the King 's sole Power without such colour of Law I doubt not but resistance might have been made even against those that were Commissioned by Him to levy it and if any one Town or Hundred were not strong enough to seize such Officers as presumed thus to levy it against Law the Sheriffs of every County in England might have raised the Posse Comitatus and seized all such Offenders and carried them to Jayl since the King's Commissions never did nor can indemnifie the persons so Commissioned in case the thing they were about to execute was contrary to Law and for this I need go no farther than the Old Mirror of Iustices which is owned for good Law at this day which speaking of Robbery and the several Kinds thereof has this passage which I shall here render out of the old Law French Into this Offence viz. Robbery all those fall that take other Mens Goods by Commandment of the King or any great Lord without the Owners consent Where you see there is no difference at all made between those that took away other Mens Goods by the Command of the King or any other but it was Robbery in all of them alike and consequently the Actors might be alike seized and punished as Robbers The same is also allowed by the Statute of the 20th of Henry the 6th whereby the King's Purveyors are forbid to take any thing to the value of 40 s. or under without ready Payment in hand of any person 〈◊〉 that it then should be lawful for every one of the King's Liege-People to retain their Goods and Chattels and to resist such Purveyors and Buyers So likewise the last Clause in this Oath viz. In pursuance of such Military Commissions seems to restrain it to such Commissions as were granted by the King's Authority that is according to Law and no other So that you see by the old Law of England the King's Commission did not render any man irresistible unless he executed it according to Law since the Constable of each Town might raise the Inhabitants thereof to seize such Wrong-doers and if they were not strong enough the High-Constable of the Hundred might raise the whole Hundred and in case they were not sufficient the High Constable might crave Aid of the Sheriff and assemble all the several Hundreds of the County till these Malefactors were seized So that as long as there were no standing Forces kept up in the Nation as I have shown you there was not till the Reign of King Charles the Second there could never be my Clashing between the King 's Civil and Military Commissions and this is one great Reason why no King of England since the Act de Tallagio non Concedendâ— was so hardy as to issue any Commissions to levy Money without colour of Law because they knew they were void in themselves and consequently would be resisted by the whole Nation So that this would not have been taking up Arms by the King's Authority against those Commissioned by him but only in order to bring those to Justice who had not any Commissions at all to do what they did the Law taking no Cognizance at all of the King 's Personal Commissions when absolutely against Law Nor if the King had joyned his own Presence to such illegal Commissions would it have mended the matter or rendered these Robbers of other mâ—â—â— Goods any more irresistible than they were before since the King can give no mâ—n Authority to do that which he has not Power to do himself and therefore face his single Person may be resisted in case he go about to Ravish Rob or Murder People then sure his joyning himself with such Men tho' never so numerous can never make
The King willeth that Right be done according to the Statuteâ— and Customs of the Realm c. Which not satisfying as too doubtful and general the King at last gave this full and clear answer in legal â—orm Soit Droit fait commâ— il est desirè The Second point in relation to our Civil Properties is this That no Tax Taillage or Aid shall be laid or levy'd by the King without the consent of the Arch-Bishops Bishops Earls Barons Knights Burgesses and whole Commonalty of the Realm in Parliament this was first of all granted by the 56th Law of William the First which I have already cited as also more particularly forbid by the Statute de Tallagio non concedendo in the 34th of Edward the First which was but a revival or explanation of the former Law of William the First and also by the 25th of Edward the Third whereby it is Enacted That no person should be compelled to make any Loans to the King against his will because they are against Reason and the Franchise of the Land and it is also provided that none should be charged by any Charge or Imposition called a Benevolence nor by such like Charge which is also more fully set forth in the said Petition of Right to have been lately executed by certain Commissioners as also that divers other Charges have been layed and levyed by Lords-Lieutenants Deputy-Lieutenants c. contrary to the Laws and free Customs of the Realm The Third Point declared against in this Petition of Right is against Quartering of Soldiers tho' they pay for their Quartors contrary to the Will of the Owners and Inhabitants much more when they did take free Quarter in time of Peace as hath been too much practised of late So that by the Common Law of England not only Private-houses but Inns and Ale-houses are not compellable to Quarter Soldiers unless they will so much was this Nation anciently a Stranger to standing Armies and Quartering of Soldiers in time of Peace that there was no Provision made for it either at Common-Law or by any Statute that I know of 4thly That no new Law can be made without an express Act of Parliament or the joynt-consent of the King Lords and Commons and therefore that Parliaments ought to be duely summon'd and held for the good and safety of the Kingdom by Common as well as Statute Law once every year and according to more modern Statutes once in three years at least or whenever there is a just and necessary occasion for it And for proof of this I need go no farther than the old English Saxon Law which ordains that the great Council or Mycel Synod should be held twice in the year as the ancient Mirrour of Justices recites and the constant Custome long after the Conquest in which there never passed a year without a general Council of the whole Kingdom and when this came by degrees to be discontinued then were those Statutes of Edward the Third and Richard the Second made whereby it was enacted that a Parliament should be held every year and oftner if there were occasion 5thly Since the Legislative Power of Parliaments is the very Soul and Essence of the Government the Election of Knights Citizens and Burgesses to sit and serve in Parliament ought to be free and all the Members of Parliament who have places there either by Patents or Writs of Summons as the Lords or else by Election or Writs as the Bishops ought to be present and there to have freedom of Speech and Votes without any Guards to over-awe or terrifie them and none to be forced threatned bribed or tamper'd with to give their Votes contrary to their Consciences either by the King or any of his Ministers This is ordain'd by the Stat. of Westm. 1 Chap. 5. whereby it is expresly provided that all Elections ought to be free which Sir Edward Cook in his Notes upon this Statute extends to Elections of Knights of Shires as well as other Elections since I have sufficiently proved that the Commons elected Members to Parliament when this Statute was made and that this was the ancient Law of England you may see in the Rolls of Parliament 1 Hen. 4. wherein it is alledged as by the Parliament as one of the Articles against Richard the Second in these words Item licet de stato consuttudine Regni sui in Convocatione enjuslibet Parliamenti Populus suus in singulis Comitatibus Regni debeat esse liber ad eligendum deputandum Milites pro hujusmodi Comitatibus ad inter â—ssendum Parliamentis ad exponendum corum gravamina ad prosequendum pro remediis superinde prout videntur expedire Tamen praefatus Rex ut in Parliamentis suis liberius consequi valeat suae temerariae voluntatis effectum direxit mandata sua frequentius Vicecomitibus ejus ut certas Personas per ipsum Regem nominatas ut milites Câ—mitatuum venirâ— saciant ad Parliamenta sua quos quidem Milites eidem Regi faventes inducâ—re poterat prout frequentius fecit quandoque pro minas varias terrores quandoque per munera ad consentiendum illis quâ—a Regno praedicto prâ—ejudicialia fuerant Populo quam plurimum onerosa c. So that you here may see that it was then judged by the whole Parliament to be a brench of one of the Fundamental Liberties of the Nation for the King to make false returns to be made of Parliament-Men as also to corrupt or over-awe their Votes either by Promises or Threatâ—ings But to conclude that we have such things as Fundamental Laws and Priviledges I shall go no farther than King Iames I. his Speech confirmed by an Act of Parliament of the First year of his Reign wherein it is recited That the King hath vouchsafed to express many ways how far it is and ever shall be from his royal and sincere care and affection to the Subjects of England to alter or innovate the Fundamental Laws Priviledges and good Customs of this Kingdom whereby not only his royal Authority but the Peoples Security of Lands Livings and Priviledges both in general and particular are preserved and maintained and by the abolishing or alteration of which it is impossible but that present Confusion will fall upon the whole State and â—rame of this Realm So that if this Judgment of the King and both Houses of Parliament was true sure we may justly suppose that things of such vast concernment deserve our contending for by all means possible and lawful to preserve them for what the Nobles of the Land upon occasion once said with one Voice in full Parliament every Free-born Subject of England may as well say at this day Nolumus Leges Angliae mutari which is a Maxim that ought to be imprinted upon the Hearts of all true Englishmen who as my Lord Bacon very well observes take themselves to have as good Title to their Laws as to the
M. OH Are you come at last I have looked for you these two Nights and now began to fear you were not well or else had distrusted your cause and declined another Conference F. I beg your Pardon for disappointing you which yet I had not done had noâ— some Business hindred me but however to let you see I do not decline another Conference with you upon this Subject pray let us go on where we left off and tell me freely your sense of my Notion of the Kings forfeiture or Abdication of the Government by his violation of the Fundamental Laws of the Kingdom and refusal to repair those Breaches when he might have done it M. In answer to your demand I will deal freely with you and must tell you that I have perused all Writers that have Writ any thing considerable concerning the Laws of Government or of Nations and cannot find in any of them any thing to countenance your Notion of forfeiture or Abdication of an absolute Sovereign Prince aâ— I must still take ours to be notwithstanding all you yet said to the contrary unless what you have cited at our third meeting out of Barclays third Book contra Monarches where he allows the Subjects to resist their Prince in case he go about to destroy the Body of the People or Common wealth whereof he is the Head To which I may also add another Case which you have omitted viz. if the Prince make over his Kingdom to another without the Consent of his People And I confess that both Grotius and Pufendorf agree with Barclay in this Notion Because they look upon both these Cases as their plain downright Renunciations of their Civil Authority over those whom they were obliged to Govern But indeed the first of these Cases is so improbable nay almost impossible to happen that were it not for the over-great niceness of these Writers it need not to have been so much as mentioned since none but a Mad-man can ever go about to destroy his whole People and therefore as a Man out of his Wits such a Prince may be Resisted and lockt up if ever it should so fall out as you your self have confessed it hath very rarely for a Nation to be so unhappy as to have such a Prince but as for the Second viz. the making over their Supream Power to a Foreign Prince that likewise so very rarely happens That it is scarce worth the while to make any dispute about it But in all other Cases they held the Supream Power of every Nation to be absolutely Irresistible in any case whatsoever and if irresistible then certainly uncapable of forfeiting their Right to govern by any pretended or real Violation of the Liberties and Priviledges of the People And Bodin in his first Book de Republica tho' he grant that absolute Princes are obliged in Conscience to keep and maintain all such Priviledges which have been granted to the People by either themselves or Predecessors which are for the good of the Common-wealth yet since the Prince is sole Judge whether these Priviledges are consistent with his Supream Right to Govern and Protect his People he may therefore have occasion sometimes not only to Detract from them or dispense with them in some Cases but may wholy break and lay them aside by turning Tyrant Yet nevertheless in all these Cases People are still bound not to resist them And that he looked upon the King of England as such an Absolute Monarch as well as others he there mentions pray read me the place I now Cited where after he has allowed Resistance to be lawful against those Princes who were not properly Monarchs as enjoying but a share of the Supream Power and among which he reckons the German Emperor and the Kings of Denmark Sweden and Poland But then when he comes to speak of Real and Absolute Monarchies his Sense is quite different as you may see by these words Quod si Monarchia quaedam est summâ unius potestate constituta qualis est Francorum Hispanorum Anglorum Scotorum c. I shall slip all the rest because not to our purpose ubi Reges sine controversia jura omnia Majestatis habent per se nec singulis civibus nec universis fas est summi Principis vitam famam Fortunas in discrimen vocare seu vi feu Iudice constituto id fiat etiamsi omnium scelerum ac Flagitiorum quae in Tyrannis convenire antea diximus turpitudine infamis esset where you may observe that Force or Resistance by which such an absolute Princes Life or Regal Power here called Fortunas are as much forbid as calling him in question by appointing Judges to sit upon him And he there gives us a very good reason for it because all Subjects of what degree soever cannot pretend to any Coercive Power over the Person of a Sovereign Prince F. We have discoursed enough concerning the Resistance of Absolute Monarchs at our third and fourth meeting and therefore I desire we may not fall into that Subject which can produce nothing but needless Repetitions and I have already proved at our 5th Conversation that the King is not an Absolute Despotick Monarch but is limited and tied up by the Fundamental Laws of the Kingdom from making of Laws or raising Taxes without the consent of his People in Parliament and that our Government is mixed and made up of Monarchy with an allay of Aristocracy and Democracy in the constitution the former in the House of Lords the latter in the House of Commons as K. Charles the First himself confesses in his Answer to the Parliaments 19 Propositions and I have farther inforced this from divers Authorities out of our Anâ—ient as well as Modern Lawyers viz. Glanvill Bracton Fortescue and Sir Edward Coke So that since we have such clear proof for our Constitution from our own Histories and Authors nay from the King himself besides the whole purporâ— and style of the very Laws and Statutes of the Kingdom I do not value the Authority of Bodin a Foreigner whose business it is to set up the Authority of the French King to the highest pitch he could and therefore being sensible that antiently the Government of France and England were much the same he could not with any face make his own an Absolute Despotick Monarchy unless he had made ours so too But this is not the only Errour he has been guilty of in our History and Constitution as I can shew you when there is occasion But Arnisaeus who as well as Bodin is so much for Absolute Monarchs yet does in his Treatise of Government called his confess that a Tyrant in an Hereditary Monarchy who violates all the Laws of Justice and Equity to the endangering the Ruine of the Common-wealth doth ixcidere Iure haereditario fall from or forfeit his Hereditary Right But pray make it out by some convincing proofs either from History or Law that our Kings are
dare not insist upon it so that I do not now wonder that the Gentlemen of your Principles are so violent for this right of Resistance since it is only in order to introduce your Darling Doctrine of the Peoples Power of deposing or laying aside their Kings as you term it whenever they shall judge they turn Tyrants and have thereby forfeited their Crowns which is a most dangerous Doctrine and if it should take effect the Princes of the World had need look about them since the People may make up such a pretence for ought I know even against the very best of them that are now Regnant in Europe But sure absolute Monarchs ought not to be outted of their Crowns by strained consequences or forced interpretations of Laws therefore pray shew me this original Contract you so much insist upon and those conditions on which you suppose our limited Monarchs hold their Crowns I confess if you could shew me any clause in our Laws or ancient forms of the Coronation of our Kings as there was at the Coronation of the Kings of Arragon wherein the chief Justice on the behalf of the People plainly told him that they made him King upon this Condition that they would have more Power than himself or that in the conferring of the Regal Power it was expresly reserved in what cases it should be lawful for them to resist the King or to absolve his Subjects from their Allegiance as Bodin tells us it was expresly inserted in the Coronation Oath of Henry II. Duke of Anjou afterwards King of France when he was made King of Poland that if he broke his Oath and violated the Laws and Priviledges of the Clergy and Nobility of Poland then the People of that Kingdom should not be obliged to render him any obedience I grant then that the Liberties of such a People might be preserved but the King that took upon him the Regal Power upon such conditions would not be properly a Monarch but liable to the Judgment of his People whenever he really did or that they imagined he had thus violated their Laws since the Supream Authority would still reside in them But indeed the Case God be thanked is much otherwise with our Monarchs who are Kings by right of Inheritance whether ever they take any Coronation Oath or not as K. Edward the first was whilst he was in the Holy Land almost two years before he could come over to be Crown'd and K. Henry the sixth was not Crowned till the eighth year of his Reign as well as of his Age. But that our Kings are so by Inheritance and by the Laws of God and Man previous to any Coronation Oath or consent of the People is expresly declared by the Act of recognition of K. Iames I. and that Treason could be commited against him before he was Crowned Sir Edward Cooke tells us in Calvin's Case was the opinion of all the Judges of England in the Plot wherein Watson and Clerk the Priests were Executed and Sir Walter Rawleigh condemned So that what you have now urged from Reason or Authority of our Antient Lawyers is either quite mistaken or else does not reach the matter in hand that it cannot be made out from reason is plain since your whole Argument is built upon this false foundation that it is lawful in some cases to resist the King in case of a notorious breach of the fundamental Laws and therefore it is necessary also to declare him to have forfeited his Crown if he persist in this violation whereas I deny your Assumption for I hold it utterly unlawful to resist on any pretence or for any cause whatsoever and therefore it is impossible for the King who as I said but now is an absolute unconditioned Monarch to forfeit his Crown for any such violation of your Original Contracts or Fundamental Laws of Government so that let me tell you that the citations you have brought out of History as also Bracton and Fleta do not prove either the one or the other of these for first as to the clause in King Iohn's Charter concerning resistance and the Barons having a Power thereby to constrain the King to amend his violations of it by making War upon him and that they should not return to their former Allegiance till all was redressed make the most of it it could be no more than a particular concession for himself alone and was not intended to reach his Successours who are not at all mentioned in this Clause and that it was never intended to reach them may further appear because that this clause of resistance is omitted out of all the subsequent great Charters that were granted by Henry the III. or his Son Edward the I. and instead of this it was thought a sufficient security upon the last confirmation of these Charters in the 37 year of King Henry III. for the King Bishops Earls and Barons to agree that the Arch-bishop of Canterbury and all the rest of the Bishops should declare all those that wilfully transgressed or infringed the great Charters in any point excommunicated ipso facto not excepting the King himself according to the form of it which you will find in Mat. Paris and other Writers of this Transaction But for the places you have cited out of Bracton there is none of them reach the point in question for as to the first non est Rex ubi dominatur voluntas non Rex the meaning of it is not that he is no King but that he does not act as a King but a Tyrant when he thus governs by his meer Will and not by Law and to the same effect is the next passage Rex est dum bene regit Tyrannus dum Populum fibi tradi um violenta opprimit dominatione all which we readily grant yet since he is still an absolute Monarch all Writers hold that his governing without or against Law cannot give the subjects a power to resist him much less can it be construed as a renunciation or forfeiture of his imperial Power and therefore tho' it is true that as Bracton and Fleta tell us whilst he thus acts he does not act as God's Lieutenant but the Devils Minister yet does it not follow that we may therefore resist him with carnal Weapons or force since we cannot so resist the Devil himself and tho' he may in this matter of breach of the Laws which he has sworn to observe act as the Devils Minister yet notwithstanding in all other points of Government as in the Punishment of Robbers and other notorious offenders and in the due Administration of Justice between Man and Man he still acts as Gods Lieutenant and it is much better that we should have some civil Government tho' mixt with Tyranny and oppression than that we should fall into all the mischiefs and confusions of a Civil War nay that Anarchy too which has been often produced by it and tho' I confess the last place you
Crown would follow and that thereupon he would cease to be King Pray see those ancient Laws in Lambards Saxon Laws and Sir H. Spelman's Councils which go under the name of King Edward the Confessors tho' they were made as Hoveden shews us in the time of King Edgar his Grand-father where among those Laws of King Edward that were confirmed by K. William I. This is one Rex autem qui est vi arius summi Regis ad hoc est constitutus ut Regnum terrenum populum Domini super omnia sanctam veneretur Ecclesiam ab injuriis defendat mâ—leficos ab ea evellat penitus dispendat quod nisi fecerit nec nomen Regis in eo constabit that is not so much as the Title of King shall remain to him and in the same sense Bracton is to be understood as an explanation of this Law in his second book est enim Corona Regis facere Iustitiam Iudicium pacem tenere sine quibus confistere non potest nec teneri which may be thus rendered that it is the Royal office or dignity for so I construe Corona Regis to do Justice and Judgment and to maintain peace without the observation of which his Crown or Royal Dignity cannot hold nor consist so that this is but an explanation of my sense of that other passage I have already cited out of this Authour non est Rex ubi dominatur voluntos non Lex i. e. He is not a King that is ceases to be a King when his Will and not the Law Governs and he gives the reason for it in another place speaking of the King when he was not then Hereditary for ad hoc electus est Rex constitutus ut faciat Iustitiam universis Therefore if he thus totally deviate from the end of his Creation his Authority ceases and is at an end So that nothing is plainer than that our Ancient Laws have declared the King to have lost the Title and Right of being King in case of notorious Tyranny and breach of this Original Contract and that the ancient Lawyers Bracton and Fleta gave the same interpretation of this Law is also as plain So that what you have said to evade or misinterpret the authority of these Authors as to the points of Non-resistance and Forfeiture of the Regal Power will signifie nothing for as to what you say of that clause of resistance being left out in all subsequent Charters after this of K. Iohn's and therefore that it was no binding Law to his Successours I do not deny the matter of fact that it was so omitted yet that does not prove that the whole Nation ever renounced their right of resistance in the cases mention'd since as they exercised it before that Charter was given so also they continued to do it in the Reigns of his Successours as I have shewn in the History I have given you of this Resistance at our last meeting and therefore constant practice is the best Interpreter of this Fundamental Law as for our evasion of that place of Bracton non est Rex c. I have sufficiently confirmed my sense of it by this Law of K. Edward as also by other passages out of this Author and I will leave it to any man to judge which is the most genuine Interpretation of this place He is not a King that is ceases to be so when his Will and not the Law Rules or that he does not act as a King as you interpret it but you grant such a King is really a Tyrant yet may not be resisted nor can lose his power and why because it is absolute and unconditional this is to take that for granted which we deny for he that hath not the full and sole power of making Laws and imposing Taxes is not absolute Monarch but the King of England has neither of these Ergo c. and if this be so see what Grotius says expresly of such a Prince as high as he is for the nonâ—resistance of Absolute Monarchs Si Rex partem habeat summi Imperii partem alteram populus aut senatus Regi in partem non suam involanti viâ— justa opponi poterit quia tatenus Imperium non habet quod locum habere censeâ— etiam si dictum sit belli potestatem penes Regem sore id enim de Bello externo intelligendum est eam alioqui quisquis imperis summi partem habeat non posset non jus habere eam partem tuendi quod ubi fit potest Rex etiam suam partem belli jure amittere Where you see that the opinion of this learned Author is that a King may not only be resisted in case he invade that part of the Supream Power that does not belong to him but may also lose his own share of the Empire by right of War now further that our ancient Lawyers believed that our King had not the whole power or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in their hands appears by that passage so often cited out of Bracton Rex habet superiores legem per quam factus est Rex curiam Baronum c. which you strive to evade by supposing I know not what moral superiority which the Court might only exercise towards the King by Remonstrance or Peâ—â—â—on in setting forth his deviations against a Law but what if he had refused to hearken to them Why then say you all the remedy was expectet Deum Vltorem now if this was all then every private subject had such a moral superiority for Bracton says of them locus erit supplicationi ut factum corrigat emendet quod sinon fecerit c. then he was to look for God to revenge it but Bracton and Fleta are more express in this point and say that this Curia Baronum were not only Socli but Magistri for say they qui habet Socium habet Magistrum so that surely this Bridle must have been somewhat more than bare Prayers Remonstrances or denial of Money nor is your reason to the contrary cogent since it is only drawn from a simile between Christ the blessed Virgin and the Law of Moses now you know very well that similes are not arguments nor can any argument be drawn from them but indeed it plainly appears by what follows in Bracton that he supposed this power to be somewhat more than meerly moral for he there says that if the People cry to God for want of Justice against the King he will send for a Foreign Nation who shall come and destroy both them viz. the Barons and their King which would have been a vain threat if He might have chosen whether he would be reformed by them or not To conclude if the first King of the Saxon Race took the Crown upon condition to maintain the Fundamental Laws and constitution of the Government and that he was never invested with an absolute despotick power of making Laws and
tho' they themselves remained free men but your Dr. from whom you borrow this is very much out in his application of those passages he cites for neither of those Authors do affirm this of all owners of Lands whatsoever but only there to give us the Original of Soccage Tennants on the Kings Demeasnes as appears by Bracton's Title to that Chapter from whence the Dr. cites this passage which is de diversis conditionibus personarum tenentium in dominicis Domini Regis and the first words of this chapter make it yet plainer beginning thus in Dominico Domini Regis plura sunt genera hominum sunt enim ibi servi sive Nativi ante Conquestum in Conquestu post Conquestum and under these last ranges the persons you mentioned but Fleta is more exact in his Chapter de Sokemannis where he tells us that these men were Tenants of the Kings Ancient Mannors in Demeasne quia hujusmodi cultores Regis dignoscuntur provisa fuit quies nâ— sectas facerent ad Comitatum vel hundredum tamen pro terra quorum congregationem tune socam appellarunt hinc est quod Sokemanni hodie dicuntur esse So that tho' King William might permit his Ancient Tenants to be thus outed of their Estates they held in his own Demeasnes yet does it not therefore follow that he took away the Estates of the Ancient Owners all over England of whatsoever Tenure they were or of whomsoever held But as for your quotation out of Mat. Paris it proves no more than what I readily grant that King William after his return out of Normandy liberally rewarded his Followers with the Estates of the English which might he only of such as fought against him at the Battle of Hastings and as for that little which was left them which he says was put under the Yoak of a perpetual servitude he means no more by this expression than that new Tenure of Knights service which King William imposed upon them as this Author in the very next leaf speaking of the Lands of the Bishopricks and Abbies which were held before free from all secular servitude sub servitute statuit Militari and therefore you seem to contradict your self when contrary to your own Author Sir William Dugdale you deny the truth of any part of the Story because that in Doomesday book the name of Edwin of Sharnborn is not to be found and that William de Albeni is not named amongst the owners of that Mannor which is not material since this William might obtain a share therein after this Survey was made and as for Sharnborn himself his not being there mentioned is no argument that he had no Lands within that Mannor or the other that is mentioned in that Narrative since oftentimes the chief Lords of the Fee are only mentioned in Doomesday book tho' all the Proprietors under them are not particularly named but it is in vain to discourse any longer with you upon the Subject of your Conquerors taking away the Lands of English owners I have given you my opinion and the reasons against it and if you are not of my mind I cannot help it therefore pray go on to your next head and shew me by sufficient Authorities that King William as a Conqueror altered all the Laws and Customs of this Kingdom M. I will not undertake to prove that he altered all the Laws of England and brought in quite new ones yet that he did so in great part and that by his sole Authority I think I can prove by sufficient Testimonies and therefore I shall begin with that of Eadmer a Monk of Canterbury a companion of Archbishop Lanfranc's who tells us in his History that William designing to establish in England those Usages and Laws which his Ancestors and he observed in Normandy made such persons Bishops Abbots and other Principal men through the whole Nation who could not be thought so unworthy as to be guilty of any reluctancy and disobedience to them knowing by whom and to what they were raised all Divine and Humane things he ordered at his pleasure And after the Historian hath recounted in what things he disallowed the Authority of the Pope and Archbishop he concludes thus But what he did in secular matters I forbear to write because it is not my purpose and because also any one may from what hath been delivered guess what he did in seculars From which I think nothing is plainer than that K. William did not only design to alter many things in the Laws and Customs of England but did also actually do it since to that end he made the Bishops Abbots and other Principal men who were to be Judges in all Courts such as he could wholly confide in now that K. William govern'd the Nation as Conqueror and did so live and repute himself so to be and as such brought in and imposed new Laws upon the People of this Nation is as clear as I shall prove from these particulars first The Justiciaries or cheif Justices the Chancellors the Lawyers the Ministerial Officers and under Judges Earls Sheriffs Bailiffs Hundre duties were all Normans from his first coming until above a hundred years after as I can make it out by particular instances and undeniable Reasons were not the Catalogues too long to be here inserted If therefore the Justiciaries Chancellors Earls Sheriffs Lords of Mannors such as heard Causes and gave Judgment were Normans if the Lawyers and Pleaders were also Normans the Pleadings and Judgments in their several Courts musts of necessity have been in that Language and the Law also I mean the Norman Law otherwise they had said and done they knew not what and Judged they knew not how especially when the controversies were to be determined by Military Men as Earls Sheriffs Lords of Mannors c. that understood not the English Tongue or Law or when the cheif Justiciary himself was a Military Man as it often happen'd and understood only the Norman Language and 't is hardly to be believed these Men would give themselves the trouble of learning and understanding the English Law and Language Secondly Tho' we have many Laws and Customs from the Northern People and North parts of Germany from whence both Saxons and Normans came yet after the Conquest the Bulk and Main of our Laws were brought hither from Normandy by the Conqueror from whence we received the Tenures and the manner of holding our Estates in every respect from whence also have we received the Customs incident to those Estates And likewise the Quality of them being most of them feudal and enjoyed under several Military Conditions and services so that of necessary consequence from thence we must receive the Laws also by which these Tenures and the Customs incident to them were regulated and by which every mans right in such Estates was secured according to the Nature of them from Normandy and brought in by the Conqueror we received most if not all
as a wilful Forfeiture or Abdication of the Government and it is from this first going away that I suppose that the Convention dates his Abdication since though it is true after his return to London he took upon him to make an Order in Council to stop the further pulling down and plundering Popish Chappels and Papists Houses yet was it sign'd by very few of the Council and almost only by those who had been in some Office or Place of Trust so that though he was then own'd by them yet since that Order did only serve to shew his Zeal for the Popish Party and was never obey'd or taken notice of by those to whom it was directed and that neither the Prince nor the City of London owned him afterwards since it had already delivered it self up to the Prince and had as well as the Peers invited him to repair to that City I cannot see that so slight an act as this Order of Council should be counted a return to or a re-establishment in the Throne since the King had not only lost the Crown by his wilful departure without calling a Parliament or giving the P. any satisfaction in the great business of the pretended Prince of Wales or the Nation by repairing up those desperate breaches he had made upon our Fundamental Laws but had also lost his Title to the Crown by being Conquer'd by the Prince in open War as I shall prove more at large another time so that if you please better to consider this Vote of the Convention you will find that these words had Abdicated the Government do not only refer to the last clause of his having withdrawn himself out of the Kingdom but to everyone of the foregoing Clauses viz. His having endeavour'd to subvert the Constitution of this Kingdom his breaking the Original Contract and his having violated the Fundamental Laws so that it is plain their notion of Abdication was not fixt only in the Kings Desertion or bare withdrawing himself out of the Kingdom but from his renouncing the Legal Title by which he held the Crown and setting himself up as a Despotick Soveraign and ruling by a mercenary Army and therefore all that you have said about the Kings quitting the Government with a design to return to it again as soon as with safety he might is altogether vain for as he went away because he would not Govern any longer as a King by Law so hath he yet given us no satisfaction that he would not return again to Govern otherwise or rather worse than he did before had he an opportunity so to do that is as the Letter I cited but now phrases iâ— to return and have his ends of us so that this being indeed the case I think I can very well justifie the last clause in this Vote that the Throne was thereby vacant M. Sir you have spoke a considerable time and I doubt more than I can distinctly remember to answer as I should therefore before you proceed to this last Clause of the Vacancy of the Throne the dispute about which I foresee may hold longer than upon any of the former pray give me leave to reply to what you have already said in Justification of all the other parts of this Vote in the first place I will not deny but that if the King had once got the power of making what Mayors Aldermen and other Officers in Corporations at his pleasure it would have gone a great way towards the making the Majority of the Parliament-men nay I likewise grant that by his dispensing Power he might have made what Papists or other person he pleased Sheriffs in any County who would have made such return of Knights of Shires as he should have thought fit yet I suppose this would not have been to the subversion of the Constitution of the Kingdom which I think I have proved to consist originally in the K. alone before any great Councils or Parliaments were instituted And as for those violations of the Fundamental Laws and Liberties of this Kingdom the Declaration instances in I think several of them may very well be justified by antient Presidents and ad judged cases in Law and therefore were so far from being violations that they are no more than the Kings exercising of his due Prerogative and though at our ninth meeting I had not time so well to consider these matters as also because I was not then prepared to defend the Kings Proceedings I shall therefore make bold to examine the most considerable of those Articles which the Late Declaration supposes did so highly tend to subvert the Protestant Religion and the Laws and Liberties of this Kingdom I shall begin with the first viz. His assuming and exercising a power of Dispensing with and Suspending of Laws and the Execution of Laws without consent of Parliament which Power let me tell you by the way was not asserted to Dispence with all Laws or Statutes whatsoever but only such as the Subject has no particular cause of action in and where the damage that may arise by it doth not concerns the publick safety of which the K. is sole Judge and not any particular mans interest I suppose you cannot but have read that learned and short account of the Authorities in Law upon which Judgment was given in Sir Edw. Hales his Case written by Sir Edward Herbert Lord Chief Justice of the Common Pleas in vindication of himself wherein I think he proves beyond any possibility of a just answer that the dispensation granted to Sir Edward Hales to receive a commission and act as a Collonel of Foot was good notwithstanding his not having received the Sacrament and taken the Oaths and Test appointed by the Act of the Statute of the 25 of Charles II. where he first proves from my L. Cock's Authority that it belongs to the Kings Prerogative to Dispence with all Positive or Penal Laws the penalty thereof is only popular and given to the King and to shew you that my Lord Cook who was never counted any great friend to the Kings Prerogative was not single in this opinion he gives you also the authority of the year Book of Henry the VII where it was own'd by all the Judges That the King can Dispence with all things which are only Mala Prohibita and not Mala â—n se though expresly forbid by Act of Parliament for though says the Year Book before the Statute Coining of Money was Lawful but now it is not so yet the King can Dispence with it so that say I if he can dispence with that which is now made Treason by EÃ the III. he may certainly dispence with all other Penal Statutes of a less nature But because I grant there is some difference between Common Penal Laws which barely prohibit the doing of some things under a penalty and this Act in which there is also an express Clause of Non-obstante that all Licences or Dispensations contrary to this
Kings to obtain these publick liberties could ever entertain such a thought concerning them but to let you see that the Law concerning the Oaths and Tests are not only for the publick good of the Common Wealth and that the King is not the sole Judge when they may be dispenced with appears plainly by this that the Law for taking of the Oaths and Test has given every particular person a right to prosecute any one that hath acted contrary to it and the penalty of 500 l. is given wholly to the Prosecutor which shews plainly that the intent of the Law was to make it every mans particular care as well as benefit to see it observed M. Since it grows late I shall not further dispute this point with you of the Kings dispensing power though I had a great deal more to urge in defence of it for notwithstanding all you have said against it it is now counted so inherent a Prerogative and in many cases so necessary for the benefit of the Subject that the Convention it self after a great deal of dispute about it though they had condemn'd the King for assuming and exercising a power of dispensing with and suspending of Laws without consent of Parliament yet in this very Declaration when they assert their Antient Rights and Liberties they only declare That the pretended power of dispensing with Laws or the execution of Laws by Regal authority as it hath been assumed and exercised of late is Illegal which shews that they do not go so high as you who seem to be absolutely against any such thing F. You very much mistake me if you say so for though I maintain that antiently till about the middle of the Reign of King Henry the III. there were no dispensations at all either because they were not thought necessary or else that Penal Laws were not then multiplied to that degree they have been since yet since they have been now so long in use and do I grant often tend not only for the benefit of the King but also of the Subject I do no way 's condemn them provided they are restrain'd within those due limits prescribed by the lite Chief Justice Vaughan in the case above mentioned and when they do not tend to the common mischief and ruine of the Protestant Religion establishâ— by Law and the Rights and Liberties of the Subject nay I grant in times of necessity as in the coming over of the Duke of Monmouth for example the King might Justifie the granting Commissions to Popish Officers and therefore the Parliament did very well to offer the King to prepare an Act to indemnifie them from the penalties they had incurr'd by acting without taking the Test so that when the King utterly refused this reasonable proposition and chose to dissolve the Parliament rather than he would permit them in the least to question on this usurpt power what could be farther expected than that He was resolved to execute it whether the Parliament would or not as we afterwards sound he did But admitting he really had been indued with this Prerogative yet was it still under a trust not to abuse it so notoriously as he did by granting it to every Apostate Person Officer or Judge that required it and I doubt not but if he had govern'd a little longer but we might have found it granted to Bishops likewise as soon as he had thought fit to make them of his own Religion for tho' the King for example has an undoubted prerogative of pardoning Robbers and Highway-men yet if he should so far abuse his Prerogative as to pardon every Robber that was taken I leave it to you to consider whether such a Government could long subsist I shall not apply this case to these dispensations because they say comparisons are odious These things being apparent I think it would be very easie to vindicate that clause in the Declaration concerning the Bishops for if the Kings Declaration was unlawful as certainly it was not only by reason of the Dispensing Power we have been now disputing about but also for one main clause in it which I have yet but lightly touched which is this We do likewise declare it is our Royal Will and Pleasure that from henceforth the execution of all and all manner of Penal Laws in matters Ecclesiastical for not coming to Church or not Receiving the Sacrament or for any other Non-conformity to the Religion establisht or for or by reason of the Exercise of Religion in any manner whatsoever be immediately suspended and the farther execution of the said Penal Laws and every of them is hereby suspended So that by this Clause in the Declaration not only the Laws of our Reformation but all the Laws for the preservation of the Christian Religion in general were suspended and become of no force since every man might not only chuse whether he would come to Church or not but also all Priests and Ministers were hereby indemnified from either Praying or Preaching in the Churches as well as their Parishioners freed from Hearing them so that not only all the Laws of our Reformation were at once suspended but those of Christianity it self by these words or for or by reason of the exercise of Religion in any manner whatsoever nor is it confined to the Christian Religion but all other Religions even Mahometanism it self were thereby permitted But perhaps it may be urged that the execution of the Law is only hereby suspended and not the Law it self which is a meer evasion for what is the external obligation of any Law but it's execution in order to obedience which if it be once taken off there can only then remain the naked internal obligation in foro conscientiae and with how sew this is of any weight you understand so well I need not tell you So that by this Declaration â—he King took upon him to suspend above forty Statutes at once concerning our Religion and if he could do so I desire to know whether he might not the next week have suspended forty more even concerning our Civil Properties likewise and so might have proceeded till he had suspended all the Laws in the Statute Book nor are those Laws suspended for any limited time but during the Kihgs Pleasure and this not only a bare suspension for a time but in effect a down right abrogation of them for what is an abrogation of a Law but the taking away the force of these Statutes without any time limited And if this be not to usurp the Sole Legislative Power I know not what is and if this were once commonly put in practise Parliaments would signifie nothing and the Legislature would be wholly in the King this was so evident that it was granted by one of the Judges at the trial of these Bishops If therefore this were the truth of the case I cannot see wherein the Bishops that presented this Petition to His Majesty acted at all undutifully towards him as you
President and Fellows of Magdalen Colledge and that Prosecution that was lately order'd against all those Bishops and inferior Clergy who had refused to distribute or read the King's Declaration though I confess there was a stop put to this upon re-calling this Commission Immediately before the Princes Arrival So likewise for the other Article of levying Money contrary to Law that was also without any opinion of the Judges at all demaâ—ded about it for the illegal collection of Chimny Money by making Cottages and Ovens pay that were exempted by the Acts concerning it and also the illegal levying of Excise by making Small-Beer pay the Duties of Strong were all of them acted and done by particular directions from the Treasury or by the private abuse of the Farmers of the Excise without any opinion of the Judges and of these Orders his Majesty could not chuse but be the Author or approver at least since 't is very well known he constantly satâ— there when any great Business was to bâ— transacted and the Lord Treasurer or Commissioners of the Treasury would certainly never have presum'd to have issued out their Orders in a Case of so great moment if they had not been very well satisfied that it was his Majesty's express Will and Pleasure to have iâ— so And I my self have now by me a Copy of the then Lord Treasurers Directions to the Officers appointed for the levying of Chimney-money commanding them to levy it upon all Cottages and Ovens whatsoever which was done accordingly with the utmost rigour which though it was a very great oppression yet since it chiefly concern'd the poor and ordinary sort of people who had not purses to go to law with the King or else such Gentlemen and others who though they were forced to pay for their poor Tenants yet did they not think it worth their while to bring iâ— before the Barons of the Exchequer where as things then went they could not expect to find much Justice I shall not insist upon the King 's taking the additional Customs contrary to the Act of Parliament by which they were granted to the late King Charles only for life and though in his last Sickness there was a Contract for the new farming of them by vertue of which I grant the King might have justified the taking of them till the end of the Farm yet since that Contract never passed the Seals during the King's life-time it was certainly against Law for the King to take them before they were re-granted by Act of Parliament I say I shall not insist upon this since the Parliament were so easy as to pass it by without declaring it to have been illegal only it sufficiently shows that from the very beginning of the King's Reign he was resolv'd to govern arbitrarily and to levy Money upon the Subject whether the Law gave him any Authority to do it or not But as to what you say concerning the Judges being wholly in fault for all the unjust and illegal Proceedings exercis'd in their Courts and that the King was wholly faultless I should be of your mind had I not seen that all those Judges who would not agree to the dispensing power and other illegal Judgments I could name were turn'd out and others either Papists or of less consciences than Papists were put in their places which were not conferr'd for any longer time than durante bene placito and therefore no wonder if such men were absolute slaves to the King's will and pleasure M. I had much more to say in defence of the King 's raising and keeping up a standing Army and his disarming Protestants in and after the Duke of Monmouth's Rebellion which are laid to his charge as endeavours to destroy the Rights and Liberties of this Kingdom But since it grows late I shall only now take notice of something which I forgot to insist upon concerning your Notion of the King 's obdicating the Crown by a wilful breach of the Laws which is quite different from the sense in which this Word is taken in Roman Authors as also in our Civil-Laws For when Cicero uses the Expression Itaque tutela me abdicare togito Brison tells us his meaning was se nolle esse tutorem But Pompenius in his Book De orig Iuris gives us the true sense of this Phrase Abdicare se Magistratu est ante tempuâ— Magistratum deponere which plainly shows the Romans had no notion of a Tacit or imply'd abdication of a charge or Majestracy without a man's express consent and therefore if the Kings bare desertion of the Kingdom was not an Abdication of the Throne as you your self are forced to grant I cannot imagine how the King's violation of the Laws or endeavouring to subvert the Government both which you lay to his charge can properly be call'd an Abdication of it so that indeed the King hath not abdicated the Government but your Convention hath abdicated him And tho we often read in our Civil-law That a Father might abdicare filium yet I never read or can you show me any Example that a Son might abdicate a Father or Subjects their Prince F. You discourse upon a wrong ground for I never affirmed That Subjects had any authority to abdicate or depose their Prince nor hath the Convention assum'd any such power to themselves what they have done in this affair hath not been authoritative or as taking â—pon them to call the King to an account for his actions or to depose him for his misgovernment but only declarative to pronounce and declare as the Representatives of the whole Nation that by endeavouring to extirpate the Protestant Religion and to subvert the Fundamental Laws and Liberties of the Kingdom he had wilfully I do not say willingly Abdicated the Government that is renounced to Govern this Kingdom any longer as a lawful King which I take to be a tacit or imply'd Abdication of it as I have already proved and to shew you farther that even Tully himself allows in our sense of an imply'd Abdication in his third Philippicks when he says thus concerning Mark Anthony that for his offering a Crown to Caesar Eoâ—die-non modo Consulatu sed etiam libertate se abâ—itavit c. where you see Mark Anthony is said to have Abdioned the Consulshâ—p without any express Renunciation of it for Caesar might have continued him in it after he had been declar'd Emperor M. I grant your Authority to be good yet even in this sense this Abdication of the Consulship could only take its effect from Anthony's owâ— Will for offering a Crown to Caesar if he did not expresly yet he effectually renounced his Consulship for had Caesar accepted in he could no longer have been the Consul of a Popular State but must thenceforth have acted by authority from Caesar or not at all but then this would not have agreed with your Noâ—on of a Forfeiture which always supposes a crime and a depriving the party
Crown yet the pretended hereditary right of blood was the main ground of his Establishment But as for King Henry the VII th tho' he could claim the Crown by no true Right of Inheritance yet would he never own it to be an Election by Parliament for as soon as King Richard was slain in the Battle of Bosworth the Lord Stanley put his Crown upon Henry's head who immediately stiling himself King as well by right of Conquest as by being sole Heir Male of the House of Lancaster He as such caused himself to be Crowned King and though he afterwards call'd a Parliament in which he procured his Title to be recognised yet as my Lord Bacon very well observes he was afraid to take the Crown by his only true Title in right of the Lady Elizabeth his Queen for fear he should only be King by Courtesie and must upon the Queens death have resign'd it again and should he take it by Election he knew there was a very great difference between a King that holdeth his Crown by a Civil Act of the Estates and one mind that that holdeth it originally by the Law of Nature and descent of Blood and therefore upon these Considerations he resolved to rest upon the Title of the House of Lancaster as his main Right and thereupon he caus'd an Act of Parliament to pass wherein his Title was acknowledged as my Lord Bacon there tells us not by way of Declaration or Recognition of Right as on the other side he avoided to have it by a new Law of Ordinance but chose rather a kind of a middle way by way of establishment and that under covert and indifferent words that the inheritance of the Crown should rest remain and abide in the King c. which words might be equally applied that the Crown should continue to him but whether as having former right to it which was doubtful or having it then in fact or possession which no Man denied was left fair to interpretation either way I speak not this to justifie all his actions but to let you see that he chiefly insisted upon his right of inheritance and absolutely disown'd any Title by Election from the People F. I cannot deny the matter of fact concerning King Richard the III ds Deposing his Nephew and Usurping the Crown to have been very wicked and contrary to the received Law of England concerning the Succession at that time and likewise that by Bastardizing his Brother the late King's Issue without due course of Law and by attainting the blood of his other Brother the Duke of Clarence he would have made the World believe that he was Lawful Heir by right of blood yet you will not deny but that for all this he was so sensible of the weakness of his Title that though it is true his right by blood is declar'd in the first place in that Act of Recognition yet it is plain he would not rely upon that alone and therefore you see the Parliament there also insists upon his right by Election and Coronation which they would never have done had it not been that they looked upon it for good Law that whoever was Crowned King and call'd a Parliament and had his Title therein Recognized and Confirmed was thenceforth true and lawful King to all intents and purposes therefore though you have omitted it I shall proceed to shew you what this Statute also farther declares For after they had declar'd the said King's Title as grounded upon the Antient Laws and Laudable Customs of the Realm according to the Judgement of all such Persons as were learned in them they proceed thus Yet nevertheless for as much as it is consider'd that the most part of the People is not sufficiently learned in the aforesaid Laws and Customs whereby truth and right in his behalf of likelihood may be had and not clearly known to all People and thereupon put in doubt and question and over this how that the Court of Parliament is of such Authority that a Declaration made by the three Estates and by the Authority of the same maketh before all other things most faithful and certain quieting of Mens Minds and removeth the occasion of doubts and seditious Language therefore they also declare that he was the undoubted King Whence 't is evident that the reason of this Law supposeth that the Subjects in general are not capable of understanding the Laws and Customs upon which the Titles of our Kings depend and that the best satisfaction that the generality of the People can possibly have in those high Matters was to rest on the judgment and determination of the Kingdom declared by Act and Authority of Parliament and therein to acquiesce for the preventing Sedition so much as in Language therefore what I said before in the Case of King Stephen is also true in this quod fieri non debuit factum valet and all the Acts made in the Reign of this King Richard though â— horrid Usurper were never repeal'd but stand good at this day As to what you say concerning the manner of King Henry the VII ths coming to the Crown is also true but as for his Title to it by right of Succession that was certainly false for his Mother the Countess of Richmond was then alive by whom he Claim'd the Crown and liv'd divers years after he was King so that though I grant that it is recited in the Parliament Roll that he claim'd the Crown in Parliament tam per justum titulum haereditantiae quam per verum Dei judicium in tribuendo sibi victoriam de Inimico suo in campo tho' the latter of these Titles may be true Viz. the Conquest of King Richard especially when once he was confirm'd and recognized in Parliament yet that the former could not be so is plain from what I have now said so that it is certain that King Henry the VII ths best Title was neither by Inheritance nor Marriage with the Princess Elizabeth but by the Act of Parliament as appears by the unprinted Statute it self still upon the Roll which since you did not repeat I will the Title is Titulus Regis and it runs in these words To the Pleasure of Almighty God the Wealth Prosperity and Surety of this Realm of England to the singular comfort of all the Kings Subjects of the same and in avoiding of all ambiguities and questions be it Ordained Established and Enacted by Authority of this present Parliament that the inheritance of the Crowns of the Realms of England and of France with all the preeminence and dignity Royal to the same pertaining and all other Seignouries to the King belonging beyond the Sea with th' Appurtenances thereto in any wise due or pertaining be rest remain and abide in the Most Royal Person of our now Sovereign Lord King Henry the VII th and in the Heirs of his Body lawfully coming perpetually with the grace of God so to endure and in none
the Prince of Wales to have been either dead or justly laid aside now make it out to me how you can justifie the placing the Prince and Princess of Orange in the Throne when the Crown is really her right after the Prince of Wales and not her Husbands as also the putting the Government solely into his hands since this can no ways agree with the Act of Recognition to King Iames the First which you your self cannot deny but ought to be observed when it may be done without any apparent hazard or prejudice to the Protestant Religion and the Constitution of our Government which I think might have been as well if not better secured by letting it have gone in the right Line that by placing the Crown upon the Head of a Prince who though it is true is of the Blood-Royal by his Mother yet being a Foreigner is a meer Stranger to our Government and Laws and has been bred up in Calvinistical Principles and upon that score is not like to have any good intentions towards the Government and Ceremonies of the Church of England as appears by his late agreeing to abolish Episcopacy in Scotland upon his accepting that Crown from the Presbyterian Convention F. If these be all the objections you have to make against placing King William and Queen Mary in the Throne I hope they will not be of any great moment to your self or any other considerate man for if that upon the Abdication of King Iames and the impossibity of determining your Prince of Wales's Title if it be one a Regency was impracticable and unsafe for the Nation at this conjuncture of time when we want a King to hold a Parliament as well to raise Money to defend us against the Power of France as also to make new Laws for the ease and reformation of the Kingdom all which a Regents acting without Royal Authority could never do by the constitution of this Kingdom so that if there was now a necessity of placing some body in the Throne for the Common Good and Safety of the whole Common-Wealth I think you your self cannot but acknowledge that the Princess of Orange had an Hereditary right to the Crown and if her Highness had the Prince her Husband also ought to Govern the Kingdom in her Right during her life and those who deny King Henry the VIIth to be Lawful King before his Marriage with the Princess Elizabeth will yet grant he was so in her Right after his Marriage and this has not been only the Custom in England but also in other Kingdoms of Europe as I can give you several Instances For upon this ground it was that Ferdinand King of Arragon by Marrying with Isabella Queen of Castile Governed that Kingdom during his Life so also Anthony Duke of Bourbon marrying with Iane Queen of Navarre did in her Right administer the Government of that part of it which was left unconquer'd by the Spaniards and here at home Philip Prince of Spain by his Marriage with Queen Mary had certainly in her Right Govern'd this Kingdom and had enjoyed something more than the bare Title of King had he not by the Articles of Marriage confirm'd by Act of Parliament been expresly debar'd from it M. Admit all this to be true yet this was only the enjoyment of a bare Matrimonial Crown and held no longer than during the Lives or Marriage with those Queens you mention But pray tell me how can the Convention according to the antient constitution of this Kingdom justifie the settlement of the Crown not only on King William during the Queens Life But for his own Life also to the prejudice not only of his own Issue if ever he have any by the Princess but also of the Princess of Denmark and her Heirs F. I doubt not but to shew you that this may be easily justified by the constitution of the Kingdom and former Precedents of what hath been done in the like cases First as to the Constitution I have already proved that upon the deposition of a King which is all one with a Forfeiture of the Crown the Great Council or Parliament hath taken upon them to Elect or Admit either the next Heir by Blood or some Prince tho' more remote of the Royal Family to the Crown thus King Henry the IVth upon the Deposition or Resignation of King Richard the Ild. was placed in the Throne by the Arch-Bishop of Canterbury after the two Houses had Voted and consented he should Reign over them though I grant that by right of Blood Edmund Earl of March ought to have succeeded to it but he being then a Child was passed by unmention'd Duke Henry being then powerful and having deliver'd the Kingdom from the Tyranny and Evil Government of Richard the â—Id I shall pass by Richard the IIId because I own his Government to have begun by Unsurpation and to have been established by the Murther of his Nephews But as for Henry the VIIth I have already shew'd you that the Parliament before his Marriage with the Princess Elizabeth setled the Crown upon him and the Heirs of his Body by vertue of which he held it all his Reign whereas there is no such thing done in the present case of King William since he hath only the Crown setled upon him during his own Life with the remainder after his decease without Issue by the Queen to her and not his Right Heirs and as for such Children as he may have by her it is agreeable to reason that he should hold the Crown by that which we call the Courtesie of England during his Life and not from a King to become a Subject to his own Children in case he should desire to live here after her Majesties decease which I hope God will prevent M. I confess you have drest up a pretty plausible Title for King William but yet all that you have said amounts to no more than this that because other Kings have been Usurpers he may be so too for as to all the instances you have brought they have been only from depositions or manifest usurpations both which our Laws have condemned as absolutely unlawful as I have shew'd you hath been declar'd by two Acts of Parliament against the Title of Henry the IVth and his Descendents but since you will not insist upon the right of Richard the IIId I pass to that Act of Henry the VIIth which as I told you before so I must repeat it again that it was done upon his supposed Right by Blood as Heir to the House of Lancaster and upon that pretence he claimed the Crown as his Right in his Speech to the first Parliament he called besides the Princess Elizabeth the Queen de Iure made no claim to the Crown and so did tacitly resign it which seemed to make him de Iure as well as de Facto King and if it were done otherwise I look upon that whole Act as void in it self because made by him
of Succession yet even that will not hold in respect of the present settlement thereof by the Convention upon the Prince and Princess of Orange for their two Lives since you cannot but know that no Parliament yet was ever so presumptuous as to take upon them to settle or limit the Succession of the Crown without the consent of the King or Queen then in being Whereas the present Settlement was first made by the Convention upon the making of the Prince and Princess King and Queen tho' I grant it was afterwards confirmed by another pretended Act whereby all Princes that are or shall be Roman Catholicks when the Crown shall descend unto them are debarred from their right of Succession This though I grant to be made after the Prince and Princess of Orange took upon them the Title of King and Queen yet since that Statute was not made in a Parliament call'd by the King's Writs but in a Convention who owe their Meeting wholly to the Prince of Orange's Letters it is not only void in respect of the subject matter but also in the manner of making it and therefore I cannot believe that the Throne was ever vacant And I have as little reason to be satisfied that the Prince and Princess could be lawfully placed therein or that all Roman Catholick Princes can ever be barred from their right of Succession when ever it may fall to them F. If this be all you have farther to object I think I can easily answer it for in the first place I have already told you that the Convention did not take upon them to create or make any new form of Succession to the Crown but only to declare that the Prince and Princess of Orange are Rightful and Lawful King and Queen of England for upon supposition of King Iames's Abdication of the Crown and that the Prince of Wales cannot be taken for the lawful Son of the King 'till he can be brought over and that his Legitimacy be duly proved it must 'till then certainly be their right and no others and as for King William's holding the Crown during his own Life I have already told you it was not done without the tacit consent of the Princess of Denmark her self though I doubt not but it may also very well be justified upon those suppositions of the forfeiture of the Crown by King Iames and the Conquest the Prince of Orange made over him which are sufficient in themselves to barr any legal claim of those that either are or may pretend to be right Heirs But as for the other part of your Objection whereby you would prove that Popish Princes cannot be excluded from the Succession because the Act was made not in a Parliament but a Convention this wholly proceeds from your want of Consideration that at the first institution of the Government and long after whilst the Kingdom continued Elective there was no difference between a Great Council or Convention and a Parliament for pray call to mind the four first Great Councils after your Conquest reckoning that for one wherein King William I. was Elected or declared King whether it was possible for those Councils to be summon'd in the Kings Name before any body had taken upon themselves the Title of King the like I may say in the case of King Iohn and Henry the III d and that this continued after the Succession was setled in the next Heir by Blood appears by that Great Council that was summon'd after the death of Henry the Third which Recognized or Ordain'd his Son Prince Edward to be his Successor So likewise the Parliament that deposed King Edward the Second sate both before and after his deposition and resignation and elected his Son Edward the Third to be King and appointed his Reign to begin from the time of their Election and not of his Fathers resignation of the Crown so also upon the deposition of King Richard the Second the same Parliament that deposed him placed Henry the Fourth in the Throne and though the Writs of Summons were in the name of King Richard and they were never re-summon'd or new Elected in the Reign of Henry the Fourth yet did they still continue to sit and made divers new Acts and repealed several old ones all which hold good to this day And that the Parliament are the only proper Judges of the right of Succession even without the King you your self must grant or else how could they declare in the Thirty Ninth of Henry the VI th that the claim which Richard Duke of York made to the Crown could no way be defeated and certainly if that unfortunate Prince King Henry the Sixth had had sufficient Power or Interest in that Parliament they might and would have adjudged the Duke of York's Claim to have been groundless and contrary to Law and then I believe it would scarce have ever been heard of again But to make it out beyond exception that a Convention may become a Lawful Parliament though never call'd by the King's Writs when the King's Authority and Presence come once to be added to and joined with it appears by the first Parliament of King Charles the Second which though Summon'd in the Name of the Keepers of the Liberties of England yet nevertheless continued to Sit and make several Acts which hold good to this day and I doubt not but they might have made the like limitations of the Crown in respect of Roman-Catholick Princes as the Convention have now done and that it would have held good at this day since it is so much for the security of our Religion Liberties and Properties that it should be so since we have found by a dear bought experience in the Reigns of the four last Kings of the Scotch Line that still as they began to favour the Popish Religion and Interest in this Kingdom so did the Protestant and true English Interest in respect of our Religion Liberties and Properties still decline 'till at last they were like to be totally ruin'd and extirpated for that restless and dangerous Faction very well know that there is no means possible for them to re-establish their Superstition among us by due and legal Methods but only by introducing Arbitrary Power taking away Parliaments or else making them wholly to depend upon the King's Will as we see was labour'd and almost effected in the Reigns of the two last Kings and therefore I cannot but believe that the present Parliament has not only acted wisely but also legally to enact that for the future no Prince who is actually a Roman Catholick shall succeed to the Crown though he be next heir by blood M. I must still tell you I am as little satisfied with your suppositions of the forfeiture of the Crown by King Iames and the Conquest to the Prince of Orange as I am with your instances out of History concerning the power of the Great Councils meeting and chusing a King by their own inherent
Authority since besides that it was done by Usurpation in those rough and unsetled times yet I believe if the antient Writs of Summons were now in being you would find that they were called by those Usurpers though not by the Title of Kings but I defie you to show me since the Reign of Edward the First any Parliament ever call'd without the King's Writs of Summons and though upon the deposition of Edward and Richard the Second the Parliaments you mention might continue to sit and transact publick business yet was it during a plain Usurpation upon those Princes whom you your self must grant to have been unlawfully deposed and therefore we find upon the Parliament Roll of the 21 st of Richard the Second that an Act of the first of Edward the Third confirming the Judgment given upon the two Spencers was not only repeal'd in Parliament but declared to be unlawful because Edward the Second was living and true King being imprison'd by his Subjects at the time of that very Parliament of 1 Edward III. But as for your last instance of a Conventions declaring it self a Parliament in the Reign of King Charles the Second there is a great deal of difference between them and the present Convention since they did not take upon them to declare or make a King as this Convention has done but only to recognize him to be their Lawful Sovereign which as I have already told you being that which was their duty to do they might very well justifie though they were not Summon'd by the King's Writs but however all their Acts were looked upon as made without legal Authority and therefore were confirmed in the first legal Parliament of King Charles's Reign But as for the Authority of the Statute of the 13 th of Eliz. whereby you would prove that the Parliament has at this day power to alter or limit the Succession of the Crown besides that such an Act being against the fundamental rules of Succession was void in it self yet if you please to look upon the Act in Rastal's Statutes you will there find it was only made to serve a present turn and to keep the Queen of Scots and her Party from enterprizing any thing against Queen Elizabeth and therefore it is there only declar'd to be Treason during the Queens life for any Persons to maintain that the Queen could not riot with the Authority of the Parliament limit the Succession of the Crown and as for the last Clause that makes it forfeiture of Goods and Chattels to maintain the contrary after her decease this was made to strengthen and confirm the former part of the Statute which was a provision and security against such pretences and Practices as had been lately made against her by the Papists on the behalf of the Queen of Scots Title and this Clause could not take effect after her death but was added to preserve Queen Elizabeth's Memory from being defamed after her decease or being slanderously charged with the heinous Crime of Usurping the Crown which must have been the inevitable consequence of affirming that she and her Parliament could not limit the Succession For to confess the truth I think Queen Elizabeths best Title was by Act of Parliament since her Legitimacy might be justly question'd by reason that her Mothers Marriage was declar'd unlawful by the 28 th of Henry the VIII th and she was as good as declar'd illegitimate by her Father in that very Act that setled the Crown upon her but that this Statute of the 13 th of Queen Elizabeth is now looked upon as expired appears in Palton's and all other late Collections of the Statutes since her time wherein the Title of the Statute is barely mention'd with EXP. immediately following it to shew it is looked upon as expired So that you are mistaken to affirm that the Convention has done nothing in the late limitation of the Crown but what may be justified from that Statute therefore if it be not Law at this day I think they had no Authority to alter the Succession of the Crown from the right Line let them be of what Religion they would F. I see you do all you can to evade the force of my Authorities from History and direct matter of Fact and therefore as to what you say that those were rough and unsetled and therefore no Precedents to be drawn from thence this is to beg the Question for what could be the Law concerning the Succession of the Crown for the first hundred and fifty years after the Conquest but the constant usage of the Great Council of the Nation as low as the Reign of Henry the Third and it is a bold assertion to accuse the whole Nation of Perjury and Rebellion against their Lawful Kings during all those Successions I have now instanced in nor have you any thing to say against those Parliaments that met in the 1 st of King Edward III. and Charles the II. but that their Meeting was Lawful because it was only to recognize those Kings and not to make them which is indeed to beg the Question since you cannot deny but those Parliaments are held for good notwithstanding they were not call'd by the King's Writs But as for making a King the present Parliament have not taken upon them to do it since they do not in the Act for the Succession Elect King William and Queen Mary to be our Lawful King and Queen but only declare or recognize them to be so upon supposition that the Prince of Wales is either an Impostor or else his Legitimacy impossible to be tried and determined by them Nor are your Objections material against the Authority of those Acts of Parliament which were made in the 1 st of King Henry the IV th and Charles the II d. which were never Summon'd by those Kings Writs For as to the first of those Instances most of those Acts of Henry the IV th stand good at this day without ever being confirm'd by any subsequent Parliaments And tho' I grant that the publick Acts made in the first Year of King Charles the II d. were confirm'd in the next Parliament of that King yet this does not prove that they would have been void without it since divers private Acts passed in that Parliament which were never confirm'd in any other and yet are held for good As particularly an Act of that Parliament for making the Church of St. Paul's Covent-Garden Parochial And this Act though never confirm'd was yet adjudged to be in force by the Lord Chief Justice Hales and the rest of the Justices of the Court of King's Bench in a Case concerning Rate Tythes between the Minister and some of the Parishioners of the said Parish Nor is what you have now said to prove the Statute of the 13 th of Queen Elizabeth whereby the Crown is declared capable of being limitted by Act of Parliament to be now expired since it is plain by the purport of the
in Law since we find by the whole Course both of Law and History that the Statutes made by Kings de facto are as truly and as much Laws as those made by your Kings de jure and Attainders for Treason committed against them have been so far from being declar'd void that they could not be revers'd by any other means than by particular Acts of Parliament made for that purpose as I have already shewn you from divers instances both from History and Records Nor is your exception against the present Parliaments not being call'd by the Kings Writ of any force since I have already prov'd at our last Meeting from the example of the Great Council that assembled to recognize and ordain Edward the first to be King when he was in the Holy-Land as also by the Parliaments of Edward and Richard the Second by which they were deposed and Edward the Third and Henry the Fourth declar'd to be their Successors That those Parliaments could not be summon'd by those Princes whom they so recogniz'd and therefore though they were call'd by the Writs of the former Kings yet their Authority determin'd as to be the Parliament of that King that call'd them upon his ceasing to be King and therefore must owe their sitting longer wholly to the Authority of him they had already declared King whose Presence and Authority was then looked upon as sufficient to give them power to sit and make Laws with the succeeding King though they were never summon'd by him To these Parliaments I may add that of the first of King Charles the Second which called home the King and after his return made several Statutes both publick and private which stand good to this day so that to conclude you have no reason either from Law or History to maintain that there can be no vacancy of the Throne or that none can be declar'd King or Queen but in a Parliament summon'd by the Writs of that Prince whose Title they are to recognize M. I shall not deny the matters of Fact to have been as you lay them as to the Great Councils or Parliaments you mention but in answer to this you may remember that as for those Parliaments call'd in the name of Edward or Richard the Second there is no Procedent to be drawn from them because they serv'd only to depose their Lawful Kings and to set up those who had no right at least as long as they liv'd and you very well know that any coersive power in the two Houses of Parliament over the King is expresly renounc'd and declar'd against in the Parliament of the thirteenth of K. Charles the Second as I have already shewn you but as for the Convention which was call'd in the first year of that King I have also given you my judgement of it that though they might lawfully meet to vote the return of their Lawful Sovereign and to recognize his Title yet were they not for all that a lawful Parliament as to the raising of Moneys or making of Laws and therefore what ever they did to both these they were fain to be confirmed by the Parliament of the 13th I now mention'd But indeed I cannot but admire as this mungrel hodge podge course of Succession which you now suppose to take place in England for you cannot deny but the Crown is hereditary and has been always claim'd as such for near 500 years and yet for all that when ever an Usurper and a Parliament shall agree together he to take the Crown by force and they to recognize his Title as soon as he pleases to call them he must then be looked upon as a lawful King and the just and rightful Title of the true King or lawful Heir of the Crown shall be so far destroy'd as that Allegiance must be due to this Usurper though perhaps he obtain'd the Crown by the most horrid vilanies in the World as the deposing and murthering of his Lawful Sovereign as Henry the IVth did and which would also have been the case of Oliver Cromwell had he ever taken upon him the Title of King so that is to set on foot at once two contrary legal rights a legal right and title to the Crown by descent of blood without a right to exercise the Authority belonging to a King and a legal right to wear the Crown and exercise the authority belonging to it without any antecedent legal right to the Crown it self which would indeed render the legal authority in England to be like the right that men have to those Creatures that are ferae naturae which belong to him who can get them into his power for as to the consent or recognition of Parliament I look upon that as a meer â—auble since your self cannot shew me any Usurper since the Conquest though never so wicked and notorious who ever fail'd to have his Title so recognized and confirmed by Parliament as you your self cannot deny which methinks is a high derogation from the Dignity of a true Hereditary Monarchy such as ours either is or at least ought to be F. I shall reply but this once upon this head since I see there can be nothing new said upon it and therefore you your self are forâ—ed to repeat what you have already â—urged at our last Meeting only you strive to support it by fresh Authorities therefore as to the Parliaments which deposed King Edward and Richard the Second I cannot blame you for denying them to be lawful precedents because they make directly against your opinion but you say nothing to that of the first Great Council or Parliament of Edward the First which not only ordain'd he should be King but also appointed all the Great Officers of the Kingdom which were to govern it in his absence but you may deny the authority of those Parliaments of the first of Edward the Third and first of Henry the Fourth as much as you please in a Chamber but if you should do the like at Westminster-Hall against any Act of Parliament because made whilst Edward or Richard the Second were living you would soon be over-rul'd and told that those Laws had still continued in force and unrepeal'd and it did not belong to private men to question those Acts that have been hitherto receiv'd for Law But as for what you have said against the authority of the Acts of that Parliament that brought in the King I have already prov'd that they were only confirm'd 〈…〉 cantela and that they had been good without it appears by this that all their private Acts though never confirm'd in the following Parliament are still in force But if the solemn Recognition of a Kings Title by Parliament be such a bauble and so easily obtain'd as you suppose I may say the same of that Act which recognized King Iames the firsts Title that it was done meerly out of flattery upon his Accession to the Crown nor can you reply that they might do this because he
Land though in words you deny it for every hereditary right is either a continued Usurpation by force which can give no right at all or a right by Law which is by the consent of the People to entail the Crown on such a Family which certainly is to make a King by Law that is by the consent of the People But if you will suppose that it was the Authority of the first King alone who thus intail'd the Crown upon himself and his right Heirs I desire you would shew me how the Crown could be so intail'd without the consent of the People so as that his Successor may not alter it and give it by his last Will or Testament to which of his Sons or Daughters he pleases since Sir Robert Filmer himself acknowledges that a testamentary heir to a Crown in an absolute Monarchy is as much by Divine right as if he had come in by Succession as appears by the instances he gives in Seth who could have no right to succeed his Father Adam in the Government of Mankind while Cain his Elder Brother was alive by the Will of Adam his Father the like I may say of Solomon who by his Fathers Crowning him King in his life time and thereby making him his Successor gave him a right to Rule over Adonâ—jah his Elder Brother so that I may very well ask you if the present Law of the Land did not proceed from the free consent of the People testified by long Custom or express Declaration of the People by their Representatives in Parliament I desire to know why the King of England cannot as well settle the Crown by his last Will upon which of the Blood-Royal he pleases as that it should be Lawful for the English Saxon Kings to exercise this Prerogative as Dr. Brady supposes they did before the Conquest without the consent of the Great Council of the Nation So that I think I may much better ask you what that Law was and who made it which you suppose to make Kings prior to and independent from the consent of the People since if there be any such Law it is either as yet unknown to Mankind or else all those who are once possess'd of Kingdoms have an equal Title to them by Divine Right But indeed it is only some Divines who were more scrupulous than knowing in Politicks who first started this question whereas indeed there is no such great Mystery in it for that Law by which the first King of England for Example was Elected was not in being before the King was made nor yet was the King in being before that but when the first King was made so by the consent and election of the People the King and the Law that made him so began both together that is the People by chusing of him to Govern upon certain Conditions and he by accepting the Crown upon those Conditions was that Law by which he then took the Crown and by which it has been held ever since that time So that if the Crown ought to be enjoy'd according to a legal right and that there must be some Judges appointed of this right when ever any Disputes may happen about it either every pretender to the Crown must judge for himself and then he will be both Judge and Party in his own Cause or else it must be left to the conscience of every individual Subject in England to side part with what Party he pleases that may thus pretend to it and so there may be a dozen Competitors for the Crown at once and all with equal right as for ought that any body knows or lastly this right must be left to the determination of some Civil Judges to judge whose Right it is and who can these Judges be who shall thus judge what are the antient Laws of Succession and Rules of Allegiance but the Great Council of the Nation therefore if they have already declar'd and recogniz'd King William and Queen Mary to be lawful King and Queen of this Realm I think every Subject of the same may very well justifie their Swearing Allegiance to them not only by vertue of this Statute of the 11th of Henry the VIIth which requires Allegiance to be paid to the King in being but also from the equity and reasonableness of the thing it self to hinder the Nation from falling together by the ears and to entail Civil Wars from Generation to Generation if the Subjects were oblig'd by their former Oath of Allegiance to the King de jure to endeavour to restore him by force of Arms and therefore the Preamble to this Statute very well and truly sets forth that it is not reasonable but against all Law Reason and good Conscience that the Subjects going with their Sovereign Lord to the Wars any thing should lose or forfeit for doing this their true duty and service of Allegiance to the King for the time being M. But pray tell me is not this very strange and unjust and that by your own showing that a Prince should have a legal Right and Title to the Crown without a right to exercise the Authority belonging thereunto for they must now pay Allegiance to the King in being let him be never so great an Usurper so that indeed the preamble to this Act is expresly false since I think it is very unreasonable nay against all Law Reason and good Conscience to Swear Allegiance to an Usurper since by that means not only all good Subjects would be put out of a capacity of endeavouring to restore the King de jure to his Throne though never so unjustly depos'd or driven out as in duty they ought but also those who were instrumental in this Rebellion and in depriving the Lawful Prince of his just Rights may not themselves endeavour to restore him which would put them out of all possibility of making amends for the wrong they have done him and of making restitution by again restoring him to his Throne F. If this be all the difficulty that is left upon your mind I doubt not but to prove to you not only from the Law of the Land that Allegiance may be lawfully Sworn in this Case but also that it is for the common happiness and peace of the Nation which is the main end of all Government that it should be so and therefore I shall first freely grant that though it is Rebellion unjustly to deprive a King and his right Heirs of the Crown and that those who had a hand in it are bound in conscience to endeavour to restore him or them to their just rights again yet this must be done by no other methods but what are consistent with the publick peace and safety of the Common wealth for if a King de facto has once got possession of the Throne and has been Crown'd and Recogniz'd by Parliament from what has been already proved I think it is very plain that they ought to obey him not only from the
that administred it is alter'd so that it would conduce nothing to King Iames's Affairs if all the Gentry and Lawyers of the Kingdom should go about to refuse this Oath which as I have already proved they are also obliged to take by the Law of the Land and also that greater Law of prosecuting the publick good of the Nation to the utmost of their power M. Well since I cannot expect so great firmness of mind and courage from your Country Gentlemen and especially the Lawyers who have been always but too forward to comply with all Governments how unlawful soever and since you who think that you may lawfully take this Oath not only by the Law of the Land which you have interpreted to countenance your Opinion but also from a higher and nobler Law viz. that of the common good of the Nation or Civil Society which I grant must be maintain'd during the Kings absence since you say there is a necessity for it though I am not fully satisfied of the lawfulness of it so far as to take it my self yet will I not absolutely condemn you or any other sincerely and honest men who do only take it out of a good intent to maintain some Civil Government amongst us and also to keeping out the Phanaticks from having any share in it so I hope the Government will excuse me if my Conscience will not give me leave to take it my self since there are enough of you who are free to do it without us so that if I cannot keep that small Imployment I have without taking this new Oath I will freely give it up since as long as I am not satisfied in my Conscience of the lawfulness of it and whatsoever is not of Faith is Sin as the Apostle has truly defin'd it F. I confess you speak very honestly and charitably in this matter and I could wish all those of your Opinion had the like moderation and that they would not condemn of wilful Perjury so many good Bishops Noble-Men Gentlemen and others both of the Clergy and Laity who have been perswaded that they might take this Oath with a safe Conscience and therefore pray however we differ in Opinion about these matters let us maintain the same Friendship for each other as we had before M. Sir I readily embrace so fair and kind an offer and as I hope you will do me what kind offices you can whilst you continue to act under this Government so I will promise to do the same for you when ever the King shall come to be restor'd to his Throne again F. I willingly and thankfully accept the proposal of the continuance of your Friendship since I look upon your dissenting from me not to proceed from any wilfulness or obstinacy but out of a tender Conscience and too great and high a sence of your duty which I must still confess are errours on the right hand and therefore now taking my leave of you shall only desire you to believe me your real Friend and humble Servant M. I hope you think I have the same esteem for you and therefore must always own my self yours FINIS A General Alphabetical INDEX OF THE MATTERS and QUESTIONS Debated in the Thirteen Dialogues OF Bibliotheca Politica LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford-Arms where also many be had the First Second Third Fourth Fifth Sixth Seventh Eighth Ninth Tenth Eleventh Twelvth and Thirteenth Dialogues 1694. A General Alphabetical INDEX of the Matters and Questions debated in the Thirteen Dialogues of Bibliotheca Politica The Reader is desired to take notice that these Dialogues being written discursively and not determinatively this W. signifies the Question by the word Whether Note D. signifies Dialogue P. Page A ABEL W. Subject to his Brother Cain by Divine Institution D. 2. p. 67. to 70. Abesses often present in Saxon and French Great Councils D. 6. p. 393. Abbots W. all that were anciently summoned to Parliament held in Capite D. 8. p. 556. and how many came to be by degrees omitted Ibid. Abbots and Abbesses sometimes granted aids by themselves D. 7. p. 447. Abdication of the Government W. a King can do it any other way than by some express Act D. 11. p. 813 815 832 to the end Abuses of Governours their several kinds D. 3. p. 161. to 164. Kings Acts Illegal W. also Inauthoritative D. 9. p. 644. to 649. Acts of Parliament W. they to hold good tho' not called by the King D 12. p. 894. to 896. Adam W. he had conferred on him by God the Dominion of the whole Eaath and of all Creatures therein D. 1. p. 37. to 39. W. By being a Husband and Father he was also absolute Lord over Eve and all her Posterity Ib. p. 12. to 25. Adel and Adelman their signification among the Saxons and Danes D. 6. p. 374. Alderman its signification among the same Ib. p. 375. Aldermen of Countries who D. 5. p. 370. King Alfred his Testament D. 10. p. 721. St. Albans Burrough Pâ—tition to King Edw. the Second D. 8. p. 576 to 578. Allegiance W. due by Law to a King de facto D. 13. p. 905. to the end The word Alij in antient Statutes and Records W. it signifies only the lesser Tenants in Capite D. 7. p. 491 493 518. 523. Arch-Bishop of Canterbury hath been sometimes Elected in the Great Council of the Kingdom D. 8. p. 570 571. Standing Army in time of Peace against Law D. 9. p. 638 639. Great Assembly at Runne-Mead W. it was a Great Council of the whole Kingdom p. 453 454. Attainders of Treason against Kings de facto have always held good till repeal'd D. 13. p. 910. Authority of Parliament the Phrase how antient in our Statute-Books D. 5 p. 334. to 340. B Babel when Built D. 2. p. 76 77. Banneret its ancient signification D. 7. p. 540. Baro. the Title W. it antiently signified no other Person than a Baron of Parliament D. p. 402. to 407. Barones Angliae W. Tenants in Capite only Ib. p. 394 p. 406. to 411. Barones Comitatus who they were antiently D. 10. p. 743 744. Barnstaple Burrough its â—lea to send Burgesses to Parliament by grant from King Athelstan D. 8. p. 605. Bishops W. they derive their right of sitting in Parliament from the Saxon Kings D. 5. p. 366. to 368. They sometimes granted Aids by themselves D. 7. p. 447. Seven Bishops W. their Petition to King James against his Declaration and his Commitment of them were justifiable by our Laws D. 12. p. 823. to 830. Bishopricks and Abbeys anciently conâ—erred by the King per Annulum Baculum D. 5. p. 36. 38. Eldest Brother W. Lord of all Brethren by the Law of God or Nature D. 2. p. 65. to 89. Bracton that passage in his Book interpreted viz. Rex habet Superiorem Deum Legem D. 10 p. 701. Burroughs W. any of them send Members to Parliament by prescription D. 6. p. 382 383. D.
write against any man's Opinions as they are his but only freely to examine them in order to an impartial discovery of the Truth and since some of them may have been perhaps too commonly and favourably received by our ordinary Gentry and Clergy if therefore any ingenious person will take upon him farther to assert or vindicate any Opinion here questioned either by the one or other of our Disputants and will clearly and fairly shew me where my Argument might 〈◊〉 been put more home or any Objection more solidly answered shall be so far from taking it amiss that I shall rather give him my thanks for his pains and do here farther promise to insert all or at least the substance of his Arguments under their poper Heads with all due acknowledgments to their Authors if ever the Discourses will bear a second Impression only I desire him whosoever he shall be so far to imitate the Gentlemen who are supposed to converse in these Dialogues as to for bear all rude Reflections and course Language otherwise I hope they will give me their pardon if I only take notice of their Reasons and pass by their Passion Nor would I have any Candid Reader to slight the two first Dialogues because they treat of Opinions at present out of fashion viz. The Divine Right of Monarchy and Succession from the Patriarchal Power given by God to Adam since you may easily remember that it is not many years ago that our Pulpits and Presses would scarce suffer any other Doctrines either to be Preacht or Publisht than on these Subjects It faring with some Political Opinions as with Fashions which are never so generally received and worn as when they have been in Vogue at Court Those Divines and Lawyers who were the first Inventers or new Vampers of them commonly receiving the greatest Rewards and Prefermets who as the Court Taylors did Fashions could invent such Doctrines and Opinions as were most burthensome and uneasie to all sort of People except a few Great ones who were to gain by them and I desire you also farther to consider that however odd or unreasonable these Doctrines may seem to most men yet certainly they must have at least a great appearance of Truth since they were able to Captivate the Reasons of the Major part of both Houses of Convocation in the begining of the Reign of King James the First they then declaring them by several Cannons made on purpose the only sure Foundations of all Civil Authority as also of Obedience thereunto as plainly appears by that late Treatise which goes under the name of Bishop Overal's Convocation-Book And thô neither the King nor Parliament then thought fit to give those Cannons the stamp of Civil Authority whereby they might become Laws Yet for all this it did not hinder divers Learned and Ingenious men as well of Clergy as Laity from embracing these Opinions such as were Sir Robert Filmer and his Vindicatior Mr. B. as also the most Reverend and Learned Bishop Sanderson with divers others of note whose Arguments I have made use of and considered in the two first Dialogues and that in a way as little reflective as possible since I know what is due to the memory and fame of such great and worthy Persons and therefore I have only made use of the initial Letters of their Names or Titles of their Books in the Margine with an Index at the beginning of each Discourse shewing what Book each mark does signifie which Method I have persued through all the rest of these Discourses and of what is not so markâ— I desire the Reader to look upon the words if not the sense to be my own since I do not pretend to be an Inventer of new Notions in Politicks and there is no man more sensible than my self of that Old Latine Sentence Nihil dictum quod non dictum prius But tho' I have already finisht almost all the Discourses on the Subjects above mentioned yet am I not very fond of publishing them after so many several Treatises that have been written thereon tho' my design be for the saving of the Readers money as well as time to reduce what is material in all of them into so many 12 d. Books and therefore I have at present published this first Dialogue as an Introduction to the rest that according to the success I find this meets with abroad I may be more or less encouraged to proceedâ— nor â—eed it seem strange to any considering person that I chuse rather to publish one Discourse at a time since it is but too publick a Complaint how scarce a Commodity Money as well as Paper is at this time And therefore I have given the Printer leave to publish one of these Discourses in a month or oftner as he shall think good since I am sensible the greatest part of common Reader would rather part with eight or ten shillingâ— at so many several times than all at once and have therein endeavoured to imitate the Great Council of the Nation who have thought fit to divide the present Pole-Tax into four quarterly Payments I have but one thing more to advertise the Reader viz. That tho' the Title of this Discourse mentions no more than the discussing the Question Divine Right of Monarchy yet the natural Powers of Fathers and Masters of Families and Freemen are here disâ—inctly treated of and closely enquired into as being the first Elements or Principles of all Civil Powers as those alone out of which they could be at first regularly made and into which they are upon the dissolution of Civil Governments again to be resolved To conclude therefore I hope that the Arguments in this and all the following Discourses may prove so plaiâ— and convincing to all careful and unprejudiced Readers that they may as easily discover the Truth as an honest unbyass'd Iury-man can aâ— a Tryal judge on which side the Right and Iustice of the Cause inclines upon the barehearing the Evidence on both sides nay even before the Court hath summed it up Since I think it may prove more useful as well as divertive to hear or peruse the Arguments and Reasons in short that may be brought oâ— either side and thereon to pass a Judgment than to Read over the tedious and Voluminous Deâ—ds and Evidences of the Estate in Question But on which side soever you bring in your Verdict I heartily wish that God would direct your minds and guide your Iudgments to find out and embrace the Truth which as it was the only End of my writing so it is now and will be also of publishing this and those other Treatises I intend on the Subjects I have before mentioned Adieu The Subject of the First Dialogue WHether Hereditary Monarchy be of Divine Right or Institution Authors made use of in this Dialogue and how denoted in the Margin 1. Sir Robert Filmers's 1. Observations on Grotius de Belli Paâ—u R. F. O. G. 2. Patriarcha F.
with the Power of all such Masters of Families or Freemen taken together may for the sâ—me end viz. the good Government and Peace of â—heir Families and Commonwealths make Laws under no less a Penalty than Death it self against such offences as by the Law of Nature do not deserve it since without such a Power the wickedness of Man being come to this height it is no Family or Commonwealth could be long preserved in Peace or safety And therefore I suppose you will not affirm but that such a Master of a Family may very well inflict any punishment less than Death for such offences which if they find too gentle to amend those crimes they may likewise for the same reason encrease the punishments ordained for it And therefore I yield that tho Theft doth not in its own Nature deserve Death yet if the Master of such a separate Family shall find his Children or Servants to be so addicted to this vice as not to be amended by any less punishments than Death he may for the quiet of his Family make a general Law that whosoever for the future shall commit Theft shall suffer Death and I doubt not but such a Law when promulged may be Lawfully Executed since this Master of a Family is intrusted by God with the sole Power of judging not only what are crimes but also what are fit punishments for them since both are alike necessary for the happiness and preservation of the Family And I so far agree with you that such Masters of Families have as much Power over the Lives of their Children and Servants as the most absolute Monarchs have over their Subjects that is for their common good and no farther And upon the same Principles do all Kings and Common wealths inflict capital punishments for the Transgression of all such Laws as do any way entrench upon the common interest and safety of their People and upon this ground they may justly inflict no-less punishments than Death for Coyning of false Money which is but a sort of Theft from the publick Treasure of the Commonwealth And the same may be said for all capital punishments ordained against other offences of the same Nature M. If Fathers or Masters of Families are endued by God as you your self now own not only with this Power of Life and Death for enormous crimes against the Laws of Nature but also to make new Laws or ordain what punishments they please for such offences as they shall judg destructive to the quiet and happiness of their Families I see no difference notwithstanding what you have hitherto said to the contrary between Oeconomical and Civil Power For if we compare the Natural Rights of a Father or Master with those of a King or Monarch we shall find them all one without any difference at all but only in the latitude or extent of them For as the Father or Master over one Family So a King as a Father or Master over many Families extends his care to Preserve Feed Cloath instruct and Defend the whole Common-wealth his War his Peace his Courts of justice and all his Acts of Soveraignty tend only to preserve and distribute to every Subordinate and inferior Father and his Children their Rights and Priviledges Hath a Monarch Power to make new Laws and appoint what punishments he will to enforce their Observation So also hath a Father of a Family Hath an absolute Prince Power to command or dispose of the Goods and Estates of his Subjects for their common quiet and security So also hath a Father or Master of a Family So that all the Duties of a King are summed up in this Universal Fatherly care of his People and if the Soveraignty be the same I cannot see and Reason why the Rights and Prerogatives of it should not be so too And therefore if non resistance against their Authority be an unseparable Prerogative of Soveraign Power then if a Father or Master of a Family be endued with it he ought no more to be resisted than the most absolute Monarch F. I perceive your Head is very full of this Notion of the idintity of Natural and Civil Power or else you would never insist so long upon it as you do after what I have proved to the contrary And therefore since I see you look upon this as your topping Argument I shall do my endeavour to shew you more plainly the difference between them For tho I grant that such Fathers or Masters of Families as we here treat of are indued by God with divers Powers which are Analogous or perhaps the same with those of a King or Monarch that is of defending their Families as far as they are able from Forreign force and Domestick injuries and of revenging and punishing all offences that may prove prejudicial or destructive to the Peace and Happiness of their Families yet doth it not therefore follow that the Government of private Families and Kingdoms are all one since they differ very much not only in their Institution but also in their End For first the Fatherly Power by the Law of Nature is ordained only for the Generation and Education of the Children till they come to be grown up and his Authority as a Father is ordained by God only for those Ends and therefore this Relation of a Father is so inherent in him that it can never be parted with or assigned over to any other so as to make the Child or Son so Assigned to owe the same duty to him as he did to his Father There is also besides the Power of a Father that of a Master or Head of a Family over his Children and Servants whilst they continue Members or Subjects of it which Power I grant may be assigned or made over to one or more Persons when ever such Master shall think fit to institute a Kingdom or Commonwealth Yet as Dr. Sanderson very well observes this Power of a Master differs very much from that of the Civil Powers of a Kingdom or Commonwealth as well in the object as end of this Power For first the Power of a Father is only over one single Family whereas that of a Commonwealth is over divers Families united under one Civil Head Secondly in respect of the end the Power of the Master is chiefly ordained for his own interest and advantage but that of the Civil Power chiefly respects the good of the whole People or Community Lastly the Power of the Master of the Family is only for the maintaining his own Natural Property in those things which he hath acquired in the State of Nature whereas one great end of Civil Government is to introduce and establish Civil Property in things according to the Laws of the Commonwealth and also to maintain it when so constituted To conclude Fathers beget their Children and Masters acquire to themselves Slaves and Servants but it is from the consent of Fathers or Masters of seperate Families that any sort of Civil
his Death but should have his Portion presently and be gone And Farther we read Gen. 25.5 6. That Abraham gave all that he had unto Isaac but unto the Sons of the Concubines which Abraham had Abraham gave Gifts and sent them away from Isaac his Son while he yet lived that is Abraham having given Portions to all his other Sons and sent them away that which he had reserved being the greatest part of his Substance Isaac as Heir possessed after his Death but by being Heir he had no Right to be Lord over his Brethren For if he had why should Sarah desire to rob him of one of his Subjects or Slaves by desiring to have him sent away So likewise if you look into the first of Chron. chap. 5. v. 12. you will find a place that plainly confirms this Interpretation where it is said Reuben was the First-born but for as much as he defiled his Fathers Bed his Birth-right was given unto the Sons of Joseph the Son of Israel and the Genealogy is not to be reckoned after the Birth-right for Judah prevailed above his Brethren and of him came the Chief Ruler but the Birth-right was Joseph's tho' he was the Youngest Son and that this Birth right was Iacob's Blessing on Ioseph Gen. 58.28 tells us in these words Moreover I have given thee one Portion above thy Brethren which I took out of the hand of the Amorites with my Sword ' and with my Bow Whereby it is not only plain that the Birth-right was nothing but a double Portion but the Text in Chronicles is expresly against your Opinion and shews that Dominion was no part of the Birth-right for it tells us That Joseph had the Birth-right but Judah the Dominion So that unless you were very fond of this word Birth-right without considering in what sense it is to be taken you would never bring this Instance of Iacob and Esau to prove that Dominion belongs to the Eldest Son over his Brethren For if this Blessing of Isaac upon Iacob signifies any thing more than this it could not relate to his own Person who never Ruled over his Brother at all and therefore it is at most no more than a Prophecy shewing that the Jews as being descended from Iacob should in after-times Rule over the Edomites or Posterity of Esau according to what Rebekah had been foretold from God Two Nations are in thy Womb and two manner of People shall be separated from thy Bowels and the one People shaâ—l be stronger than the other People and the Elder shall serve the Younger And so Iacob blessed Iudah and gave him tho' not in his own Person but in his Posterity the Scepter and Dominion From whence you might have argued as well that the Dominion belonged to the Third Son over his Brethren as well as from this Blessing of Isaac that it belonged to Iacob they being both but Predictions of what should long after happen to their Posterities and not declaring any Hereditary Right of Dominion in either Iacob or Iudah M. I will not rigorously insist that Primogeniture is such a Divine Right as cannot be altered by any Humane Act or Constitution but yet I take it to be such a Right that without the Father orders it otherwise in his life-time or that the Elder Brother doth of his own accord depart from his Right he will have a good Title to his Fathers Government or Kingdom and consequently to Command over the rest of his Brethren and therefore Grotius makes a great deal of difference between Hereditary and Patrimonial Kingdoms the former being to descend to the Eldest Son only but the latter are divisible amongst all the Sons if the Father please And hence I suppose it was that as Mankind encreased one petty Kingdom grew out of another Thus the Land of Canaan which was Peopled by six Sons of Canaan and Philistim the Son of Mizraim had eight or nine Kings in the time of Abraham and above thirty Kings in Ioshua's time which could proceed from no other Cause but the Fathers dividing their Kingdoms in their life-times or at their Death amongst their Sons and Descendants for we hear not of one Tittle of Popular Elections in those early days And I have proofs enough of this in Scripture Since thus we find it to have been among the Sons of Ishmael and Esau as appears by Gen. 25 and 26. where it is said These are the Sons of Ishmael and these are their Names by their Castles and Towns c. Twelve Princes of their Tribes and Families And these are the Names of the Dukes that came of Esau according to their Families and their Places by their Nations And hence it is that in after Ages Princes did often divide their Kingdoms amongst their Children of which you may see divers Examples in Grotius de I. B. L. II Cap. 7. which Divisions when made and submitted to by the Eldest Son I doubt not but were good Yet I think it cannot be denied for all this that by the Law of Nature or Nations where there is no Will of the Father declared to the contrary the Eldest Son ought to inherit And this is the Judgment not only of Christian but Heathen Writers Thus Herodotus the most Antient Greek Historian lays it down for a general Custom of all People or Nations that the Eldest Son should enjoy the Empire and the Romans were likewise of this Opinion and therefore Livy when he speaks of two Brothers of the Allâ—broges contending for the Kingdom says The Younger was more strong in Force than Right And in another place he calls this Right of the Eldest Son the Right of Age and Nature as also doth Trogus Pompaeius in his Epitome of Iustine when he calls it the Right of Nations and in another place a Right of Nature when he says that Artabazanes the Eldest Son of the King of Persia challenged the Kingdom himself which the Order of his Birth and Nature it self appointed amongst Nations I could give you many other Authorities from more Modern Authors but I rather chuse to give you these because you cannot except against them as Writers prepossest by either Jewish or Christian Principles So that if this Right of Primogeniture be not absolutely Divine yet it is at least most Natural and Reasonable F. I see you are convinced that this Divine Right of Primogeniture is not to be proved out of Scripture and therefore you are contented to fall a Peg lower and to take up with the Right of Eldership by the Law of Nature or Nations which howsoever you are pleased to confound them are for all that two distinct things for if the Succession of the Eldest Son were by the Law of Nature it were no more to be altered by the Will of a Father than the Law of God it self and therefore notwithstanding all your Quotations your Right of Primogeniture amounts to no more than this
without their Consent and therefore Samuel appeals to them how little he had opprest them whose Ox or whose Ass have I taken whom have I defrauded whom have I opprest Neither could they nor the Judges their Successors make any new Laws for the People God himself being their King and Legislator and therefore what you urge as to the Regal Power of Moses and Ioshua after the Sanhedrin had been constituted amounts to no more but that both of them were Heads or Captains of the People to lead them out to War and bring them back again which is exprest by going in and out before them and their Obedience to their Military Orders as also to such things which God hath expresly commanded is understood by these words All that thou commandest us we will do and whithersoever thou sendest us we will go Yet still this was with respect to their obtaining the Land of Canaan for otherwise if either Moses or Ioshua should have gone about of their own Heads to have Led them again into Egypt I suppose you will not say the Israelites were bound either to have followed them or submitted to them but rather might have resisted them in such cases And therefore Iosephus his Speech which he makes Moses to deliver is not so ridiculous as you are pleased to make it for the Laws here mentioned by him and here set in opposition to Monarchy were not such Laws as were made by the Greek Common-Wealth as you suppose but the Law given from God by his hand and these he might well think were sufficient with such Power as he and Ioshua enjoyed without having any recourse to a Human Monarchical Government since God himself was their King and as for the Judges that succeeded them they had much less Power than either Moses or Ioshua Since it is apparent by the Story of Deborah and Barak Iudges the 4th who were the Princes or Generals of the Tribes of Zebulun and Naphtali that they had no power to force the People to go out to fight against the Canaanites whether they would or no. And therefore you will find in the next Chapter in the Song of Victory which they sung that many of the Tribes came not in to their Assistance therefore it is there said That for the Divisions of Reuben there were great thoughts of heart therefore they ask Why abidest thou among the Sheepfolds c. And presently after it is said Gilead abode beyond Jordan and why did Dan remain in the Ships Asher continued on the Seashore and abode in his breaches And so they conclude with Curse ye Meroz curse ye bitterly the Inhabitants thereof because they came not to the help of the Lord against the Mighty So that I am perswaded it was the want of this Power in the Judges of making Laws of imposing Tributes or Taxes and of forcing Men to serve in the Wars against their Enemies which they did before only as Volunteers that made the Israelites the more desirous to have a King over them like those of other Nations who were endued with these Prerogatives And therefore the best Commentators do interpret the Prediction of Samuel concerning the manner of the King that should Reign over them and would take their Sons for his Chariots and his Horse men and to be Captains over thousands c. to relate to his Royal Power of enrolling and making them serve in his Army either as Officers or Souldiers and the taking of their Fields and their Vineyards and the Tenth of their Seeds c. to give his Officers and Servants to signifie no more than his Power of imposing Publick Tribute and Impositions on the People to maintain his Royal Splendor the Necessities of the State as other Neighbouring-Kings were wont to do all which they not being used to before they should cry unto the Lord by reason of them as a great oppression And that Saul when he came to be King used this Prerogative of forcing the People to come and serve in the War in a higher manner than Samuel or the Judges had done before appears by the 11th Chapter of this Book when Nahash the Ammonite came to make War against Iabesh Saul took a Yoke of Oxen and hewed them in pieces and sent them throughout all the Coasts of Israel by the hands of Messengers saying Whosoever cometh not forth after Saul and after Samuel so shall it be done unto his Oxen and the fear of the Lord fell on the People and they came out with one Consent And it seems evident to me that the Power which Samuel had before the Children of Israel desired a King was not Monarchical but mixt of Aristocracy and Monarchy together in which Samuel as Judge had a Judicial Authority and likewise a Supream Military Power of leading them out to War against the Philistines and other Enemies and yet notwithstanding the Supreme Power in all other things remained wholly in the Principal Heads or Fathers of the Tribes which whether they were chosen by the People or enjoyed it by Right of Inheritance I confess the Scripture is silent and therefore I am not at all satisfied with your Notion that the Government of these People when they had no Judges consisted of Twelve petty Monarchies under the Heads or Princes of the Tribes for there is no Authority in Scripture to countenance any such opinion the place you bring for it out of the 1st and 7th of Numbers not at all proving it For tho' I grant there were twelve Princes of the Tribes whose names are there set down and who are called Heads of the Houses of their Fathers yet is it no where said that these were endued with Civil Power or were Chief Rulers over the Tribes for it is apparent all Civil Power remained then in Moses and the Sanhedrim who under him decided all controversies So that it is most natural to suppose that these Heads of the Tribes were not Civil Magistrates but the Military Leaders or Captains of each Tribe when they went out to War and are the same who in this Chapter are called the renowned of the Congregation c. and Heads of the Thousands of Israel Nor doth it follow that because there were such Officers in Moses his time that they must continue the same after under the Judges so many Slaveries and oppressions that this People had undergone or that if they did still continue that their Power was Monarchical or that they could do any thing without the consent of the Heads or Fathers of Families of each Tribe in whom I suppose the Supream Authority was in the Intervals of the Judges and therefore we find in the ninth of Iudges that the men of Shechem and all the House of Millo made Abimelech King that is not over all the Tribes of Israel but over Ephraim and half Manasses only which is to be understood by Israel in this Chapter where it is said v. 18. by Iotham the Son of
House of Israel did chuse to be their King himself yet did he Govern them at that time by his Vice-Roy Samuel and his Sons And therefore God tells Samuel They have not rejected thee but me that I should not reign over them It seems they did not like a King by Deputation but desired one by Succession like all the Nations All Nations belike had Kings then and those by Inheritance not by Election for we do not find the Israelites Prayed that they themselves might chuse their own King they dreamt of no such Liberty and yet they were the Elders of Israel gathered together If other Nations had elected their own Kings no doubt but they would have been as desirous to have imitated other Nations as well in the electing as in the having a King And therefore I am sure there is nothing to be found in Scripture that Countenances your Notion of the Peoples having a Right to Elect their own King But this only by the by But to prosecute the matter in Hand when God gave the Israelites Kings he re-establisht the Antient and Prime Right of Lineal Succession to Paternal Government And whensoever he made choice of any special person to be King he intended that the Issue also should have benefit thereof as being comprehended sufficiently in the person of the Father altho' the Father only was named in the Grant Which Lineal Right of Succession continued in the Family of David until such time as his Successors by their Idolatry so far provoked Gods anger as to deliver them up to the King of Babylon under whose and his Successors Power they and their Posterity continued Subjects for many Ages F. I shall not dispute any farther with you since I see it is to no purpose concerning the Government of the Israelites whether it was Monarchical or Aristocratical before the Reign of Saul nor yet shall I positively assert that Abimelech or Jephthah and other of the Judges were Rulers of some particular Tribes only Yet very Learned Men are of this Opinion since they can find no other way but by a Synchronism in the times of the Judges as also of the years of Rest and Servitude as may appear from Iudg. 10. v. 6 8. compared with Iudg. 13.1 to reconcile that great Difference that will be found in the Sacred Chronology from the time of the Children of Israel's coming out of Egypt to the fourth year of Solomon in which the Temple was begun to be built which doth amount to four hundred and eighty years whereas if you please to take the pains to cast up the years from the Children of Israel's coming out of Egypt to the beginning of Saul's Reign according to the common Account of the years of the Judges reckoned with the Reigns of Saul and David to that time c. it will amount to 600 years which is more by 120 years than all the time from the said Epocha to the fourth year of Solomon taken altogether But as for the several Tribes alone consulting and ordering their own affairs it is so plain from the Examples of the People and Princes of Gilead as also from that of the Danites that you have nothing to object against it And so likewise in the Instance of all the Children of Israel meeting and consulting what to do with the Benjamites where since you cannot deny the matter of Fact you have no way to evade it but by supposing I know not what Kingly Authority in the Fathers of particular Families whom you do suppose to have then bore the only sway because it is said in that Chapter you quoted that in the consultation after this War the Elders of the Congregation proposed it to them saying How shall we do for Wives for them that remain seeing the Women are destroyed out of Benjamin And then follows the result of the Congregation in the next verse And they said viz. all the Congregation agreed that there must be an Inheritance for them that be escaped out of Benjamin c. all which amounts to no more than what I granted at first that the Heads or Elders of the Tribes presided in this Assembly and put the question to them Which is so necessary in all great Assemblies that without such Officers they cannot come to any resolution and therefore you should do well to prove the Monarchical Power of these Elders by some better Authority than this Text. But if the Judges had Monarchical Power as you suppose notwithstanding all you have said against the Peoples Electing them it plainly appears by the Examples of Abimelech and Iephthah that the People did often Elect a Judge or Captain over them without any Nomination by or Inspiration from God But to return to that which is most material your supposed Restauration of Patriarchal Government under Moses and Ioshua after the Israelites returned from the Egyptian Bondage I cannot but here by the way take notice that the Truth will sometimes slip from you before you are aware for if it be true what you at first asserted at our last meeting That a Servant or Slave and a Subject were all one at the first and also that all Monarchs are endued with Fatherly Power then if Pharaoh was a Monarch the Children of Israel were not according to your Principle brought into Bondage by Pharaoh but they were only Adopted into another Fatherly Power But you should have done well to have shewn more clearly than you have hitherto done that this Patriarchal Iurisdiction was exercised by Abraham Isaac or Iacob before the Descent into Egypt since all the Instances you have yet given of such a Power have proved very unlucky For tho' I read in St. Stephen's Speech in the Acts that the Patriarchs moved with Envy sold Joseph into Egypt yet is it no where mentioned nor I believe will you your self affirm that these Patriarchs ever had a Monarchical Power For till Iacob went into Egypt that Power was solely in him according to your Principles and after that in Pharaoh as King of Egypt So that tho' I can find the word Patriarch but once in Scripture yet I can see no ground for your Patriarchal Authority or Iurisdiction and therefore that could suffer no intermission which never had any beginning in Nature But after this you tell me that God chose Moses and Ioshua successively to Govern as Princes in the place of those Supreme Fathers or Patriarchs which is easily I confess affirmed only it wants proof For tho' you endeavour to prove that all Paternal Power was Regal yet it still remains unproved that all Regal Power is Paternal It is true that God did appoint Moses and Ioshua to be the Rulers of his People under him but that doth not at all make out that they succeeded in the stead of Supreme Fathers much less that they succeeded as Heirs or Successors to the Patriarchal Power of Adam For Moses and Ioshua being chosen by God to be Rulers of
usurped by any other so that any other man can become my Father or I owe him that Filial Duty and Respect as to him that begot me and brought me up And tho' I grant that God may confer a Regal Power on whom he pleases either by his express Will or the ordinary course of his Providence yet when such a person who was not a King before doth become so I utterly deny that the Power he hath then conferred upon him is a Paternal Power in relation to his Subjects which is evident from your own Instance of Saul's becoming a King over his Father Kish For tho' you say that God then conferred a Fatherly Power on Saul over his own Father this is a great mistake For then Saul would have been immediately discharged from all the Duties of Piety and Gratitude which he owed his Father and they were all transferred from Kish to Saul so that after he became King he might have treated his Father with no more Respect or Deference than any other Subject which is contrary to God's Commandment that bids all Men Honour their Father and Mother And I know not how Kings can be excepted out of this Precept So that your mistake arises from this preposterous confounding of Paternal Authority with Regal Power And because Adam Noah or any other Father of a separate Family may be a Prince over it in the State of Nature that therefore every Monarch in the World is also endued with this Paternal Power Which that they are distinct may farther appear from your own supposed Monarchical Power of Adam who tho' granting him to have been a Prince over his Posterity yet did not this discharge any of his Descendants from their Duty and Obedience to their own Father And tho' I confess you talked at our last meeting of a Fatherly Power to be exercised in subordination to the Supreme Fatherly Power of Adam yet this is a meer Chimera for Filial Honour and Obedience being due by the Commandment only to a Man 's own Natural Father can never be due to two different persons at once since they may command contradictory things and then the Commandment of Honour that is obey thy Father cannot be observed in respect of both of them and therefore granting Adam or Noah to have exercised a Monarchical Power over their Children and Descendants it could not be as they were Fathers or Grand-fathers when their Sons or Grand-children were separated from them and were Heads of Families of their own for the reasons already given so that if they were Princes in their own Families whilst their Sons or Grand-children continued part of them it was only as Heads or Masters of their own Families but not by any such Patriarchal or Paternal Authority as you suppose But as for the Conclusion of your Discourse it being all built upon this false Foundation that all Power on Earth is derived or usurped from the Fatherly Power I need say no more to it For if that be false all that you argue from thence concerning the subordination of all other Powers to this will signifie nothing M. I think I can yet make out my Hypothesis notwithstanding all you have said against it For tho' I grant the Paternal Relation it self can never be usurped or transferred yet you may remember I at first affirmed that Adam was not only a Father but a King and Lord over his Family and a Son a Subject a Servant or a Slave were one and the same thing at first and the Father had power to dispose of sell or Alien his Children to any other whence we find the Sale and Gift of Children to have been much in use in the beginning of the World when Men had their Servants for a Possession and an Inheritance as well as other goods whereupon we find the Power of Castrating or making Eunuchs much in use in old times And as the Power of the Father may be lawfully transferred or aliened so it may be unjustly usurped And tho' I confess no Father or Master of a Family ought to use his Children thus Cruelly and Severely and that he sins mortally if he doth so yet neither they nor any Power under Heaven can call such an Independant Father or Monarch to an account or punish him for so doing F. I am glad at last we are come to an Issue of this doughty controversie and tho I forced you at our last meeting to confess that Fatherly Power was not despotical nor that Fathers upon any account Whatsoever were absolute Lords over their Children and all their Descendants in the State of Nature Yet now I see to preserve your Hypothesis You are fain to recur to this Despotical Power of Fathers in the State of Nature Because without supposing it and that it may be transferred or usurped Princes at this day whom without any cause you suppose to be endued with this Paternal Despotick Power could never claim any Title to their Subjects Allegiance And then much good may do you with your and Sr. R F's excellent discovery For if as you your self acknowledge Princes are no longer related in Blood to their Subjects any nearer than as we all proceed from Adam our Common Ancestor that relation being now so remote signifies little or nothing so that the true Paternal Authority being lost as you confess the Despotick Power of a Lord over his Servants or his Slaves only remains since therefore you make no difference in Nature between Subjects and Slaves then all Subjects Lye at the mercy of their Kings to be treated in all things like Slaves when ever they please And they may exercise an absolute Despotick Power over their Lives and Estates as they think fit So that I can see nothing that can hinder them from selling their Subjects or castrating them as the King of Mingrâ—lia doth his Subjects at this day and as the Great Turk and Persian Monarchs do use those Christian Children whom they take away from their Parents to make Eunuchs for their Sâ—raglio's and then I think you have brought Mankind to a very fine pass to be all created for the Will and Lust of so many single Men which if it ever could be the Ordinance of God I leave it to your self to judge M. I was prepared for this objection before and therefore I think it will make nothing against this Absolute Power with which I suppose God to have endued Adam and all other Monarchs at the first So that I am so far from thinking that this Doctrine will teach Princes Cruelty towards their Subjects that on the contrary nothing can better inculcate their Duty towards them For as God is the Author of a Paternal Monarchy so he is the Author of no other He introduced all but the first Man into the World under the Subjection of a Supream Father and by so doing hath shewn that he never intended there should be any other Power in the World and whatever Authority shall be
extended beyond this is accountable to him alone so that Princes are bound to treat their Subjects as their Children with Mercy and Lenity as far as they are capable of it and not as their Brutes And granting that Subjects and Servants or Slaves were at first all one yet I think even they ought to be treated only as Younger Children yet as Children still Nay even conquered People that are in some Countries treated as Slaves and but a little better than brutes have certainly a very good appeal to the Tribunal of God against their Princes who will undoubtedly right them in another World if they suffer patiently in this If it be the Character of a good Man that he is merciful to his Beast I doubt not but the very Brutes have a Right to be Governed with mercy and Justice and that God who is their Creator as well as ours will punish cruel men if they Tyrannize over them and much more if any man shall exercise Cruelty on another man who is of the same not only Nature but Blood Whereas all other Hypotheses leave the Prince at Liberty to make his Bargain with his Subjects as well as he can and if they be brought by force or fraud to an entire Submission at Discretion they may then be treated accordingly and must stand to their Compact be the terms never so unequal and then the Case of a Man and a Brute may differ very little and if the Subject may resist the Prince may take care to prevent it and the War may be just on both sides which is impossible I could likewise shew you many other Benefits that would accrew both to Princes and Subjects were this Hypothesis but once generally taught and believed by both of them F. I pray Sir spare the giving your self that trouble for I will not dispute how honestly this Hypothesis may be designed or what mighty Feaâ—s it might do were it once universally received But this neither you nor I can ever expect will come to pass because neither Princes nor People will ever believe it to be true For in the first place the People will never be convinced of it it being above a vulgar understanding that their Princes whom they are very well assured are not their Fathers nor yet right Heirs to Adam or Noah should notwithstanding lay claim to a Paternal Authority over them In the next place Princes can never believe that they are Fathers of their People for the same Reason I grant indeed that they may be very willing to believe one half of your Hypothesis that they are Absolute Lords and Masters over them and so would be willing upon that account to use their Subjects like Slaves but that they should look upon themselves as Fathers of their People and the Heirs or Assigns of Adam or Noah I think no Prince in Christendom can be so vain to believe So that whatever Power Adam or Noah or any other Father might be intrusted with by God because of that Natural Affection which they were supposed to bear toward their Children yet sure Princes at this day can lay no claim to it since none but true Fathers can be endued with this Paternal Affection And whereas you suppose that Princes ought to treat their Subjects nay even those that are conquered like Children and not like Slaves or Brutes This can have very little effect upon them who can as little believe it as the People for if Monarchical Power is not Paternal as I think I have clearly made out then there can lye no obligation upon Monarchs to treat their Subjects like Children and therefore Since the Despotical or Masterly Power only remains which is ordained Principally for the good and Benefit of the Master and not of the Servant or Slave Who can blame Princes if they exact the utmost of their due Prerogatives and so treat their Subjects like Slaves whenever it serves their humour or interest so to do nor are they any more to be blamed for thus exerting their Power than a Master of Negroes in the West-Indies is for making the best of the Service of those Slaves whom he hath bought with his Mony or are born in his House Whom tho I grant he is not to use like Brute Beasts for the Reasons you have given Yet doth it not therefore follow that he is obliged to use them like his Younger Children for then sure he could not have a Right to keep them for Slaves as long as they lived to let them enjoy nothing but a bare miserable Subsistance and there is very good reason for this for almost every Planter in Barbadoes knows very well the difference between the Relations of a Father a Master and a Prince and that the one is not the other and it is from your jumbling together these three different Relations of a Son a Slave and a Subject that hath led you into all these mistakes For tho' it should be granted that the right of a Master over his Slaves may be acquired by Conquest or assigned to or usurped by another yet certainly the Authority or Relation of a Father and the Monarchical or Civil Power of a Monarch can never be acquired by Conquest nor yet usurped without the Consent and Submission of the Children and Subjects And therefore to conclude I do not think your Hypothesis one jot the better by your founding it upon an Imaginary Paternal Power rather than upon Compact which I am sure can never be made upon so unequal termâ— as to render the Case of a Man and a Brute very little different since it would be to no purpose for any Subject to make a Bargain with their Monarch or Conqueror and yet to leave themselves in as bad or worse condition than they were in the State of Nature So that however convenient your Hypothesis may be either for Prince or People it signifies no more than the Popish Hypothesis of the Infallibility of the Pope and General Council which because they suppose necessary and is indeed very beneficial for the Church therefore God hath conferred it upon them But how false a way of reasoning this is hath been sufficiently demonstrated The Application of this Comparison is so obvious that I leave it to you to make M. I cannot but think for all you have yet said that God hath endued all Princes with a Paternal Authority and for this I have the Church of England on my side which in its Catechism in the Explanation of the Duties contained in the 5th Commandment Honour thy Father c. doth comprehend under that Head not only to Honour and Succour our Fathers and Mothers but also to Honour and Obey the King and all them that are put in Authority under him as if all Power were originally in the Father So that this Command gives him the Right to Govern and makes the Form of Government Monarchical And if Obedience to Parents be immediately due by a Natural Law and
Subjection to Princes but by the Mediation of an Human Ordinance what reason is there that the Laws of Nature should give place to the Laws of Men As we see the Power of the Father over his Child gives place and is subordinate to the Power of the Magistrate And that this is not the Doctrine of Christianity alone but was also believed by the best Moralists amongst the Heathen may appear by this remarkable passage out of Seneca de Clementia which is so put to this purpose that I took the pains to translate it into English in my Common-place-book Some of which I will now read to you What is the Duty of a Prince That of kind Parents who use to chide their Children sometimes sweetly and at other times with more sharpness and sometimes correct them with blows And after having shewn that a good Father will not proceed to disinherit his Son or inflict any more severe punishments upon him till he is past all hopes of amendment He proceeds thus No Parent proceeds to Extirpation till he hath in vain spent all other Remedies That which becomes a Parent becomes a Prince who is stiled without flattery The Father of his Country in all our other Titles we consult their i. e. the Emperours Honour We have called them the Great the Happy the August and heaped upon ambitious Majesty all the Titles we could invent in giving thâ—se to them But we have stiled him The Father of his Country that the Prince might consider the Power of a Father was given him Which is the most temperate of all Powers consulting the Welfare of the Children and preferring their Good before its own And as for your Objection why Princes should not be loved and reverenced as if they were our Fathers because not being our Natural Fathers they may possibly want that Natural and Fatherly Affection to their Subjects and consequently may Tyrannize over them I think this is easily answered For First God who is and ever was the True Disposer of Kingdoms hath in his hands the hearts of all Princes and endows them with such Affections as he thinks fit not only towards the People in general but towards each particular person And therefore as he was the Author of all Government and is still the Preserver of it so no inconvenience can happen but he is able to redress it 2. That there was as great or rather greater Inconveniencies which sprung at first from the too great Lenity of these Natural Princes for want of Power or Will to punish the Disorders of their Subject Children as have ever sprung since from the Tyranny and Cruelty of the worst Princes And I believe to this was owing that excessive wickedness which forced as it were God Almighty to put an end to the first World by that time it had stood about 1600 years And we see afterwards Eli and Samuel good men and severe Judges towards others were yet too indulgent to their own Children which shews the weakness of your Reasons and the greatness of the Wisdom of God in making all Government to spring from Paternal Power which is the mildest of all Powers and to descend by degrees to Hereditary Monarchies which are the Divinest the most Natural and the best of all Governments and in which the People have the least hand F. I see plainly that you think the Laws of Nature or Reason are not on your side and therefore you are forced to recur not to the express words of Scripture but to the Paraphrase or Explanation of them in our Church Catechism which certainly never was intended to have that consequence drawn from it which you have made for tho you are pleased to omit one part of the Commandment with an c. Yet the Words are as you your self must acknowledge Honour thy Father and thy Mother and if from Honour thy Father you will gather that all Power was Originally in the Father it will follow by the same Argument that it must have been as Originally in the Mother too Father and Mother or Parents being mentioned together in all Precepts in the Old and New Testament where Honour or Obedience is enjoyned on Children And if these Words Honour thy Father must give a right to Government and make the form also Monarchical 〈◊〉 if by these Words must be meant Obedience to the Political Power of the Supream Magistrate it concerns not any Duty we owe to our Natural Fathers who are Subjects Because they by your Doctrine are divested of all that Power it being placed wholy in the Prince and so being equally Subjects and Slaves with their Children can have no Right by that Title to any such Honour or Obedience as contains in it Civil Subjection But if Honour thy Father and thy Mother Signifies the Duty we owe our Natural Parents as by our Saviours interpretation Matth. 15.4 and all the other places 't is plain it doth then it cannot concern Political Obâ—dienâ—â— but a Duâ—y that is owing to Persons who have no Title to Soveraignty noâ— any Political Authority as Monarchs over Subjects For Obedience to a Private Father and that Civil Obedience which is due to a Monarch aâ—â— quite different and many times contradictory and inconsistent with each other And therefore this Command which necessarily comprehends the persons of our Natural Fathers and Mothers must mean a Duty we owe them distinct from our Obedience to the Magistrate and from which the most absolute Power of Princes cannot absolve us And to make this yet plainer suppose upon your Hypothesis that Seth as Eldest Son of Adam was Heir of all his Patriarchal Power how could all his Brethren and Sisters Honour that is Obey Eve their Mother at the same time supposing Seth and her to have commanded them things contradictory at the same timeâ— So that tho' I grant the Compilers of our Church Catechism did intend in this Explanation to comprehend all the great Duties towards our Governours Yet it is plain they never dreamed of this far-fetched inference that you have drawn from their Explanation of it for tho under this Command of Honour thy Father and thy Mother they do indeed comprehend Obedience and Honour to be due to the King c. this no more proves that they believed all Kingly Power to be Paternal than that because they likewise there Infer from this Command a Submission to be due to all Governours Teachers Spiritual Pastors and Masters that therefore all these Parties here named do likewise derive their Authority from Adam's Fatherhood or that because under the Command against bearing False-Witness we are taught to refrain our Tongues from Evil Speaking Lying and Slandering that therefore all Lyes and Evil Speaking whatsoever is down-right bearing False-Witness against our Neighbour Since nothing is more certain than that a man may commit either of the formerr without being guilty of the latter And to Answer your Query if Obedience to Parents be immediately due by a Natural Law
in the mean time remember that we reassume this Question the next time we meet But to come to the matter in hand I think there are yet some material Arguments behind to prove Monarchical Government of Divine Institution For in the first place you may please to remember that you your self have acknowledged that all Civil Government proceeds from God Secondly You have likewise admitted that the Government of Fathers or Heads of Families was the first and most Antient Government of any in the World after the Fall when some Government became necessary for the punishment of offences and the restraining of the inordinate Appetites and Passions of Mankind And lastly That this Government having absolute Power of Life and Death in some cases over the Wife Children and Servants of the Family and that if this Power is conferred upon them by God which you likewise granted and doth not depend upon the consent or compact of the Wife Children and Servants If these things were so I leave it to your self to consider from the Premises whether this Power in Heads or Fathers of Families call them which you please is not a Monarchical Power or the Government of one Man and that ordained by God and that this was the only Government in the World before the Institution of Common-Wealths you your self cannot deny F. I shall shew you plainly that you would impose a Fallacy either upon your self or me in this Argument and such a one which I have likewise already answered at our last meeting For I then told you that the Government of such Heads or Fathers of Families was only an Oeconomical and not a Civil Power and this I proved by divers Arguments against what you then argued to the contrary and therefore I think I may yet safely affirm that Kingly or Monarchical Power cannot be proved to be of Divine Institution by this Argument And I have a greater Man than Sir R. F. viz. the Judicious Mr. Hooker on my side who makes a plain distinction between such a Head or Master of a Family and a King as appears by these words in his Ecclesiastical Policy which I desire you would read with me It is no improbable Opinion therefore which the Arch-Philosopher was of That the Chief person in every Houshold was always as it were a King so when numbers of Housholds joyned themselves in Civil Societies together Kings were the first kind of Governours amongst them which is also as it seems the reason why the name of Fathers continued still in them who of Fathers were made Rulers as also the Antient Customs of Governours to do as Melchisedeck as being Kings to exercise the Office of Priests which Fathers did at the first grâ—w perhaps by the same occasion Howbeit this is not the only kind of Regiment that hath been received in the World the inconveniences of one kind have caused sundry others to be divised So that in a word all Civil Regiment of what kind soever seems evidently to have risen from the deliberate Advice Consultation and Composition between Men judging it convenient and helpful there being no impossibility in Nature considered by it self but that Man might have lived without any Publick Regiment So that you may see that tho he places the Original of all Governments in the Heads or Fathers of Families which Opinion I shall not oppose yet it is plain that he makes a clear distinction between Oeconomical Government and that Politique or Civil Power which arises from Compact between Men. So that this will not serve the purpose you bring it for You may now proceed to what other Arguments and Instances you please but pray do not make use any more of the Examples of the Patriarchs either before or after the Flood since they are either altogether uncertain or else as to those after the Flood I have proved them to have been not Kings but only Masters of separate Families And you may likewise omit Moses Ioshuah and the Judges as Instances of Monarchical Power by Divine Institution since I have so lately proved their Authority not to have been at all Absolute or Regal M. I shall not any longer insist upon them since you will not admit of those Instances tho' I think there may be a great deal of weight in them But this much I suppose you cannot deny as well from the Testimony of Sacred as Prophane History that Monarchy is the first and most antient Government in the World as appears by those remains we have left concerning the Egyptian and Assyrian Monarchies And as for the Government of Gods own People the Jews he was pleased to be King over them himself tho' to Govern by his Viceroys till such time as he was pleased to make Saul and David Kings over them Now what can be a greater argument than this for the Divine Institution of Monarchical Government F. I suppose you will not urge the Antiquity of a Government to be a mark of its Divine Institution it may indeed be an argument to prove that Monarchy was the most Natural Government because the most simple and easie for Men to light on and so no doubt it was in the first Ages of the World before Ambition Avarice and Luxury had debauched the Minds of Monarchs the best sort of Government And so on the other side there is this to be objected against it that the setting up of so many Common-wealths upon the Ruines of Monarchies shewed that Men found great Mischiefs and Inconveniences in that sort of Government when once it grew Tyrannical or else they had never departed from it And this made them as Brutus said at the beginning of the Roman Common-Wealth to invent other sorts of Government which might partake of all the Benefits without the Inconveniences of Absolute Monarchy But as for your Instance of God's being himself King over the People of Israel this touches not the Question in hand since that being a Theocratical and not a Civil Common-Wealth could concern no other Nation but themselves And as for your other Instance of God's making Saul King I hope you will not bring that for an Argument of his Approbation which it appears he was so angry with the Israelites for desiring And though it is true he did at their Request make them a King yet it is apparent God would have been much better pleased had they still continued without one So that I think there can no Conclusive Argument be drawn from any Examples in the Old Testament to prove Monarchical Government to be of Divine Institution M. Well However slight you make of my Authorities out of the Old Testament yet I hope I shall be able to shew more cogent ones out of the New to prove that Monarchy is the only Power Instituted or so much as taken Notice of by our Saviour Christ and his Apostles And therefore when he would Command the Pharisees to yield Obedience to the Supreme Power then in Being He bids them
they nor any friend of theirs will take it amiss if out of a just value of their Learned Writings he hath put that part of the Controversy in their Works as the best be could meet with and which he dares not pretend to alter and as for the Answers he hath put them either in his own or else in the expressions of one or two late Writers who have undertaken to answer what they formerly had Written on this Question To conclude since the Author does not take all that those have layed down on either side for clear and unquestionable demonstrations for then there would be no need of publishing any more than the Arguments of one side he hopes neither party will take it ill if he hath here fairly represented the strongest and most plausible Arguments that are brought on both sides for what Doctrine soever is true such Truth will not look the worse or lose ground if it appears in its true natural dress tho' set against its opposite Errour But if a great deal of what hath been layed down by Persons too Violent on either side appear upon a strict examination to be meer Precarious Opinions whose best Authority is the great Names of some that have broacht them He hopes no indifferent Person can take it ill if he endeavours to discover these mistakes since all men are liable to Errours and as none can be more sensible of this than himself so whenever either of those Learned and Reverend Persons or any other shall convince him of any weak or false reasonings in this discourse he promises to retract them with he first Opportunity THE Third Dialogue BETWEEN Mr. MEANWELL a Civilian AND Mr. FREEMAN a Gentleman F. You are welcome Sir I see you are a punctual Man to your Word Will you be pleased to sit down by the fire and drink a dish of Tea M. I thank you Sir I assure you I love to be punctual in small things as well as in great ones when I am not hindred or prevented by business F. Before we come to the Question we the last time resolved to make the Subject of our present Entertainment it will I think be convenient for me to look back and see what I have already proved at our two former Conferences viz. 1. That Adam had not either by Natural Right of Fatherhood or by Positive Donation from God any such Authority over his Children or Dominion over the World as you pretended 2. That if he had yet his Sons or Heirs had no Right to it 3. That if his Heirs had there being no Law of Nature nor Positive Law of God that determines who is the Right Heir in all Cases that may arise the Right of Succession and consequently of bearing Rule could not have been certainly determined without the Judgment of the rest of the Children or Descendants of Adam 4. That the knowledge of the Right Heir of Adam supposing still there was one being now long since lost no Prince or Monarch in the World can graft any Title upon this Paternal Dominion of Adam or Noah 5. That all Authority of inflicting Punishments of Life and Death or other less Penalties for the Breach of the Laws of Nature or the Transgression of the Civil Laws of the Common-wealth is originally derived from God as being that Power with which God in the State of Nature hath intrusted all Masters or Heads of separate Families and this not as Fathers but as Masters 6. That since all Kingdoms and Commonwealths at this day do owe their Original either to the Election of the People or to Usurpation or Conquest God doth not now by the ordinary Course of his Providence confer this Divine Authority on any Persons whatsoever so as to give them a Right to the People's Allegiance without the People's Consent first had or else an Owning of their Titles by a Subsequent voluntary Submission to them M. I grant indeed that you have with great labour and some appearance of reason too endeavoured to prove those Principles you have here laid down yet however tho' the five first of them should be true I have a great deal still to except against the last if you please to hear me For I think I can shew you a great many evil Consequences that will follow from this Principle of making the Consent or Submission of the People at all necessary to the Conveying of a Supream Power or of that Divine Authority which you grant to be derived from God himself on all Monarchs and Supream Magistrates in Commonwealths F. I pray give me leave a little to interrupt you I know very well what this evil Consequence is of supposing the Consent of the People as a means at all necessary for the Conveying of this Divine Authority that is in plain English because it will destroy your darling Doctrine of PASSIVE OBEDIENCE and NON-RESISTANCE therefore if it be so pray let us rather fall presently to the Question it self than argue by Consequences which if we should go that way to work I have my Consequences likewise to urge some of which I have given you already Therefore if you please let us begin a fairer way and hear me propose those Heads in which I doubt not but we do both agree and then I will bring it to the main Case or Question in which perhaps we differ M. I confess I had somewhat more to say which would have tended to prove this Doctrine of Non-resistance but since you are pleased to propose another Method which you better approve of I am ready to comply with you Therefore Sir go on in what way you think fit F. I shall then in the first place lay it down for a Principle which I suppose you will not deny that all Civil Power being from God it was principally instituted by him for the Peace Happiness and Safety of Mankind that is of all the Subjects who are to live together in a Commonwealth or Civil Society 2 That all Kings or Supream Magistrates are likewise secured by Gods Authority in those due Rights and Prerogatives which are necessary for their well discharging this great Trust or Duty which God requires of them and in Consideration of which the People at first Elected or Submitted themselves to them If therefore you grant as I suppose you will these two reasonable Propositions the Question will amount to no more than this whether if the Supream Power in any Kingdom or Commonwealth so far abuses this Trust which God by the People hath committed to them and instead of preserving and defending the Lives Liberties and Estates of their Subjects they manifestly go about to destroy or grievously to oppress them by making them instead of Subjects meer Slaves and Vassals the Question I say then is whether if such violence or oppressions be committed upon the whole People or so considerable a part of it as that the safety and well-being of the whole Commonwealth cannot in any likelihood
Men may have proceeded not from their own Right or Possession but from the Assignment of their Chief Captain or Leader Yet are not the Estates which such particular Men enjoy to be look't upon only as the meer Grace or Favour of such a Prince since most of those who followed him in this Conquest or Expedition did it not as Subjects but as Volunteers and without whose Assistance he could never have Conquered at all So that they have thereby acquired to themselves a certain Portion or Share in the Land so Conquered tho' for avoiding Dissentions and Quâ—rrels amongst them it was left to the Disposal of this New Prince as a publick Trustee to Distribute to each person what share he should have But in the other Case when Fathers or Masters of Families before Free and Possest of Hereditary Estates do submit themselves to the Command of one Man Voluntarily or by Election Those Estates do much less depend upon the Will or Favour of that Prince And therefore if such a Prince should without their consents go about to take away their Property in their Estates he might very Iustly be Resisted by them since a quiet enjoyment of these in Peace and Safety was one of the chief reasons that made them chuse him for their Prince and was certainly one of the Original Compacts of the Government And that in Absolute Monarchies where the Subjects were not Slaves they look't upon themselves to have such a settled Property in their Persons and Estates by Compact That Seneca boldly pronounced Errat siquis existimat sutum â—sse ibi Râ—gem ubi nihil à Regetutum est Securitas Securitate mutua paciscenda est And Mr. Hobbs himself as much a Friend as he was to the Arbitrary Power of Monarchs and an Enemy to the Natural Rights of Subjects yet is forced in his Leviathan to confess that the Riches Power and Honour of a Monarch arises only from the Riches Strength and Reputation of his Subjects for no King can be Rich nor Glorious nor Secure whose Subjects are â—â—â—her poor or contemptible Tho' how this Riches and Strength of Subjects can consist with that Absolute Power which he gives his Sovereign over the Persons and Estates of his Subjects I cannot understand since he will not allow of any Compacts or Conditions between him and them But that their Propriety may very well consist with the Power of the Prince Seneca shews us Iure Civili says he omniâ— Râ—gis sunt tamen illa quorum ad Regem pertinet universa possessio in singulos Dominos descripta sunt unaquaeque res habet possessorem suum Itaque dare Regi donum mancipium pecuniam possumus nec donare illi de suo dicimur Ad Reges enim Potestas omnium pertinet ad singulos Proprietas And the Earl of Clarendon in his Survey of the Leviathan makes this excellent remark upon this Passage of Seneca And that Prince who thinks his Power so Greâ—â— that his Subjâ—cts have nothing to give him will be very unhappy if he hath evern nâ—ed of their Hands or their Hearts So that notwithstanding this Universal Power or Supereminent Dominion of the Emperour over all things which Seneca there supposes yet if he should have gone about to have Invaded all Men's Properties and reduced all Men's Estates into the Publick Treasury I doubt not but he would soon have had not only his own Legions but the whole Empire about his Ears And tho' I have heard that the French King doth by his Exâ—roitant Taxes and Gabels raise more Mâ—ney out of the Kingdom of France and the Territories annexed to it than the Ottoman Emperour doth out of that vast Empire of which he hath the Sole Propriety of the Lands in himself Yet if the French King should indeavour by the Power of his Standing Army to take away all Men's Hereditary Properties in their Estates and make them all to be holden at Will I doubt not but he would not only be Opposed by his Subjects and perhaps ruined in the Attempt but also if he should Succeed in it would be so far from being the Richer or more Powerful that he would become the Poorer and Weaker when he had done Since no Man would take the Pains to build till or improve their Estates any more than they do in Turkey when they were not sure 〈◊〉 soon they might be turned out of them or at least could hold them no longer than for their Lives or a few years So prevalent a thing is this empty shadow and bare Name of Property that is now left in France being often charged with 〈◊〉 to above half the value of the Estates to encourage the People to beautifie cultivate and improve a Country abounding with all those Riches that Nature or Art can produce And to let you see I am not at all partial I think I may safely affirm the same of the Legislative Power in this Kingdom so that if it should happen which tho' highly improbable yet it is not impossible that the Lords and Commons Assembled in Parliament should so far abuse the Trust reposed in them as to give up all their Civil Properties in their Estates into the Kings Fâ—ands to be disposed of as he should think fit and that the King should thereupon go about to turn all the People out of their Estates I doubt not but they might in that case resist the King if he went to do it by force Notwithstanding this Act of Parliament and my reason it that a 〈◊〉 Hereditary Property in Estates being an Antient if not more than Parliament themselves in this Nation must consequently be a Fundamental Law of the Government and so cannot be altered by its Representatives For tho' it be true the People have given them a Power to dispose of what part of their Estates they should think 〈◊〉 yet did they not make it absolute to extend either to their Liberties I mean in respect of Slavery or their whole Properties in their Estates And if the King may be resisted if he invade them by his own Sole Authority the reason would be the same why he might be also resisted tho' back't by an Act of Parliament Since the taâ—â—ing away of Civil Property would prove as distâ—uctive to the Peopleâ— Liberties and Happiness in the one case as in the other and as great an abuse of the Trust reposed 〈◊〉 them that were designed to protect it M. I cannot except against your distinction between those Governments where a Property in Estates did precede the Institution of the Government it sell for there I grant that such a Property may be a Fundamental Law of the Government but in those Monarchies that have begun by Conquest under the Command of a King or absolute Prince over an Army of his own Subjects in that case upon the Conquest of a Kingdom or forreign Nation not only the Prey or Goods of the 〈◊〉 but also their Estates were
are they likewise obliged to maintain this Property when it is once Instituted and the People have as much Right to it as any King can have to his Crown viz. the Civil Law of that Country or Consent of the whole Nation And therefore if according to King Iames the First his Rule a King of a Setled or limited Kingdom will break all the Laws thereof and Degenerate into a Tyrant unless such Tyrant be the Ordinance of God he may certainly be so far Opposed for what can Pirates or Robbers do more than his Officers and Guards by his Commission The former can but Murder Men Ravish their Wives burn their Houses and take away their Estates and if the latter may do so too pray where is the Difference Or what satisfaction is it to me that I am Ruined by one Man having the King's Commission or by another that Ruins me without it Since I am sure God hath given the one no more Authority to do it than the other if then this unlimited Power be neither conferred by God nor Man upon the Civil Magistrates I would fain know any Reason why Thieves and Pirates may be Resisted but their Instruments may not that do the same things And why when Civil Authority exceeds its utmost Bounds the State of Nature or Self-defence may not take place Since the Civil Government is as much Dissolved by such Violent Actions as if a Forreign Enemy had broke in and Conquered the Country But to Answer your Query whether I think a Civil Government may not be where there is no Setled Property in Estates and whether the Eastern Monarchies are not Civil Governments To this I answer that I have Aristotle on my Side who not without Reason Affirms that the Government of one Man where there is no Civil Property and where all Men are Slaves is not Civil Government but that of a Master of a Great Family over his Slaves And tho' I grant that they may have some shew of Civil Government among them as in a Plantation where one of the Slaves may complain to the Master against another for any Injury or Wrong done him yet is not this Property Civil Government any more than that of the Master of a Separate Family who looks upon himself as Absolute Lord over all his Slaves and they allowed him by God only for his Benefit and Grandeur and not he instituted as all Civil Powers are for the Good and Preservation of the Subjects M. But methinks you seem herein to Condemn the Government of Gods own People the Iews which no doubt was an Absolute Monarchy And that restrained by no Laws except what God had expresly prescribed them And yet you see notwithstanding Samuel told them that their Kings should take away their Fields and their Vineyards and give them to his Servants and take their Sons and Daughters to be his Servants or Slaves Yet God leaves them no Power to Resist them for so doing But all the Remedy left them is that they should Cry out in that day because of the King which they had chosen and the Lord would not hear them that is there was no Remedy left them but Patience F. I have already given you my Sense of that Place and I shall speak more particularly to it when you shall come to those Texts of Scripture that you said you would produce for Absolute Subjâ—ction and Non-Resistance And therefore at present I shall only here shew you what the Earl of Clarendon in the above mentioned Survey of the Leviathan cap. 19. hath very prudently as well as honestly said concerning this Text They who will deduce the extent of the absolute and illimited Power of Kings from that Declaration by Samuel which indeed seems to leave neither Property nor Liberty to their Subjects and could be only intended by Samuel to terrifie them from that Mutinous and Seditious Clamor as it hath no Foundation from any other part of Scripture nor was ever practised or exercised by any Good King who succeeded over them and was blessed and approved by God So when those State Empiricks of what degree or Quality soever will take upon them to prescribe a new Dyet and Exercise to Soveraign Princes and invite them to assume new Powers and Prerogatives over the People by the Precepts Warrants and Prescriptions of the Scriptures they should not presume to make the Sacred Writ Subject to their own private Fancies So likewise in a Leaf or two before he speaks much to the same Purpose That what Samuel had said was rather to terrifie them from pursuing their foolish Demands than to Constitute such a Prerogative as the Kings should use whom God would appoint to go in and out before them which methinks is very manifest in that the worst Kings that ever reigned over them never challenged or assumed those Prerogatives Nor did the People conceive themselves liable to those impositions as appears by the application they made to Rehoboam upon the Death of Solomon that he would abate some of that Rigor his Father had exercised towards them the rough Rejection oâ— which request contrary to the Advice of his Wiâ—est Counsellours cost him the greater part of his Dominions And when Rehoboam would by Arms have reduc'd them to Obedience God would not suffer him because he had been in the fault himself From whence you may conclude that this Great Man did not think all Resistance unlawful in Case of General and Intolerable Oppressions M. I shall give you my Opinion farther of what you have now said when you have told me more plainly in what Cases you allow Resistance of the Supream Powers and in what not For till you have been more clear in this matter I cannot tell what Judgment to make of your Tenets F. I thank you for putting me upon so fair a Method And therefore that you may not mistake me and suppose that I would go about to allow Subjects to Resist and take up Arms against the Supream Power upon any less Occasion than an Absoluâ—â— Necessity and apparent Danger of being Destroyed and Ruined in their Lives Liberties and Estates first therefore considering that the Corruption of Humane Nature is such that no sort of Government whatsoever can continue long without some Inconveniences and Mischiefs to particular Men not that any Man either Prince or â—ubject was ever Master of such perfect Wisdom and Goodness as always to peform his Duty so exactly as never to Offend I do in the first place grant that it would be both Undutâ—ful as well as Unjust for Subjects to Rebell aâ—ainst their Prince for his Personal Failings or Vices Undutiful Since the Prince may be often times an ill Man in his private Capacity and yet a good Governour in respect of the Publick and also Unjust since neither do we our selves exactly perform our Duties toward the Supream Powers or to one another as we ought And therefore it is highly reasonable for Subjects to
they had brought with them out of the Land of Egypt and had sold the People or their Children for slaves to the Neighbouring Nations to inrich himself and his Family do you believe that the Children of Israel had been Obliged to have Obeyed such a Leader and not have resisted him and his party if there had been occasion So likewise if Ioshua instead of Leading Gods People into the Holy Land had taken upon him notwithstanding Gods Commands to have carried them again into Egypt can you think they had been bound to Obey him and might not Lawfully have resisted him if he had gone about by the assistance of his Accomplices to force them to it For I doubt not but if these Substitutes had acted contrary to that Commission God had given them they were no longer to be look'd upon as Gods Vicegerents no more than the now Lieutenant of Ireland the Lord Tyrconnel ought to be Obeyed and not resisted if he should go about by Vertue of that Commission which the King hath conferred upon him and by the help of the Rebellious Irish in that Kingdom to murder all the Protestants and set up for himself So likewise all this strict Obedience and submission that was to be paid to the Sentence of the High-Priest or Iudge was only in Relation to God himself whose Sentence it was and who always Revealed his Will either to the Iudge by particular Inspiration or to the High-Priest by the Ephod or Urim and Thummim And therefore we read in Iudges that Deborah tho' a Woman yet being a Prophetess inspir'd by God judged Israel Now suppose that this Iudge or High-Priest neglecting like Balaam the Divine Inspiration and the Dictates of that Sacred Oracle had instead of a Righteous Iudgment given a Sentence in a Cause that had come before them whereby Idolatry or breach of some great Point of the Law of Moses had been established do you think that God ever intended that this Sentence should have been Obeyed under Pain of Death And therefore you may find in the 2d Book of Maccabees that when Iason and Menelaus had by Bribery obtained the High-Priesthood tho' it was then the Chief Authority under the Kings of Syria both in Ecclesiastical and Civil matters yet when they went about to undermine the Iewish Religion and seduce the People to Idolatry they are not at all look'd upon as High-Priests but are there called Ungodly Wretches doing nothing worthy of the High-Priesthood but having the fury of a Cruel Tyrant and of a Savage Beast and were so far from being at all Obeyed by the Iews that Iason Menelaus and Alcimus who were successively High-Priests in the room of Onias were as far as the People were able opposed by them till at last Iudas Maccabeus taking Arms against Alcimus the High-Priest restored by force the true Worship of God So that you see that the Obedience was not pay'd to the Person of the High-Priests only as such by vertue of this Precept in Deuteronomy but only as far as they observed the Law of Moses and gave sentence or Judgment in all matters according to it And therefore it is no good Argument of yours because the People were bound to obey their sentence in doubtful cases therefore they had an absolute irresistible Power to give what Iudgments they pleased and that the People were obliged to observe them under pain of Death and being Guilty of Rebellion For that had been to have given the High-Priests and Iudges a Power to have altered the true Worship of God when ever they pleased and to have introduced Idolatry in the Room of it So that I think none of these places will prove any more but that God and his Lieutenants were to be Obeyed and that it was Rebellion to resist them under the Iewish Government as long as they did not force the People to Idolatry which I do not at all deny M. Tho you labour to wave these examples and Precepts which I have now cited and will not take them for convincing yet let me tell you your exceptions against them only tend to prove that Idolatrous Kings might be resisted under the Iewish Law which is directly contrary to the Sacred History as I shall prove very clearly to you by these following Testimonies I shall make use of yet I think it is much more plain that when the Iews would have a King their Kings were to be invested with a Supream and irresistible Power for when they desired a King of Samuel they did not desire a meer nominal and titular King but a King to Iudg them and go in and out before them and fight their Battles that is a King who had the Supream and Soveraign Authority a King who should have all that Power of Government excepting the peculiar Acts of the Priestly Office which either their High-Priest or their Iudge had before And therefore when Samuel tells them what shall be the manner of their King tho what he says doth necessarily suppose the translation of the Soveraign and Irresistible Power to the Person of their King yet it doth not suppose that their King had any new Power given him more than what was â—â—â—â—cised formerly by the Priest and Iudges He doth not deter them frâ—â— chusing a King because a King should have greater Power and â—e more uncontroulable and Irresistible than their other Rulers were for Samuel himself had before as Soveraign and Irresistible a Power as any King being the Supream Iudge of Israel whose sentence no Man could disobey or contradict but he incurred the penalty of Death according to the Mosaâ—cal Law But the reason why he distuades them from chusing a King was because the external Pomp and Magnificence of Kings was like to be very Chargeable and oppressive to them He 〈◊〉 your Sons and 〈◊〉 them for himself for his Chariots and to be his House Men and some shall ran before his Chariots And he will appoint him Captains over Thousands and Captains over Fifties and will set them to ear his Ground and to reap his Harvest And thus in several Particulars he shews them what burdens and exactions they will bring upon themselves by setting up a King which they were then free from and if any Prince should be excessive in such â—â—â—actions yet they had no way to help themselves they must not resist nor rebel against him nor expect that whatever inconvenience they might find in Kingly Government God would relieve and deliver them from it when once they had chosen a King Ye shall cry out in that day because of your King that you have chosen you and the Lord will not hear you in that day That is God will not alter the Government for you again how much soever you may complain of it This I say is a plain Proof that their Kings were to be invested with that Soveraign Power which must not be resisted tho' they oppress their Subjects
about to make himself King of the Iews in Opposition to Caesar and therefore whilst they lay under this Mistake they were under as high an Obligation as an Erroneous Conscience could lay upon them of Seizing him and bringing him before the High-Priest and the Governour For if they had believed him to be the true Messiah and consequently the King of their Nation it had been impossible that they should ever have gone about to put him to Death Which likewise our Saviour himself acknowledges when Praying for them that Crucified him he said Father forgive them for they know not what they do I speak not this to excuse the Priests or Sanâ—edrim for condemning our Saviour to Death or for using all the Power they had with Pilate to have him executed Since I grant their Ignorance being in great part Wilful at least not Invincible they had no just excuse not to believe on him after so many Miracles he had wrought in the sight of all the World But only to prove that which I suppose you will not deny i. e. that Magistrates even whilst they Act unjustly are not to be resisted in the Execution of Publick Iustice no not to rescue an Innocent Man by force from the Hand of Iustice after he is Condemned Since the false or unjust Sentences of Iudges against particular Persons are to be taken for just in common Acceptation till they be Repealed according to that Maxime in your Civil Law Proetor dum iniquum decernit Ius dicit and therefore our Saviour coming to fulfil all Righteousness and to be the exact Patern of Divine and Moral Actions could not do less than rebuke St. Peter for making use of the Sword against a Lawful Authority but what is this to the Cases that I have put of the Resistance of whole Nations or Bodies of Men against an unjust force and destructive Violence upon their Persons and Estates by those who pretend to Act as the Supream Powers tho contrary to all Laws Natural and Divine and who have no Pretence to Act as they do but only their unjust and Arbitrary Wills back't by Power Aâ—d that there is a great difference in these two I will clearly shew you from your own Concession that no man wanteth Authority to defend his Life against him that hath no Authority to take it away and therefore I suppose St. Paul might only with the Help of those that were with Him not only have defended his Life against those whom we find in the 25 th of the Acts who were by Order of the High-Priest and Chief of the Iews to have lain â—n wait to kill Paul by the way but also against any that Festus the Governour himself should have sent for the same End Since He there decâ—ares That it is not the manner i. e. Law of the Romans to deliver any Man to dye before that he that is accused have the Accuâ—â—rs face to face and have License to Answer for himself concerning the Crime laid against him And therefore as Caesar could give Festus no Commission to Murder Men so neither did God bestow on the Emperour any Authority to commit murder or to Authorise others to do it and if a single Person might do this certainly much more a whole Nation Country or City may justifie such a Resistance where their Lives Liberties and Estates lye at Stake from the Violence or Tyranny of the Supream Powers and therefore I do not see but that I may very well grant the Instance you have put to be conclusive against this Resistance made by St. Peter on our Saviours behalf so that your Instance doth not reach the Case in hand that all Resistance of Supream Powers is unlawful And you your self have already granted as much as I can in Reason desire that no Man wants Authority to defend his Life against Him who hath no Authority to take it away So that unless Princes and their Inferiour Officers receive Authority from God to commit Murders every Man may defend himself against them when they go about to take away their Lives by Violence contrary to Law And therefore I see no Reason from any thing that you have hitherto said to believe that Christ did not allow this Distinction between the Person and Authority of the Prince to be good in some Cases or that tho' his Person should be sacred yet that his Ministers who Act not by his Regal Authority but his Personal and Tyrannical Will may be opposed nor can I find any Consequence from what you say that he is a Mock Prince whose Authority is confined to his own Person who can do nothing more than what he can do with his own Hands Since no Man in his Wits asserts any such thing for I grant that an Absolute Prince hath Power to make Laws and to Command them to be put in Execution which do not contradict the Laws of God and Nature and a Limited Prince hath likewise a Right to Command in all things that do not expresly contradict Gods Natural and reveal'd Laws and also those Positive Laws of his Country which he is not the sole maker of that do not contradict the former and if he can do this I think he is endued with an Authority sufficient to Answer all the Ends of Government without supposing that he must needs have an irresistible Power and without which he cannot Answer those Ends to Murder and Enslave whomsoever he will I grant indeed a Prince is not meerly a Natural but a Political Person but certainly his Personal Authority as King doth not reach as far as his Commission or that he who resists those who Act by his Commission may be said in all Cases to resist his Regal Authority Since at this rate the poor Protestants in Ireland at the beginning of the last Irish Rebellion had been in a very woful Condition if it had happened which was not impossible that King Charles the first should really have granted a Commission to Sir Phelim Onâ—al to destroy them which no man could then certainly tell but that he had since Sir Phelim publickly shewed such a Commission and still asserted the Truth of it till he came upon the Gallows but this is only by the by and in answer to what you have now said to this Matter So that there is no need of supposing what our Saviour thought one way or other in this matter Since he did not rebuke St. Peter for resisting the Inferiour Officers because they offered an unjust and illegal Violence but because he resisted those who acted by a true and Legal Commission from the High-Priest and Sanhedrim who supposed our Saviour to be a false Prophet M. If this Distinction of yours were true it would render the Example of Christ's suffering in obedience to the Supream Powers tho' unjustly yet without Resistance of no effect to us whereas I am firmly perswaded that Christ took such a mean and suffering a Person upon him
same thing which as St. Paul tells us signifies Non-Resistance Only as St. Paul speaks only of not resisting the Higher Powers that is Emperours and Soveraign Princes herein include all those who Act by their Authority and St. Peter to prevent all Cavils and Exceptions distinctly mentions both that we must submit to all Humane Power and Authority not only to the King as Supream that is in St. Pauls Phrase to the Higher Powers to all Soveraign Princes who are invested with the Supream Authority but also to those who are sent by him who receive their Authority and Commission from the Soveraign Prince F. You may spare your Pains for making any long Explanation on this Text for I have already granted that all due Submission is to be given not only to the Supream Powers but also to all those who are put in Authority under them and that not only for Wrath but for Conscience sake yet is this place to be understood in the same sense as the former that is as far as they make use of this Power for the great ends of Government viz. the Good and Preservation of the People and not for their Ruine and Destruction by taking away their Lives Liberties and Properties at their pleasure So that this Precept is to be understood according to the Reason which both St. Peter and St. Paul gives for this Submission because Rulers are not a Terrour to good works but to the Evil and because such Governours are for the Punishment of Evil-doers and for the praise of them that do well and even a Government where a Heathen Prince hath such Supream Power may and doth most commonly in respect to most of its Subjects give more countenance and encouragement to good works than bad ones and therefore Obedience to such a sort of Governours is not only Lawful but a Duty Nay tho' through Ignorance and Malice they might persecute the true Religion for I have already proved that at the time of Writing of these Epistles there was no Actual Persecution begun by the Roman Emperours against the Christians and tho they did afterwards persecute them yet even such as did so being commonly men of good Morals and having much of Goodness Iustice and Prudence in their Natures such as was Trajan and the two Antoninâ—u's they would not fail extreamly to encourage the Practice of such and other vertues by their Examples and by good Laws preserve their Subjects from the Mischiefs of Immoralities and keep them in Order Peace and Sobriety But is it true when Tyrants be they Usurpers or not not only govern contrary to but also subvert all the Ends of Government M. If this be the Sense you put upon this place I think I shall easily shew you not only the Absurdity but perniciousness of this Interpretation which indeed doth undermine all that Obedience and Subjection that is due from Subjects to their Soveraigns unless they rule well that is according to their Humours or Fancies Now I pray Consider whether these great Apostles intended to oblige the Christians of that Age to yield Obedience to those Powers which then governed the World If they did as I think no Man will be so hardly as to say that they did not then it will be proper to inquire whether what they here affirm and assign as the Reason of their Subjection That Rulers are not a Terrour to good works but to the Evil were true of the then Roman Emperours and Governours or not If it were true then I believe it will hold true of all Kings in all Ages of the World for there cannot well be greater Tyrants than the Roman Emperours were at this time and so this will prove an Eternal Reason why we should be Subject to Princes notwithstanding the many faults and miscarriages of their Government And if it were not true it is very strange that two such great Apostles should use such an Argument to perswade Christians to submit to the Powers as only proved the quite contrary that they ought not to be Subject to the present Powers because they were unjust and Tyrannical and which indeed in contradiction to the Original design and Institution of Civil Power weâ—e a Terrour to good works and not to the Evil. The Christians were at this time actually persecuted by the Iews in Palestine and if they were not then also persecuted by the Emperours yet it was that which they might daily expect considering their extraordinary wickedness and Cruelty And yet the Apostle exhorts them not to resist the Powers because they were not that is should not be a Terrour to good works but to the Evil. If by this he only means that they should be Subject to them while the encouraged vertue and vertuous Men but might rebel against them when they did the contrary How could the Christians of those days think themselves obliged by this to submit to the Higher Powers For this was not their Case they suffered for Righteousness sake the Supream Powers were a Terrour to them tho' they were Innocent tho' they could not charge them either with breaking the Laws of God or Men and therefore upon your Principles they were not bound to submit to them whenever they could find it safe to resist So that either you put a false comment upon the Text or while the Apostle undertakes to deter them from Resistance he urges such an Argument as was proper only to perswade them to rebel F. Had you been pleased to have minded more attentively what I said last you would not have thus misrepresented my sense for I have already proved that there was no Persecution in the Roman Empire against the Christians when those Epistles were written nor for many years after and I have also granted that if the Emperours had so persecuted them they ought not to have resisted And therefore by good works and Evil doers c. in both those Texts of St. Peter and St. Paul is not to be understood only believing in Christ or behaving themselves as became Innocent Christians but in general that at that time when the Apostles wrote these Epistles under Claudius and the beginning of Nero and indeed through his whole Reign where he governed by his Deputies the Supream Power was then really a Terrour to Evil Works that is to all offences against good manners and the publick Peace of the Common-wealth and were also a Punishment for Evil-doers that is those that did transgress against the Publick Laws ordained for the restraining Men from committing any sort of publick Wickedness or Immorality So that I own that neither the Heathens nor the Christians had any Reason to take Arms or resist the Supream Power at this time But admit there had been at that time great Miscarriages and Abuses committed under their Government and that good Men had been often times punished and Evil ones Rewarded and the Ends of Government to some Degree perverted especially at Rome where the
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
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
or Inadvertency have written on this matter and yet I can shew you a Passage out of Calvin's Institutions which expresly forbids Subjects or private Persons to take up Arms against the Supream Powers as you may see by his own words in the fourth Book cap. 20. Neque enim si ultio Domini est essraenata Dominationis correctio ideo protinus de mandatam nobis arbiâ—remur Quibus nullum aliud quam parendi patiendi datum est mandatum de privatis Hominibus sempâ—r loquor and tho' I grant some Divines of our Church have allowed Resistance in some Cases where the People by the Laws and Constitutions of their Country might lawfully have made such a Defence of their Liberties yet have they denyed it in â—ll other Cases and particularly in our own Government which is sufficient to shew that what ever your Thoughts may be of it yet that they thought it absolutely Unlawful for the Subjects of this Realm to take up Arms against the King or those who acted by his Authority upon any Account whatsoever and therefore I must needs confess to you that I look upon these Doctrines of Passive Obedience and Non-resistance as the distinguishing Characters of the Church of England from all other Churches F. Tho' I do not much value the Opinion of Divines in matter of Politicks since most of them that I have met with have been very unhappy when they have undertaken to meddle with that Trade Yet I doubt not but I can shew you that some Learned Men of our Church have not thought all Resistance to be unlawful in case the main and Fundamental Constitutions of our Government shall happen to be assaulted or our selves in respect of our Liberties and Estates like to be reduced to absolute Vassalage and Slavery And therefore if your Divines will own Resistance where by the Constitution of the Government it is allowed to be Lawful I think I can also prove that it is not only lawful but necessary in some Cases in our own for the Preservation of the Original Constitution and if this should prove so I know not what your distinguishing Character of the Church of England will signifie unless you will make it necessary for particular Churches to have other distinguishing Characters than the Scripture requires or the Constitution of the Government will allow of and if so I doubt the Church of Englaâ—d would get as little Credit by such distinguishing Characters as the Calvinist Churches abroad do by making absolute Predestination one of the Terms of their Communions the Scriptures without their rigid Interpretation teaching no such Doctrine But as for your Quotation out of Calvin it amounts to no more than what I have all along granted That single private Subjects ought never to take up Arms or resist those in Power but when the good of the whole Common-wealth requires it And therefore he in the same Book places a Power of Resistance in Subordinate popular Magistrates whereby you may see he grants the thing lawful but will not leave the Power of judging only in the common People or Mobile and so far I confess he is in the Right tho I grant those Magistrates are in respect of the Monarch as much subject as the People M. I should be glad to know what Divines of our Church they are who have granted Resistance of the Subjects of this Kingdom to be in any Case Lawful for if there are any such I confess they are Authors unknown to me nor do I know any but one who was seemingly in the Communion of the Church of England who hath asserted this Doctrine in his Book of Iulian the Apostate But you see he was presently confuted by those learned Men of our own Church who undertook him and I think have so well performed it that I cannot tell whether it hath been more for their Eternal Glory or his Disgrace But as for what you say against making Passive Obedience the distinguishing Character of our Church I confess indeed it is very bad for a Church to hold evil or indifferent distinguishing Doctrines but it is as certain that it is very convenient for a Church to have distinguishing Doctrines provided they be good ones unless a Church can be obliged to Err for Company and to avoid distinction which will not very well agree with the Text that forbids us to follow a Multitude to do Evil nor with the Practice of the Primitive Christians when the Orthodox were so few in comparison that had there not been some Names of Note among them they would hardly have been reckoned a Number But it agrees admirably well with the Principles of Popery thus to avoid Distinction which hath its Numbers to boast of when nothing else is to be said But there is one Lord one Faith one Baptism and St. Paul reproves the Corinthians because one cryed he was of Paul and another of Apollos a third of Cephas and the fourth of Christ And must not then those that held one Lord one Faith one Baptism necessarily distinguish themselves from all that held more than one And if some would say they were of Paul and some of Apollos and some of Cephas might not others distinguish themselves from them by saying they were of Christ But by this Doctrine you pretend we distinguish our selves from all other Churches in the World and so from the Catholick Church and therefore you cannot comprehend why any one should value a Doctrine so much on that score but you may comprehend if you please that it was never pretended that this Doctrine is taught no where but in our Church And as I hope I have proved that it was taught in the Primitive Church and is taught in other Protestant Churches at this day But this is evident by fatal Experience that Passive Obedience is the distinguishing Character of the Church of England by Law Established whereby it is distinguished from the Separate Congregations among us both of Fanaticks and Papists and to justifie this Distinction we have the express Testimony of several of our Princes since the Reformation and of the Laws themselves too that are still in force which abundantly shew how dangerous the Principles of other Perswasions are to the State as well as to the Church â— Yet if other Churches have not so well preserved this Doctrine in its Purity as ours hath done as we would not provoke them to a comparison so we have no Reason to be ashamed of it But that many among them have taught this Doctrine might be proved from the Writings of many of the most Learned and Pious Foreign Divines and particularly from a Book of a French Protestant lately written who in the midst of Persecution writes in defence of Passive Obedience when he at the same time suffered what we have feared F. Tho' I confess at a time when it was made criminal for any Man publickly to maintain that it was lawful to Resist in case the King
and in all the Statutes of Praemunire made by Edward the Third the King's Soveraignty independent from the See of Rome is expresly Asserted and the Statute of the 16th of Richard the Second expresly declares That the Crown of England hath ever bin so free that it is under no Earthly Subjection but immediately subject to God in all things touching the Regality of the Crown and to no other And the Statutes of the 24th and 25th of Henry the Eighth expresly declare That this Realm of England is an Empire Governed by one Supream Head and King and the Crown or Royal Authority is also thereby declared Imperial and the Kings of England are therein Stiâ—ed Kings or Emperors of this Realm So that I think no Man needs to doubt where the Supream or Soveraign Power of this Kingdom resides F. I will not deny any of those Authorities you have now made use of Since Titles alone are no proofs of Power for it is very well known that the Germane Emperor yet notwithstanding that great Title is not therefore Vnaccountable or Irresistible Since the Colledge of the Princes Electors may Depose him for Male-administration or for Violating any of the Fundamental Constitutions of the Empire And Mr. Selden hath very well observed in his Titles of Honour that this Supremacy or Freedom from all Subjection is not only challenged by our English Soveraigns but also by the Kings of Denmark Sweden and Poland The former of which yet was so far from being an absolute Monarch that before the Reign of this King's Father he might have bin Deposed for Tyranny for Misgovernment by the Estates of the Kingdom as the King of Poland may at this Day And therefore these Titles may indeed prove a Freedom from all Foreign Jurisdiction but doth not prove that the King is Endued with an Absolute Soveraign Power within the Kingdom as you may see in these Examples I have now given you M. If you are not Satisfied with these Proofs I doubt not but to give you other Authorities both out of Antient and Modern Lawyers as also Acts of Parliament which sufficiently declare where the Supream or Soveraign Power Resides In the first place I suppose you will not deny but that it hath bin the Prerogative of the Kings of England time out of mind to Coâ—â— Money Dispose of all Offices and Create new Dignities as he should think fit as also to make War and Peace to make Laws and in short to do all things whatsoever that are Essential to a Monarch and that he alone is the Sole Soveraign Power in this Kingdom Exclusive of all others Our Ancient Lawyers Glaâ—vil and Fortescue plainly declare The former of which says thus Rex nullum â—abâ—re potest parem multò minùs Superiorem The same thing is also repeated by Bracton and a very good Reason given for it in these words Omnis quidem sub eo ipse sub nullo nisi tantum Sub Deo parem non habet in Regno Suo quia Sic amitteret praeceptum cum par in parem non â—abeâ— Imperium Item nâ—c multò fortius Superiorem nec Potentiorem habere debeâ— quia sic esset inferior sibi Subjectis inferiores pares esse non possunt potentioribus F. But pray read what immediately follows Ipse autem Rex non debet esse Sub bomine Sed Sub Deo Sub Lâ—ge quia Lex facit Regem attribuat igitur Rex Legi quod Lex attribuit ei viz. Dominatiorem Potestatem non est enim Rex ubi dominatur Voluntas â—on Lex And though I grant the King is Subject or Inferior to no particular private Man Yet that he hath a Superior or Master within the Kingdom besides God and the Law and so is not the Sole Supream Power appears by a Passage out of the same Author in the Second Book Rex habet Superiorem Deum item legem per quam factus est Rex item Curiam Suam viz. Comites Barones quia Comites dicuntur quasi Sociè Regis qui habet Socium habet Magistrum ideo si Rex fuerit sinâ— froena i. e. Lego debent ei froenum ponere From which words it seems apparent to me that this Author thought the King was not only Inferior to the Law but was also to his Court of Parliament called here Curia Baronâ—â— who might Bridle or Restrain him if he Transgres't the Laws which are here called the King's Briale Nor can I conceive how this could be done without some kind of Force or Constraint if he refuse to receive this Bridle they would lay upon him M. I do not desire at this time to enter upon this Question concerning that Power which I know some Parliaments have pretended too of Câ—â—bing and Resisting the King by force if they supposed He Invaded the Fundamental Rights and Lâ—bâ—râ—ies as they call them of the Nation and that foâ— two Reasons First because it is not pertinent to our present purpose of proving that the King is not the Sole Supream Power as also because you very well know that both Houses did in 13 Car. 2. by an Act of Parliament concerning the Militia Solemnly Renounce all Coercive Power over the King or any Right in either or both of the Two Houses of making Offensive or Defensive War against him But if you have a mind hereafter to course further on this Subject I doubt not but to prove to you from divers other Passages out of Bracton and that old Treatise called Fleta that it was no Political Superiority in the Curia Baronum but only a Directive Power or moral Superiority which they had of Advertizing the King of any Arbitrary Proceeding or Injustice he should happen to do and by Complaint Admonition and Entreating to impose upon him to amend the same according to his Oath but not by Coaction or Constraint And in this Sense they may be said in a Moral way to put the Bridle of the Law upon him which may be called Civil Resistance but as for Military Resistance against an Unjust King it is as Inconsistent with our English Government as with any other Monarchy in the World But you very much mistake if you suppose that the King of England is not Supream because he is Limited by Laws which realy is no Objection Because a Soveraign without any Diminution to his Soveraignty may be limited in the Exercise of his Soveraign Power either by his own Acts or Condescensions or else by those of his Predecessors under whom he claims This is so certain that there is no Supream Power in Heaven or in Earth which is not limited and confined in the exercise thereof Thus the Omnipotent Power of God himself is limited by his own Wisdom Goodness and Justice which are himself So likewise the Powers of all Absolute unlimited Monarchs are only so comparatively with respect to positive Laws but as for the Laws of God and Nature which
bind their Consciences as firmly as any Civil Laws they are bound to observe them and exercise their Soveraign Power within those Limits which they set and prescribe For whether they have their Supream Power from Goâ— as we say or from the People as you alledge it it is all one as to this matter for they can have no Right neither from God nor the People to make Vnjust and Tyrannical Laws And this Political Limitation of their Power in the exercise of it doth no more destroy the Essence thereof than its flowing in Pipes or Channels destroys the Essence of a Spring since it is still the same whether it runs confined through Pipes or flows free and unconfined through the open field The Application is obvious But as for the precedent words in this place of Braâ—ton which seems to intimate that the King owâ— his Authority to the Law He there only means the King in Opposition or Contradiction to a Tyrant who makes his Will his Law according to that of Chancellor Forâ—escue Rex est ubi bene regit Tyrannus dum populum sibi orediâ—um violentâ opprimiâ— Dominatione quod hoc sanxit Lex humana quod Leges ligant Suum Latorem Where you may observe that this Author makes a King's governing well i. e. according to Law a mark of Distinction from a Tyrant who oppresses his Subjects by a violent Domineering over them And though he here supposes the King to be obliged by the Laws yet that this Obligation is only Moral appears by what immediately follows when he says the Laws do oblige their Legislator Now if the King be the Sole Legislator as He here seems to intimate He must also be the Sole Supream Power and if so cannot be accountable to or under the Coercion of any Superior Power for then he would not be Supream as you your self have granted long since F. Since you are not willing to enter upon that Ancient Power which you cannot deny but the Great Council formerly had of putting a Bridle upon the King and Restraining his Actions in Case he Invaded the Rights or Liberties of the People I shall not â—â—sist farther upon it now for the Reasons you have given only I must make bold to tell you thus much that if they have not a Power of defending their just Rights if forceably Invaded by the King it would be all one as if they had none at all Tho' I grant that what you have said concerning the Limitation of the Exercise of Soveraign Power that it doth not Derogate from the Absoluteness of the Power it self is very true in all such Limitations which proceed from the Intrinsick Nature and Perfection of the Being in which it Resides as in your Example of God's infinite Power being Limited by his other Attributes So likewise all Human Powers I own are limited by the Revealed Laws of God or those of Nature But as to positive Laws you your self assert that absolute Monarchs are only obliged by them as long as they please and consequently that they may alter them or Derogate from them as oft as they think good as the Roman Emperors could revoke any Priviledges or Immunities they had formerly granted to particular Persons Cities nay to Tributary Kings or Common-Wealths and all this very justly because as all such Grants were made only for the publick good of the Empire So they being the sole Judges thereof when ever they found such Confessions to prove prejudicial to it they might justly alter or revoke them Now if the Power of our Kings be as absolutely Soveraign as that of the Roman Emperors and only limited by their own free Grants or Condescensions to the People and not from any Power ab extra Such Grants or Condescensions though never so Solemnly past into Laws in the Parliament or Assembly of the States are still no more than positive Laws And then if the King is the Sole Soveraign Power unlimited by any thing ab extra how can He so tye up his own Hands as that he may not Break or Rescind all those Concessions he had made and those limitations which he had put upon himself if he think or declare it is for the better benefit of the Common-Wealth so to do I cannot Comprehend if He be by the Original Constitution the sole Lawmaker and Judge of what is for the publick Good Much less can I understand how he can oblige his Successors who must still be supposed as Absolute Monarchs as himself to observe them And therefore if all our Civil Rights and Liberties were no other than what you would have them the free Condescensions or Self-Limitations of Soveraign Power I desire you would shew me what security we can have for the Enjoyments of them longer than the King pleases For it seems plain to me that when ever He shall fancy the Liberties and Properties of the Subjects both which you suppose were derived from him to be injurious to or inconsistent with his Prerogative or Soveraign Power he may lawfully Disannul or revoke them and in what Case we then should be considering how things had like to have gone lately I leave any indifferent Man to Judge Nor Is your Interpretation of Bracton's words Lex facit Regem c. Any more than an absolute Wresting of them from their true meaning which is not as you would have it to Distinguish a King that governs by Law from a Tyrant that makes his Will his Law for every absolute Monarch that doth so is not a Tyrant provided he direct his Actions according to the Laws of God and Nature as you your self assert and a Prince may as well govern thus as the Great Turk Czar of Muscovy and all the Eastern Monarchs do at this Day who are not counted Tyrants in so doing But certainly you will say that He would make a very Scurvy English King who would observe no other Rule Nor do you less wrest Fortescue's words when you render them Rex est ubi bene regit Tyrannus c. Supposing the meaning of it to be that this Author makes a King's governing that is say you according to Law the only thing to Distinguish him from a Tyrant c. Whereas he says no such matter but only Rex est ubi bene regit which he may do without any Set Laws as well as with them as the first Kings you suppose did before they were limited by Laws But as for Fortescue's supposing the King to be the Sole Legislator that word Sole is of your own Addition for if he had said so he would have contradicted himself as I shall shew you presently It is true the King hath a great share in the Legislative yet hath he two other Bodies to joyn with him by a Concurrent or Cooperative Power in it And I think I have all the Ancient Lawyers of England on my side To begin therefore with Ranulph de Gâ—anville who was Chief Justicear in the Reign of Henry the
Mr. Lambard I Ina by or with Gods Gift King of the West-Saxons with the Advice or Council of Cenred my Father and Heddes my Bishop and Ercenwold my Bishop and with my Aldermen and Eldest Wites or Wisemen of my Kingdom do command c. Then in the first Chapter the King speaks in the first person plural We Bid or Command that all our People shall after hold fast or observe these Laws and Dooms From this Preface you may observe I. That Kings are the Gift of God and that Gods Gift signified the same with Dei Gratia they are not the Creature of the People 2. That Princes or the better Government of their People in the Setling of Laws in Church and State did then Consult Deliberate and Advise with their Bishops Noblemen and eminently Wise Men of their Kingdoms whom for their Wisdom they Honour'd with publick Imployments in their Dominions 3. That after such Consultation Deliberation and Advice to the Soveraign Establisheth and makes the Laws The next Instance I shall make use of is out of the same Author in the Laws of King Alfred where in the Conclusion of his Laws about Religion and Prefatory to the Secular Laws He saith I Alfred King have gathered these Sanctions together and caused them to be written and then Recites that those that he liked not with the Council of his Wits he had Rejected and those he liked he had or commanded to be holden And we may observe that the King here speaks in the Single Person that He himself Collected or Chose aad also Rejected what Laws he pleased The next material illustration where the Legislative Power then Resided may be found in the Laws of King Edward the Elder where after the Charge given to the Judges the first Law begins I will and so in others in the fourth it is thus expressed Edward the King with his Wits that were at Exeter strictly enquiâ—ing by what means it might be better provided for Peace and Tranquility c. In the 2d and 3d. Chap. it is We also Declare Pronounce or Sentence And in the 7th and I will In which Laws we have none mentioned with the King but his Wits and his Commanding Willing or Pronouncing in the Imperative Mood is observable The next Laws I find are those of King Athelstan which begin thus I Athelstan King with the Advice of Walfelm my High Bishop and other my Bishops Commanded or bid all my Rieves i. e. Praefects of what degrees soever to pay Tythes c. And this He commanded his Bishops his Aldermen and Praepositi who were the Judges in the Country Courts to do the same In these Laws We cwaedon is used which I suppose is something more than Somner understands by his â—uide a Saying Speech or Sentence and properly is we will But the absoluteness of the King appears most in the 26th Chap. wherein it is expressed Tâ—at if any of the Graeves i. e. Iudges do not perform these Commands or be more Remiss in the Execution of those he hath enjoyned He shall be punished for his Excess of Contumacy according to the Fines there set down King Edmund is the next of our Kings whose Laws are Transferr'd to us and the Proem tells us that King Edmund Assembled a Great Synod or Council to London on the Holy Easter-Tide and the Persons Summoned are Stiled Godskind and Worldskind i. e. Clergy and Laicks After the first six Chapters of Laws in the Proem to the 2d part of them the King Signifies to all Men Old and Young That he had asks Advice in the Assembly of his Wites both Ecclesiasticks and Laicks and in the Laws it is often said Thonne cwaedon These we pronounce or appoint and sometimes the single person is used and in other places us betweonan Heolâ—an it is holden betwixt us Here we find the Great Council Summoned by the King and the Constituent Parts of it to be the Clergy and Laiâ—y yet still we find the Legislative Power in the King alone So likewise in the Title to King Edgars Ecclesiastical Laws it is thus The Laws which King Edgar in a frequent Assembly or Council of the Servants of God hath ordained whereby you may see that the Enacting Part Relates wholy to himself The same King Edgar in his Charter to Glastonbury Abby concludes it thus â—aâ—e privilegij paginam Rex Edgarus XII Regni sui sacro scripto apud Londoâ—iam communi Concilio optimatum suorum confirmavit So that though it appears this was in the Presence of a Great Council Yet the Granting and Enacting part proceeded wholy from himself The Preface to the Laws of King Canutus by Sir Henry Spelman runs thus These are the Worldly Constitutions that I will with my Wites advice that Men hold all over England In most of the Chapters it is said We Teach We Bid or Command We forbid and in the Conclusion it is in the single Person of the King Now I command all and bid every Man in God's Name And the Preface to the Latin Version of them saith Haec sunt Instituta Cnude Regis Anglorum Dacorum Norwegarum vene rando Saplentum Concilio ejus ad Laudem Gloriam Dei suam Regalitatem c. Of this Canutus William of Malmsbury saith that He commanded to be observed for ever all the Laws of Ancient Kings especially those made by King Ethelred his Predecessor under the Penalty of the Kings Fine to the observing of which He saith in his time it was Sworn under the Name of King Edwards Laws not that He had appointed them but had observed them So that I think upon the whole matter nothing is more plain than that our English Saxons and Danish Kings did not only call Councils and preside in them but that the Legislative Power was lodged solely in themselves F. I perceive the Authority of our Ancient Lawyers is a little too hard for you to answer with your usual Distinctions and therefore you seemingly deny their Authority though in effect you grant it as I shall shew you by and by But as for your Quotation out of the Year-Book which you think sufficient to Counterballance all the Authorities I have brought I think I may much better question the Judgment of those that gave that Opinion since I can shew you that you your self cannot allow it in all points for Law For in the first place it is not there said that it was so judged by all the Lords and Judges who were appointed to hear the Cause there mentioned but only Fuit dit que le Roy c. By which it seems to have bin the private opinion only of some one or more of the Lords and Judges there present For it is not said fuit adjuge And if you will have it to have bin the Opinion of them all pray read what follows after Fuit dit quen temps le Roy Henry devant le Roy fuit implede comme Seroit
from that of Hereditary Succession which Mat. Paris was long since aware of when writing of this King he says Rex Anglâ—ae ex Conquestu dicitur tameâ— quod beatus Edwardus co quod haerede caruit Regnum legaviâ— Willielmo Bastardo Duci Normannorum With whom Sir Henry Spellman in his Glossary agrees Willielmus primus Conquestor dicitur quia Angliam conquisivit i. e. acquisivit purchased â—on quod subegit And the learned Sir Iohn Skene in his Book de verborum significatione writes thus Conquestus signifyes Lands quiâ—ilk ony Person acquiriâ— and Possessâ—s privato Iure vel singulari titulo vel donatione vel singulari oliquo contractu And therefore I very much doubt whether or no the Latin Version of these words Apres le Conquest dâ— la verre post subactam tetram be as ancient as the French Original and be not rather the Version of some Clerk or Monk who lived long after But whether these Laws were not intended as well for the benefit of the English as Norman Subjects I appeal to this Title it self tho you have omitted part of it Hae sunt Leges Consuetudines quas Gulielmus Rex concessit Vniverso Populo Angliae post subactam terram So that unless the English were none of the People of England these Laws were as well intended for the one as the other And I appeal to that Charter of King William you have now quoted whether or no it doth not begin Omnibus hominibus suit Francis Anglis by which words certainly the English as well as Normans had an interest in those Laws and Priviledges therein granted I mention this only by the by in answer to what you have said But to return to what I am chiefly concerned to speak of The King 's sole Legislative Power in the first place I shall not deny but as this Kingdom is a limited Monarchy so it is suitable to the Honour and Dignity of the Monarch that all Laws and Constitutions should run in his Name and are often said to be made by him tho in a Political or Legal Sense they could not be made without the advice and consent of his Great Council or Parliament And that this was the custom in the time of William the First as of all others his Successors I need quote only the 55 th Law of this King in these words Prout Statuâ—um est eis scil Liberis hominibus illis à nobis datum concessum jure haereditario in perpetuum per Commune Concilium totius Regâ—i â—â—stri praedicti From whence you may observe that this King could not then make Laws without the Consent of the Common Council of his whole Kingdom And tho he might do many Arbitrary and Illegal things to the prejudice of the Old English Liberties yet this was no more his Right nor any more to be quoted as a precedent than his Seizing upon the Bishops and Abbots Lands and violently taking away the Plaâ—e out of Churches and Monasteries as Historians tell us he did could give him a Right to them I have not much to observe upon the Reign of William Rufus since we have none of his Laws left us if ever he made any But thus much we plainly find from the Historians and especially Eadmerus that he called divors Great Councils of all the Nobility of the Kingdom especially about his difference with Anselm whom it is plain he could not condemn without the Consent of this Great Council But to come to the Reign of King Henry the First it appears plainly by W. Malmsbury and Mat. Paris that he was Elected and Crowned King by the Common Suffrages and favour of the Clergy and People and certainly that Council whose Voteâ— could make a King was also necessary to all such Laws as he was to make And you your self have granted that this Charter of his was made in a Great Council and it appears in Mat. Paris as also in the Laws of this King published by Mr. Lambard Thaâ— the Archbishops Bishops Barons Earls Vicounts or Sheriffâ— Optimates totius Regâ—i Angliae were Witnesses to this Charter And I can tell you of a very ancient Charter of King Iohn which recites that those Laws were made de Communi Consilio Assensu Baronum Regni Angliae It being usual in succeeding Ages at the Coronations of our English Kings to confirm make and ordain Laws de Assensu Baronum Regni vel per Commune Concilium Regni i. e. the Parliament as it was afterwards called As for Henry the Second's Reign it is apparent by the Laws of this King in Spellman's Councils that he granted his Charter in a Great or General Council and consequently they must likewise give their Assents to it as well as to that of his Grandfather Henry the First And tho in the Constitutions of Clarendon the King alone is said to have made on decreed them yet nothing is plainer than that the King could not make them without the advice and consent of his Great Council or else to what purpose were they to be called and if their Assent was necessary certainly they had also a â—â—nd in making those Constitutions But that the King could not condemn any Peer or Great man of the Kingdom in those days without a Legal Tryal in the Great Council of the Kingdom I need go no further than a Council Summoned by Hubert Archbishop of Canterbury as the King's Commissioner in his absence where Log. Hoveden tells us that having shewed the Letters of Earl Iohn to the Bishops Earls and Barons per Commune Concilium Regni definitum est quod Comes Iohannes dissaisietur which interprets that passage you have quoted out of the same Author that the King in a Great Council disseized Gerard Canville and others that is by the Authority and Sentence of the said Council And so likewise in the same sense is to be understood those words you mentioned the King appointed to be given him constituit sibi dari two Shillings on every Plough-land that is he desired it to be given him by them For if he could have taken it without their Consent to what purpose did he propose it there if he could have absolutely demanded it why should he only request or desire it of them So likewise for the Great Council in King Iohn's time nothing is more plain than that they were parties to all the Laws that were made in his time and that even the Great Charter was a Statute to which their Assent was likewise necessary I shall shew you by and by when I come to speak of the Great Chrrter of King Henry the Third and the several Confirmations of it by his Successors But if either William Rufus King Iohn or any other King ever levyed any Taxes upon the People without consent of the Great Council or Parliament it was contrary to our ancient Laws and the Liberties of the Subjects and
particularly to the 55 th Law of William the First part of which I have already cited it begins thus Volumus etiam ac firmiter praecipimus concedimus ut omnes liberi homines totius Monarchiae Regni nostri praedicti habeaâ—t teneant terras suas pâ—ssessiones suas bene in pace libere ab omni exactione injusta ab omni Tallagio ita quod nihil ab ois exigatur vel capiatur nisi Servitium suum liberum quod de jure nobis facere debent facere tenentur prout statutum est eis c. So that whatsoever was done at any time contrary to this Statute was illegal and consequently ought not to be quoted as any part of the King's Prerogative But that the Nobility and People of England had divers Rights and Liberties before the time of King Iohn and of his granting that Charter appears by its conclusion in these words Salvis Archiepiscopis Abbatibus Prioribus Templariis Hospitalarâ—is Comitibus Baronibus Militibus omnibus aliis tam Ecclesiasticis Personis quam secâ—laribus libertatibus quas prius habâ—erunt And as for the rest of the Liberties granted by this Charter tho they are said to have been granted from the King 's meer good will yet that is recited only to make it more strong against himself since the Nobility and People of England claimed those Liberties as their ancient undoubted Right And the same Author as I have already hinted expresly tells us that this Charter contained Maxima ex parte leges antiquas And a little lower he relates where those Liberties were to be found Capitula quoque legum libertatum quae ibi Magnates confirmari quaerebant partim in Charta Regis Henrici superius scripta sunt partimque ex Legibus Regis Edwardi aâ—â—iquis excerpta So that they were not only the effect of the King 's meer Grace and Favour as you suppose But if you please now to descend to the Reign of Henry the Third and so downward from which time our Eldest Printed Statutes bear Date let us see if I cannot answer all those Arguments which the Gentlemen of your opinion have thence brought for the King 's Sole Legislative Power M. Tho I do not allow of your notion of the Conqueror's not being properly and really so as I shall shew you another time when I shall more particularly consider that Argument of the Right of Conquest in King William and all his Successors therefore I do at present readily assent to your Proposal and it was the very thing I was coming to And therefore I shall begin with the Magna Charta of Henry the Third which begins thus Know ye that We of our Meer and Free Will have given these Liberties The Statute de Scaccario Anno 51 Hen. 3. begins thus The King commandeth that all manner of Bayliffs c. The Statute de Districtione Scaccarii made the same year runs thus It is Provided and Ordained The King willeth The Statute of Marlbridge 52 Hen. 3. And he i. e. the King hath appointed all these Acts Ordinances and Statutes to be observed of all his Subjects If we come to the Reign of his Son Edward I. and begin with the Statute of Westminster I. it is there said in the Preamble These are the Acts of King Edward I. made at his first Parliament by his Council and by the Assent of the Archbishops Bishops c. And in the first Chapter 't is said The King hath Ordained and Established these Acts. And tho I grant that in divers Statutes of this King at in this of Westminster it is recited that the King by the advice of his Counsel or Assent of the Archbishops Bishops Earls Barons c. have Made Provided Ordained or Establisht such and such Laws yet it is plain that the Enacting or Decreeing part is wholly ascribed to the King in all those Statutes wherein such words are found as I shall make it appear more plainly by the Statute of Act on Burnel made in 13 Edw. I. where it is said The King by himself and all his Council hath Ordained and Established And in the Statute of Westminster 3.18 Edw. I. Chap. I. Our Lord the King in his Parliament at Westminster at the Instance of the Great Men of the Realm hath Granted Provided and Ordained In the Statute De iis qui ponendi sunt in Assizes 21 Edw. I. Our Lord the King in his Parliament holden c. hath Ordained that c. The Statute of Quo Warranto 18. Edw. I. runs thus Our Lord the King at his Parliament holden at Westminster of his special Grace and for the Affection he beareth unto his Prelates Earls and Barons hath granted That c. I Edw. II. begins thus Our Lord the King hath Granted The Statute of Gavelet 10 Edw. II. begins thus It is provided by our Lord the King and his Iustices The Statute of Carlisle 15 Edw. II. begins thus The King unto the Iustices of his Bâ—nch sendeth Greeting Whereas of â—ate We have Ordained c. But if we come to the Reign of his Son Edw. 3d. The Prefaces to most of the Statutes made in his Reign run thus Our Lord the King by the Assent of the Prelates Earls c. and at the Request of his People hath granted and established or else at the Request of the Commonality hath ordained c. The like Stile continued during the Reigns of Richard the 2d Henry 4th and Henry 5th with very little Alteration only it was commonly at the Request of the Prelates Dâ—kes Earls and Barons and at the Instance and Special Request of the Commons the King hath Ordained c. Whereby we see a plain difference in the Phrases of the Statutes of those times for it is the Lords that give their Assent whereas the Commons only Petitioned but it is the King alone who Ordaineth and Establishes I confess indeed that under some Princes of bad Titles as in particular under the Minority of Henry 6th there began some Alteration in the form of penning the Enacting part of most Statutes that were then made and that unto those usual words which were inserted ordinarily into the Body of the Acts from the beginning of the Reign of that King viz. by the Advice and Assent of the Lords Spiritual and Tempâ—ral and at the Special Instance and Request of the Commons there was added by the Authority of the said Parliament But it is still to be observed that though these words were added to the former Clause yet the Power of Granting and Ordaining was still acknowledged to belong to the King alone as appears by these Acts of Parliament of that King viz. the 3d. Henry 6th Ch. 2. 8th Hen. 6. Chap. 3. Where it is said our Lord the King by the Advice and Assent and at the Request aforesaid hath ordained and granted or Ordained and Established by the Authority of this Parliament And thus it generally
stood but every General Rule may have some Exceptions till the beginning of the Reign of Henry 7th about which time that usual Clause at the Special Instance or Request of the Commons began by little and little to be laiâ— aside and that of their Advice or Assent to be inserted in the place thereof For which I do refer you to the Statute-Book at large which Form I confess continues to this day yet even in Hen. 7ths time in the first of that King and the 7th Chap. it runs in this Stile The King our Soveraign Lord of his Noble and Abundant Grace by the Advice and Assent of the Lords Spiritual and Temporal at the Supplication of the Commons in the said Parliament Assembled and by Authority of the same Ordaineth And though the Statutes of Hen. 8th do generally agree in their Style with those of his Father Yet in his time also many Acts were drawn up in Form of Petitions as 3 Hen. 8th c. 14. Prayen your Highness the Commons in this present Parliament Assembled and 5 Hen. 8. c. 4. Prayen the Commons in this present Parliament And in the Reign of his Son â—d 6th tho' I grant that most of his Acts do run in the usual Form yet this one is very Remarkable I Edw. 6. c. 4. Wherefore the King our Soveraign Lord c. At the Humble Petition and Suit of the Lords and Commons in this present Parliament Assembled doth Declare Ordain and Enact by the Assent of the Lords Spiritual and Temporal and the Commons in this present Parliament Assembled and by the Authority of the same Which last words though they may seem to refer to the Parliament and may make Men think that the Lords and Commons did then pretend some Title unto the Power of making Laws Yet neither Adviseing nor Assenting are so Opperative in the present Case as to Transfer the Power of making Laws to such as do advise about them or assent unto them nor can the Alteration of the Forms and Styles used in Ancient times import an Alteration of the Form of Government unless it can be shewed as I think it cannot that any of our Kings did Renounce that power which properly and solely did belong unto them or did by any Solemn Act of Communication confer the same upon the Lords and Commons convened in Parliament And therefore upon the whole matter since in almost all our most Antient Statutes it is precisely express't that they were made by the King himself the meaning of those general words used in latter times that the Statutes are made by Authority of Parliament are particularly explained in former Statutes viz. that the King Ordaineth the Lords Advise the Commons Consent as by comparing the Writs with the Statutes that expound the Writs will evidently appear F. In answer to those Authorities you have now brought I doubt not but I shall give you others of as great weight that prove the direct contrary to what you now Assert To begin with your Instance of Magna Charta I shall shew that those Charters that were granted and confirmed by Henry 3d. were not his Acts or Grants alone but the Grants also of the whole Kingdom Represented in Parliament We have two Express Declarations for the one in the 25th of King Edw. 〈◊〉 Where is to be found in the Parliament Roll of that Year a Confirmation of the Great Charter of Liberties and Forests in these Words which I shall render to you in English out of the Old French for your better understanding Know ye that the Honour of God and Holy Church and for the profit of our whole Realm We have granted for us and to our Heirs that the Great Charter of Franchises and Forests which were made by the Common Assent of the whole Realm in the time of King Henry our Father should be held in all Points without any Blemishment So likewise we find another Confirmation of those Charters in the Parliament Rolls of the 15th of Edw. 3d. which being in Old French I shall render it into English Imprimiâ— it is Accorded and Assented that the Franchise of Holy Church and the Great Charter of Forest and the other Statutes made by our said Lord the King and his Progenitors the Peers and the Commons of the Land for the Common profit of the People shall be firmly kept and maintained in all Points So that you may hence plainly see that the King himself with the whole Parliament declare and that in two several King's Reigns that the Great Charters were not only the Free Grants of King Henry but also the Ioynt Acts of the Common Council of the whole Kingdom and why King Iohn's Charter should not be made by the like Authority being one of his Progenitors I see no reason especially if we consider that that Charter was first drawn up by the Barons in the Form in which we find it and was past by that King under his Great Seal in that vast General Council or Assembly at Running-Mead And certainly whoever can draw up a Law and can offer it to a Prince to Confirm and without which consent of theirs it would not be good must necessarily have a share in the making of it As for your other Instances of those Old Statutes made in the Reign of Heâ— 3d. though I grant they begin as you say in the Kings Name Yet if you would but have read a little further you would have found that in divers of them the Bishops Earls and Barons gave their Consents to them And for the Proof of this I shall begin with one of the Antientest Statutes we have left us viz. that of Merton in the Preamble of which it is recited Provisum est in Curia Domini Regis apud Merton where after the parties that were present at the making of the Laws it concludes thus in the Latin Copies ita provisum est Concessum tam a praedictis Archiepiscopis Episcopis Comitibus Baronibus quam ab ipso Rege aliis where you see the Providing and Enacting Part is Ascribed to the Bishops Earls and Barons as well as to the King who is here mentioned almost last of all And though I confess that there was then no Set Form of Penning of Statutes in that honest and plain Age when Parliaments did not last so many Days as they do now Weeks and that the King's Judges and Council drew up the Acts after the Parliament was up in what Form they pleased sometimes leaving out any mention of the Bishops sometimes of the Temporal Lords and most commonly of the Commons Yet that they did all give their Consents to such Acts appears by the Statute of Westminster the 1st which you have already Cited where the Assent of the Arch-Bishops Bishops c. Counts Earls Barons and all the Commonalty of the Land is expresly mentioned So likewise the Statute of 51. of King H. 3d. concerning Measures begins thus Per
ordinationes totius Regni Angliae fuit mensura Domini Regis composita But farther to convince you that in the Opinion of the Lord Chancellour and those Learned Judges who framed the Writs that were issued out upon any of these Antient Statutes you will find that they who lived in those very times believed that those Statutes were made not by the K. alone but by him and the Common Council of the Kingdom which Writs as you may see in the Register of Writs run thus Rex Vicecom c. Salut Si A. fecerit c. tunc summonias c. B. quod sit coram Iusticiarijs c. Ostensuris quare cum de Communi Concilio Regni Nostri Angliae provisum sit c. as you may see in the Writs Granted upon the Statutes of Magna Charta Marlbridg Merton Glocester c. which have all of them this or the like Recitals cum de Statuto or juxia formam Statuti de Communi Concilio Regni nostri Ang. inde provisi The like Instance I could give you upon the Statute of Marlbridge and divers other Old Statutes in which the King by the Statute it self seems only to have Enacted it and yet you may see that our Sages of the Law were very well Convinced that those Statutes were made not by the King alone but by the whole Common Council of England So that there is no avoiding the Conclusion that the Great Council or Parliament had then a Great Share in the Legislative Power unless you can suppose the King alone to have bin the whole Common-Council of the Kingdom mentioned in these Writs But as for the rest of your Instances of Edw. 2d and Edw. 3ds times I think I can shew you that there is no General Rule to be drawn from some few Examples For though it is very true that the first of Edw. 2d begins thus Our Lord the King hath granted c. Yet it is plain by the Statute it self that it was made in and by Parliament The like I may say of the rest of the Statutes of this King's Reign though they do not all agree in Form as you may see by the Statute of Sheriffs 9th Edw. 2d Our Lord the King by the Assent of the Prelates Earls Barons and other Great Estates hath Ordained and Established And though you would fain draw some mighty Consequence from those Phrases in the Statutes of Edw. 3d. and many of his Successors by the Assent of the Lords and at the Request of the Commons as if the Consent of the latter were not as necessary as the former Yet indeed it is a meer difference in Form and proceeds only from hence that that Estate which found it self grieved always Petitioned the King for Redress and which amounted to as much as a Consent For you shall always find that the Petitioning Part still refers to that Body which was then oppressed without giving any other Assent For certainly their Requesting to have an Act made doth necessarily express their Consent And to prove what I have now said by Examples pray see the 8th of Hen. 6. c. 1. Where it is Recited in the Preamble that our Soveraign Lord the King Willing Graciously to provide for the Security and Quiet of the said Prelates and Clergy at the Supplication of the said Prelates c. and of the Assent of the Great Men and Commons aforesaid hath Ordained and Establishs't where you may see that the Assent of the Prelates is not here at all mentioned because it was needless as being made at their Request And if Praying and Requesting should destroy the Legislative Power I doubt whether Edw. 3d. did not give away his when in his 14th Year in a Statute concerning the Subsidy of Wools The Preamble runs thus nevertheless the King prayeth the Earls Barons and all the Commonalty for the Great Business which he hath in Hand c. that they would grant him some Aid upon Wools Leather c. Where upon Deliberation being bad the said Prelates Barons and Commons of the Kingdom have Granted him 40 Shillings to be taken on every Sack of Wooll But to return to the Matter to let you see that not only the Commons but also the Lords have bin oftentimes Petitioners as well as the Commons Pray see these Authorities The 1 is the Statute of Provisors 27 Edw. 3d. runs thus Our Soveraign Lord the King with the Assent and Prayers of the Great Men and the Commons of the Realm of England hath ordained c. And in the 4th of Ed. 4th i. e. It is Recited thus The King by the Assent Advice Request and Authority of his Lords Spiritual Temporal and Commons c. hath Ordain'd and Establisht in the Preamble of the Statute of 1. Edw. 6. c. 4. it is thus Wherefore the King our Soveraign Lord minding and entirely desiring at the Humble Petition and Suit of the Lords and Commons in this present Parliament Assembled doth Declare Ordain and Enact by the Assent of the Lords Spiritual and Temporal and the Commons in this present Parliament Assembled and by the Authority of the same And that the Assent of the Commons was always necessary to the making of Laws not as bare Petitioners but as Assenters too as well as the Lords appears by this Protestation or Declaration of the Commons to Edw. 3d. which is still to be found in the Parliament Rolls of 51. of that King which I shall read to you in English out of the Law-French which perhaps you are not used to Also the said Commons do Petition our Lord the King that no Statute or Ordinance may be made or Granted at the Petition of the Clergy unless it be by the Assent of the Commons Neither that the said Commons should be obliged by any Constitution which they may make for their Advantage without the Assent os the said Commons For they will not be obliged to any of your viz. the Kings Statutes or Ordinances made without their Assent M. I do not deny but that the Assent of the Commons as well as Lords hath bin allowed as necessary for a long time But whether the Consent of either at first was so is a great doubt since we find the first Ancient Statutes as I have already observed to have bin made wholy by the King alone And I think the most Ancient Laws are the best Interpreters of the Original Legislative Power And thence it appears that many Provisions Ordinances and Proclamations made heretofore out of Parliament have bin always acknowledged for Laws and Statutes We have among the Printed Statutes to this purpose one called the Statute of Ireland Dated at Westminster the 9th of February 14 Hen. 3d. Which is nothing but a Letter of the King to Gerard Fitz Maurice Justiciar of Ireland The Explanations of the Statute of Gloucester made by the King and his Iustices only were received always for Statutes and are still printed with them Also the Statute made
Point namely That the King his Nobility and Commons did Ordain and Enact the same And which is more if you shall find any Acts of Parliament seeming to pass under the Name and Authority of the King only as there be some that have that shew indeed yet you must not by and by judge that it was established without the Assent of the other Estates As for the rest of your Insinuations rather than Arguments against the Antiquity of those Expressions Be it Enacted by Authority of Parliament or Be it Enacted by the King Lords and Commons which bear so hard upon you to prove that these last have a share in the Legislative that they were introduced in the Reigns of Henry VI. and VII two Usurpers and but in the Nonage of the former I think I shall be able to shew you that you are very much out in your account for I will shew you much ancienter Authorities wherein the same words or others equivalent have been used in our ancient Statutes And first pray call to mind the Statute of Measures already recited where it is said That by the Consent of the whole Realm of England the Measure of our Soveraign Lord the King was thus made c. which certainly must mean the Assent of all the Estates assembled in Parliament And my Lord Coâ—e tells us in his Third Institutes of an ancienter Record that he had seen of the 7 th of this King wherein it was Enacted by the King the Lords Spiritual Temporal and Commons But since I have given you Presidents enough of Statutes which are said to be made or ordained by the King with the Assent of Lords Spiritual and Temporal and Commons I will shew you one where the King is not at all mentioned and that is in Rastal's Statutes 4 Hen. 4 cap. 24. concerning Aulnage of Clothes wherein it is said to be ordained and accorded by the said Parliament without any mention at all of the King And to let you see that these fatal words you except against were in use before the Reign of Hen. 6. pray see 9 Hen. 5. cap. 4. concerning the Misprision of Clerkâ— in writing which runs thus The King hath now declared and ordained by Authority of this Present Parliament that the Iustices c. which must certainly refer to the Lords and Commons unless you can make the King alone to carry the whole Parliament in his own person But whereas that Phrase had began from Vsurpation it would have been first found in the Statutes of Henry the 4 th But to let you see that Edward the 4 th tho no Usurper yet did not think that these words did abate any thing of his Royal Prerogative pray see in the 4 th of that King Cap. 1. wherein it is recited That the King by the advice assenâ— request and authority of the Lords Spiritual and Temporall and Commons in Parliament assembled hath ordained and established But that by Assent of Parliament and by Authority of Parliament is all one and the same since the Assent of Parliament makes its Authority Pray see the express Judgment in this point of the Lord Chief Justice Crew and Justice Doderidge given in the Great case of the Earldom of Oxford reported in Judge Iokes's Reports To conclude tho I do not deny His Majesties Negative Vote to all Acts of Parliament yet this Prerogative can be concluded only from his giving his last Assent to a Law for when a Bill begins from himself the two Houses have likewise a Negative upon him which is evident in an Act of Pardon which proceeds from the King first and sent down to the Parliament this neither the Lords nor Commons can add or alter one tittlâ— to yet may they notwithstanding his prior Asent refuse the whole Bill if they please tho already past under the Great Seal And tho I likewise grant that it is the Le Roy le Veult that by yielding the highest and last Assent gives the Enacting force to the Law and thus the King may in a Logical sense be said thereby to make the Laws according to that known Maxim Quod dat formam dat esse â—ei Yet this does not hinder but in a Legal sense according to the express declaration of our old Lawyers and Acts of Parliament the Laws owe their obligation to the joint consent of King and Parliament and his giving his last assent or form to the Law no more proves his sole Legislative Power than it would do that of the Lords or Commons if either of them by the Constitution of the Government were to give their Asents last thereunto So that I think upon the whole matter no man can reasonably deny but that Legally the Two Houses of Parliament have also their share not only in framing but Enacting of all Bills that shall pass for otherwise they would signifie no more than the Committee of Estates in Scotland or the King and Council of England in relation to Ireland the former of which draws up all Bills that are to pass in the Parliament of that Kingdom and the latter must approve or reject all Bills that shall pass in the Parliament of Ireland Whereas the Authority of our Parliament consists in their consenting to and Enacting together with the King all Statutes whatsoever And this Distinction I think may very well reconcile Bracton with Fortescue the former of which says Quod leges ligant suum Lâ—torem meaning the King and the latter in the place I have already cited affirms that the People are governed by those Laws quas ipse feâ—t which they themselves make and this I think is to ascribe to the King as much Power as is requisite to a Civil Soveraign and yet to leave a sufficient share to the People to secure themselves from Tyranny M. I must beg your pardon if I cannot be satisfied with your division of the Legislative Power beiween the King and the Two Houses of Parliament since it is against the sense of our old Lawyers Glanville and Bracton who as you your self confess make the King the Sole Legislator And tho I confess Fortescue gives the People a share in it yet he is but a Modern Author in comparison of the other two and writ to support the Vsurped Title of Henry the Sixth So that I cannot comprehend how the Two Houses can have any share properly speaking in the Legislative Power without falling into that old error of making the King one of the three Estates and so co-ordinate with the other two whereas if the King be a Monarch that signifies in Greek the Government of one person whereas by giving the Two Houses a part in the Legislative you divide it into three several shares Whereas there is so close a conjunction between all the Parts of Soveraign Power that the one cannot be separated from the other but it will destroy the form of the Government and only set up an Irregular Commonwealth in its place
which will scarce be able to hold long together without falling into perpetual quarrels and disputes about the Encroachments upon each other's Power and Priviledges But it appears as well by the whole Tenor of our Laws as also by divers Express Statutes that the King is the Sole Supream or consequently the Sole Legislative Power The first of these I shall prove from the common Indictments of Treason Murder Felony c. Which run always Encounter la Corone la dignitie de Roy and the Process against such Offences are called the Pleas of the Crown because they are against the Crown and Dignity of the King So that it is not the Dignity and Authority of the Lords and Commons which is Violated but the Dignity and Authority of the King In the next place this Opinion is contrary to the express Declaration of divers of those very Parliaments which you pretend have Exercised a Share in the Legislative For you cannot deny that many of our Ancient as well as Modern Statutes were made and drawn up in the Form of a Petition from the Lords and Commons or both of them to the King And it is very strange that one Fellow in the Supream Power should so humbly Petition the other But 2. Though time hath altered the Form of Petitioning into Bills yet both Lords and Commons have bin often used to call the King Our Dread Soveraign Our Soveraign Lord Our Liege Lord and the like and to Stile themselves We your Majesty's most Humble and Faithful Subjects or most Dutiful and Obedient Subjects and in that Humble Stile to beseech him to Enact such and such things which sure they could have done alone had they bin Co-ordinate with him in Law-making Lastly if they were Co-partners with him in the Supream Power how came they to declare as they did in the Preamble to the Statute of the 25th Hen. 8. which you your self have quoted that the Realm of England is an Empire Governed by one Supream Head and King unto whom the Body Politick of the Nation Compacted of several Sorts and Degrees of People divided in Terms of Temporality and Spirituality owe and bear next unto God a Natural and Humble Obedience Now how came they here farther to declare this Supream Head of the Clergy and Laity to be furnished with Plenary Whole and Enâ—ire Power by the Goodness and Sufferance of Almighty God Certainly they can have no share in it if it be Plenary Wholy and Entirely in him or how came they in the 1st Statute of Queen Eliz. c. 7. being a Recognition of the Queens Sâ—premacy to acknowledge that all Power Temporal and Spiritual was Deducted from her as the Supream Head and that they were her most Faithful and Obedient Subjects and that they did in Parliament Represent the Three Estates of this Realm and that She was the only Supream Governour thereof Which was pursuant to a Statute to the same purpose in the 2d Ed. 6. c. 2. wherein it is declared That all Authority of Iurisdiction Spiritual and Temporal is divided and Deducted from the Kings Majesty as Supream Head of these Churches and Realms Not to mention the Oath of Supremacy it self That the King or Queen's Highness is the only Supream Governour of this Realm Which these Statutes would never have acknowledged had it not bin Consonant to our Ancient Common Law by which it is expresly declared in that Old Law-Book written as it is supposed by Bishop Breâ—ton in the very first Leaf whereof it is thus expressed in the Name of King Edw. 1st himself We Will that our Iurisdiction be above all other Iurisdictions which had been spoken in vain if all other Powers had not bin Derived from and so Subordinate to the Kings Besides I could prove this farther from History and matter of Fact F. I thank you Sir and I desire I may answer what you have now said before you pass to another Head for I doubt the time will not give us leave to Discourse much further on this Subject to Night In the first place therefore I must tell you that the main Foundation of your last Arguments is founded upon a Supposition which I altogether disown viz. Co-ordination or Division of the Soveraign Power between the King and the Two Houses For I have always supposed that the King continues still Supream and that as the Modus tenendi Parliamentum declares He is Principium Caput Finis Parliamenti that is he can call and Dissolve Parliaments when he pleases and likewise that the Executivâ— part of the Government rests solely in Him as also the Power of making War and Peace And even in the Legislative it self that the King hath more eminently though together with the Parliament a Supream Enacting Power without which it cannot be a Law This being considered you will find that here is no Division of the Legislative Power Since neither the King nor the Two Houses have it Solely and Compleatly in themselves but it is joyntly Executed by them all three as one Entire Politick Body or Person So that neither can they make any Law without him nor He Enact any without their Consent and he by giving his Consent last gives it the Force and Sanction of a Law and he is therein the Supream i. e. the Last or Vltimate Power in the true Sense of that word nay the only Supream Power unless you could suppose two Supreams that is two Highest Powers at once in the same Kingdom But that for all this the Two Houses are not Subject to the King in matters relating to Legislature may hence farther appear that the King cannot Command them to give him what Mony or to pass what Laws he pleases Since if he should go about to do so they might as I suppose you your self will grant Lawfully Disobey him which they could not do without Apparent Disloyalty and High Disobedience were they in this as they are in other indifferent things Subject to his Commands when Legally issued But to return you a more particular Answer to what you have said to prove the King to have the Sole Legislative Power As to what you pretended I have quoted out of Glanville if you please better to consider of it you will not find that he gives the King any more than an Enacting Power together with his Great Council For though he tells us quod Principi placet Legis habet vigorem yet mark what follows eas Scilicet quas super dubijs in consilio definiendis Procerum quidem consilio Principis antecedente Aâ—thoritate constaâ— esse promulgatas Where by the last consilio is meant some what more than meer Advice as I have already proved But as for Bracton it is true he agrees with Glanville in making the Kings Authority necessary to the Essence of a Law Yet he is more express than the other in making the Advice and Consent of the Great Council or Common-wealth also necessary to its being as
over the King in the State of Nature than it doth for a Creditor in the like State to compel by force his Debtor to pay him a Sum of Money which he owed him in case there were no Civil Iurisdiction for him to Appeal to And let us farther suppose a Council or Parliament appointed who may Remonstrate to the King his Transgressions or Violations of the Law Yet this may be without any Coercive Power over his Person or of making War upon him since the King may if he please remedy all these Disorders by Redressing their Grievances and punishing the Authors of them So if he will wilfully persist in such Violations as strike at the Fundamental Constitution of the Government and do also go about to execute them upon the People by force this being in effect a making War upon them I suppose they have then a just Right to defend themselves against his Tyranny So that if these Rights or Priviledges we now enjoy were not the meer Concessions of the King's Grace and favour as you affirm but reserved as part of their Birth-Right at the Original Constitution of the Government as I shall prove all our Fundamental Laws were the People have then as much Right to defend them their Allegiance to him being upon that Condition either express or imply'd as any other Nation hath to defend their Lives Liberties and Properties against the Violence of the Supream Powers or any Commissioned by them as I hope I have already proved to you So that notwithstanding all that you have said to the Contrary I think the Notion of a mixt or limited Monarchy in the very institution may be agreeable to Reason and practicable too either in this or any other Kingdom And when you can prove the contrary by History or Matter of Fact as you promise I will give up the Cause M. You have Broached a parcel of Special Common-Wealth Notions in which you are every way out As first in making the King's Authority derived either from or by the Peoples Consent Whereas all our Ancient Lawyers call him God's Vicar or Lieutenant on Earth and not the People's and in the next place in supposing he may be Resisted by Force of Arms whenever the People shall think themselves Opprest or their Fundamental Rights and Liberties as you call them invaded it is contrary to the Express Declaration of the Parliament by two serveral Statutes in the 2d Year of the late King Charles And though you disclaim all Coercive Power of the two Houses over the King yet it is only to place this Right of Resistance in a more fallible and ungovernable Body viz. the whole People in their Natural Capacities which as it is more consistent with your Principles so it is more dangerous to all Supream Powers as well Common-Wealths as Monarchies as I have partly shewed you already and I hope may farther convince you before I have done But since I have not now time to shew you the falsity and absurdity of these Notions and to urge the Statute at large against Resistance in any Case Whatsoever I pray go on in the Method you have proposed and let me see how you can make out that even our Parliaments do not derive that Priviledge they now enjoy of giving their consent to Laws as also their very being to the Gracious Concessions of our former Monarchs F. That I shall do with all my Heart But first let me tell you that though I own the King to be God's Lieutenant in these his Dominions Yet I must likewise aver that it was only by the Consent and Voluntary Submission of the People of this Nation that the first Monarch begin where you will could obtain that Title And as for those Statutes you mention against all Resistance in any Case Whatsoever I doubt not but to shew you that it was never the intent of that Parliament to debar us from all necessary Resistance and Self-defence in cases of illegal Violence and intollerable Oppression unless you can suppose they were resolved to alter the Government and to put it into the King's Power to destroy all our Laws and Liberties and instead of a Lawful King to Set up for a Lawless Tyrant when ever he pleased But to come to the matter in Hand I shall shew you that it is not at all impossible or improbable that without any hinderance of that Power which is necessary to the King as Supream that he might for all that have bin limited as to the Legislative at the first Institution of the Government which I shall thus make out I do therefore in the first place suppose that the English Saxons being a free People after their Conquest of this Island as well Nobles as Commons did agree by their free consents and publick Compacts to set over themselves a Prince or Soveraign and to Resign up themselves to him to be governed by such and such Fundamental Laws Here is a Supremacy of Power set up though limited as to the manner of its Exercise 2. Then because in all Governments after Cases will arise requiring an Addition of Laws suppose them Covenanting with their Sâ—veraign that if there be any Cause to Constitute any New Laws he shall not by his Sole Power perform that Work but that they will reserve in themselves a Concurrent or Co-operative Power So that they will be bound by no Laws but what they joyn with him in the making of 3. I suppose that though the Nobles may personally convenâ— Yet since the Commons being so Numerous cannot meet together in Person therefore for the doing of this Work it be agreed that every City of Considerable Town should have Power to Depute one or more to Act for the whole Body in the Legislature That the Nobles by themselves in Person and the Commons by their Deputies Assembling there may be Representatively the whole Body of the Kingdom with Power to execute that Authority reserved for establishing new Laws 4. Since the Occasion and need of making such Laws and Expounding the Old Ones could not be constant and perpetual therefore we may farther suppose for the avoiding of the inconvenience of three standing Co-ordinate Powers they did not Establish these Estates to be constantly existent but occasionally as the Causes for which they were ordained should require 5. Because a Monarchy was intended and therefore a Supremacy of Power as far as was necessary must be reserved in One it was concluded that these Estates should be still Assâ—mblies of his Subjects and Swearing Allegiance to him and that all New Laws which by agreement of these Powers should be Enacted should run in his Name and be called his Laws and they all bound to obey him in them when thus Establisht And Lastly it being supposed that He who thus was to govern by Law and for the furtherance of whose Government such New Laws were to be made should best understand when there was need of them and that the Convening and
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
never Governed by Absolute Monarchs but by Kings or Princes limited by the Laws and Common-Councils of their own Nations as were all those that descended from this Gothick Original In the first place therefore see what Tacitus says in his Book de Moribus Germanorum who sufficiently proves that it was a Fundamental Constitution of all the German Nations to order all public Affairs in General Councils or Assemblies of the whole People Wherefore the same Author there tells us De Minoribus rebus Principes consultant de Majoribus omnes it a tamen ut eaqubque quorum penes Plebem Arbitrium est apud Principes praetractentur As also that in this Council they Tryed Great Offenders for Caplâ—aâ— Crimes Licet apud Consilium accusare quoque discrimen capitis intendere Nor was the Power and Right of their Kings Absolute or Arbitrary but limited and Elective as appears by these Passages in the same Author Reges ex Nobilitate Duces ex virtute sumunt Nec Regibus infinita aut libera Potestas c. And speaking of the manner of their holding these publick Councils after silence commanded by the Priests Mox Rex saith he vel Princeps prout aetat cuique prout Nobilitas prout decus Bellorum prout facundia est audiuntur authoritate suaedendi magis quà m jubendi potestate Si displicuit Sententia fremitu aspernantur Sin placuit frameas concutiunt Honoratissimum assensus genus est armis laudari So that you may here see their Kings had no Negative Votes in their Councils whatever they might have afterwards among the English Saxons and that they did not so much as preside in them but the Priests you may see in the same place Silentium per Sacerdotes quibus tum coercendi jus est Imperatum And therefore it is altogether unlikely that they should have had that Absolute Power you fancy over the Lives and Fortunes of the People Since you plainly see that they could neither make Peace nor War Accuse or Condemn any Man nor raise Taxes without the Approbation or Consent of those Councils Now since all the English Saxon Nations were from Germany I leave it to the Judgment of your self or any indifferent Person to consider whether a People so free as this who come over hither not as Subjects but only as Volunteers under so many Captains or Generals who went out meerly to seek new Habitations should be so fond of a Government they never knew at home as to give these Captains whom they made their Kings an Absolute Despotick Power over their Lives and Estates which they never could endure in their own Country but that they were not then Kings I thus prove First of all no Ancient Writer that I know of ever mentioned any such thing but rather the Contrary for who will believe that before it could be known what the Success would be they should make meer Soldiers of Fortune or Leaders of some Bands of Adventurers Kings before the Country they were to Govern was Conquered or that they knew whether ever they should Arrive there or not And as for the two first of these Princes that came over viz. Heugist and Horsa our Histories make them Brothers in joynt Command over those Saxons who were sent hither as Auxiliaries to the Britains against the Picts nor is Hengist ever called King or the time of his Reign reckoned till near Eight years after his coming over hither viz. after the Death of Vortimer and the driving of Vortiger into Wales And therefore I can give no account how these Princes should become Kings but by the Consent or Election of their Souldiers or Followers for as for themselves to Create themselves Kings without the Consent of their Army or People is altogether improbable and absurd and not at all to be relyed on upon your bare word for other Authority you yet give me none But for the main part of your Assertion that the first Saxon Kings were Absolute Monarchs because all the Land was Conquered for them and to their use and that all Land was held of them is altogether as precarious our Histories being herein wholy Silent But though we do not certainly know which way they divided their Conquest to their Followers since Authors mention nothing of it Yet this I think I may positively Assert that whatever was done in this Kind by the first Saxon Kings was not as Absolute Proprietors of the whole Country but as publick Trustees for those over whom they were sent for since as I have already observed these People were utterly Strangers to a Despotick Government at home it is altogether unlikely that their Followers would confer upon them an Absolute and Vnlimited Power abroad which they were never used to before And therefore they could not be Kings by Right of Conquest over the Estates or Persons of those who were fellow Conquerors with them and set them up for what they were nor yet over the Britains Since they were either totally driven out into Wales or Cornwall or else those few that were left being reduced to a State of Servitude were by Degrees Incorporated with the Saxons And though for want of Ancient Histories as well as Letters among so Rude and Barbarous a People as these were at first we have no Records upon what express Conditions these Captains were by them Elected to be their Kings Yet thus much we may find out by those few Remains we have left us in Bede and other Ancient Historians that they had all of them the same Kind of Government and Laws with very little difference from each other Since we find in all the Several Kingdoms of the Heptarchy there were the same kind of Wittena Gemots or Great Councils by whom they were Elected and without whose Advice and Consent their Kings could do nothing of Moment either in Peace or War as any one that will but read those Laws that are left us Collected by Mr. Lambard and Sir H. Spellman in his Saxon Councils may easily observe M. I own indeed that our Saxon Ancestors when they had Conquored this Kingdom brought in their Saxon Laws along with them but it doth not from thence follow that they brought their Popular Government in with them too And those Assemblies Tacitus mentions might be Councils of the German People in General no not of the Saxons which Name is not to be found in all that Author But what if it be granted that those People which were afterwards called Saxons were governed by such Councils was not this Government a Democracy And the People so far from not having their Votes and Shares in these Councils as they only had Voices in them And if any had any more Power here than others they were the Priests who were a sort of Chair-men in them commanding Silence and who had a Coercive Power as Tacitus says In these Governments no Man can doubt of the Suffrages of the People but
under such as you mention you would I think scarce be contented to live where the Priests bare so much sway where there were no Cities or Great Towns but only scattered Houses and Habitations by Rivers Fields and Woods made of Dirt or Clay Arms of Trees and Stubble where there was no literature especially among the common People nor scarce Civility where there was no Cloathing but with Garments made of Beasts Skins No Food but Milk Pulse and Flesh without Art or Cookery where there was no Propriety in Lands no Money no Work for Lawyers as you will find if you read on in Tacitus and the 6th Book of Cesar's Commentaries And as for what you say concerning the beginning of the Saxon Kingdoms in this Island To this I Reply that Hengest and Horsa and those other Leaders who brought the Saxons into England were all of them of the Royal Line of the Saxons as appears by all our Historians and so if not Kings yet well able to Subsist And it was not the manner of those Countries to thrust out their Supernumeraries by force but to draw them out Regularly by Lot at such a Rate and Proportion and to give them Generals and Officers of Great Birth and Degree Nor is it probable if they had made Articles with their Followers that these Princes should have had such Absolute Authority as they had over the Lives and Fortunes of their Subjects in the more early times almost all the Priviledges of the English Nation being granted long since that time nay most of them since the Conquest Yea since the Barons Wars But as for what you say concerning the Gothick or Vandal Kingdoms since they relate nothing to our Government I need not say any thing to them nor doth it follow that if their Kings were limited or but upon Condition that ours must be so too F. I see you would fain evade the Authority of Tacitus concerning the People's having any share of the Government amongst the Saxons because forsooth that Nation is not particularly nam'd in his History But tho the Saxons are not particularly named by Tacitus Yet the Angli are there mentioned among those German Nations who Worship't their Common Goddess Hertha which that Author interprets to be Terra the Earth And you very well know that from these Angli or Angles the English Nation as well as name is derived But tho Tacitus who lived about the beginning of the Emperour Trajans Reign names not the Saxons yet Pâ—olomy who writ within 40 years after expresly mentions them placing their Country not far North of the River Albis and near the Place where all agree the Angli were Seated so that they were either all one and the same Nation or very little different But Etheliverd Quâ—sâ—or one of our Ancientest English Saxon Historians in his first Book makes this Nation of the Saxons of a far wider extent and that it reacht from the River Rhine all along the Sea-Coast up to Donia now called Denmark But since I see you cannot well tell how to evade this Testimony of Tacitus but by affirming that the Government in Germany was a Democracy and that the People had the only Sway in it is a great mistake since he expresly mentions their Kings and Princes and there only speaks of the manner of Transacting all publick Affairs in which it is true the People as it is very well known by our Ancient Histories had formerly a greater Share than now Yet doth he not thereby exclude the Prince and Nobility from having also their Shares in it And as for what follows in Tacitus of the Royal Power auctoritate suaâ—endi magis quam jubendi Potestate I suppose you cannot deny but that Priviledge yet remains to us since the King cannot command the Parliament to make what Laws or give him what Money he pleaseth and therefore that doth not make it a Democracy much less the Priests presiding in their Assemblies which is no more to be wondred at than that the Bishops have still Votes and their share of Legislature in the House of Peers Or that a Bishop when Chancellor or Keeper should be Speaker in the House of Peers Or supposing that their Priests had more Power among them than the Christian Clergy had after they were Converted doth it therefore follow that it was not the same Government or that it must therefore be so intolerable that I would not have bin willing to have lived under it Since I must tell you I am not against Civil Offices though exercised by Clergy-men as far as the Business of their Function and the Canons of the Church will permit As for the rest which you object concerning the Barbarous living of the Ancient Germans it either makes nothing to the matter in hand or else against you since it proves plainly that Absolute Monarchy was not the first Government among all Nations as you suppose Nor doth it therefore follow that because these People were Rude and Barbarous therefore they had not the Wit to prefer Absolute Monarchy before all other Governments since their Conquerors the Romans who sure were a Civiliz'd People did likewise as much abhor it But as for what you say against Hengist and those other Leaders who brought the Saxons into Britain being Elected Kings by their Followers is nothing but meer Guess and Conjecture For that they were not Kings at home you your self grant and whether they were able well to Subsist at home or not is nothing to the Purpose It is plain they thought they could mend their Condition or else would never have left their Country And tho it be granted that Hengist with his Followers came not over as Enemies but Auxiliaries to the Britains Yet it is not therefore more likely that they were chosen by the King of their own Nation than that their own Followers should afterwards Elect them especially when the one is agreeable to our own Historians and the other not For Mattheus Florilegus tells us that Horsus being slain the Saxons Fratrem suum Hengislum in Regnum Cantiae sublimaverunt that is they Elected or Advanced him to be King if I understand any thing by that word and this agrees with the Polichronicon of Ranulph Higden who places the begining of Hengists Reign immediately after the Death of his Brother Horsus viz. An. Dom. 465. Eight years after the coming of the Saxons into Britain and that the rest of the Saxons who came hither after had no better Title then Election I could farther prove if the time would give me leave For they that will read the Ancient Accounts of the Saxon Nation and what Government they had among them long after the time of Cesar and Tacitus will find that it was impossible that they should be thus Created Kings before they came over since at that time they had no such things as constant Kings amongst them for in those times it was rather an Aristocracy then a Monarchy
for as Iohannes Pomarius in his Saxon Chronicle sheweth us for which I refer you to Verstegan where this passage is made use of at large Verstegan p. 68. So that if this were the Government of the Saxons as low as the time of Charles the Great I durst leave it to any indifferent person to judge whether the first Saxon Kings in this Island were made so by their own Princes before they came over or were chosen by their Followers since no Historians mention the former tho all of them agree of the latter They commonly using this Phrase Regem fecerunt or elegerunt And that all the first Kings of the Heptarchy were Elective nothing is more plain since the Great Council of the Nobility and People did not only Elect them but often Depose them too when they grew intolerable through Tyranny or Misgovernment as may appear by the Example of Sigibert King of the West-Saxons and divers others I could Instance in who were Expelled this Kingdom as Brompton and other Ancient Chronicles tell us by the Vnanimous Consent and Deliberation of the Nobility and People Many like Instances I could give you in the other Kingdoms of the Heptarchy but that it would be too tedious Nor doth your Reason signifie any thing that it is not probable that the first Princes were made Kings upon Condition because of the Absolute Authority they had over the Lives and Fortunes of their Subjects since it is altogether false in matter of Fact none of the Saxon Kings being able alone to make Laws or impose Taxes upon their People without their Consents in their Great Councils much less to make War without it for then the War tho begun by the King alone must have signified little in an Age when there were no standing Armies nor Money in the Princes Power to pay them there being then but little Coyn of any sort and their Revenues being mostly paid in Victuals M. Pray Sir give me leave to interrupt you a little I own indeed that the particular Laws and Constitutions of each of the Kingdoms of the Heptarchy are not particularly known and perhaps some of their Kings might be Elective and consequently liable to be Deposed by their People whether by Right or Wrong I will not now Dispute but if we consider the State of things after these Seven Kingdoms became reduced into one you will find them much altered And as Egbert our first Saxon Monarch Reduced all those Kingdoms into one So it is to be supposed that having no Right to them but by Conquest and the Submission of their Kings when overcome in Battle both he and his Successors must needs have become far more Absolute than they were before and if they were Elective before that time did now certainly become Hereditary Monarchs The Crown Descending from Father to Son for divers Descents And so Consequently these Princes granted divers Priviledges and Liberties to the People of those Kingdoms they Conquered And that they were no other than the free Grants or Concessions of our former Kings upon Petition or Request of the People and accepted by the Clergy Nobility and People of the Kingdom in their Great Councils For this I need go no farther than the Coronation Oath taken by the Kings of England when the Archbishop of Canterbury asks the King Sir will you grant and keep and by your Oath confirm to the People of England the Laws and Customs granted to them by the Ancient Kings of England your Predecessors and namely the Laws and Customs and Liberties granted to the Clergy and People by the Glorious King Edward your Predecessor From whence we may observe that all the Bishops Earls Barons and People there present do own and confess that their most Ancient Laws Customs and Liberties were granted to them by Edward the Confessor and other Ancient Kings F. I doubt you will prove as much out in the account you give me of our King's Power after the Seven Kingdoms were reduced into one as you were before For though I grant that the Title of the West-Saxon Kings over all the rest proceeded from Conquest and the Submission of the Kings and People they Conquered yet were they not all actually reduced into one Kingdom or Monarchy till a good while after the Kings of Mercia and of the East-Angles continuing in Being till the Coming in of the Danes as you will find by our Saxon Annals And though t is true the West-Saxon Kings made those Kings Tributary to them Yet that they did not become more Absolute thereby appears from the Testimony of our Ancient Histories Since we find them Transacting all Affairs in their Wittena Gemots or Great Councils as well after their Conquest as they did before And therefore we find in an Old Register of St. Leonard Abby in York cited by Mr. Dodsworth in the Monastâ—â—on Anglic. put out by Mr. Dugdale this Memorable passage Memorandum quod Anno Domini 800. Egbertus Rex totlin Britanniae in Parliamento apud Wintoniam mutavlt nomen Regni de consensu Populi sui jussit illud de Caetero vocari Angliam And Will. of Malmsbury that Ancient and Exact Historian says expresly of this King Egbert Lib. 11. Has omnes Regnorum Varietates Egbertus animi Magnitudine composeuit ea uni quadrans Imperio ad uniforme Dominium servans unicuique proprias Leges vocavit Angliam It is therefore most evident that upon the Submission of those Kingdoms he Conquered he promised and agreed to govern them according to their Ancient Laws And hence we find the Mercian Laws called Merchen Lage to have continued in force long after that Kingdom was united to that of the West-Saxons Nor will your Inference from the Coronation Oath prove of any greater Moment For tho it be therein recited that divers of the Laws Liberties c. we now enjoy were granted by King Edw. the Confessor and other Kings Yet must it not be so understood as if the People of England had no Laws or Civil Rights before his time for that were to contradict plain matter of Fact and the Histories themselves I have already Cited But why they were called his Laws and his Customs Will. of Malmsbury hath very well observed when speaking of the good Laws made by Ancient Kings and especially by King Ethelred which were confirmed by King Câ—â—â—e he hath this remarkable passage In quarum custodiam etiam â—unc temporis Bonarum Sub nomine Regis Edwardi juratur non quod ille Statuerit sed quod observaverit The like I may say for the Laws of divers other Saxon Kings which tho they go under their Names Yet were made by the Assent of the Great Council of the Kingdom as by the Titles of the Laws themselves in Mr. Lamberts and Sir H. Spelman's Collection of them you may be satisfied if you please But for a Tast pray see the Laws of King Alfred which you Cited which tho said to be
were of a much later Date then both the Being and Priviledges of both Houses had but one and the Self-same Original viz. nothing else but the meer Grace or Favour of our Kings I have only added this the better to enforce my former Argument And therefore I desire you would now answer them both together F. I am very glad your last Argument doth not prove so formidable as you suppose for to remove that out of the way I must tell you that you now very much mistake the Question which is not only concerning the Iudicial power of the Peers alone but the Legislative Power of the House of Peers and Commons taken together which is the Subject of our present Dispute And therefore if I should grant you that the Iudicial Power of the Peers is derived wholy from the King Yet would it not at all â—mpaiâ— the Legislative Power of either of the Houses which no Historian or Law-book that I know of that is of any Credit or Antiquity ascribes to the King's Favour as you suppose Nor is it true that the House of Peers can give no Iudgment either Civil or Criminal without the King's Consent or Approbation which is never so much as askt let the Cause be what it will nor is his Presence at such Judgments at all 〈◊〉 but indeed you confound the King's Council in Parliament where I have shewed you already he sat and dispatched divers Causes in a Room or Chambeâ— distinct from that of the Peers with the House of Lords But to come to your main Argument that our Parliament must owe its Original to the King because each of the Estates of which it consists doth so This I hope will prove as weak when throughly considered For first of all I could shew you that those Councils could not owe their Original to the K. since the Saxon Kings rather owed their Original to them by whom they were most commonly Elected as I could shew you out of our Ancient Historians if it were now a proper time for it But as for our Bishops and Abbots c. which anciently made so great a figure in our Saxon Great Councils which I can shew you were then both Civil and Ecâ—lâ—siasticâ—l Assemblies I have already proved out of Tacitus that among the Ancient Germans a part of whom our Ancient English Saxons were their Priests who were their Clergy had a Considerable Authority in their Common Councils And can any body believe that a sort of People so Powerful and Subâ—ile as the Priests then were would lose their Power after they came over into England And we find in Bede that Edwin King of Northumberland consulted with a Council of his Great Mâ—n and Priests concerning his embracing the Christian Râ—ligiâ—n and when it was generally received can any body think that the Christian Bishâ—ps and Clergy would not expect to Succeed in the same Station which the Heathen Priests before held in their Councils And that they enjoyed this Power very early appears from hence that the same Ethelbert could not endow the Church and Monastery of Canterbury Sine Assensu Magnatum Principum tam Cleri quam Populi But indeed you are as much mistaken in the manner of the Ancient Elections of Bishops and Abbots in England For tho I own that at the time of the Conquest and somewhat before there might be no such Elections of them as the Ancient Canons required Yet that this was not so at the first you may see in Bede's Ecclesiastical History and other Historians where it is often mentioned that Bishops were chosen according to the Canons by the Archbishops and Bishops of the Province and Abbots by their Convent Nor was the Kings investing of them per annulum Bacculum then lookt upon as any Derogation to their Canonical Election that being no more than either a Ceremony of investing them with their Temporalities or a token of the King's Confirmation of the Election And that this was so appears by King Edgars Charter to the Abby of Glastenbury wherein he retains to himself and his Heirs jus tribuendi fratri Electo baculum pastoralem But that which so much Scandalized both Ingulf and Malmsbury was a Custom then in use as also long before the Conquest of confirming the Bishop Elect in a full Synod or Parliament And to this Custom Ingulf refers when he tells us A multis annis retroactis nulla eras Electio Prelatorum merè Libera Canonica Sed omnes Dignitates tam Episcoporum quam Abbatum Regis Curia pro suâ— complacentia conferebat Where by Curia Regis you must not understand the King's Court in the Sense it is commonly taken but for the Great Council or Mikel Synod as it was then called and which dispatched Ecclesiastical as well as Civil Affairs in the same Sense as Curia Regis is used by Brompton in the Case of King Edw. and Earl Godwin which you but now cited And in which Sense it is always used by Ingulph when he speaks of the Great Councils under the two Williams I will not be very tedious on this Subject and shall therefore give you but one Authority on this Head and it is that of Walslan who was made Bishop of Worcester in the time of Edw. the Confessor and that as Mat. Paris tells us Vnanimi consensu tam Clâ—ri quam totius Plebis Rege ut quem vellent sibi eligerent praesulem annuente in Episcopum ejusdem loci eligitur And then he goes on thus Nam licet fratrum non deesset electio Yet that there concurred to it Plebis petitio Voluntas Episcoporum Gratia Procerum Regis Authoritas All which amounts to no more than that he was Elected Chosen and Confirmed by the King and all the Three Estates For here is the Petition of the Commons joyned with the Good-will of the Lords and both backt by the Kings Authority Yet that all this did not hinder him from being invested per Baculum Annulum as the Custom then was may appear by the Speech this Bishop Wulstan made at the Tomb of Edward the Confessor whither he went to resign his Pastoral Staff after his being deprived of his Bishoprick by Arch-Bishop Lanfrank and the Synod And the Conclusion of this Speech is remarkable Tibi Scil. Edwardo Baculum resigno qui dâ—disti Curam â—orum dimitto quos mihi commendasti A like Example I could give you of the Election of this Arch-Bishop Lanfrank himself in the Kings Curia or Great Council not long after the Entrance of K. William but for this I refer you to Eadmerus But admitting that the King alone had in those days conferred all Bishopricks does it therefore follow that his Nomination of Bishops in the Pursuance of that Trust which the Kingdom reposed in him did likewise make them to derive all the Right they had to sit in the Great Council from the King 's Sole Authority you might indeed with as much Reason urge
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
atque supâ— mâ—nerâ— Ministri notantur And also in his Perambulation of Kent saith 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 was usually taken for the very same that we call now from the Latin word Gentilis a Gentleman that is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 A man well born or of good Stock and Family So that I think nothing can be more evident than that according to the Opinion of our best Criticks in the Saxon Tongue the word Thane doth not always signify a great Lord or Baron of Parliament as he is now called in distinction to an Inferior Nobleman or Gentleman And that there were also Burgh Thanes Thanes of Cities and Boroughs will evidently appear from a Writ or Charter of K. Edward the Confessor which is still to be found in Sir Iohn Cotton's Library in these words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Willem 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 alle mine 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 on 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which Charter with divers other of like nature confirming the Privileges of that Monastery were collected by a Monk of Westminster called Sulcardus who lived not long after the Conquest In the next place as for the word Magnates though I grant it there often signifies Great men or Lords Yet not only such as were Lords or Noblemen by Birth but as I shall shew you by several Instances as well before as after the Norman Entrance that it likewise also comprehended the Gentry or Inferior Nobility and such as were eminent and considerable either in the Countries or Cities for Interest Office or Estate As for the word Optimates I know it signifies the better or best sort of men yet not always great Noblemen or Lords For in Monastic Anglic. Tom. 3. we read of one Goda who under Edw. the Confessor subscribed himself Optimatem Ministrum Regalem i. e. Thane And lest you should apprehend that Optimas should always signifie the King's Thane or Tenent in Capite du Fresne in his Glossary defines Optimates to be Vassalli Barones qui ab ullo Domino ratione Hominu nede pendet but I shall speak more of this word Optimates when I come to speak of the times not long after VVilliam the First In the next place for the word Proceres it doth not only signifie Men Noble by Birth but Isidore a Spanish Author in the Gothic-times in his Origines Lib. 9. Cap. 4. says thus Proceres sunt Principes Civium and that this word often signified in the ancient English Saxon the Chief Magistrates of Cities or Burghs appears by Alfrick's ancient Glossary where these words Proceres Primates vel Primores he thus renders 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 buph papa And Du Fresne in his Glossary says also Proceres appâ—â—labantur qui in Civitatibus pracipuos Magistratus gerebant As for the word Principes any man that understands any thing of the Latin Tongue knows that it doth not always signifie Princes or Men Noble by Birth but any Chief or Principal Man remarkable by Place Office or Dignity and therefore we often read in Livy and other Latin Authors of Principes Civitatis and in this sense I suppose every Member of Parliament may be reckoned inter Principes among the most Considerable or Chief Men of the Kingdom So that when our ancient English Historians as well before as immediately after the Norman Conquest do often after the Arch-Bishops Bishops c. add caeteri totiâ—â— Regni Proceres Optimates or Principes as Members of the great Councils of those times Yet that these Writers did not then mean what you would understand by these words only Princes Earls or Great Lords Mr. Selden in his Titles of Honour teaches us when speaking of this word Principes as the most comprehensive of any says that though Princeps in the Singular were proper to every Earl or Alderman yet in the Plural Principes is more often applied comprehensively to others also of less though of special Eminency such as were Viri Primarii or Thanes And for this he refers us to the Charter of King Ethelwulf as it is recited by W. of Malmsbury Lib. 2 Cap. 2. And Ingulph wherein that King granted Tithes and divers other Priviledges to the Church Abby of Malmsbury which is said to be done Consilio Episcoporum Principum snorum as also of Hen. Hunt who relating the Election of Harold the Son of King Cnute expresses it thus Fuit magnum placitum apud Oxonford ubi Leofricus Consul omnes Principes eligerunt Heraldum Lastly As for the word Wites or Sapientes there can be nothing in that word which can limit it only to Men Noble by Birth since it signifies no more than the King 's Great Council of Wise men or Senators and might also well refer to the Chief Magistrates or Representatives of great Cities and Boroughs For Du Fresne in his Glossary tells us That among the Lâ—mbards Sapientes in Italia appellabant Civitatum Cives Primarii quorum Consilio Respublicae gerebantur Hieron Rubeus Lib. Hist. Raven Anno 1297. Sed longe antea illud nomen abtâ—â—uit in aliis Longobardâ—rum Civitatibus ut colligere liceret ex Ottone Acerbo Morena in Hist. Rerum Lâ—ndevetium c. Nor is this Authority inconsiderable since the Lombards were derived from the Goths from whom also the English Saxons had their Original and had the like fundamental Constitution and were governed by much the same Laws But that the Title of Wites or Sapientes was often attributed to the Commons of England I shall explain to you when I come to treat of the Antiquity of the House of Commons after the Normans Entrance where I shall shew you that divers Petitions were directed a tres Sages les Communes And sure whosoever is chosen by a County City or Borough as their Representative and is by them thought wise enough to be trusted with their Purses and to make Laws for them may very well I think be called in Old English a VVite or in our modern Dialect a Disercet or VVise man But let this word VVites signifie what it will yet it could never mean here great Lawyers or Iudges as your Dr. will have it since I very much doubt whether Law was then a Trade or Profession or not And that the Iudges in those days had not any more Voice in making Laws than they have now or any more to do in it than in the bare drawing of them up I am very well satisfied since if they had any such Power in those days I do not believe our Kings would ever have let them have lost it since it was so advantagious to their Prerogatives that they should keep it I could give you divers other Authorities though of later date to prove that the Commons were often included under the word Sapientes in our ancient Statutes and Records but I refer those for the times after the Conquest but I beg your pardon for being so
prolix already which the abuse your Dr. hath put upon these words would not permit me to avoid But now we have cleared most of the Terms in dispute between us I hope we may proceed with greater Certainty M. Though your Discourse hath been long yet since it is so essentially necessâ—ry to the right understanding the matter in hand I am well satisfied and I shall more fully consider the account you give of these words another time but a present give me leave to tell you That suppose I should admit that those words on which you have now given Interpretation of divers Authors may sometimes be taken in the sense you have now put upon them and that consequently the Commons might be represented under some of those general Names Yet am I not satisfied how the Aldermen and Magistrates of Cities and Boroughs could be included under this word VVites since in the Auctuary to the 35 Law of Edw. the Confessor 't is said Erant aliae potestates dignitates per Provincias Patrias universas per singulos Comitatus totius Regni constitutae qui Heretoches apud Anglos vocabantur Scilicet Barones Nobiles insignes Sapientes c. And Gregory of Tours Rodovicus and many of the foreign ancient Historians mention Sapientes only as Lawyers Counsellors Judges and among the modern foreign Lawyers Hottomon and Calvin say expresly they were such But perhaps not of the Inferior Ranâ— no more than the Saxons Sapientes were of which their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 only consisted And we have at this day the Iudges and King's Council and other great Lawyers that sit in the Lord's House and are assistant to the Parliament when there is occasion Nor have you yet brought any proof that the Cities or Towns then sent their Representatives to the great Councils in the Saxon times by this or any other Title But as for the Knights of Shires though I grant the Treatise called Modus tenendi Parliamentum mentions such Persons to have been present in Parliament in the time of K. Ethelred yet by that word Parliament so often used by the Author of that Treatise and divers other Circumstances it may be easily perceived that the Author lived but about the time of Edw. 3. or Rich. 2. as Mr. Selden in his Titles of Honour and Mr. Pryn in his Animadversions to Sir E. Cook 's 4th Institutes have very fully proved so that admitting that your Thanes or Lords of Towns did then appear in those Councils for themselves and their Tenants yet could they not be properly said to be their Representatives because as I told you before they were never chosen by them whereas now the ordinary Freeholders of forty Shillings a Year and the Freemen and Inhabitants in Cities and Towns have the grâ—â—test share in the Election of Knights Citizens and Burgesses And as for those Thanes you mention they or those under whom they claimed owed their Estates wholly to the Grants of former Kings and held their Possessions from them by some Tenure or other And by virtue of this Tenure it was that all the Lands of England were liable even those that belonged to the Church to those three Services anciently called Trinoda Necessitas viz. Expediâ—â—â— Castelli Pontis extructio that is Military Service against a Foreign Enemy and the Repair of Castles and Bridges and subject to the common Services of the Kingdom And that the Earls and Chief Thanes did hold their Lands by Knights or Military Service appears by the reliefs of the Earls and Thanes exâ—â—rest in the Laws of King Cnut in Sir H. Spelman's Councils So that if all the persons who held those Lands owed them wholly to the King's bounty it seems plain to me that they must likewise owe their places in the great Council to the same Original F. I think what you have now farther urged will be of no great moment against my Opinion for as to the Authority you bring from the Addition to that Law of Edw. the Confessor it is plain by the word Barones that it was added long since that time that word not being commonly in use till some time after the Norman Conquest But letting that pass it is plain by the rest of the Law if you would have been pleased to have read it out that these Heretoches here called Barons were no other than ordinary Gentlemen or Thanes which then answered the word Barones And these as this Law it self expresly tells us were chosen by all the Freemen in the Folemote or County-Court And therefore tho I grant they might be men of Estates yet there was no necessity of their being Lords or Noble by Birth nor is it likely that the people would have chosen their Earls or any other of the like Order to command them when they had sufficient choice of Thanes or Gentlemen in their own Countrey to command the Military Forces of it And tho it is true these Gentlemen are called Nobles and remarkable Wise Men yet this according to your own shewing doth not exclude others and those of a far different Profession viz. Counsellors Lawyers and Iudges all which you suppose had then Places in the Great Council as they have now in the Lordâ— House And if this Word might comprehend both Sword-men and Lawyers I cannot see why it may not also take in the better and richer sort of Citizens and Magistrates who in that Age as was notorious were elected by their respective Corporations And I have already proved that these were called Sapientes in other Countries and I see no reason why they â—ny not have been called so here too But that the King's Judges and Counsellors could have no Votes in the Saxon Great Councils I have already given a sufficient Reason to the contrary But I shall now farther shew you That the Cities and Boroughs in the Saxon times being so much more numerous and considerable than they are now must needs have had according to the custom of those Times a considerable share in those Great Councils since in them consisted a great part of the Strength and Riches of the Kingdom and were many more than they are at this day for Bede 〈◊〉 in the beginning of his History That there were in England long before his time 28 Famous Cities besides innumerable Castles and walled Towns of note many of which tho now extremely decayed or quite mined were then very considerable the greatest and richest part of the Nation inhabiting in those times for the most part in Cities or great Towns for their greater benefit or security and the greater part of the Lands of England in the Saxon times and long after â—y incultivated and over run with Forâ—sts and Bogâ— so that the Inhabitants of those Cities and Boroughs being them so considerable for Estates in Lands as well as other Richâ—â— could not â—e excluded from having Places both in the Brittish or Saxon Great Councils what man of Sense can
dispute the matter farther with you concerning the Word Populus since I shall refer speaking more about it till I come to the times after the Conquest And therefore to return to the Matter in hand Had you but read a little farther in the same Leaf in the Author you have cited you might have found who they were whom King Edward the Elder called to this Council The Words are these Edwardus Rex Synodum Praedictam Nobilium Anglorum congregavit cui presidebat Plegmundus Here your own Author tells us in few words the meaning of a long Title of this Synod now mentioned viz. that the Bishops Abbots Fideles Proceres Populus were all Nobiles Noblemen that is the Ecclesiasticks and Laies or the Bishops and Lay-Nobility as I shall make more evident hereafter and not the Vulgus Commons or ordinary sort of People And to this effect Malmsbury and the Manuscript in the Bodleian Library cited by Sir William Dugdale and Mr. Somner from the Treasury of the Records and Evidences of the Church of Canterbury cited by Sir H. Spelman do all report of this very Council That Edwardus Rex congregavit Synodum Senatorum Gentis Angloâ—â—â— cui prasidebat Plegmundus c. That King Edward convened a Synod of the Senators in the Saxon Aldermen of the English Nation that is such as were usually called to such Councils which were only the Nobles and Great men for ought yet appears from this Instance But what if after all there was never any such Synod called and consequently no such Title to it For it was said to have been assembled by reason of a chiding Letter from Pope Formosus Now this Formosus died Anno 895. that is ten years before this Council was supposed to be called F. I see this Authority galls you therefore I do not blame you to do what you can to be rid of it but I shall not give it up for all that For that this Word Populorum then signified all the Lay-persons who were actually Noblemen that is of the Greater Nobility I think is a great mistake for to what purpose are all these different Words here heapt together since the Word Proceres had donâ— as well alone in your sense and at once comprehended all those Lordâ— or Noblemen that you would only have to be there But the Word Nobiles did not in those times neither doth at this day in any other Countrey but England signifie none but Great Lords Barons or Peers since in Germany and France and other Countries every private Gentleman is Nobilis And I think the Middle or Less Thanes might then as well be called Nobiles as the Great ones And the Aldermen or other Magistrates of Great Cities and Towns might also very well be stiled Nobiles ratione officii for the time they acted in that Employment and might also deserve the Name of Senators as well as the Greater Aldermen or Earls And if there were no other Lay-Men but your greater sort of Aldermen then what becomes of your chief or Kings Thanes which you your self grant were constant Members of those Councils Nor indeed doth the Word Senator only signifie such who were Noblemen by Birth since among the Romans there were Senators of the Plebeian as well as Patrician Order as any man who hath but read Lucius Florus may quickly see But as for your Exception That there was no such Council because Pope Formosus is said to have died ten years before this Council was called it is a bold Assertion to annihilate a whole Council because of the mistake of the Date or time of its meeting or perhaps in the Name of the Pope or King then reigning especially when it was assembled upon so remarkable an occasion as the erecting of these new Bishopricks which all our Historians ascribe to this Council But I shall now proceed to another Authority and that is to the Great or Common Council held at Winchester Anno 853. where you will find in Sir H. Spelman's Councils as also in Ingulphus's History that after the Bishops Earls and other Great Men or Thanes who subscribed to the Law of Tythes granted by way of Charter there mentioned wherein these following Parties are mentioned Aliorumque Fidelium infinita multitudo qui omnes Regium Chirographum laudaverunt Dignitates verò sua nomina Subscripserunt and the Learned Commentator upon King Alfred's Life published in Latin at Oxford is so well satisfied that the Commons were meant by this Expression that he hath this remarkable Observation upon this King 's granting of these Tythes Bis videtur Rex Decimas Ecclesiae concessisse Primum Anno 844 2 vero 855. vel ut alii 854 è tota Regione cum Assensu omnium Nobilium totius Populi where this Author rightly supposes that the Words at the conclusion of this Council did comprehend the consent of the People or Commons as well as of the Lords or Noblemen Or else this reciting of this Word Populus as distinct from the Nobiles had been altogether in vain So that tho I do not affirm that the meer Vulgar or Plebeian sort of People did appear personally in the Great Council of those times any more than they do now yet they were there by their Representatives viz. either by Knights of Shires as now or else the chief Thanes or Freeholders of the Kingdom as also by the Aldermen or chief Burgesses of great Cities and Towns who I suppose did then represent those Politick Bodies since all men could not appear there in person But I shall give you another Authority out of the same Author viz. Arch-Bishop Parker's British Antiquities where when he relates the calling of the Council of Calne for the turning of Married Priests out of Monasteries and Cathedral Churches and putting Monks into their places He tells us a remarkable Accident that then happened viz. The falling down of the Room where the Council was assembled So that there fell together all of a sudden pray take the words themselves out of the Authors there cited Praesules Proceres Equites Nobiles pariter Ignobiles Corruerunt So that you see here were other sorts of men present in this Council beside the Prasules i. e. Bishops and Abbots and the Proceres i. e. the Earls and chief Thanes viz. the Knights or Inferior Thanes Noblemen or Gentlemen as also Ignobiles those that were not Noble by Birth such as were the Representatives of Cities and Burroughs and of this opinion the Arch-Bishop himself seems to be for at the end of this Relation he makes this Remark Sed nec hujus domus in qu◠〈◊〉 Ordinum tam Conspicui Clarique viri Consulto Convenerunt tam repentina ruiâ—â—â—pe Diabolica carere potuit Where by Omnium Ordinum he must certainly mean the three Estates of the Kingdom in the same sense as the word Ordines is used by Camden and other Latin Writers who call our Parliament Conventus Ordinum that
answer it I confess it appears very specious at first sight but what if I shew you that this Letter was written by the Lords only from Lincoln after the Commons had been dismissed from thence by proâ—ogation or Adjournment For tho it is commonly story'd but erroneously that this whole Parliament or at least the Temporal Lords and the Commons wrote to the Pope concerning the Jurisdiction and Superiority of the Kings of England over the Kingdom of Scotland Yet it cannot be so for this Parliament met on the Octaves of Hillary or the 20th of Ianuary and sate but eight days the Writs for the Commons Expences bear date Ianuary the 30th of the same Year and the Letter to the Pope signed by the Temporal Lords for themselves and the whole Community of the Kingdom of England is dated Feb. 12 th next following at Lincoln after the Commons had been discharged 14 Days So that you see the Barons still continued to stile themselves the Community of England and both Spiritual and Temporal Barons and other of the King's Council did stay and dispatch much Business after all others were dismissed according to the Tenor of the there recited Proclamation and may be fully proved from the Proceedings of that Paâ—liament as they are to be found in Ryley's Plâ—cita Parliamentaria So that nothing seems plainer to me than that the whole Community of England for whom the Barons there named set their Seals to that Letter you mentioned were the Community of the Barons only F. I confess Mr. Pryn in his Animadversions upon my Lord Coke's 4th Institutes was the first who started this Objection That the Commons could not be present as parties to this Letter Yet he still supposes that the Lords who stayed behind and made a kind of a Great Council at Lincoln signed it not only for themselves but for the Commons also tho not actually there and is not so extravagant as your Dr. to suppose that by the Words in this Letter Tam pro Nobis quam pro tota Communitate c. are to be understood the Community of Barons only for that would have been a Tauâ—ology indeed For so the last Word Communitas c. would have signified no more than that they subscribed for themselves and themselves and that the Word Cummaâ—â—tas Regni which I can prove to you by many Examples did then signifie the Commons of England must here mean more than your Community of the Earls and Barons For pray take notice that the Tenants in capite had now by your own concession left off to appear in Parliament in a Body as being now represented by the Knights of Shires c. So that Sir Edward Coke very well observes in his Fourth Institute that this Letter was sealed by above 104 Earls and Barons by the assent of the whole Commonalty in Parliament and Mr. Pryn is so far convinced of this in his exact History of Papal Usurpations that he â—tiles this Letter The Memorable Epistle of the Earls Barons Great Men and Commons of England c. But to shew you farther that there was no change neither of the constituent parts of our Ancient Parliaments nor of the Terms by which they are expressed our Ancient Records appears by a Plea among Mr. Ryley's printed Pleas of Parliament in 35th of Edw. I. where it is recited that in a Parliament at Carlisle Will. de Testa the Pope's Clerk was impeach'd per Comites Barones alios Magnates Communitatem totius Regni concerning divers new and intolerable Grievances laid upon them by the Pope Where you see there is no change of this Word Communitas after the Commons were as you suppose certainly present in this Parliament and why the same Word should not signifie the same thing in the beginning of this King's Reign as well as now you had need give me very good Authority to prove the contrary against such clear evidence as this But this Record goes on and farther recites that these Letters were sent to the Pope Ex parte Communitatis praedictae and in which Clerus Populus dicti Regni set forth the said grievances to the full Now as the Word Clerus here expresses all sorts of degrees of Clergy as well Superior as Inferior represented in Parliament and Convocation so much Populus here signifie the Laity of both Orders as well the Commons as Lords since the Commons were certainly present at this Parliament and why the Word Populus should not signifie the same thing long before I can see no Reason for it but the Dr.'s bear Assertion And as for what you say that the Commons could be no parties to this Letter because it appears by the Writs of Expences that they were discharged before this Letter was written admitting it were so it makes nothing against my Assertion For why could not the Commons agree upon the Substance of the Letter and leave the Lords to draw it up and subscribe it for them after they were gone home And that it was so appears by the Letter if self which recites That the King had caused the Pope's Letter In medio or pleno Parliamento exhiberi ac scriose nobis fecit exponi unde habito tractatu deliberationâ— Diligenti super câ—â—tentis in literis vestris memoratis communis concors unanimus omnium singulâ—râ—m consensus suit c. Now every one knows that understands any thing of Parliamentary Affairs that when any thing is said in an Act of Parliament or other Record to have been agreed upon in full Parliament that is always understood to have been done all the Estates being there present Nor can I see any reason why this Letter should not be called the Letter of the Commons as well as of the Lords since the very Statutes of that Age were often said to have been assented to by the Commons tho it is clear they were not drawn up into form till after the Parliament was dismissed But that the Commons were certainly parties to this Letter appears by a Record of the beginning of Edw. III. time printed by Mr. Pryn keeper of the Records of the Tower and which he tells us he found among the Rolls in the White-Town which Record contains the Heads of a Defence compiled by the King's Council in order to a stronger Defence against the Pope's taking cognizance in the Court of Rome concerning the King of England's Superiority over Scotland in the conclusion of the 2d of which Records there is a remarkable Article relating to this very Letter now before us in these Words Item ad finem quod Nobiles Regni Angliae Procuratores Crâ—munitatis subditorum Regni praedicti admittantur per ipsum Domiâ—â—â— Regem ad hujusmodi defensiones propenend prout corum Antecessores ab Avo Dicti Domâ—â—â— Regis nostri â—rant admissi Now to what Transaction of this kind in the Reign of Edw. I. this King's Grandfather can this passage
welcome Sir but I did not expect to see you again so soon M. I beg your pardon if I come unseasonably but the truth is I have so great a desire to conclude what we began upon that important Subject we last discoursed of that I could not be at ease till I had done my endeavour to give you Satisfaction therein if it be possible But to come to the matter that we now meet about I must now tell you again that tho' this your gloss upon King Iohn's Charter seems plausible at first sight nay is agreeable to the Dr's own way of dividing and reading the several Articles of this Charter yet upon better consideration I can see no good reason for making a full or at least a half stop in the 16 th Article after these words omnes liberas consuetudines suas adding the rest that follows ad habendum Commune Concilium c. to the following Clause de seutagiis assidendis c. much lest for supposing as you do without any ground that there were two sorts of Common Councils one for Assessing Escuage and the other for Granting all other Aids and Taxes and then if read otherwise it will plainly appear that it was one and the same Council of the Kingdom that did then both grant Aids to the Crown and Assess Escuage ratione tenurae which I am the more inclined to believe from the fourteenth Clause here cited which says That no Scutage or Aids shall be imposed unless by the common Council of the Kingdom Now to what purpose is this so-express'd if there was to be one Council for the granting of Aids and another for the Assessing of Escuage So that if this Common Council of the Tenants in Capite might grant Aids and Assess Escuage upon the Subjects unless in the case before excepted I see no reason why they should not be the only Council for the giving their Assent to Laws also and consequently of concluding not only their own Tenants but the King's Tenants in Petty Sergeanty and Socage nay the Tenants of any other Persons whatsoever And though I have seriously considered Mr. P's Appendâ—x to the Rights of the Commons asserted and Dr. b's Answer to it as also his Animadversions upon Iani Anglorum c. Yet can I not see any colour of an Argument for making any distinction between the King 's Curia of his Great Lords and Tenants in Capite and the Great or Common Council of the Kingdom but that they were then all one and the same It would be tedious to me as well as you to run over all the particular Authorities and Examples which have been urged pro and con in this Question But I desire you or your Friend Mr. P. to shew me that there was any Bishops Earls Barons or other Members of Parliament in the times we now treat of that had any place or Vote therein but according to their Tenure and the ancient Custom of all Feudal Tenants who by the German Gothic and Lombard Feudal Laws which in substance were the same with ours were always summoned to the Court of the King their Supreme Lord. But farther to prove that this Council for Assessing Escuage was no other then the great Council or Parliament of those Tenents in Capite appears from Liâ—tleton's â—enures where in his second Book Sect. 97. he tells us That after an Expedition Royal into Scotland Escuage shall be Assessed in Parliament upon all those who failed to do their Service in that Expedition so that if the Parliament did then Assess Escuage I desire to know why they might not do it in the Reign of King Iohn iâ— this great Council of the Arch bishops Bishops great Lords and Tenants in Capite were not the Common Council of the whole Kingdom in those Times yet that Escuage was not always Assessed in Parliament after this Charter of King Iohn but that the King by his own Prerogative did often grant his Tenants in Capite a Power to take Scutage of their Tenants without any Assent in Parliament the Dr. hath given you above a dozen Examples in the Reigns of Hen. III. and King Iohn Thus it was for Aids and Scutage Service but if it was for Scutage imposed in Parliament as a Tax upon Land by the Common Council of the Nation then the Tenants in Capite were not only the sole Grantors but the Collectors of that Scutage too from their Mesne Tenants And the Writs to the Sheriff was different from these in Scutage Service though the same in Substance as likewise appears by those Records the Dr. hath there given us F. I doubt not but I shall make good my Assertion and shall be able to defend what Mr. P. hath in his Learned Treatise asserted concerning this matter In the first place I must stick to that way of reading and pointing of this Clause in dispute since it is not only agreeable to the Dr's Manuscript Copy but also to the old French Copy published by Father D'achery in his Spicilegium vol. 13. which is written in the French of thaâ— time but to answer your Objection against this Interpretation you your self have in great part helped me to do it by that true distinction you have now made between a Scutage as an Aid or Tax and as a Service the latter of which you assert might be granted to the King to be raised by his Tenants in Capite upon their under-Tenants whereas the former was only grantable in Parliament by the Common Council of the whole Nation Which Tax I Affirm was always granted to the King and imposed by the Common Council of the Kingdom only and not by the Tenants in Capite alone before the Expedition was undertaken Whereas Scutage Service considered as a payment of so much Money was never due or payable till the Expedition was ended and then only upon such as had failed to serve in Person or by sufficient Deputies and was then to be Assessed by the Tenants in Capite alone And though I grant it may seem to have been a Prerogative as you call it exercised by some of our Kings sometimes to grant his Tenants in Capite a License to take Scutage of their Tenants without the Assent of the Great Council of the Kingdom yet such Payments or Assessments were either according to Law and the express Grant of this Charter it self as is that Writ of King Iohn to the Sheriff of Glocestershire for the Assessing of an Aid or Scutage Service of three Marks on each Scute upon the Tenants of Saber Earl of Winchester for making his Eldest Son a Knight and which the said Earl might have claimed of his Tenants by the Common Law as also by the 20 th Article of that Charter but for Scutage Tax Littleton tells us Lib. 2. Sect. 101. That because such Tenements came at first from the Lords it is Reason they should have Escuage of their Tenants and the Lords in such case might
Concilium Regni and gave this aid of a 40th part of their Goods viz. The Arch-bishops Bishops Abbots Priors Inferiour Landed Clergymen the Earls Barons Knights Freemen c. it being a Subsidy granted upon Goods and not laid upon Land and that it may fully express all the Parties to the Grant the Record tells us there were also the Villani the Inhabitants of every Village or Burrough Town And to let you see that our Ancient Manuscript Chronicles of this Age give the same sense to the expressions of this Record and that in the same Terms Pray Read this Quotation which a Friend of mine took out of an Ancient Manuscript called Chronica Monasterii de Hageny in the Cottonian â— Library as Ancient as the times are we are now treating on the words are these Anno 17. Henrici Regis 4 ti where note that the year is mistaken for 16. but the King is the same Henry the Third being often in that Age called the Fourth in respect to King Henry Son to Henry the Second Idem Rex accepit ab Archiepis Epis. Abbatibus Prioribus Clericiâ— terras habentibus quae ad Eccles. sua non pertinent ab Comitibus Baronibus Militibus Liberis hominibus villanis de Regno Angliae in Auxilium quadragesimam partem omnium mobilium suorum And to let you see that this Author makes a plain distinction between the Tenants in Capite and the rest of the Kingdom pray observe what immediately follows in the same place ut Anno. viz. 8vo A quo communi Assensu voluntate Magnatum suorum quam aliorum laicorum totius Regni quintam decimam Catalorum suorum universaliter accepit Where note by accepit is still to be understood he received it after the Peoples grant of it as before in the Record of the 16. and that by Magnatum suorum is meant the great Lords and Tenants in Capite and by aliorum Laicorum put here as distinct from them all other Orders or Degrees of men Now pray how could these Taxes upon the Goods of the whole Kingdom have ever been given but by the general Representatives thereof since all could not be there in Person unless you can shew me that men in those days held their Goods and Chatels by Tenure in Capite M. I think you and I may so far agree that this Council I instanced in consisted of Tenants in Capite only and likewise that they imposed Scutage upon no others than their Tenants by Knight-service yet doth it not therefore follow that they were not the Common Council of the Kingdom or might not have Tax'd all others though they were not their immediate Tenants as well as they did those that were And therefore I am not convinc'd but that these Persons mentioned in the Records you have cited which you grant constituted a Common Council of the Kingdom were no other than the same Tenants in Capite already mentioned for as for the Fideles mentioned in the Record of 4 th Hen. 3. I think the Dr. hath very well proved both in his answer to Mr. P. as also in his Glossary that they were no other than the King's Tenants in Capite and for this pray consider the Authorities he there gives us For though I agree with you that the word Fideles doth sometimes signifie generally all those who are under the Power or Subjection of their Prince Yet Hottoman also tells us That Fideles interdum specialiter dicuntur iidem qui Vassalli Qui Feudo accepto in Patroni Fide Clientelâ— sunt vicissimque suam ei certi obsequii nomine Fidem astrinxerunt and in this sense I suppose this word is to be taken in most of our Histories and Records I shall therefore give you one which will sufficiently clear the true signification not only of the word Fideles but of Liberi Homines too It is in William Malmâ—bury in these words Williâ—mo Filio suo Cum vix 12. Annorum esset omnes Liberi Homines c. Cujuscunque ordinis Dignitatis cujuscunque Domini Fideles Manibus Sacramento se dedere coacti sunt By which you may see that by the words Liberi Homines Fideles are here meant only the Feudal or Military Tenants either of the King or of any other Lord And to prove it farther by Records pray see here â—hose that the Dr. hath given us in the same place The first is that of the Patent Rolls of the 15. of King Iohn Rex Baronibus Militibus omnibus Fidelibus totius Angliae Salutem They were to hear what the Bishop of Winchester was to say to them about the Releasing the Interdict and that these Milites and Fideles were only the King's Tenants in Capite is clear from the latter part of this Record Vnicuique vestrum si fieri potest Literas nostras super hoc transmissemus sed Negotium majori Festiâ—atione c. Teste Meipso apud Rupel c. The King had writ to them all particularly but that the business required greater haste It seems before the granting of Magna Charta this King sent special Summons and particular Letters to his Barons and other Tenants in Capite to meet upon any occasion So likewise in these Writs there mentioned to the Tenants in Capite of several Counties as they are found in the close Roll there cited Rex omnibus Comitibus Baronibus Militibus aliis fidelibus suiâ— de Com. Ebor. Northumbr Cumbr. c. Vobis mandamus quod Prompti sitis Parâ—ti cum Equis Armis c. These were the Feudataries and Tenants in Military Service But to speak somewhat of the Clerici Terras habentes c. as also of the Liberi Homines Villani mentioned in the Record of 16 Hen. 3. you have now cited 1. I cannot allow your Version of those words Clerici Terras habentes qua ad Ecclesias suas non pertinent by Inferior Landed Clergy-men since 't is more than you can make out for I take them to be such Clerks as had Mannors and Free or Military Fees belonging to their Benefices and that held of the King in Capite the Fee whereof was in the Crown and not in the church and therefore did not belong to it But Mat. Paris fol. 377. informs us better who they were that gave this Tax when he speaks concerning this very Council ad Coloquium coram Rege convenerunt Episcopi aliarum Ecclesiarum Praelati cum Proceribus Regni concessa est Regi quadragesima pars honorum Now what the Liberi Homines were in this Record you have cited we may easily guess from the other Records I have made use of in 19 Hen. 3. viz. such of those Omnes alii qui de nobis Tenent in Capite which were not Milites in a strict sense or had not received the Order of Knighthood And I shall make out this sense of the words as also of
other Weapons And the 2d Article of King Iohn's Charter says expresly Concessimus etiam omnibut Liberis Hominibus Nostris Regui Anglia pro Nobis Haeâ—elibus Nostris in perpetuum omnes Liberates subscriptas â—abeâ—das â—enandas eis haeredibus â—uit de Nobia Hâ—rodibus nostris Which the Dr. himself renders thus We have also granted to all our Freemen of the Kingdom of England c. And sure then this Charter could not be made to none but Tenants in Capite unless you will suppose that none but they were Freemen and all the rest Slaves Nor was this Charter only made to relax the severity of the Feudal Tenures as you suppose since there are divers other Clauses in it which concern all the rest of the Freemen and Free holders in England as well as they for besides the first and second Chapters of this Charter which grants and confirms to the Church of England and to all the Freemen of the Nation their Rights and Liberties If you please better to consider it you will find that there are several other Chapters in this Charter which all other Freemen as well as the Tenants in Capite have thereby an Interest in as you may see by the 10 11 12 13. 15 16. 22 23 24 25. and above 30 other Chapters or Clauses therein exprest which are granted not to Tenants in Capite alone but either to Ecclesiasticks or other Lay Freemen of the whole Kingdom But to prove this a little further I shall give you but one or two instances out of this Magna Charta and that too in the Drs. own Translation Article 48. No Freman shall be taken or imprisoned or disseised of his Free Tenement or Liberties or Free Customs or Out-Lawed or Banished or any ways dâ—stroyed nor will we pass upon him or commit him to Prison unless by the Legal Judgment of his Peers or by the Law of the Land i. e. by Legal Process The other is the 49. Article of this Charter that we will not sell to any Man we will not deny any maâ— or delay Right or Justice Now Judge your self whether these two Articles were made to the Tenents in Capite alone or to all the Freemen of the whole Kingdom And hence it also plainly appears that the same Body of Freemen to whom this Charter was made were likewise present and gave their Assents to the making of it Nor were Vavasors or Fendatary Tenâ—nts of the Bishops Abbots great Lords and other Tenants in Capite Persons so inconsiderable as you would make them that they only should come hither but as followers to augment the Noise since I have already proved from Bracton that there were divers of them Men of great Estates and Power in their Countries besides the Tenants of those Abbots and Priors who as I have already mentioned did not hold in Capite of the King at all and yet made a great Part of the Kingdom besides Tenants in Petyâ— Serjeanty and those that held of great Honours who could never be represented by the Tenants in Capite at all And therefore I must notwithstanding what you affirm to the contrary look upâ— on all these Persons for as good Law-makers as the greatest Lords or Tâ—nants in Capite of them all since the main force of the Nation did not lye in them but in their Feudatary Tenants who would never have followed their Lords in this Assembly if they had not look'd upon themselve as having as good an interest in the Rights and Liberties they demanded as appears by this Silvo of all their Liberties as their Lords themselves and also as good a Right as they in giving their Assent to them when they were to be pass'd into a Law as they were by this Charter since these Feudatary Tenants were not at all obliged by their Tenure to obey their Lords Summons at any other Warlike expeditions but where the King or his Lieutenants went out in Person M. I am very well satisfied that this could be no Parliament for the reasons already given and tho I grant that these Charters were made to and in the Presence of the greatest part of the Clergy Earls Barons and Freemen of the Kingdom yet this proves not that they had any Vote or Suffrage in making of them nor indeed could they for the great Charters were only the Petitions of the People drawn into the Form of a Charter and passed under the King's Seal as his meer voluntary Free Grants and Concessions without any Votes or Authority from the People And therefore the great Charters of Henry III. recites them to have bin made of his meer Grace and Free Will as it is in the Preface to it But pray answer me a few plain Questions concerning King Iohn's Charter which if you can resolve I may be inclined to believe there might be some other great Council besides that of Tenants in Capite The first is if this Common Council of Tenants in Capite were for Assessing of Aids and Escuage only as you suppose it is provided by the last Clâ—use of this Charter why was the Cause of the Meeting to be declared in every Writ of Summons to the great Barons and Tenants in Capite if they were only Summoned about Aids and Escuage or other ordinary business of Course sure then the Cause of Summons need not to have been declared as it is here provided In omnibus Litâ—er is Submonitionis causam Submonitionis illius exponemus F. I will give you an answer to this Question immediatly but before I do it let me tell you that you are much mistaken in saying that the great Charters because they were the Kings Free Concessions were therefore passed without any Votes Suffrages or Authority of the People of England Since I have already proved in our discourse concerning the legis â—â—tive Power that the matter of those Charters was no more then an affirmative of the Common Law of England long before your Conquest and that the Peoples consent and Suffrage was sufficiently given in their drawing them up and offering them to the King to be Sealed and accepting them from him when he had done it And therefore that the great Charters are always called Statutes in our Ancient Records and Aâ—â—s of Parliament But to answer your Question I suppose that the King besides the ordinary business of their Assessing Escuage had often other affairs of great moment to be transacted with and Communicated to his Bishops great Lords and Tenants in Capite in which the rest of the Kingdom were not at all concern'd such as giving the King their Advice as a great Council concerning divers weighty Affairs as in the business of Sicily mentioned in the first Record I have cited as also about undertaking Forraign Wars against France Scotland Wales c. in which they were bound to follow and assist him together with their under-Tenants according to their respective Tenures and therefore it was but reason
it is manifest that at those times the Common Council of the Kingdom was held and from this also as from the former instances that the Barones Principes Optimates Mayres Regni did at those great Feasts pro more according to the Custom frequent the Kings Court and were the only Persons that constituted that great Assembly F. But pray give me leave to interrupt you a little did not I tell you but now that the King did often convene the Common Council of the whole Kingdom to meet the Bishops great Lords and Tenants in Capite at one of these Feasts and so it might be an Assembly ex more in respect of them but extraordinary to all the rest of the Kingdom and this often happened at other times as well as at these feasts according as the Kings occasions required when all the others were Summoned on purpose M. I have already answered that Objection and granting it might be so it does not prove it was so But I desire you to tell me what you can say to this expression in the Authority I have now made use of from Eadmerus Regnumâ—ombre convenit which is spoken of the most general Council when the Kingdom of England then met at the Kings Court So that your small Criticism upon the Words adunato Conventu or Concilio as if they signified this Union or Conjunction of two Councils into one is but a meer Pancy of your Authors those words signifying no more than a gathering or meeting together of all the Persons that constituted that Assembly as appears by these words in Eadmerus Adlinatis without either Praecepto or Sanctione Regis ad Curiam eâ—us in pascha Terrae Principibus i. e. the chief Men of the Nation being at his Court at â—aster But as for your main instance of King Iohn's Resigning his Crown to the â—ope in a Common Council of the great Lords and Tenants in Capite but not of the Common Council of the Kingdom I confess it were very considerable if it were true for tho I grant that in all the Charters of this Kings resignation the words you mention viz. Communi concitio Baronum nostrorum â—re inserted yet it could not be a great Council since tho I grant that all the Tenants in Capite were at that time Summoned to appear in Arms against the King of France yet it being a Military Summons for the gathering together of an Army and not for the meeting o a great Council and the five proscribed Bishops being in France and the Barons that sided with them fled beyond Sea and not darâ—ng to appear so that this resignation having been Executed before so small â— number of Barons as appears by the Witnesses to it viz. but two Bishops the chief Justidiary seven Earls and three Barons without subjoyning aliu Episcopis Comitibus Baronibus or Communitate or â—ota Communitate it does not appear that there were any more present so that this could not be such a Council as was constituted by King Iohn's Charter that is it was not a Parliamentary Council or general Representative of the whole Nation and therefore the Parliament in the 40th of Edw. III might very well say the resignation was made without their Assent and so I think this great Argument of yours comes to nothing F. Pray do not Triumph before the Victory For I doubt not but to prove notwithstanding what you have said that this was a real Common Council of the Barons and Tenants in Capite in which King Iohn resigned his Crown tho not of the Kingdom Which I prove thus First it appears by all our Historians that King Iohn had just before Summoned all the Earls Barons Knights and Freemen of the Kingdom whoever they were and of whomsoever they held to appear in Arms which made so vast an Army that after all the ordinary Rabble were sent home Matt. Parls tells us that the Knights Esquires and Freemen that stayed behind made an Army of 60 Thousand Men who were Encamped at Barham Down not far from Dover where this resignation was Executed So that this being almost as great a Meeting as that at Runne Mead not long after the King might very well have Summoned at least a great Council of all his Tenants in Capite to countenance this resignation and that he did do so the Charter it self says expresly which had it been otherwise would have appeared a notorious Lye to the whole World Nor do your Objections to the contrary prove considerable First you say this was only a Military Summons and not to a Common Council yet such a one as was constituted by this Kings Charter which sure could not be at this time when that Charter was not yet made till the Year after before which you grant that the great Councils might have met without the 40 days Summons expressing the cause of their Meeting and if they could meet ex more as you grant this Council did at the great Feasts of the Year without any Summons at all sure they might as well meet now on such an exigency The King had 't is true Summoned them at first upon another occasion but say you there was so small a number of Barons at this Meeting that it could not be a Common Council of the Kingdom neither do I say it was but the contrary but how does it appear it was not Why say you Five of the Bishops were then fled into France and a great many of the Barons of their Party The latter is not true in Fact few or none of the Barons siding with these Bishops but as for the Bishops what if Five were absent Were there not enough left to have made a Common Council of the rest of the Tenants in Capite Well but there were but Two Bishops present and Seven Earls and Three Barons as apPears by their Names at the end of this Charter without any mention of more or of the whole Communities being there a special reason as if no more could be present at this Assembly than whose Names are to it by this Rule the great Charters of King Iohn and 9 th of Hen. 3. were not made in a great Council of the whole Kingdom for there are no Witnesses Names expressed at the end of them it is true at the beginning of these Charters it is said they were done by the Council of certain Bishops Earls and Barons which yet were but a very few more of all sorts then there are mentioned at the end of this Charter of King Iohn's Resignation So that this appearance of the Bishops Earls Barons and Tenants in Capite is meerly precarious for if more might very well have been there it is most certain they were notwithstanding the paucity of the Witnesses to this Charter since those were added only for form sake and were commonly those who were nearest the Throne when the Seal was put to it I confess your first Objection is
more material from Eadmerus of the whole Kingdoms meeting the King at Christmass ex more without any Summons mentioned to which it may be reply'd that there might be a Summons to the whole Kingdom to meet as well as to the Tenants in Capite and this happening at Christmass one of the usual times of their meeting this Author might apply the Title of this Court to the Council of the whole Kingdom And that this was so will appear from an Anonymous Author who wrote in H. 1. his time published by Mr. Sylas Taylor in his History of Gravel-kind p. 194 who relates this Election of Arch-bishop Lanfranc to have been made Communi Consensu Consilio omnium Baronum suorum omniumque Episcoporum Abbetum tostusque Populi which certainly must mean somewhat more than your Council of Tenants in Capite alone And this also is confirmed by Matt. Pariâ— who has been so careful as to mention a Summons to a great Council immediately after the holding of the Curie of Tenants in Capite at Christmass the words are thus Anno Dom. 1237 i. e. the 21th of Hen. 3. senuts Rex curiam suam ad natale apud Win 〈…〉 autem continuo per omnes fines Angliae Scripta Regalia praecipiens omnibus ad Regnum spectantibus Archiepiscopis Episcopis Abbatibus Prioribus Comitibus Baronibus ut omnes in octabis Epiphaniae Londentis convenirent Now pray tell me if this Curia held ex more at Christmass had been the great Council of the whole Kingdom consisting of the Arch-bishops Bishops Abbots Earle and Barons and other Tenants in Capite to what purpose should the King coptinus i. e. immediately issue out his Writs for summoning the very same Persons to meet him at London on the octave of St. Hillary when they were then all with the King at Winchester and that he might have communicated what he had pleased to them Or what have you to say to the Curia or Common Council held before in the Ninth of this King but Eleven years after King Iohn's Magna Charta when the great Charters were confirmed and an Aid granted by the whole Kingdom which Matt. Paris Anno Dom. 1225. relates thus which tho' I gave you at our last meeting it will not be amiss to repeat again Rex Henricut ad natale termis â—â—â—iam suam apud Westmon praesentibus Clero Populo cum Magnatibus Regionis which words as I have already urged must comprehend some other Persons then your Tenants in Capite alone otherwise the word Populus had been altogether in vain so that you see the Common Council of the whole Kingdom was often held at the same time with the ordinary Curia and is by way of Excellency called by the same name as we at this day call the great Council of the Kingdom the High Court of Parliament and Curia and Court differ no more then a Latin Name from an English which is likewise very well confirmed and explained in the Chronicle of Walter of Civentry to be found indivers private hands who lived in the Reigns of King Iohn and Henry 3. and speaking of this 〈◊〉 Council or Parliament which though it might begin at Christmas with the Curia yet it seems held on till Candlemass when the Commons were joyned to it He 〈◊〉 thus In Purtsicatione beatae Marlie convocaniur apuâ— Londâ—n Proceres Angliae ibiq tractatu babito dissustere cum Claro Populo ibiâ—â—m convâ—cato Rex 〈◊〉 Libertates tam Ecclesâ—â—e quam Regni quam Forestâ—â— sicut cartie suae sunt â—â— confectâ—â— Now I leave it to your self to judge whether by these words Tractaâ— diffusure babiâ—o cum Clero Populo c. put after the calling of the Proceres i. e. great Lords and Tenants in Capite any thing can be meant but the inferior Clergy and Commons all which being joyned in one Body made up the Commune Concilium Regui And that this was so appears by the date of this great Charter it self 11 Februaril Anno Regui nono H. 3. But that the whole Council or Parliament when thus joyned was likewise called Caria Regis I can prove by several Examples among which see the Stat. of Mâ—â—on in 20 Hen. 3. beginning thus Provisum est in curia Domini Regis Henrico c. coram Will. Cant. Archi piscopo Episcopis suffraganeâ—s suis coram naure parte Comitum Baronum Auglie ibidem exillentium pro Coronatione qu dem Regis pro quâ— omnes vocati fuerunt ita provisum fuit câ—ncessum 〈◊〉 â— predictis Archiâ—pise Epise Commitibus Baronibus quam ab ipso Rege Aliis Now who can these Alii mean coming thus after Barones but the Commons as now understood M. I confess these Authorities you have now brought carry some colour of in Argument but if they are lookt into will signifie little to begin with your first quotation from Matt. Pariâ— suppose I grant that there was a Curia 〈◊〉 more held at Westminster at which there then appear'd at Court only a small number of the Bishops Lords and great Tenants in Capite but the King not finding them enough for the great Affairs he had then to communicate to them immediately issued out his Royal Writs to all the Orders of men there mentioned to appear at London on the octave of St. Hillary but how can you affirm there were any Commons then summoned in the sense in which they are now taken the Barons being the lowest Order here expresly mentioned but if you would but have read the words that immediately follow in its place you have now cited you would easily see that your Knights of 〈◊〉 and Burgesses could not then be there the words are these venti iâ—iâ—â— Sancti Hiâ—â—arii Londoniâ—s insiniâ—um Nâ—bilium multitulo how could these representatives of the Commons have been elected and returned in so short a time as between Christmass and eight days after Twelfth-tiâ—â— so that there could have been scarce three Weeks time from the date of the Writs presently after Chistmass-day to the meeting of the Parliament but the truth is by this infinita Nobilium multitudo who are here said to have come to London is to be understood the great number of the smaller Tenants in Capite who all appeared at this Council according to King John's Charter Whereas your Knights of Shires Citizens and Burgesses if they had all come at that time could not be called infinita Nobilium multitudo as not consisting at this day of 600 Persons and sure would have been fewer then But as for your other Authorities if this be true I have now laid down they will be as easily answered since by the word Populus put before and distinct from the Magnates in the passage you have now quoted from Mat. Paria these smaller Tenants in Capite are to be understood and by Magnates the Bishops and great Lords and this also explains the like Phrase you now cite from Walter
Citizen of London was de Assensu Praelatorum Comitum totius Communitatis Regni pardoned all Homicides The very like words are also used in the same Roll in the Act of Pardon granted to the City of London I shall trouble you but with one mâ—re in this Kings Reign but it is so remarkable I cannot omit it of the 34 th of this King and is to be found in the old Edition of Statutes Printed in French the Title begins thus Ceux sont les choses queux nostre Seigneur le Roy Prelats Seigneurs la Commune ount ordaines establéâ—s To conclude with the Reign of Richard the Second the like expression is found in the Parliament Roll of 5 th of Richard the Second where the Statutes begins thus Pur Commune prosit du Râ—yalmâ— d' Angleterre cient faiâ—es per nostre Seigneur le Roy Prelats Seigneurs la Commune de le Royalme esteantes en cest Parliament from the Titles to which two last Statutes I pray observe that the word le Commune is not only used for the Commons in the same sense as it was in the fâ—rmer Kings Reigns but also that these Statutes were made by the joint Assents of the King Lords and Commons So likewise in the same Roll are recited Concordiae sive Ordinationes factae de Communi Assâ—â—su Regis Procerum Magnatum Communitatis Regni Angliae which I give you to shew that the words Communitas le Commune always signifie the same thing in our Statuâ—es and Records viz. the Commons as now understood different from your great Lords and Tenants and if they are to be taken in this sense after the 18 th of Edward the First I would be glad if you could shew me any sufficient reason why they should not be so understood aâ— along before that time as well as in the 49 th of Henry the Third only M. Tho I grant that these words you mention are to be understood for the Commons as now taken in many Records and Acts of Parliament after the 18 th of Edward the First and therefore you need not to have taken the paâ—ns to have gone beyond that time yet notwithstanding I think I can prove to you by very good Authorities that the word Communitas which I grant is the same thing with le Commune in French tho put after the words Comites Barones does not signifie the Commons of England in general but the Community of the Tenant in Capite alone or at least the Community of all Tenants by Military Service and that as low as the Reign of Edward the Third but for proof of thiâ— I pray peruâ—e this Writ which the Doctor hath given us in his Answer to Mr. P. Rex Archiepiscopis Episcopis Abbatibus Priotibus Comitibus Baronibus Militibus omnibus aliâ—s de Comitatu Cantiae Salutem Sciatis quâ—d cum pâ—â—mo die Junii Anno Regni nostri Decimo octavo Praelati Comites Barones caeteri Magnâ—tes de Regno nostro concorditer pâ—o se pro tota Communitate ejusdem Regni in pleno Parliamento nostro nobis concesse unt Quadraginta solidos de singulis Feodis Militum in dicto Regno in Auxilium ad Primogenitam Filiam nostram Mariâ—andam c. Cujus quidem auxilii levationi faciendae pro Dictae Communitatis aisimento hucusque supersedimus gratioâ—è c. By this Record it is clear that such as pâ—id Scutage that is Forty Shiâ—â—ings for a Knights Fee were then the tota Regni Communitas and no others and of these the Tenants in Capite granted and paid it first for themselves and Tenants and then their Tenants in Military Service by vertue of the Kings Precept paid it to them again for so many Fees as they held of them so that this Tax being raised wholly upon Knights Fees must be granted only by those that held by Knights Service But further that the Communalte de Royaume the Community of the Kingdom as represented by the Tenants in Capite did still so continue as above mention'd till almost the middle of King Edward the Third's Reign is as clearly proved by this Record of that King Rex dilectis fidelibus â—uis Vicecomiti Wygorniae â—homae Bâ—ttâ—ler de Upton supeâ—â—abrinam Militi Thomae Cassy de Wych salutem â—â—â—atis quod cum in pleno Parliamento nostro apud Westmonasterium ad Diem Lunae proximo post Vestum Nativitatis Beatae Mariae Virginis proximo praeteritum tento Praelati Comites Barones Magnates de Regno nostro Angliae c. pâ—o se to a Communita e ejaâ—dem Regni nobis concesseâ—unt quadraginta solidos de singulâ—s â—eodiâ— Militum in Diâ—â—â— Regno Angliae c. so that the whole Community of England in this Record were Military Men such as held Knights Fees or parts of Knights Fees and such as paid Scutage and they were neither the ordinary Freemen or Free-holders nor the Multitude nor Rabâ—le F. I pray Sir give me leave to answer your Arguments from these Records as you â—ut them least I forget what you have said in the first place as to this Record of the 30th of Edw. I. which relates to a Tax given in the 18th Year of his Reign and recites an Aid of 40 s. upon every Knights Fee through the whole Kingdom to have been given by the Bâ—shops Earls Barons and other Magnates or great Men of the Kingdom in full Parliament for themselves and the whole Community thereof to Marry the King's Daughter and which Subsidy he had deferred to Levy till now and therefore because this was a Tax granted only upon Knights Fees that those only who payed this Scutage were then the Communitas or whole Body of the Kingdom which is no Argument at all since from this we may plainly collect the clean contrary for if none had been to pay to this Tax but those that held by Knights Service in Capite then the King would have had no need to have had it granted in Parliament since by the 14th Article of King Iohn's Charter he might have Taxed his Tenants in Capite for the Knighting of his Eldest Son and the Marriage of his Eldest Daughter without the Assent of the Common Council of the Kingdom and according to your Hypothesis and the Authorities you have brought to prove it these Tenants in Capite might also by the like reason have made their Tenants by Knights Service have Contributed to this Tax which yet you see they could not do without the consent of Parliament and therefore this Aid or Subsidy being granted in Parliament must needs extend to all the Lands in the whole Kingdom as well those that held by Knights Service as well as those that did not for it is not here said as in the Writ to the Sheriff of Sussex qui de nobis Tenent in Capite and then the words pro se â—ota
Charter in the same words as they are in the Charter it self only before Dederunt there is also added the word Concesserunt which shews that the Author of this part of those Annals who might very well write at the same time or presently after the Charter was granted by his Paraphrase of Concesserunt seemed to intend to prevent any such mistake in the the signification of the word Dederunt And that this was the constant opinion of all Historians and Antiquaries to this day I will shew you from Henry de Knighton who lived within 100 Years after this Charter was granted in his History hath this passage in this Yera viz. 9. of Hen. III. Post haec Rex Henricus concessit Magnatibus terrae duas Chartos unam de Foresta aliam de Libertatibus ob quam causam Communes Regni concesserunt 15. partem mobilium in mobilium From whence it appears plainly that at the time when this Author writ it was generally believed that the Commons called Milites Libri Tenentes in this Charter granted this 15th of all their Goods I shall conclude with a modern Authority of a Person who you will own to be a Man of great Judgment and Learning viz. Sir Henry Spelman who in his Discourse of Magna Charta inserted in his Glossary hath this remarkable passage Demum Anno. 9. Regis Henrici concedente Clero Populo cum Magnatibus Qâ—intodeceimam partem omnium rerummobilium totius Regni Angliae renovantur Chartae Lib rtatum prout sub Rege Iohanne prius erunt conditae where it is plain that by Populus he meant the Commons as distinct from the Lords and Clergy As for what you say further whereby you would set up the Authority of Mat. Paris against the express â—ords of the Charter it self I suppose you or the Dr. from whom you borrowed this Nâ—tion are the first who interpret ancient Statutes and Records according to the general Words of Historians Whereas I always thought till now that the sense of Historians ought to have been understood by Records and not vice versa since the former differ one from another in their manner of expression of the constituent parts of our great Councils or Parliaments and for brevity sake express themselves in as few words as they can But notwithstanding the Conciseness of those expressions which we find in Mat. Paris and other ancient Authors yet I think even in this place now cited there are words enough to prove there were other Lay Persons at this Council besides Earls and Barons there mentioned or else what is the meaning of these words Aliis Uâ—iversis immediately after Baronibus to whom Hubert de â—urgh proposed the Kings Demands and who also gave their answer to them And if these Gentlemen were not Barons as certainly they were not or else to what purpose was this distinction made then they were meet Commoners and so we find that there were Commons in Parliament from the Authority of Mat. Paris before the 49. Hen. III. which is likewise proved by the Statute of Mertoâ— which I have lately cited in the conclusion of its Preface runs thus Ita provijum fuiâ— concâ—ssum tâ—m à predictis Archi-piscopis Episcopis Comiâ—ibus Baronibus quam ab ipso Rege Aliis Now pray tell me who these Alii were if not the Commons for you did not answer this Question when I last mentioned this Statute M. I shall tell you my thoughts of these Alii by and by when I come to these words omnes de Regno but in the mean time give me leave to give you the Drs. Interpretation of this word Milites put here after Barones which Milites were not Knights of Shires as you suppose but Tenants in Capiâ—e by Military Service as appears by the Assize or Statute of Richard the I. quoted by R. Hovelen in his History which is said to have been made per Assensum Consilium Archiepiscoporum Episcoporum Abbarum Câ—miutum Baronum Militum Now these Milites were often stiled Barons and the Barons Milites Nam Miles saith Sir Henry Spellmaâ— quem Baronem vocibant non à Militari Cingulo quo Equite crebantur sed a Militari â—edo quo alias possessor liberè Teneus num upatus est nomen sumpsit that is such as had Lands given them for or such as held Lands by Military Service and did Homage and Fealty to those of whom they held their Lands and in this sense Mat. Paris calls all the Temporal Nobility Milites when in the Parliament 37. of Hen. III. he says a Militibus Concessum est Scutagium illo Anno. ad Scutum tres Marcâ—t F. I think your Interpretation of the word Milites iâ— forced and quite contrary to the true meaning of this Charter now pray shew me the consequence that because the Barons were anciently stiled Milites that therefore your Tenants in Capiâ—e were then stiled Barones too which is not true and quite contrary to this Charter it self where these Milites whoever they were are put after the Barones as a distinct Order of Men from them whereas if the terms had been then reciprocal the words Baronâ—s or Milites chuâ—e which you please would have comprehended both but indeed this Title of Miles was then of a much larger signification and took in all Knights of whatsoever Tenancy whether by Military Service or Socage as appears by those Writs of the 25 th and 26 th of Henry the Third which I have already cited whereby those that held Estates sufficient to maintain themselves de Tenemento â—o tam militari quam Socâ—gi were a like Summoned in to take the Order of Knighthood and when Knighted were certainly as good Milites as the best of your Tenants in Capitâ— and so might very well be reckon'd amongst the Milites in this Charter But pray tell me what say you to these following words Liberi Tenentâ—s omnâ—s de Regno M. These likewise bear a like Interpretation for by these libere Tenentes that immediately follow in this Chaâ—ter after Milites I suppose were meaâ—t no other than the lesser Tenants in Capiâ—e who having scanty Knights Fees or part of Knights Fees desired not Knighthood or had compounded or fined for it that they might not be made Knights and who not being actual Knights are here called Free Tenants or Freeholders as I have already told you at our last meeting F. Pray give me leave to answer this Interpretation of the word liberi Tenentes before we proceed farther You may remember that I have answered all your Authorities whereby you would prove that the Tenants in Capiâ—e were at this time the only proper Freeholders of the Kingdom which is false since I then proved to you from Sir Henry Spelman's Glossary that any Freeman having an Estate of Inheritance was as much Libere Tenens a Freeholder as the best Tenant in Capite in England
will not affirm But least I tire you as well as my self in dwelling so long upon things so plain and obvious were not they by too much industry rendred obscure I come at last to the conclusion of your discourse which is no more then a repetition of what you had said at first that because all the Kingdom could not be Summoned to appear in Parliament and that Villains and Servants c. never paid to this Tax that therefore the words omnes de Regno are not to be understood literally a doughty discovery and therefore you have found an expedient to help this contradiction by your Tenants in Capite and Thy Knights Citizens and Burgesses for the Laity and by the Procuratores Cleri for the Inferiour Clergy whose Interpretation is most agreeable to truth I durst leave to any indifferent Judge for I must needs tell you once again I cannot see any manner of reason either from Authorities or from the Nature of the thing that your Tenants in Capite could be the omnes de Regno in a legal sense and as such did represent all the Freemen of Estates in the whole Kingdom therefore if you can prove this it may go far to convince me otherwise not M. Since you will not rest satisfied with those Authorities I have already produced to prove it pray let me discourse with you a little more particularly of the nature of Tenures by Knights Service I therefore suppose that the Dr. hath very well prove by several Records as also the two Writs of 19th Hen. III. to the Sheriffs of Somerset and Sussex that the King anciently by his Prerogative and his original Power and Right reserved upon Knights Fee did Tax the Military Tenants of his Tenants in Capite and their other ordinary Free Tenants and by his Writs caused them to pay both â—cutage Tax and Scutage Service and other reasonable Aids as often as necessity required F. I grant indeed the matter of fact to have been sometimes as you say since there is no averring against express Records but I say likewise that as for those Writs the Dr. has given us concerning the Kings Ordering the Sheriffs to distrain the Mesne Tenants of the Tenants in Capite for Scutage Service as to Marry their Daughters or for the finding of Men in any Warlike Expedition it was no more then those Mesne Tenants were bound to do by the Tenures of their Estates if they had failed to serve their Lords in Person or by sufficient Deputies and therefore the King might legally grant them Scutage upon such Tenants and perhaps might also change their Service in Person into a pecuniary Aid as appears by some of those Writs the Dr. has given us and this not by his Prerogative but by Law so likewise tho your Tenants in Capite could Tax themselves in their distinct Council or else in the Common Council of the whole Kingdom at what rate they pleased for the Knights Fees they held of the King and tho the King might sometimes undertake by this pretence to I evy a Scutage of two Marks on their Under-Tenants also yet does it not appear by either of those Records you have now cited that they gave for more then themselves alone the words in the Writs being only that they had given the King Esseâ—ax Auxilium of two Marks upon every Knights Fee as well Wards as others who held of him in Capite without any mention of their Mesne Tenants so that if the Sheriff was afterwards ordered to distrain these Mesne Tenants also for two Marks for each Knights Fee they held of their Lords this was straining a point of Prerogative and was expresly against Law for at this rate the King might by the lâ—ke Prerogative have Taxed all the Bishops Abbots great Lords and all other Tenants in Capite without their consents as well as their Mesne Tenants tho it was contrary to the express words of the Charters of King William I. and King Iohn which you your self cited at our former Meeting so that granting the matter of fact to have been practised sometimes as your Records make out this is no proof that this was a constant Law or settled Custom much less that the King had a right so to do M. I do not doubt but that I can prove to you that what this King then did in charging these mesne Tenants was according to his ancient Prerogative and what himself and his Predecessors had frequently done both before and after the Clause in King Iohn's Charter of Nullum Scutâ—gium vel Auxilium ponam in Regno meo â— was granted nay after it was granted Hen. 3. and Edw. 1. taxed their Demeasns through England tho not the whole Kingdom by the advice of their Privy Council until the Statute de Tallagio non concedendo was made in 34 Eâ—w 1. and both Rich. 1. and K. Iohn had taxed the whole Kingdom without common assent before the Grant of Magna Charta as also in the Reign of Rich. 1. as you may find in Hoveden who lived at that time the passage is long and therefore I shall only give you the beginning of it viz. that this King Anno 1198 Regno 9. accepit de unaquaque Carucata terrae totius Angliae V. solidos de Auxilio c. and then goes on to shew us the manner how it was raised and collected and 't is observable that he uses these words Auxilium and Tallagium for the same Tax so we find in Mat. Paris that King Iohn took a seventh part of all Moveables without common Assent and another time a Thirtieth the great Men and Clergy grumbling at it K. Hen. 3. also taxed all his Demeasn in the 33 d year of his Reign as appears by a Writ in the close Roll of this year whereby he also commands the Sheriff of Buâ—ks that he make Philip Basseâ— a Ratiâ—nabilâ— Tallagium de hominibus suis de eo tenentilus in Mannerio de Wycumb quod aliquando suit Dominicum Praedecâ—ssorum Râ—gis c. In the 39 th year this King as the Doctor shews us at large by a Recoâ—d in the keeping of the Remembrancer of the Exchequer he taxed all his Demeasn and among the rest the City of London at 3000 Marks which tho with some contest mentioned in this Record they were at last forced to pay because it was found upon Record that this King and his Father had several times â—alliated or Taxed the saiâ— City in like manner at the sums therein mentioned so that at last the Mayor and Citizens were fain to acknowledg themselves thâ—s Talliable by the King So in the 52. year of his Reign he Taxed all his Demeasn Lands beyond Trenâ— by his Escheators and this Right was acknowledged by all the Bishops Earls and Barons in the 33 d year of Edw. I. as appâ—aâ—s by their Petition to him in Parliament in these words Al Pâ—tiâ—ionem Arcâ—iepiscoporum Episporum
Commons as at this day But that this Statute was made by the Common Council of the Kingdom and not by a Conventicle of a few of the Lords and Tenants in Capite Summoned ad Libitum Regis appears by all the original Writs founded upon several branches of this Statute whâ—ch are to be seen in the Register reciting that this Statute was made de Communi Concilio Regni Now the word Commune signifies no more than General and how could this be call'd a General Council which only consisted of a few of the wiser sort of Bishops Lords and Tenants in Capite As for what you and the Doctor cite out of Cambden's Nameless Author of King Henry's sending Writs of Summons and culling out a few of the Earls and Barons out of a great multitude that were Seditious after the War with the Barons was ended if you will have it extend to those who never forfeited by reason of Montfort's Rebellion I need not say much to it since Mr. Selden in his Titles of Honour hath sufficiently baffled that Authors authority for if it was never true as to Earls it was not like to be truer in respect of the greater Barons But as for your lesser Barons or Tenants in Capite I know not but he might be much more in the right in respect of them What you say as to Robert Walrand is not much material for tho he was never so great a Baron or Lawyer yet he could draw up this Law but as being one of the Kings Council who in those days drew up and prepared all Bills that were offered in Parliament And thus Britton might well say that this was made by the Common Assent of the Grand Seigneurs this Act being so highly for their advantage and yet the Commons might be also there as well as the Great Lords for otherwise if Britton must be literally understood what becomes of your Minores Discreti mentioned in this Statute to have given their consents as well as the Majores whereas this Author mentions none at whose request it was made but the Great Lords only But that by these Minores Incolae Regni mentioned at the end of this Statute were meant the Knights Citizens and Burgesses Pray see a Writ of Summons the 24th of Edward I. with the Doctors note upon it in his answer to Mr. P. the Writ is directed to the Arch-bishop of Canterbury and concludes thus that he should warn the Procuratores Cleri there mentioned to appear with him ad tractandum ordinandum faciendum noâ—iscum cum ceteris Praelatis Proâ—eribus aliit â—ncâ—lis Regni nostri in the Margin over-against these last words the Doctor gives us this Note the Incolae Regni were the Knights Citizens and Burgesses mentioned in the former Writ but not here particularly enumerated Now though it is true that this Writ is after the time that the Doctor will acknowledge the Commons to have been constantly Summoned to Parliament yet if these words could mean the Commons in this Writ why they should not signifie the same in this Statute I can see no reason but the Doctors strong prejudices to the contrary But if you have no more Authorities to alledg from the Reign of Henry the Third pray go on and shew me the rest of your Arguments why you suppose the Commons were never called in above half the Reign of Edward the First till the 18 th And I desire this the more because as I have already proved from the Statute of West 1. 3 Ed. 1. the words tout le Communalty de la Terre coming immediately after the Counts Barons and those other words foregoing must needs signifie the whole Commonalty of the Land and so the Doctor himself has rendered it in his Answer to Mr. P. M. But first pray observe what the Doctor there tells you that by the word Commonalty he means not the Commons in the sense they are now taken but the Community of the Tenants in Capite only and for this pray consult the Writ of Summons to the Archbishop of Canterbury to come to this Parliament which I confess is the only Writ of this kind that is left upon the Rolls from the 49 th of Henry the Third to the 23 d. of this King in which you will find the Archbishop Summoned ad tractandum ordinandum una cum Prelatis magnatibus Regni that is as the Doctor explains it with the Prelates and Great Men of the Kingdom which Great Men very frequently comprehended as well the Barons Majores as Minores the Earls Barons and greater Tenants in Capite and the less which then were the Community of the Kingdom so that your Interpretation of the words des Greindres des Mendres in the Statute of Gloucester by which you would interpret the like words in the Statute of Marlbridge for the Commons as now understood will signifie nothing as being before the time we allow the Commons to have been Summoned to Parliament in this Kings Reign F. It were a very easie thing for any man of a confident undertaking temper to frame what Interpretations he pleases from the general or equivocal of Histories or Records if he could as easily find Authorities to support it but I see nothing like a proof for it but the Doctors bare Assertion Since I have already sufficiently proved that the words Communalty and Communitas coming in our Statutes and Records immediately the Counts and Barons after do always signifie the Commons as now understood and why they should not signifie so here I can see no reason for as to the words in the Writ to the Arch-bishop of Canterbury they prove nothing at all who were the Constituent parts of that Parliament for if the word Magnates must need signifie the greater and lesser Tenants in Capite only pray why do they not signifie so in the Writ of Summons to Parliament of the 49th of Henry III. to the Bishop of Durham which the Doctor has Printed where there is no mention made of his Treating or advising with any other Persons then the other Prelates Magnatibus nostris yet the Doctor within two Leaves after gives us the Writs of Summons for the Knights Citizens and Burgesses to this Parliament But it seems in his first Edition of his Book against Mr. P. he had not made those rare discoveries he did afterwards where he pretends not to carry this Opinion beyond the 49th of Hen. III. Therefore pray go on to shew this new Light by which the Doctor discovered that the Commons were never Summoned to Parliament all the Reign of Edward I. till the 18th M. In the first place you cannot shew us any mention of the words Communalty or Communitas in any of the Parliaments of this Kings Reign not in the Statute de Bigamis made in the 4th of this King the Preamble thereof runs to this effect That these under-written
the sparing their Pains and Expences to have a Colloquy and Treatise with some of the same Members and therefore names the very Persons whom he commands should appear before him at Winchester to inâ—orm him and his Council of the best manner and form whereby the said Tax might be soonest and most conveniently levyed according to the intent of the said Grant So that nothing is more plain from the Writ it self than that this Assembly was no Parliament the proper Business of which is always to make Laws give Money or reâ—ress Grievances none of which â—ut it is apparent were the cause of this meeting To which these that were Summoned did not appear as Knights of the Shires their power being expired at the Dissolution of the Parliament but only 〈◊〉 so many particular private men who by reason of their Interest in the Country the King supposed could best inform him in the business above mentioned But that in the Reign of this King there were several Councils of this kind which tho no Parliaments as having but one Knight one Citizen and one Burgess and only making Temporary Constitutions concerning Trade and other things of less moment which were to be put in practice for a time till they could be confirmed by the next Parlâ—ament appears by the Ordinance or Statute of the Staple above mentioned And of these Mr. Pryn in the first part of his Parliamentary Register of Writs gives us divers Precedents which he rightly So that I hope I have now fairly run through and examined all the Precedents which you or your Doctor have been able to urge in this great Question and I think if you are aâ— candid and ingenuous as I take you to be you will not assert that any of them do amount to a proof either that the Commons were never Summoned from the â—9th of Henry III. to the 18th of Edward I. or that the Writs of Summons he there produces was to a Parliament and not to a great Council or that the King ever took upon him to appoint what number of Knights Citizens and Burgesses should come to Parliament or could nominate who they should be or could discharge whom he pleased from serving as Members therein All which your Doctor I think with greater confidence than right understanding of the true meaning of the ancient Writs and Records of Parliament hath undertaken to assert I beg your pardon for troubling you so long on these Heads since the length as well as diversity of Records you have now cited could not be answered in less compass M. I must confess you have given pretty plausible answers to most of the Authorities and Records I have now cited yet I cannot assent so far as to come over to your Opinion without a longer consideration of the strength of the answers you have now given me to the Doctors Authorities But in the mean time you would oblige me if you could give me the rest of your Arguments whereby you would undertake to prove that the Commons have been always an essential part of the Parliament ever since the Conquest for it seems to me by what I have read out of our ancient Historians that there is no express mention made of them by Name in any Historian or Record till the Reign of Edward I. and as for those Arguments Mr. P. hath given us to the contrary methinks the Doctor hath given satisfactory answers to them F. I think I have made it clear enough that the Commons of England were a constituent part of the Wittena Gâ—â—ote or Common Council of the Nation before your pretended Conquest and if it doth not appear that they were deprived of that right by the Normans entrance which you have not yet proved I think we may very well conclude that things continued in the same State as to the Fundamental Constitution of the Government as well after your Conquest as they did before Nor have you as I see proved any thing to the contrary since you confess that as much a Conquerour as King William was yet he altered nothing in those Fundamental Constitutions the most that you pretend he did being only in an alteration of the Persons who were the Legislators from English to French Men or Normans so that upon the whole matter I think there is no need of any new Arguments to confirm this truth since the Commons of England claiming a right by Prescription of having their Representatives in Parliament if you nor your Doctor nor none of those whom he follows can prove by sufficient Authorities when this began then I am sure you ought if you were of the Jury in thâ—s matter to find for the Tenants in Possession since that together with a constant usage time out of mind is as well by your Civil as our Common Law a sufficient Title to any Estate yet I doubt not but to shew you the next time we meet that the Doctor has noâ— given such satisâ—aâ—â—ory answers as you imagine to most of Mr. P's best Arguments proving this right of Prescription to have been the constant Opinion of an succeeding Ages to which I shall also add divers new Authorities as well from ancient Historians as Parliamentary Records and Statutes but since it is grown now very late I beg your pardon till another opportunity M. I thank you Sir for the pains you have taken to satisfie me in this greâ—t Question but pray come again within a Night or two that we may make an end of this weighty Controversie and then we may proceed to whaâ— we at first intended viz. whether the King can ever lawfully be resisted or whether by any Act he may Commit he can ever 〈◊〉 to be King F. I accept of your Proposal and shall wait of you again as you appoint but in the mean time pray consider well of the Authorities I have now urged and the Answers I have given to your Argument and then I hope there will be the less need of new ones M. I shall not fall to do it but in the mean time am your humble Servant F. And I am yours ADVERTISEMENT THE Publisher begs your Pardon for letting a Term pass without giving you this Dialogue which has so close a dependance on the Former but it has been his own unhappyness and not his faulâ— In the next place he hopes you will not take it ill of him that he has â—welled this to a bigger bulk than the other since the Author by reason of the weightiness as well as multiplicity of the Arguments could not make it 〈◊〉 wâ—thout doing a considerable injury to this Important Subject And to let you seâ— that I do not dissemble the Author was forced to reserâ—â— two or three Sheets more of the same Argument because he would not â—ver tire you for the next Discourse And the Author also desires the Learned Doctor Brady's pardon if through his own hast or the Inadvertency of the Compositor there have been some Omissions
of Knights of Shires I will not dispute it farther with you since it is a Point of your Common Law in which I confess my self but meanly skilled but I shall take farther time to advise with those that know better in the mean time as for the Cities and Burroughs let them have appeared when you will their coming to Parliament could not be so ancient as before the time of Richard I. much less the Conquest as you suppose since Mr. Pryn hath in the same second part of this Parliamentary Register traced the summoning of the Burroughs to their very Original and proved it could not be ancienter then the 49th of Henry the 3d. I shall here contract his Arguments and give you them as I did the former First He here proves that there were never but 170 Cities and Burroughs who sent any Members to Parliament of which 170 in his Catalogue nine of them never had but one or two Precepts and others but four Precepts of this Nature sent them upon none of which Precepts the Sheriffs made any returns of Burgesses as these Ballivi Libirlatis nullum mihi dederunt responsum or nihil inde secerunt attest whereupon they never had any more Precepts of this kind sent them to this Day Christ-Church in Hampshire onely excepted which of late years hath sent Burgesses to Parliament so that in Truth there were only 161 Cities and Burroughs in England that ever sent Members to Parliament during all the precedent Kingâ— Reign viz. From the 26th of Edward I. to the 12th of Edw. the 4th Secondly That 22 more here named of these 161 never elected and returned Burgesses but once and no more during all the said time Thirdly That many more of these ancient Burroughs here named never sent Members some of them more then twice others thrice others four others five others six others seven others eight times and Lancaster has but 13 Elections and Returns of Burgesses and no more during all the above mentioned Reigns Fourthly That altho some of these Burroughs here named who seldom sent any Burgesses tho they were summoned by the Sheriffs Precepts to Elect Burgesses without any great intervals of time to six or seven Succeeding Parliaments yet most of them had along discontinuance of time some of above 200 others above 300 years distance between those few respective Returns of which he here gives you several Instances and referrs you to his precedent Catalogue of Returns for the proof of it So that there were but 112 Cities and Burroughs taking in the Cinque Ports and all who senâ— Members to Parliament in the Reign of Edward I. seven of which made onely one return and no more for ought I can discover before or after Edward 1st Reign till of very late Years Yet that in Edward the 2ds Reign there were Precepts issued by the Sheriffs and returns of Burgesses for 19 new Burroughs here named which for ought I can discover never elected any Burgesses before Fifthly That under this long Reign of Edward the 3d. there were Sheriffs Precepts issued to 19 new Borroughs returns made upon them to serve in Parliaments or great Councils who never sent any Members before and Precepts to more that made no returns at all thereupon as for the Cinque Ports of Dover Romney Sandwich Winchelsey Hastings Hâ—the and Rye though there be no Original Writs for or returns of their electing and sending Barons to Parliament now extant before the Reign of Edward the 3d yet it is apparent by the Clause Rolls that they sent Barons to Parliament in 49th of Henry and during the Reign of Edward 1st and 2d of which more anon Sixthly That King Richard the 2d Henry the 4th and Henry the 5th created no new Burroughs at all neither were there any Writs or Precepts issued to or Election of Citizens or Burgesses by any new Cities or Borroughs but such as elected them before their Reigns Seventhly That about the midst of King Henry the 6th long Reign there were Precepts issued to and returns made by five new Burroughs and no more which never sent Burgesses to Parliaments before viz. Gatton in Surrey Hâ—ytesbury Hyndford Westbury and Wootton Basset all in Wiitshire yet very poor inconsiderable Burroughs tho they elect Burgesses at this day That during Edward the 4th Reign there was one new Burrough here named which began to send Burgesses to Parliament under him though it never sent any before F. Well but how came this about that so many new Burroughs were made in some Kings Reigns and few or none in others â— and so many omitted that had served before in other Parliaments M. Pray read on and you will see this Author gives us a very good account of that and impures it to two Causes First The Partiality and Favour of the Sheriffs and the Ambition of the Neighbouring Gentry who desired to be elected in such new Burroughs Secondly The meer Grace and Favour of the King who by divers Charters to new Corporations have given them the Priviledge of sending Burgesses to Parliaments For Proof of which pray see what this Author here farther says It is evident by the precedent Sections and Catalogue of ancient Cities Burroughs Ports and their returns of Writs and Election before specified with these general Clauses after them Non sunt aliae or ullae Civitates nec Burgi in Balliva mea or in Comitatu praedicto praeter c. as you may see by the return of the Sheriff of Bucks Anno 26 of Edward I where he denies there were any Cities or Burroughs in his whole County and yet the very next Parliament but one within two years after the Sheriff of Bucks returns no less then three Burroughs viz. Agmundesham Wycombe and Wendover with the Burgesses Names that were returned so that the 78 new Burroughs here named were lately set up in the Counties since Edward the 4ths Reign by the Practice of Sheriffs and the Ambition of Private Gentlemen seeking to be made Burgesses for them and Consent of the poor Burgesses of them being courted and feâ—sted by them for their Votes without any Charters from the King and are all me in poor inconsiderable Burroughs set up by the late Returns and Practices of Sheriffs And tho others may conceive that the Power of our ancient Burroughs or Cities Electing and sending Burgesses and Citizens to our Parliaments proceeded originally from some old Charters of our Kings heretofore granted to them and to which Opinion I once inclined yet the Consideration of the new discovery of the old Original of Writs for Electing Knights Citizens and Burgesses I found in Caesars Chappel hath rectified my former mistake herein and abundantly satisfied me that neither bare ancient Custom or Prescription before or since the Conquest not our Kings Charters but the Sheriffs of each Counties Precepts and Returns of Elections of Burgesses and Citizens for such Burroughs and Cities as they thought meet by Authority
that Charter being lost they desire a Confirmation of it from the King whereupon He by this Commission directs a Writ of Enquiry to several Gentlemen and others therein mentioned to enquire if the said Burgesses had enjoyed all those Liberties so granted by the said Charter of King Athelstan or not which would have been ridiculous if the King and Council had been satisfied that no Cities and Burroughâ— sent any Members to Parliament under the Saxon Kings and not before the 49th of Henry the Third and this Authority is the more remarkable because Barâ—staple is one of Mr. Prin's Modern Burroughs for which he can find no Precepts or Returns earlier than the 26th of Edward the Third tho' no doubt as appears by this their Petition in the 17th of this King it had sent Burgesses to Parliament many Ages before tho' the Precepts and Returns upon them be all lost And that not only the Cities and Burroughs do thus claim by prescription but that the Knights of Shires have always claimed the same Priviledge may appear by another Petition of the Commons House extant on the Parliament-Rolls of the 51th of Edward the Third which I shall contract and put into English out of French reciting thus because of Common Right in the Roll de Commune dâ—oit of the Realm there are and shall be Elected two from every County of England to come to Parliament for the Commune of the said Counties And also the Prelates Dukes Barons Counts Barons and such as hold by Barony which are and shall be summoned by Writs to come to Parliament except the Cities and Burroughs who ought to Elect from among themselves such as ought to answer for them Whence we may conclude that the Commons then claimed to come to Parliament of Common Right that is by Common Law or general Custom of the Realm time out of mind as much as the Bishops Abbots and great Lords 2. That neither the Bishops Lords nor Tenants in Capite had any Authority to impose Taxes or make Laws for the Commons of the Counties or these for the Cities and Burroughs without their consents because they had each of them Representatives of their own Order to answer for them in Parliament M. I must confess this would have been absolutely convincing could we have seen this Charter of K. Athelstans but since the Towns-men of Barnstaple do only in their Petition among others set forth this priviledge of sending Burgesses to Parliament now who can tell whether there was any such thing in their Charter or not since they confess they had lost it Or granting it was as they set forth yet is will sufficiently evince that the right of Cities and Burroughs to send their Representatives to Parliaments was not as you suppose as ancient as the Government but had its Original from the Grants and Charters of former Kings F. As to these Objections we can have but all the proof that this Subject is capable of at such a distance of time but if I were a Jury-man in this matter I should rather believe that the Town of Barnstaple had such Charter not long before they made this Petition to King Edward the Third and that there was such Clause therein as they here set forth than that these Towns-men should be so impudent as to desire a new Charter of Confirmation from him of all their priviledges of which this of Electing Burgesses was one if there had never been any such Clause in it at all But as for the other Objection that if it were so then it appears that all the right of Cities and Burroughs sending Members to Parliament is derived from the Grants and Charters of former Kings it is very fallacious as you will find if you consider and compare the Ancient right of the Bishops and Abbots as also of all the Temporal Nobility to come to the great Council of the Kingdom which as to the first of them I proved to be as Ancient as Christianity it self among the English Saxons And as for the Priesthood and Nobility in general to have been as old as the Institution of the Government it self Now tho' you grant that long before the Conquest our Kings had the nomination of Bishops and Abbots and also the making of Aldermen Earls and Thanes who made the Temporal Nobility in those great Councils will it therefore follow that because our Kings were thus entrusted by the people with this prerogative of naming and investing Bishops and Abbots per Annulum Baculum and also of creating those great Men now mentioned that therefore all the right either Order had to appear at those Councils not only proceeded from but depended wholly on the King's good will and pleasure and that he could have chosen whether he would have named any Bishops or Abbots to vacant Sees and Abbeys or made any Aldermen Earls and Thanes or not but have changed the whole frame of the Government into an Absolute Despotick Monarchy by destroying the great Council of the Kingdom whether you believe the Clergy Nobility and People would have suffered any of those Kings to have made such an Innovation Apply this to the right of the most of Ancient Cities and Burroughs in England and see if it do not exactly agree with this parallel Case of the Bishops Abbots and Temporal Nobility since as there were Priests and Nobles who from the very first Institution of our great Councils did not owe their Original to the King but brought it with them out of Germany and to whose Suffrages the first Saxon Kings owed their Elections so no doubâ— were there divers Cities and Towns in England so considerable from the time of the Expulsion of the Britains that it was thought â—it to pitch upon them as most able to send Representatives to the great Councils of the Nation that so they might imitate their old Government in their own Countrey in which the great Cities and Towns had always a considerable share as they have in the German Diets to this day tho' the King might then as he is now be entrusted with the Prerogative of making new Cities and Burroughs with like priviledge with the old ones tho' this was but rarely practised till the Reign of King Iames I. The two Vniversities being some of the first Corporations on which he conferred this priviledge by Charter of Electing and sending two Burgesses to Parliament which power has I confess been exercised even to a grievance in the Reigns of his Son and Grand-sons so that it were to be wisht that there was a Law passed that no New City or Burrough should be made for the future without an express Act of Parliament Now I would very gladly hear what you can further say to so many weighty Authorities which I have now given you for evident it is that if they are compared and considered in series of time that neither Edw. 2d or 3d nor their Judges or Learned Council no nor the Parliaments
Earl and in the like pardon to the Constable and Mareschal in the time of Edward the First which I now also quoted those Lords would not own they had transgressed but the words are only etiam transgressiones si quas fecerit So that since such Reformations could not be brought about without violence and blood-shed and some Irregularities which in times of Peace could not be justified by the strict Letter of the Law it was but reason that for the quieting of mens minds and their future security they should be indemnified for what they had done with so good an intent and for the common good of the Kingdom But that such Acts of Pardon do not relate to the Titles such Kings had to the Crown but only to their being Kings in the Eye of the Law appears by a like Act of Pardon passed in Parliament in the first of Henry the Seventh to pardon and save harmless all those that came over with the King and all that helped him to recover his just Right to the Kingdom against King Richard the Third there called that Vsurper So that you may see such Acts of Pardon do not concern the just Titles of Princes nor the Justice of the War but are to quiet mens minds under the new Government whereas those that took part with the Usurper were not pardoned but left to the Law since the present Government would not take care for their security that had obstructed its settlement So the Act of Oblivion of the second of Charles the Second tho' it pardons Treasons expresly yet it as well pardons the Treasons of them that had Commissions from King Charles the First or Second as well as those that acted by Commissions from other pretended Authorities So that you see in the Judgment of this so modern a Parliament men might be supposed to be guilty of Treason tho' they had taken part with the King and had acted by â—is Commission if the things commanded were illegal M. I confess you have taken a great deal of pains to justifie taking up Arms against nay Imprisonment of our Kings when that which you call the preservation of the Government requires it that is when there is a â—action in the Kingdom strong enough to make a disturbance for it was very well said by Tacitus in the speech he makes for Otho to the Souldiers to take up Arms and kill Galba then Emperour that it was in vain to speak more for the justification of that Action quod Laudari non potest nisi peractum Treasons if successful have never wanted a sufficient Party in the Nation to make up a Parliament to countenance them and to pardon nay justifie all those that have been Actors in them as we may see by those Acts of Indemnity you mention and therefore I am not the more convinced that such Resistance was lawful notwithstanding those specious Declarations of Parliament of their being made for the publick good and preservation of the King and Kingdom But you have done very warily to pass by without any Justification the Deposition of King Edward the Second as also that of the Resistance as you call it of Henry Duke of Lancaster against King Richard the Second as also his Deposition tho' done in Parliament since all the proceedings against this King were repeal'd in Parliament in the first of Edward the 4th as appears by the Parliament Rolls of that King's Reign wherein the taking up Arms against King Richard by Henry Earl of Derby is said to be done contrary to his Faith and Legiance and his taking the Crown called Usurpation and the killing of King Richard his Soveraign Lord termed as it justly deserved Murder and Tyranny which does tho' not directly yet by consequence condemn his Deposition too since he is after that here called King and you do as warily pass by the late Rebellious War of the Long Parliament against King Charles the First as also his horrid Murder before his own Gates because you know cry well that this Doctrine of Resistance seldom stops with a bare Reformation of what is amiss but commonly ends with the Murder or Deposition of the King or else driving him from his Throne as we now find it by woful experience in the Person of our Unfortunate King who was so lately forced to quit this Kingdom for the security of his Person and therefore to put an end to this part of the Dispute the Parliament of the 13th of King Charles the Second were so sensible of the great Mischiefs that attended this Rebellious Doctrine as having been the destruction of one of the best Princes that ever Reigned and the occasion of the loss of so many brave Men besides the ruine of so many great and Noble Families that they were resolved to do their utmost to prevent it for the future and therefore the King and Parliament in the 13th and 14th of King Charles the Second passed those remarkable Acts concerning the Settlement of the Militia in the King and his Successors to take away all dispute about it tho' they declare it to have been his Ancient Right and therefore to take away all pretence for taking up Arms either by the Two Houses of Parliament or any other person whatsoever they in preamble to both these that these Acts thus expresly declare Forasmuch as within all His Majesties Realms and Dominions the sole Supreme Government Command and Disposition of the Militia and of all Forces by Sea and Land and of all Forts and Places of Strength is and by the Law of England over was the undoubted Right of His Majesties and His Royal Predecessors King and Queens of England and that both or either Houses of Parliament cannot nor ought to pretend to the same nor can lawfully raise or â—evy War offensive or defensive against His Majesty His Heirs or Lawful Successors and yet the contrary hereof hath of late been practised almost to the ruine and destruction of this Kingdom and during the late Usurped Governments many Evil and Rebellious Principles have been distilled into the minds of the People of this Kingdom which unless prevented may break â—orth to the disturbance of the Peace and Quiet thereof c. And in pursuance of this Statute it was likewise ordained by the Authority aforesaid in the 2d Statute for the Militia in the 14th year of the same King wherein not only the same preamble is recited verbatim as before in the former Statute but it is also Enacted That no person no not a Peer of the Realm shall be capable of acting as Lieutenant Deputy Lieutenant Officer or Souldier by vertue of this Act unless after the Oaths of Allegiance and Supremacy they take this Oath following viz. I A. B. do declare and believe that it is not lawful upon any pretence whatsoever to take Arms against the King and that I do abhor that Traitors Position that Arms may be taken by his Authority against his Person or
the Doctrine of the Church of England but the known Laws of the Land F. I do not deny but the persons of the Kings and Queens of this Realm are and ought to be sacred and inviolable and yet no man will therefore say that they are irresistible too in all cases whatsoever as if the King for example should attempt to ravish Women or rob or murder men upon the High-way or in the Streets as the Ancient Historians relate of Nero and Commodus the Emperours and as is reported of the last King of Portugal and which was one of the reasons of the Estates of the Kingdom removing him from the Government And as our Henry the Fifth is related by our Historians to have robbed Men upon the High-way before he was King so if he had gone about to continue the same frollick after he came to the Crown I do believe his Person and all those that Robbed by his Commission had not been irresistible nor would it have been Treason within the Statute of the 25th of Edward the Third tho' he was then actually King any more than it would have been Treason had the like happened when he was Prince tho' he was expresly within that Statute and yet this would not have contradicted the Parliament◠Declaration in the 12th of Car. the 2d That neither the Parliament nor the People having Coercive Power over the persons of the Kings of this Realm since by Coercive Power must be here understood his being subject to the penalties of the Law or being called to an account by any ordinary Jurisdiction but there is a vast difference between that and Resistance for Self defence since I may use this against the violence of my Father in the State of Nature as I have already proved tho' I cannot justifie the punishment of my Father or calling him to an account as his Superiour therefore it is only in the King 's Politick Capacity that he can be said to do no wrong since you see he may personally commit the greatest Crimes imaginable tho' his person is unaccountable for want of a Superiour Power to call him to an account yet is it not so with those who act by his Illegal Commissions or Commands since having delegated the Executive part of his Regal Power to his subordinate Ministers and Officers 't is they that are accountable and punishable too by the Law of the Land in case they any way transgress or violate it by his illegal Commissions or Commands as I shall prove more at large by and by And as no War properly so called can be made against a single person but against a Man as he is aided or assisted by many others So this War against the King can only be interpreted of such Wars or Rebellion as are made against him in his politick capacity as he is King and Supream Governour of the Realm and the Commander of all the Militia thereof to Legal intents and for the defence thereof against Forein or Domestick Enemies nor was there any great fear according to the Ancient Legal Constitution of this Kingdom that this could often fall out or indeed he put in practice by the Kings of this Realm if we consider the Ancient Form of ordering the Forces or Militia of this Kingdom For in the first place I desire you to observe that by the Common Law of England before these Acts of the Militia the King himself could not but in case of Invasion or Insurrection Levy or keep on foot any standing Forces in England unless for Forein Succours which was usually by Contract with some great Lord or other Person or by Tenure against the Scotch and Welch and as for the Militia it was never reduced into Troops Companies or Regiments till the Spanish Invasion as will appear by all Acts of Parliament in the Statutes at large where Acts for the Assize of Arms were made only for Men to provide and have in readiness such Horses and Arms to shew them before the King's Commissioners when they should be required to take view of them a Regimented Militia being of no elder date than Queen Elizabeth King Iames the First did by Act of Parliament in the first year of his Reign repeal all former Acts for Assize of Arms and never established any thing in 〈◊〉 thereof So it stood till King Charles the Seconds time that these new Acts for the Militia wer made And to confirm this point beyond all dispute in all the quarrels between the King and the Barons and York and Lancaster the Parliament still refused to meet unless the Forces were disbanded that were raised upon those occasions Nor had any King standing Forces or Guards till King Henry the Seventh◠Time when that of the Yeomen was settled by a special Act of Parliament and what is most remarkable the Commons in the Long Parliament of Charles the Second did by their Votes entered upon their Journals declare and assert that by Law no Armed Force could be kept up in time of Peace except the Militia and as for Foreign Succours they were obliged to be carried immediately to the Port of their discharge and were not to exceed one Month at furthest from the time of their first Muster as for Castles and Forts within the Realm they were all supplied and defended by Tenures but for the Militia of old time it was in the Sheriffs of the Counties to make use thereof for the Execution of the Laws and defence of the Kingdom except in the cases aforesaid and it was Treason for any Subject to Levy Souldiers except by the King's Commission and in the cases aforesaid or so much as to Ride or go Arm'd as may appear by the Statute of Northampton in the 2d of Edward the Third much less was it lawful for them to take up Arms unless in their own defence against Illegal Violence and in such manner as the Law directs and it was one of the Articles that was adjudged to be Treason in Parliament against Mortimer that he Rid Armed to Parliaments and threatned the Prelates and Peers that did any thing against his will and caused the King to make War on his Nobles who advised the King to Levy War upon his Subjects See Coke's 4th Institutes Title Council-board where the 4th Article against the Spencers is that they falsly and maliciously had counselled the King to raise Horse and Arms in destruction of the good People against the Form of Magna Charta and so by their Evil Counsel would have moved War within the Realm to the destruction of Holy Church and of the People for their proper quarrel so that taking Arms by the King against his Subjects and the Subjects against the King was both alike against Law 2ly That taking Arms against the King in construction of Law is Levying War but this by no means extends to defensive Arms in maintenance of the Law which is allowed and enjoyned and that nothing else was here mean is plain
him more irresistible than he was unless you will suppose that the King may not rob with a few without resistance but may justifie the doing of it with an Army and if so pray tell me what number they must be to render the King and all those with him thus irresistible And therefore it is no wonder if our Law has made no express Provision for resisting the King's Person since it had so high a regard for his Honour as not to suppose He could be guilty of making War upon his People But if the King shall be among such wrong doers either by Force or Fraud the case will be otherwise Thus when K. Edward and Richard the Second joyned their own presence to the Illegal Actions of the two Spencers and Robert de Vere Duke of Ireland yet the Nobility and People took no notice of that but prose cuted them notwithstanding the Kings personal joyning himself with them and Thomas Earl of Lancaster tho' he had the worst of it and was taken and executed yet was his Attainder reversed in Parliament as I have already said and his Quarrel with the Spencers declared to be good and just as the like resistance was also declared to have been for the safety of the King and safeguard of the Realm in the Parliament of 11th of Rich. the Second wherein the Duke of Ireland and the rest of his Faction were Conâ—emned as I have already shewn you and tho' I grant that in such a division between the King and his People his Person may run a great hazard yet it is his own fault and not theirs if it so fall out and they are not to lose their Lives Liberties and Properties in case the King will fully joyn himself with Murderers or Robbers since this is not to resist Royal Authority but Illegal Force without any Authority at all and if he will thus expose himself to the mercy of blind Bullets charge is to be given to all not to kill him wilfully or wittingly since we are never to despair of his Repentance till he absolutely renounces all reconciliation with his People and thus even in the midst of such a resistance the King's person may be as safe as he can be in such Circumstances though not so safe as if he were in his own Pallace But if an Army of wicked and lawless men must not be resisted because they have got the King's person on their side then Prince Edward afterwards K. Edward the First could not have justified his fighting with Simon Montfort and those of his Faction who had as you your self acknowledged 〈◊〉 the Person of King Henry the Third into their Power and acted all things in â—is Name and by his seeming Authority as the Historians of those times expresly tell us and the King being in Montfort's Army at the Battel of Evâ—sham was in great Danger being then wounded in the Neck with an Arrow So that if this Oath had been then to be taken in this sense this rescuing of the King by his own Son out of the hands of these wicked Councellors had been taking up Arms by his Authority against his Person M. Pray give me leave to answer this instance you have now brought because I think it does rather make against than for your Opinion I grant Prince Edward might well justifie his fighting with Simon Montfort tho' he had the King's Person then in his Power because the Prince very well knew that his Father was carried about with them as a Prisoner against his will and therefore ought to release him tho' with some hazard to his Father's Person since it could not be otherwise brought about But sure there is a great deal of difference between fighting to release my Prince when made a Prisoner against his will and fighting against him to take him away from Evil Councellors whether he will or not as the Long Parliament did against King Charles I. tho' they knew he was in the Head of his Army with his own consent and this was sure taking up Arms by the King's Authority against his Person and is that which is to be expresly disclaimed by this Oath and will be also Treasonable if done in any Case whatsoever where the King shall think fit to be at the Head of his Forces whether the thing be lawful or unlawful for which they are raised F. Well then it seems the fear of endangering the King's Person is nothing if the end for which it be done be lawful And why it may not hold in other Cases as well as this I can see no reason I grant that what the Parliament did was unlawful because the Occasion of the War began on their side as it was then said but supposing the King made War upon the People I doubt not but the Case had been otherwise And for proof of this pray give me leave to put you a Case which may well happen now we have a Standing Army distinct from the Militia Suppose that in a Suit with a great Favourite of the King 's a Man recovers a House and Lands against him by a Judgment at Law and he also by Course of Law put into Possession thereof by the Sheriff afterwards the King's Commission is obtained by the Interest of this Favourite to Command an Officer and some Companies of Souldiers of the Standing Army to take Possesion of this House and deliver it back to the person who first had it The Man in Possession being a stout and powerful Person in his Country hearing of it resolves to maintain the Possession of his House according to Law and therefore gets in good store of his Tenants Neighbors to defend it The Officer comes with his Soldiers Summons the House they within refuse to yield up the Possession whereupon an Assault ensues in which a great many are Killed The Man in Possession is by the King's command Indicted for Treason or Murder for fighting against those commissioned by the King Now pray tell me whether the Judges ought according to their Oaths to direct the Jury to find this Man and those of his Party guilty of the Crimes above mentioned or not and whether the Officer and his Souldiers are not rather to answer for this Offence M. Truly I cannot deny but this Military Commission to put a Man out of his Freehold is Illegal and consequently void and so may be resisted since I know the Law says That a man's House is his Castle and he may justifie the defence of it against all Subjects whatsoever but what is this to resisting the King's Person who was not there for if he had I doubt not but this Person ought to deliver it up to the King rather than endanger His Majesties Sacred Person Nor is this resistance considerable it being only in a particular Case which can no way by a general Rebellion alter this Government over the whole Nation F. You speak agreeable to your own Principles Well but suppose the King
should be perswaded by some very ill men about him to play this or the like trick whenever he had a mind to favour one party more than another and so should hinder the execution of the Law whenever he pleased can you think the Nation would long endure this without any resistance Or suppose to make the Case more general the King should undertake to lay a Tax upon the whole Nation without consent of Parliament and fearing it should not be Levyed should resolve to do it by his Officers and Soldiers of his Standing Army and lest they should be resisted should march with them in person from one County throughout to another to see the Money raised Do you think the whole Nation out of pure deference to the King's Person were bound to permit him to do whatever he pleased and let the Soldiers take this Tax which they were certainly not obliged to Pay had he not been personally there M. Yes I am of that opinion that they ought for it were better to Pay it then that a Civil War should happen about it in which the King's Person as well as the Government may be destroyed F. I see you are of this opinion because you fancy that the whole Government consists in the King's Person alone which it does not but in the Legislative Power which is not in the King alone but in the King together with the Lords and Commons assembled in Parliament Therefore you are mistaken in supposing that this Resistance must needs alter the Frame of the Government since it is undertaken to maintain the fundamental Constitution of it for if the King may take what Money he pleases from the People and make what Laws he will without the Parliament and without supposing it lawful to resist him if he does the Fundamental Constitution of this Kingdom will be but a Jest considering how light some Princes make of their most Solemn Declarations to their People nay their very Coronation Oaths now adays And it is a strange Paradox that one man may defend his Life and Property against the King's single Person in case he go about to Rob or Murder him and yet that a whole Nation should not have the like Right and that a Prince may not Rob or Murder men by himself yet may do it without any resistance in case he can raise an Army to back him M. Let what will happen I am for understanding this Oath and Declaration in the strict literal sense which you by your false glosses go about to destroy therefore to tell you plainly my mind I think neither one single Person nor yet the whole Nation can justifie resistance of the King's Person no tho' he should go about to Rob or Murder me it were better I were killed or lost all I had than that the Sacred Blood of my Prince should be shed by my hands Since the whole Parliament have on behalf of the People actually renounced all defensive Arms against the King by which I suppose they mean all defensive Arms against his Person nor have you as yet answered my two last Objections concerning that Renunciation of the Two Houses and the want of a competent Authority to raise the Arms of the whole Nation in case of that which you call a General Invasion of Mens Religion Liberties and Properties if ever any such thing should happen as it is not likely it ever will F. Your Principles and Mine are so diametrically opposite that it 's no wonder we may draw quite contrary Conclusions for whereas you suppose that Nations were made for Princes to Govern and dispose of at their Pleasure without any resistance on the Peoples side let them do what they will I suppose that Princes are made for the common good of their People and where their Happiness and Preservation do not interfere ought inviolably to be preserved but when through the Folly Negligence or Tyranny of Princes that which was ordained for their Protection proves their Ruin and Destruction I think the Preservation of the Princes Person ought to give place to the Publick Good and better that he than the whole Nation should perish which though it was the opinion of Calaphas in relation to our Saviour yet it is so well approved of that it is said by the Evangelist St. Iohn that he spake not that of himself but being High Priest that year he Prophecyed For there may be a Common Civil Government without a King but there can be no King without a People Of this Opinion our English Ancestors always were who though they often resisted and sometimes deposed their Kings yet they still maintained Kingly Government though with the change of the person And if it fail'd in the last Civil War it was because it was at last managed by a faction of men of quite different Principles both in Religion and Politicks and not by the Nobility and Gentry of the Nation whose interest it was and ever will be to maintain the ancient Government of a limited Monarchy without falling into a Common-wealth or giving up their just Rights and Liberties to an Arbitrary Power But to answer the rest of your objections which if what I have already layd down be Law and reason too may be easily done As to the first Objection The two Houses might very well renounce the power of making any War offensive or defensive against the King and yet leave the right of resistance for self defence and preservation to the whole nation in general since the former was necessary unless they would have asserted a right in themselves of sitting whether the King would or not and waging a War against him whenever they pleased after he had actually dissolved them which would be to set up two equal absolute powers at once in the Kingdom But that they did not renounce it for the whole Kingdom is plain for though by the Statute of the 12th of Charles the II. they disclaim all coercive power over the Kings person for themselves and the People either collectively or representatively yet do they neither there nor in any of these Acts for the Militia renounce all defensive Arms for the defence of their Religion Liberties and Properties There being a great deal of difference between such a defence and a coercive power over the King as I have already sufficiently proved nor indeed was it in the power of the Parliament to have done it if they would since they are but Trustees for the People to preserve their just right and had no power so really to give up their Religion Lives Liberties and Properties to the Kings mercy So that this renunciation of all defensive Arms on the behalf of the whole People had been absolutely void in it self And since it would have rendered the legal constitution of the Government of this Kingdom wholy precarious if notwithstanding the illegality of the Kings Commissions and their being void if granted to illegal purposes the King's presence shall render it
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
such Absolute Monarchs as you would make them that by the fundamental Constitution of the Government they cannot be resisted nor can fall from their Regal Power let them carry themselves never so Tyrannically for I do not see you have been yet able to do it by any Arguments you have hitherto made use of M. I have already at our 5th as well as at our last Meeting given you divers Arguments and Authorities whereby I proved the Kings of this Realm to be compleat and absolute Monarchs especially that place from Bracton where he thus speaks of the King that every one is under him and that himself is under none but God that he has no Peer in his Kingdom because so he would lose his Power since an Equal has no command over an Equal much more has he any Superiour because then he would be inferiour to his Subjects and Inferiours cannot be equal with their Superiours which sufficiently destroys that Notion of yours that Subjects can be in any case equal with their Princes so as to judge and resist their actions which is also farther inforced by another passage just aforegoing de Chartis vero Regiis factis Regum non debent nec possunt Iusticiarii nec privatae personae disputare nec etiam si in illis dubitatio ulla oriatur possunt eam interpretari in dubiis obscuris vel si aliqua dictio duos continâ—at intellectus Domini Regis erit expectanda Interpretatio voluptas cum ejus sit interpretari cujus est concedere from which we may conclude that the King's actions were above all censure and dispute much more forcible opposition of his Subjects And I defie you to shew me any passage in Bracton Fleta or even your beloved Author Fortescue that in the least countenances your Doctrine of Resistance much less your Opinion of the King's forfeiture of his Crown and Royal Dignity for Tyranny or the highest Violation of Laws but rather the contrary in all those passages that I have either observed my self or found quoted out of them by others For tho' I grant both Bracton and Fleta call the King if he prove a Tyrant or one that governs contrary to Law not God's but the Devil's Minister yet for all that they no where maintain that then he ought or may be resisted by his Subjects or that they are discharged of their Allegiance towards him For Bracton tells us in the same place that if the King do any man wrong or injury Locus erit supplicationi quod factum suum corrigat emendet quod quidem si non fecerit satis sufficit ei ad paenam quod Dominum expeâ—tet ultorem nemo quidem de factis suis praesumeâ— disputare multo fortius contra factum suum venire The same he says likewise word for word in another place of any other King or Prince who has no superiour Lord against whom there is no Remedy by Assize or Legal Trial as against an Equal but only place left the injured Subject for Petition And Bracton gives us a very good Reason for it in this maxime omnis qúidem sub eo ipse sub nullo nisi tantum sub Deo So that tho' I grant this Moral Obligation which the King hath to observe the Laws is farther increased by his Coronation-Oath as Bracton observes in his third Book de Actionibus But then as in the Oath of Allegiance the People swear nothing to the King but what they are bound to observe unsworn so the King in his Coronation-Oath promises nothing to the People but what in Justice and Equity he is bound to perform whether he swear or not for ad hoc saith the same Author of the King electus creatus est ut Iudicium faciat universis c. and separare debet Rex cum sit Dei vicarius Ius ab Injuria c. But then if he will pervert this great end for which God made him King if he will not act as it becomes God's Vicar if he will obstruct or pervert the Laws and govern never so Tyrannically yet still there is left no Remedy to his Subjects by the Law but Moral Perswasion for the Laws Imperial of this Realm have declared him to be a free unconditioned and independent Sovereign exempted from all coaction and outward force much more from any forfeiture of this Crown or Regal Authority F. I hope I shall be able to return you a satisfactory Answer to the Authorities you have now brought for as for Reasons I see none in the first place as to what you say concerning Barclays and all other Writers agreeing that in these two Cases you mention the People may resist their Prince because he does as good as renounce the Government of them and abdicate the Crown he wore Pray observe that they also allow the People to judge for themselves when the King thus goes about to destroy them to make over his Crown to a Foreign Prince Now I desire you to shew me why the People in a limitted or mixt Kingdom as ours is cannot as well judge when the King has broke the Fundamental Laws of the Government whereby it is distinguished from an Absolute Despotick Monarchy and hath either actually set up or is going about to bring in Tyranny or Arbitrary Power since according to the Rules I have laid down at our last Meeting the matters to be judged of may be as plain and evident not only to a single person but to a whole Nation All that you have to say against this is only an Hypothesis you have laid down without any just grounds that the King is a Sovereign Prince who holds his Crown without any Condition whatever and therefore free from all forfeiture of his Crown or Regal Authority which is the Point to be prov'd Now if I have already made out as I suppose I have that the King of England is not an Absolute Monarch as not having the two main parts of it viz. the power of raising Money and making Laws in his own disposal without the consent of his People and these so reserved by his own Concessions or that of his Predecessors from the very beginning of Kingly Government in this Island and if I have also proved at our last Meeting that if we have such Fundamental Rights we have also some means left us to keep and preserve them inviolable and that this means is only a forcible defensive Resistance in case they are forcibly invaded by any of the King's Officers or Souldiers nay by his own Personal Power in case he shall be so ill advised as to joyn himself with such Instruments of Tyranny it will then also follow that such a Resistance is really a suspension of their Allegiance to the King for the time it lasts and till they can see whether there be any hopes lest of a Reconciliation with Him and that he will amend his Errours and Misgovernment and if so and
that he will give his People any sufficient Testimony of his amendment and sincerity by giving up such evil Ministers to punishment that put him upon such desperate courses I do then readily grant that the People ought to lay down their Arms and be again reconciled to their King and submit themselves to him as before according to that Clause in King Iohn's Magna Charta I have already cited wherein there is a Power left for the Barons in case of any Breach of it to take Arms and constrain the King by taking of his Castles Lands and Possessions to amend those transgressions and when all was thus amended the Charter says Tunc cum fuerit emendatum then and not before interdent nobis sicut prius fecerunt they shall be subject to us as they were before but what followed upon this the King not only refused to observe this Charter but procured the Pope's Dispensation to be absolved from the Oath he had taken to observe it and also did all he could to bring in Foreigners into this Kingdom to support his Tyranny and raised what Forces he could of his own Subjects to that end whereupon the Barons at last were forced to renounce all Allegiance to him and to declare he had forfeited all Right to the Crown by his Tyranny and Perjury towards his People as Mat. Paris and other Authors shew us at large Now what the Barons did in the case of King Iohn may be also done by the People of this Kingdom in all succeeding Times or otherwise the King will be in a better condition after he has done the worst he can by force of Arms against the People than he was before for if as I have already proved he may be resisted till he give the Kingdom satisfaction that he will surcease from such Tyrannical courses and that such Resistance is really a Suspension of Allegiance for the time it lasts it will likewise follow that if the King will still persist in these wicked courses he must at last forfeit his Crown and discharge his Subjects of all Allegiance to him or else he would be in a better condition by his wilful persisting in his Tyranny than he could by quitting it and reconciling himself to his People For whereas by this Method the best he can expect is to return to the exercise of the same Limited Power â—e before enjoyed If he push things to the utmost extremity he may perhaps get the better of his People and then he may set up for an Absolute King by Conquest or if he fail in that and be beaten or taken Prisoner by them he can still lose nothing since by your Principles he still continues an Absolute Sovereign Prince as he was before and must be immediately put in the same state and ability of destroying the Government and enslaving the Nation but your Civil as well as our Common Law has a very good Maxim Nemo ex proprio Delicto beneficium câ—piat no man may take advantage of his own wrong and therefore such a Prince ought certainly to lose and not to get by his own Illegal and Tyrannical Actions and therefore I grant that the King is not tyed to observe any new things that he was not before he was Crowned bound to do only there is the higher obligation of an Oath added thereunto so if the King be a Limited Prince whose Authority depends upon the right exercise of it and that he can claim no Allegiance of his Subjects but upon that condition if such a Prince wilfully breaks all those conditions and aâ—solutely refuses to amend he must at last forfeit his Crown and lose all Allegiance from his Subjects or else all their Resistance would signifie just nothing and they would after all be in a much worse condition than they were before Now if this be so all your Quotations out of Bracton and Fleta will signifie nothing for as Pufendorf very well observes a Supreme Power may reside in a Limited King in respect of all his particular Subjects yet they may have a right to disobey him in those things to which his Power does not extend for says he it does not follow that because I am not bound to obey him in all things therefore I must be his Equal or Superiour or because I cannot in any wise command him therefore he may enjoyn me what he pleases for Supreme and Absolute are by no means one and the same for the former denotes the absence of a Superiour or an Equal in the same order but the latter a faculty of exercising all the Rights of Government according to his own Judgment and Will and therefore this Author in the next Chapter says very rationally concerning resisting of Tyrants in extreme cases that their scruple is nothing who will not admit any Liberty of resisting the most cruel Tyranny of Rulers because there cannot be supposed any lawful Call of Subjects taking Arms against the Supreme Power since no Jurisdiction can belong to any Subject toward such a Power as if says he that Self-defence were an Effect of Jurisdiction or that there is required any peculiar Call or Precept for Men in case of extream necessity to defend themselves and to repulse any unjust force from taking away their Lives or Estates any more than there is for those who are like to starve to allay their hunger by eating tho' it may be the Meal they eat is not their own but another Man's so far he and if this be lawful even in Absolute Monarchies in case of defence of Life the same I say may be exercised in Limited Kingdoms when the King goes about by force to take away the Religion Lives Estates or Liberties of the People contrary to Law since they both act upon the same Principle that a King by destroying the Fundamental Laws and Conditions by which he is to Govern renounces the Government and indeed so far dissolves it that he ceases to be King And tho' I grant Bracton and Fleta and other old Lawyers have noâ— in express words taught this Doctrine yet they do it in effect since the former tells us Non est Rex ubi dominatur voluntas non Lex that is he is not a King when his own Will and not the Law governs And in another place Rex est dum bene Regit Tyrannus dum Populum sibi creditum violentâ oppriâ—it dominationâ— and in the very same place as you have also observed he tells us exercere debet Rex potestatem Iuris ut Vicarius Minister Dei potestas autem injuriae Diaboli est non Dei cum declinat ad injuriam Rex Diaboli Minister est Now if what Bracton says be true then the King when he does injury is the Devil's Minister and not God's I cannot see how he can then act as God's Lieutenant or why it is not as lawful to resist the Devil's Minister as the Devil himself And as to what you alledge out
have made use of to wit Rex habet Superiorem Legem Curiam suam viz. Comites Barones c. who ought if he transgress the Law to put a Bridle upon him yet by this as I have already proved neither Bracton nor Fleta could mean any co-active â—orce but only a Moral restraint upon the King by Petitions Remonstrances or denial of aids till he would be Reform'd by fair means but that it does not go farther appears by the parrallel Bracton there makes between our Saviour Christ and the Virgin Mary who being both free from the Law of Moses yet voluntarily chose to be obedient to it which sufficiently proves that those Authors never designed that the Parliament should oblige the King by force or whether He would or no to amend his faults since that was as you your self must acknowledge against their very institution since both their meeâ—ing and their dissolution wholly depend upon the Kings Will. F. I confess you have made a long and elaborate speech in answer to my notion that a King may forfeit his Crown that is by his own act cease to be King but I shall be able to give you a satisfactory answer to all this if you please to take it In the first place therefore I cannot but observe that all your Discourse depends upon two Principles alike false first that no absolute Monarch can by his own act forfeit or lose his right to the Government without a formal resignation of the Crown or secondly that the Kings of England have ever been such absolute Monarchs which if they are both great mistakes all that you have said on this head falls of it self Now that a King tho' an absolute Monarch may do such an act as shall make a forfeiture of his Crown without any solemn resignation of it you your self are forced to allow in the two cases you have put viz. that of such a Monarchs becoming an Enemy to his People and going about to destroy them and that of his making over his Kingdom to another without the Peoples consent now if the diffusive body of the People in an absolute Government can judge of these two cases whenever they happen without appealing to any General Council or Assembly of the whole Nation I desire to know why it may not be as easie and lawful for the People to judge without a Parliament when the fundamental Laws of the constitution are generally and wilfully broken and violated and that violation persisted in by the King for the introduction of Tyranny and an Arbitrary Government since the Rules I have laid down to know it are but a few and easie to be known and judged of by the most common capacities Now that a Superiour or Governour may lose all that power and authority he once had and that without any act of the party governed may appear by those great and natural relations of a Husband and a Master in the former of which if a Husband in the state of nature use his Wife so cruelly that she can no longer live or co-habit with him without danger of her Life I doubt not but she may quit him and may also when she is out of his Power Marry her self again to another Man that will use her better so in the other relation of a Master if such a one in the state of Nature have a Slave and will not allow him sufficient Cloaths Victuals or will beat him or use him so cruelly for no just cause that he cannot enjoy the ordinary comforts of Life no man will deny but that such a slave may lawfully run away from such a Master and â—s at liberty either to live of himself or to chuse another Master if he think good and this instance is much more strong in an hired Servant who is to serve his Master for such and such Wages or to do such and such Work and no other if in this case the Master refuse to pay him his Wages or put him to do other work than what was agreed upon between them or instead of an hired Servant will make him his absolute Slave in these cases no man can doubt but by this unjust treatment of the Master the Servant is discharged of his Service and may go whether he pleases and of these actions I have already proved at our first meeting the party injured be they Wife or Servant must be the only Judges in the state of Nature where there is no Civil Power over them or else if the Husband or Master shall Judge for himself the Wife or Servant is never like to get any Redress apply this to the case of a limited or conditional King and his Subjects and see if it be not absolutely the same upon the total breach of the Original constitution of the Government and whether the Bond of Allegiance is not then as absolutely dissolved by the sole act of the Prince without any authoritative power in the Subjects as it is in the case of such a Wife or Servant by the sole Act of the Husband or Master without any Superior Authority in such Wife or Servant to quit them and so to discharge themselves of their Wedlock or Service Therefore as to your accusation that my notion is worse than that of the Rump Parliament that put the King to death I deny it for they supposed that there was no way of being rid of a Tyrannical King but by making the People and consequently the Parliament as their Representatives his Superiours or Judges to call him to an account and Judge and Punish him for his Tyranny this I abhor as much as your self for I grant that a King cannot be properly the Supream and at the same time own another Power above him to Punish or call him to an Account for his Miscarriages but this Power that I insist on is not as I have all along told you a power of punishment but a right of resistance for self-defence in the first place and of Judging and Declaring the King to have forfeited his Crown or Right to Govern if he persist in his Tyranny without any amendment or satisfaction given to the People Nor is this Doctrine of the Peoples thus Judging for themselves so dangerous as that of the Rumpers as you suppose who put this right of Judging when the King had thus forfeited his Power in the Parliament of which they thought themselves the only lawful or necessary Members but indeed it was not so for they still supposed him to be their lawful King and yet at the same pretended to Arraign him as you may see by the Title of the Charge or Indictment they drew up against him all which I grant to be altogether unjust and illegal but it is not more but rather less dangerous to put this power of Judging when the King has thus dissolved the Government and forfeited his Crown upon such notorious and wilful breaches of the Fundamental Laws in the whole or diffusive body
of the People rather than in the Parliament or great Council of the Nation for as to your assertion that the whole People are more fallible and consequently more dangerous Judges in such a Case than the great Council I deny it since all the matters of fact must be so evident and notorious to the senses and feeling of the greater part of the People that there can be no doubt or denial of it by any reasonable and indifferent Judges and the greatest part of the People are willing to live in Peace without making any disturbance or alteration in the Government if it may be avoided whereas in any great Assembly or Council there are many and those of the most eloquent and leading Men who commonly carry the rest which way they please who are governed by faction ambition or self-interest and upon all or some of these c. may be desirous to raise Civil Wars or to declare the King to have done things that require resistance or to have forfeited his Crown when indeed he has not and for this the very Long Parliament you mention is an evident example since you cannot but grant that if the differences between the King and that Parliament had been left to the Judgment of the whole People there had never been any Civil War at all nor had the King ever been beheaded since it is notoriously known that before the Parliament stirr'd up the People to War by seizing of the Militia they were not at all inclined to it It being a restless and factious ambitious party of men on both sides who brought on the last Civil War Not but that I defer much to the Judgment of a free and unbyast Parliament who may confirm and declare what the diffusive body of the People have already justly done to be right and lawful which may be as great a satisfaction to private Mens Consciences in Civil Disputes as a general Council is in Spiritual Controversies about matters of Religion wherein tho' such a Council cannot make new Articles of Faith yet we Protestants hold that it may declare what were anciently believed but if the People have a right of Judging during the intervals of Parliament when the King has notoriously broke the Fundamental Constitution and so may make resistance accordingly as I have already proved they have since otherwise the King may absolutely refuse ever to call any Parliament at all or at least may not let them sit till all grievances are redressed so that I cannot see why they may not also Judge when the King has so wholly broke his Original Contract and so obstinately persisted in it as to create a forfeiture of his Crown since the one is not harder to judge of than the other nor is your parallel between our opinion and that of the Jesuites at all true unless you could also prove that I had put the same authority in the People to depose their Kings by a right conferred on them by God as the Jesuites do in the Pope by such a pretended Power as Superiour to that of all the Monarchs in the World but there is nothing like it in my hypothesis Since I do neither allow the People to Judge or Depose the King much less to put him to Death tho' a Tyrant but only to Judge and declare when he has made such notorious breaches on the fundamental Constitution as do necessarily imply a forfeiture or rather an implicite Abdication of his Royal Power and whereby he deposes himself But to come to the second Point to prove that our Kings were never absolute Monarchs or had the sole and absolute authority over the People of this Kingdom and if so that there was somewhat still reserved by the People at the first institution of the Government and which the King by the original contract when he or his Ancestors took the Crown must be still supposed as bound to maintain now that there must have been such a thing as an Original Contract however light you are pleas'd to make of it I thus make out you may remember that at our fifth meeting I proved that at the first institution of Kingly Government in this Nation it was not by right of Inheritance but Election 2. That this Election was made either by the whole body of the People in Person or by their lawful Representatives in the great Councils or Mycel Synods of the English Saxons 3. That this great Council did then reserve to themselves these material parts of Government First A right of Meeting or Assembling at stated times of the year and that without any previous summons from the King 2. A right of proposing or at least oâ— assending to all Laws that should be made in all future times 3. A right of granting general Aids or Taxes for the People and that without their consent no Taxes could be imposed 4. And as subsequent to all these a right of agreeing to all Wars and Treaties of Peace â—o be made with Foreign Nations but the first and last of these tho' I could prove to have been constantly observed during the Saxon Government and long after yet since the People have parted with their right to their Kings in these matters I shall not now insist upon them only that this People have still a right to Parliaments once in three years at least and oftner if necessity require These then being the Original Constitutions of the Kingdom the King must have either entred into a compact with the People for the maintenance and observation of these fundamental rights or else it must have been left to his discretion whether he would suffer the People to enjoy them or not if the latter had been true then I grant they had made him an Absolute Monarch and had left it wholly at his discretion whether they should enjoy these fundamental Rights and Priviledges or not but it appears plainly to the contrary that they did not for I shall prove if need be that the Succession to the Crown was at first Elective and not Hereditary now in all Elective Kingdoms of the Gothick Model it is very well known that their Kings were so far from being absolute that the Assembly of Estates or great Councils of those Kingdoms reserved to themselves a power of Deposing their Kings for Tyranny and Mis government as I have already proved was frequently done not only in England but in all the neighbouring Kingdoms without any imputation of Rebellion and I have also given you a quotation out of the ancient mirrour of Justices which tells us that upon the Election of the first King of this whole Island The Princes that chose him then caused him to swear that he would maintain the Holy Christian Faith with all his power should Rule his People justly without regard to any person and should be obedient to suffer Right or Justice as well as others his Subjects And now that upon a failure to perform these things a forfeiture of the
suo alios prohibere necesse habet id ipsum in propria persona committere non debet So that it is as plain that if he either command or permit these willful injuries generally or all over his Kingdom he fails to defend it according to K. Edward's Laws and if he thus fail to defend it he thereupon loses or forfeits his very Title or Office of a King since he cannot keep or hold his Crown or Royal Dignity for without Justice it cannot subsist and this by the original contract since upon whatever Terms the first King of this Race took the Crown upon the same Terms all his Posterity who succeed either by election or right of blood by vertue of that first compact are to hold it under the like penalty of a forfeiture in case of a wilful neglect or violation of his duty M. I confess you have made a specious proof of this original contract you so much talk of and more than ever I thought could have been said for it but let it be what it will it is certain in the first place that whatever coâ—ercive Power the two Houses of Parliament might pretend to when Bracton wrote they have solemnly renounced it in two successive Parliaments in the Reign of K. Charles the II. therefore I shall not insist any longer upon old antiquated Laws or original contracts which are not directly expressed but consequentially deduced at best but I must now tell you that let the first institution of this Government have been what it will in the Saxon times and what original contract soever you may please to fancy between them and their Subjects yet this was all gone and out of doors by that absolute Conquest which K. William I. made of this Kingdom for himself and his heirs who do not at all claim under the Title of our English Kings For since their Ancestor had no just Title to the Crown but by the Sword and that he gain'd this Kingdom by the Conquest of K. Harold and the People of England who had elected him and fought for him as also by the subsequent recognition of this right by all the People of England in their Oaths of Allegiance so often repeated to himself and his Successors have thereby acknowledged it to be as absolute a Monarchy by conquest as ever was instituted by any Prince in the World and tho' I grant that several of the Conquerours have been graciously pleased to grant divers Priviledges to the People of this Nation and some of them perhaps the same they enjoyed in the Saxon time yet can they not enjoy it by vertue of that Original Contract you suppose to have been made between the first King of that Saxon Race and the People of England for as I said but now K. William had no right by any Title from K. Edward the Confessor but wholly by his Sword as I shall prove by and by But however these concessions ought not at all to derogate from the absoluteness of the Power or the indefensibleness of our Kings Title for since these limitations of absolute or imperial Power did not proceed from any other Original than the free voluntary concessions of our Kingâ— not from any compacts with their People they do not at all derogate from the uncontroulable and unancountable Soveraignty thereof so that we may very well distinguish between the Being and Essence of Imperial or Soveraign Power and the exercise or emanation thereof as to the Being and Essence of it it is in as full perfection in the Limited as in the Arbitrary Sovereign tho' the Law confines and limits him in the exercise thereof but to be confined in the exercise doth not destroy the Being nor diminish the perfection of Sovereign Power for then the Power of God himself could not be Sovereign because there are certain immutable Rules of Truth and Justice within which it is necessarily limited and confined but God is nevertheless a perfect Imperial Sovereign over the Universe tho' the exercise of his Government over his Creatures be limited by the eternal Laws of Truth and Equity it is true that this limitation of Almighty God is intriasical and proceeds from the perfection of his Righteous and Holy Nature but yet it shews that the most perfect and absolute imperial Powe may without a contradiction be confined within bounds and limited in the actual exercise thereof and that such limitation of Absolute Imperial Power proceeding wholly from it self doth only qualifie and temper but not destroy the essence of it and therefore Cooke in Cawdrey's Case saith that by the Ancient Laws of this Realm England is an Absolute Empire and Monarchy and that the King is furnisht with plenary and entire Power Prerogative and Jurisdiction and is Supream Governour over all Persons within this Realm Therefore whoever will consider the Original of this limitation of Sovereign Power to have proceeded wholly ab intrinsico from the voluntary Grants of our first Monarchs after the conquest and will also distinguish the Essence from the exercise of Sovereign Power will find there is no contradiction between the fulness of Sovereign Power in the Root or Essence of it and a legal limitation of the use and exercise thereof and from hence it comes to pass that the King of England tho' he be thus limited in the use and exercise of his Power yet he is still as much the Fountain of all Power and Jurisdiction within his Dominions as if he were Arbitrary he hath none to share with him in the Sovereignty but all Power and Authority is derived from him like light from the Sun in him alone it is radically and originally placed he hath no sharers or co-partners with him in the Sovereignty none co-ordinate with him in the Government no Equal no Superiour but only God to whom alone he is Subject Hence saith Bracton omnis quidem sub to ipse sub nullo sed tantum sub Deo non est inferior sibi subjectis non parem habet in regno suo and afterwards ipsâ— autem Rex non debet esse sub homine sed sub Deo Therefore I grant the King is obliged by his Coronation Oath to keep to these limitations which both he and his Predecessors have sworn to yet if he any ways faâ—l in the performance of iâ— this failure cannot give his People any manner of right to take up Arms against him and to resist him in any such case much less can it cause a forfeiture of his Royal Power since being at first the sole Sovereign Power he did not by putting this limitation thereunto intend to part with any share of it to the great Council of the Kingdom or Parliament but only to take them into a part of the care and trouble of the Government and to limit his Prerogative Power from passing any Laws or raising any Money without their assent unless in cases of great necessity and then if he is still judge
not because he kept a Kingdom bequeathed to him by K. Edward since some Writers relate this King named not him but Harold for his Successor tho' others say that he recommended Edgar to the good will of the English Nobility So that the only true and just cause D. William had of making War upon Harold was his breaking the Promises and Oath he had not long before made him of securing the Kingdom of England for him upon the Death of K. Edward instead of doing which he had seized it for himself and which is worse refused to restore it or so much as to hold it of Duke William as his Homager So that tho' for the strengthning of his own Tide he pretended to the Will or Donation of King Edward and to avoid the envy of the name might out of modesty or to put a better colour upon this matter refuse to take the Title of Conqueror and to insist upon the Donation of K. Edward yet nothing is plainer than that he could claim by no other Title but the Sword and that he looked upon himself as no other than an Absolute Conqueror may appear by these great and evident instances 1. His change of the English Laws and introducing the Norman Customs in their stead and also changing the Tenures of Lands not only of the Layety but also of the Bishops and greater Abbeys 2. By his debarring all those of the English Nation from enjoying any Honour Office or Preferment either in Church or State and also in taking away the Estates of all the Nobility and Gentry not only from those of their Heirs that had been slain in the Battle of Hastings but also of the rest so that they had left them but what they could purchase of those Norman or French Noblemen to whom King Wiiliam had given their Lands as a reward of their good service for the proof of both which Assertions I have so very good authority on my side and that of Writers of or near those times in which these things were done that I think no indifferent man can have any cause to doubt the matter of Fact to have been as I relate it nor did he by any after act ever renounce this right of Conquest as you suppose much less refer it to the Election of the English or Normans since the former were not in a condition to make any farther resistance against him the Clergy and great men of the Kingdom having been forced to submit themselves to him without any other precedent conditions or stipulations than for the saving of their lives and as for the Normans they were his Subjects and they Conquered the Kingdom only for his use and benefit as his Souldiers and Vassalâ— and it is not likely he would owe the Kingdom which he had thus acquired by the Sword to their Votes or Election neither does any Author that I know of mention any Election before his Coronation when tho' it is true he took such an Oath as you mention yet it was in too general terms to bind him to any observation of the ancient English Laws much less to preserve their Rights and Priviledges farther than he thought fit and therefore could never take the Crown upon your Conditions of Resistance or Forfeiture in case of any alteration in that which you call the Fundamental Constitution This being the true matter of Fact without any disguise it is easie to answer all that you have said against K. William's requiring an Absolute Hereditary Right to the Crown of England for himself and all his descendants by the Sword first then as to the Justice of the War and Conquest it self I suppose you will not deny but that Duke William had a good cause of War against Harold for the breach of his Oath and if so against all that took his part at the Battle of Hastings so that upon the Conquest of Harold and those that were in that Fight he also acquired a Right by Conquest to all that they enjoyed and consequently had a right to Harold's Crown as well as his other Estate as also to the Estates of all those that were either slain or escaped alive from that Battle and not only to these but also to all the Lands of the whole Kingdom since the War was made not only against Harolds Person but against the Kingdom of England the People of which according to their Allegiance assisted him in that War either with Men or Money but admitting the War to have been in it self never so unjust yet all Writers on this Subject even Grotius and Pufendorf agree that Conquest even in an unjust War with a thorough settlement in the Conqueror and his Successors by the non claim dereliction submission or exstinction of the next Heirs of the former Kings together with a long uninterrupted possession beyond all time of memory will confer as good a Title especially when all these confirmed by a constant submission and recognition of the People testified not only at the first Conquest but in all succeeding times by as absolute and unconditioned Oaths of Allegiance as can be invented or that were ever taken to the most Absolute Monarch and such Oaths are always to be interpreted in favour of the Prince to whom they are sworn and as strictly against the People that take them as all Writers also agree now granting this to be the case of K. William the Conqueror that by all or some of these means he acquired a right to the Crown not only for himself but his Heirs this Power was Absolute without any conditions to be observed on their part for the Oath of Allegiance is positive without any condition or restriction so that I can see no manner of pretence that the People of this Nation can have of forcing their K's to the maintenance or observation of those rights and priviledges which they or their Predecessors have so freely granted to them or their Ancestors As Pusendorf whom you now cited very rightly observes and consequently can have no right to repel force by force since our Kings do not now hold their Crown by force or right of Conquest alone but by all things required by the Law of Nations to create a full and absolute right viz. a long uninterrupted Possession and the Absolute submission of the People for themselves and all their descendants so that tho' I grant bare conquest considered as a Force can give no right alone yet it may often be the Mother of Right and may at last grow to a Right by the means I have already mentioned F. Before I reply any thing farther to what you have now said to the matter of Right acquired by your Conqueror and his Heirs pray in the first place prove the matter of Fact to have been as you lay it and therefore produce your quotations from the Authors you mention but first give me leave to tell you that Dr B. and you are the first I have heard to
he brought over with him had as you suppose the greatest share of all the Lands in England they would have been too powerful a body of Men to be thus made Slaves at his pleasure but indeed his own Laws shew the contrary for in that very Law it appears otherwise Whereby all the Freemen of the Kingdom were to hold their Lands and Possessions free from all unjust Exactions and Taillage and that nothing should be exacted of them but their free service which they were bound to do according as it is appointed them by the K. and it is granted them by an Hereditary Right for ever by the Common Council of the whole Kingdom whereby you may see that they had their Lands and Liberties granted them for an Hereditary Right not only by the K. but by the Common Council of the Kingdom and that the K. could not alter K. Edward's Laws without their consent the Charter of K. Henry I. says expresly Legem Regis Edwardi vobis reddo cum illis emendationibus quibus Pater eam emendavit Concilio Baronum suorum Therefore as for that Authority you have brought out of H. Huntington that upon this Kings return from Normandy he imposed a heavy Taxe upon the English this is either to be understood of such a Tax as they gave him voluntarily tho' perhaps they durst not do otherwise as the States of Provence and Languâ—doc are fain to do to the K. of France at this day when he requires it and yet he does not claim those Countries by right of Conquest or if K. William imposed this Tribute without their consents it was not only contrary to the Law just now mentioned but also to his own Coronation Oath whereby he swore to prohibit all unjust Rapines and that he should behave himself equitably towards his Subjects with which certainly his taking away their Money without their consents would by no means consist but to answer that part of the Coronation Oath which you think makes most for you that whereby he swore only to make Right Laws which must have supposed the Power to have been in himself because the Parliament might have hindered him from doing otherwise this is but a cavil for it is already proved that he was to make Laws and raise Taxes by the Common Council of the Kingdom and therefore these words may very well bear another sense and do only give the K. a Negative voice of passing such Laws as the great Council should offer to him or else such as he might propose to them for their consent and I suppose you will not deny but that it is very possible that either the K. or the Parliament may propose such Laws as may not seem equitable or Just and then certainly both the one and the other have a negative vote and ought not to give their consents to them But to answer your last instance whereby you would prove that this King as a Conqueror imposed what Taxes and Services he pleased not only upon the Laity but the Clergy too by making the Bishopricks and greater Abbies liable to Knights Service which you suppose to have been done by his own sole Authority without any consent of the Common Council of the Kingdom this is only gratis Dictâ—m and is indeed altogether improbable for if the K had done this by his sole Power he would have imposed this Service upon all the Abbies in England whose Lands might have been as well reduced to Knights Fees as those that were put under that service and so might have been forced to find as many Souldiers as they had Fees as well as the Bishopricks and greater Abbies but indeed the Clergy were too powerful a body to be thus Arbitrarily imposed upon and they would soon have complained to the Pope against the K. for this new servitude he had imposed upon them and therefore I think we may with much more safety conclude with Mr. Selden in his Titles of honour that this imposition of Knights Service upon the Bishopricks and Abbies was done by the Common Council of the Kingdom It being too great a matter to be done without it for it appears by Eadmerus that the K. held a Council this very year tho' the Laws and Proceedings of it are all lost and this is the more likely to be so because this imposition was not laid upon all the Abbies in England but only upon the Bishopricks and such Abbies as were of Royal Foundation and held immediately of the King before your Conquest and were only such as enjoyed whole Baronies as Mat. Paris there tells us I shall now come to your last head whereby you would prove that your Conqueror by his sole power altered the Course of Tryals and introduced the custom of Duel or single Combat in Civil as well as Criminal Causes the chief argument you have for this is that there is no mention made of this tryal by Duel in our English Saxon Laws before the Conquest which is but a negative argument at the best and you can shew me no Ancient Author that says expresly that K. William introduced it and tho' I grant it is first mentioned in his Laws yet does it not therefore prove that it was not here before since it was certainly in use among the Francs and Longobards who were German Nations as well as the Saxons but admit it were first introduced by the Conqueror this was no badge of Conquest for the Normans as well as the English were subject to this Tryal which was in use in France and Normandy long before this King 's coming in so that admit he first establisht it here it might not have been done by his sole Power but by some Law made in the great Council of the Kingdom tho' it be now lost as we have very few of the Laws that were made by this K. now left us besides those which are called the Laws of K. Edward with this Kings alteration of them all which was certainly done in the Common Council the like I may say concerning the alteration of Punishment for Deer stealing and other crimes which were either Punishable by Pecuniary Mulcâ—s or else by death before the coming in of the Normans since those alterations might be also made by the consent of the great Council but that the same Forest Laws were in use before the Conquest as after you may see in the Forest Laws of King Knute as you will find in Sir H. Spelman's Glossary Title Foresta only the Punishments are there Pecuniary or else loss of liberty which after your Conquest was changed into the loss of Eyes and Members But as for other lesser matters as his disarming the English and forbidding Night Meetings if these things were done as I do not find any express Law for them for there is no such thing mentioned in the Law de nocturnis Custodiis they were either practised by this K. for his own security after the English had by their frequent
quantity of Pamphlets that have been written upon these Subjects as also that such as have perused them may find together in this and the following Discourse all that hath been urged on the one side or other upon these important Subjects And since the great number of Treatises of this kind have rather served to confound than instruct ordinary Readers I resolved to make use of the words of very few of them only to take the chiefest and strongest Arguments on either side and fairly to represent them at once to the Readers View who I hope hath the discretion to judge which are best since I declare I write for no Party but purely for Truth and therefore I have now and shall still endeavour to avoid all Personal Reflections in this as well as the ensuing Dialogue not only on Their Present Majesties but also on King James since I remember he was a Crowned Head and is still the Father of our Illustrious Queen let his failings have been what they will But I hope the Reader will not be scandalized if I have so far followed the opinions of the ablest Divines as well as Lawyers of this and other Nations in making one of the Parties in this Dialogue assert the consent of the People us the only just and natural means of conferring a just right to Civil Power since the learned Mr. Hooker in his first book of Ecclesiastical Policy lays it down as a Principle that in every Politick Societyâ—â—â—t is impossible that any should have compleat lawful Powâ—â— buâ—â—y the consent of men or the immediate appointment of God and Chancellor Fortescue in his Discourse de Laudibus Legum Angliae 12 and 13. Chapters supposes all Kingly â—ower as well what is Absolute as that which is Politick or limited by Laws to have proceeded at first from the Peoples consent not that the Power it self is otherwise than from God only he has made use of the People as an Instrument whereby to convey it and I hope none of those who are still for King James's Interest will be offended at this Doctrine since those that have writ with the greatest Iudgment for his absolute indefeasible Title to the Crown have placed it in his Legal Right to it by the Laws of the Land which all must own could not have been made without the Peoples Consent I have but one thing more to desire of you which is your Patience and Attention if some of the Speeches in this Dialogue are longer than ordinary since they are upon subjects that would not well bear interruption and to tell you farther the Press staying for the Sheets I had not time to make them shorter THE Eleventh Dialogue BETWEEN Mr. MEANWELL a Civilian AND Mr. FREEMAN a Gentleman F. DEar Sir you are welcome to Town you have been absent a long time and indeed I wonder how you could stay away so long when such greaâ— things as the King to have Abdicated and placing his Son and Daughter in the Throne have been transacted M. I thank you kindly Sir but yet I must tell you that I have been so little satisfied with what your Convention has done in these matters that the very hearing of it hath been a great affliction to me and it would have certainly been a much greater had I been upon the place and seen such horrid things as the Deposition of a King the disinheriting of his right Heir and the setting up the Prince and Princess of Orange who certainly could have no right to the Crown as long 〈◊〉 the King lives nor yet after his death as long as the Prince of Wales is in being F. I confess these are very high Charges if they would hold but if you please to consider the Hypothesis I proposed at our last Meeting That the King had by breach of the Original Contract made between his Ancestors and Predecessors and the People of this Nation to observe the Fundamental Laws and Constitutions of the Kingdom forfeited his Right to the Crown All that hath been done in this great Affair I suppose may be very well maintain'd and justified from the necessity of the thing and of maintaining the Fundamental Constitution of the Government and therefore pray give me leave to put you in mind how far I have proceeded in the pâ—ooâ— of this Assertion First I have made out that the King of this Realâ— is not the sole Supreme Power thereof neither ever was so from the very Institution of Kingly Government in this Island Secondly I have also prov'd that the King not having the sole Power must hold that share thereof which he enjoys upon this imply'd or tacit condition that if he usurp what do's not belong to him and the People do assert their Right by opposing his Unjust Violence and Usurpations and that he still obstinately persists in this Violation he certainly thereby loses and forfeits not only that part of the Power which he so unjustly usurped but also his own too and for this I gave you the Authority of the Learned Grotius at our last Meeting Thirdly I have also answered your main Argument of King William the Conquerors obtaining by the Sword and Conquest of King Harold an Absolute Right and uncondition'd Power foâ— himself and his Successorâ— descended from him over the People of this Kingdom for I think I have sufficiently made out that King William had no other Right to the Crown of England than by the Testament of King Edward the Confessor and the Eâ—ection and Recognition of the People and this I have prov'd from the unexceptionable Authorities of the best Historians of that Time so that if he afterwards acted otherwise and contrary to his Coronation Oath it was not as a Lawful King but as a Tyrant and an Usurper on the Rights and Liberties of the People and could not by his own Unjust Act acquire any Lawful Power so to Govern this Kingdom and therefore whatever Title King William or his Successors can pretend to it must be by vertue of the Election of the first King of the Saxon Line from whom all the Kings of England since Henry Y. are descended and consequently aâ—e oblig'd to hold the Crown under the same Conditions on which it was first conferr'd And tho' I grant that ever since the Reign of Edward I. the Crown has been no longer claim'd by Election but by Succession of him that really was or else was presum'd to be the Right Heir yet this different way of acâ—uiring the Crown do's not at all alter the condition or manner of holding it sâ—â—e ouâ— Kings have always after that time as before been tyed to the same or rather â—â—â—cter Terâ—â— in their Coronation Oaths to observe and keep the Laws and Customs of this Realm and also that the Power of the Great Council of the Kingdom or Parliament making Laws raising Taxes and redressing of Grievances arising 〈◊〉 the Unjust Exercise and Illegal Encroachments of the Kings Prerogative hath been exerted
ever since the Crown became Elective as much as ever it was before Lastly I think I have sufficiently made out that King Iames hath violated the Fundamental Constitution of the Kingdom in those several Instances I have already given and am also ready farther to make it out if you require it so that this being the case I can see no reason to the contrary why the Crown or Legal Authority should not become forfeited to the People who at first conferr'd this Power on the first King of the West Saxons M. I must confess you have done your indeavour to prove those Assertions you have now laid down but I am not yet satisfied that you truly have done it But however not to run into unneccessary disputes and repetition of what has been already argued and which I see you are too obstinate to recede from I shall now only oppose what you last asserted concerning the Crown 's being forfeited to the People upon the King 's pretended Breach of the Original Contract for besides the absurdity of making the Crown forfeitable to the People who are and ever were Subjects and not Princes or Governours whereas all forfeitures still supposed a Right in the persons who are to take it as superior to the party forfeiting there is also a greater error and mistake in your supposing all Civil and Legal Power to be deriv'd from the People and by them conferr'd upon their Kings or Governours whereas the Scriptures plainly affirm and all Divines so interpret them that all Civil Power and Authority is wholly from God and not from the people who even in Elective Kingdoms though they may name and design the Person whom they will have to be their King yet is the Power wholly from God who alone hath right to Govern Mankind and therefore as the people do not confer the Power so neither can it be forfeitable to them from whom it was never derived and so much I told you at the Conclusion of our last Meeting though I had not then time fully to urge this Argument as now I have and this will press the more upon you because you your self have already granted at several Meetings that all Civil and Regal power is deriv'd from God and not from the people and therefore your notion of a Prince or Monarchs forfeiting to them is wholly false and precarious F. If this be all that you have to object against our Assertion of the King 's forfeiting his Royal Authority to the people I think I can easily answer those Objections for as to the first absurdity which you lay to our charge how an Authority can be forfeited by a King or Superior to his Subjects or Vassals the absurdity lies on your side for I do not suppose this forfeiture to be made to the people as Subjects but to them consider'd as a Community of Masters of Families and Freemen who as the Descendants and Representatives of those who made the first King upon a certain Contract or Condition upon the non-performance of this Original Contract do thereupon cease to be Subjects as a Servant ceases to be so and becomes again sui furis upon his Masters non-performance of the bargain made between them and so this Authority thus forfeited returns to the Community of Masters of Families and Freemen who once conferr'd it upon the first King nor needs this forfeiture any more suppose a Superiority in the persons who are to take it over the Prince that commits it than when by the Law of England Tenant for Life aliens in Fee He in reversion may immediately enter upon the Estate as forfeited to him though the person that held it was perhaps his own Father M. But is not this then to recede from your former concession whereby you grant that Civil Authority is deriv'd from God and not from the people at all whereas you now suppose them the only Original or Fountain of Civil Authority and from them to be deriv'd to all Princes and Monarchs F. This difficulty wholly proceeds from your not rightly understanding the manner of God's conferring Civil Power or Authority upon those that exercise it For the better clearing of which difficulty pray let me ask you two or three Questions First pray tell me whether you are still of the Opâ—â—ion that Monarchy is so much of Divine Institution as that no Government but that may be lawfully Instituted by Men M. I will not now affirm that Monarchy is of Divine Right but this much I may safely over by what we can find in Scripture that God instituted no sort of Government but that and he did not make Saul or David to be only like those Equivocal Kings who might be deposable at the will of the Estates but conferr'd part of his own Divine Power upon them without any conditions or limitations whatsoever but as for those Governments call'd Common-wealths though without doubt they are not of Divine Institution yet certainly the power of Life and Death which they exercise is wholly from God since as I have already said a Man not having power over his own life cannot confer that upon another which he had not in himself F. Well I am glad we are so far agreed that Common-wealths are endued with real Authority or Majesty as well as Monarchs and that from no less Author than from God himself so that whatever you have said concerning God's Institution of no other Government than Monarchy is either not true or not to the matter in hand for in the first place I have already prov'd at our thiâ—d Meeting that the first Government God Instituted among the Jews was an Aristocraâ—y under Moses Ioshua and the Judges reserving the Kingly Power over them to himself And though it is likewise true that God divested himself of great part of this Kingly Power when he anointed Saul King yet God's Institution of Monarchy among the Jews do's not render it unlawful for other Nations to institute such other sorts of Government as may best suit with the Geâ—ius of the people and the publick good and safety of the whole Community But as for your Argument whereby you would prove the necessity of all Civil Powers being deriv'd from God because otherwise they could not be endu'd with the power of life and death over their Subjects I have sufficiently taken off that difficulty at our second Meeting and shewn you that a Man in the state of Nature has not only power over another Man's life but also over his own not only to hazard it but also to lay down or lose it for some greater publick benefit to Mankind which is also acknowledged by the Apostle Paul himself For a good man some would even dare to die But further to shew you the absurdity of this Principle let me put you this case suppose that a Kingdom or Common-wealth were so instituted at the first that no Subject or Freeman should suffer death for any Crime how great soever which that
I do not suppose as a thing impossible it was for divers Ages exercised in the Roman Common-wealth wherein no Civil Magistrate could lay any greater punishment upon a Roman Citizen than banishment or deportation And if that Copy we have of the Laws of King William the first be authentick it is by the 67th Law in his Charter ordain'd That no English or French Subject should suffer death for any Crime whatsoever but only be punisht either by pecuniary Fines Imprisonment or else by loss of Ryes Hands Feet or Members which Law though I do not say was ever observ'd yet it shews it was then supposed to be both possible and lawful Now if this could be so there would be no necessity of supposing the Authority of the Common-wealth of Rome or of King William I. to have been deriv'd from God since they had renounced and refused the great Character thereof viz. the inflicting capital punishments but if for all that they still conâ—inued to be Lawful Civil Governments then it is evident that this power of life and death is not that which alone constitutes a Civil Power and makes it owe its Original to God But to return to what your notion concerning this power of life and death hath made me digress from pray let me â—sk you another Question After the Expulsion of King Tarquin and before the Common-wealth of Rome was form'd where was the Supream Authority lodged M. Why in the same Body it was afterwards the people of Rome comprehended under the Patritions and Plebtians that is the Nobility and Commons who yet retained the power of life and death over those of their own Children and Slaves though they communicated a great part of their power to the Senate and Consuls F. Very well Was this Authority they so conferr'd on the Senate and Consuls the same which they themselves could have exercised or was it any new Authority immediately deriv'd from God and created for that purpose M. I do not think it was any new created Authority but only a part of their former power which they so made over to the Senate and Consuls since they reserv'd one great part of it viz. the Legislative Power wholly in themselves but however this power which the Fathers of Families and Freemen among the Romans had over the lives of their Children and Slaves as also over others who were declar'd publick Enemies was deriv'd wholly from God yet there arose likewise a new power which these Fathers of Families were not invested with before viz. that of making Laws as also of War and Peace all which powers were deriv'd from God for the common good and defence of the whole People or Community F. Herein I also agree with you but then mark what follows it then plainly appears that the natural Subject of Civil Authority was the Fathers of Families and Freemen of Rome and that what share thereof was committed to the Senate and Consuls it was wholly personal and as their Representatives this being so pray answer me another Question when the Senate and People of Rome did afterwards confer their whole power upon the Roman Emperors by that Law mention'd in your Institutions Lex Regi was there then created or produc'd any new Authority from God to the first Emperor or was it the same Authority or Majesty which the Senate and People were endued with before for either it must be the same or else God must create a new parcel of this Royal Majesty or Authority wherewith to endue this first Emperor which if you suppose I can shew you a great many difficulties and absurdities that will follow from this Opinion for then I might ask you whether this Royal Majesty be like the Stoicks Anima mundi whose parts are distributed among all the Kings in the World or whether each King has his particular Majesty to himself or whether the King dying his Majesty also dies with him or whether it exist without him as the Soul do's when separated from the Body and by a certain kind of Metempsychosis is transferr'd to the new Monarch M. I shall not flick at present to affirm that this Authority or Majesty of the Roman Emperors was originally deriv'd from God though not immediately but by the mediation of the people of Rome as his Instruments especially ordain'd for the derivation of this Imperial power F. Well then I see you and I are at last agreed for I suppose all Civil power to be so deriv'd from God to the people and by them as an Instrumental Cause convey'd to the person whom they agree to make their King But if this were so in the Roman Common-wealth why are not all the rest of the Nations of the World indued with the like priviledge so that no man may justly make himself King over them without their Election or Recognition at least M. Perhaps in those Nations where the people have from the first Institution of the Government retain'd the whole Civil power in themselves or else by the Extinction of the Royal Family they became possest of it this power â—â—y afterwards by them be transferr'd or made over to one single person or more but this can by no means hold in divers other cases where God immediately bestows a Civil Power or Authority without the consent of the people as it is in the case of Kingdoms acquired by a Conquest in a Just War for as to Unjust Wars or Conquests I freely own they confer no Right at all but since you will not I suppose deny that such a Rightful Conquest confers an Absolute power on the Conqueror over the Lives and Estates of the Conquered as also an Obligation in them to submit to and obey the Conqueror hence must arise a new Civil power without any consent of the people intervening which Authority since no man can confer it upon himself must necessarily be immediately conferr'd by God since as I said before the people are only passive and have no hand at all in the conveying of it and this is the more remarkable because I suppose you will not deny but that where one Kingdom or Empire has owed its beginning to the Election or Consent of the people I could name ten that have begun from Conquest So that it is evident the people are very rarely the Efficient Causes of Civil power F. Though this Question concerning Conquest do's not immediately concern our Kings who as I have already proved do not owe their Regal Authority to Conquest but to the consent of the People Yet since the Title to a great part of our Kings Dominions begun at first from Conquest I shall now say something of it First then you grant that only Conquest in a just War can confer a Right to the Peoples obedience And therefore since the greatest part of the Governments have commenced from unjust Conquests it will therefore follow that the Right of such Princes to those Kingdoms Territories so unjustly acquired could not owe
together with the Bishops of Winchester and Ely with divers other Earls Bishops and Lords then in Town had sent an Address to the Prince immediately upon the Kings departure and sent three Lords and one Bishop with it desiring his Highness to come speedily to London and to take the Government upon him and having before declar'd that they would with their utmost endeavours Assist his Highness for the obtaining of a Free Parliament so that the Prince had no reason upon the Kings return to Surrender that Power which the Nation as far as it was able to do without a Parliament had put into his Hands and that to a King whom he had very little reason to believe would use it any better than he had done before But I see you wilfully decline entring into the Merits of the Cause and arguing the main point in the Controversy viz. whether the King was in a State of War or Peace with the Prince upon his return for if he were still in a State of War the Prince might certainly very well justifie his clapping up the Earl of Feversham his Late Majesties General for offering to come within the Limits of the Princes Quarters without his leave especially since he was still answerable for doing his endeavour to Disband an Army a great part of which consisted of Papists and Forreigners with their Arms in their hands whereby they might have robb'd and spoyl'd the Countries or at least have kept those Arms to renew the War again with the first Opportunity so that certainly it could not be so slight a thing as a bare Invitation to St. Iames's whither the Prince could have gone without his leave being now Master of the City which could so far efâ—ace all the Princes just Resentments and make him so far confide in the Kings Word as to come to London whilst he remained there with his Guards and all those Papists and Tories in and about London ready to take his part and Rallie again into a new Army upon the first Signal But as for any Proposals of Peace or Accommodation which you say the Lord Feversham brought with him I neither know nor have heard of any such thing 't is true the King says in the said Paper he left behind him that he had writ to the Prince of Orange by the Lord Feversham and also mentions some Instructions he had given him but what they were he does not tell us but sure they were not Propositions of Peace since it is to be supposed that the King would not have sent any thing of that Consequence without first acquainting the Privy Council with it before it was sent But since we hear of nothing concerning them we may very well suppose there was no such thing or if there were his Highness was the fittest judge whether they were reasonable or not and if the King had any desire to propose any Just or Reasonable Terms whereupon he might have hoped to have been restored again to his Royal Dignity he had a very â—air Opportunity for it when a great Council of the Nobility were met at St. Iames's in Order to Sign an Association to stand by the Prince in the Calling of a Free Parliament for the King might then if he had pleased have made his Proposals by such of the Lords and Bishops as he could most confide in and have Conjured all the Peers there Assembled to have interceeded with the Prince of Orange to renew their Treaty with the King which had been before unhappily broken off and then if either the Peers had refused to do this or the Prince had refused to hear them the King might then I grant have had sufficient reason to declare to all the World that he was not fairly dealt with but for him again to go away only upon pretence that his Person was under restraint when really it was not plainly shew'd that he had no real design of making an amicable end of those differences or really desir'd to be restored to his Throne by the general consent of the Nation but either hoped for it from those Civil Dissentions he expected we should fall into upon his departure or else to the Arms of France and this being the Case I think nothing is plainer than that the King both by his first and second departure hath obstinately refused all those means whereby the Nation might have been setled with a due consideration of his Person and Authority whilst he lived and of the Prince when his Legitimacy shall be sufficiently proved and made out before a Free Parliament So that since I have already proved that the King had before the Princes Arrival committed so many Violations upon the whole Constitution of the Government and that these Violations if wilfully and obstinately persisted in do at last produce an absolute loss and forfeiture of the Crown it self I think the late King has done all that could be required to make it so But I have forgot to answer one Objection you made viz. that the Peers and Bishops when they invited the King to return to White-Hall had no Notion of this forfeiture nor the people of London who you say received him with great Joy and Acclamations and that therefore it is wholly a new invention To this I Answer that if the Lords you mention did send this message to the King it might be because they were surprised with his unexpected return and had not well considered all the Circumstances of the Case and thereby did more then they could well justifie having before declaed they would stand by his Highness in procuring a Free Parliament which must certainly be without the King since he was then gone away and they had also invited him to come to London as well as the City and how that could consist with their inviting the King thither without the Princes consent I do not well understand but it seems they quickly altered their Sentiments as appears by their presently after Subscribing a paper in the nature of an Association to stand by the Prince without taking any notice at all of the King and the very day of the Kings departure they met to consider upon the Princes Speech he had a day or two before made to them desiring them to advise on the best means how to pursue the ends of his Declaration in Calling a Free Parliament and within two days after they presented the Prince with their Advice to call a Convention on the 22th of Ianuary which was also the next day agreed to by one hundred and sixty Persons who had served as Knights Citizens and Burgesses in any of the last Parliaments in the time of King Charles the Second without taking any notice at all of the King for though it is true he was then gone away when the Commons and City two or three days after made their Addresses to the Prince Yet when the Peers met both the first and second time on the 21st and 22d of December he was
to introduce his Religion by all the ways and means he could but how near the French Forces were to be brought over into this Kingdom the last Summer is very well known to those who were then in France and saw them upon the Sea Coast ready to Imbark nor was their coming over put off by any other motives than that two of the Cabinet-Council represented to the King that it would be the only means to make the whole Nation rise up against him and joyn with the Prince of Orange as soon as he Landed which I suppose was the only reason that hindred it for that the French King offered to send them is very certain Yet it does not follow for all that but the King might take an opportunity of doing it another time and bringing them over in their own Ships if ours would not do the business And though I will not affirm that there is any private League with France for the Extirpation of the Protestant Religion yet this much I think may be sufficiently made out that long ago the King was wholly in the power and interest of France as appears by Coleman's Letters whilst he was his Secretary when Duke of York The first passage is to Sir William Throgmorton Feb. 1. 1673 4. You well know that when the Duke comes to be Master of our Affairs the King of France will have reason to promise himself all things that he can desire The next is to Father La Chaise the French Kings Confessor in these words That his Royal Highness was Convinced that his interest and the King of France's were the same and whether the Duke by his Accession to the Crown has shewed any alteration in his Inclinations to France either in respect of Religion or Interest I appeal to the World Nor is your next Supposition less out of the way that the King could have made use of no Forces but French to settle Popery and Arbitrary Government here as if He had not Scotch and Irish Papists enough in his Dominions for this occasion and as for Arbitrary Government we have found to our grief that there are too many Mercenary Souldiers in the Kings Army who fought only for pay and would have Assisted the King to have Raised Money without the Parliament nay to pull the very Parliament out of Doors if he had bid them and if some of them were Discontented when the Prince came over I do not so much impute it to their Honest Principles as fear lest they themselves should be Cashierd and Scotch and Irish to be listed in their rooms so that upon the whole matter considering the temper the King was in ever since his last coming to Town and that as soon as he Arrived the Priests and Jesuits flocked about him as thick as ever that they and the French Envoy were his chief if not his only Cabinet Councellors I cannot see unless he had taken new measures how we could have been secure or could have relied on any thing he could have farther promised nay swore to perform since no Oath could be more Sacred than that at his Coronation when he Swore to maintain the Church that is the Doctrine of the Church of England and the Laws of the Kingdom if that be a true account of the form of it which we have in print M. At this rate of Arguing I know not what to say to you since this Argument amounts to no more than this that the King could upon no account be trusted and therefore was not any more to be Treated with if this were so to what purpose did the Prince of Orange declare that he came not to Conquer the Kingdom but only to procure a Free and Legal Parliament which could not be called without the Kings Consent and owning his Authority neither could they have done the least Act for the Amendment of our Grievances without his Majesties Consent or to what purpose did the Prince enter into a Treaty with the Kings Commissioners at Hungerford if his Royal Word and Promises were not to be believed But if his Majesty could ever be trusted I see no reason why he could not have been so as well since his last coming to Town as before since he came voluntarily and as I have great reason to believe with Real Intentions to grant and perform what ever the Nation could reasonably expect for the Redress of their Grievances and would have given any reasonable Security of his performance for the future without Devesting himself of his Royal Power of making Laws and Protecting his Subjects But as for the former part of your Speech whereby you would prove it lawful to Resist the King because you say it conduced to the Common good and Interest of the Nation both as to the Protestant Religion and Civil Liberties this is no more than the Old Common-wealths Maxim in other words which I grant is so far true as when the safety and preservation of the King or other Supream Powers of a Common-Wealth who according to your own principles are the Representatives of the people and consequently part of it are likewise comprehended and maintained as they ought to be in their due power and authority for Bishop Sanderson in his Learned Lectures hath very well proved that those cannot be separated from each other without destroying the Civil Government which is all the Security we have for our Civil Properties and Liberties and we see in those few days in which his Majesties Person was withdrawn when that there was no Civil Government exercised that there was greater infringment of them both by plundering and destroying of Houses and spoiling of Parks and Forests in three or four days time by the violence and fury of the Mob than have been committed by the most Arbitrary Kings from the Conquest to this day F. You very much mistake me if you think I maintain that there was never any time after the Princes Landing that the King might not have been Treated withal and likewise trusted with the Administration of the Government but then it must have been upon such Terms as should have secured us for the future from his Acting the like or worse things over again as in the first place he should have renounced his Dispensing Power and that of Levying Chimny mony upon small Cottages and Ovens directly contrary to Law Next he should have Disbanded his standing Army and kept up no Forces in time of Peace besides the necessary Guardâ— of his Person the Number of which should have been agreed upon by Parliament which should also have Sâ—te once every year or two years at least and lastly that in respect of the Church as long as he or his Successors continued of the Roman Catholick Religion the Nomination of all Bishops Arch-Bishops Deans with other Ecclesiastical preferments which are not in the immediate Disposal of the Lord Chancellor should have been in the Arch-Bishops and Bishops of each Province they choosing two out of
Statutes of Provisors and Praemunire and I could shew you from divers Records of Parliament in the Reign of Richard II. Henry IV. and Henry V. that they never intruâ—ed the Crown with an absolute power of Dispensing with those Statutes but only for a time as till the next Parliament or longer as they thought fit But since I have not now so much time to give you so many Presidents at length I shall only tell you that as to the main instance you relye upon viz. the Kings Dispensing with the Statute of Sheriffs that at first it was not taken for Law appears by several Acts of Parliament as in 28. of Henry the VI. whereby those Sheriffs that had held their Offices for more than a year are pardon'd likewise in the Act of Edw. IV. there is a like Statute pardoning those Sheriffs Who by reason of the late troubles in the Realm had held for above a year yet nevertheless confirms all former acts concerning Sheriffs for the time to come and this held as far as the sixth of Henry VIII which is long after the Judgment you mention in the Exchequer Chamber of all the Justices in England to the contrary for there was then an Act made which reciting all the former Statutes about Sheriffs as then in full force it Enacts that the Sheriffs and under Sheriffs of the City of Bristol may continue to occupy their Offices in like manner as the under Sheriffs and other Sheriffs Officers in London do without any Penalty or Forfeiture for the same the said Acts or any other Acts to the contrary notwithstanding From all which Statutes I think it sufficiently appears that neither the Sheriffs of those times nor the City of Bristol nor the whole Parliament when that Act was made did believe the King had Power to Dispense with the Act of the 25 of Henry the VI. concerning Sheriffs for if they had certainly it had been much easier and cheaper for them to have obtain'd the Kings Dispensation than to have got an Act of Parliament for it M. I believe you may have cited these Statutes right enough but yet I think they are not sufficient proof against so solemn an Opinion as that of all the Judges in the Exchequer Chamber 2 d of Henry the 7 th and whatever the Parliament might have declared in the Case of this or that Particular Statute I confess carries some Authority with it yet ought it not to be counterval'd by so solemn a Judgment as that of all the Judges and Lawyers of England together with the King 's constant Exercise of this Prerogative not only since but before that time and that without any question or dispute with the Parliament about it as in the Case I have already put of the Statute that forbids any Welchman being an Officer in Wales to which I may add divers other Cases of like nature such as the Statute against a Judges going the Circuit in his own Country as also those Statutes that prohibit the King from granting Pardons to Persons convict nay condemned for Murther with several other Penal Statutes I could name were though the King's hands are tied up by particular Clauses of Non-obstante yet has His Majesty and his Predecessors at all times exercised their Prerogative of dispensing in all those Cases notwithstanding those Acts of Parliament with Non-obstantes to the contrary And though I grant you have given me several Presidents of the Parliaments sometimes restraining the King in this Exercise of the Dispensing Power yet they are all or the greatest part of them before the beginning of Henry the VII th's Reign when I grant the Law first began to be setled in this matter and since the Judgment of all the Judges in the Exchequer Chamber is the only Rule of Law we can have in the Intervals of Parliament and that this case of Dispensations being by them adjudged and ever since setled and own'd for Law without the least dispute I can see no reason we have to question it now But as for the Statute of the 6 th of Henry the VIII which you urge as a President to the contrary since the Reign of Henry the VII I think it will not reach the Point in question for the Act you now cited seems to me no more than a private Act for the Sheriffs of Brestol alone who being it seems afraid to rely upon the King's Dispensations because they thought them too chargeable to be taken out as often as they should have need of them did think it a great deal less charge and trouble to pass an Act of Parliament to indemnify themselves which I grant put that matter beyond all dispute But since this Act of Henry the VIII I find no contest between the Parliament and the King about his Power of dispensing with Penal Laws till the Reign of King Charles the II. when I grant the House of Commons did address to His Majesty That Penal Statutes in matters Ecclesiastical cannot be suspended but by Act of Parliament as also the last Address of the House of Commons in 1685. against the King's dispensing with the Officers of the Army their holding Employments without taking the Oaths and Test according to the Act whereby they were appointed But these being only against the King's Power of dispensing with Laws Ecclesiastical as concerning Liberty of Conscience can no ways be extended to their excepting against the King's Power of dispensing with divers other Penal Laws I will not say all which have Non obstantes in them F. Since I see not only your Opinion but also that of most of the Judges and Lawyers of England concerning this matter of the King's Dispensations with Penal Laws has been chiefly if not only founded upon that Opinion of all the Judges in King Henry VII i me give me leave to examine the validity of that Judgment for if that can be proved not to have been according to Law or elâ—e never given at all I suppose you must grant that my Lord Coke and all others who have founded their Opinions upon this adjudged Cause of Hen. the VII were mistaken Now pray give me leave to argue a little with you in point of Reason If a Non obstante from the King be good when by Act of Parliament a Non-obstante is declar'd void what doth an Act of Parliament signifie in such a case must we say it is a void Clause But then to what purpose was it put in Did the Lords and Commons who drew this Act of the 23 d of Henry the VI. as also those Acts concerning Sheriffs understand this Clause of Non-obstante to be void when they put it in If it were so and contrary to the King's Prerogative why did the King pass this Act without any refusal or protestation against it certainly it was then thought otherwise and if so we have the Authority of the two Houses of Parliament against the Opinion of the Judges But if it were not a
Wales though it is true he is carried out of England ought to have been immediately declar'd King as was done in the Case of Edward the 3 d. who was so declar'd upon the Deposition or Resignation of King Edward the 2 d. F. Though I grant ever since the Crown has been claim'd by Descent the Law has gone as you have cited it and that Finches Law lays it down for a Maxim I shall not deny but that from the beginning or original of Kingly Government whether we look before or after you Conquest it will appear that the Throne was often vacant till such time as the Common Council of the Kingdom had agreed who should fill it and to shew you I do not speak without good Authority pray tell me if this Maxim had then obtain'd why after the Death of William the First his Eldest Son Robert Duke of Normandy did not immediately take upon him the Title of King of England or at least had done it after the Death of William Rufus who you know was placed on the Throne â—not by Right of Inheritance but by his Fathers Testament confirm'd and approv'd of according to the Antient English-Saxon Custom of Succession by the common Consent of the great Council of the whole Kingdom and yet notwithstanding after the Death of this William Henry his younger Brother succeeded him by the free Election and Consent of the same Common Council and yet that Duke Robert should never in all his Life-time take upon him the Title of King Pray tell me likewise if this Maxim had been then known why Maud the Empress immediately upon the Death of her Father King Henry the First did not take nor yet her Husband the Duke of Anjou in her Right the Title of King and Queen of England though she had had Homage paid her and Fealty sworn to her in the Life-time of her Father as the immediate Successor to the Crown and yet notwithstanding the utmost Title she could assume was that of Domina Anglorum Lady or Mistress not Queen of the English whilst Stephen who had no other Title but the Election of the great Council of the Nation held both the Crown and Title of King as long as he lived As also why Arthur Duke of Britain who according to the now received Rules of Succession was the next Heir to the Crown upon the Death of King Richard the First never took upon him the Title of King unless it were that he very well knew that his Uncle King Iohn had been placed in the Throne by the Common Consent and Election of the great Council of the Kingdom So likewise after the Death of King Iohn why Henry his Son was not immediately proclaim'd King till such time as the great Council of the Clergy Nobility and People had met and agreed to send back Prince Lewis whom they had chosen for their King though not being Crowned he never took upon himself that Title and so chose Henry the Third then an Infant for their King Lastly Why all these Princes viz. Henry the Second Richard the First and Henry the Third who according to your notions were undoubted Heirs of the Crown never took upon them the Title of Kings of England nor are so stiled by any of our Historians till after their Elections and Coronations if it had not been then received for Law that it was the Election of the People and Coronation subsequent thereunto that made them Kings and till this was performed though they might look upon themselves as never so lawful Successors the Throne was notwithstanding esteem'd in Law vacant Therefore as for your Iâ—stance of King Edward the Third 's immediately succeeding upon the Resignation of his Father if you please better to consider of it that makes against you for it is plain from Th. Walsingham and H. de Knyghton that Prince Edward succeeded not to the Crown by Succession but the Election of the great Council or Parliament the words are express Huic Electioni universus Populus consensit and this was also owned by Edward the Second himself who when the Commissioners of all the Estates of Parliament came in all their Names to renounce their Homage to him yet in the midst of all his sorrow he gave them thanks quod Filium suum Edwardum post se Regnaturum eligissent which plainly shews that the Parliament had then such a Notion of a Forfeiture proceeding from his Deposition for violating the Fundamental Laws of the Kingdom that the Eldest Son and Successor could pretend no other Right to it even in the Judgment of the late King himself but what proceeded from their Election M. I cannot deny but what you have now urged from matter of fact may appear very plausible to your self and those of your Notions yet if it be looked closer into I doubt not but the known Laws then receiv'd and the Notions the people had then of a Lineal Succession by Right Inheriâ—ance will prove directly contrary to the matter of fact For you know very well à facto ad Ius non valte consequentia but that all the Princes you mention'd except the three last were really Usurpers and not Lawful Kings I shall let you see by evident Authorities from the Historians of those Times For in the first place though I grant William Rufus succeeded to the Crown by his Fathers last Will which was certainly unlawful as being contrary to the receiv'd Laws of Succession in Normandy as well as England yet was it not by Election of the people as you suppose but by the kindness of Arch-Bishop Lanfranc his God-father and the favour of the greater part of the Norman Barons who came over with his Father as well as out of hatred to Duke Robert his Elder Brother that he was thus made King so that William Rufus claimed as a Testamentary Heir and by reason of that Claim was advanced to the Throne by the Assistance of Lanfranc's and the Bishop's Faction who then swayed the people but yet never owned any Election from them so that if you rightly consider this Story you cannot call it an Election but a Designation or Nomination by his Father William the Conqueror and consented to by the major part of the Bishops and Lords of the Kingdom but not by their Election or Decree as a Common Council as you suppose But that for all this Duke Robert his Brother being assisted by Odo Bishop of Bayenx and Earl of Kent his Uncle as also divers other Norman Lords who being satisfied of his Right raised a War in England against William and great mischief was done on both sides till at last a Peace was made between them upon these conditions among others as Matthew Westminster relates it that because of the manifest Right Duke Robert had to the Crown he should have a Yearly Pension of three thousand Marks out of the Revenue of England and he of the two Brothers that surviv'd the other if he died
to have been upon the Death of King Henry the II. Now your only argument to prove this is that King Richard tho' his Eldest Son alive was only call'd Duke of Normandy and never King of England till after his Coronation but whoever will but consider the circumstances of this matter will find that he was indeed own'd for King of England before his pretended Election or Coronation for before his coming into England to be Crown'd Rocer Hoveden tells us That every Freeman of the whole Kingdom by the Command of his Mother Queen Elianor swore quod fideni portabit Regi Angliae Richardo Regis Hen. filio which plainly shews that he was then by common intendment looked upon as King before his Coronation and though I confess that this very Author also relates that all the Estates of the Kingdom being assembl'd at London by whose Council and Assent the said Duke was Consecrated and Crown'd King of England and though Ralph de Diceto then Dean of St. Paul's who in the Vacancy of that Church then supplied the Office of the Bishop at King Richard's Coronation hath this passage Comes itaque Pictavorum Richardus hereditario jure praemovendus in Regem post tam cleri quam populi solemnem debitam electionem involutas est triplici Sacramento c. Now what can this solemn and due election here signifie Or what can it mean farther than that Richard being King by Hereditary Right was so owned and recognized by the Clergy and Laity F. I desire I may reply to this before you proceed farther I confess what you say about the Empress Maud's surrender of her Right to her Son Duke Henry would be considerable if you had any Authorities from our Antient Historians to support it but since you have not I look upon it as no better than a meer surmise of those of your opinion that the Crown was then enjoy'd by an Hereditary Right without any consent or election of the people and so likewise is your other fancy that because Women were then looked upon as uncapable to Govern therefore the Bishops and great men of the Kingdom suppos'd they had sufficiently perform'd their Oath of Allegiance to her by acknowledging her Son Duke Henry for the right Heir of the Crown now if this had been so pray tell me to what purpose King Henry I. Father to the Empress should have made all the Estates of England swear fealty to his Daughter if a Woman had been then lookt upon as uncapable to Govern or to what purpose should the Clergy in the Council at Winchester chuse this Empress as the King's Daughter Lady both of England and Normandy as William of Malmesbury tells us expresly that they did and that he was present at it or how could the great Council of the Kingdom believe that they had sufficiently satisfied their Oath to the Daughter in conferring the Allegiance that was due to her upon her Son I am sure no Heiress of the Crown would look upon that as a good performance of their Oath at this day when you can answer me these queries I shall be of your opinion in this point but till then I beg your pardon But as to what you say against the Vacancy of the Throne upon the Death of King Henry the II. till King Richard was Elected and Crown'd I desire no better Authority to the contrary than those very Authors you have now cited for your opinion for first Hoveden in the very place you have quoted him says That the Duke was to be Crown'd King by the Council and Asâ—â—nt of all the Parties there present now if I understand any thing of Grammar or Sence he was not King before and therefore needed their Assent to make him so likewise in the next quotation from Ralph De Diceto the Duke is said Hereditario jure promovendus in Regem which words being in the Future Tense shew he was not then but was to be promoted to that dignity now if his Hereditary Right alone could have done it then to what purpose are all these words aforegoing so that though this Right gave him the fair pretence to succeed to the Crown yet it is plain from both the Authors you have quoted that he was not so till after the due Consent and Election of the Clergy and People so that after all your questions what can this solemn and due Election signifie or what can it mean farther than that Richard being King by an Hereditary Right was so own'd and recognized by the Clergy and Laity will receive a very easie answer from what has been already said till you can shew me out of any Dictionary that Consilium and Assensus which are the words of Hoveden and the words Solemnis debita electio ever signified an owning or recognition of an Hereditary Right I confess the only colour you have for your interpretation of those words in Hoveden which you have now cited of Queen Elianors making every Freeman of the Kingdom swear Fealty to Richard King of England as to their Liege Lord from whence you would infer that by common intendment of Law he was looked upon King of England before he was Crown'd and consequently there could be no Vacancy of the Throne now admit that he was commonly call'd King before he was Crown'd or that the Queen his Mother would make the People swear to him as such yet that could not make him so since the same Historians also tell us that Hubert Archbishop of Canterbury and William Earl Mareschal made the people of England take a like Oath to Earl Iohn as their Lord not King immediately after the death of King Richard his Brother and yet I suppose you will not affirm that their swearing Fealty to him as their Superiour Lord made him King or gave him a just Title to the Crown and I desire you or any indifferent man to tell me which was Hoveden's opinion whether this swearing Fealty was a sufficient Declaration of his â—eing King or else all those other expressions which signifie the contrary when immediately before his Coronation he only calls it ducem Richarâ—m qui Coronandus erat in Regem which I think is as plain a distinction of his being a Duke before he was Crown'd and a King afterwards as words can make M. I see it is in vain to urge this point any longer and therefore I shall proceed to your next instance of the Vacancy of the Throne after the death of King Richard until King Iohn was placed therein now though it is certain that this Prince was an Usurper upon his Nephew Duke Arthur yet whether he was ever Elected in a Common Council of the Bishops Earls and Barons of the Kingdom is very doubtful But suppose he were it was done wrongfully and to the prejudice of Arthur Duke of Britain the right Heir to the Crown who being young and a stranger it is no wonder if he were put by and his Uncle who
nuncios ad Iohannem Ducem Normandiae c. Where you see he calls him no more than Duke of Normandy But to come to the Election of his Son Prince Henry if this be all you have to prove a Divine right of Succession in Henry the IIId I doub it will do you but little service for according to your own principles it must have been lodged some where else than in this Prince For when King Iohn his Father died Eleanor the Sister of Duke Arthur was then alive and died not till the 25 th year of King Henrys Reign a close Prisoner in Bristol Castle as Matthew Paris relates So that it is apparent he could have no such Divine Hereditary Right as you suppose and therefore perhaps his Father to strengthen his Title and to recommend him the more to the Peoples savour appointed him his Successor by his last Testament And Matthew Paris and Matthew Westminster tell us that when King Iohn died Henricum Primegenitum suum Regni constituit haeredem So that it seems there was then no such Hereditary Right for if it had what need had there been of this Testament But for all this Divine Right I do not find that this poor Princess Eleanor had any of the Bishops or great Lords to take her part but all the dispute then was at this great Convention at Gloucester whether they should abjure Prince Lewis whom most of them had before chosen for their Lord and adhere to Prince Henry there present before them as Matthew Paris tells us Erat autem tâ tempestate inter Optimates Angliae fluctuatio maxima cui se Regi committeâ—ent Iuvenine Henrico An Domino Ludovico So that it seems by the relation our Historians give us of this matter it was not from any great sense that the Clergy and Nobility had of the justness of Prince Henry's Title that made them agree to chuse him King but the hatred they then bore to Prince Lewis when they found he had broken his contract with them and put all the strong places of the Kingdom in the hands of French men and treated the English Nobility with scorn and contempt And therefore no wonder if they preferr'd an innocent young Prince of their own Nation who had never been guilty of his Fathers faults before a Stranger whose fraudulent dealing with them they had found not to answer their expectations and therefore Mat. Westminster tells us That Omnes nobiles Terrae in brevi ipsi Iuveni Regi Hemico qui nihil culpae versus tos merueras fideliter adhaeserunt But to prove farther that this King came in by Election and not by Succession appears by what our Historians relate concerning the manner of it Henry de Knyghton in his Chronicle tells us that on the Feast of St. Simon and Iude Henry Son of King Iohn in Regem erigitur viribus industria Gualonis Papâ—e Legati which plainly shews that he was not King before and I desire no better an authority than your own Author Matthew Westminster who says that he was in Regem inunctus anointed to be King which shews that he thought him not so before his Coronation and though I grant Mat. Paris makes the Earl Marshal to begin his Speech with those words Ecce Rex vester as you relate them yet this was no more than an allusion to that place in St. Iohn ch 19. Behold your King it being usual in those days to begin their Speeches with a Text of Scripture So that the Earl did not intend to be understood literally for then he should have in this Speech contradicted what he had said bâ—fore for though to prepossess their minds he says of the young Prince there present Behold your King Yet it is plain that how much soever he thought the Kingdom his right yet that it could not be conferred upon him without their choice as appears by these words which you your self have made use of viz. You ought to chuse him to whom the Kingdom is due And it is evident by the assent which the whole Assembly gave to the reasons declared by him in this Speech that it was their choice alone that made him King their Votes being given in these words Fiat Rex which had been altogether needless had they looked upon him as King already And therefore the Speech of Hubert de Burgh which you mention may very well be reconciled to this Hypothesis of supposing a necessity of an Election and Coronation to confer a full and legal right in those times For when he said That the King if dead had yet left behind him Children who ought to succeed him This if strictly taken is altogether false for Eleanor the true Heiress of the Crown according to your rule of Succession was then alive But if taken in a limitted sense is true that is the Children ought to succeed if the great Counsel of the Nation thought fit without whose consent though they might have Ius ad rem yet had they not Ius in re This Election and Coronation being then looked upon as Livery and Seisen at this day is to an Estate in Fee without which though the writings are sealed and delivered the Land will not pass To conclude I pray answer me that question I have so long put though without any reply viz. why before this Election and Coronation was perform'd none of those Princes that came to the Crown by your supposed Right of Succession are call'd by any higher Title than Dukes of Normandy or Earls of Poictou So that from what has been here said I think it plainly appears that no less than seven of the eight Princes from your William the Conqueror reckoning him for one to King Henry the III. have owed their Title to the Crown not to any right of Succession but either to the Election of the People alone or else to the will or designation of the last King confirm'd by the general consent of the People given thereunto and without which it would not have been good according to the ancient custom of the English Saxons before your Conquest where besides the Testament of the King deceased there was also required the consent or Election of the great Council So that you see here was no alteration made in the form of our chusing our Kings after your Conquest from what it was before for no less than seven or eighâ— descents and when you can answer this I shall then come over to your opinion M. In answer to your Question I shall not deny but that all our Historians give all the Kings you mention no higher Titles than Dukes of Normandy or Earls of Poictou before their Coronations which though I suppose they might do from a foolish superstition of that Age which made them fancy that none were properly to be called Kings until they had been Anointed and solemnly Crown'd by a Bishop yet that they looked upon them as Kings indeed appears in that they
ordered and disposed of all publick Affairs conferr'd Offices and Bishopricks as if they were lawful Kings before your pretended Election or the ceremony of their Coronation and also had Ambassadors sent to them from Foreign Princes as appears from your own Quotation out of Hoveden Of those that were sent by the King of Scots to King Iohn before he was crowned though it is true he there stiles him no more than Duke of Normandy And this also may further appear by that passage I have cited out of the same Author that King Richard had Fealty Sworn to him as King of England by all the Freemen of England before he was Crown'd and you your self acknowledge the same Oath to be taken by the same persons to King Iohn before he came over to take the Crown And Lastly To make it yet plainer that there was no Vacancy or Inter-regnum in all these Successions you have mention'd consult what Chronologer you please or look into the most ancient Tables of the Succession of our Kings of England or into our old Printed Statutes or Law Books and you will still find the Reign of the Suceeding Prince to commence from the Death of his next Predecessor without any Vacancy or Inter-regnum between And these I think to be a great deal surer marks of their succeeding to their Royal Dignity by a pretence at least of a right of Inheritance from their Father or Brother rather thau this fancy of yours that you lay so much stress upon That because of their not being stiled Kings by our Historians till their pretended Election and Coronation was over they were not so indeed And I hope this may serve to satisfie this mighty Objection F. I must beg your pardon if I still declare my self not satisfied with your answers for though I grant that if this Argument of the Historians not stiling them Kings had stood single without any thing else to support it that your answers might have signified something But if you please better to consider it you will find that of these Princes taking in William your Conqueror claimed as your self must acknowledge not by any Hereditary right but by the Testament of the deceased Predecessor and if so where was your setled right of Succession by right of Blood Secondly It is likewise as plain that these four were never admitted or acted in England as lawful Kings till those Testaments were confirmed by the Election of the Great Council before whom they declar'd their Rights And till this was done how the Throne could be otherwise than Vacant I cannot for my Life conceive But as for two of them whom you call downright Usurpers viz. Henry the I and King Stephen it is certain they could have no colour of a Title till their Elections and if not till then and that neither your next Heir of the Crown nor yet they themselves took upon them the Title of Kings Was not this a Vacancy of the Throne in the mean time Suppose that time to have been but for the space of three or four days as it was after the death of King William Rufus In the next place pray consider that upon the death of every one of these Princes we do not find the Great Council of the Kingdom which still assembled to Elect the Successor was ever call'd in their names but met by their own Inherent Authority for how could they be summon'd by the King before he took that Title upon him which as your self are forced to acknowledge he never did till after his Coronation Lastly Pray remember farther that whoever was thus Elected and Confirm'd by the Great Council whether he was next Heir by Blood or not was always looked upon as Lawful King and has always passed for such in all our Chronicles and Laws and not those that claimed as the right Heirs by Blood and if this be not sufficient to prove that these Princes had no true and compleat right to the Crown till this Election was past I desire you would shew me my mistake These things premis'd I think it will be very easie to reply to every one of those answers you pretend to have made to my Query Therefore as to your First That they were really Kings before their Election or Coronation because they order'd and dispos'd of all publick affairs I do not deny but that some of them who Succeeded either as Heirs by Testament or by right of Blood might do many publick Acts by reason that they looked upon themselves as Heirs Apparent to the Kingdom and whom the Great Council I grant could not without high Injustice set aside and upon this account they might also receive Ambassadors from Foreign Princes in Affairs relating to Peace or War that they might know how to deal with them or what to expect from them after they were setled in the Throne yet that they sent not to them by the Title of Kings appears by that passage I cited out of Hoveden but I defie you to shew me any one instance that any of these Princes above mention'd ever took upon them to exercise any of those Prerogatives of Sovereign Power such as making War or Peace Enacting Laws Coining of Money before their Election and Coronation which though in some of them was done both at once yet in others it appears plainly to have been at different times and not upon the same day as it happen'd in the case of Henry I. whose Election was at Winchester upon Saturday and his Coronation was not till the next day as also that of Henry the 3 d. whose Election was upon St. Simon and Iude's Day but his Coronation not till the day after But as for your next reply which I grant to have been the strongest you have made that King Richard I. and King Iohn had both of them Homage and Fealty sworn to them as Kings by all the Freemen of England before they were Crowned this were a material argument if it were made out as I think it cannot for in the first place the bare swearing of Homage and Fealty to a Prince doth not make him immediately King though I grant it might give him in that Age a right to be looked upon as Heir Apparent to the Crown thus Henry the I. made all the Lords and Great Men of England to swear Homage and Fealty to Prince William his Son and so after his being drown'd to the Empress Maud his Daughter which was the true reason why she looked upon her self afterwards as Heiress to the Crown so likewise King Stephen a little before his Death at the great Council I have mention'd caus'd all the great men of the Kingdom to Swear Homage and Fealty to Henry Duke of Anjou as his immediate Successour so that you see this swearing of Fealty was in those days often perform'd â—efore the persons that received it were Kings indeed and so I believe it was done in both those instances you now give me for though I
permit his Son to Reign in his stead which though with some reluctance he at last agreed to and thereupon Prince Edward took the Crown not by Election as you set forth but by the cession and resignation of his said Father as appears by the account which this King gave of it to the Sheriffs of all the Counties of England within a few days after his taking upon him the Crown which Writ or Letter is still to be seen among the Roll's in the Tower and is also published in Walsingham as a Proclamation which because it will give very great light in this matter I pray now read it at length Rex vicecom Ebor. Salutem quia Dominus Edwardus nuper Rex Angliae pater noster de communi confilio assensu praelatorum Com. Baron Alior Magnat necnon Communitat totius Regni praedict spontanea voluntate se amovit a Regimine dicti Regni volens concedens quod nos tanquam ipsius primogenitus haeres Regni gubernationem regimen assumamus nosque ipsius patris nostri bene placito in hac parte de consitio avisamento Praelator Com. Baron Magnat Communitat predict onnuenâ—es pubernacula suscepimus dicti Regni fidelitates Homagia ipsorum Praelitor Magnat recepimuâ— ut est moris teste Rege apud Westmonast 29. Ian. So that you here see this King takes no notice of the deposition of his Father or the Election of himself but only that by the Common Council and Assent of the Prelates Earls Barons c. The King his Father had by his own free Will removed himself from the Government of the Kingdom and that therefore he had by the good Will of his said Father and by Council and Advice of the said Prelates Earls c. taken the Government of the said Kingdom upon him But King Edward the 3 d. being dead his Grandson Richard the 2 d succeeded him having been before recognized by Act of Parliament as Heir Apparent to the Crown in his Grandfather's Life Time immediately upon the Death of his Father Edward the black Prince so that he succeeded to the Crown though an Infant and having great and powerful Uncles then alive and though by his ruling too Arbitrarily and being too much govern'd by Flatterers be became hated of his Subjects and thereupon gave occasion to Henry Duke of Lancaster whom he had before banished to come over and take the Kingdom from him without striking a stroak and having taken the King Prisoner call'd a Parliament in his name who took upon them most unjustly to Depose King Richard tho' 't is true he also made a solemn resignation of it by his own seeming consent but it is certain it was forced from him for fear of worse usage if he refused it F. Pray give me leave to answer what you have now said before you proceed farther in this History of the Succession In the first place I shall not deny but that from the Reign of King Edward I. the Crown has been always claim'd tho' not constantly enjoy'd by right of Blood yet that the custom was otherwise before I think the Instances I have given from the time of your Conquest are more than sufficient it is likewise as certain that this Succession by right of Blood was never setled by any positive Law and therefore must be purely derived from that Tacit consent of the People called Custom Secondly That the two Houses of Parliament have often notwithstanding this claim placed or fixed the Crown upon the Heads of those Princes whom they very well knew could have no Hereditary Right to it Thirdly That such Princes have been always obeyed and taken for lawful Kings all their Laws standing good as this day without any confirmation by their Successors tho' they pretended to a better Title Now if I prove every one of these three propositions I think the case will be very plain that though the Crown has been claim'd and often enjoy'd by right of blood yet hath it been held near as often otherwise since that time so that the Succession to it hath been still declar'd under the direction and limitation of the Present King and Parliament This being premis'd I shall proceed in the next place to answer what you have said concerning King Edward the first 's being only Recogniz'd and not Elected King by the Parliament it is plain from this History that the Great Council still maintain'd their anâ—ient right of assembling upon the death of the King and of Judging who should be his Successor and that without any summons from him which will serve to justifie as do all the other instances aforegoing that the late Convention meeting and setling the Crown without any Writs or Authority derived from King Iames was no new thing but that they have therein done no more than what hath been antiently practised in like cases and tho' 't is true the words in Walsingham is recognoverunt yet there is also other words which seem to intimate that it was then in the power of the Great Council whom to declare for lawful Successor the words are Paternique Successorem honoris ordinaverunt that is they ordain'd or decreed him Successor of his Fathers Dignity which sure is somewhat more than a bare Declaration of an undoubted precedent Right and what power the Great Council was then looked upon to have in the ordering of this Kingdom appears by that Writ of Dedimus for all mens taking the Oaths of Allegiance in the Country which is still to be seen in the close Rolls and begins thus Quia defuncto jam celebris memoriae Domino Henrico patre nostro ad nos Regni Gubernaculum successione Haereditaria Procerum Regni voluntate fidelitate nobis praestita sit devolutum c. where besides the Hereditary Succession the good Will and Fidelity of the Great Men is reckon'd as one of the means by which the Kingdom came to him and that this course was also observed upon the accession of his Son Edward the 2 d. to the Crown seems likewise as evident from the same Author who tells us in the beginning of the Life of this Prince that he succeeded his Father King Edward non tam jure Hereditario quam unanimi consensu Procerum Magnatum which observation had been altogether needless had an unalterable Hereditary Right to the Crown been the setled But as to what you say of King Edward the 3 ds Right whilst his Father was Living to have been wholly due to his resignation tho' the place I cited out of Walsingham be express in this point yet against this you urge a Writ or Declaration as also a Proclamation of this Kings wherein he thus sets forth his Title viz. That by the Voluntary resignation of King Edward his Father and by the Council and Advice of the Prelats Earls and Barons c. he had taken upon him the Government of the Kingdom and consequently that
in Prison and the first Act this King did after his Restoration was to call a Parliament which revoked all the former Statutes and Declarations of the 39 th of Henry the 6 th and 1 st of Edward the 4 th and then entail'd the Crown anew upon the issue of King Henry the remainder to the Duke of Clarence who then took part with King Henry against his own Brother 'T is true indeed that King Edward the 4 th returning again not long after into England and regaining the Crown from King Henry the 6 th the said King was not only murther'd together with his Son Prince Henry but in the next Parliament was also attainted of Treason with all others of his Party and yet lot let you see that this very Act is now null and void against King Henry the 6 th and his Son Prince Edward see an Act of Parliament of the first of Henry the 7 th not Printed which because it is not commonly known I will read it almost verbatim The King our Sovereign remembring how against all rightwiseness honour nature and duty an inordinate seditious and slaunderous Act was made against the most famous Prince of blessed memory King Henry the sixth his Uncle at the Parliament holden at Westminstey the fourth day of November the first year of the Reign of Edward the 4 th Late King of England whereby his said Uncle contrary to the due Allegiance and all due order was attainted of High Treason wherefore our same Sovereign Lord by the Advice and Assent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled and by Authorities of the same ordaineth enacteth and establisheth that the same Act and all Acts of Attainder Forfailure or Disablement made or had in the said Parliament or else in any other Parliament of the said Late King Edward against the said most blessed Prince King Henry or against the right famous Princess Margaret Late Queen of England his Wife or the right Victorious Prince Edward Late Prince of Wales Son of the same blessed Prince K. Henry and Margaret c. are void annulled and repealed and of no force nor effect so that by vertue of this Act the Title of the House of Lancaster was again declared to be good But to conclude I cannot but take notice of one mistake you have fallen into by saying that all proceedings against King Richard the 2 d. are repeal'd by that Parliament of the first of Edward the 4 th which is not so for though I grant that the dealings of Henry Earl of Darby as he is there call'd in imprisoning the said King and Usurping the Royal Power is there expresly condemned and his Murthering of him said to be against Gods Law and his own Oath of Allegiance as certainly it was yet the Deposition of the said King Richard by Parliament is no ways repeal'd by this Act for then all the Records thereof would have been quite Cancell'd and taken off the Rolls whereas they still remain to be seen at this day and you see by this Act I now recited That the attainder of King Henry the 6 th is declar'd contrary to due Allegiance and all due order and all forfeitures and disablements of the said King and Prince are quite annull'd and made void M. I must confess you have so stagger'd me with this Act that I know not what to say to it but that it was made in the first Parliament of King Henry the 7 th and before he had married the Princess Elizabeth and consequently had no good Title to the Crown himself therefore till then I look upon him as an Usurper but I shall now proceed to shâ—w you that that very King nay even Richard the 3 d. himself chiefly relied not upon any Parliamentary Election but upon their own pretended Titles of being right Heirs by Blood for after the death of Edward the 4 th his Son Edward the 5 th was proclaim'd King and might have quietly enjoy'd it if his ambitious Uncle Richard Duke of Gloucester had not plotted to defeat him of it and knowing very well that he had no way to bring it about but by inciting a corrupt party of the Bishops and Lords together with the Lord Mayor of London and some of his Party in the City to set forth by way of Petition to the Duke then Protector of the King and Realm That all the Children of K. Edward the 4 th were Bastards supposing that King to have been Contracted with a certain Woman called Eleanor Boteler before he Married Queen Elizabeth moreover that the Blood of his Elder Brother George Duke of Clarence deceased was attainted so that none of the Lineal Blood of Richard Duke of York could be found uncorrupted but in himself and there was at the conclusion of that Roll an Address to him from the Lords and Commons of the Kingdom that he would take the Government upon himself this fine artifice assisted on one side with his feigned excuses which induced the less thinking sort of People to believe he desir'd not the Royalty and prompted on the other side with the fear of his power procured his accession to the Throne so that at last he and his Wife Anne were solemnly Crowned King and Queen at Westminster and by these steps did that inhumane Prince who had no Title to the Crown either by descent or by merit ascend the English Throne see you that not by Election but by pretence of blood and by bastardising and attainting his Nephews he set himself up for the only true Heir of the Crown and therefore in the Parliament he call'd immediately after his Coronation when they had declar'd almost the very same things as were before in the said Petition they proceed further To declare that the Right Title and Estate which King Richard the III d had to and in the Crown and Royal Dignity of the Realm of England with all things thereunto within the said Realm and without it annexed and appertaining was just and lawfull as grounded upon the Laws of God and Nature and also upon the antient Laws and laudable Customs of this said Realm as also taken and reputed by all such Persons as were learned in the above-said Laws and Customs and proceeds farther thus therefore at the request and by the assent of the three Estates of this Realm that is to say the Lords Spiritual and Temporal and Commons of this Land Assembled in this present Parliament and by the Authority of the same it is pronounced decreed and declared that our said Soveraign Lord the King was and is the very undoubted King of this Realm of England with all things thereunto belonging within the said Realm and without it united annexed and appertaining as well by right of Consanguinity and Inheritance as by lawfull Election Consecration and Coronation So that you see tho' they put in his Election as also his Coronation as means of obtaining the
the power of the two Houses of Parliament I am very well satisfied that such a Declaration must be void in it self since I have sufficiently proved that there was no such Law of Succession ever setled by any general Custom or Common Law since it hath been near as often broken as observed and as for any positive or Statute-Law enacting any hereditary right of Succession you do not so much as pretend to show it so that I think I have sufficiently proved the three Propositions I laid down viz. That ever since the time of Edward the First though the Crown has been claim'd by right of blood yet has it not been very often enjoy'd by Princes who had no just pretence to that Title Secondly that the two Houses of Parliament have often notwithstanding that claim placed or at least fixed the Crown upon the heads of those Princes who they very well knew could have no hereditary right to it Thirdly That such Princes have been always taken for lawful Kings all their Laws standing good at this day without any Confirmation by their Successours M. I did not think that you who were so great an admirer of the two Houses of Parliament should now be so much against their power in joyning with the King to declare what the true right of Succession to the Crown is and hath ever been from time beyond memory But I see Acts or Declarations of Parliament signifie nothing with you if they are against your Hypothesis or else you would never go about thus to expose those Acts of Parliament of King Edward the IVth and King Iames the Ist. Whereby they are declared both by the Law of God and Man undoubted Heirs of the Crown And the last Act I cited viz. That of King Iames the Ist. doth sufficiently confute your Notion of a Vacancy of the Throne Where it is expresly declared That immediately upon the decease of Queen Elizabeth the Crown of England with all the Dominions belonging to the same did by Inherent Birth-right and Lawful and Undoubted Succession descend and come to his Majesty King Iames. So that if there then were no Vacancy of the Throne I cannot see how there could be any such thing now the next Heir to the Crown be He who they will being certainly not so far removed from King Iames the Ist. as himself was from King Henry the VIIth under whom he claimed F. I must still confess my self to have a great veneration for the solemn Declarations of King and Parliament made by any Statute yet not so as to Idolize them or to look upon all their Declarations as infallible I grant indeed that whosoever is by them Declared and Recognized for King or Queen of England is to be acknowledged and obeyed as such by all the Subjects of this Kingdom without farther questioning his Title But if not content with this they will also take upon them to declare that such Kings or Queens have an undoubted Hereditary Right by the Laws of God and Nature When I plainly find from the Holy Scriptures as well as the History of matter of Fact and the knowledge of our Laws that they have no other Tiâ—le than what the Laws of the Land have conferred upon them and therefore you your self cannot deny but that it was gross flattery in the two Houses of Parliament to declare that Richard the IIId for-example had a true and undoubted Right to the Crown by the Laws of God and Nature and also by the Laws and Customs of this Realm when you know he was a notorious Usurper upon the Rights of his Brother King Edward's Children now how can I be assur'd that the like Declaration made to Kâ—ng Iames the I. was not lâ—kewise a piece of Courtship of the Representative of the Kingdom to this King then newly setled in his Throne since we find the People of this Nation when they are in a kind fit never think they can say or do too much for their Princes and therefore I must freely tell you that it is not the bare Declaration of a Parliament that this or that has been always the Law or Custom of this Realm when we can find from History that it has never been so held for above four hundred years at least and therefore not beyond the memory of Man as you suppose since that must be before the Reign of Richard the First as I have already proved to you at our Eighth Meeting But to answer your Objection against the vacancy of the Throne I do freely grant that aâ— often â—s the Crown descends by lineal Succession there can be no vacancy of the Throne as it did in the Case of King Iames the First yet doth it not therefore follow that there can never be any such Vacancy in any Case whatsoever since certainly it may so happen that all the Heirs Male of the Blood-Royal may fail as it happen'd in the Case of Scotland when Iohn Balioll and Robert Bruce contended for the Crown which not being to be decided by the Estates of the Kingdom they were forced to referr it to our King Edward the First and as also happen'd in France when Philip of Valois and our Edward the III d both claim'd the Crown which was decided by a great Assembly of the Estates of France in the favour of the former who claim'd as Heir of the Male Line against King Edward who was descended by a Woman and if King Iames's Abdication or Forfeiture call it which you will is good pray give me a sufficient Reason why the Convention of the Estates of England should not have as much Authority as those of France or Scotland this being as much or more a limited Kingdom thau either of the other ever were M. I do not deny that but pray shew me any sufficient Reason why the Convention should now Vote a Vacancy of the Throne since there was certainly an Heir Apparent not long since in England and I hope is now safe in France who ought to fill it or at least there should have been some sufficient cause alledged against him to prove that he was not true Son either of the King or Queen and till this was done they could not with any Right or good Conscience place any other Relation of his in the Throne since every Person ought to be esteem'd the Son of that Father and Mother that publickly own him for such for it is a Maxim in our as well as your Law Filiatio non potest probari F. How this could be performed without first declaring the Throne vacant I cannot apprehend for you your self must grant that there have been great doubts and suspitions of the Realty of this Prince of Wales and therefore that being one great reason of the Prince of Orange's coming over The truth of this Child whether he was really born of the of the body of the Q. is first to be examin'd and determin'd before he can be declar'd K. of England in the
room of his supposed Father whom we will also suppose Civilly though not Naturally dead and till this be done unless you would have had him been declar'd King without ever examining the truth of the matter the Throne must have continued vacant till it could be decided whether he or his half Sister the Princess of Orange were to fill it and if so whilst the Convention remain'd in this suspence they could do no other than Vote the Throne vacant till they were sufficiently satisfied who had the best Right to it But to answer your argument that unless something could have been presently alledg'd against this Infant to have proved him not to have been born of the Body of the Queen he ought to have been declar'd King the Maxime you mention may be well allow'd in the case of Common Inheritances but not in that of Crowns for in those we have read that Common and violent presumptions have been looked upon as sufficient proofs to set aside a suppos'd Heir of the Crown as for example something above two hundred years since Henry King of Castile call'd the Impotent because he was not able to get his Queen or any other Woman with Child did out of hatred to his Sister Isabella permit a favorite of his to lye with his Queen and get her with Child she was brought to Bed of a Daughter but the Estates of the Kingdom would by no means admit her for Legitimate because the Queen had before declar'd her Husband to be Impotent and therefore they did not only protest against her Legitimacy in the Kings life time in an Assembly of the Estates but also as soon as he died they set this pretended Princess quite aside and declared the Sister of the Late King Queen of Castile who was Married to Ferdinand King of Arragon Now tho' I will not say that either the suspitions or proofs against the present Prince of Wales are as pregnant as those against that Princess yet certainly they were sufficient to debat him from being placed in the Throne till such time as it shall be made apparent that he is really Son to the Queen M. If the Convention had gone this way to work I grant there might have been some colour for what they have done but then they ought before they had placed any body else in the Throne to have first examin'd the Truth of the Queens being with Child and her being truly deliver'd of this Prince before ever they had declar'd the Prince and Princess of Orange King and Queen and till this had been done certainly the Throne should have still continued Vacant therefore I doubt your Convention have made more haste than good speed in this matter which certainly requir'd much more deliberation F. Come I will for once admit that they ought in the first place to have examin'd your Princes Title but this is still to be understood as far as it was possible for them to do it as it ought now pray tell me how this could be done when the Infant was not only carried away into a Foreign Kingdom but also the Midwife the Nurse and several other of the Queens near Servants and Attendants went away along with him who if they had been here to have been cross examin'd might have declar'd the Imposture if it be one M. But pray Sir are there not Protestant Ladies enough left behind who have already Depos'd before the Council as appears by their Depositions published by the Kings express command and enrolled in Chancery in perpituam Rei memoriam not only that her Majesty was with Child but that also she was really deliver'd of this Prince so that the Prince of Orange and the Convention ought to have in the first place summon'd those Witnesses you mention to be now in France to have appear'd before them and if they had not come then to have proceeded as the matter had required F. You must then grant that the Protestant Witnesses alone who are now in England were not sufficient for if they should have Depos'd that this Child had been an Impostor I suppose you would not have rested satisfied that they had spoke nothing but the Truth since the Witnesses now in France who best know the matter of Fact might have sworn the contrary but as for sending any Summons for them into France it was altogether in vain and also that which the Convention were not at all oblig'd to do it was in vain because neither King Iames nor his Q. did ever own the Power of the Convention to hear or determine this affair and therefore would not have let the Witnesses come over for after the Throne was declar'd Vacant the King must by sending those Witnesses have racitly own'd the Authority of the Convention in declaring himself to have Abdicated the Throne as also that they might place his Son therein so that any such Summons would certainly have been only rejected with scorn and we should gain nothing but the loss of so much time and hindred our present settlement and defence a whole Summer Nor was the Convention oblig'd to do it since the Parliament it self is not bound to take cognizance of any person or thing that is not within the Kingdom of England or the Territories belonging to it and therefore it was not their business to enquire without it had been brought before them what was become of this Infant whether he was legitimate or not or whether he was alive or else had been cast away at Sea or taken by Pyrates any of which might very well have been and therefore indeed this business could never have been decided unless the Infant himself were actually present and sufficient proof made not only that this was the same Child that was born of the Queen but which was also carried away into France all which could never have been examin'd as it ought without the Child 's personal presence here which I suppose you will grant that King Iames and his Queen would never admit of as things now stand therefore since a thorough examination into this business was impossible to have been perform'd The Convention have done no more than what can be justified in first declaring the Throne Vacant and then who should fill it M. Well but admit the case were so as you have put it the Kingdom ought however to have remain'd without a King till the succession had been duly setled since according to the act of recognition to King Iames I. The Nation did not only oblige themselves but their Posterity that is we that are now alive to that King and his Right Heirs and therefore till this Princes Right had been determined either the Convention should have Govern'd or else they ought to have made the Prince of Orange only Governour or Regent of the Kingdom and not to have placed him and his Princess in the Throne till the young Prince had died or else had been proved to be an Impostor F. I doubt not
Childless I cannot see why the Convention may not as well now settle the Crown upon King William and Queen Mary and their issue with remainder to himself for Life especially since he hath also another Title of his own to confirm it viz. that of a Conqueror over King Iames and our Deliverer from his Arbitrary Government M. I shall not go about to derogate from King Williams Personal Vertues which you so highly extoll only I wish I may not prove too true a Prophet since that is not the main question between us I shall only take upon me to answer in the first place what you have urged on the behalf of King William's pretence to the Crown as a Conquerour over King Iames and Deliverer of the Nation for whatsoever he may pretend to in respect of the latter I am sure he cannot justly pretend to the former since sure he can never have any right by Conquest who expresly sets forth in his first Declaration that he only came to obtain a Free Parliament and to Redress our Grievances Much less can he be properly call'd a Conquerour who never overcame his Enemy in any pitched Battle but by false Stories made the King's Army desert him and then when this was done having forced the King to leave the Kingdom for fear he has in the day of his power by these means obtain'd the Crown and as for a Deliverer you must pardon me if I cannot think him so since I am not yet satisfied that the worst of King Iames's Oppressions ever deserved that the Prince of Orange should take the pains to come over to redress them And therefore your paralell between your King's Title and that of Henry the IV th and Henry the VII th doth not at all agree since both of them claimed not so much by Conquest or force of Arms as by a pretended right of inheritance as you may see by both their Claims And as for Henry the IV th 't is plain he looked upon his Title by descent of blood having been allow'd in Parliament to be so good that for the first seven years of his Reign he never thought it worth while to pass an Act for the Settlement of the Crown upon himself and his Issue but for Richard the III d and Henry the VII th they were so far from owning their Titles to any Act or Declaration of Parliament that they first clap'd the Crown upon their own heads and after they had done it they immediately call'd their Parliaments which tho' they recogniz'd their Titles yet did not make them Kings but found them so whereas the Convention has by their sole Authority made the Prince of Orange and Princess King and Queen of England to the prejudice of the right Heirs of the Crown F. I doubt not but what I have already said may very well be desended notwithstanding the utmost you have now argued against it In the first place as to what you say against King William's Title as a Conquerour over King Iames is very trivial for though it is true the Prince declar'd before he came over that his coming was for no other end but to obtain a Free Parliament Redress Grievances and to remove Evil Councellors from King Iames yet that is still to be understood that the King would agree to those reasonable demands the Prince then â—aâ—e for if by his own obstinacy he would bring things to that pass as that instead of redressing those violations he had made upon our fundamental Laws he raised an Army to support himself in them and when he thought this Army would not sight in his so bad a Cause he then disbanded it and by that as well as the desertion of the Throne owned himself vanquish'd Can any body deny the Prince of Orange a right of making what advantage he could of his Successes And therefore I doubt not but that the Prince might if he pleas'd have taken upon him the Title of King immediately upon King Iames's first departure and have summon'd a Parliament to recognize his Title as Henry the VII th did after his Victory at Bosworth Field nor would this have made him a Conquerour over the Kingdom since he never made War against it but came to deliver it from Tyranny and Oppression Nor did William the Corquerour himself by his Victory over King Harold ever pretend to a right by Conquest over the whole Kingdom but only over the Estates and Persons of those who had fought against him as I have fully proved at our Tenth Meeting nor did Henry the VII th in the first Speech he made to the Parliament after his taking upon him the Crown claim a right to it by Conquest over the Kingdom as his own words were in that Speech you mention to this first Parliament but only that by the just judgment of God in giving him the Victory over his Enemy in the Field and he then farther declar'd that all his Subjects of whatsoever State and Condition should enjoy their Lands and Goods to them and their Heirs as they did before except such Persons who were to be attainted by Act of Parliament Nor is it any objection against his right by Conquest that he obtained no Victory in a pitch'd Battle since I never heard or read that to make a Prince a Conquerour it is necessary that so many thousand Men should be kill'd upon the spot for admit the adverse Prince against whom he fights will through Cowardise desert his Army or that his Army will desert him either through fear or a sence of the greater justice of the adverse Princes Cause or an affection to his Person so that it never come to a Battle yet it has been in all Ages looked upon as all one with a Victory as I can show you from several examples in History and particularly in Plutarch concerning Pyrrhus King of Epyrus who making War against Demetrius then King of Macedon and both Armies being encamped near each other the Army of the latter forsook him and went over to Pyrrhus as well out of hatred to him as esteem for his Enemy so that Demetrius being forced to steal away in disguise Pyrrhus thereupon was immediately in the Field Proclaimed King of Macedon And I doubt not but the Prince of Orange might have done the same had it not been for his great moderation and least it might give his Adversaries occasion to traduce him that he came over for no other end but to drive the King out of his Kingdom and therefore he chose rather to owe the Crown to the free Act of the Nation than to his right by Conquest over King Iames but yet I do not think he hath at all lost that right though he doth not think fit for fear of giving offence to insist upon it and therefore certainly the Convention might very well justifie the setling the Crown upon his Highness during his Life not only as a Conquerour over K. Iames but a Deliverer of
if you say such a way of Election is now impossible I shall do so too but however it plainly shews the absurdity of supposing a King could ever now be fairly Elected were all the Blood-Royal totally extinct As for what you say concerning that Cession which the Princess of Denmark made of her Right to the Crown I never heard any thing of it before but admit it were so this could only serve in relation to her self and she could not give up the Right of her Brother the Prince of Wales no nor that of her own Children if God shall give her any F. This Objection concerning the total Dissolution of the Government proceeds from a wanâ— of your consideration of what the antient Government of England was not only before but a good while after your pretended Conquest which was not a setled Hereditary Monarchy but a Testamentary or Elective Kingdom where the Kings being often recommended by the Testament of the precedent King were chosen out of the Royal Family though not according to the Ruler of Succession now in use and therefore in all such Governments it is very well known that there was at the first institution of Kingly Government among them a great Council or Assembly of Estates of the whole Kingdom appointed who upon the death of the last King and vacancy of the Throne were still to meet of course to appoint a Successor which was commonly one of the Sons of the last King or at least some other Prince of the Royal Blood Thus it was till of late years in Denmark and Sweâ—den and so it was antiently in France during the Succession of the first Race as also in Spain during the Government of the Vandals and so it likewise was in England during the whole Succession of our English Saxon Kings and so I have also proved it continued till Edward the First And though since his time that the Crown hath been claim'd by right of Inheritance yet in all times precedent it is apparent that the great Council of the Kingdom upon the deaâ—h of every King Assembled by their own inherent Authority to consider whom they should place in the Throne which they then looked upon as vacant And therefore though I grant in the case of Edward the First the Parliament did not only ordain him Successor to his Father but also recogniz'd his â—ight by Blood yet for all this they still remain'd their anâ—ient Power of meeting without Summons from the King he being in the Holy Land and they not knowing whether he was alive or dead so that it is a false assertion to affirm that there can be no Government without a King since in all those vacancies of the Throne it is plain the Government devolved of course upon the geat Council of the Nation And though it is true there can be now no Parliament without a King according to the present notion and acceptation of that Term yet before that word was ever in use which is no older than about the middle of the Reign of Henry the Third it is plain that our great Councils often met by their own inherent Authority without any King and preserved the Peâ—ce of the Kingdom till a new King was either chosen or declared And though 't is true the Crown hath been long enjoy'd by those who have claim'd by Inheritance yet there is no reason for all that if the like cases should fall out as have done in former times why the Government should devolve to the mix'd Multitude now any more than it did then since it may be as well suppos'd that the same tacit Contract still continues of maintaining the Original constitution of great Councils which I have proved to be as Antient as Kingly Government it self And though perhaps the Form of chusing or sending thâ—se Representatives of the Nation may have been alter'd in divers particulars by for â—er Laws or received Customs yet this is nothing to the purpose as long as the thing it self remains the same in Substance as it was before for it can never be thought to have been the intent of the People who Established this form of Government that upon the extinction of the Royal Family the Government should be so quite dissolved as that it should be left to the confused Multitude to chuse what form of Government they should think fit Therefore to conclude I wish you would be perswaded to own this Government as it is now Established and to take 〈◊〉 Oath of Allegiance which is enjoyn'd by the Declaration of the Convention who are the only proper and legal Judges we can now have of conferring the Rights of those to whom our Allegiance is due And if in case a Dispute about the right Heir of the Crown the People of this Nation were not all bound to the decision of this Assembly we must necessarily fall together by the ears and fight it out as they do in the East-Indies where upon the death or deposition of a King he has still the Right who can Conquer his Competitors in Battel M. Well I wish there were not something very like it practised here of late for I think you will grant that if the Prince of Orange's Party had not prevail'd over the King 's the Convention would never have placed the Crown upon his head But I must beg your pardon if I cannot agree to your Proposals of taking the New Oath of Allegiance to King William and Queen Mary since I have already taken the Oaths of Supremacy and Allegiance to King Iames and I do not believe that any Power on earth can disengage me from that Oath as long as he and his Son the Prince of Wales are alive For as to your Doctrine of Abdication or Forfeiture they are too hard for my Reason to understand or for my Conscience to comply with and therefore it is all one to me whom your Convention places on the Throne since I am very well satisfied that none but the King can have a Right to it F. I wish I could see some better reasons for this opinion of yours than those you have already given for if you could convince that me the Nation hath done any thing in this Revolution which cannot well be justified by the Antient Customs and Constitution of the Kingdom I should come over to your opinion But if King Iames has truly Abdicated or Forfeited the Crown as I hope I have sufficiently made out and that your suppos'd Prince of Wales either is not really or else cannot now be proved to be the true Son of the Queen by reason of those Obstacles and Impediments I have shewn you I cannot see any thing to the contrary why you should not be wholly free and discharged from your former Oath of Allegiance to King Iames so that King William and Queen Mary being now placed on the Throne your Allegiance to King Iames and the suppos'd Prince of Wales is lawfully determined pray tell me therefore
one thing more to add in relation to somewhat I promised at the end of the Preface to the last Dialogue concerning the late Revolutions being different from the last Civil War and Murther of King Charles the First which though I have finish'd and thought to have inserted into this Discouese yet since it proves rather too long without it and that the Bookseller urges for its speedy Publication I have thought fit to omit it since also the greatest part of it relates to matter of fact which is variously stated by those who write the History of those times yet I shall make bold to give you the heads of those inquiries I have made and shall leave you to satisfie your self in these Points following first if after King Charles the first had not only passed all Bills for redressing those Grievances the Nation lay under at the beginning of the Parliament in 1640. but had also passed the Bill to make it not to be Prorogued or Dissolved without their own consents I say whether there were then any such violations of our Religion and fundamental Laws which should require the Parliament and Nations puting themselves in a posture of defence against the King's Arbitrary Power Secondly whether the fears and jealousies of Popery and Arbitrary Government which notwithstanding all that the King had done still troubled many Mens minds were a sufficient ground for the two Houses to demand the putâ—ing the whole Militia of the Kingdom out of his own Power into such hands as they should nominate and appoint Thirdly whether upon his refusal of their Adresses for the Militia their going about to take it out of his hands by force and particularly their shutting him out of Hull was not an actual making War upon the King when he was as yet unâ—armed and had given out no Commissions to raise Men or Arms. Fourthly when the War was begun whether the King did not in all his Messages to and Treaties with the Parliament propose and seem to desire Peace upon equal and reasonable terms Fifthly Whether the two Houses did not instead of complying with those reasonable Proposals still insist upon higher Terms as their Victories and Successes over the King increased Sixthly when the King was deliver'd up by the Scots whether the Parliament and Army did not keep him as good as a close Prisoner and vote no more Addresses to be made to him meerly because he refused to pass whatever Bills they brought to him Seventhly When at last he was forced by necessity to grant them at the Isle of Wight almost whatever they demanded whether he was not hurried away from thence by Cromwell's Army and for the major part of the House of Commons who had Voted the King's Concessions satisfactory excluded the House by force till the far less Party had reversed all that the rest had done and then Voted the King should he called to an account for making War upon the Parliament and for Treason against the Kingdom Eighthly Whether in pursuance of this they did not appoint Iudges to Trie the King who upon his refusal to own their Authority Condemned him to death and cut off his head before the Gates of his own Palace Ninthly Whether this fag end of a Parliament did not alter the whole frame of the Government both in Church and State destroying both Monarchy and Episcopacy and Voting the House of Peers useless and dangerous and setting up a Democratical Commonwealth or rather an Oligarcy in their stead consisting of about fifty or sixty Men wholly governed and awed by Cromwell and the Officers of the Army Now let any Man but impartially consider all these Transactions with the late Revolution and read what hath been said in the three last Dialogues and then let him tell meingenuously whether he thinks this Revolution hath been begun upon the like grounds and carried on by the same violent Courses or has ended with the same direful effects as the late Civil War and Murther of King Charles the First I have no more to propose on this Subject but only to wish that these Discourses written with a real design for the publick good and peace of my Countrey may be read with the like affection with which they were written and may really promote that end for which they were designed but if not that they may at least serve as an Impartial History to Posterity of those Principles and Opinions on which this late great Revolution hath been brought about in England and also those on which it hath been so violently opposed by the dissenting Party THE Thirteenth Dialogue BETWEEN Mr. MEANWELL a Civilian AND Mr. FREEMAN a Gentleman F. SIR I hope I do not interrupt you by coming too soon for the truth is since I intend that this shall be the last Dispute I shall ever have with you upon this Subject I was very desirous to have it dispatched as soon as I could that when I have once discharged the duty of an old Friend and Acquaintance my mind may be at rest which side soever you take M. Dear Sir I thank you and though I intended to go abroad this Evening upon an Appointment yet I will not put it off that I may enjoy your better Conversation therefore pray begin where you left off and prove to me that I may lawfully take this new Oath of Allegiance to King William and Queen Mary F. I cannot see any reason why you may not safely do it since our best Common Lawyers are of this Opinion for my Lord Coke in his Third institutes in his Notes upon the Statute of Treason the 25 th of Edward the III d gives it for Law that this Act is to be understood of a King in possession of the Crown and Kingdom for if there be a King Regnant in possession although he be Rex de Facto non de Iure yet is he Seignior Le Roy within the purview of that Statute and the other that hath Right and is out of possession is not within this Act c. And if it be Treason to Levy War against him or to Conspire his Death as long as he continues King it can only be so because the Subjects Allegiance is then due to him for that all Men have either taken the Oath of Allegiance or else are supposed to have done it M. I must beg your pardon if I cannot come over to your Opinion neither in point of Law or Reason for as long as I am perswaded in my Conscience that King Iames is King de Iure so long must the obligation of my former Oath last and I suppose that you will grant that it is as impossible to owe Allegiance to two Kings at once as it is to serve two Masters and therefore you must pardon me if I suppose that my Lord Coke depending too much upon the commonly received sence of the Statute of the Eleventh of Henry the VII th which he quotes in the Margin may be
against himself therefore if Richard the IIId had been a King in the sence of this Law we may be sure he would not have had such an infamous censure past upon him after his death Bradshaw and his High Court of Justice were the first that were so hardy as to pronounce a King of England guilty of Treason Fourthly If this notion of a King de facto had been allowed in the 11th of Henry the VIIth the Principal Assistants of Richard the IIId could not have been attainted for Richard being actually in the Throne he was according to your Modern way of arguing Rightful King and consequently the People ought to own him as such and defend him against all opposers and if so certainly they ought not to be condemned as Traytors for doing their duty as we find many of those were who fought for King Richard Fifthly at the end of this Parliament Henry the VIIth granted a General Pardon to the common people who had appeared against him in the behalf of Richard the IIId now Pardon supposes a fault and the breach of a Law which they could not have been charged with if the plea of a King de facto had been warranted by the Constitution F. I must freely tell you that you do not argue so much like a Lawyer in this Argument as you did in your former and you have in that forgot to what end those Statutes you mention were made and what is the purport of them or else some body hath misinformed you for though I grant that all those hard expressions you mention are given of the Kings of the Lancastrian Line in those Statutes of the 1 st of Edward the IVth yet do none of these expressions prove that they were not true and legal Kings in the eye of the Law all the while they Reign'd since divers Persons were attainted for High Treason against them whose attainders were never reversed but stand good to this day as in particular the attainder of the Earls of Kent Salisbury and of Huntingdon who were all attainted by Act of Parliament in the second of Henry the IVth and also the Earl of Northumberland and his Son the Lord Piercy attainted in the 5th of this King all which attainders were never reversed So likewise Richard Earl of Cambridge was found guilty of Treason by his Peers and his Attainder confirmed by Act of Parliament in the second of Henry the Vth and though it is true this Attainder was afterwards reversed in the first of Edward the IVth because the said Richard was not only his Grandfather but was also Condemned for endeavouring to make Edmund Earl of March his Brother-in-law King of England from whose Sister King Edward the IVth claimed the Crown yet the very reversing this Attainder by Act of Parliament declares it to have been good untill that Repeal since it was not declared void all which are plain and evident proofs that Treason may be committed against the King de facto and consequently that Allegiance is also due to him and not to the King de jure I have likewise also proved that all those Statutes which were made by those Kings and are not repealed stand good at this day without any confirmation by King Edward the IVth and this you have no way to answer but by instancing in Patents of Honour or Charters of Priviledges granted by those Kings and confirmed by Edward the IV th from whence you would inferr that some other Acts of like nature were in the same condition which let me tell you in no good argument against them for if you please to read that Statute of Edward the IVth you mention and you will there plainly see that the Grants Patents and other things there confirmed or either judicial Proceedings in the Courts of Justice or else such Charters or Patents which being thought to the prejudice of the Crown were ex abundanti cautela thought necessary to be confirmed by those particular Persons Religious Houses and Corporations who thought themselves concerned nor were all others of like nature who were not so confirmed thereby void since they hold good at this day and if you understand any thing of our Law you cannot but know that no Grants of the King can be made void by implication and to shew you farther that the Letters Patents made by Henry the VIth were looked upon as good in the Reign of Edward the IVth appears good from Bagot's Case in the Year-Book of the ninth of that King where a Patent of Naturalization granted by Henry the VIth though it were not confirmed by that Statute of Edward the IVth was by the greatest part of the Judges held to be good and the reasons there given for it are very remarkable since it was urged by the Council in behalf of the Plaintiff that King Henry was then King in Possession and it behoves that the Realm should have a King and that the Laws should be kept and maintain'd and therefore though he was in only by Usurpation nevertheless every judicial Act done by him concerning Royal Jurisdiction shall hold good and bind the King de jure when he returns c. So likewise a Charter of Pardon of Felony and Licenses of Mortmain shall be good and also the King that now is shall have the advantage of every forfeiture made to the said King Henry c. and mark this farther it is there also held that a Man shall be Arraigned for Treason done against the said King Henry in compassing his death and the reason is very remarkable because the said King indeed was not meerly a Usurper for the Crown was intail'd upon him by Parliament and this being not at all contradicted by the Court is still taken for Law and upon this report and not only upon the Statute of the 11th of Henry the VIIth did my Lord Coke found his Opinion I now mention'd that a King de facto was within the Statute of the 25th of Edward III. and though now it is true that the farther arguing of this Case of Bagots adjourned to a farther day when the Justices did not argue but the Serjeants and Apprentices at Law that is the Baristers as we now call them yet it seems to have been allowed by the whole Court that if King Edward who was then King had made his Charter before he was declared so it should be void at that time for every one who shall make a Charter of Pardon ought to be King in Deed at the time of the making thereof M. Pray Sir give me leave to reply to what you have now said against my first two Arguments before you go on to answer the rest for I confess the Authorities you bring seem so express against me that if I cannot take them off there will be no further need for your answering the rest I will not therefore deny but that all publick Acts and Proceedings at Law which are for the publick good and safety of the
Kingdom do hold good though made under Usurpers and that for this Reason because such Acts being for the publick benefit it is to be suppos'd that the King de jure did give his tacit consent to them for as it is well observed in the Case you have now cited that it behoves the Realm should have a King that is some Civil Government and that the Laws should be kept and maintain'd but then those Laws can extend only to such things as are for the publick good and do not tend to the disinheriting of the King de jure or barring him or his Heirs of their Right as did that Act of the 7th of Henry the IVth whereby the Crown was intail'd upon himself and his Sons which was declar'd to be void by the 39th of Henry the VIth so likewise this Act is void for the same reason since it would give a Right to the Subjects to defend the King for the time being though an Usurper against the true and lawful King who would be thereby not only defeated of his Right himself but also his right Heirs would be so too which would be directly contrary to the intent of the said Statutes of the 39th of Hen. VI and 1 st of Edw. IVth but now mention'd but also to the Act of Recognition of King Iames the Firsts Title And therefore I must still maintain that my Lord Coke is mistaken in supposing a King de facto to be within the intent of the Statute of the 25th of Edw. the IIId for sure it would seem a very odd question for any one to ask touching the Laws that are made in any setled Monarchy for the defence of the Kings Person Crown and Dignity who is meant by the King in those Laws whether the Lawful and Rightful King of that Realm or any one that gets into the possession of the Throne though he be not a Rightful King but an Usurper So likewise as to that Clause in this Statute which makes it Treason to Conspire the Death of the Kings Eldest Son and Heir it could be never intended for the Son of a King de facto since that would be to own him for right Heir of the Crown for ever and thereby intail it upon his Family to the prejudice of the Right Heir of the King de jure and therefore though I grant some of the Judges and Lawyers held the Law to be so as you have cited it in Bagot's Case and that a King de facto may enjoy those Prerogatives in some respects yet cannot this be extended to the prejudice of the King de jure and his Right Heirs and though I also grant that divers Acts of Parliament made by Kings de facto have for the most part held good without being confirm'd by any subsequent Statute of the King de jure yet have they been also repeal'd sometimes meerly because made whilst the King de jure was alive as I shall prove more at large by and by F. I shall also take the boldness to reply to these answers of yours before I proceed to answer the rest of your Arguments in the first place let me tell you that this notion of a tacit consent in the King de jure suppos'd to be given to all Statutes made for the publick good is to serve upon all occasions when those of your Party cannot tell how otherwise to answer the Arguments that are brought against them and you may as well tell me that they do also give their tacit consents to all other Acts that Usurpers may do and I may as well suppose that Queen Elizabeth the Wife of Henry the VIIth the Lawful Heiress of the Crown did in the person of her Husband give her tacit consent that this Act of the 11th of Henry the VIIth should hold good for ever since it is so much for the publick good and peace of the Nation that the Statute declares it to be against Law Reason and good Conscience that Subjects should suffer for fighting for the King for the time being but I very much wonder if this suppos'd tacit consent were given to all Acts of Parliament by the Kings de jure why upon their return to the Government he did not also express this consent by confirming all those Acts which were made by his Predecessors the Kings de facto or else declare them void but since they neither did the one nor the other it is plain it was because even they themselves looked upon it as altogether needless Nor is your reason at all satisfactory why a King de facto cannot be intended by the Statute of the 25th of Edward the IIId because that maketh it Treason to Conspire the death of the King 's Eldest Son and Heir which say you can only be meant of the Eldest Son of a King de â—urâ— which is to beg the question for though it is true this Clause in the Act was intended for the preservation of the King 's Eldest Son yet it doth no where determine that this must be the Eldest Son of a King de jure for though I own this Clause was made to preserve the Crown in the Right Line from Father to Son yet does it make no difference between the Son and Heir of a King de facto and one de jure nor have you yet answer'd the Authorities I have brought from the Acts of attainder of those Lords who Conspired against the three Kings of the House of Lancaster which stand unreversed unto this day and which also confirm the Opinion given in Bagot's Case where it is said expresly that a Man may be arraigned for Treason committed against the King de facto by the King de jure and therefore I think my Lord Coke may very well be justified in his Opinion notwithstanding the question you put whether the Statute could mean him who is lawful and rightful King or any other who gets into the possession of the Throne Now this seems to me no such odd question for when the Law only mentions the King and the Law-Makers certainly knew that Kings without an hereditary right had often ascended the Throne if they had intended to except all such Usurpers they should have expresly said so But indeed that distinction of a King de facto and a King de jure was not known 'till many years after being first heard of in the Reign of Edward the IVth for a King de facto as the late Chief Justice rightly asserts is Seignior Le Roy within that Statute and there is no other King but he whilst he continues so For King signifies that person who has the Supream Government in the Nation and a King de jure is he who should have the Government but has it not that is who of right should be King but is not and the Statute of Treason tells us what is Treason against him who is King not against him who should be but is not King and reason good it
Act of Parliament and therefore I must still tell you that you go upon a wrong ground when you suppose that there can be now any dispute who is rightful King of England since I have often told you that he can neither abdicate or forfeit his Right to the Crown and that no Parliament whatever much less a Convention could have any power to declare he had abdicated the Government and that thereby the Throne was become vacant for though I grant the judgement of the Estates of the Kingdom when legally assembled ought to be received with great submission and respect yet must it be only in such matters which they have a legal cognizance of and which they are impower'd by the Laws and Constitutions of the Kingdom to determine but since their Voting him whom you your self cannot deny to have been their lawful King to have abdicated the Throne when indeed he had not and then not only to declare the Throne vacant but also to place those therein whom you your self dare not affirm to be the next Heirs by blood are things quite out of their Element and beyond the Sphere of their Authority and though I grant that they may sometimes judge concerning the Succession of the Crown and who is next heir to it yet is this only to be understood as far as they judge according to the Common Laws of the Succession already laid down at our last Meeting and not when they go quite contrary to them and therefore though I own the Parliament might justly declare Henry the VIth to be an Usurper and consequently might be deposed yet doth it not therefore follow that they had a like right to declare Edward the IVth an Usurper and to pass an Act of Attainder against him as I confess they did after that Prince had held the Crown for ten years together since that was beyond their power to enact or declare by the fundamental constitution of the Government F. I am sorry your answer can afford nothing new but only the repetitions of the same false Principles and Arguments that have been already so often answered in our former Conversations for in the first place I have sufficiently proved that neither the Laws of God nor Nature have ordain'd any such thing as a lineal Succession of Kings or any irresistible or unforfeitable power in them which they can never fall from let them act never so tyrannically for I think I have sufficiently prov'd that not only in absolute Monarchies but also in limited Kingdoms where the King has not the sole Supream power a King may not only be resisted but may be also declar'd to have abdicated or forfeited his right to Govern in case of any apparent obstinate violations of the fundamental Constitution in those great points that make that Government to differ from a despotick Monarchy and that if they had not this right all their liberties will signifie nothing and their Lives Liberties and Estates would lie wholly at the Kings mercy to be invaded and taken away when ever he pleas'd I am forced to repeat this to remind you of the Reasons upon which those Principles are founded and therefore you do but fall into your old mistake when you affirm that by the fundamental constitution of the Government the Great Council of the Nation which was but the same with our late Convention had no power to declare the King to have broken the Original Contract between him and his People Therefore what you say concerning the want of Authority in this Great Council to declare the Throne vacant is altogether precarious unless you could also prove that it is against the fundamental constitution so to do whereas I have so far proved the contrary that the Throne has been declared vacant no less than eight times since the Conquest which makes up almost a third part of the Successions of all the Kings and Queens that have Reigned since that time so that if the custom and practice of Great Councils or Conventions and those not condemn'd by any subsequent Statutes can be the only Rule or Guide for the Consciences of all the Subjects of this Nation we have certainly had that as solemnly declar'd now as in any other Great Council or Convention that has been ever held in this Kingdom but as to what you say concerning the want of power in those Councils to declare or recognize who are the right Heirs to the Crown but not to make them so is very pleasant since that were all one as if two Men who contended for an Estate should bring the matter before the House of Peers and when that was done and the Case solemnly heard by Council on both sides that party who had lost the Cause should declare that this Court tho' the highest in the Kingdom had no power to judge in prejudice of himself who had an undoubted right to the Estate which were only to give the Lords power to give judgment only for one side and why the other Party if the judgment had been given against him should not have made the like Plea I cannot understand So that such a Judgement would be altogether in vain Therefore to apply this to our purpose though the Parliament being prevail'd upon by the strength and faction of the Duke of York did as I granted at our last Meeting declare that his Title could in no wise be defeated yet Henry the VIth being then in the Throne they might have certainly given a contrary judgement if they had pleased and then I suppose the Title of the House of York might have been so defeated as that the Nation had never been troubled with it again and so also when by the power of Edward the IVth a Parliament met and declared him to be lawful King from the time of his Fathers death yet when the said King was driven out of the Kingdom by the Earl of Warwick and King Henry the VIth restored to the Throne a Parliament was summon'd in the 49th of this King wherein Edward the IVth was declared an Usurper and himself attainted and to which Parliament the Duke of Clarence Brother to King Edward the IVth is first Summoned as well as the Arch-Bishop of Canterbury with all the other Bishops Temporal Lords and Judges of whom Littleton the Authour of the Book of Tenures was one so likewise upon King Edwards recovery of the Crown the year following King Henry was again deposed and a Parliament called wherein all the Dukes Earls and Barons with the Arch-Bishops of Canterbury and York and most of the rest of the Bishops Swore to Prince Edward after called Edward the Vth as Right Heir of the Crown Now I desire to know what other Law or Rule there was then for the Subjects Allegiance but the solemn judgement or declaration of the Estates of the Kingdom assembled in Parliament since their Acts and Judgements were in this dispute directly contradictory to each other so that it is evident
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
ever they think they may now certainly it were very well to be rid of such false Friends if it were possible to discover them by such an Oath then to keep them where they are only to take an opportunity not only of doing a Mischief but of serving this Government very carelessly and lukewarmly whilst they are in those places they enjoy as also of favouring and assisting those that are the declare Asserters of King Iames's Right as far as they dare so that then all the dispute remains about those who having Consciences large enough to swallow any Oath whatever provided it will suit with their present advantage no Oath can tye them or serve to discover their private Sentiments as I cannot deny but that there too many Men of such large Consciences as you describe and could heartily wish they were fewer yet though I grant an Oath alone will not keep them out yet it might be in great part prevented if the King would take a true Character of the Men fit for publick Imployment from those about him of whose Worth and former Intergity he is already fully satisfied but admitting some such Men shall get into Places and consequently when they are in manage things for their own Advantage that is Vilely and Corruptly yet even these will not prove half so fatal to the Government as those Men of half Consciences who think they may take this Oath in their Own Sense and for their own present Advantage and also believe it no Breach of it to assist King Iames whenever safely they may because they hold their present Oath to be only Temporary but their former to have a perpetual Obligation upon them Whereas those of no Principles at all never Espouse any Interest longer then it serves their own turns so that as long as they can make their Fortunes under this Government they will never desire to change it for another in which they cannot but expect a much less free enjoyment of their Liberties and Properties which are things that all Men as well those who have no Principles as well as those that have desire to to enjoy And lastly some even of these Men that have been formerly notorious Asserters of and advanced in the Arbitrary Government of King Iames out of shame and as well as fear of the loss of their Credits with those of their own Party which they are not assur'd but may again prevail will stick to take this stricter Oath though they do not this that is now enjoyned since they can find an Evasion for the one but will scarce be able to do it for the other M. But pray tell me will not this new Oath declaring King William and Queen Mary to be Lawfull and Rightfull King and Queen of this Realm and that all Men that take it shall assist them against all their Enemies prove an implyed Oath of Abjuration of King Iames though not in express Words and you have not yet shewed me that such an Oath hath ever been Administred during all the various Contests that have been for the Crown since the Conquest F. I grant that such an Oath would be a Vertual and implied Abjuration of King Iames's present claim to the Crown and would also oblige all Persons to fight against him and hinder his regaining itâ— which though I grant to be the design of it Yet would not such an Oath oblige us at all to abjure the obeying King Iames should he ever by an irrestible Providence be again set over us since it is not abjuring of a Future but a present right which I now contend for and that all the Antient Oath of Fidelity or Allegiance as it is now called were of the like Nature and taken in the same Sence with this I propose I shall shew you from the form of the Oath of Fidelity which all Freemen were to take at Fourteen Years of Age as appears by King William the Firsts Law which I have so often cited Whereby all Freemen were to affirm upon Oath that within the Realm and without they will be True and Faithfull to King William their Lord and preserve his Lands and Honour with all Fidelity together with his Person and defend them against all his Enemies So likewise in the ancient Oath of Homage which was taken by all the Earls Barons and Tenants in Capite in England at the Coronation of our Kings It was in these words I N. N. become your Leigeman of Life and Limb and earthly Honour and Faith and Troth to you shall bear to live and die so help me God and in the latter Oath of Fidelity or Allegiance which Sir H. Spelman gives us out of the Customary of Normandy the words were much the same only the person is there sworn to be True and Faithful in the King and his Heirs which they were not before Edward the Firsts time And also what they would hear of no Evil or Damage against them which they would not hinder to their Power now pray tell me were not all these Oaths taken to the King for the time being as Lawfull and Rightfull King and since they were thereby to yield him Life and Limb that is were to defend him with their Lives against all his Enemies then certainly all others who might pretend to or claim the Crown were included within this number and though it is true in these ancient Oaths there is no Swearing to the present King as Lawfull and Rightfull King yet these words were needless in that Age when as I have proved at our last meeting there was no difference between a King de Iure and one de facto and whoever was crowned King and Elected or Recognized by the great Council of the Kingdom was looked upon as Lawfull and Rightfull King and as such was to be defended against all his Enemies so that it was till that distinction was broacht that there might be a King de de facto different from the King de jure which I have proved was not elder then Edward the IV ths Reign There was no need of any mention of such words in the Oath of Allegiance as lawfull King and lawfull Heirs which are first found in the Oaths of Allegiance and Supremacy prescribed by the Statutes of Queen Elizabeth and King Iames in the latter of which it is needless to recite it Verbatim it is first sworn That the King's Majesty is Lawfull and Rightfull King secondly There is an express abjuration of the pretended Authority of the Bishop of Rome which shews that the Abjuration of the Temporal as well as Spiritual Right of a Foreign Prince who claims it ever since King Iohns Resignation is no new invention and lastly there is an express abjuration or Engagement to defend the King's Person to the utmost of the Swearers Power against all Conspiracies at Attempts whatsoever and why the same words may not be inserted into this new Oath as well as it was in those I can see
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
8. p. 580 581. W. All Burroughs that sent Members antiently held in Capite of the King D. 8. p. 557 578. W. They sent such Members by an inherent Right or at the Discretion of the Sheriffs Ib. p. 593. 604. C Cain W. he forfeited his Birth-right by the Murther of his Brother D. 2. p. 67. W. His Eldest Son was a Prince over his Brethren Ib. Canons of 1640. their validity discussed D. 4. p. 284. to 286. King Charles the Firsts pretended Commission to Sir Philim O Neal considered D. 9. p. 636 637. Great Charter of King Iohnâ— W. it was the sole Act of that King or else made by the advice and consent of all the Freemen of England D. 5. p. 324. D. 7. p. 455 456. Great Charter of Hen. the Third W. all the Copies we have now of it were his or else Edward I. his Charters Ib. 461. Children how far and how long bound to be subject to their Parents D. 1. p. 45. to 52. Christians W. as much obliged to suffer for Religion now as in the Primitive Times D. 4â— p. 230. to 234. Chester its County W. the Earl thereof could charge all his Tenants in Parliament without their consent D. 7. p. 501. Church of England W. Passive Obedience be its distinguishing Doctrine from other Churches D. 4. p. 292 293. Cities and Burroughs more numerous in the Saxon times than now D. 6. p. 379. to 400. W. They had any Representatives in Parliament before the 49th of Henry the IIId D. 5. p. 565 572. Whether Cities and Burroughs had not always had Representatives in the Parliaments of Scotland D. 7. p. 505. Clerici terras habentes quae ad Ecclesias non pertinent who they were D. 7. p. 450.451 Clergy a part of the Great Council of the Kingdom in the Saxon Times and long after D. 8. p. 544 to 550. W. None of the Clergy but such as held in Capite appeared at such Councils Ibid. W. The Inferiour Clergy had their Representatives in Parliament different from the Convocation Ib. 546 to 558. Commandment Vth in what sence Princes are comprehended under it D. 2. p. 106. to 109 111. Communitas Regni W. that Phrase in ancient Records and Acts of Parliament does not often signifie the Commons as well before the 49th of Henry the Third as afterwards D. 7. p. 412 to 415. W. That Phrase does not also signifie the whole body of the Kingdom consisting of Peers and Commons D. 6. p. 416. The Drs. proofs to the contrary considered 417 to 423. W. It does also often signifie the Commons alone D. 8. p. 572. to 574. Their Declaration to the Pope in the 48th of Edward the Third D. 8. p. 581 to 582. Their Petition to Henry the Fifth Their Protestation in Parliament in Richard the Seconds time 584. Commons of Cities and great Towns had their Representatives in the Assemblies of Estates of all the Kingdoms in Europe founded by the ancient Germans and Gothes Ibid 607 to 612. Commons their request and consent when first mentioned in Old Statutes D. 5. p. 329. W. Ever summoned to Parliament from the 49th of Hen. the Third to the 18th of Edw. the First D. 7. p. 522. Commons W. part of the Great Council before the Conquest D. 5. p. 369 372. The words Commune de Commune les communes do frequently signifie the Commons before the 49th of Henry the Third D. 6. 423. D. 7. 423 to 484. Common-Council of the whole Kingdom W. different from the Common-Council of Tenants in Capite D. 7. p. 437. to 474. Communitas Scotiae W. it always signified none but Tenants in Capite Ibid. p. 505. to 508. Conquest alone W. it confers a right to a Crown D. 2. p. 128 129. W. It it gives a King a right to all the Lands and Estates of the Conquer'd Kingom D. 3. 168. to 170. W. Any Conquest of this Kingdom was made by King William the First D. 10. p. 715. to the end Constitutions of Clarendon their Title explained D. 6. p. 430 431. Contract Originel W. there were ever any such thing D. 10 p. 695 to 709. D. 12. p. 809 8â—3 Convention W. its voting King James to have abdicaâ—ed the Government be justifiable D. 11. p. 809 to 834. W. Its Declaration of King James's violations of our fundamental Rights be well grounded Ibid. p. 816 832. W. It s voting the Throne vacant can be justified from the ancient constitution of the Government D. 12. p. 839 to 883. W. Whether its placing K. W. and Q. M. on the Throne may be also justified by the said Constitution Ibid. p. 883 to 894. W. It s making an Act excluding all Roman Catholick Princes was legal Ibid. p. 894 to the end Convocation Book drawn up by Bishop Overal its validity examined D. 1. p. 6 8. Copy Holders why they to have no Votes at Elections to Parliament D. 5. p. 513. Great Councils or Convention the only Iudges of Princes Titles upon any dispute about the succession or vacancy of the Throne D. 12. p. 895. D. 13. p. 917. to 919 924. Council of the King in Parliament what it was anciently D. 5. p. 334. Great Council or general Convention of the Estates of the Kingdom W. legal without the Kings Summons D. 5. p. 353. D. 12. p. 894. to 898. Curia Regis what iâ— anciently was and W. it consisted of none but Tenants in Capite Ibid. 368. Crown W. it can by Law be ever forfeited D. 12. p. 833 834. D Defence of a Mans self in what case justifiable D. 3. p. 148 149. Declaration of the Convention setting forth King James's violation of the fundamental rights of the Nation W. justifiable or not D. 11. p. 816. to the end Private Divines their Opiâ—nions about Passive Obedience and Resistance of what Authority D. 4. p. 291 294. W. Many of them have not quitted the ancient Doctrine of the Church of England declaring the Pope to be Antichrist vid. Append. Dispencing Power W. justifiable by Law D. 12. p. 119 to 828. Dissolution of all Government W. it necessarily follows from the Conventions declaration of the vacancy of the Throne D. 12. p. 890 891. Durham W. its Bishop could lay Taxes in Parliament on the whole County Palatine without their consents D. 7. p. 501 502. E Earls of Counties their ancient Office and Institution D. 5 p. 363 to 370. King Edward the Second being deposed W. any vacancy of the Throne followed thereupon D. 12. p. 158 to 861. Queen Elizabeth W. she had any Title to the Crown but by Act of Parliament Ibid. p 872 873. England when first so called D. 5. p. 362. English-Men W. they lost all their Liberties and Estates by the Norman Conquest D. 10. p. 753. to the end English Bishops Earls and Barons W. then all deprived of their Honours and Estates Ib. 756 to 762. English Saxon Laws W. confirmed or abrogated by K. William D. 10. p. 760. Estates of the Kingdom
p. 539.540 King how far Gods Lieutenant D. 9. p. 663. W. His Authority is different from his Personal Will and Commands Ib. p. 645. to 648. His Person how far Sacred and Inviolable Ibid. p. 638.651 to 657. Kings Commission how far and in what cases resistible notwithstanding the Declarations of of the two first Parliaments of King Charles the Second Ib. p. 636. to 655. W. He hath any Authority to act against Law Ib. p. 644 to 649. Kings Commissions how far good in Law Ib. p. 640. Kings since the Conquest W. endued with the sole Legislative Power D. 5. p. 338 to 345. D. 9. p. 650 651. hath no Peer or Equal in the Kingdom D. 5. p. 354. His presence W. it will authorize all illegal actions so as to render them irresistible D. 9. p. 653 654. His Officers in what case resistible Ib. The Kings being irresistible how far different from being unaccountable D. 9. p. 644 645. Kings of England W. absolute and unaccountable or W. limited by Law D. 10. p. 693 to 698. Most High in their State-Royal when they appear in their Great Councils or Parliament D. 9. p. 643. The first Eight Kings after the Conquest never were so stiled till after their Coronations D. 12. p. 840. to 858.895 King though he have no Peer yet he had anciently Comites or Companions D. 5. p. 364 365. W. He can at this day abdicate or forfeit his Crown by the wilful violation of our fundamental Laws D. 10. p. 694 to 709. D. 11. p. 832 833. Kingly Power the end of its Institution in this Kingdom D. 5. p. 349. King de facto or for the time being W. within the Statute of the 25th of Edward the Third and whether Allegiance be due to him by the Statute of the Eleventh of Henry the Seventh D. 13. p. 905. to 940. What constitutes a legal King in England D. 12. p. 889 890. Kingdoms of Judah and Israel W. when given by Gods appointment it gave the issue of that King a like Divine Right to succeed D. 2. p. 99 100. Kingdoms Patrimonial and Hereditary their difference Ib. 84 85. Knights of Shires frequently stiled Magnates and Grantz in Ancient Records D. 6. p. 424. vid. Append. W. They were anciently chosen out of the Tenants in Capite and none others p. 425. Knights Citizens and Burgesses W. the first Writs of Summons of them that can be found is the 49th of Henry the Third D. 7. p. 519. W. This was the first time that they were summoned Ibid. p. 525 to 530. W. They were summoned no more till the Eighteenth of Edward the First Ibid. p. 522. to the end D. 8. p. 559. to 563. p. 571 to 576. L Lancaster W. that Families pretended Title to the Crown claim'd by Inheritance D. 12. p. 861 862. Laws how far they oblige Princes according to Sir R. F's Principles D. 2. p. 120 121. Laws Imperial of all Goâ—vernments W. they require a Passive Obedience or Non-Resistance in all cases whatsoever D. 3. p. 149.154 Law of Nations W. it differs from the Law of Nature D. 1. p. 26 to 31. Laws of English Saxon Councils the Titles to most of them D. 5. p. 314. to 319. Laws of Normandy W. the same in most things with those of England D. 10. p. 752.753 Laws fundamental of the Kingdom W. there are any such things and where to be found D. 9. p. 666. to 669. D. 10. p. 704. D. 11. p. 810. to 814. Law of Edward the Confessour concerning the Kings ceasing to be so if he prove a Tyrant and W. it be genuine or not D. 10. p. 705. to 712. Private League with France what Reasons there are for and against its reality D. 11. p. 800. to 802. Liberi Homines and Liberi Tenentes mentioned in Ancient Statutes and Records who they were anciently D. 6. p. 419.426 to 431. W. They were only Tenants in Capite or chose by Military service to them D. 7. p. 449. to 453.514 M Magna Charta W. obtained by Rebellion D. 3. p. 186. Magnates W. the Commons were not sometimes comprehended under that Title D. 6. p. 372.396 397. Queen Mary W. she had any Title save by the Statute of Henry the Eighth D. 12. p. 872. Our present Queen Mary W. she hath a right to succeed upon her Fathers abdication Ib. p. 853. 884. Maud the Empress why she never stiled her self Queen of England notwithstanding fealty had been sworn to her D. 12. p. 846. Several Maxims in the Civil Law considered and explained D. 1. p. 17 18 21.30 The ancient Members of the German Diets or Great Councils D. 6. p. 375. The Milites mentioned in ancient Statutes and Records who they were D. 6. p. 431 432. W. They were only Tenants in Capite or any other Tenants by Military or Socage service D. 7. p. 481.489 490. Mischiefs that may befall a People from their resistance of the Supream Power considered D. 3. p. 184. to 189. Monarchy W. of Divine Right from any Precepts or Examples in the Old or New Testament D. 2. p. 130 131. Or from Adams Patriarchical Power D. 1. p. 19. to 26. Monarchies or Commonwealths which are most Tyrannical D. 2. p. 110.111 Mixt Monarchy W. it be a Contradiction D. 5. p. 345. to 348. Sim. Montfort W. he first called the Knights Citizens and Burgesses to Parliament in the 49th of Henry the Third D. 8. p. 596.597 Moses and Joshua W. Monarchs over the Children of Israel and Successors to the Patriarchical Power D. 2. p. 92. to 100. Multitudo Cleri Populi the signification of those words in our ancient Histories D. 8. p. 569. to 571. N W. A whole Nation may resist the Supream Power in some Cases of extremity but not particular Persons D. 3. p. 146. to 150.161 162. D. 4. p. 236. to 239.272 to 275. Negative voice W. the two Houses of Parliament have it not in some Cases as well as the King D. 5. p. 341. Noah W. he was sole Proprietor of the Earth or else was Tenant in common with his own Children D. 1. p. 74 75. W. His Grandsons were all alike Princes over their several Families Ib. p. 75. to 81. W. from Noahs Seven Precepts may be deduced the Law of Nature D. 1. p. 36 37. Nobilis Nobilitas the several significations of those Titles D. 6. p. 374 388.410 W. Meer Commoners were not often comprehended under the Title of Nobiles Ib. 396 397. Non Obstantes the Clause when first inserted in our Kings Charters D. 11. p. 820. Non Resistance W. the Doctrine tend to make Princes better or else more Tyrannical to their Subjects D. 2. p. 116 117. Normandy W. its Dukes were absolute or limited Princes D. 10. p. 727. O Oath of the King at his Coronation how far obliged according to Sir F's Principles D. 2. p. 122.123 It s ancient form according to the Mirour D. 5.364 W. The taking the Coronation Oath renders the Crown forfeitable if it
be not observed D. 10. p. 699. The form of the Oath since the Conquest Ib. p. 711. Oath of Allegiance its interpretation D. 5. p. 350. Oaths in the Acts for the Militia of the 13th and 14th of King Charles the Second their true intent and meaning considered D. 9. p. 631. to 635.659 New Oath of Allegiance W. it may be taken to their present Majesties as King and Queen de facto without acknowledgment of their right D. 13. p. 903. to 909. How far it obliges the takers Ibid. p. 907.908 W. Due to the King in Possession by reason of his protection Ib. p. 949. to 954. Promissory Oaths W. lawful or not Ib. 954. to 956. W. Any other stricter Oath be necessary Ib. p. 957. to 963. Obedience Passive W. it be not a Bull D. 1. p. 41. The necessary consequences of that Doctrine Ib. p. 4. to 9. Officers and Souldiers who deserted King James W. justifiable in so doing D. 11. p. 785 to 787. Omnes de Regno mentioned in Magna Charta W. only Tenants in Capite D. 7. p. 490 to 494. W. The Oppressions of Princes or the Ambition Rebellion of Subjects have caused the greater disturbances D. 3. p. 182 183. Optimates its ancient signification in Histories discussed D. 6. p. 372 to 376. W. It ever signifies meer Commoners 397. Orange W. that Princes making War upon King James was justifiable D. 11. p. 781. to 789. W. All his other carriage towards the said King were as it ought to be Ib. p. 789. to 798. Original Contract W. there were ever any such thing and where to be â—ound D. 10. p. 704 705. D. 11. p. 813.814 W. Broken by King James Ib. 809 810.813.814 P Pares Baronum or Alii Magnates who they anciently were D. 7. p. 509.511 Parliaments or Great Councils W. they are as ancient as the Government or owe their Original to some Kings favour D. 5. p. 358 to 365. How often anciently held D. 9 p. 668 D. 5.363 It s power when met Ib. 364. No Laws to be made or Taxes to be raised without it D. 9. p 668. To have freedom of speech and not to be bribed or awed Ibid. Paternal Power not to be acquired by Conquest c. D. 2. p. 105 106. Patriarchs before the flood W. Lords of all Mankind or or Masters of their own Families D. 2. p. 70. to 72. St. Pauls Epistle to the Romans when written D. 4. p. 248 to 250. Peers their Power in Parliament W. derived from he King or the institution of the Government D. 5. p. 366. to the end Persons of Princes W. they may be resisted without resisting their Authority D. 4. p. 240. to 244. Whether so in England D. 10.653 to 657. People W. the Original of Civil Power asserted by Fortescue D. 11. p. 779. Power Râ—gal W. Paternal D. 2. p. 101. to 104. People W. they can judge when their fundamental Rights are invaded D. 9. p. 669 670. W. If they may judge they may also resist D. 11. p. 780 781. What numbers required to justifie this resistance D. 9. p. 669. to 671. Power Oeconomical W. of the same kind with Civil Ibid. p. 59.62.64 Power over mens lives whence derived D. 1. p. 35. to 39.61 Power Civil whence derived W. immediately from God or from the People D. 11. p. 773. to 780. Power Legislative W. in the King and Parliament D. 5. p. 312 313. Power of dispencing with Penal Laws W. it be an inherent Prerogative of the Kings D. 11. p. 816. to 830. Supream Powers W. irresistable because ordain'd by God D. 4. p. 452. to 460. Plebs and Populus what those words anciently signified D. 6. p. 386. to 391. D. 8. p. 359. to 364. Primitive Christians W. Men are now obliged to the same strict Rules of Non-Resistance as they were in the Primitive Times D. 4. p. 272 to 277. Divers of their resistances of the Roman and Greek Emperours instanced 280 to 282. Primogeniture as a Power over Brethren W. of Divine Right D. 2. p. 81. to 83. Princes W. bound to treat their Subjects like their Children D. 2. p. 105. to 110. Princepes Regni its signification anciently D. 6. p. 372.377.395.396 W. All the Priviledges and Liberties English Subjects now enjoy were owing to the favour of our former Kings D. 2. p. 112. D. 5. p. 320 to 322.356.361 362. Prelates and Peers claim their places in Parliaments by Prescription D. 8. p. 559 to 564. Prescription beyond time of memory how high it goes Ibid. 583 to 593. Proceres Regni its ancient signification D. 6. p. 376. W. the Commons were not often comprehended under that Title Ib. 395 396. D. 8. p. 572. Protection of the Government how far it may require Allegiance to it D. 13. p. 946 to 952. Civil Property W. derived from Adam or Noah D. 2. p. 133. to 136. Provincia its ancient signification W. a Province or a County Ibid. 565 to 569. Punishments for Offences W. alter'd and new ones ordained by King William the First D. 10. p. 759. Q Queens often present in English Saxon Councils D. 6. p. 393. R Rebels W. bound to make their lawful Prince amends by restoring him to the Throne D. 13. p. 939. to 944. Records in the Tower and elsewhere cited in these Dialogues Rot. cart 5 Iohan. D. 6. p. 386. Rot. clause 17. Edw. II. ibid. 396. Rot. Parl. 7 Rich. II. ibid. 397. Rot. claus 24 26 of Hen. III. ib. 432. Rot. claus 19 Hen. III. D. 7. p. 445. Inter Com. brevia Mich. 42. Hen. III. ib. 446. Rot. Pat. 15. H. III. Rot. claus 4. H. III. ib. 447. Rot. Pat. 15. Iohan. ibid. 449. Rot. cl 42. H. III. ibid. 449. Rot. cl 28. H. III. ibid. 454. Rot. cl 26. H. III. ibid. 461. Rot. Pat. 42. H. III. p. 472. Rot. Pat. 48. H. III. Rot. cl 49. H. III. Rot. Pat. 51. H. III. ibid. 475. Rot. cl 28. Edw. I. ibid. 477. Rot. Par. 12. Edw. 2. p. 478. Rot. Par. 1. Edw. III. Rot. Parl. 12. Rich. II. ib. 478. Rot. Pat. 30th Edw. 1. Rot. Fin. 20. Edw. III. ib. p. 420. Rot. cl 34. Edw. 1. ib. p. 483. Rot. cl 19. H. III. Rot. Pat. 48. H. 3. ibid. p. 491. Rot. Pat. 48. H. III. ibid. p. 493. Rot. cl 16. H. III. ib. p. 494. Rot. cl 19. H. III. 495. Rot. cl 11. H. III. Rot. cl 33. H. III. Rot. cl 52. H. III. ib. p. 496. Rot. Pat. 3 Edw. I. Rot. Pat. 20. E. 1. ib. p. 501. Rot. Pat. 17 18. Ed. I. ib. p. 50â— Rot. cl 6. Iohan. 26. H. III. 38. H. III. ib. p. 516. Rot. Pat. 48. H. III. Rot cl 49. H. III. ib. 519. Rot. cl 24. Edw. I. ib. p. 526. Rot. cl 3. Ed. III. Rot. cl 49. H. III. ibid. p. 527. Bundel Brev. 18 Edw. I. p. 530 531. Rot. cl 23. E. 1. ib. 53. Rot. cl 28. E. I. Rot. cl 45. Ed. III. ib. 537. Rot. Stat. 25. E. 1. D. 8. p. 552. Rot. cl 23.
Latine Translation of the Old Coronation-Oath D. 8. p. 560. to 563. W Wales W. it s Titular Prince be really Son to King James the Second and Queen Mary D. 11. p. 784 to 789. W. He ought to have been received as the true Son and Heir of the said King D. 12. p. 875. to 877. and that let the consequences be what they will Ib. p. 879. to 881. Wardship Marriage and Relief W. wholly derived from the Normans D. 10. p. 750.751 Its advantages and inconveniencies considered Ib. A Wife W. she can ever be discharged from the Power her Husband hath over her in the state of Nature by any means but by his express consent D. 1. p. 43. King William the First why stiled the Conquerour D. 5. p. 325. W. He claimed to be King of England by Donation of King Edward the Confessor or by Conquest D. 10. p. 715.718 719. W. He was ever Elected and took the same Coronation-Oath as the English Saxon Kings had done before D. 10. p. 716.722 to 737. W. He might justly have seized all the Lands in England to his own use D. 2. p. 171. W. He gave most of the Lands of England to his followers Ibid. p. 721 to 729. and to 747. W. He alter'd any thing in the fundamental constitution of the Government D. 5. p. 320. to 322. W. He altered all the Old Laws of England or confirmed those of King Edward D. 10. p. 737. to 760. His Second Oath upon the Relicks of St. Alban Ib. 761 762. His Laws concerning all Freemens exemption from Taxes upon their finding Arms D. 6. p. 426 427. W. He and his Son William Rufus made Laws and imposed Taxes without the consent of the Great Council D 10. p. 744 755. King William the Third W. he hath any Title by Conquest over King James or else from his Marriage with the Princess and the Act of the Convention D. 12. p. 883. to 899. His Religion and Principles vindicated Ib. 886 887. Wites or Wise-Men in the English Saxon Councils the true signification of that term D. 6. p. 373. to 378. Wittena à Gemots or Great Councils among the English Saxons W. they consisted of more than the higher Nobility Ib. p. 381. Wives how far obliged to be obedient to the Commands of their Husbands D. 1. p. 40. Writ of Summons to the Commmons of the 49th of Henry the Third W it was the first of that kind D. 7. p. 519. to 521. W. Any Writs of Summons of Bishops or Lords to Parliament are to be found before that time Ib. p. 516. Writ of the 19th of Henry the Third to the Sâ—eriffs to levy two Marks Scutage upon Tenants by Knights Service holding of Tenants in Capite Ib. 445 Writ of the 24th of Henry the Third commanding all Men holding a whole Knights Fee of whatsoever Tenure to be Knighted D. 6. p. 432. Writs of Summons to Knights Citizens and Burgesses to Parliament at Shrewsbury in the 11th of Edward the First D. 8. p. 574. Writ of Summons to Knights of Shires cited by Dr. B. in the 18th of Edward the First W. it was to a Parliament D. 7. p. 530. to 536. Writ of the 22d of Edward the First W. a Summons to Parliament D. 7. p. 533 534. Writ of the 30th of Edward the First commanding the Levying of Forty Shillings upon each Knights Fee which had been granted ever since the Eighteenth Ibid. p. 479. W. The Commons Granted that Tax Ibid. Writs of the 28th of Edward the First and 45th of Edward the Third W. of Summons to Parliaments Ib. 537. Writs for Expences to Knights of Shires how ancient D. 8. p. 589. to 591. Y Duke of York Richard his Title declared in Parliament D. 12. p. 863. Edward Duke of York Recognized by Parliament to be lawful King from the Death of his Father Richard Duke of York Ib. p. 865. Duke of York James W. he was not intirely in the French Interest and Designs before he came to the Crown D. 11. p. 802. AN APPENDIX Containing some Authorities sit to be added for farther confirmation of some things laid down in the foregoing Dialogues TO be added to Dialogue the Fourth p. 290. at the end of F s Speech after these words no particular Church can read thus And that divers of the most Eminent Divines of our Church have used the same freedom with several other Doctrines contained in these Homilies may appear from Dr. Hammonds Dr. Heylins and Dr. Taylors with several other Eminent Writers expresly denying that the Church of Rome is guilty of Idolatry or that the Pope is Antichrist tho' both these Doctrines are as plainly laid down in the Homilies as the Doctrine of Non-Resistance And yet none of these Men are ever taxed by those of the Church of England for quitting her Ancient Orthodox Doctrines and I desire you to give me a good Reason if you can why it is more lawful and excusable to part with the former of these Doctrines than the latter The like I may say also for the Doctrine of Predestination which tho expresly asserted in the 36 Articles of the Church of England as interpreted by all the Bishops and Writers in the Reign of Queen Elizabeth and King Iames as also the Bishops and Divines sent as Delegates from our Church to the Synod of Dort who joyned in the interpretation of that Article in the strict Calvinistical sense you find in all the determinations of that Synod against the Doctrines of the Arminians which then began to prevail yet since the time that Arch-Bishop Laud had the nominating of what Persons he thought fit to be made Bishops Deans c. not one in ten of them but have been Arminians in all those Points wherein they wholly differ from the Doctrine of Calvin which is but the same with that of our 36 Articles so interpreted yet none of the Divines of our present Church who hold these Opinions are branded with Apostacy from its Ancient Doctrine but if any well meaning Divine out of love to his Country and to prevent Popery and Slavery from breaking in upon us have but Preach'd or Publish'd any thing in derogation to these Darling Doctrines of Passive Obedience and Non-Resistance he is straight branded with Apostacy from the Church in quitting its main distinguishing Character and we have lately seen Degrading nay the most cruel Whipping and Imprisonment thought too little for such a Man but one may say of some Men with truth enough Dat veniam Corvis vexat censura Columbis So Dialogue the Sixth p. 397. at the bottom after these words in those times read this But that the House of Commons were anciently often comprehended under the stile of Grantz which is the same with Magnates in Latine pray consult the Parliament Rolls of Edward the Third where you will find in the 4 th of that King this passage est assentu accorde per nostre Seigneur le Roy tous les Grantz
Citizens or Burgesses nor were several strict Forms and Usages now Practiced ever then thought of nor some Legal niceties and Punctilio's now in use then judged absolutely necessary F. Pray give me leave to answer what you have now said from this Writ before you proceed to any other Record First as to your Argument from the variety or uncertainty of the number of Knights of Shires which you at first suppose to have been Summoned to Parliament that I doubt will prove a gross mistake for if we closlely consider the Writ it self it will prove no more then a Summons of these Knights to a great Council Colloquy or Treatise as the Writ here cal'â— it and not to a Parliament the words Colloquium Tractatum mentioned in the Writ not then signifying a Parliament but such a Collequy Treatise or great Council as is mentioned iâ— the Statute of the 7th of this King forbiding all Men coming with Arms to such Assemblies wherein there is also a plain difference made between Parliaments and such Treatises as I have already proved from the Statute of the Staple of the 27th of Edward III. which was first made in such a Treatise or Council as appears by the Title to the said Statutes and was afterwards confirmed by the next Parliament in the 28th year of the same King Cap. 1. whereby Magna Charta and all other Statutes before made are also confirmed for had this Summons been to a Parliament sure there would have bin also Writs of Summons found for the Electing and returning of Citizens and Burgesses as well as Knights of Shires to this Assembly and these Writs of Summons would have been entered on the Dorse of the Close Rolls according to the Rules your self have laid down whereas this Writ is only found in a loose Bundle of Writs of divers other Matters neither is there any title in the Margin of the Record as is usual in Writs of Summons to Parliament whereby it may appear what kind of Assembly this was to which these Knights were Summoned nor is your Argument from the date of the Writs of Summons any convincing proof that the Commons were not in this Parliament at the time of the Writ Issued since during the Session of this Parliament the Earls and Barons might make this Request for calling of those Knights out of the Counties to give their Opinions and Advice in the matters to be proposed to them by the King and that thereupon the King at their Request thought fit to Summon two or three more of the Knights of Shires to have their advice also And as for your last Argument that the same Parliament which gave the Tax above mentioned on the first of Iune must be sitting even to the very time of the return of the Writ because the Statute of Westminster the third was mane on the Quindene of St. Iohn Baptist viz. the 8th of Iuly So that the King and the Barons without the Commons made this Statute and that these Knights were Summoned after the act was passed There is no necessity of making these Consequences for this Parliament might very well be dissolved that very day this Act passed and this Council or Colloquy might be Summoned to Meet within three Weeks after Mid-Summer i. e. about the 16th of Iuly according to the Writ you have cited And so I believe it would appear were the Rolls of that Parliament now Extant as thâ—y are lost as well as those of divers succeeding Parliaments M. Well then you are forced to confess that this Writ was Issued whilst the Parliament was still sitting and if so I cannot see any need there was of another less Council or Colloquy to meet after the Parliament was ended since as long as it was sitting that could have much better dispatch'd all such business as the King had to do and how the King could foresee that he should have need of another Council before he had any business for it seems very improbable and therefore I think I may very well suppose with the Doctor that this Writ was a Summons to Parliament though it does not I grant expresly call it so but your Argument is of no weight that because this Writ was not entred upon the Close Roll that therefore it is not to be look'd upon as a Summons to Parliament as also because the Title to it is only Summonitio ad Consilium since the Doctor in his answer to Mr. P. gives us several Parliament Writs upon the Close Rolls with this Title ad Consilium which proves that the King had in those days a larger Power of calling what number of Knights of Shires he pleased to Parliaments as appears by two other Writs he there gives us of the 22d of Edward I. which are entred in the Close Rolls to the Sheriff of Northumberland to cause two Knights to be Elected for that County bearing Date the 8th of October and the next day after the King as appears by another Writ to the same Sheriff ordered him to cause to be chosen two other Knights besides the former and to cause them to appear at Westminster the morrow after St. Martin's Day to hear and do such things as the King should more fully enjoyn The like Writs with botâ— the former were sent to all the Sheriffs in England Now though it is true that the Title to the first of these Writs is only de Melitibus Eligendis Mittendis ad Concilium yet these words well considered must certainly here mean a Parliament both these Writs being entred upon the Close Rolls where all Writs of this kind are wont to be found as I have already observed and besides the words in the first Writ are the same with those which are found in several other Writs of Summons to Parliament viz. ad Consuleâ—dum Consentiend pro se Commâ—nitate illà biis qua Comites Barones Proceres prâ—dictâ— concorditer ordinaverint in praemissis F. I confess we are at a loss in this affair for want of the Records of this Parliament which if we had I doubt not but there would appear very good reasons why the Lords did then desire the King should consult more of the Knights of the Shires then what had appeared at this Parliament as that Lords might refuse to give their Advice in the matters proposed by the King without he would also consult more of the best and ablest Knights of Counties who were to come up with fresh Power and further Instructions what answer to give the King in the matters he should propose which that it was neither to give Money nor make Laws is plain since you say the Tax of 40s on even Knights Fee was given and the Statute of Westminster 3d. made before they came up to Parliament but indeed the words in the Writ plainly prove that this was no Parliamentary Meeting since they are here only Summoned ad Con ulendum Consâ—â—iendum whereas in all Writs of Summons to
Prescription of Knights Citizens and Burgesses appearing in Parliament before the 49th of Henry the 3d for since you have now proved they were there by an undeniable Record in the 11th of Edward I. I shall now confine my self to Sir Henry Spelmans and Sir William Dugdales as well as the Drs. first Term of 49th of Henry the 3d. F. I shall observe your desires and in performing of which I shall pursue this Method I shall first give you a general Definition of Prescription and shall then prove that the Knights Citizens and Burgesses have always claimed to appear in Parliament by vertue of this general Right of Prescription Now the Terms of the Law tell us That Prescription is when a man claimeth any thing for that he and his Ancestors and Predecessors whose Estate he holds had or used any thing in all Times whereof no memory is to the contrary now pray let us see to what time this is limited that shall be said to be within Memory and what was anciently counted beyond time of Memory in a Prescription which may be best learnt from a Petition of the Commons to King Edward the 3d in the 43d of his Reign which is to be found in the Parliament Rolls of that Year wherein among other Petitions of the Commons this is one which I shall render and abridge out of French Item because the whole time of King Richard I. is held for temps de Memorie that it would please the King farther to limit this time so that it do not pass the Coronation of King Edwards Grandfather to the King that now is but mark the Kings Answer to this Petition Let the Law continue as hath been hitherto used until it be otherwise Ordain'd so that since there has been no Alteration in this Point from the Reign of Edward the 3d then the Time beyond Memory or whereof there is no Memory to the contrary continues still beyond the time of Richard the I. for Littleton tells us that all the time of Richard I. is time of Memory and therefore Sir Edward Cooke in his Comment upon him says That this was intended from the first year of his Reign for from that time being indefinitely doth take in all the whole time of his Reign which is to be observed Having fixt the certain time of a general Prescription beyond Memory I shall now proceed to shew you that the Claim of the Commons appearing at the Common Council or Parliament of the Kingdom is beyond that time which since I cannot do directly by reason of the loss of the Records of Parliament of those times any farther then has been already in the Case of the Burgesses of St. Albans which alone is I think sufficient to satisfie any reasonable man we must therefore make use of such Collateral Proofs and Records which tho they not directly yet by undeniable Consequence will prove the Point in Question I shall therefore in the first place make use of a Writ in the Exchequer of the 34th Edward I. directed to the Barons thereof reciting that whereas the Men of Coventry set forth in their Petition to the King that the said To all is not a City Burrough nor Demesne of the Kings so that the Townsmen were not wont to be taxed as Citizens and Burgesses or Tenants in ancient demesne in any Taxes granted to the King and his Progenitors but only with the Community of the said County of Warwick and yet that the Taxers and Collector of the said County have endeavoured to levy a 30th of their Goods towards an aid granted by the Communities of the Cities and Burroughs to the King to their Damage and Impoverishment and therefore pray remedy the King therefore Orders that the Rolls be searcht concerning such Taxations in the said Town and if it evidently appear by them that it is as they set forth and that the said men were always taxed with others without the Towns Burroughs and Mannors aforesaid in all payments of this sort that then they should not permit the said Taxers and Collectors to distrain the said Inhabitants to pay the King by reason of the said Concession of a 30th otherwise quam in totis temporious retroactis in hujuscemodi casu fieri consueverit c. from which Record we may draw these Conclusions First That this Town of Coventry did not hold of the King and yet was a Burrough and as such sent Members to Parliament in the 26th 28th and 30th of Edward I. as appears by the return of Writs of that Year Secondly That yet it prescribed Totis temporibus retroactis in all times pass'd to be taxed with the Body of the County and not with the Communities of the Cities and Burroughs in all Taxes granted to the King and his Progenitors which plainly shows that the Cities and Burroughs granted Taxes by themselves in the times of his Progenitors that is in the time of King Iohn at the least Lastly That the King orders the Rolls to be searcht which had been idle direction had it then been known or believed that the Cities and Burroughs never gave any Taxes for themselves in Parliament before the 49th of Henry the Third but little above forty years before the date of this Writ I shall shew you a like Writ which is to be sound in the same place for the Towns-men and Tenants of Beverly in the County of York in 8 vo of Edward the Second seting forth in their Petition that altho' they had been Taxed to to the 20th lately given to the King per Communitates Comitatuum by the Taxers and Collectors of a Subsidy of the 20th in the said County altho' they and their Ancestors had been accustomed to be Taxed to all Aids as well to the King as to his Propenitors granted per Communitates Comitatuum ejusdem Regni with the Community of the County and not with the Communitates Civitatum Bargorum yet that the Taxers and Collectors of the 15th lately granted by the Commons of the Cities and Burroughs do grievously distrain them to their great damage and therefore pray Remedy whereupon the King commands that the Rolls be searcht of such like Taxations and if it appear that the said Town has always been hitherto Taxed as they in their Petition set forth that then they shall be discharged from the said 15th From which Record we may conclude that this Town of Beverly tho' an Ancient Burrough and as such was summoned to send Burgesses to Parliament in the 26th of this King yet did not hold oâ— the King in Capite nor in Ancient Demesne Secondly That Aids had been given the King and his Progenitors per Communitates Comitatuum i. e. by the Commons of the Counties which could not be done but by their Lawful Representatives and that in Parliament but how far these Progenitors must extend I need no repeat to you the ground of which Petition being admitted by the King in
Parliament M. These Authorities tho' material yet do not in my Opinion reach the point you were to prove viz. That the Knights Citizens and Burgesses appeared in Parliament before the Reign of Richard I. for both these Authorities tho' admitted for good yet reach no higher than King Iohn's time which is within memory as your self have now set forth since the word Progenitors need not be extended any further than the time of that King who was great Grand-father to Edward the First and Second to whom these Petitions were made by these Towns-men and so do not clearly amount to your full time of prescription viz. before the Reign of Richard I. F. Well pray remember that if you grant this you have lost your Cause since certainly the Reign of King Iohn is long before the 49th of Henry III. but since you will be so over-critical I will shew you some Claims by prescription beyond all time of memory made by the Tenants in Ancient Demesne from being Taxed to contribute to the wages of Knights of Shires and if they thus prescribed it is plain there must have been Knights of Shires chosen against paying whose wages they prescribed to have had this priviledge Now this prescription must be very Ancient since as Mr. Lambard shews us in the place I have quoted there has been no new Tenants made in Ancient Demesne since the time of William I. But pray see the Writ it self in the Old Register of Writs which is there put down only as a Form for drawing of all other Writs of this kind there to be found for other Towns and particularly the Tenants of Odiham in Hampshire whenever there was occasion and therefore it is not to be wonder'd that neither the Name of the King nor of the place be expressed in words at length The Writ it self is not very long therefore I shall give it you in Latine as far as is material Rex Vicecomiti L. salutem monstraverunt nobis homines Tenenteâ— de Manerio de F. quod est de Antiquo Dominico Coâ—one Angliae ut dicitur quod licet ipsi corum Antecessores Tenentes de eodem Manerio a tempore quo non extat memoria semper hactenus quieti esse cousueverunt de expensis Militum ad Parliamenta nostra Progenitorum nostrorum Regum Angliâ—e pro Commanitate dicti Comitatus venienium c. and then proceeds that whereas the said Sheriff distrains the said Tenants to contribute to the Expences of the Knights that came to the last Parliament to their great damage otherwise than totis retroaâ—tis temporibus fieri consuevit therefore commands him that he desist from his said Distress and do not compel the said Tenants to contribute otherwise quam omnibus temporibus retroactis And now tho' this Writ be without any Kings name or date yet it appears at the bottom it was issued by G. L. Eâ—â—rope then Chancellour and William de Holston Clerk of the Chancery and this must have been before the 15th of that King because it appears by the close Rolls of that year that in December the great Seal was delivered to William d' Ayremyn under the Seals of William de Clyffe and the said William de Herlston Clerks of Chancery who are often mentioned in our Records to have been Keepers of it pro tempore till the Second of Edward the Third when the said William de Herlston had the sole custody thereof committed to him But there is yet a perfecter Writ of this kind in the 50th of Edward the Third extant on the Rolls directed to Iohn de Cobham and four other Knights therein named reciting that whereas Simon Arch-Bishop of Canterbury claims as well for himself as his predecessors and their Tenants hitherto à tempore quo non extat memoria for certain Lauds held in Gavel-kind in the County of Kent which ought to be free from the Expences of Knights coming to our Parliaments as well as those of our Progenitors and concludes with a Supersedeas to the said Sheriff not to molest the said Tenants until such time as the King be further informed and that He by the Advice of his Council has ordained what is to be done in the premisses from both which Writs we may draw these Conclusions First That there was at the time of the granting these Writs a Claim by prescription time out of mind allowed for all Tenants holding of the Arch-Bishop in Gavelkind to be exempted from contributing to the wages of Knights of the Shire or else these Petitions and the Writs upon them had been idle and ridiculous Lastly That this Claim of being thus exempted time out of mind which as I have already proved extend beyond the time of Richard the First is allowed by the King himself for good in both these Writs only in the last the King will be informed whether they are Tenants in Gavel kind or not so that the Conclusion must be that if these Tenants in Ancient Demesne and Gavel-kind were always exempted from paying to the wages of Knights of the Shires beyond memory i. e. by prescription then certainly those Knights must have been chosen time beyond memory I could give you several other Writs of like nature but I will not over charge you Now certainly if the Knights of Shires were thus Elected time beyond memory the Citizens and Burgesses must have been so too since in Scotland where there were for a long time no Commissioners for the Shires yet the Cities and Burroughs ever sent Delegates to Parliament as your Dr. himself allows M. I must beg your pardon if I cannot come over to your Opinion concerning this prescription of Knights of Shires Citizens and Burgesses appearing in Parliament before the 49th of Henry the Third since Mr. Prin in his second and third part of his Parliamentary Register has proved 1. That all the words you insist upon to prove this prescription are to be understood in another sense than what you would now put upon them so that tho' Mr. Lambard and others of great note lay the Original Title and Right of all our Countreys Ancient Cities and Burroughs Electing and sending of Burgesses to Parliament and to be by prescription time out of mind long before the Conquest yet against this Opinion Mr. Prin argues thus whose Arguments I shall contract because it would be tedious to recite them all verbatim First That as for the wages of Knights of Shires which is the principal thing you insist on in this last Argument the Ancientest Writs extant for their wages are those of 28th and 29th of Edward the First and no Records or Law-books I have seen derive their Title higher than the Reign of Edward the First The first Statute concerning them is that of the 12th of Richard II. which only enacts that the Levying Expences of Knights shall be as hath been used of old time The next Statute is of 11 of
Legitimi Barones who as Ordericus tells us came in with his Father and setled themselves here after the Conquest But as for your Quotations out of William of Malmesbury and Ordericus Vitalis â—â—ncerning the English assisting King William Rufus against his Brother Robert by using the common bait of Liberty viz. promising that he would alleviate the Rigid Laws of his Father and give free Liberty of Hunting in his Forests 't is true he thereupon raised an indifferent Army consisting chiefly of English who as Mathew Paris tells us were no better than Mercenary or Stipendary Souldiâ—â—â— and who had either no Estates or else had been turned out of them before so that this does not prove that they were men of any Fortunes who thus assisted William Rufus F. As for what you have now said against the citations of the names out of Doomesday book is not material since if English names were then common to the Normans and them then the Norman names might be as well common to the English and then many of those in England whom by their names we suppose to have been Normans might be Native Englishmen and as for what you urge against the express words of the Charters I have now cited I think it is a downright wresting of the words Francis and Anglis since no Author that I know of but your Dr. and is of that opinion For that the word Franci or Franâ—igenae does signifie such Frenchmen who held Baronies in England is granted on all hands but how Angli must also signifie Frenchmen seems a Paradox to me for how could these Frenchmen or Normans be termed Englishmen only because they held Estates here and not in Normandy for if the having such and such Estates in England would have turned Frenchmen into Englishmen there needed no such distinction to have been made between French and English Barons in these Charters since according to your Doctors Notion the French Barons could be no other ways mentioned here but as they had Estates here and therefore could be only writ to in that capacity since as meer Frenchmen they had nothing to do here so that if this Epithete was so in respect of the Tenure of their Lands they would have been stiled English Barons as well as the other nor is your other evasion more to the purpose that by the Angli might be meant in the Charters of Henry the I. such Norman or French Barons who because they were born in England might therefore be called English for who can believe that in so small a time as from the beginning of the Reign of King William the I. to that of King Henry the I. which was but a little above 30 years so many of the Norman Nobility were dead as should make it necessary to use this distinction of French and English Barons since by their Tenures they were both alike English and thus to make Angli signifie Normans is to confound and make all words tho' never so plain uncertain and equivocal but that a residue of the English And as for what Ordericus says of the old Norman Barons it would have signified if you could have proved he had called them Englishmen as he does not But if you carry it further to the time of the Empress Maud and King Stephen when all the Old Race of Normans were certainly dead then there was much less need of this distinction when all that were born in England were English alike and therefore the word French could only extend to those few Barons who being born in Normandy had Estates here But since you are forced to confess that for the first four or five years of King William the I. Reign there were both English Earls and Barons till the King had by degrees rooted them out there cannot be a better argument against your pretended right of Conquest since it is plain King William could never pretend to take away their Honours and Estates as a Conqueror since by his Coronation Oath he was sworn to restrain all Rapines and unjust Judgments and that he would behave himself modestly toward his Subjects and Treat both the English and French with equal right so that if he afterwards took away the estates of English Nobility or Gentry it was either because they deserved it by Rebelling against him then it was justly done or else it was done without any cause at all but only to oppress and root out the English Proprietors and if so such actions being contrary to his own claim from Edward the Confessor as also to his Coronation Oath could no more give him any such right to Rob or Spoil Men of their Estates without any just cause then it could give him a right to Rob the Churches and Monasteries of all the Plate Money and Jewels which he found in them even to the very Chalaws and Shrines as Matthew Paris and other Authors tell us he did in the fourth year of his Reign when likewise according as you your self set forth he began to shew himself a Conqueror or rather a Tyrant in the taking away the Estates of the English without any just cause But however the Authors of that time do not make so great a Tyrant of your Conqueror as the Doctor for William of Poictou expresly tells us who was Chaplain to this King concerning his taking away the Estates of the English and giving them to the Normans that nulli tamen Gallo datum est quod Anglo cuiquam injustè fuerit ablatum And Ordoricus Vitalis speaking of his dealing with the English it the beginning of his Reign says expresly neminem nisi quèm non damnare iniquum foret damnavit and therefore Sir Henry Spelman shews us in his Glossary out of an Ancient Manuscript belonging to the Family of Shurnborn in Norfolk That Edwin of Sharborn and several others that were ejected out of their Estates and Possessions went to the Conqueror and told him that never either before or in or after the Conquest they were against him the said King either by their Advice or any other aid but kept themselves peaceably and quietâ—y And this they were ready to make out which way soever the King pleased to appoint whereupon the said King ordered an Inquisition to be made throughout all England whether it were so or no which was plainly proved therefore he presently commanded that all those who so kept themselves peaceably in manner aforesaid as these had done should be repossessed of all their Estates and Inheritances as fully amply and quietly as ever they had or held them before this Conquest This is so plain an Authority that it needs no Comment I shall now conclude with a reply to what you have said to evade the Authorities of those Ancient Authors I have brought to prove that in the beginning of the Reign of King William the Second there were many English Gentlemen left of considerable Estates which you and your Doctor would â—ain make
to be no better than meer mercenaries which is expresly contrary to the Authority of Mat. Paris whom your selâ— have cited in this point as also other Authors who have writ of this matter for Matthew has immediately before these words Videns igitur Rex Willielmus omnes penè regni proceres unâ rabie conspiratos Anglos fortitudine probitate insignes faciles leges tributorum levamen illis venationes Hibarasque promittendo sibi primò devinxit and almost make use of the very words that Malmesbury had done before now I desire you or your Dr. would satisfie me how men who were remarkable for their Valour and Honesty and who were so considerable as to be sent for by Letters writ on purpose and when they came should be promised easier Laws and free Huntings and relaxation of Taxes all which are priviledges which belong to men of Estates could be mean Souldiers of Fortune And to make it plain that they were not the Kings but their own Woods they were to Hunt in Roger Hoveden speaking of this very matter tells us concessit omnibus sylvas suas venationem Sed quicquid promisit parvo tempore custodivit Angli tum fideliter â—um juvabant but that he did not keep his promise as to hunting as well as other things appears by a passage in Eadmerus where he gives us as an example of K. William Rufus harsh nature that about fifty men of the ancient English Gentry who seemed to please themselves in those days with some remains of Riches were taken and accused that they had killed the Kings Deer and having for this undergone the Trial of Fire and Water he was in a great Rage about it which is sufficient to shew you that there were at this time many English Gentlemen left of sufficient Estates to use Hunting either in their own or the Kings Woods As for what you urge farther against Mr. A's instances out of Doomesday Book are not very considerable since it is only an exception against the names of persons there mentioned that they were not Native English but Normans who either were born or had Lands in England or else had the same names with the English both which are gratis dicta for Doomesday book plainly proves either that they or their Ancestors were here before your Conquest or else their names being wholly English Saxon it lies upon your side to prove that they were Frenchmen or Normans by Original which I believe is more than you or your Dr. is able to do M. I shall not say any further about Doomesday book until I have either examined it my self or can procure it to be done by some I can trust but in the mean time as for what you say concerning Edwin of Sharborn the Learned Dr. hath so confuted this Story in his answer to Mr. P. that notwithstanding some learned and great men have given too much credit to it I think it will appear to have been altogether false and tho' Sir William Dugdale in the first Tome of his Barronage hath this story otherwise and says that notwithstanding the Kings Mandate all he could get was to become Tenant to Warren and William de Albius of part of his own Land under certain services and he is there called Edwin the Dane and this if any is most likely to be true being taken out of the Book sometime belonging to the Family of the Sharborns Here we see he applied himself to William but got not the Propriety of his Estate what he obtained was but to hold part of it from others and this was then a common practice as Bracton and Fleta two of our most antient Lawyers and one of them at least a Judge do inform us That are the time of the Conquest there were Freemen that held their Possessions by free Services and free Customs and when they were thrown out of them by powerful men afterwards returning to them received their own and the very same Tenements or Possessions to hold in Villenage by performing servile works but such as were certain and nominated to this may be added what Mat. Paris says that King William gave liberally to such as were with him in the Battle of Hastings when he Conquered England and that little which was left he put under the Yoak of perpetual Servitude yet further as to this particular Report of Sharaborn there could be no such thing for his name is not to be found as any Proprietor in Norfolk in Sharnborn in Doomesday-book and the owners of Sharnborn whiâ—h are there only to be found are William de Warrenna from whom this Story says it was restored to Edwin Odo Bishop of Bajeux Benerius Arbalistarius and William de Pertenai whence it is evident that Warren and others were possessed of these Lands in the 20 of the Conqueror not long before he died and no Edwin to be found as Proprietor of any of them or other Lands nor is the name of William de Albeni or William Pincerna to be found as a Proprietor in Norfolk or in Doomesday though this Manuscript of the Family of Sharnborn says he had that Village and several Towns thereabouts given him by the Conqueror by which it appears that this Report is groundless F. I cannot blame you if you do what you can to evade this testimony from Sharnborn's Book which gives so exact an account of the Original of those Tenants who held of the King as Sir H. Spelman tells us per servitium Dreugarii and such Tennants were called Dreuches or Dreuges as this Book of Sharnborn tells us but tho' it is true as this Book it self sets forth Edwin of Sharnborn was never restored to all the Lands he held before the Conquest yet it is plain that he had the Kings Mandate for his restitution and if he could not obtain it by reason of the great power of the present possessors yet that is no argument against his Right or King William's Intention to restore him since Ingulph tells us that Ivo Talboi seized the Cell of Spalding and Diverse Lands belonging to the Monastery of Crâ—yland and kept them by force notwithstand a solemn hearing before the King and Council and if a great man could do this with the Lands of the Church It is no wonder that so powerful a person as Earl Warren could by his power or perhaps by the connivance of K. William himself keep another Mans Estate and make him contented with such a share as he would allow him when he found he could have no other remedy against those that thus unjustly detained it But tho' in the beginning of your Discourse you seem to allow a part of the Story as it is related in Sharnborn's Manuscript and produce the Testimony of Bracton and Fleta to prove that divers Antient English Proprietors who being thrownâ—out of their Estates by powerful men presently after the Conquest were â—ain to take them again upon performing of Villain-Services