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
make so light of this Testamentary Doâ—â—tion of Edward the Confessor which the greatest part of the Writers nearest that time do suppose to have been really made on the behalf of Duke William and that notwithstanding this bequest Harold unjustly and contrary to his own Oath did by force set the Crown upon his own Head without any precedent Election of the Clergy Nobility and People as was required at that time since it was impossible for them to meet in so short a time for King Edward dying on the Eve of Epiphany was buried on Twelfth day and on the same day Harold took upon himself the Crown by the consent of some of the Bishops and Nobility of his Faction then at London so that he was certainly no better than an Usurper and therefore by the Conquest of Harold and his party your Conqueror could acquire no right upon the free People of England since they never gave their consents to place Harold on the Throne and consequently K. William could have no just cause of making a conquest upon the whole Nation since neither did he ever in all his Reign as I can find call a common Council of the Kingdom to recognize or confirm his Title and tho' it is true Harold proving a Valiant and Popular Prince got the good will of the common People by divers Acts of Grace which he had lost by his violent taking the Crown while Edgar Atheling the only remaining Male Heir of the Saxon Race was in being and found very many who were willing to fight for him not only against the King of Norway who had a little before Invaded the Kingdom but also against Duke William yet all those in his Army could amount to nothing near the whole Kingdom who never contributed to the War by any publick Vote or Tax and therefore did not countenance it by giving Money or raising of Men as you suppose so that D. William could not pretend a right of making War against any body but only Harold and his Accomplices but as for the Testamentary Donation of Edward the Confessor tho' you make so light of it yet Ingulph says expresly that Edward the Confessor some time before his Death sent Robert Archbishop of Canterbury as his Ambassador to D. William to let him know That he had designed him his Successor not only by Right of Kindred but by the merit of his Vertue and that after this Harold coming into Normandy promised upon Oath to assist him in it and Will. Malmesbury says also that Edward the Father of Edgar Atheling dying almost as soon as he came into England K. Edward his Cozen being dead gave the Succession of this Kingdom to William Duke of Normandy with whom also agree Florence of Worcester and William of Poiâ—tou and all the rest of the Historians of that Age as well English as Normans nor do I know any of them except Simeon of Durham and Roger Hoveden who make Harold to have been appointed Successor by K. Edward or to have been so much as solemnly Crowned by the Archbishop of York But I confess your main objection is still to be answered viz. what precedent Right Duke Wâ—lliam could have to the Crown of England by this Testament of King Edward since it was then either an Elective or else an Hereditary Kingdom and so this Donation could confer no right on this Duke in Prejudice of the Peoples right to Elect or else of the next Heir to succeed In answer to which I must tell you that which perhaps you may have never considered that the Crown was then neither properly Elective nor Successive but a mixture of both M. That seems a kind of a Paradox and what I never heard before pray explain your self for I do not understand how it could be F. Why then I will tell you the Crown of England in those times was very like what the Crowns of Denmark and Sweden were not long since and as the Empire is at this day in which tho' the Estates or Diet might chuse whom they pleased for King or Emperor yet they still kept to the same Family or Line as long as there were any Males left of iâ— fit to succeed which custom often gave the King in Being a power which by degrees came to be looked upon as a kind of Right either upon his Death Bed or else at any time before to nominate one of his Sons or near Kinsmen to be his Successors by his last Will or Testament especially if he had no Sons of his own as happen'd in the case of King Edward the Confessor now this nomination tho' it did not alone confer a right to the Crown yet it made the person so named the fairest candidate for it and was such a recommendation to the Estateâ— or great Council of the Kingdom as they never passed by or denied as I can ever find by the best inquiry I have made and for proof of this I shall appeal to the Testament of K. Alfred as you will find it Printed from an Ancient Manuscript in the second Appendix to his Life in Latine publisht at Oxford Which begins thus Ego Alfredus Divino munere labore ac Studio Athelredi Archiepiscopi nec non totius Westsaxoniae Nobilitatis consensu pariter assensu occidentalium Saxonum Rex quos in Testimonium meae ultimae voluntatis complementi ut sint advocati in disponendis pro salute animae meae regali electione confirmo tam de haereditate quam Deus at Principes cum senioribus Populi misericorditer ac benigne dederunt quam de haereditate quam Pater meus Aethelwulfus Rex nobis tribus fratribus delegavit viz. Aethelbaldo Aethelredo mihi ita quod qui nostrum diutius foret superstes ille totius Regni dominio congauderet c. From whence you may collect first that tho' this King in the very beginning of his Testament ascribes his obtaining the Crown not to any Hereditary Right but the consent and assent of the Nobility of West-Saxony yet he also here mentions the entail of the Crown by his Fathers Will upon his two Elder Brothers and himself successively before any of his Elder Brother's Sons who were living at the time of the making of this Testament of K. Alfred's as appears by the Will it self in which they are expresly mentioned now how could this be that he was King as well by the consent or election of the West-Saxon Nobility as by his Father's Will unless both these had been required to make him so Also Will. of Malmesbury tells us of K. Athelstan the Grandson of K. Alfred that Iussu Patris in Testamento Aethelstanus in Regem est acclamatus but in the beginning of this chapter he also tells us that Aethelstanus electus apud Regiam aulam quae vocatur Kingston Coronatus est quamvis quidem Alfredus cum factiosis suis obviare tentasset upon that pretence that Athelstan was a Bastard so that you may
happen sometimes to abuse yet I suppose no person living hath any right in that state to resist him in the Execution of it much less to call him to an account or punish him for the Male-administration of his Power And you have granted that the Husband in the state of Nature hath a power of life and death over his Wife if she murthers her Children or commits any other abominable sin against Nature and that then she may be justly cut off from the Family and punish'd as an Enemy to Mankind and so certainly may his Children too But what need I say any more of this Subject when you have not as yet answered my former Arguments concerning the absoluteness and perpetuiry of this Conjugal Subjection and that which will likewise follow from it the constant service and subjection of Wives and Children to their Fathers in the state of Nature Therefore pray Sir let us return again to that Head and let me hear what you have to object against those Reasons I have brought for it F. I beg your pardon Sir if I have not kept so close to the Point as I might have done but you may thank your self for it who brought me off from what I was going farther to say on that Head by your discourse of Passive Obedience and Non-Resistance and I know not what strange unintelligible Power of Life and Death conferred by God on Adam as a Husband and a Father But first give me leave farther to prove that this subjection of the Wife is neither absolute nor irrevocable For proof of which I shall lay down these Principles 1. That the Wife in the State of Nature when she submits her self to the power of her Husband does it to live as happily as she did before oâ— rather to enjoy more of the comforts of life than in a single State 2. That therefore she did not renounce either her own happiness or Self-preservation 3. Neither did she make him the sole and absolute Judg of the means that may conduce to these ends for if this were so let him use her never so cruelly or severely she could have no cause to censure him or complain in the least against him 4. If she have not so absolutely given up her Will to his she is still Judge when she is well used by him or else so cruelly that it is no longer to be endured And therefore if such a Husband will not allow his Wife sufficient Food and Raiment and other necessaries or that he uses her cruelly by beating or other punishments or hath endeavoured to take away her Life in all these cases in the State of Nature and where there is no Superior Power to complain or appeal to she may certainly quit him and I think she is not bound to return to co-habit with him again until she is satisfied he is sorry for his former cruel Treatment of her and is resolved to make amends for the future But whether this Repentance be real or not she only can be Judge since she can only Judge of her own happiness and the means of her preservation And the end of Matrimony being for their mutual happiness and help to each other if he have broke his part of the Compact she is then so far discharged from hers and consequently in the meer state of Nature which is that we are now talking of the Vinculum Matrimonii as you Civilians term it will be likewise dissolved So likewise such a Husband for no just cause or crime in the Wife but only to be rid of her should endeavour to take away her life as suppose to strangle her in her sleep or the like no doubt but she may notwithstanding your Conjugal Subjection resist him by force and save her life until she can call in her Children or Family for her rescue and assistance who sure may also notwithstanding this absolute Daspotick Power you place in their Father or Master rescure her from his rage and malice whether he will or not Nay they are bound to do it unless they will be Accessaries to her Murther M. These are doubtful Cases at best and do very seldom happen and a Husband can scarce ever be supposed to be so wicked as to hate and destroy his own Flesh and therefore we need not make Laws on purpose for Cases that so rarely happen F. Rarely happen I see you are not very conversant at the Old Bayly nor at our Countrey Assizes where if you please to come you may often hear of Cases of this Nature and I wonder you that are a Civilian and have so many Matrimonial Causes in your Spiritual Courts brought by Wives for Separation propter Saevitiam c. Should doubt whether Husbands do often use their Wives so ill that it is not to be endured But if the Wife have these Privileges pray tell me why the Children shall not have the same according to your own Maxime of partus Sequitur Ventrem since the Subjection of Children must be according to your own Principles of the same natere with that of the Mother and then pray what becomes of this absolute and perpetual Subjection you talk of M. Yet I hope you will not affirm but that Children are under higher obligations of Duty and Obedience to their Father than a Wife is to her Husband with whom perhaps she may in some cases be upon equal terms but Children can never be so in respect of their Father to whom they are always inferior and ought to be absolutely Subject in the state of Nature that is before Civil Laws have restrained Paternal Power F. I thank you Sir for bringing me so naturally to the other Head I was coming to and I agree with you in your other Maxim of Quicquid ex me â—xore mea nascitur in potestate mea est yet not in your sense For iâ— I should grant that the Father's Power over the Child commences from his Power over the Mother by her becoming his Wife and submitting her self and consequently all the issue that should be begotten of her to her Husband's Power yet as I have proved already in case of the Wife so I think I may affirm the same in that of the Children That they are not deliver'd by God so absolutely to the Father's Will or disposal as that they have no Right when they attain to years of Discretion to seek their own happiness and preservation in another place in case the Father uses them as Slaves or else goes about to take away their Lives without any just cause since when Children are at those years I think they are by the Laws of Nature sufficient Judges of their own happiness or misery that is whether they are well or ill used and whether their Lives are in danger or not by their Father's Cruelty For tho' I grant that Children considered as such are always inferior to their Parents yet I must likewise affirm that in another respect as they are men and
S. P. P. Advertisement TO THE READER THE Author of these Discourses hopes you will be so charitable as to believe that tho' he hath made one of his Disputants argue pretty stifly against the Divine Right of Monarchy and Succession to Crowns yet He is no Common-wealths-man or one who hereby designs or desires Alterations in the Government of this Nation either of Church or State since none can admire their Excellent Constitution more than himself much less does he prefer an Elective before an Hereditary Succession to Crowns since he justly esteems the latter as being a most Excellent if not Only Means to prevent all Disputes and Civil Disturbances about Succession and therefore is never to be departed from unless when some Natural or Moral Disability in the Person or other unavoidable necessity renders it absolutely inconsistent with the Publick Peace and Safety of the Kingdom Therefore as a Man may be said to be truly devout without Superstition which is but the Corruption or Abuse of Religion so the Author likewise thinks that a Subject may be truly Loyal and Obedient to his Prince tho' he hath never heard of or does not believe any Divine Right of Monarchy derived from Adam and Noah or of Succession from God's Promise that Cain should Rule over Abel Nor hath the Author an Aversion to Absolute Monarchy as such could he be assured that Princes would be always as wise and good as they ought to be nay he owns that divers Nations have never been more happy than under the Government of such Monarchs As the Roman Empire For instance never arrived to a greater heighth of Riches and Power if we may believe Historians than under Nerva Trajan and the two Antonines So that indeed the fault is not in Absolute Monarchy as such but in the too general Corruption of Humane Nature which rarely produces Persons of just Abilities both as to Wisdom and Goodness fit for so great a Trust. I confess Subjects may be sufficiently happy and if they please contented under any Form of Government where the Governours are of Equal Capacity and Honesty and have a real hearty Love and Concern for the Common Good of their People But where these are wanting it is not meer Forms or empty Names can make them so and therefore the Author very justly admires the Wisdom of the Antient German and Gothick Nations who preferred a Limited Monarchy to all other Forms of Government as an Excellent Medium between the Mischiefs of Arbitrary Power and those unhappy Inconveniences that attend Republicks where either the Common People or Nobility must govern But the Author farther hopes that tho' he makes one of his Disputants in this Dialogue to shew the absurdity and fatal consequences of Sir R. F's Principles yet the Reader will not from thence infer that he passes an absolute Iudgment against them much less hath He done this out of any prejudice to Sir R's Person which he never was acquainted with since he hath rather an honour for his Memory his Writings speaking him as a Person of Gentile Learning and subtle Ingenuity But whether his Tenets be destructive to the Fundamental Constitutions of this Government the Author submits to the Reader 's considerate Iudgment which he hopes will be made without partiality or any prejudicate Opinion proceeding from this or that Party or Faction and will determine according to the Merits of the Cause and therein observe the Apostles Rule to try all things and hold fast that which is good The Author lastly desires the Reader not to think the worse of this performance tho' all the Latine Quotations are not Englisht for since these Discourses are supposed to be between Gentlemen and Scholars and principally intended for such it would be thought needless to translate them THE Second Dialogue BETWEEN Mr. FREEMAN a Gentleman AND Mr. MEANWELL a Civilian M. YOU are I see Sir a punctual man to your hour Pray do me the favour to sit down by the Fire I will but make an end of what I am writing and wait on you presently F. Your Servant Sir take your own time but pray remember the point you are now to satisfie me in M. Now Sir I have done and if I remember right I am to derive a Title to all the Kings and Monarchs that have ever been or shall be in the World from that Supream Fatherly Power conferred by God on Adam But pray take notice I undertake this Task only for Monarchies not Common-Wealths whom I must own to be of meer Humane Invention And tho' I will not say that they are absolutely unlawful yet I think they are not the Powers ordained by God in Scripture F. Well Sir we will discourse farther of that anon and therefore I do assure you I do not desire any more of you now than that you should prove the Divine Institution of Monarchy and I think that task sufficient if it can be made out in one or two meetings M. It may seem indeed somewhat absurd to maintain that all Kings are now the Fathers of their People since you 'll say experience shews the contrary It is true all Kings are not now the Natural Parents of their Subjects yet they all either are or are to be reputed the next Heirs to those Primogenitors who were at the first the Natural Parents of the whole People and do in their right succeed to the exercise of the Supream Jurisdiction and such Heirs are not only Lords of their own Children but also of their Brethren and all others that were subject to their Fathers and therefore I suppose that God when he conferred this Supream Power on Adam did not intend it should die with him but descend to his Heirs after his Decease F. Well I shall at present grant you all this likewise tho' it might be questioned But pray who were those Heirs many or but one Person M. I suppose you will also grant me at present what we before disputed that the Power of Fathers over their Children being the Fountain of all Regal Authority by the Ordination of God himself it follows that Civil Power not only in General is by Divine Institution but even the assignment of it specifically to the eldest Parents F. Pray whom do you mean by Eldest Parents our Great Grandmother 〈…〉 if you mean by it one that had longest had Children she must come in as next Heir by these words M. No Sir you altogether misapprehend me I mean the Eldest Son of Adam Eve was his Wife and could have nothing to do to inherit in an Hereditary Monarchy as this was F. 〈…〉 your pardon Sir if I misunderstood you but you must thank the loosness or impropriety of your expression for it for I suppose you cannot deny but Eldest Parents commonly signifie either the Eldest men or Women that have Children or those who have longest had Issue and then in either of these senses our Great Grand-Mother Eve stood fairest to be Heir
to Govern all Mankind when in a little time it became so multiplied and dispersed over the Face of the Earth and the Languages so confounded by the Act or Will of God that it was impossible for the Three Elder Sons of these three great Patriarchs to govern them But during the Life of Noah we do not read that any of his Children or Descendants withdrew themselves from him without his leave but rather the contrary for it is said The whole Earth was of one Language and of one Speech and it came to pass as they journeyed from the East that they found a Plain in the Land of Shinar c By which words it appears they kept well enough together and the very reason why they began to build the Tower was left said they We should be scattered abroad upon the Face of the whole Earth So that there was no disunion amongst them nor so much as a desire of it whilst Noah lived F. I pray give me leave to answer what you have said concerning this Distribution of the Earth by Noah's last Will and also his making all his Sons Lords or Monarchs alike both which favour so strongly of the Rabbinical Liberty of Invention that I wonder how any Learned Man can believe such idle Stories especially when the Scripture and the most Antient Histories and Records that are extant in the World mention no such thing and tho' Iosâ—phus may in the place you have cited suppose that every one of the Patriarchs he mentions were Princes or Monarchs yet he doth not say any thing like it concerning the Three Sons of Noah's being Monarchs or of this Partition of the Earth between them but maketh them to live together in those Mountainous parts till they descended from thence into the Plain so that it was impossible for Noah to make a Distribution of those parts of the Earth which were not yet discovered and it is apparent by the Scripture it self that a considerable time after Noah's Death all Mankind lived together and therefore there was no impossibility as you suppose why Noah's Eldest Son could not have commanded his Brethren and their Descendants they being not as yet dispersed or separated from each other as you may see by the first Verses of 〈…〉 of Genesis which you cited but now So that if Noah's Eldest Son was disinherited of his Right of Governing his Brethren and their Descendants that could not be the cause of it which you assign and if Primogeniture be a Divine Right appointed by God himself and unalterable by Humane Laws as you suppose I cannot see how the Will of a Father which is but a Humane Institution can ever alter it For I remember you laid it down as a Maxim at our last meeting That the Divine Right of the Right Heir never dies can be lost or taken away so that if there hath been any such thing as a Divine Right of Primogeniture belonging to the Eldest Son of Noah it is not likely that he would have permitted his two Brothers to have usurped it from him M. I shall not insist longer on this Tradition concerning the Distribution of the Earth amongst the Sons of Noah but certainly it is not a thing to be made so slight of as you do since Cedrenus a Modern Greek Historian is very particular in it besides so many other Learned Men and the great Selden among the rest have given countenance to it And tho' I grant that Primogeniture is of Divine Right yet that might very well be altered by Noah's Will especially since his Children might be satisfied that he being a Prophet and Preacher of Righteousness might make this Division of his Paternal Power by a Divine Command But I shall not dwell longer upon this but proceed to the next Period of Time viz. that of the Confusion and Dispersion of Tongues in which there are more evident Footsteps of this Right of Primogeniture as also of the Patriarchal Power I maintain And therefore pray turn to the 10th of Genesis and there you will find after the Recital of the Genealogy of every one of the Sons of Noah whose Desâ—endants are there particularly set down these words in the fifth verse By these were the Isles of the Gentiles divided in their Lands every one after his Tongue after their Families in their Nations And likewise in the 20th verse These are the Sons of Ham after their Families after their Tongues in their Countreys and in their Nations And in the last verse These are the Families of the Sons of Noah and their Generations in their Nations and by these were the Nations divided in the Earth after the Flood So that if we consider the first Plantations of the World which were after the Building of Babel and the Confusion of Tongues we may find the Division of the Earth into distinct Kingdoms or Nations by several Families and Languages whereof the Sons or Grand-children of Noah were the Kings or Governours by a Fatherly Right And for the preservation of this Power and Right in these Fathers God was pleased upon several Families to bestow a Language on each by it self the better to unite it into a Nation or Kingdom So that it becoming impossible as I said before for the Elder Sons or Descendants of these Three great Patriarchs to Govern all Mankind who now no longer understood each other's Language it was absolutely necessary that the Heads of the several Families should take that care upon them and their Children submit to them wherein they had the direction of God Almighty who had commanded them to obey their Parents and a miraculous declaration of his Will for their Dispersion by the confounding of their Language and that so ordered by God too that the Descendants of the same Person and Family spoke one Tongue was not this a declaring these Fathers Princes of these several Families and Tongues by God himself who by his Providence had thus confounded their Tongues and dispersed them by Families that they could no longer be governed by Three or Four Patriarchs but must have as many distinct Governments as there were different Tongues there being no means at present of any intercourse or correspondence one with another or with their former Governours So that however in this Confusion of Tongues by which as Iosephus supposes there were Seventy two distinct Nations erected yet were they not confused Multitudes without Heads or Governours and at liberty to chuse what Governours or Government they pleased but were so many distinct Families which had Fathers for Rulers over them of the same Speech Whereby it is manifest that even in the Confusion God was careful to preserve Fatherly Authority and Monarchical Power entire by distributing the diversity of Languages according to the diversity of Families which shews that God was still for Government and that Paternal too since it is evident that every People followed their Ancestor or Patriarch as their Prince or
a farther end than this to bless and reward a virtuous Nation or to punish a loose and degenerate Age and there cannot be a greater Blessing than a Wise and Virtuous Prince nor a greater Plague than a merciless Tyrant And therefore the Providence of God is as much concerned in setting a good or a bad Prince over any People as in rewarding or punishing them Upon this account God calls the King of Assyria the Rod of his Anger whom he raised up for the punishment of an hypocritical Nation Secondly I have already proved that by the Powers in this Text the Apostle means the Persons of Soveraign Princes and therefore according to his Doctrine those Princes who were then in Being that is the Roman Emperours were advanced by God the Powers that be that is the Princes and Emperours who now govern the World are ordained and appointed by God and that thus it is God himself tells us I have made the Earth and given it to whom it seemed meet unto me and now I have given all these Lands into the hands of Nebuchadnezzar King of Babylon my Servant This was also the Belief of the Primitive Christians under Heathen and persecuting Emperours Tertullian who wrote his Apology under Severuâ— asserts that Caesar was chosen by God and therefore that the Christians had a Peculiar Propriety in Caesar as being made Emperour by their God So likewise St. Augustine de Civitate Dei speaks to this purpose as I remember God giveth Happiness in the Kingdom of Heaven to the Godly alone But this Earthly Kingdom both to the Godly and Ungodly as it pleases him He that gave the Government to Marius gave it also to Caesar He who gave it to Augustus gave it also to Neroâ—â— He who gave it to the Vespasians Father and Son most beloved Emperours gave it also to the most cruel Domitian and not to recount the rest of them He who gave it to Constantine the Christian gave it also to the Apostate Iulian. These things without doubt the only True God governed as he pleased by Causes tho' hidden yet not unjust So likewise almost all the rest of the Fathers do own that Wicked and Tyrannical Princes are given as Punishments to the People for their Sins and so upon this account are to be endured and not resisted since it is God's Will to have it so But as for Usurpers I think I can give you a very satisfactory Answer for the most prosperous Rebel is not the higher Power while our natural Prince to whom we owe Obedience and Subjection is in being And therefore tho' such men may get the Power into their hands by God's Permission yet not by God's Ordinance and he who Resisteth them doth not Resist the Ordinance of God but the Usurpations of Men. Whereas in Hereditary Kingdoms the King never dies but the same Minute that the Natural Person of a King dies the Crown descends upon the next of Blood And therefore he who Rebelleth against the Father and murders him continues a Rebel in the Reign of the Son which commences with his Fathers Death It is otherwise indeed where none can pretend a greater Right to the Crown than the Usurper for there the Possession of Power seems to give a Right Thus many of the Roman Emperours came to the Crown by very ill means but when they were possest of it they were then the higher Powers For the Empire did not descend by Inheritance but sometimes by the Election of the Senate sometimes of the Army and sometimes by Force and Power which always draws a Consent and Submission after it And therefore the Apostle doth not direct the Christians to inquire by what Title the Emperours held their Crowns but commands them to submit to those who had the Power in their hands For the Possession of the Supream and Soveraign Power is Title enough when there is no better Title to oppose against it for then we must presume that God gives him the Irresistible Authority of a King to whom he gives an Irresistible Power which is the only means whereby Monarchies and Empires are transferred from one Nation to another There are two Examples in Scripture which manifestly confirm what I have now said The first is in the Kingdom of Israel after the Ten Tribes had divided from the Tribe of Iudah and the Family of David where God had not entailed the Kingdom upon any certain Family For after Ieroboam the first King it is plain by the Story in the Books of Kings and Chronicles that for some Successions there was nothing but Rebellion and the Murder of one King by another so that the Kingdom rarely descended from the Father to the Son and in the whole Succession of these Kings it only remained in the House of Ieâ—u for four Generations and then it returned to its former uncertainty as you may see in the 15 th Chap. of the 2 d. of Kings All which plainly shews that where there is no regular Succession to a Kingdom there Possession of Power makes a King who yet cannot afterwards be resisted and opposed without the Guilt of Treason And this was the Case of the Roman Empire at the Writing of this Epistle And therefore the Apostle might then very well say that the Powers that be are ordained of God and that whoever had the Supream Power in his hands was the Supream Power that might not be resisted But it was otherwise in the Kingdom of Iudah which God himself had entailed on David's Family as appears from the Examples of Ioash and Athaliah which we discoursed of at our last meeting but one which Examples plainly shew that no Usurpations can extinguish the Right and Title of a Natural or Hereditary Prince such Usurpers tho' they have the Possession of the Supream Power yet they have no Right to it and tho' God for wise Reasons may sometimes permit such Usurpations yet whilst his Providence secures the Persons of such deposed and banished Princes from Violence he secures their Title too But to prove more plainly that no Resistance is to be made against the Persons or Authorities of the Supream Powers let them be never so Cruel and Tyrannical as it is evident not only from what St. Paul hath here written but I shall crave leave to insist farther on that Text of St. Peter before cited in his 1 st Epistle 2 d. Chap. Submit your selves to every Ordinance of Man for the Lords sake whether it be to the King as Supream or unto Governours as unto them that are sent by him for the punishment of Evil Doers and for the Praise of them that do well where by Ordinance of Man whether we understand as some do every Human Law or with others more justly 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 every human Creature as it is in the Original that is every man endued with Supream Power it comes all to the same sense and the King as the
that they should have timely notice that they might give their advice in it as also that they might either come or stay away according to the greatness or urgency of the occasion and might also give their Under-Tenants notice to provide themselves with Horses and Arms and all things necessary in case a War should be agreed on which I think are sufficient reasons for thus expressing the Causes of their Meeting in the Writs of Summons M. Admit this were so which I shall yet take further time to consider of pray tell me in the next place if all your inferiour Barons Vavasors or Lords of Manours c. supposing them either to have appeared in Person or else as chosen for Knights of Shires or else as Citizens and Burgesses who were the Members of the great Council of the Nation I pray tell me why there should not have been the same care taken that they might be also Summoned as well as the Tenants in Capite certainly they came not to them by instinct nor is it scarce probable that they would leave their Country busineâ—s to Travel from one remote part of England to another to these great Councils which seldom continued above three or four days if they had had a Right so to do F. I shall answer you in few words because it was not at all necessary to express that Clause you mention for them all Since it was sufficient therein to follow the old Course of Summoning the Common Council of the Kingdom for doing which it had always been the Custom to give sufficient Notice by Writs of Summons of their Meetings whereas in this Council of Tenants in Capite Since there was by this Charter some alteration in the manner of their Summoning so there was also for expressing the cause of their Meeting For whereas before that as the Dr. himself allows all the Lesser Tenants in Capite had particular Letters or Writs of Summons expressing the Cause of their Meeting they were for the future to be Summoned by general Writs directed to the Sheriffs and therefore it was but reason that there should be a particular Clause reserved for their general Summoning which there was no need of in those Writs that were Issued for the summoning therest of the People or Commons to the great Council or Parliament as I doubt not but it would appear in case we had those Writs to produce in which likewise there was anciently often exprest the particular cause of their Meeting as there was for instance in those famous Writs to the Lords and Commons of the 49. Hen. III. which the Dr. hath given us in his answer to Mr. P. M. But I have still a greater objection behind than either of the former You cannot deny but that by the first clause of King Iohn's Charter which I have made use of all Aids and Escuages were to be imposed by the Common Council of the Kingdom and Littleton himself tells us in the second Book of his Tenures That Escuage is always to be Assâ—ssed by Parliament upon those that failed to do their Services after the Expedition was ended Now if this had not been a Right Inherent to the Great or Common Council of the Kingdom but that the Tenants in Capite alone assessed it in King Iohn's time how came they to lose that Priviledge and the great Council of the Kingdom or Parliament to get it if the former had not been the only great Council at the first F. I hope to give you as satisfactory an answer to this as I have to the rest of your Demands This alteration might have fallen out two ways either according to Camdens old Manuscript Author cited in his Introdâ—ction to his Britania the Summ of which is that when King Henry III. after his great Wars with Sim. Momford and the Barons had Ruined many of them he out of so great a Multitude which was before Seditious and Turbulent called the best and chiefest of them only by Writ to Parliament who after that time became Barons by Writ and not by Tenure as they were before And as for the lâ—sser sort of them called â—â—ones Minores they might be wholly resolv'd into the Body of the Commons or ordinary sort of â—ree-holders and the King being fearful of any farther encrease of Power in these Barons and Tenants in Capite might no more desire their Company at the usual Feasts of the Year whither before they used to come ex more and so their Power fell of course to the Council or Parliament of which before they only made a part Or else it might happen from the negligence of the Tenants in Capite themselves who growing weary of their Attendance might neglect to come to those Councils because of the great trouble and charge of those Journeys and the King being as willing to dispense with their Presence this Court was lost by Non-usage and so the judicial part of it remained in the House of Peers and that of Assessing Escuage and advising and giving Aids in matters of War fell wholly to the great Council of the Kingdom of which these Tenants in Capite by their being capable of being Elected Knights of Shires soon became the Principal Members But admit I should take this Council for Assessing Escuages for the Comâ—on Council of the Kingdom pray give me leave to ask you one or two Questions likewise in my turn Pray tell me therefore if this Council had been such as you would have it to what purpose is there a full Stop in all the old Coppies at the end of this Clause ad babendum Commune Concilium legâ—l de Scutagiis assidendis aliâ—er quam in tribus Casibus praelictis and why â—ould the next Clause begin with de Scutagiis assidendis submoneri faciâ—â—us 〈◊〉 if they had been both one and the same Councils Since it had been easier to put it all under one Clause If the matters therâ— Treated of had been the 〈◊〉 In the next place pray tell me if this were the great Council of the Kingdom or Parliament as it is now called why are there no other Rights or Priviledges reserved to this Council but this of Assesing Escuage Were not the Powers of granting other Taxes which could not be included under the word Escuages and also of giving their Assent to Laws things of as great say greater moment than this of Assessing Escuage M. I shall give you as short and satisfactory an answer as I can to those Queries In the first place I will not deny but that both the Clauses you mention might have been contracted into one supposing them to be read without any full stop between them as Sir H. Spellman in his Glossary supposes them to be But what is this to the purpose Must these therefore be two distinct Councils because the Charter it self words them a little more loosely than it needed to have done And as for your next Query there was no
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
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
also the ancient year Books or Reports of cases all written in Norman French even in our own age so that since this proceeded from that great alteration which the Conqueror made in our Laws it is also a badge of that yoak which he imposed upon the Nation by his Conquest and to make this yet more plain that very Copy of K. Edward the Confessors Laws is in old Norman French which together with K. William's Additions to them Ingulph tells us he brought down with him to his Monastery and which he has inserted into his History as you may find them in the last Edition Printed at Oxford and were before published by Mr. Seldâ—n in his Notes upon Eadmerus F. I cannot deny but that some part of the matter of fact to be as you have here laid down yet it will not follow that this common use of the French Tongue in our Reports and Laws did proceed from the Norman Conquest or is any badge of Conquest for first the most Ancient Laws of K. William which we find in Spelman and Lambert's Collections are in Latine as they were before the pretended Conquest I grant indeed those you mention in Ingulph are in French but they being most of them criminal or penal laws or else concerning Tenures it is no wonder that they were publisht in the Language of his Country that the Normans and other Frenchmen he brought over with him might understand them and tho' they were written in French yet they were proclaimed in the English Tongue that the English as well as Normans might take notice of them but after these Laws you will not find any ancient Charter or Statute in French till the Statute of West I. which was above 200 years after your pretended Conquest for all the Charters of this K. William are in Latine or Saxon as that particularly granted by him to the City of London so likewise were all the Ancient Charters and Laws of the other succeeding Kings as those of K. William Rufus Henry I. Henry II. King Stephen Richard I. are all in Latine or Saxon and none of them in French as appears by several of them still to be seen in the Arch-bishops Library at Lambeth and in Sir Robert Cotton's and also Magna Charta and all other Statutes and Charters of K. Iohn and Henry the third till the Statute of West I. above mentioned and therefore it is not likely that this custom should have taken its original from Normandy for if it had it would have been begun immediately after your Conquest and as for our Law Books tho' I grant those you mentioned to be written in French yet is it not the Norman French since it differs very much from the Language in which K. Edward's Laws are written which are in Ingulph the French of which is so obsolete and obscure that he that understands our Law French very well can scarcely make any sense of them but our first Writers concerning the Laws of England writ in Latine and not in French as you may see by Glanvil Bracton and Fletâ— who writ before Horn's Mirrour of Justices or Britton's Treatise of the Laws of England As for your Books and Reports I grant they are in French but that this custom was not derived from Normandy is also as certain since the first Reports we have begin with the first year of Edward the second except some few Memorandums of cases aâ—judged in the Exchequer in the Reign of his Father above 200 years after K Wâ—lliam's coming in as I but now noted nor could they be writ in the Norman dialect since we had then nothing to do in that Dutchy which had been Conquered by the French in the beginning of K. Iohn's Reign above eighty years before any Report or Law book was writ in French at all and therefore we must ascribe the original of this custom to some other cause than the meer will and pleasure of your Conqueror and for this we must go as high as the Reign of K. Edward the Confessor who as Ingulph tells us having lived long in Normandy and bringing over divers Normans with him the whole Nation began under this K. to forsake the English customs and to imitate the French manners in many things so that all great men looked upon it as a piece of good breeding to speak French in their Houses and to make their Deeds and Charters after the French manner so that it was very easie for K. William after his coming in who as Ingulph also tells us abhorred the English Tongue to make the Laws of the Land to be pleaded in the French Tongue and to make the Boys to learn at School the first rudiments of their Grammer in French and also the Saxon or English hand to be altered and the French hand to come in use in all Books and Writings and tho' I confess most of the chief Justices and Judges were Frenchmen or Normans during the three or four first Kings of that Race yet that alone could not have caused this Tongue to be so generally used not only in the Kings Court but also in all the Courts at Westminster after Englishmen began again to sit there had it not been for the Tacite consent not only of the King and People of Quality but also of the Lawyers themselves for the Law Terms being for the most part French they did not only thereby make the Law the greater mystery to the Vulgar but they also supposed that these Terms being French could not be rendered into any other Language but for all that it had been impossible for this Tongue which was spoke by so small a number of Persons in respect of the whole Nation to have prevailed so long among the better sort of People had not our Kings for many Ages enjoyed large Territories in France which occasioning their frequent going over thither about affairs of War or Peace as also the French Gentry and Nobilities frequent coming over hither it is no wonder if that Tongue being the Language of the Court was generally understood and spoken by all Noblemen Gentlemen and Lawyers so that I have heard it from a very good hand a person who is very well versed in Antiquity that a Gentleman being returned on a Jâ—ry in the Reign of Edward II. was excepted against because he did not understand French and hence it is that not only the Terms of our Law but also those of Heraldry Hawking and Hunting are almost all French to this day and tho' by the Statute of Edward the third which you but now mentioned all Pleas should be in English and not in French yet I desire you to take notice that this did no way extend to any matters of Process upon which suits are founded but that the Writs Declarations and all other matters of Record were always entered and enrolled in Latine from before the Conquest to this very day so that there was never any alteration as to that point these
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
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