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
destrain for the Escuage so Assessed by Parliament or in some Cases they may have the King 's Writ directed to the Sheriffs of the same County c. to Lâ—vy such Escuages for them as appears by the Register But if either King Iohn or King Hen. III. granted Writs to levy Escuage upon the under-Tenants of the great Lords and Tenants in Capite without their own Consent in Parliament this ought to be no more cited as a Precedent than any other illegal Acts committed by those Kings since as our Records and Histories tell us it was such illegal Proceedings which were the cause of the Barons Wars And it is expresly against the words of this Charter of King Iohn which you have now quoted viz. nullum Seâ—â—agium vel Auxilium pâ—nam in Regno nostro nisi per Commune Consilium Regni nostri So that notwithstanding all you have yet said it doth not appear to me how Scutage when given as a Tax upon Knights â—ees alone and to be levyed not only from the Tenants in Capite themselves but their under-Tenants as also from the Tenants of them who though they held in Capite yet held not by Knights Service such as were the Tenants in Peâ—â—y Serjeanty and those who held of the King in Chief as of several Honors and not of hiâ— Crown as in Capite could ever charge such Tenants without their Consentâ— given either by themselves or their lawful Representatives much less could your Tenants in Capite Tax or Charge such as did not hold in Capite themselves viz. Those Abbots and Priors who held Lands in Right of their Monasteries in Franc Almâ—igne and who together with their Tenants made at least two third parts of all the Abby-Lands in England as also Tax'd those who not holding by Knights Service at all but by Tenure in Socage or Fee Farm did not hold their Lands as Knights Fees and therefore could never be Taxed by your Tenants in Capite for so many Knights Fees or parts thereof And Braecton who lived at this very time has distinguish'd to no purpose between those Common Services which all Tenants owe their Lords and the general Taxes or Charges imposed by the Common Consent of the whole Kingdom The words are very remarkable pray read them Sunt quaedam Communâ—s praestationes quae servâ—cis non diâ—uâ—iâ—â— nec de consuâ—tudine venâ—um nisi cum necessitaâ— intervenerit vel cum Rex venorit sicut sunt Hidagia Corraagâ—â— Carvagia alia plura de necessitate ex consensu Communi torius Regni introducta quae ad Dominum feâ—di non pertinent And therefore I cannot see any Reason why the great Lords and Tenants in Capite should ever have Power to lay a general Tax upon the whole Kingdom not the tenth part of which did then hold of them by Knights Service So that nothing seems plainer to me than that there was us our ancient Historians tell us a distinct Court which was held anciently three times every year viz. at Easter Whitsuntide and Christmas and then the King was attended by all the Bishops great Lords and other Tenants in Capite and this was called Curis or Concilium Regis and if any difference of Right did arise between the King and his Tenants or between Tenant and Tenant here it was to be heard and determined and many other things were there uâ—ted and done in relation to the King's Barons or Tenants in Capite only But under Favour this was not the Commune Consillum Regni or Parliament as we now call it for the King held this Court ex More or by Custom without any Summons as Simon of Durham and Florence of Worcester and divers other Writers of the Lives of our first Norman Kings do shew us But when they take notice of the meeting of the Commune Consilium totius Regni their Expressions after and then they say that Rex ascivi as it is in Ordericus Vitalis Ex praecepro Regn convenerunt or as Eâ—â—merus Rex Sanctione sua adunavit And Mat. Westminster of later times takes notice of this Union or Meeting of this Câ—ria or Assembly of Tenants in Capit together with the Great Council or Parliament in his History of Hen. III. Where relating how the King again confirmed the Great Charter in a Parliament Anno Domini 1252. being the 37 th of his Reign He hath these words In quindenâ— Paschae Adunato Magno Parliamento c. So that it seems plain to me that this uniting of the great or whole Parliament must be understood the Conjunction of both Councils together and therefore when this Council of Tenants in Capite that thus met ex more took upon them assess Escuage and transact other matters of consequence without the consent of the major part of the Tenants in Capite who often failed to appear at these Courts or Assemblâ—es held ex more it was then and not before expresly provided by this Charter of King Iohn that Escuage should not be assessed for the future without Summons or Notice given of it to all the Tenants in Capite who had right to be there M. I see you would fain prove that there was a Council or Assembly of great Lords and Tenants in Capite distinct from the Parliament and which met ex more and that these were the Persons who were by this Charter to Assemble for the Assessing of Escuage which is a meer precarious Hypothesis nor can you or those from whom you borrow this Notion make it out from any good Authority for I have already proved that the Barones Regis Regni were the same Persons and that usually the Barons or Tenants in Capite of what Quality soever did repair to the King's Court at Christmas Easter and Whitsunday doth appear to have been the Custom of those times from the Testimonies of our ancient Historians But to prove by examples out of the Authors you your self have made use of that the Bishops great Barons and Tenants in Capite were then alone the great Council of the Kingdom pray read Eadmerus speaking thus Celebratum est Concilium in Ecclesiâ Beati Peiri in occidentali parâ—e juxta Lâ—nâ—inum sita Communi Consensâ—â— Episcoporum Abbatum Principum totius Regni buiâ— Conventui assuerunt Primates Regni utriuâ—que ondinis And at this Meeting were present the Prime Men of the whole Kingdom of both Orders in this Council the Bishops and Barons are called the Principal or Chief Men of the Kingdom yet these were all the King's Barons they all held of him in Capite and so did all the Chief Men of the Kingdom So likewise in another Meeting under this King Hen. â— when Arch-Bishop Anselm was to give his Answer to the King according â—o the Advice of the Bishops and chief Men of the Kingdom The same Author tells us of Anselm that in Pascha ad Curiam venit Communis Concilii vocem unam
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
Supream Power and his Ministers or Officers as Powers subordinate to him and acting by his Commission are to be submitted to and obeyed as much as himself And it had been in vain for St. Peter to have concluded this Exhortation with Fear God and Honour the King if he had allowed it Lawful in any Case to resist him since certainly no Man can Honour him whom he Resists and that this is a Doctrine everlastingly true appears by the time in which St. Peter and St. Paul wrote these Epistles which was either under the Reigns of Claudius or Nero and I suppose you will hardly meet with two worse Men or more cruel Tyrants in all the Catalogue of Emperours Since the former committed many wicked and Cruel things by his Freed-men and Officers and also banished the Iews and Christians together with them from Rome And the latter is so notorious for his Cruelty and Persecution of the Christians that his Name passes into a Proverb And yet these were the Higher Powers to whom the Apostles commanded them to be Subject From whence you may see your Errour in interpreting the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to signifie just and Lawful Authority whereas it plainly signifieth in this place the Men vested with this Authority howsoever Tyrannically they abuse it F. You have made a pretty long reply and I have heard it patiently because I confess that on this depends the whole Controversie between us and therefore I shall beg that you would hear me with the like Patience because what you have now said I grant to be of that weight as to require a large as well as a considerable Reply And therefore I shall make bold to consider the last part of your speech in the first place because I can soonest dispatch it As for your Argument that we ought to be Subject to the most Tyrannical Governours without any Resistance because Claudius or Nero whom you suppose to be cruel Tyrants then governed the Empire and persecuted the Christians In Answer to this I must tell you that if you please better to consider of it you will find it very doubtful whether St. Paul wrote this Epistle to the Romans during the Reigns of Claudius or Nero. The Learned Monsieur Capel in his Discourse which he hath written on purpose concerning the time of the writing of this Epistle proves this Epistle to the Romans to have been written during the latter End of the Reign of Claudius But those Learned Men who will have it written during the Reign of Nero do all agree that it was in the beginning of it within the first five years when the Administration of Affairs was under the Ministry of Seneca and Burrhus and when the Government of the Empire was most just and moderate and divers years before ever Nero burnt the City or persecuted the Christians and did so many extravagant Cruel and Tyrannical Actions as forced the Senate to declare him the Enemy of Mankind But as for Claudius he never persecuted the Christians at all as I know of M. I pray Sir give me leave to interrupt you a little Did not Claudius persecute the Christians when under the Notion of Iews he banished them from Rome as appears by Acts the eighteenth when Aquila and Priscilla were forced to quit Italy and come into Greece because of that Edict And yet it was this very Claudius to whom St. Peter if not St. Paul doth require all Men to be Subject without any Resistance F. I think this difficulty will easily be answered for in the first place tho' I grant that Claudius towards the latter End of his Reign banished the Iews from Rome yet did he not banish the Christians from thence as we know of any otherwise than as they were Iews by Nation and upon this account it was that Aquila being a Iew by Birth was forced to quit Rome with the rest but neither Suetonius nor any other Author tell us that he likewise banished the Christians tho' I know indeed there are some learned Men that would interpret this Passage in the former Author in his life of Claudius Iudaeos tumultuantes impulsante Cresto Româ expulit to be meant of the Christians being expelled Rome as instigated by Christ their Prophet to Sedition But tho' I own that our Saviour was sometimes called Chrestus by the Pagans by way of contempt yet that by this Chrestus here mentioned cannot be understood our Saviour Christ is very evident for it had been very improbable for Suetonius to have made Christ who was dead above thirty years before to have excited the Iews to Sedition And therefore the Lord Primate Usher in the second Volume of his Annals with much better Reason supposes that not our Saviour but some Seditious Iew called Crestus who headed this Sedition was the Cause of the Banishment of the Iews from Rome So that this was no more a Persecution for Religion than it would have been for the Parliament in King Charles the seconds Reign during the heat of the Popish Plot to have banished all the Papists out of England upon the Account of their former Rebellions and constant Machinations to overturn the Government and Religion establisht by Law but supposing this Edict to have banished the Christians as well as Iews it had signified nothing for it was no Persecution for Religion and besides being made in the last year of Claudius it was but a temporary Edict and we find the Iews to have lived quietly at Rome in the Reign of Nero as appears by the last Chapter of the Acts. But as for Claudius's Government it was so far from being an insupportable Tyranny that there was no Prince that did take more care to do impartial Iustice according to that small Capacity he was Master of than himself And tho' I yield that by his Proconsuls Presidents and Freemen there were many Oppressions and Cruelties committed in the Provinces yet it was only against some Private Men and did not extend to the destroying and enslaving the whole Body of the People who during his Reign generally enjoyed their Liberties and Properties with as great Freedom as under any of his Predecessors And as for Nero all Ecclesiastical Historians agree that if this Epistle of St. Paul was written in his Reign it was within the first five years of it which was in his Non-age under the Administration of Seneca and Burrhus during which time all the Historians agree that the Empire was never better governed and as for the wickedness and Violence that Nero committed afterwards when he persecuted the Christians murdered his Mother his Wife and most of his best and most intimate Friends and set the City on Fire St. Paul was so far from knowing any thing of them that sure he would not have urged it to the Romans as a Reason of their Subjection to him that Rulers are not a terrour to good Works but to the Evil or that he was a Minister to them that is to
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
whole Nation as to intreat the King to admit their under-Tenants to partake of so large a share in both is so extravagant a Fancy that if it had not suited with the Doctor 's present Hypothesis he would never have asserted it in cold blood since himself affirmâ— that upon the making of King Iohn's Charter that the Earls Barons and Tenants in Capâ—â—e were the only Parties to it and that all the rest of their Tenants who were there present were only their Retinue and Tenants in Military Service which were with them at Runnemede and were hardly to be reckoned among the Freemen of the Kingdom all the rest being only Followers who helped to augment the noise and were not Law-makers for 't is not probable says the Doctor very well that those men that had the force of the Nation would permit men of small Reputation to share with them in Law-making those that had the power of this or any other Nation de Facâ—o always did give Laws and Tax the People But it seems these Great Lords and Tenants in Capite are either very stiff to maintain or else easie to give up their priviledges just as it best suits with the Doctors present occasion but the Doctor may contradict himself as much as he pleases since it is not his fault but his Hypothesis that hath lead him into it M. I confess it does seem somewhat hard at present to conceive it but we know not what reasons the Lords and Tenants in Capite might have had to desire the Concurrence of these Knights of Shires at this Juncture of time but that their coming to Parliament looks like a new Institution may farther appear from hence that the King for a good while after the introducing Knights of Shires to serve in Parliament was wont to use the liberty of Nominating the same Members of Parliament who were formerly chosen appears by a very remarkable Writ the Doctor there likewise gives us of the 28 th of the same King directed to the Sheriff of Cumberland whereby he is commanded to cause to appear at the Parliament at Lincoln on the Octive of St. Hilary the very same Knights Citizens and Burgesses who had before appeared at the last Parliament unless any of them were sick or dead From which we may collect that our Kings in those days often made use of their Prerogative of Summoning such Members to Parliament as were not then actually chosen to serve in that Parliament and for a farther confirmation of this there is still extant upon Record in the same Roll the Returns of several of the Sheriffs upon the same Writs Whereby it appears that the same Members were returned to appear in this Parliament who had before served at the precedent unless in the Case of some that were sick or dead And that our Kings had not yet a long time after lost their Prerogative of Nominating how many Knights Citizens and Burgesses they would have chosen and returned to appear in Parliament may appear by a Writ of the 45. Edw. 3. whereby one Knight for a County and one Citizen and Burgess and those too named by the King to the Sheriff were to be Summoned to appear at Winchester to do those things that are appointed in the same Writ which were likewise directed to all the Sheriffs in England and that this was a Parliament appears from hence that the Knights Citizens and Burgesses had Writs for their Expences at this Meeting at Winchester And tho in these Writs it is only expressed by these words Magnum Consilium Nosâ—rum yet from this Writ of â—ummons it is evident it did the Business of a Parliament and so no great matter for the Name F. If thâ—se be all the Arguments you have to produce against the Ancient Right of the Commons being part of the Parliament before the 18 Edw. 1. I doubt they will not be sufficient to do the business For as to this Record of the â—8 of Edw. 1. whereby the King is supposed to have had a power to cause those Knights of Shires to be returned who were Elected to serve in the Parliament before going without any new Eleâ—tion this is altogether Preâ—arâ—ouâ— for if you will but read the Writ it self and the reason of the King 's thus acting it will plainly prove the contrary For the King reâ—iteâ— in that Writ That having resolved that the Charter of Forests should be observed and that his Subjects had made a perambulation thereupon yet that he would conclude nothing in that matter without the Counsel of the Prelates Earls Barons and other Great Men and therefore desiring to hasten that business as far as he could without any delay He thereby orders him to cause to come before him to the Parliament at Lincoln the same Knights Citizeâ—n and Burgesses as were before Elected Now the King might have very good reason for it why he would rather treat with them than with any other because they had been privy to all the precedent transactions concerning this business of Forests and therfore were most likely to come to the speediest conclusion with the King in that affair as being better instructed in it than it was possible for any new Members to be who had not before been privy to the whole Affair Yet that the King never intended hereby to impose Representatives upon his People without their free Consent appears by this Clause at the end of the said Writ 〈◊〉 quâ—d Milites Câ—ves Burgenses praedicti dictis die loco nâ—â—dis omnibus interâ—ut eum plena potestate audâ—endi faciendi ea quae ibidem in praemissâ—â— ordinaeri conâ—ingent pro cummuni commodo dicti Regni Now how these Knights Citizens and Burgesses could appear in Parliament with full power of acting therein without the new Election or Confirmation at least of those whom they represented I should be very glad â—f the Doctor or your self could inform me But to come to your next Record of the 45 Edw. 3. whereby you would prove that the King in those days had a Power of appointing not only how many Citizens and Burgesses should appear in Parliament for each County but also could name the Persons that should appear therein I wonder how the Doctor could so impose upon your or his own understanding since nothing is more apparent than that this Council at Winchester to which they were Summoned was no Parliament at all but a Great Council as appears by the very words of the Writ it self which recites That whereas a Parliament lately at Westminster had given the King a Suâ—sidy of 24 sh. and 3 d. upon every Parish in England that the King being willing to be better inform'd after what manner the Levy of this Tax might be soonest performed and because it would be burthensom for all the Great Men Knights Citizens and Burgesses who came to the said Parliament to meet together again for this matter therefore he Ordained for
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
13th of Charles the Second for the Militia never intended thereby to enable or leave it in the power of that King or his Successors to make this Kingdom an absolute Despotick Monarchy instead of a limited one as they must have done had they declared that the King and those Commissioned by him might do what they pleased with the Religion Lives Liberties and Estates of the People of this Nation and that it was Treason to resist in any case whatsoever sure they could not but remember that Commission of Sir Phelim Oneals in the year 41. whereby he pretended to be impowered to drive the English Protestants out of Ireland and to set up the Popish Religion in that Kingdom and restore the Irish to their Estates and sure divers of them could not be unmindful that this was to give away all right of Self-defence in case any future King should by his own innate Tyrannical Temper or the evil Counsel of wicked men be perswaded to use Force upon the persons of the Lords and Commons either whilst they were actually sitting or in their passage to the New Houses since by this Act or Oath if understood in your sense they must have barred themselves and the whole Nation of all right of Self-defence in any case whatsoever tho' of the greatest extremity and therefore I doubt not but the intent of this Parliament was to leave things as they found them and as it was absolutely unlawful for the People of this Nation to take up Arms against the King so it is also as unlawful in him or those Commissioned by him to make War upon the People or to disseize them by force of their Religion just Rights Liberties or Estates and if the King hath a right to defend himself and his Crown and Dignity against Rebellion so must the People of this Nation have a right likewise to defend themselves against Arbitrary Power in case of an Invasion of any of the Fundamental Rights above-mentioned or else all bounds between a Limited and Despotick Power will be quite taken away and the King may make himself as absolute as the King of France or great Turk whenever he pleases M. I will not dispute with you about bare matter of fact or that a prevailing Faction might not in turbulent times and during the Reigns of weak and ill advised Princes take upon them by force of Arms to remove Evil Counsellors and to put the Government of the Kingdom in what hands they pleased and then procure Acts of Parliament to indemnifie themselves for so doing yet I cannot allow that even such Acts could make it lawful to take up Arms against the King or those Commissioned by him upon any pretence whatsoever So that tho' I grant that the intent of this Parliament of King Charles the Second was not to make any new Law against Resistance or taking up Arms against the King yet was it their design so to explain the Ancient Statute of the 25th of Edward the Third that none should for the future doubt in the least that all taking up Arms or Resistance of the King or those Commissioned by him upon any pretence whatsoever was unlawful and treasonable and for this we need go no farther than the very words of these Declarations which the Parliaments of the 12th and 13th of Charles the Second have made concerning this matter as first in the Statute of the 12th of Car. 2. Cap. 30. for attainting the Regicides that two Houses of Parliament expresly declared That by the Fundamental Laws of this Kingdom neither the Peers of this Realm nor the Commons nor both together in Parliament nor the People collectively or representatively nor any other persons whatsoever ever had hath or ought to have any Coercive Power over the persons of the Kings of this Realm Whereby not only all the Traiterous Examples of the Depositions and Imprisonments of King Edward and Richard the Second are expresly condemned but also all taking Arms to force the King to redress our grievances whether he will or not And farther that all Arms whether offensive or defensive are expresly forbid Pray mind that Clause in the Preamble to these Acts of the Militia I now mentioned wherein that Parliament expresly renounces all taking up Arms as well defensive as offensive against the King and the words of the Oath it self are yet more strict that it is not lawful upon any pretence whatsoever to take up Arms against the King Now can any thing be plainer than that all defensive Arms tho' for our Religion Lives and Liberties or whatsoever else you please are expresly declared to be against the Fundamental Laws of this Kingdom But as for the dreadful consequences of this Law if never so strictly taken they are not so bad as you are pleased to fancy for as to your instance of Sir Phelim Oneal's pretended Commission from King Charles the First you may be very well satisfied that it was a notorious piece of forgery since besides that good King 's constant denial of any such Commission granted by him Sir Phelim when he came to suffer in Ireland for raising that horrid Rebellion did voluntarily at the Gallows acknowledge that he had forged it himself by putting the Seal of an old Patent which he had by him to that pretended Commission you now mention Nor indeed can it ever enter into my head that any King should grant a Commission to destroy or make War upon his People as long as they continue in their duty to him tho' of a different Religion from himself tho' perhaps he may think fit for some reasons to disarm them or deny them the publick Exercise of their Religion or render them uncapable of bearing any Offices of publick Trust in the Kingdom but if these should be lawful Causes of Resistance why the Papists should not be allowed it as well as the Protestants I can see no reason to the contrary As for your other Instance that the Parliament by renouncing all defensive Arms must be supposed likewise to give up all right of Self-defence in case the King or any Commissioned by him should use any violence to the persons of the Lords and Commons assembled in Parliament or in going thither this is so unlikely and remote a case that it hardly comes under the consideration of a bare possibility But however let the worst that can be happen I am very well satisfied that the Parliament was then so thoroughly convinced of the Mischiefs had befallen this Nation by this Republican Doctrine of Resistance having been the cause of the destruction of the best Constituted Church and Government in the World as also of the murder of one of the best Princes that ever Reigned that they were resolved rather to trust to the Coronation Oaths and innate goodness of our present and future Kings than to suppose any War could be lawfully made against them upon any account whatsoever which would have been expresly contrary not only to
and Lord Lieutenants and if they had refused to answer positively to those questions proposed to them I know no other penalty they had been liable to more than being put out of Commission which sure is no punishment but rather an ease and tho' I do not defend those evil Ministers that put the King upon this Method of distrusting and disobliging his best Protestant Subjects I mean those of the Church of England by putting them out and putting in either Papists or Fanaticks in their steads yet all that own themselves of that Communion ought to have been of more loyal Principles than to have taken up Arms as some of them have done upon pretence of standing by the Prince of Oranges Declaration against these abuses F. I see though you cannot directly justifie the examining of the Lords Lieutenants and Deputy Lieutenants and Justices of the Peace about taking away the Penal Laws and Test and turning those out of Commission that refus'd yet you strive to mitigate it as far as you can by making it part of the Kings Prerogative to put in and out what Judges Justices and other Officers he pleases well granting this to be so yet sure you cannot deny but that the clositing of Judges and all other Officers you have now mention'd and putting those out of Commission that refus'd to comply with the Kings Will and that for no other reason was sure a strange abuse of that Prerogative and the excuse you make that the persons examin'd had a liberty to refuse whether they would give any positive answer or not is yet more trivial since it is very well known that as well those who gave doubtful answers or refused to make any answer at all were as much turned out as they who positively denied to comply with the Kings demands so that no answer was looked upon as satisfactory but such as seemed to give up all freedom of Elections and Votes in Parliament none being to be chosen by the Kings directions but such as would engage before hand to repeal the Test and Penal Laws and I think you will not deny but that the King by thus examining all these Magistrates and Officers you now mention and by turning those out that refused to comply did all he could to hinder the free Election of Members to serve in Parliament and the freedom of giving their Votes when they came thither and the King might as well another time have declar'd that he would have no Members chosen but such as would agree to take away the Statute de Tallagio non concidendo or any branch of Magna Chartâ— which he should think fit to have repeal'd and as this strikes at the very fundamental constitution of the Government viz the free Election of Parliament men so it was inserted among the Articles against Richard the II. that he had caus'd the Sheriffs to return whom he pleas'd for Knights of Shires as I have already shewed you But what say you to the Kings late calling in almost all the Charters of Cities Towns and Corporations in England and putting in Popish or Fanatick Officers and Magistrates into the rooms of those that were turn'd out only to influence Elections and to procure what persons he desired to be return'd for Parliament men is not this a grand breach of the fundamental constitution of the Kingdom thus to take away the legal Rights and Priviledges of these Corporations for no other cause than to procure the King such Parliament men as he had a mind to M. I beg your pardon I forgot to mention this sooner and though I will not take upon me absolutely to defend the Legality of it much less the design for which it was done since I grant that it was in order to destroy or at least to humble the Church of England yet since iâ— was done by colour of Law and Judgment of the Court of Kings Bench and no more than what has been formerly done in the Reign of King Charles I cannot see how the Noblemen and Gentlemen lately in Arms could defend their rising upon that ground unless they would also at the same time justifie the lawfulness of the Plot and Rebellion intended in the same Reign and in which so many of the Whig Nobility and Gentry were deeply engaged F. To answer what you have said in vindication of this great violation of one of the fundamental Rights and Liberties of the Kingdom I must in the first place tell you that as I shall not now examine into the matter of Law whether a Corporation can forfeit it's Charter for misdemeanours or not much less shall I concern my self whether it were done by or without colour of Law or the Judgment of the Court of Kings Bench since it is notoriously known that none of the Judges were permitted to sit there nor any new ones put in but such as would blindly agree to all the Court would have done and therefore I value nor any thing they did nor think it one â—ot the more legal for their Judgments nor is it any excuse that the same thing was done in King Charles Reign and therefore might as well be done now without any rising against it for though I must tell you I look upon the taking away of the Charters from the City of London and the other Cities and Corporations of the Kingdom one of the most arbitrary and illegal acts of that Kings Reign yet there were several reasons which made it unlawful for the Nation to rise then yet it might not be so now as in the first place because most of those Charters were either willingly surrender'd by the members of those Corporations or else were declared forfeited by due trial and Judgment of Law whereas it was much otherwise in this Kings Time when notwithstanding that all the Cities and Towns Corporate in England had but a few years before taken out new Charters to their great trouble and expence they were now summon'd anew to surrender these again for no other reason but because it was the Kings pleasure it should be so for who can imagine that all the Corporations of England could have forfeited their Charters in so short a time as three or four years and they were plainly told that the King must and would have them and that it was to no purpose to stand out and therefore it was no wonder if all the Cities and Corporations of England were forced to submit patiently to this violation since they found by experience the Judges were ready to give Judgment against them right or wrong And besides this I have already laid it down as a Maxime that no resistance whatever is to be made till matters become desperate and all other means are become absolutely ineffectual which I think they were not as long as King Charles lived who besides the inconstancy of his humour which seldome persisted long either in well or evil doing especially if the ill consequences of it were well laid
Rebellion for the Duke of Lancaster to take up Arms against King Richard the 2 d and to Depose him I cannot see why according to your own Principles it should not be the same crime in the Duke of York to take up Arms against King Henry the 6 th to whom he had more than once sworn Faith and Allegiance and having taken him Prisoner to call a Parliament whereby himself was declared Protector of the Kingdom and the Son of King Henry disinherited after a quiet possession in three descents during the space of above sixty years which if it will not give a thorough settlement after two Acts of Parliament to confirm it I know not what can M. I confess you have given me a more exact account of this transaction than ever I had yet and I should very much incline to be of your opinion were it not that I am satisfied that our Kings have a Right to the Crown by Gods Law as well as mans as also by the Law of Nature and that more than one Parliament have been of my opinion in this matter I shall shew you from several Statutes and Declarations of Parliament which though not Printed are yet to be seen at this day upon the Parliament Rolls for after that Henry the 6 th or rather his queen for him had broken the aforesaid solemn agreement made between this King and Duke in Parliament whereby it was accorded that if King Henry made War again upon the Duke of York he should then forfeit his present Right to the Kingdom during his Life whereupon Queen Margaret and her Son Prince Edward who would not submit to this agreement renewed the War and fighting another Battle at Wakefield the said Duke was slain but though he did not live to enjoy his right yet his Son Edward Earl of March again recovered it and having in the second Battle of St. Albans taken K. Henry Prisoner triumphantly Marching to London he there declar'd himself King and having immediately call'd a Parliament it was therein declar'd that all the proceedings against K. Richard the ad are repeal'd and the taking him Prisoner by Henry Earl of Darby was declared against his Faith and Allegiance and that with violence he had usurped upon the Royal Power and Dignity c. and that he had by cruel Tyranny Murther'd and Destroy'd the said King Richard his Liege and Soveraign Lord against Gods Law and his own Oath of Allegiance And then they proceed further to declare in these words That the Commons being of this present Parliament having sufficient and evident knowledge of the said unrightwise Usurpation and intrusion by the said Henry late Earl of Derby upon the said Crown of England knowing also certainly without doubt and ambiguity the Right and Title of our said Sovereign Lord viz. King Edward the 4 th thereunto true and that by Gods Law Mans Law and the Law of Nature he and none other is and ought to be their True Rightwise and Natural Leige and Sovereign Lord and that he was in Right from the death of the said noble and famous Prince his Father very just King of the said Realm of England and will for ever take accept and repute the said King Edward the â—ourth their Sovereign and Liege Lord and him and his Heirs to be Kings of England and none other according to the said Right and Title And that the same Henry unrightwisely against Law Conscience and the Customs of the said Realm of England Usurped upon the said Crown and that he and also Henry late call'd K. Henry the 5 th his Son and Henry Late called Henry the 6 th his Son occupy'd the Realm of England and Lordship of Ireland and exercised the Governance thereof by Unrightwise Intrusion Usurpation and no otherwise that the â—motion of Henry late called King Henry the 6 th from the Exercise Occupation Usurpation Intrusion Reign and Governance of the said Realm and Lordship done by our Sovereign Lord King Edward the 4 th was and is rightwise Lawful according to the Laws and Customs of the said Realm and so ought to be taken holden reputed and â—ccupied I have been the larger on this point because it is a full and free Declaration of the whole Parliament nor only against all past as well as future Parliaments having any thing to do in the disposal of the Crown but is also as express a Declaration as words can make against any Vacancy of the Throne upon the Death of the Predecessor and therefore I hope you will pardon me if I have been a little too tedious in reciting these Records F. I cannot blame you for being very exact in this point because the whole strength of your Cause depends upon it but yet I doubt not but to shew you that this Parliament was as much awed by King Edward's Power being now Conqueror as ever those Parliaments were that Depos'd Edward and Richard the 2 d for you your self have sufficiently set forth the manner of it that it was not till after a great Victory obtain'd against King Henry the 6 th and I never found in all my reading that a Victorious Prince ever wanted power enough to get a Parliament call'd to settle himself in the Throne and declare his Competitor an Usurper as I shall shew you more fully by and by but that this Act of Parliament which thus posiâ—ively declares Edward the 4 th to be their Sovereign Lord by God's Law Man's Law and the Law of Nature I think can no ways consist either with Scripture Reason or Matter of Fact for in first place I think I have sufficiently proved that there is no Divine Right of Succession for the Heirs of Crowns any more than of other Inheritances either by the Law of God or that of Nature and as for Man's Law I think I have here also proved that the Succession to the Crown by right of Blood alone was never establisht by any positive Law nor yet setled by any constant or interrupted Custom when this Declaration was made for the Crown had then never descended from Father to Son for above two Descents without a deposition or possessed by those who claim'd by Right of Blood without any other Title for as for the three Kings of the House of Lancaster I have already proved and your self must also own it that they could have no Title to the Crown but from the Acts of Entail of the 7 th and 8 th of Henry the 4 th above mention'd so that according to Man's Law that is Custom and also the Statute Law of this Kingdom the House of Lancaster had all that time the better Title But to shew you what uncertain things Parliaments are when King Edward the 4 th had Reign'd ten years he was driven out of the Kingdom by the Earl of Warwick's turning suddenly against him and in his absence he replaced King Henry the 6 th upon the Throne who had been all this while kept
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
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
Voluntate Precipto Domini Regis nec non â—â—â—datorum Baâ—onium ac etiam Communitatis tunc ibidem praesentium M. I think the Dr. hath given us full satisfaction as to this Record in his Answer to Mr. P. the substance of which I shall here give you in short First It is certain that at the making of this forced Peace Simon Mountford and his Faction then held the King and Prince as also Richard Earl of Cornwal the King's Brother as good as Prisoners and made them do what he pleased and he carried the King and Prince along with him until he had taken in all the strong places of the Kingdom and when he had done then he called this Parliament which could not be one in the sense it is now taken since there was none there but the Earls Barons and Heads of the Rebels which had the King and Prince in their power and as you your self set forth were the same persons that sealed it for themselves and the other Barons and the whole Community of the Kingdom of England which Community must be the Community of the Barons and Great Men or Tenants in capite by Military Service and no other for how can the Lords and Barons sign any thing for the Commons as at this day understood They did not then nor now do represent them But I shall give you another Authority to make this clearer of some years before related in Matt. Paris viz. Anno Dom. 12â—â— 42 d Hen. III. where Letters are said to be sent a Communitate Angliae to the Pope concerning Aymer de Valence Bishop Elect of Wachester the Direction is thus Sanctissimo in Christo Patri c. Communitas Comitum Procerum Magnatum Aliorumque Regni Angliae cum subjectione debita Pedum Osrâ—â—â— c. And to put the Matter beyond all doubt it is certain that these Letters were sealed by six Earls and five Barons onely vice totius Communitatis I need 〈◊〉 give you their Names since you may find them in the Author himself as also cited by the Dr. And as for H. Bigod the Chief Justice and the four Persons named after him they are proved by Sir VVilliam Dugdale in his Baronage of England to have been the Greatest Barons in the Kingdom Now pray let me ask you this Question Did these Eleven Persons all Great Earls and Barons represent the whole Commons or Community of England as at this day understood or did they represent the Community of the Barons only together with the Alios the Milites which held by Military Service of the Great Barons and the Less Tenants in capite for the whole Community here intended must be one of them take which you please you 'l lose the Cause For certainly these Great 〈◊〉 and Barons that sealed this Letter vice totius Communitatis were not chosen nor sent by the Commons to this Parliament or Meeting nor were the Commons represented as at this Day by them as you your self have already granted F. I hope I shall not need to make any long Reply to this Answer of youâ—â— or rather of your Dr.'s since it is built upon the same false Supposition with the other viz. that the Words Cum Communitate tot â Regni Angliae must always mean only the Community of the Tenants in capite which Supposition if it be false in your former Argument is also as falfe in this of the Lords and Commons too and therefore it is impertinent to repeat my Answer to it But if this were no true Parliament because Simon Mountford had then the King and Prince in his power This would likewise serve to unparliament that of the 49 th of this King from whence the Gentlemen of your Opinion date the first coming of the Commons to Parliament since the King and Prince were as much in Simon Mountford's power then as now and yet no man as I know of ever questioned the validity of it tho I cannot also omit that you pass by in this Letter the words Magnatum aliorumque Regni under which Words as I have already proved might very well be comprehended all the Knights of Shires as well as Citizens and Burgesses unless the words had run thus as they should have done to have made out your Assertion aliorumque qui de Rege Tenent in capite But to come to the main point you insist upon which is How these Great Earlâ— and Barons could seal this Form of the Peace and these Letters to the Pope in the Name of all the Commons of England Before I answer to that I pray give me leave to ask you one Question You have already allowed that the ordinary Tenants in capite of which that numerous Body chiefly consisted tho called by courtesy Barones Minores were really no Barons nor Peers of the Realm and if so were but Commoners Now pray tell me how these Great Earls and Barons you mentioned to have signed this Peace and this Letter to the Pope could put their Seals for those who were no Barons themselves by your own confession and you cannot say they represented them for they were as good Tenants in capite as the Greatest Lords But if you say they did it by their order and consent pray why might not these Great Lords or Barons as well do the like for the Knights of Shires and Burgesses by their appointment Since I have already proved that the Lords did act thus in the Letters which were sent to the Pope concerning the Business of Scotland And besides I must here observe that the Dr. and you do not deal fairly with your Adversaries in citing this Authority of the Lords and Barons signing these Letters to the Pope Vice tâ—tius Communitatâ—s Angliae since I acknowledge in this place the Word Communitas being put alone doth mean no more than the Community of the whole Kingdom But in the Authority I have quoted it is put after the Earls and Barons and so then must mean the whole Commonalty or Body of the Commons in the Sense they are now taken and as it hath been always used in French as well as in Latin when it comes after the Earls and Barons as I have already noted And for this pray see the Stat. of Westm. I. made 3 d Edw. I. but eleven years after the 49 th of Hen. III. Per l'assâ—ntments des Aechievesques Evesques Abbes Priors Counts Barons tout le Comminalty de la terre illonques summones Which Phrase I can shew you to have continued the same in most of our French Statutes during the Reign of this King and all his Successors in many Records and Acts of Parliament whilst they were writ in Latin or French which I shall omit reciting because I suppose you your self will allow it I have a great deal more to say concerning the true sense of the Words Communitas le Commune le Communalty which because it is long and it now grows late I shall
and Burroughs from times beyond all Memory sent their Proxyes and Representatives to the Parliament in Scotland and that each Citizen and Burgess so sent had as good a Vote in their Parliament as the greatest Bishop or Earl of them all M. I desire no better proofs then what your self have now brought to make out that the Tenants in Capite are not only at this day but have been from the very beginning of Parliaments in that Nation For I shall appeal to those very Statutes and Records you have now cited which compared with divers subsequent Statutes of that Kingdom will make the matter plain enough that the Communitas and these probi homines mentioned in these Laws you have cited were the Community of the Tenants in Capite only In the first place therefore let me observe from that very Law of King Alexanders the Title of which you have but now quoted that these words per essenssum Communitatis cannot here signifie the Commons since they alone could neither advise nor give their consent to make Laws and therefore they must needs refer to the whole Community or Assembly of Estates consisting of Tenants in Capite only as I shall prove by a Parliament of King Rob. III. who began to Reign Anno. Dom 1400. in the 10th year of our Richard II the Title is thus Parliamentum Domini nostri Roberti III. Scotoâ—um Regis c. vocatis summonitis more solito Episcopis Prioribus Duâ—ibus Commitibus Baronibus Liberis Teâ—entibus Burgensibus qui de Domino Rege tenent in Capite and this is also confirmed from the Title to a Parliament held at Perth Anno. Dom. 1427. being the 23d of King Iames I. Summâ—nitis voâ—atis mâ—re solito Episcopis Abbatibus Prioribus Comitibus Baronibus Liberi Tâ—nentibus qui de nobis tenent in Capite de quolibet Burgo certis Buâ—genfibus so that I think nothing can be plainer from these ancient Statutes then that the Scottish Parliaments did anciently consist of no other Members then the Bishops Abbots and Priors Dukes and Earls Barons Free-holders and Burgesses which held of the King in Capite Having thus shewn the ancient Costitution of the Scotish Parliaments for your satisfaction I shall farther shew when and how it was altered In the Seventh Parliament of King Iames the First held at Perth A. Dom. 1420 there was a Law made which I shall contract That the small Barons and Freeholders need not to come to Parliaments and that for the future out of each Schirefdome there should be sent two or more wise men after the largeness of the Schirefdome the which shall be called Commissaries of the Shire and that these should have full power finally to hear and determine all causes to be proposed in the Great Council or Parliament and that the said Commissaries should have Costage of them of each Shire that ought to appear in Parliament or Council I have only given you an Abstract of this Statute because it is pretty long and pen'd in old Scotish English but you may consult it at your leisure And this is farther confirm'd by a subsequent Act of Parliament of King Iames the Sixth holden at Edinburgh Iuly the 29 th 1587 wherein after a repetition of the former Act of King Iames the First and a Confirmation of the same it follows thus And that all Freeholders of the King under the degree of Prelates and Lords of Parliament be warned by Proclamation to be present at the choosing of the said Commissioners and none to have voit in their Election but sik as hes Fourtie Shillings Land in free tenandrie halden of the King and hes their actual dwelling and residence within the same Schire c. I need give you no more of this Act but I think it is most clear from this as well as the former Act of Parliament that the Commons in Scotland were only the Kings Tenants in Capite and are so at this day since none but they can either choose or be chosen Commissioners for the Shires but as to the Buroughs who do each of them send but one Commissioner or Burgess except the City of Edinburgh which sends two all which are chosen by the Common Council of the Towns Now there are in Scotland three sorts of these Burghs that is to say Royal Burghs Burghs of Regality and Burghs of Barony but only the Royal Burroughs the Burgi Dominici Regis or qui de Rege Tenent in Capite send Commissioners to Parliament and are in number Sixty To conclude that I may apply what hath been said concerning the Constituent parts of the Scotish Parliament to ours anciently it seems to me that from the great affinity there was between ours and theirs 't is certain that our and their Communitas Regni was the same that is they were the small Barons and Tenants in Capite F. I cannot deny but that the Parliament of Scotland hath for above these two hundred years consisted of the Bishops Abbots and Temporal Lords together with the lesser Tenants in Capite or their Representatives the Commissioners for Shires and Burgesses of Cities and Towns till the Reformation that the Bishops and Abbots were quite taken away tho the former were restored to their places in Parliament by a Statute made in the latter end of King Iames the First yet I cannot allow that from the beginning of that Government the Scotch Parliaments have consisted of no other Members than those since the word Communitas coming as it does in these old Statutes and Records I have now cited immediately after the Praelati Comites Barones Milites c. must signifie a distinct order of men from the Tenants in Capite called in the Statute of King Iames the First the small Barons and since the Citizens and Burgesses though none of those Barons were also comprehended under this Communitas and whom you grant to make the third Estate why this word might not comprehend all the other great Freeholders I can see no reason to the contrary And therefore I suppose that in the Reigns of K. David 2 d. or Robert the 2 d. or else the beginning of Robert the 3 d. there was a great alteration in the constituent parts or Members of the Scottish Parliament and about that time the chief Freeholders or Lords of Mannors who held of Bishops Abbots and other Temporal Lords as well as of the Tenants in Capite or else of the King by petty Serjeantry or Socage Tenure as also many of the small Towns or Baronies might either forbear coming at all or else desire to be excused because of the great trouble and charge of attendance as you see the smaller Tenants in Capite afterwards did when Commissioners for Shires were appointed in their steads and so might by degrees leave off coming or be excluded by some Law not now extant and thus the Tenants in Capite might become the sole Representatives of the
became less necessary we must have recourse to the Bull of Popâ— Boniface the 8 th in the 24 th of Edward I. by which he forbad all the Clergy of the Western Church as well Superior as Inferior to give any more Taxes of Subsidies to Temporal Princes without his Holinesses Licence whereupon the King summoned the Bishops and Clergy to Parliament at St. Edmunds-Bury in the 24 th of â—is Reign where when they then reâ—used to grant him any supplies he then as all the Historians tell us held his Parliaments at Westminister Cum Baronibus suis excluso Clero without either Bishops Abbots or Inferior Clergy which was the first Precedent of this kind that we ever read of in this Parliament the King with the consent of the Lay Lords and Commons seized all the Temporalities of the Clergy as well Bishops as others and put them out of his Protection untill they were forced to redeem themselves by paying a 5 th part of their Moveables for doing of which they were afterward forced to procure the Popes Absolutions some of which Mr. Pryn has given us in this said Register and yet for all this the Pope maintain'd this Power over the Clergy for the future so that they could not be taxed without his express License which since it could not always be obtained no wonder if our Kings did more frequently omit summoning any more than the Bishops and Abbots who were bound to appear in Parliament by their Tenures and so left out all the Inferior Clergy as useless the main business and cause of their summoning to Parliament viz. giving of Money being now taken away by the Popes usurped Power tho whenever his Licence was obtain'd yet that their own express Consents in Parliaments or Convocation was necessary appears by that Passage in the Annals of Burton in Anno 1255. already cited when the Inferior Clergy being extravagantly opprest between the Pope and King they sent express Messengers when they met in Parliament who were to set forth their greivances to his Holiness I have given you as good an account as I am able how the Inferior Clergy which as well as the Superior did once make a Constituent part of our great Councils before the Conquest nay for above 200 Years after did at last cease to be so partly by the prevailing Power of the Bishops partly by the Usurpation of the Pope tho chiefly by their own silence and consent not complaining of their want of Summons to Parliament as long as they could 'scape scot free and all the rest of the Kingdom pay Taxes notwithstanding which the clause of their Acting and Consulting with all the rest of the Estates in Parliament still remaining in the Writs of Summons is a sufficient Monument to Posterity to prove their ancient Right And the Clergy of the lower House of Convocation was so sensible of this that among certain Petitions by them made to Dr. Cranmer then Archbishop of Canterbury and the rest of the Prelates in the higher House of Convocation in the Reign of King Edward the 6th the 2 d Article of which runs thus Also that according to the ancient Custom of the Realm and the Tenor of the Kings Writ for summoning of the Parliament which now and ever have been directed to the Bishop of every Diocess the Clergy of the lower House of Convocation may be adjoyned and associate with the lower House of Parliament or else that all such Statutes and Ordinances as shall be made concerning all matters of Religion and causes Ecclesiastical may not pass without the sight and assent of the Clergy and there is in the same place a second Petition as also a Paper of Reasons offered to Queen Elizabeth and after to King Iames to the same effect And lastly to shew you that the Government of the Church and State of Scotland was anciently all one and the same in respect of their Clergy as well as Laity with that of England in their great Councils or Parliaments appears by the Agreement between King Edward the â— and the States of Scotland concerning the Marriage of his Son Prince Edward with the Princess of Norway then Heiress of Scotland which is publisht at large in Mr. Pryns 1 st Vol. of the Popes Usurpation where you will find this Agreement to have been made between the said King Edward ex una parte venerabiles Patres custodes scil Scotiae Episcopos Abbates totum Clerum nobiles viros Comites Barones totamque communitatem Regni Scotiae ex altera de matrimonio contrabendo c. From whence you may observe that as the same stile was observed there in the Titles of their general Councils or Parliaments as with us and as the Inferior Clergy there put after the Bishops and Abbots did not hold in Capite but frank Abnoign in that Kingdom So likewise by the same Analogy between the lowest Temporal State with the Spiritual the Commonalty of Scotland here stiled Communitas Scotiae could not then consist onely of Tenants in Capite as your Dr. and those of this Opinion suppose it did M. I must confess you have shewn me more for the Inferior Clergies being once a Constituent part of the Parliament than ever I knew before I will take time farther to consider them but that the word Populus must needs then take in any more than the Tenants in Capite I much doubt since the other word Plebs which you so much insist upon from the old Book of Ely signifies no more than Populus which as the Dr. shews us in his Glossary In it self signifies neither Great nor little People but only Laity and therefore as it is used and restrained signifies either the Lay Plebs or the Lay Magnates as I can shew you by several Examples as particularly out of Mat. Westminster Ann. Dom. 1295. 23 d Edward I. where speaking how the Popes Legates were received in England who came to make up the differences between England and France He thus relates their Reception Quos in Regnâ— Angliae applicatos excepit Plebs debito honore accita per Regem apud Westmonasterium Primatum Optimatum suorum Caterva Here the Plebs were the Kings Great or Chief Men that is the Earls and Barons which he had called to Westminster who so honourably received these two Cardinals So likewise the same Author Ann. Dom. 1297. 25. Edward I. The King and Barons being at some difference about the Observation of Magna Charta and the Charter of Forrest speaking how the King declared that he intended to observe those Charters after this he relateâ— that the King thereupon required to be given him by the Incolae or Inhabitants the eighth Penny and says thus Articulos in praedictis Chartis Contentos innovari insuper observari Rex Mandavit exigendo pro hac Concessione ab Incolis Octavum denarium sibi dari qui mox Concessus est a Plebe in sua
I. it signified onely the Body of the lesser Tenants in Capite till after the 18 th of that King F. I am sorry to see Prepossession and Prejudice has so much overrun you as to hinder you from closing with the Truth for pray tell me if this Author could in the 49 th of Henry the 3 d when the Commons were summoned without dispute comprehend all the Estates of that Parliament under the General Words of Proâ—eres and Magnates and the Knights of Shires are understood by the same Word in the next Passage cited out of the same Author why might not other Writers do so too in other Parliaments as for your next Exception it is a very small Cavil for it appears that this Summons of the Citizens and Burgesses at the Translation of King Edwards Relicks was to a Parliament by the Words that follow Nobiles ut assolent Parliamentationis genere de Regis Regni negotiis pertractare and why these Citizens and Burgesses should not be as well Elected by their respective Cities and Burroughs this Year as well as the last as it appears they were by the Writ to the Cinque Ports which the Dr. and Mr. Pryn has given us I desire you would give me any satisfactory Argument to the contrary As for you Objection against the Words Communitas Regni being to be understood for the Body of the Commons in 54 th Henry 3 d it is altogether as unreasonable since this is to make the Constituent parts of the Parliament alter not onely when Writers shift their Phrases but when they do not and that without any other Reason but because the Writs of Summons and Parliament Rolls of those times are all perisht and to deny the Commons were there onely for that Reason is altogether as unjust as for any Court of Justice to turn a man out of the actual and long Possession of an Estate meerly because his Writings and Evidences by the carelessness or roguery of his Servants have happen'd a great many of them to be lost or burnt But fully to convince you if possible that Dr. Bradyes Opinion of the Commons not being again summoned from the 49 th of Henry the 3 d till the 18 th of Edward the first is a meer Fancy of his own and contrary to the express Authorities both of Historians and Records And to come to plainer proofs pray in the first place take notice that it appears by a Writ of the 11 th of King Edward the I. to the Archbishop of Canterbury acquainting him with the Rebellion of Lewellyn Prince of Wales that he had de Consilio Praelatorum Procerum Magnatum Regni nec non totius Communitatis ejusdem resolved God willing to put an end to this Welch Rebellion so that this war seems to have been resolved upon at the Parliament held the Year before and now mentioned in this Record a War which that Valiant and Fortunate Prince effectually concluded by the total subduing of Wales and killing of Lewellyn whose Head was cut off and sent to London the particulars of which War Knighton as well as other Historians relate at large and also that presently after David the Brother of this Lewellyn the cause of all these Mischiefs was as this Author shews us in Magno Parliamento at Shrewsbury Condemned and afterwards hang'd drawn and quarter'd Walsingham is more short in the Relation of this Parliament onely says that in the 11 th of Edward the I. Habitum est Parliamentum at Shrewsbury in which this David was Condemned and Executed as before But Thomas Wikes who lived at this very time in his Chronicle but now cited will better instruct us than either Walsingham or Knighton and his account of this Parliament is as follows Anno 1282. Circa festum sti Michaelis Rex convocari fecit apud Salopesberiam Majores Regni sui Sapientiores tam de Civibus quam de Magnatibus fecit illuc addaci David qui apud Rothelan fuerat captivatus ut super exigentiam Delicti ' sui corpore subiret Iudicium c. and then relates at large the manner of his Execution from which Passage we may observe that this Author makes it plain who were the Communitas Regni mentioned in the Record of the 11 th of this King and who constituted this great Parliament at Shrewsbury viz. Majores Magnates Regni which last as I have now often proved takes in the Knights of Shires and the wisest of the Citizens M. But yet this Author says no more but that the Majores Regni sapientiores tam de Civibus quam de Magnatibus were called to this Parliament wherein Lewellyn was condemned Now it doth not appear that these Ciâ—es were Elected or that there were any Burgesses chosen for the Burroughs or that there were any Knights chosen by the Counties there were indeed Magnates called to this Parliament but they might be all Tenants in Capite F. Well then since you will not be satisfied without direct and evident proof such as neither your self nor Dr. B. will I hope deny pray take this which Mr. Petyt has not long since communicated to me and which he has lately discovered in Rotulo Walliae in a bye Roll not taken notice of by any Body as I know of before it is a formal Writ of 11 th Edward I. for summoning the Temporal Lords to be with that King at a Collequy or Parliament opud Salop in Crastino Sti. Michaelis and there is in the same Roll a second Writ directed to several Cities and Burroughs for Electing two Citizens and two Burgesses to this Parliament with a void space to insert more Names And also a third Writ is there directed to the Sheriff of every County in England to cause to be chosen two Knights pro Communitate ejusdem Commitatus And lastly there is a 4 th Writ directed to the Justices and others of the Kings Learned Council With the same Preambles to each of them all being commanded to appear at the same time and place now what can Dr. Brady say to this that he who was so long Keeper of these Records and sure ought to have perused them as he did many others of the same Reign yet has either willfully or carelesly passed by this so memorable a Record And so I hope this will convince you for the future of the danger of being over positive in an Opinion because it could not presently be confuted and let you see that it is not at all improbable but that the like Writs of Summons would appear as well before the 49 th of Henry the 3 d as in the rest of the Years of his own and his Sons Reign had not those Records been lost and destroy'd which considered we have Reason to thank God for those that the Iniquity of the times have yet leâ—t us M. I must confess you have told me more than ever I yet thought could be
produced against the Drs. Opinion and I should be throughly convinced could you shew me any Writs of Expences for the Knights Citizens and Burgesses who appeared at this Parliament F. I hope you will not averr against an express Record tho the Writs of Expences for that Year are lost being never entred upon the Roll by the Omission of the Clerks who as Mr. Pryn acknowledges oftentimes neglected the Entries of Writs of Summons themselves as well as of Expences but if this were any material Objection then there should have been no Commons summoned to any Parliament from the 49 th of Henry the 3 d. to the 28 th of Edward the first when the fist Writs of Expences except those of the 49 th of Henry the 3 d do first appear upon the Rolls and so you must then go from the Drs. new Notion of the Commons being again summoned in the 18 th of this King but to shew you that these expences for the Knights Citizens and Burgesses could be no new things pray peruse the Clause in this second Writ de expensis Militum Burgensium of the 28 th of Edward I. we have upon the Rolls the Writ is to the Sheriff of Sammershire to pay to the Knights of that County Venientibus ibidem nobisoum de diversis negotiis nos Populum Regni nostri specialiter tangentibus Rationabiles expensas suâ—â— in veniendo ad nos ibidem morando inde ad propria redeando and now observe what follows prout alias in Casu Consimili furi consuerit Now pray tell me how this last Clause could ever be true if the Knight of Shires Citizens and Burgesses had never been summoned to Parliament since the 49th of Henry the 3 d which was but 32 Years or the 18 th of this King but 10 Years before this Writ was published all over the Kingdom M. I confess what you now say seems to carry some weight with it but yet in my Opinion falls far short of a Prescription since a thing might be said to be done as in like Cases was accostomed tho it had never been practised above 20 or 30 times F. I see neither you nor your Dr. by Reason of your different imployments had ever any true Knowledge of the Nature of Tenures and Prescription according to the Laws of England which He is not to be blamed for had he not taken upon him to be so great a Master in both but I hope he will for the Future remember that old Adage ne sutor ultra Crepidam therefore to set you Right for the future you must know that the Knights Citizens and Burgesses have ever claimed being summoned to all Parliaments by Prescription as I shall prove by and by but as for that part of it called Custom my Lord Cookâ— tells us in his Notes upon Littleton That in every Custom there be two Essential parts Time and Usage Time out of Mind and Continual Peaceable Usuage without lawful Interruption Now the Commonâ— have in all times beyond the Memory of Man challenged to have enjoyed both those Essential parts of Common Law or general Custom So that these words Praut Câ—su'Consâ—mili consuevit must be by Implication of Law extend beyond the times of Henry the 3 d and Edward the 1 st And for proof of this I shall shew you what claimes the Commons have made to this Usage from time immemorial therefore I shall begin with Mr. P's first Argument in his Rights of the Commons asserred Where the Burgesses of St. Albans in their Petition to King Edward II. in Parliament A. D. 8. Say that they Sicâ—t caeteri Burgenses Regni ad Parliamentum Regis when it should happen to be summoned Per duos Comburgenses suos venire debeant prout totis retroactis temponibus venire consueverunt tam tempore Domini Edwardi nuper Regis Angliae patris Regis Progenitorum suorum as in the time of Edward II. Sâ—mper ante instans Parliamentum c. and farther declare that the Names of such Burgesses coming to Parliament were always inrolled in the Rolls of the Chancery notwithstanding all which the Sheriff of Hertford at the Procuration and favour of the Abbot of St. Albans and his Council refused Burgenses praedictos praemunire sou nomina corum 〈◊〉 prout ad ipsum pertinuit c. and therefore they pray Remedy the King and Councils Answer whereunto was thus Scrutentur 〈◊〉 c. de Cancellariâ— si temporibâ—s â—rogenitorum Regis Burgenses praedicti solebant Venire vel non tunc siat t is supeâ— hoc Iustitia vocatis evocandis si necesse suâ—vit Where by the words totis retroactis temporibus c. must be understood that they and their Predecessors were always accustomed to send two Burgesses to Parliament in all former Ages not only in the time of Edw. I. but his Progenitors therefore in King Iohn's time his Grand-father at least and so long before the 49th Hen. III. M. I confess the Gentlemen of your Party make a great deal of Noise with this Quotation but if it be strictly lookt into I believe it will prove of no such great consequence as you would make it For Mr. P. hath concealed the main Cause of these Burgesses pretending a Right of sending Members to Parliaments and therefore 't will not be amiss to give you the rest of it at large Ad Petitionem Burgensium villae de Sancto Albano suggâ—rentium Regi quod licet ipsa tenent villam praedictam de Rege in capite ipsi sicut caeteri Burgenses Regni ad Parliamenâ—a Regis cum ea suâ—â—noniri contigerit per duos Comburgenses suos venire debeane prout totis retroactis temporibus venire consueverunt pro omnibus servitiis Regi faciendis c. By which words as the Dr. very well shews us it is evident that the Burgesses of St. Albars claim'd not nor prescribed to come to Parliaments as meerly from a Burrough but as from a Town that held in Chief of the King and this Service was incident to their Tenure and was such as the King's Progenitors had accepted in lien of all Services due by reason thereof And farther the Answer to this Petition is remarkable which amounts to no more than this that if it did appear by the Roth of Chancery that the Burgesses of St. Albans were wont to come to Parliaments in the time of the King's Progenitors then such as have been called i. e. to Parliament should be called when there was necessary for it Hence 't is clear the King and his Council were equally judges when it was necessary to call them and for them to come as they were of their Rights and Pretences to come F. I very much wonder a Gentleman of your Understanding should be so much imposed upon by such weak Inferences for in the first place it is a Great Mistake in matter of factâ— that these Burgesses of St. Albans claimed to come
find them And for the truth of this Appeal to Mr. Petyt who assures me he found the Returns of the Knights Citizens and Burgesses to Parliament of the 23d of Ed. I. in an old Chest in the Exchequer among other things of a quite different nature which Mr. Prin never saw or else certainly he would have given in the Returns to this Parliament as well as he does the Writs of Summons to it and yet that even these were not always entred upon the Clause-Rolls but lay scattered up and down the Chappel of the White-Tower Mr. Prin himself confesses in his Introduction to his third part of his Parliamentary Register that he found no less than ninety five loose Original Writs for Elections and Returns of Knights Citizens and Burgesses to Parliaments and great Councils in the Reign of Ed. 3. which were never entred on the Clause-Rolls and lay there until he found them buried in dust and rubbish as well as oblivion in a confus'd Chaos scattered from each other and intermixed with many hundred thousands of other Writs and Records of various kinds Now what if these Writs and Returns had never been found so that by his own shewing it is no ways certain that there were never any such Writs issued or Returns made for the Counties Cities and Burroughs than those he had before sound and published and he himself also here confesses that by reason of the negligence of Record-keepers there are more Writs and Returns of Elections extant from some Counties than for others tho' all had the like Writs sent them And if this was so as to the Counties it was likewise so as to the Cities and Burroughs the returns of which are commonly endorsed on the back of the Precepts and where they were not so endorsed were much more likely to be lost and farther that the Clause Rolls are no exact Rule for the Summons of Knights or Barons of the Cinque Ports and Burgesses appears by Mr. Prins own shewing viz. That there are no Writs of Summons to the Cinque Ports entred on the Clause Rolls for most part of the Years of Edward 1 2 and 3d. in the List he has here given us of those Years now if so many considerable Burroughs as the Cinque Burroughs could be thus omitted what can we expect for most of the smaller and most inconsiderable Burroughs in England To conclude this Head if by Mr. Prins own Consession the Entries of Elections and Returns upon the Clause Rolls are so very imperfect and that the loose Bundles of Summons Precepts and Returns are far more imperfect so many of them being lost pray tell me how can Mr. Prin or any one else can frame any Argument from these that remain that there were never no more Precepts and Returns from any Burroughs than those he has published us But to come to his third Rank of Burroughs viz. such as for whom their appear no Precepts nor Returns till the Reigns of Edward the 2d Edward the 3d. and other succeeding Kings all which Burroughs he therefore supposes to have been all newly made in those Kings Reigns because there are no Precepts or Returns from them sooner it must there follow that the Sheriffs made all these Burroughs at their Pleasure but Mr. Prin has done well here to adde that they never elected or returned any before for ought he can find to the contrary since it might appear to the contrary for ought he could tell if the returns of the Sheriffs in the Reigns of the former Kings had not been so many of them lost since he here confesses there are no Original Writs and Returns for the Cinque Ports to be found before the Reign of Edward the 3d who yet sent Members to all Parliaments in former King Reigns or how can he tell but divers of these Towns might have been created Burroughs by the Kings special Writs or Charters tho now lost or perhaps unknown to this Author who could not be supposed to understand the Original of all the Burroughs in England their sending Members to Parliament but that he is certainly mistaken in making several Burroughs to have been but new because no Returns are to be found from them before the Reign of Edward the 2d may appear by these for Example First Litchfield which was long before that time a Bishops See and sure then if not a City yet an ancient and considerable Burrough Secondly Old Sarum which was in the Reign of Henry the 3d a Bishops See till it was removed and so consequently by your Rule New Sarum ought to pass for a City and if not was certainly a very ancient Burrough and as such sends Burgesses by Prescription to this day tho the Town be quite destroyed the like I may say of Gatton in Surrey which tho Mr. Prin will have but to be a new Burrough because no Returns appears to have been made for it by the Sheriffs till the Reigns of Henry the 6th yet this is no certain Rule since it was a very old Burrough and had anciently been so Considerable as that we find several great Councils held at it in the Saxon Times tho it be certainly now reduced to a small Hamlet of half a score Houses now I will leave it to your self to judge whether the Sheriff would have pitcht upon so small and inconsiderable a place as this to make a Burrough of had it never sent any Burgesses to Parliament before that Time And I doubt not but those Gentlemen that know the rest of the Towns he has there mentioned with Gatton could say as much for the Antiquity as Burroughs if you please to inquire about them But I have held you too long upon this Head and therefore shall proceed to those two that remains viz. The Ambition of Neighbouring Gentlemen to make as many Burroughs as they could that they might be chosen at them and the desire of such Towns to be made Burroughs to receive the advantages of the Money spent among them at such Elections the first of these in the Times we are now speaking of could be no cause of their sending Members to Parliament since it is certain that before the Reign of Henry the 8th none were Elected for any City or Town but Persons free of or actually Resident in such Cities and Burroughs as appears by the Statute of 1 Henry the 5th which does but recite and confirm this ancient Custom so that this Trick of chusing Members for Beeâ— and Ale has been introduced but of late Ages viz. Since the time of Henry the 8th when Gentlemen began first to be chosen for Cities and Burroughs and if that is so the last cause falls off it self viz. the desire of such small Towns to Elect since if they could get nothing but rather loose by their sending Burgesses to Parliament and paying them their Wages as they must do as long as they chose from among themselves it is unreasonable to believe
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
same right by which they took upon them to make this Declaration by the same right not only every Curate of a Parish but also every Layman in England was free to Judge of the Kings breach of this Law and consequently of denying obedience thereunto which disobedience if it once prove general will quickly make the Kings personal commands wholly insignificant So that it seems it is not the Peopleâ— Judging of the Illegality of the Kingâ— Actions and Commands which is the thing you 〈◊〉 fault with since when these Bishops acted thus all the high men of the Church of England praised it to the Skie So that it seems it is now the bare Censuring and Disobedience that makes it a crime but it is the iâ—sisting such Violent and Illegal orders and commands and at last Declaring that Power void and forfeited by which they were made That sticks in your stomach which is as much as to say that this Judging and Disobedience in its self is no Crime but the pushing it home and doing it in such a way as that it may be mended for the future though this is never lawful to be done but when things come to that extremity that all milder remedies are become ineffectual But to answer your Objections a little more closely the consequences of my Opinion are not so dangerous as you suppose them if you will please to consider what I have already laid down at our last Meeting As first That this Resistance is never to be made but when this violent breach of the Laws becomes evident and undeniable not to the Rabble alone but to the whole Nation that is all sorts and degrees or men and as long as there is any question about it I acknowledge it is by no means to be used And lastly As to declare the Regal Power forfeited this likewise is never to be done but when the King becomes so obstinately resolved to pursue those evil and illegal coâ—â—es as that he is utterly irreclaimable and refuses all propositions and terms of amending or redressing them And as to what you say that the King is hereby depriv'd of all means of justifying himself or vindicating his Actions that is not so since if a War be once begun he may do this either by Declaration or Treaties as King Charles the First did in his War with the Parliament by which means he gain'd a great many both of the Nobility Gentry and Commonalty to his Party who were before absolutely set against him But if you will needs have a Parliament to Judge and examine the reality of this forfeiture I so far joyn with you that though every private man may first judge thereof yet is it not become absolute and an Act of the whole People till the Estates of the Kingdom have by some solemn Vote or Declaration made it so M. Well I see you do all you can to make the best of a bad Cause but though I think nothing of what you have said can give Subjectâ— any right to resist much less to cast off all Allegiance to their Natural Prince yet I shall not now dispute this point any longer with you but will proceed to the merits of the Cause and shall lâ—â— you see that even upon your own principles the King has not been dealt 〈◊〉 in all this whole transaction either like an Ally by the States General of the United Provinces or like a near Relation or a Son in-law by the Prince of Orange or like a King by his own Subjects To begin with the Estates in the first place it is apparent that they have acted treacherously with the King and contrary to the last Treaty of Peace and Alliance in furnishing the Prince 〈…〉 their Captain General and 〈◊〉 holder both with Ships Men and Money and make this late Expedition against England without so much as ever declaring the cause of their Quarrel or demanding any satisfaction if any occasion of difference had been given But the Prince of Orange his dealing with the King his Father-in law has been much less justifiable for in the first place he is not only guilty of the same fault with his Masters the Dutch in beginning a War without ever declaring the causes of it or demanding any satisfaction or â—eparation if he had been injur'd till it was too late to go back and that his Fleet was ready and the Army shipt for the Expedition but which was more unkind from a Nephew and a Son-in-law who had reason to expect all the satisfaction which a King an Uncle and a Father-in-law could give though indeed to speak the truth the whole War was in my Opinion altogether unjust on the Pâ—â—nces side since his chief pretences were to redress Grievances and to re-establish the Bishops and Church of England with the Colledges in their just Rights and also restore the whole Nation to the just Execution of the Laws by a Free Parliament and Priviledges Now I desire to know what the Prince of Orange had to do either as a Neighbour or a Son-in-law to concern himself with the Mis-government of the Affairs of England much less to countenance and take the part of those many Male contents and Traitours who have ever since the Duke of Manmouth's Rebellion gone over into Holland So that upon the whole matter I can find but one thing which he had so much as a pretence of making War about if it had been real viz. the pretended suppoâ—â—â—tioâ—s Birth of the Prince of Wales and yet even for this he ought not to have made War till such time as all reasonable satisfaction in this matter had been demanded and denied him and that the next Parliament which the King had before declared should meet in November last had been either hindered from medling in it or that they had faâ—â—'d to make a due enquiry into it But if we look home F. Pray Sir before you come to consider what has been done here give me leave to iustifie the late proceedings of the States General and the Prince of Orange in this matter First as to the Estates it is a very great mistake for you affirm that they made this War upon the King in their own names or furnish'd the Prince of Orange with Ships or Men as their Sâ—adt-holder or General but only as a free Independent Prince whom they looked upon to have a good Cause of making War against the King of England as one they had great cause to believe was so far engag'd in the France interesâ— as instead of standing 〈◊〉 in this War with the Empire which they every day expected when he would joyn with France and declare War against them as they had reason to â—ear by several angry Memorials which the French King's Eâ—voy in Holland had not long before given them so that indeed it was but according to the Rules of Self-preservation to begin first especially when it might be done without their appearing in it at allâ— but granting
But it is very strange to me that none of them deposed any thing concerning their seeing any Milk come from Her Majesties Breasts after she was Delivered And perhaps there was good reason for it for I have had it from good hands that she had none afterwards whatever she had before the reason of which deserves to be enquired into since it is very rare But as for the Mid-Wife her deposition is equivocal That she took a Child from the Body of the Queen She is also a Papist and consequently a suspected witness in this cause Whereas all this might have been prevented had the Queen were she really with Child been perswaded to be Delivered not within the Bed but upon a Pallate where all the persons whose business and concern it was to be present might have seen the Child actually born nor needed there to have any men been by though I have heard that the late Queen of France was Delivered of the present King the Dake of Orleans not being only present in the Room but an Eye-witness of the Birth And so sure if somewhat of this nature had been done it might have saved a great deal of dispute and bloodshed which has already or may hereafter happen about it And therefore I do not at all wonder that the Prince of Orange should not take this partial Evidence that has been given for sufficient satisfaction so that whether this Birth of the Queens was real or not I shall not now farther dispute It is sufficient that if His Highness and His Princess had just and reasonable suspitions of an Imposture whilst they remain under them they had also a just cause of procuring a Free Parliament to examine this great affair and also to obtain it by force since it was to be got no other way M. I need not further dispute this business of the Prince of Wales with you since I durst appeal to your own Conscience whether you are not satisfied notwithstanding these supposed indiscretions in the management of the Queens Delivery that he is really Son to the Queen and I think it would puzzle you or I to prove the Legitimacy of our own Children by better evidence than this has been and I think all those of your party may very well despair of producing any thing against it since the Prince of Orange himself has thought it best to let it alone as knowing very well there was nothing material could be brought in evidence against him But I shall defer speaking further to this Head till I come to consider of the Conventions setling the Crown upon the Prince and Princess of Orange But before I come to this I have many things further to observe upon the Princes harsh and unjust proceedings with his Majesty and refusing all terms of Accommodation with him upon his last return to London In the first place therefore I must appeal to your self whether It were done like a Nephew and a Son-in-Law after the King was voluntarily returned to White Hall at the perswasion of those Lords who went down to attend him at Feversham when he had had scarce time to rest him after his journey and the many hardships he had indured since his being seized in that Port and when he had but newly sent my Lord Feversham with a kind Message and Complement to the Prince inviting him to St. Iames's together with some overtures of Reconciliation as I am informed the Prince should make no better a return to all this kindness than to clap up the Messenger contrary to the Law of Nations as his Majesty observes in his Late Paper I now mentioned And should without any notice given to the King of it order his men to march and displacing his Majesties Guards to seize upon all the Posts about White-Hall whereby his Majesties Person became wholly in his Power And not content with this he likewise dispatcht three Lords whose names I need not mention to carry the King a very Rude and Undutiful Message desiring him no less than to depart the next Morning from his Pallace to a private House in the Countrey altogether unfit for the reception of his Majesty and those Guards and attendance that were necessary for his security Nor would these Lords stay till the Morning but disturbing his rest delivered their Message at Twelve a Clock at Night nor did they give him any longer time than till the next Morning to prepare himself to be gone and then the King was carried away to Rochester under the conduct not of his own but of the Princes Dutch Guards in whose custody his Majesty continued for those few days he thought fit to stay there till his departure from thence in order to his passage into France by which means the Prince hath render'd the breach irreconcileable between his Majesty and himself for whereas if he had come to St. Iames's in pursuance of the Kings Invitation and had renewed the Treaty which was unhappily broke off by the Kings first going away there might have been in great probability a happy and lasting reconciliation made between them upon such terms as might have been a sufficient security for the Church of England as also for the Rights and Liberties of the Subject which you so earnestly contend for whereas by the Conventions declaring the Throne vacant and placing the Prince and Princess of Orange therein they have entail'd a lasting War not only upon us but our Posterity as long as his Majesty lives and the Prince of Wales and his Issue if he live to have any are in Being F. I confess you have made a very Tragical relation of this affair and any one that did not understand the grounds of it would believe that King Iames being quietly setled in his Throne and the Prince of Orange refusing all terms of reconciliation had seiz'd upon his Pallace and carried him away Captive into a Prison whereas indeed there was nothing transacted in all this affair which may not be justified by the strictest Rules of Honour and the Law of Nations for the doing of which it is necessary to look back and consider the state of affairs immediately after the Kings leaving Salisbury and coming to White-hall where one of the first things he did after he was arrived was to issue out a Proclamation for the calling a new Parliament which was so received with great satisfaction by the whole Nation and immediately upon this the King sent the Lords Hallifax Nottingham and Godolphin to treat with his Highness upon those Proposals of Peace which he then sent by them and to which the Prince return'd his answer the heads of which are very reasonable without demanding any other security for himself and his Army than the putting of the Tower and Forts about London into the Custody of that City now pray observe the issue of all those fair hopes before ever the terms propos'd by the Prince could be brought to Town the King following the ill advice of the
a generous Prince a Nephew and a Son-in-law and one who was bound in Conscience and Honour to consult the lasting Peace and Happiness of the Nation more than his own private interest or the ambition of wearing a Crown F. You have made the utmost defence that I suppose can be brought for the King 's first going away yet if it be better consider'd I doubt it will not serve the turn I see you are forc'd to lay the whole fault of the Kings departure in the midst of the Treaty with the Prince and his refusing to call a Parliament according to his own Promise and Proclamation upon his want of security for himself the Queen and Prince if he had stay'd by reason of the want of fidelity in his Army the general prejudice of the Nation against him and the great firmness and resolution there was in the Princes Army to adhere to him Now I shall shew you that every one of these were but pretences and that the real cause of his departure was because he fear'd to leave the inquiry into the Birth of the Prince of Wales and the free examination and redress of our grievances and those violations he had committed upon the fundamental constitution of the Government to the impartial judgment of a free Parliament For in the first place as to want of fidelity in his Army that can be no just excuse for his deserting and disbanding them as he did without any pay since he himself in his said Letter to the Earl of Feversham expresly owns that there were a great many brave men both Officers and Souldiers among them and therefore if he was satisfied of this he ought to have first sent for all his Officers both Collonels and Captains and have examin'd them how far they would stand by him in the Defence of his Person and Cause against the Prince of Orange and he might have also order'd those Officers to have examin'd every Regiment Troop and Company in his whole Army how far they would engage in his defence and if he had proceeded thus at Salisbury before he fled away in that confusion to London I have been credibly inform'd by divers Officers of that Army that the King might have found above Twenty Thousand men that would have stood by him to the last man in his Quarrel against the Prince and therefore I impute his going away as he did from Salisbury to some strange pannick fear that God had cast upon him and all the Popish Faction about him since he has been known not to want sufficient courage upon other occasions but though he had omitted it there yet he certainly ought to have tryed this last experiment after he came to London rather than have quitted the Kingdom so dishonourably as he then did and thereby giving the P. of Orange's Friends an opportunity of seizing or getting delivered into their power all the Garisons and strong places in England besides Portsmouth in those three or four days time that he was not heard of besides great part of the Army that was not disbanded had in that time gone in to the Prince in hopes of their pay and future preferment now that the King might with safety have resided with his Army somewhere about London he himself grants in his Proposals to the Prince to this effect That in the mean time till all matters were adjusted concerning the freedom of Elections and a security of their sitting the respective Armies may be retained within such Limits and at such distance from London as may prevent all apprehensions that the Parliament may be in any kind disturbed which Proposals being made not long after the Kings arrival at London we may reasonably suppose that he was then well enough satisfied with the fidelity of the greatest part at least of his own Army to him and if he were not he might have been better satisfied if he pleased but as for the next difficulty the Nations being poisoned and prepossessed against him admit it were so as long as he had a sufficient Army about him as I suppose he might have had he need not have feared any thing the People could do but indeed this was a needless fear for before the Parliament could sit it was not the Peoples Interest to hinder it or to fall upon the King or his Army when matters were in a fair way of accommodation so after the Parliament sate there would have been less cause of fear since the reverence of that Court would have kept them in awe but as to the firmness and resolution of the Princes Army the fear of that was also as needless as long as the Kings Army continued as firm to him and if the Princes Army had been the first Agressors I doubt not but the People would have taken part with the King against them but after all it was certainly and you must grant it so much more safe and honourable for the King to have treated with the Prince and held a Parliament with an Army about him than to have yielded the same things as you suppose him willing to have done after his return to Town when his Army was disbanded and London had received the Prince and had joined with him and when almost all the strong places of England were in the Princes power so that upon the whole matter it evidently appears that the King chose to trust his own Person together with that of the Queen and Prince to a Foreign Monarch rather than he would relye upon the justice or fidelity of his own Nation You say in the next place that nothing the King has done in all these exorbitances he committed that can in any wise amount to a Forfeiture or Abdication of the Government not to the former because the King redress'd all our Grievances before he went away 't is true I grant he redressed some of them by putting divers things in the same State they were before yet for all this the greatest still remained unredressed viz. the Raising of Mony contrary to Law and the Dispensing Power both which as I have already shewed you at our last meeting he never Disclaimed neither took any sufficient course by Calling a Parliament to prevent its being exercised for the future besides his going away without giving the Prince and Nation any further Satisfaction about the Birth of the Prince of Wales all which not being done I must still affirm that this wrought a forfeiture of the Crown or an Abdication of it at least by his refusal to Hold and Govern it according to the Fundamental Laws thereof for he that destroys the Law or Conditions by which he holds an Estate does Tacitly Renounce his Title to it As I shewed you in the Case of Tenant for Life altering in Fee So that this being considered as also that the City of London and the whole Nation had Surrendred themselves to the Prince of Orange and that even the Arch-Bishops of Canterbury and York
by you from the Parliament Roll yet for all that it doth not follow that the Parliament allowed this Kings seigned and false claim to be good by their not contradicting it For though the Record says That upon the hearing of this Challenge or Claim all the Estates of the Kingdom being then asked their Judgments severally they declared that the same States without any difficulty or delay unanimously agree'd that the said Duke should Reign over them For considering the Dukes great Power it was not safe telling him to his face that he had no true Right by Inheritance therefore they only declared in general words without expresly denying or affirming his said Claim That he should Reign over them Which words do rather amount to an Election of him to be King without declaring what Title he had to be so And this they thought they might very well justifie not only for his having delivered them from the Tyranny of King Richard but also because they then looked upon it as their Right not only to Depose the King in case of an apparent violation of the Fundamental Laws of the Kingdom but also to place in his stead any of the Blood-royal tho' not next Heir by Blood according to the Message the whole Parliament had formerly sent to K. Richard in the beginning of his Reign by the Arch-Bishop of Canterbury and his Uncle the D. of Gloucester which I gave you at our ninth Meeting as I remember And pray take notice the words were Et propinqai rem aliquem de stirpe Regia loco ejus in Regnisolio sublimare Where observe that the words were not the next of Blood but some near Kinsman of the Blood Royl And though it is true that both King Henry the Vth. and VIth might both seem to succeed to the Crown by Right of Blood yet I do rather attribute their right of Succession to an Act of Parliament made in the seventh and confirmed in the eighth year of Henry the IVth whereby the Crown was entailed upon all his Sons by Name and the Right Heirs of their Bodies By vertue of which settlement both Henry the Vth. and VIth Succeded thereunto For if he had thought his own feigned Hereditary Title to have been sufficient he would never have troubled himself to have procured the Crown to be setled upon himself and his Children by Act of Parliament M. All this signifies nothing for I have already sufficiently proved that in the 39th year of Henry the VIth upon a solemn hearing before the Paliament of the Claim of Richard Duke of York to the Crown the said Act was set aside And it was there expresly declared that the said Dukes Title could no ways be defeated And this agreement is still on Record between Henry the then possessor of the Crown and the said Duke whose Right it was and the Judgment of the Parliament was then given in the behalf of proximity of Blood as to have always been the foundation and ground of Succession to the Crown of England and of taking it from the Son of Henry the VIth and restoring it to the Duke of York and his Issue as right Heirs thereof As appears by the Title and Pedegree of the said Duke set down at large in the first Article of this Agreement confirmed by Parliament that is by King Henry the VIth himself who was then King de Facto tho' not de Iure F. I will not deny the matter of fact to be as you have set forth yet if you will but please to consider the time when this Declaration and Agreement was obtained and the manner how it was done you will quickly find that it was rather got by force and constraint upon that poor Prince Henry the VIth than by any real Right the Duke of York had to the Crown after its being setled for three Descents in the House of Lancaster For the proof of which I desire you in the first place to take notice that at this time the whole Kingdom was under general discontent noâ— only for the loss of all our Conquests in France but also for the great mismanagement of Affairs at home by reason of the exorbitant power of the Queen and her two favourites the Dukes of Somerset and Suffolk who made the King a meer Cypher and had without his consent made away Humphrey Duke of Gloucester the Kings only Uncle then living contrary to Law so that affairs being in this ill posture it was very easie for the Duke of York and the Earl of Warwick to procure a sufficient Interest in the Nobility and Great men of the Kingdom to raise an Army upon pretence at first only of reforming the grievances of the Kingdom and bringing the said Dukes of Justice the issue of which War was that the Duke not being strong enough at first to oppose the Kings Forces was forced to surrender himself and to obtain his Pardon took a Solemn Oath never to Rebel against the King again but being afterwards Attainted at a Parliament held at Coventry for new Conspiracies he then again Rebelled together with the Earl of Warwick and then that King Henry being carried to head his Army was by the Duke of York taken Prisoner in the Battle near Northampton and being thence by him brought up to London a Parliament was call'd in the Kings name though without his consent wherein the Duke of York had the confidence to seat himself in the Royal Throne and to make that challenge of the Crown you have recited and under how great a terror all the Friends and Servants of this poor Prince was at that time appears plainly from this that neither the Kings Attorney nor any of his Council durst undertake to plead his Cause before the Parliament nor yet would the Judges give their opinions in a matter of such great moment but they all answer'd That this Matter passed the Learning of the Justices and also that they durst not enter into any Communication in that matter and besought all the Lords to have them excused for giving any Advice or Council therein but the Lords would not excuse them and therefore by their Advice and Assistance it was concluded by all the Lords that the Articles following should be objected against the Claim and Title of the Duke So that you see from the Record it self that the Judges were with much ado prevail'd with to object any thing against the Dukes Title Therefore considering the great contempt the Kings Person was then under by reason of his weakness and the great hatred and weariness the Nation had then of the evil Government of the Queen and her Favourites it was no more difficult for the Duke of York to procure this Judgment in Parliament in savour of his Title than that Henry the 4 th should after he had put Richard the 2 d in Prison get him Depos'd and make his own Title to be allow'd for good and certainly if it were
and sober Morals and of a quiet different Interest to those imploy'd in the two last Reigns and therefore I am so far from taking away the present Oath of Allegiance that I rather wish that there were a new one more strict and full then the present ordain'd to be taken by all those who shall take Offices and Employments of Trust or Profit whereby they should not only declare their present Majesties to be true and lawfull King and Queen of this Realm but also that they will defend them against all their Enemies King Iames himself not excepted M. I confess I cannot expect so great a Tenderness from this Government which has been introduced by so much Artifice that they should absolutely take away all Oaths of Allegiance whatsoever since I doubt not but it will assume to it self all those advantages which any former usurped Power could pretend to yet this much I must needs tell you as a Friend the depriving those Bishops and Dignified Clergymen who shall refuse this new Oath will be highly ungrateful since many of them have been as violent opposers of Popery and Arbitrary Government as any Men in England as appears by their late Petition to the King if therefore the Arch-Bishop of Canterbury and those other Bishops I know to be so averse to this Oath should be deprived upon the refusal of it since it will be done uncanonically by the Temporal Power of an Act of this Convention without the Sentence of the two Houses of Convocation I doubt that it will be thought by many to be a sufficient Cause of departing from the present Church Communion and of seting up distinct Congregations by those who will be deprived and turned out of their Livings for refusing this Oath and what the consequence of that may prove God knows But whereas you think this present new Oath not full enough and therefore wish there were another made declaring the present King and Queen to be lawfully and rightfully so c. since this would amount to as good as an Oath of Abjuration of King Iames and his Title I doubt it were better let alone for I do not think the present Government will get any thing by it since the intent of the Oath you propose can only serve either to gain the present Government more new Friends or else to fix the old ones faster to it or else to discover secret Enemies now if I can prove it will not serve for any of these three ends I suppose you will grant that it were better to let it alone now that it will be so far from gaining it more Friends that it will rather serve to drive away a great many from it is apparent since many men are now in Offices and Imployments who think they may lawfully take this new Oath of Allegiance as long as the present King and Queen are not therein declared to be lawfully and rightfully so and I believe may serve them faithfully enough in their several stations who if they should come to be put to it to declare and swear that they were rightful and lawful King and Queen would rather lose their places than take it neither will it fix those that are for this Government faster to it since those that are zealous for it will be so whether they took any Oath or not and I have already proved that by the word Allegiance in this Oath it is implied that the present King and Queen are to be defended as lawfully so by the Swearer to it which is the main reason that I and those of my Opinion can by no means think it lawful to take it Nor lastly will it discover any secret Enemies to your Government since those who being rightly instructed in the true sence of this Oath and what is thereby required shall notwithstanding take it against their Conscience will I doubt take any Oath whatever the Convention shall think fit to impose since nothing but the fear of losing their present Imployments or else the desire of getting new ones could have made them take the Oath as it is since to my knowledge it hath been taken by many now in Places much against their own judgement and I doubt the conviction of their Consciences too I speak this only in relation to some of loose Principles but as to my self and many more of my Acquaintance who refuse this Oath we should be so far from taking any Place of Trust under this Government that we should not do it tho' no Oath were at all required of us since I think it not only wicked and dishonourable for any honest man to serve a Party only to watch an opportunity to betray it but I also believe my self obliged by my former Oaths as well as the duty of a natural Allegiance which I owe the King and his right Heirs not to serve those whom we look upon as Usurpers of their just Rights But if you would also have this new Oath to be an absolute abjuration of the King and his Title it will not only be unjust but impossible since who can tell but either by the help of a foreign Force or the general consent of the Nation tired out by a long expensive War either his Majesty or the Prince of Wales may be again placed upon the Throne and then sure whenever they shall call a Parliament to recognize their Title they will be even according to your own hypothesis more lawful and rightful Kings than King William and Queen Mary since they will not be only Kings de facto but de jure too and therefore I believe it was out of this Consideration that in all those long and various Contests which so often happen'd between Competitors for the Crown they never presumed to proposed to the Parliament the passing any Act to impose an Oath to abjure the Title or Person of the Rival Prince Thus in all the long Wars between King Stephen and Maud the Empress as also between the two Houses of York and Lancaster each of whom as they prevail'd in their turns were very well contented to make the Subjects take the ordinary Oath of Fidelity to themselves without abjuring each others Title and even in the later times of the Rump Parliament when the most violent and hot-headed Commonwealths-Men would have imposed an Oath of Abjuration of Charles Stuart and all his Family as they then termed his late Majesty the most Wise and Moderate Men among them such as Lenthal their Speaker and others stifly oppos'd it saying it would be a fighting against Providence to take an Oath never to own his Majesty for their King if once he should come in again without their assistance and I think there is as much if not more reason now against such an Oath of Abjuration as ever there was then F. I cannot deny but you have spoken like an honest Man in absolutely refusing to act under this Government though without an Oath unless you could be satisfied of
Communion cannot depend upon the Canonical or Uncanonical deprivation of any Bishops in England I desire you to consider these things as a Canon-Lawyer and give me your answer if you can against the next time we meet and then tell me whether the causes of this threatned Schism be so just and apparent that it is like to involve so many of the Wisest and most Considerate of the Clergy and Laity into open separation from the Church as you suppose it will not but that I will grant there be many of the Clergy of this Opinion who as well out of Conscience as for their own interest will be contented to set up and encourage such a separation thereby to make themselves heads of separate Congregations when they shall be deprived of their present Benefices and Imployments upon their refusal of this Oath M. I must confess I never heard so much said upon this head before and if you could make out to me all the matters of fact you have now instanced in I know not but that I may come over to your Opinion tho' let me tell you this is the first time that ever you can shew me that any Bishops were deprived in England by the meer Lay Authority of the King and a Great Council or Convention of the Laity whilst they continued of the same Church-Communion with those Bishops for as to your instance of the Popish Bishops deprived by Parliament in the Reign of Queen Elizabeth I doubt you will find it does not come up to the Point in question since the Queen and Parliament having then newly declared themselves Protestants did not own them for true and Orthodox Bishops and consequently thought they might justly depart from their Communion and upon the same account might deprive them and the Queen might then nominate others of their own Religion in their Places F. I cannot but differ from you in the matter of fack as you now relate it for Queen Elizabeth and the Parliament were when they made this Act so far from being separated from the outward Communion of the Church of Rome that Mass was then said and the Romish Priests still continued in all the Parishes and Churches of England and yet they still maintain'd an outward Communion though their Bishops were deprived by the Civil â—ower and others ordain'd in their stead So that it is plain the Papists themselves had then no notion of this new cause of Schism by reason of their Bishops being Uncanonically deprived nor indeed can we well vindicate the Honour or Legality of our Reformation if the Protestant Bishops who succeeded in the places of those who were thus deprived by Act of Parliament could not be Canonical because their Predecessors deprived by the Lay Power were still alive But admit this was the first time that ever it had been thus practiced yet if it were then reasonable and done upon good grounds I cannot see but when the necessity of the Church and State require it and that the Clergy in Convocation are so wilfull and wedded to some old false notions as not to consult the peace and safety of the Church and Kingdom why the King and Queen who are acknowledged to be Supream over Ecclesiastical as well as Temporal Persons may not together with the two Houses of Parliament make the like Law now as was done in the first of Queen Elizabeth for a less matter for none of those Popish Bishops though they believed Queen Elizabeth to have no better than a Parliament Title to the Crown yet ever denied her to be their lawful and rightful Queen only they would not own her Supremacy in Spiritual Matters But leaving the farther discussion of this Point to those who better understand it I would gladly know of you what you intend to do and what you would have us do who are like to be made Deputy Lieutenants and Justices of Peace for if as you your self allow there be a necessity that some Civil Government be maintain'd during King Iames's absence I desire to know of you how it can be managed and who shall manage it in case all the Gentlemen of England were of your Principle and should positively refuse the Oath of Allegiance to their present Majesties for if King Iames be never so much our lawful King it is not now possible for us to be Govern'd by him since he is goâ—e and God knows whether ever he may return again since then you cannot have him if you would and that there is a necessity we should be Govern'd by some body And since it is also as certain that those who actually Govern us will exact this or the like Oaths of Allegiance from us as were due to their Predecessors and that no man must expect to enjoy or execute any Place or Office not only of profit but of burthen and charge for the necessary execution of Justice and the maintenance of Civil Government without which we cannot live or subsist without taking this new Oath of Allegiance as the only means to qualifie them for it if then the end viz. Civil Government be absolutely necessary and the taking of this Oath is the only means allow'd of to qualifie men for it this seems as evident to me that taking of this Oath is not only justifiable by Law but by Reason and good Conscience since it is done for the highest and noblest end viz. the publick good of the whole Nation or Common wealth which you grant cannot subsist without some kind of Civil Government amongst us M. I will say something in answer to what you have now alledged concerning the necessity of taking of the Oath in order to the maintenance of some Civil Government without which I grant the Kings good Subjects cannot subsist till his return since I confess this is the strongest Argument you have yet brought all I can say to it at present it that if all your Country Gentlemen and all the Lawyers in England would be so firm in their Loyalty to his Majesty as unanimously to declare that they cannot take this Oath with a safe Conscience the consequence then would be that either the present Usurped Power must be forced to give up the Government to the right owner or else they must at least desist from pressing this Oath upon you F. You know well enough this is altogether a vain supposition since you cannot but be sensible that their Majesties have not only a sufficient force both of Native Englishmen and Foreigners on their side who can force those that should make any opposition to the taking it and that there are also many Fanaticks and Common-wealths Men who not looking upon themselves as at all oblig'd by your notions of Natural Allegiance and the obligations of any former Oath of Allegiance will get into all the Offices and Imployments of the Kingdom to the great prejudice and destruction not only of the Church but the Monarchy it self which is as yet preserv'd tho the Person