that they should have timely notice that they might give their advice in it as also that they might either come or stay away according to the greatness or urgency of the occasion and might also give their Under-Tenants notice to provide themselves with Horses and Arms and all things necessary in case a War should be agreed on which I think are sufficient reasons for thus expressing the Causes of their Meeting in the Writs of Summons M. Admit this were so which I shall yet take further time to consider of pray tell me in the next place if all your inferiour Barons Vavasors or Lords of Manours c. supposing them either to have appeared in Person or else as chosen for Knights of Shires or else as Citizens and Burgesses who were the Members of the great Council of the Nation I pray tell me why there should not have been the same care taken that they might be also Summoned as well as the Tenants in Capite certainly they came not to them by instinct nor is it scarce probable that they would leave their Country busineâ—s to Travel from one remote part of England to another to these great Councils which seldom continued above three or four days if they had had a Right so to do F. I shall answer you in few words because it was not at all necessary to express that Clause you mention for them all Since it was sufficient therein to follow the old Course of Summoning the Common Council of the Kingdom for doing which it had always been the Custom to give sufficient Notice by Writs of Summons of their Meetings whereas in this Council of Tenants in Capite Since there was by this Charter some alteration in the manner of their Summoning so there was also for expressing the cause of their Meeting For whereas before that as the Dr. himself allows all the Lesser Tenants in Capite had particular Letters or Writs of Summons expressing the Cause of their Meeting they were for the future to be Summoned by general Writs directed to the Sheriffs and therefore it was but reason that there should be a particular Clause reserved for their general Summoning which there was no need of in those Writs that were Issued for the summoning therest of the People or Commons to the great Council or Parliament as I doubt not but it would appear in case we had those Writs to produce in which likewise there was anciently often exprest the particular cause of their Meeting as there was for instance in those famous Writs to the Lords and Commons of the 49. Hen. III. which the Dr. hath given us in his answer to Mr. P. M. But I have still a greater objection behind than either of the former You cannot deny but that by the first clause of King Iohn's Charter which I have made use of all Aids and Escuages were to be imposed by the Common Council of the Kingdom and Littleton himself tells us in the second Book of his Tenures That Escuage is always to be Assâ—ssed by Parliament upon those that failed to do their Services after the Expedition was ended Now if this had not been a Right Inherent to the Great or Common Council of the Kingdom but that the Tenants in Capite alone assessed it in King Iohn's time how came they to lose that Priviledge and the great Council of the Kingdom or Parliament to get it if the former had not been the only great Council at the first F. I hope to give you as satisfactory an answer to this as I have to the rest of your Demands This alteration might have fallen out two ways either according to Camdens old Manuscript Author cited in his Introdâ—ction to his Britania the Summ of which is that when King Henry III. after his great Wars with Sim. Momford and the Barons had Ruined many of them he out of so great a Multitude which was before Seditious and Turbulent called the best and chiefest of them only by Writ to Parliament who after that time became Barons by Writ and not by Tenure as they were before And as for the lâ—sser sort of them called â—â—ones Minores they might be wholly resolv'd into the Body of the Commons or ordinary sort of â—ree-holders and the King being fearful of any farther encrease of Power in these Barons and Tenants in Capite might no more desire their Company at the usual Feasts of the Year whither before they used to come ex more and so their Power fell of course to the Council or Parliament of which before they only made a part Or else it might happen from the negligence of the Tenants in Capite themselves who growing weary of their Attendance might neglect to come to those Councils because of the great trouble and charge of those Journeys and the King being as willing to dispense with their Presence this Court was lost by Non-usage and so the judicial part of it remained in the House of Peers and that of Assessing Escuage and advising and giving Aids in matters of War fell wholly to the great Council of the Kingdom of which these Tenants in Capite by their being capable of being Elected Knights of Shires soon became the Principal Members But admit I should take this Council for Assessing Escuages for the Comâ—on Council of the Kingdom pray give me leave to ask you one or two Questions likewise in my turn Pray tell me therefore if this Council had been such as you would have it to what purpose is there a full Stop in all the old Coppies at the end of this Clause ad babendum Commune Concilium legâ—l de Scutagiis assidendis aliâ—er quam in tribus Casibus praelictis and why â—ould the next Clause begin with de Scutagiis assidendis submoneri faciâ—â—us 〈◊〉 if they had been both one and the same Councils Since it had been easier to put it all under one Clause If the matters therâ— Treated of had been the 〈◊〉 In the next place pray tell me if this were the great Council of the Kingdom or Parliament as it is now called why are there no other Rights or Priviledges reserved to this Council but this of Assesing Escuage Were not the Powers of granting other Taxes which could not be included under the word Escuages and also of giving their Assent to Laws things of as great say greater moment than this of Assessing Escuage M. I shall give you as short and satisfactory an answer as I can to those Queries In the first place I will not deny but that both the Clauses you mention might have been contracted into one supposing them to be read without any full stop between them as Sir H. Spellman in his Glossary supposes them to be But what is this to the purpose Must these therefore be two distinct Councils because the Charter it self words them a little more loosely than it needed to have done And as for your next Query there was no
it is manifest that at those times the Common Council of the Kingdom was held and from this also as from the former instances that the Barones Principes Optimates Mayres Regni did at those great Feasts pro more according to the Custom frequent the Kings Court and were the only Persons that constituted that great Assembly F. But pray give me leave to interrupt you a little did not I tell you but now that the King did often convene the Common Council of the whole Kingdom to meet the Bishops great Lords and Tenants in Capite at one of these Feasts and so it might be an Assembly ex more in respect of them but extraordinary to all the rest of the Kingdom and this often happened at other times as well as at these feasts according as the Kings occasions required when all the others were Summoned on purpose M. I have already answered that Objection and granting it might be so it does not prove it was so But I desire you to tell me what you can say to this expression in the Authority I have now made use of from Eadmerus Regnumâ—ombre convenit which is spoken of the most general Council when the Kingdom of England then met at the Kings Court So that your small Criticism upon the Words adunato Conventu or Concilio as if they signified this Union or Conjunction of two Councils into one is but a meer Pancy of your Authors those words signifying no more than a gathering or meeting together of all the Persons that constituted that Assembly as appears by these words in Eadmerus Adlinatis without either Praecepto or Sanctione Regis ad Curiam eâ—us in pascha Terrae Principibus i. e. the chief Men of the Nation being at his Court at â—aster But as for your main instance of King Iohn's Resigning his Crown to the â—ope in a Common Council of the great Lords and Tenants in Capite but not of the Common Council of the Kingdom I confess it were very considerable if it were true for tho I grant that in all the Charters of this Kings resignation the words you mention viz. Communi concitio Baronum nostrorum â—re inserted yet it could not be a great Council since tho I grant that all the Tenants in Capite were at that time Summoned to appear in Arms against the King of France yet it being a Military Summons for the gathering together of an Army and not for the meeting o a great Council and the five proscribed Bishops being in France and the Barons that sided with them fled beyond Sea and not darâ—ng to appear so that this resignation having been Executed before so small â— number of Barons as appears by the Witnesses to it viz. but two Bishops the chief Justidiary seven Earls and three Barons without subjoyning aliu Episcopis Comitibus Baronibus or Communitate or â—ota Communitate it does not appear that there were any more present so that this could not be such a Council as was constituted by King Iohn's Charter that is it was not a Parliamentary Council or general Representative of the whole Nation and therefore the Parliament in the 40th of Edw. III might very well say the resignation was made without their Assent and so I think this great Argument of yours comes to nothing F. Pray do not Triumph before the Victory For I doubt not but to prove notwithstanding what you have said that this was a real Common Council of the Barons and Tenants in Capite in which King Iohn resigned his Crown tho not of the Kingdom Which I prove thus First it appears by all our Historians that King Iohn had just before Summoned all the Earls Barons Knights and Freemen of the Kingdom whoever they were and of whomsoever they held to appear in Arms which made so vast an Army that after all the ordinary Rabble were sent home Matt. Parls tells us that the Knights Esquires and Freemen that stayed behind made an Army of 60 Thousand Men who were Encamped at Barham Down not far from Dover where this resignation was Executed So that this being almost as great a Meeting as that at Runne Mead not long after the King might very well have Summoned at least a great Council of all his Tenants in Capite to countenance this resignation and that he did do so the Charter it self says expresly which had it been otherwise would have appeared a notorious Lye to the whole World Nor do your Objections to the contrary prove considerable First you say this was only a Military Summons and not to a Common Council yet such a one as was constituted by this Kings Charter which sure could not be at this time when that Charter was not yet made till the Year after before which you grant that the great Councils might have met without the 40 days Summons expressing the cause of their Meeting and if they could meet ex more as you grant this Council did at the great Feasts of the Year without any Summons at all sure they might as well meet now on such an exigency The King had 't is true Summoned them at first upon another occasion but say you there was so small a number of Barons at this Meeting that it could not be a Common Council of the Kingdom neither do I say it was but the contrary but how does it appear it was not Why say you Five of the Bishops were then fled into France and a great many of the Barons of their Party The latter is not true in Fact few or none of the Barons siding with these Bishops but as for the Bishops what if Five were absent Were there not enough left to have made a Common Council of the rest of the Tenants in Capite Well but there were but Two Bishops present and Seven Earls and Three Barons as apPears by their Names at the end of this Charter without any mention of more or of the whole Communities being there a special reason as if no more could be present at this Assembly than whose Names are to it by this Rule the great Charters of King Iohn and 9 th of Hen. 3. were not made in a great Council of the whole Kingdom for there are no Witnesses Names expressed at the end of them it is true at the beginning of these Charters it is said they were done by the Council of certain Bishops Earls and Barons which yet were but a very few more of all sorts then there are mentioned at the end of this Charter of King Iohn's Resignation So that this appearance of the Bishops Earls Barons and Tenants in Capite is meerly precarious for if more might very well have been there it is most certain they were notwithstanding the paucity of the Witnesses to this Charter since those were added only for form sake and were commonly those who were nearest the Throne when the Seal was put to it I confess your first Objection is
in the time of King Edward I. and his Progenitors had sent two Burgesses to every Parliament or that the King and his Council should have ever received this Petition without indignation and a severe rebuke for their Impudence If all the World theâ— knew as certainly they must were it true that there was never any Election of Burgesses to Parliament before the 49th of Henry III. which was but fifty years before the 8th of Ed. II. who from thence had appeared no more till the 18th of Ed. I. which was but 24 years before the delivery of this Petition a time which must have been then fresh in the memories of most of the Kings Council there present Whereas they allow this general Claim of Prescription and every person tho' but meanly skill'd in our Law does understand a general Prescription viz. Ã tempore cujus contrarium memoria hominum non existit what it was then and so remains by the Law of England at this day as appears by our Ancient Records Law-books and Judicial Proceedings And surely the Burgesses of St. Albans did not ground their Petition of Right upon an Affirmation in Nubibus but the Justice certainty of their Claim as they very well knew which so they prayed it might be examined by uncontroulable proofs The Rolls of Chancery and the King Chancellor and all the Council did no less know there were such Entries on the Rolls and therefore order their search whereas if the very ground of their Petition had been notoriously false and idle as it must have been if neither this nor any other Burrough had sent Burgesses to Parliament before the 49th of Henry III. then instead of recording this Petition and Answer to future Ages they would with contempt and indignation have rejected it nor would the Abbot of St. Alban's Council and the Sheriff of Hertford against whom this Petition was exhibited have been wanting in their own defence to have shewed that this Ancient Prescription not only of this but of all other Burroughs was a meer Chimera and Fable But instead of this we do not find they made any opposition against it because they knew they had been summoned and appeared at divers Parliaments before that time as you may see in Prins Parliamentary Register they were in the 28th of Edward I. which is almost as early as we have any Writs of Summons left us to the Commons of this King's Reign And tho' it is true the Sheriff of Hertford in this 28th returns that the Bailiffs had made no Return of the Precept sent them yet this plainly proves that they were then looke upon as a Burrough and that it was very well known that it was wont to send Burgesses to Parliament or else it had been a vain thing for him to have sent them any such Precept at all And tho' it is also true there are no more Returns from St. Albans left us till the 35th of Edward the First yet that is no good Argument against their Appearance in the former years since the Writs and Returns upon them being in loose bits of Parchment might very well be lost as well as they are for many other places But that the Burgesses of St. Albans were summoned and appeared in Parliament in the 35th of Edw. I. appears tho' the Returns be lost by the Writs of Expences of this year being the first we have left us in Prin's Parliamentary Register for the Cities and Burroughs in which Lift the Burgesses of St. Albans are first upon the Roll and that they were in Parliament before this time may further appear by that Clause at the end of the Writ which I have already taken notice of viz. That they were to have their Experces for coming staying and returning prout in casu consimili fieri consuevit which words relate to Ancient Custom and extend to St. Albans as well as no any other Burrough there mentioned And that they also were summoned appeared in primo jecundo of Edward the Second in whose Reign this Petition was exhibited you may see in Prin's Parliamentary Registers both third and fourth parts in the last of which you may find the Names of the Burgesses returned in the first and fifth of this King as they might have been seen also in the second Had not the Return as Mr. Prin then acknowledges been torn off tho' it is plain that they appeared there and so may be likewise lost for all the rest of the years of this King till the Second of Edward the Third when we find they appeared again and so continue to send Burgesses to this day And if it be a good Argument of their Non appearance from the defect of Records I 'll undertake to prove that London and several other Cities did not send any Citizens to Parliament in several Kings Reigns as you may see in this List of Towne whose Writs of Expences we now mentioned of the â—5th of King Edward the Firstâ— where London and most other great Cities are omitted and yet St. Albans is in To conclude it is certain that this was no new Claim of this Burrough as appears by a Writ of the 5th of Edward the Second to the Sheriff of Hertford that the Bailiffs of the Abbot had refused to Levy the Expences for Ralph and Peter Picot who had served as Burgesses for the said Town in the last Parliament whereupon the said Ralph and Peter set forth before the King that the said Town used not to be Taxed with other Burroughs of the said County for the Expenses of Knights totis temporibus retroactis but that it is a Free Burrough and used to be summoned to Parliaments which have been summoned by the King and his Progenitors temporibus retroactis and that the Burgesses of the said Town used to receive their Expences as the Burgesses of other Burroughs of the Kingdom to which Plea and Petition of the said Burgesses when the King had appointed a day both to the said Burgesses and Bailiffs of the Abbot to appear before him in Chancery they failing at the day appointed the King therefore Issued out this Writ to the Sheriff of Hertford to summon the said Abbot and Bailiffs to appear again before him to shew cause why the said Ralph and Peter should not receive their Expences as aforesaid M. I will consider further of this Argument for I must ingeniously confess I never heard or understood so much of this matter before But pray proceed to the rest of your Authorities F. But that it was not only the Opinion of the Burroughs of St. Albans and admitted by the King and his Council but that also that it was the belief of succeeding Parliaments that the Commons were part of the great Council of the Kingdom long before the 49th of Henry III. for proof of which I desire you to call to mind that King Iohn in the 14th of his Reign made himself and Crown tributary
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
it would be left in her Power not only to govern her self but by marrying to chuse a King for her Subjects whom they do not approve of And therefore we read that in diverse of the Antient Kingdoms of the World Women were excluded from the Succession Nor are these the only questions that either might then or else have in latter Ages been started concerning Succession in Kingdoms and Principalities and have been the cause of great disputes between Pretenders to Crowns where a King Dies without Lawful Issue as whether a Grandson by a Younger Daughter shall inherit before a Grand-daughter by an Elder Daughter Whether the Elder Son by a Concubine before the Younger Son by a Wife From whence also will arise many Questions concerning Legitimation and what by the Laws of Nature is the difference betwixt a Wife and a Concubine All which can no ways be decided but by the Municipal or Positive Laws of those Kingdoms or Principalities It may further be enquired whether the eldest Son being a Fool or Madman shall inherit this Paternal Power before the Younger a Wise Man And what degree of â—olly or madness it must be that shall exclude him and who shall be the Judges of it Also whether the Son of a Fool so excluded for his Folly shall succeed before the Son of his Wiser Brother who last Reigned Who shall have the regal Power whilst a Widdow Queen is with Child by the Deceased King until she be brought to Bed These and many more such difficulties might be proposed about the Title of Succession and the Right of Inheritance to Kingdoms and that not as idle speculations but such as in History we shall frequently find examples of not only in our own but likewise other Kingdoms From all which we may gather that if the Laws of God or Nature had prescribed any set rules of Succession they would have gone farther than one or two cases as concerning the Succession of Elder Sons or Brothers where an Elder Son dies without Issue and would also have given certain infallible rules in all other Cases of Succession besides these and not have left it to the Will or particular Laws of diverse Nations to have established the succession so many several ways as I am able to shew have been practised in the World M. I must confess you have taken a great deal of pains to perplex the Succession to Adam which seems designed for nothing else but to make me believe that if Adam or any of his Sons were Kings or Princes it must have been by the Consent or Election of their Children or Descendants which is all one as to say that those Antient Princes derived their Titles from the Iudgment or Consent of the People the contrary to which is evident as well out of Sacred as Civil History F. Since you appeal to History to History you shall go and to let you see that I have not invented these doubts about Succession of my own Head and that there might have very well been a real dispute about the Succession to Adam in the Cases I have put may appear by the many disputes and quarrels that have been in several Nations concerning the Right of Succession between the Uncle and the Nephew of which Grotius is so sensible that he confesses in the latter end of the Chapter last cited that where it could not be decided by the Peoples Iudgment it was fain to be so by Civil Wars as well as private Combats and therefore he is forced ingenuously to confess that this hath been practised divers ways according to the different Laws and Customs of Nations and he gives us here a distinction between a direct Lineal Succession and a transversed and acknowledges that amongst the Germans as also the Goths and Vandales Nephews were not admitted to the Succession of the Crown before their Uncles the like may be said of the Saxons and Normans and therefore we find in our Antient English History that before the Conquest the Uncle if he were Older always enjoyed the Crown before the Nephew which I can more particularly shew you if you think fit to question it The like manner of succession was also amongst the Irish-Scotch for above 200 years after â—â—rgus their first King The like Custom was also observed among the Irish as long as they had any Kings amongst them and is called the Law of Tanistry The same was also observed in the Kingdom of â—astile where after the death of Alphonso the fifth the States of that Kingdom admitted his Younger Son Sancho to be King putting by Ferdinand de la Cerda the Grand-Son to the late King by his Eldest Son tho' he had the Crown left him by his Grand-Father's Will So likewise in Sicily upon the Death of Charles the Second who left a Grand Son behind him by his Eldest Son as also a Younger Son named Robert between whom a difference arising concerning the Succession it being referred to Pope Clement V. He gave Judgment for Robert the Younger Son of Charles who was thereupon Crowned King of Sicily and for this reason it was that Earl Iohn Brother to King Richard the second was declared King of England by the Estates before Arthur Earl of Brittain Son of Ieoffrey the Elder Brother and Glanvil who was Lord Chief Justice under Henry the second in that little Treatise we have of his makes it a great question who should be preferred to an Inheritance the Uncle or Nephew But as for Daughters whether they shall inherit at all or not or at least be preferred before their Uncles is much more doubtfull since not only France but most of the Kingdoms of the East at this day from Turkey to Iapan do exclude Women from the Throne And it was likewise as much against the Grain of the Antient Northern Nations and hence it is that we find no mention of any Queen to have reigned amongst the Antient Germans or Irish-Scots and never but two among the English-Saxons and those by Murder or Usurpation and not by Election as they ought to have done And upon this Ground it was that the Nobility and People of England put by Maud the Emperess and preferred Stephen Earl of Blois to the Crown before her for tho' he derived his affinity to the Crown by a Woman yet as being a Man he thought himself to be preferred before her So likewise in the Kingdom of Aragon Mariana in his History tells us that Antiently the Brother of the King was to inherit before the Daughter examples may also be given of divers of the other instances but these may suffice M. I Pray give me leave to interrupt you a little for by these examples you would seem to infer that these Laws about setling the succession of Crowns in several Kingdoms depended upon the Will of the People whereas I may with better reason suppose that if such Laws and Alterations have been in such successions they were made by
the Counsel and Consent as well of the Prelates as the Temporal Lords was accounted necessary in passing of all Acts of Grace and Favour to the People because that having many Royalties and large Immunities of their own a more near relation to the Person and a greater Interest in the honour of their Lord the King nothing should pass unto the prejudice and diminution of their own Estates or the disabling of the King to support his Sovereignty F. I confess you have given a plausible Account concerning the Government of William I. whom you call the Conqueror whereas if it be more exactly lookt into it will be found that he had no more Power of making Laws without the Consent of his Great Council than any of his Predecessors Neither had he any such Despotical Power as you imagin over the Lives and Fortunes of all his Subjects for whether we consider them as Normans French or Flemmings or whether as English it will be all one For if as Dr. B. supposes these latter were quite turned out of their Estates and that they were by him wholely given to the former then these French and Normans being Conquerors together with him would never have submitted to any other Government than what they enjoyed in their own Countries each of which was then governed by Kings or Dukes together with a Great Council or Assembly of the Estates and we find that when succeeding Kings would have oppressed and tyrannized over their Heirs and Descendants they together with the old English took up Arms and defended their Liberties and never laid them down until they had obtained their Iust Rights and Liberties contained in the Great Charters of King Iohn and Henry the 3d. And which as Math. Paris himself tells us in the Reign of King Iohn contained for the greatest part the Ancient Laws and Customs of the Kingdom And therefore by the Statute called Confirmatio Chartarum 25th Ed. 1st it is adjudged in full Parliament That the Great Charter and Charter of the Forest shall be taken as Common Law So that they were not any new Grants but rather Confirmations of their Ancient Rights and Liberties as my Lord Coke very well observes in his excellent Preface to his 2d Institutes where he tells us that Magna Charta is for the most part declaratory of the Principal Grounds of the Fundamental Laws of England and for the Residue is Additional to supply some Defects of the Common Law so that the Learned Chancellor Fortescue had very good Reason to affirm in his Treatise De â—audibus legum Angliae that it was then Governed in all King's times by the same Laws and Customs as it is now with whom likewise agrees one of his Learned Successors the late Earl of Clarendon in his Survey of the Leviâ—than when he tells us that those Laws and Customs which were before the Conquest are the same which this Nation or Kingdom have bin ever since governed by to this Day And as for the Laws of Edward the Confessor though it is true that William the Conqueror Re-granted and Confirmed them Yet was it no more than what he was obliged in conscience and honour to perform and observe since he was admitted to the Crown by the General Consent of the Clergy Nobility and People and at his Coronation as well as afterward swore to observe the Laws of King Edward And by the way tho these Laws are called the Laws of King Edward yet William of Malmsbury long since observed That they were called his Laws Non quâ—â—ulit sed quas observaverit that is he had only collected them into one body and ratified them with the Assent of his Great Council And that these Laws were more than once sworn to and confirmed by King William himself appears by the Story of Frederick Abbot of St. Albans who frighted him into a confirmation of them by Oath for fear of a general Insurrection of the People So that if he or his Son Rufus made any Breâ—ches upon their Liberties they were as it were ex post liminio restored to them by the Magna Charta's of Hen. I. K. Stephen K. Hen. II. K. Iohn and K. Hen. the III. And those oppressions contrary thereunto are branded by all Historians as Notorious Perjuries and Wrongs to the Subjects But that King William the First altered nothing material in the Fundamental Constitutions of the Government whatever he might do in some less material Customs or Laws which he brought with him out of his own Country appears plainly by this which you cannot deny that he often assembled his Great Council as his English Predecessors had done and that in them were dispatched all the Great Causes and Complaints of the Kingdom And for this I will give you the Testimony of two very ancient Historians The first is Râ—dolphus de Diceto who in Anno 1071 tells us That the Plaint of Wulstan Bishop of Worcester was heard and ended in Consilio celebrato in loco qui vocatur Pedreds coran Rege Doroberniae Archiepiscopo Primatibus totius Regni The next is Gervasius Dorobernensis who thus relates it Lanfranc Arch-bishop of Canterbury Eligentibâ—s eum Senioribus ejusdem Ecclesiae Episcopis at Priacipibus Clero Populo Angliae in Curia Regis in Assumptione Sandâ— Mariae Here the Episcopi Principes Bishops Princes the Cleri Populus the Clergy and People or Laity were the same Persons and only expressive of one another and all had Votes in this Election M. I pray give me leave to interrupt you a little I will not deny but that the Conquerour did often assemble Great Councils of his Bishops and Great Lords commonly called in Historians Principes or Primates yet I think I may boldly affirm that there were no Englishmen in those Councils or that they made any Laws for the Benefit of Englishmen who were kept under by those Normans who then enjoyed their Estates much less was there any such thing as Commons either by themselves or their Representatives in those Assemblies which then consisted wholly of the King 's Feudal Tenants in Capite and of no other as Dr. B. hath very plainly shewn us And when King William made Laws it is much to be doubted whether he made them so much as with the Consent of his Great Council or not for the Title to the French and Latin Copies of his Laws runs thus put into English These are the Laws and Customs which William the King granted to all his People of England after the Conquest or Subduing of the Land They are the same which Edward the King his Kinsman before him observed In this Preface we have only to note that the Laws are expressly said to be the King's Grant and the Supplemental Laws writ in the Red Book of the Exchequer are by way of Charter or Grant thus Wilhelmus Rex Anglorum c. Omnibus hominibus suis Francis Anglis salutem
well gather that this was none of the King 's Ordinary or Privy Council or else to what purpose was this Cause adjourned to the meeting of the next Parliament Since if it had been to be determined by the Privy Council it might have been done forthwith I shall give you but one Instance more out of the Close Roll of the 41 of this King wherein a Cause between Elizabeth Wife of Nicholas D'Audley and Iames D'Audley in a Controversie between them touching certain Lands contained in in the Covenants of her Marriage is said to have been adjudged Devant Son Conseil c'est a scavoir Chanceller Thresorier Iustices Aâ—ires Sages assemblez en la Chambre des Etoiles i. e. Before his Council viz. the Chancellor Treasurer Justices and other wise men assembled in the Star-Chamber So that when any thing in our old Statutes is said to be Ordained by the King and his Council it is always to be understood not as if this Council were a fourth Estate whose Assâ—nt or Advice was as necessary to the making of Laws as that of the Lordi Spiritual Temporal and Commons for then they would have had the same Power still but only according to the Custom of those times when most Acts of Parliament were drawn by them and that the King past none without their advice it was then said to be done by the King and his Council viz. in Parliament and I conceive the Power of this Council continued till the beginning of the Reign of Henry the Seventh when this Court being by Act of Parliament annexed to that of the Star-Chamber where also this Council of the King used to meet before as appears by the Case I have last cited and having afterwards only to do with Criminal Causes and that as well out of as in Parliament and that King Hen. 7 th not caring to exercise his Iudicial Power in private Causes as his Predecessors had done or to make use of their advice either in the drawing or passing of Bills which now began to be drawn by Committees in either house wherein those Bills were preferred this Council came by degrees to grow quite out of use as it is at this day I hope you will pardon this long digression which I have been drawn into to rectifie a Common mistake of the Gentlemen of your opinion who when they find any thing in our ancient Statutes or Records wherein the King's Council is mentioned presently entertain strange fancies of the Antiquity and Authority of the Privy Council M. I am so far from thinking this Discourse you have now made to be at all tedious that I give you many thanks for it since it gives me a light into many things which I confess I did not know before and I shall better consider the Authorities you have now given me and if I find they will hold shall come over to your opinion in that point tho I am not as yet satisfied as to the Legistative Power of the two Houses and therefore pray proceed to answer the rest of the Presidents I have brought on that Subject F. I shall readily comply with your Commands and therefore to come to those Statutes of the 15 th and 20 th of Edw. 3. which you suppose to have been repealed by that King without the Consent of the Lords and Commonâ— I grant indeed that the Statutes you mention were intended to be repealâ—d by the King without Assent of Parliament Yet was this not done by himself and his Council alone as you suppose but by a Council of Earls Barons and Commons which the Kings of England in those days were wont to call upon emergent occasions and for the doing of that which they thought Parliaments could not so speedily perform as in this pretended repeal of the Statute you mention And tho I grant this was a great brâ—â—ch upon the fundamental Constitutions of the Kingdom yet that it was done in such a Great Council as I have now mentioned I refer you to this pretended Statute its self and to your recital of it And that the King often called such Great Councils appears by an agreement of Exchange made for the Castle of Berwick between King Hen. IV. in the fifth year of his Reign and the Earl of Northumberland where the King promiseth to deliver to the Earl Lands and Tenements to the value of the Castle by these words which I shall render out of French from the Original which remains in the Tower By the advice and â—ssent of the Estates of the Realm and of his Parliament so that the Parliamâ—nt happen before the Feast of St. Lucie otherwise by the Assent of his Great Council and other Estates of his said Realm which the King will cause to be assembled before the said Feast in case the Parliament do not happen c. And yet notwithstanding this high strain of Prerogative King Edw. III. himself was not satisfied with this repeal of those Statutes you have mentioned but in the next Parliament held in his 17 th year he procured a formal and Legal repeal of them as by the Parliament Rolls of that year remaining in the Tower doth plainly appear And which I could give you at large did I not fear to be too tedâ—ous But I think it fit to let you know this because most ordinary Readers seeing no more appear in Print in our Statute Books are apt to imagin that the Kings of England in those days did often take upon them without Authority of Parliament to make and repeal Laws But as for your next Instance of the Statute of Edw. III. it is much weaker since tho I confess that in the Preface to these Acts there is only mention of the Great Men or Grantz as it is in our old French and other wise Men of our Council yet I shall prove at another time that under this word Grantz were meant the Lords in Parliament as by the wise men of our Council are understood the Commons And therefore it seems most reasonable to interpret the sense of many ancient Statutes wherein the King alone is said to make and ordain Laws by those later or more modern ones wherein the King by the Consent of the Lords and Commons or by Authority of Parliament is said to have Ordained them Since the true Stile and Meaning of ancient Laws which were penned with the greatest brevity ought to be still Interpreted by the Modern ones and not the Modern ones by the Ancient So that I am of the Learned Mr. Lambardâ— opinion who in his Arcbâ—ion or Discourse upon the High Courts of Justice in England expressly tells us That whether the Laws are said to be made by the King and his Wise Men or by the King and his Council or his Common Council or by the King his Earls Barons and other Wise Men or after such other like Phrases whereof you meet with many in the Volumes of Parliaments It comes all to this one
his Inferiors because an Inferior Power can never limit a Superiour And since all our Laws as well as the Oath of Allegiance and Supremacy we take to the King do own him to be the Sole Supream Governour of this Realm I cannot understand how this Limitation can consist with the King's Supremacy for if he be thus limited and restrained how is he Supream and if Restrained by some Law is not the Power of that Law and of them that made that Law above his own Supream Power And if by the Direction of such Law only he must Govern where is his Supream Power So that when the Law must Rule and Govern the Monarch as a Superior and not the Monarch the Law he hath at best but a Gubernative and Exâ—cutive Power Lastly if this Power of the Prince were Limited at the Original Constitution there must be a Power appointed in some Council or Senate call it a Parliament or Assembly of the States or by what Name you please whose business it must be to see them exactly kept and performed Now these Men must either have a Power barely of Advising the Monarch and perswading him to observe these Fundamental Limitations or else they must also have a Power of Forcing or Compelling him if he will not hearken to their Advice and Remonstrances if they have no more than the former Power that you say signifies nothing since the King may refute to hearken to them if he pleases and may do what he will notwithstanding but if they have also a Coercive Power over him and may Resist or punish him for his Transgressions he will then cease to be a Monarch Since he cannot be so who is accountable to any Power either Equal or Superior to himself And this our late Parliaments have bin well aware of when they Renounced all Coercive Power over the Person of the King and any Right of making War either Offensive or Defensive against him So that besides the History of matter of Fact which I can further give you to prove our Kings to have bin at first Absolute Monarchs I think the very Hypothesis of a mixt or limited Monarchy labours under such insuperable Difficulties and Absurdities that I cannot conceive how those Limitations by which we find the King's Prerogative now Restrained could ever proceed from any Higher Cause than the free Grants and Concessions of the Kings Predecessors confirmed by his own Coronation-Oath Which though I acknowledge he is bound to observe and that if he breaks it he commits a great Sin against God Yet it is only He that must punish him for so doing since the Oath is not made to the People but to God alone F. Notwithstanding what you have now said I hope I am able to shew you that all your Arguments against a Mixt or Limited Monarchy are more subtile than true For as to your first Argument from the word Monarch I grant indeed that strictly speaking the Word Monarch and Monarchy signifie a single Ruler and the Government of one alone Yet in Common Acceptation or according to the Laws and Constitutions of several other Kingdoms besides England as in the Empire in Denmark and Sweden the Emperor and those Kings have bin called Monarchs and those Kingdoms Monarchies though by the Original Constitution of those Governments those Princes have not bin invested with a pure Imperial Authority such as that of the Roman Emperors of Old Yet since they had the Executive and Gubernative part of the Government committed to them and that they were lookt upon as the Heads of those Kingdoms and that the Government did therein partake more of Monarchy than of any other Form those Princes have bin always reputed and that justly Monarchs notwithstanding there was a very great mixture of Aristocracy in the Empire and in Denmark and both of Aristocracy and Democracy in Sweden The like may be said of England France and those Kingdoms in Spain that were instituted by the Goths and Vandals the Francs and Saxons after the Ancient Gothic Model of Government And though I grant this sort of mixt Monarchy is not to be Reduced to any of the three distinct Kinds of Government layd down by Aristotle yet are they not for all that to be Condemned but rather the more approved of since by this mixture they were capable of diverse Benefits and free from several Mischiefs which are incident to any of those Forms of Monarchy Aristocracy or Democracy when exercised purely and without any such mixture And that this as to England it self is no Invention of the Common-Wealth-Men as you call them you may read King Charles the 1st's Answer to the 19 Propositions sent him by the Parliament for the words are Remarkable This Kingdom says he is mixt of Monarchical Aristocratical and Democratical Government and that so wisely that we have all the Conveniences and none of the Inconveniences of any of those Forms taken single Nor doth this at all Derogate from the Nature of the Monarchy nor make any Division between the necessary Functions of Soveraign Power For I have already granted that the executive or gubernative part is wholy in him as also the Power of making War and Peace and as for the Legislative as long as the King hath a Negative Vote in all Laws that pass and that they cannot be made without his Royal Sanction the Legislative Power is not divided as I have already proved But as for your other Argument against a Prince's being limited by the Original Constitution of Government tho as I yield it is more Subtile so it is also more Sophistical and fallacious than the former For your Dilemma by which you would prove the Absurdity of that Nation will not do because a Prince at the Institution of the Government may be limited by those who are neither Superior nor Inferior to himself but only equal in the State of Nature as I suppose the People to be with a King before he was made so by them And that Equals may thus limit each other you your self will not I suppose deny in the Case of Princes who are Equals in the State of Nature As Queen Mary for Example made such conditions with King Philip of Spain before she Marryed him that if he offered to meddle with the Government of this Kingdom without her Consent it would be Lawful for her to part herself from him and to send him home into his own Kingdom and might she not with a Safe Conscience have done so upon the Breach of the Conditions on his side Apply this to the People in the State of Nature and the person they are about to make King before the Politick Marriage of a Coronation or Admission to the Crown and see if they do not exactly agree or whether the People can be blam'd if they repudiate their Politick Husband for Invading that part of the Government which they had reserved to themselves Nor doth this argue any more Superiority in the People
Citizens or Burgesses nor were several strict Forms and Usages now Practiced ever then thought of nor some Legal niceties and Punctilio's now in use then judged absolutely necessary F. Pray give me leave to answer what you have now said from this Writ before you proceed to any other Record First as to your Argument from the variety or uncertainty of the number of Knights of Shires which you at first suppose to have been Summoned to Parliament that I doubt will prove a gross mistake for if we closlely consider the Writ it self it will prove no more then a Summons of these Knights to a great Council Colloquy or Treatise as the Writ here cal'â— it and not to a Parliament the words Colloquium Tractatum mentioned in the Writ not then signifying a Parliament but such a Collequy Treatise or great Council as is mentioned iâ— the Statute of the 7th of this King forbiding all Men coming with Arms to such Assemblies wherein there is also a plain difference made between Parliaments and such Treatises as I have already proved from the Statute of the Staple of the 27th of Edward III. which was first made in such a Treatise or Council as appears by the Title to the said Statutes and was afterwards confirmed by the next Parliament in the 28th year of the same King Cap. 1. whereby Magna Charta and all other Statutes before made are also confirmed for had this Summons been to a Parliament sure there would have bin also Writs of Summons found for the Electing and returning of Citizens and Burgesses as well as Knights of Shires to this Assembly and these Writs of Summons would have been entered on the Dorse of the Close Rolls according to the Rules your self have laid down whereas this Writ is only found in a loose Bundle of Writs of divers other Matters neither is there any title in the Margin of the Record as is usual in Writs of Summons to Parliament whereby it may appear what kind of Assembly this was to which these Knights were Summoned nor is your Argument from the date of the Writs of Summons any convincing proof that the Commons were not in this Parliament at the time of the Writ Issued since during the Session of this Parliament the Earls and Barons might make this Request for calling of those Knights out of the Counties to give their Opinions and Advice in the matters to be proposed to them by the King and that thereupon the King at their Request thought fit to Summon two or three more of the Knights of Shires to have their advice also And as for your last Argument that the same Parliament which gave the Tax above mentioned on the first of Iune must be sitting even to the very time of the return of the Writ because the Statute of Westminster the third was mane on the Quindene of St. Iohn Baptist viz. the 8th of Iuly So that the King and the Barons without the Commons made this Statute and that these Knights were Summoned after the act was passed There is no necessity of making these Consequences for this Parliament might very well be dissolved that very day this Act passed and this Council or Colloquy might be Summoned to Meet within three Weeks after Mid-Summer i. e. about the 16th of Iuly according to the Writ you have cited And so I believe it would appear were the Rolls of that Parliament now Extant as thâ—y are lost as well as those of divers succeeding Parliaments M. Well then you are forced to confess that this Writ was Issued whilst the Parliament was still sitting and if so I cannot see any need there was of another less Council or Colloquy to meet after the Parliament was ended since as long as it was sitting that could have much better dispatch'd all such business as the King had to do and how the King could foresee that he should have need of another Council before he had any business for it seems very improbable and therefore I think I may very well suppose with the Doctor that this Writ was a Summons to Parliament though it does not I grant expresly call it so but your Argument is of no weight that because this Writ was not entred upon the Close Roll that therefore it is not to be look'd upon as a Summons to Parliament as also because the Title to it is only Summonitio ad Consilium since the Doctor in his answer to Mr. P. gives us several Parliament Writs upon the Close Rolls with this Title ad Consilium which proves that the King had in those days a larger Power of calling what number of Knights of Shires he pleased to Parliaments as appears by two other Writs he there gives us of the 22d of Edward I. which are entred in the Close Rolls to the Sheriff of Northumberland to cause two Knights to be Elected for that County bearing Date the 8th of October and the next day after the King as appears by another Writ to the same Sheriff ordered him to cause to be chosen two other Knights besides the former and to cause them to appear at Westminster the morrow after St. Martin's Day to hear and do such things as the King should more fully enjoyn The like Writs with botâ— the former were sent to all the Sheriffs in England Now though it is true that the Title to the first of these Writs is only de Melitibus Eligendis Mittendis ad Concilium yet these words well considered must certainly here mean a Parliament both these Writs being entred upon the Close Rolls where all Writs of this kind are wont to be found as I have already observed and besides the words in the first Writ are the same with those which are found in several other Writs of Summons to Parliament viz. ad Consuleâ—dum Consentiend pro se Commâ—nitate illà biis qua Comites Barones Proceres prâ—dictâ— concorditer ordinaverint in praemissis F. I confess we are at a loss in this affair for want of the Records of this Parliament which if we had I doubt not but there would appear very good reasons why the Lords did then desire the King should consult more of the Knights of the Shires then what had appeared at this Parliament as that Lords might refuse to give their Advice in the matters proposed by the King without he would also consult more of the best and ablest Knights of Counties who were to come up with fresh Power and further Instructions what answer to give the King in the matters he should propose which that it was neither to give Money nor make Laws is plain since you say the Tax of 40s on even Knights Fee was given and the Statute of Westminster 3d. made before they came up to Parliament but indeed the words in the Writ plainly prove that this was no Parliamentary Meeting since they are here only Summoned ad Con ulendum Consâ—â—iendum whereas in all Writs of Summons to
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
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
to examine this Quotation because I confess it seems very specious at first sight but if it be throughly examined will make nothing at all for you And to this end pray let us read the Dr's Observations on this Passage at the end of his Answer to Argumentum Antinormaunicum F. But you need not read from the beginning of that Paragraph since I so far agree with the Dr. as that by Principes diversi Ordinus are not to be understood as this Author renders them whom the Dr. here writes against the Chief or Principal Men of several ranks or conditions but the Chief and Principal Men of both Orders viz. of the Clergy and Laity yet will it not therefore follow as the Dr. here would have it that these Principes diversi Ordinis were only Bishops â— Abbots and great dignified Clergy-men only and the Procenes and Magnates the Earls Barons and Temporal Nobility alone for though I grant he produces several Quotations out of Florence of Worcester Malmsbury Eadmer to prove that Principes Regni Ecclesiastici Secularis Ordinis Primates Regni utriusque Ordinis c. were at these Councils yet I have already proved that the words Principes and Primates do not in their proper signification signifie none but Bishops or dignified Clergy-men on the Temporal Nobility only since these words mean no more than Chief Principal or most considerable men both of the Clergy and Laity who had by reason of their Offices Dignities or Estates any place in our General Councils at that time and which did certainly comprehend the Inferiour Clergy also tho' the Dr. has made bold to pass them by without any notice taken of them and if they were then there by the same Rule the lesser Nobility or Commons were also summoned from divers Provinces Cities and great Towns M. Well But pray see here does not the Dr. prove plain enough that this Gentleman he writes against is mistaken in his Translation and applying the words Provinciis Vrbibus for Chief Lay-men from divers Countreys Cities and Burroughs whereas the Dr. here proves that the words mentioned in this passage cannot here mean Lay-men sent from County to Cities but only the Bishops whose Seats are here called Vrbes and which as the Dr. shews us were by a great Council held at London in the year 1077. being the 11th of King William translated from Villages to Cities as were Sherburn in Dorsetshire removed to Sarum Selsey to Chichester Litchfield to Chester which was before this Council at Westminster cited by Sulcardus which this Author places in the 14th of this King And the Dr. here farther proves from these words following pro causis cujuslibet Christianae Ecclesiâ—e that this Universal Synod being called for hearing and handling the Causes of every Christian Church that these words every Christian Church must certainly mean many Churches in England which in reason and probability could not be meant of the small Parish-Churches all the Nation over and therefore must be understood of Cathedrals or Churches where Bishops Seats then were or where they had been or were to be removed F. Pray give me leave to answer this Comment of your Doctors before we proceed farther In the first place suppose I grant him that by Vrbes may here be meant such Cities as had Bishops Seats yet does it not therefore follow that it shall signifie no other Cities or Towns but Bishops Seats only for tho' I grant in the Modern acceptation of this word Vrbs here in England a City and a Bishops Seat are one and the same yet it is plain that at first it was not so for then there had been no need of the Law you mention whereby it was ordained that Bishops Sees should be removed from Villages to Cities nor it seems were all of them so removed at this Council you mention since the Dr. shews us from this very place here cited that some of them still remained in Villis Vicis in Villages and small Towns and therefore it is here said Dilatum est ad Regis Audientiam qui in partibus transmarinis tunc Temporis bella gerebat â—And tho' the Dr. here supposes tho I know not on what grounds that the persons summoned by the King to this Synod from Provinces and Cities were such as were concerned or able to advise the King in this matter of the conveniency of the places whither the Removals were to be made as Deans Arch-Deacons and other dignified persons and Church Officers as well of the Clergy as Laity c. And also the Principes Regni the great Nobility who were in those days present in those Assemblies Now I shall only observe from these words of the Doctors that even in his own supposition all Cities had not yet Bishops Seats annext to them and therefore the word Vrbibus cannot mean Bishops Seats alone but any other great or walled Towns But the worst of it is it falls out very unluckily for the Dr. that this Charter we now mentioned bears date A. D. 1075. two years before this Law for removing Bishops Sees to Cities was made so that all his Learned Comment on that matter signifies just nothing and this is one of the Doctors very rational conclusions which have no other ground than his own Fancy to support them In the next place pray observe the Dr. owns that by these Principes universi Ordinis were meant the chief Clergy-men and Nobility he there musters up but passes by or else did not consider the whole Context of these words hii autem illo tempori diversis Provinciis Vrbibus ad universalem Synodum Convocati which must certainly refer to the Principes Regni diversi Ordinis to the chief and considerable Men both of the Clergy and Laity of the Kingdom who were alike summoned from divers Countreys and Cities and great Towns to this Synod Now pray do you or your Dr. tell me if he can what Earls Barons or great Noble-men were then summoned from Cities or great Towns as well as the Bishops and Deans of Cathedrals which if you cannot do I see no reason why we may not understand these Principes Regni who were also summoned from the Countreys and Cities for the Representatives of the Commons of those Cities and Towns at that time In the next place I think the Dr. is as much out in his interpretation of the word pro causis cujuslibet Ecclesiae for the causes of every Cathedral Church since it must certainly mean not only Cathedral Churches but all other Churches whether Parochial or Conventual for that it takes in the latter appears by one great cause of the summoning this Council which was chiefly for the confirmation of the Priviledges of the Abby of Westminster which sure was no Cathedral Church and yet must be some Church or Ecclesiastical Corporation or else this Synod could have had nothing to do with it And I doubt not but this General
Legitimi Barones who as Ordericus tells us came in with his Father and setled themselves here after the Conquest But as for your Quotations out of William of Malmesbury and Ordericus Vitalis â—â—ncerning the English assisting King William Rufus against his Brother Robert by using the common bait of Liberty viz. promising that he would alleviate the Rigid Laws of his Father and give free Liberty of Hunting in his Forests 't is true he thereupon raised an indifferent Army consisting chiefly of English who as Mathew Paris tells us were no better than Mercenary or Stipendary Souldiâ—â—â— and who had either no Estates or else had been turned out of them before so that this does not prove that they were men of any Fortunes who thus assisted William Rufus F. As for what you have now said against the citations of the names out of Doomesday book is not material since if English names were then common to the Normans and them then the Norman names might be as well common to the English and then many of those in England whom by their names we suppose to have been Normans might be Native Englishmen and as for what you urge against the express words of the Charters I have now cited I think it is a downright wresting of the words Francis and Anglis since no Author that I know of but your Dr. and is of that opinion For that the word Franci or Franâ—igenae does signifie such Frenchmen who held Baronies in England is granted on all hands but how Angli must also signifie Frenchmen seems a Paradox to me for how could these Frenchmen or Normans be termed Englishmen only because they held Estates here and not in Normandy for if the having such and such Estates in England would have turned Frenchmen into Englishmen there needed no such distinction to have been made between French and English Barons in these Charters since according to your Doctors Notion the French Barons could be no other ways mentioned here but as they had Estates here and therefore could be only writ to in that capacity since as meer Frenchmen they had nothing to do here so that if this Epithete was so in respect of the Tenure of their Lands they would have been stiled English Barons as well as the other nor is your other evasion more to the purpose that by the Angli might be meant in the Charters of Henry the I. such Norman or French Barons who because they were born in England might therefore be called English for who can believe that in so small a time as from the beginning of the Reign of King William the I. to that of King Henry the I. which was but a little above 30 years so many of the Norman Nobility were dead as should make it necessary to use this distinction of French and English Barons since by their Tenures they were both alike English and thus to make Angli signifie Normans is to confound and make all words tho' never so plain uncertain and equivocal but that a residue of the English And as for what Ordericus says of the old Norman Barons it would have signified if you could have proved he had called them Englishmen as he does not But if you carry it further to the time of the Empress Maud and King Stephen when all the Old Race of Normans were certainly dead then there was much less need of this distinction when all that were born in England were English alike and therefore the word French could only extend to those few Barons who being born in Normandy had Estates here But since you are forced to confess that for the first four or five years of King William the I. Reign there were both English Earls and Barons till the King had by degrees rooted them out there cannot be a better argument against your pretended right of Conquest since it is plain King William could never pretend to take away their Honours and Estates as a Conqueror since by his Coronation Oath he was sworn to restrain all Rapines and unjust Judgments and that he would behave himself modestly toward his Subjects and Treat both the English and French with equal right so that if he afterwards took away the estates of English Nobility or Gentry it was either because they deserved it by Rebelling against him then it was justly done or else it was done without any cause at all but only to oppress and root out the English Proprietors and if so such actions being contrary to his own claim from Edward the Confessor as also to his Coronation Oath could no more give him any such right to Rob or Spoil Men of their Estates without any just cause then it could give him a right to Rob the Churches and Monasteries of all the Plate Money and Jewels which he found in them even to the very Chalaws and Shrines as Matthew Paris and other Authors tell us he did in the fourth year of his Reign when likewise according as you your self set forth he began to shew himself a Conqueror or rather a Tyrant in the taking away the Estates of the English without any just cause But however the Authors of that time do not make so great a Tyrant of your Conqueror as the Doctor for William of Poictou expresly tells us who was Chaplain to this King concerning his taking away the Estates of the English and giving them to the Normans that nulli tamen Gallo datum est quod Anglo cuiquam injustè fuerit ablatum And Ordoricus Vitalis speaking of his dealing with the English it the beginning of his Reign says expresly neminem nisi quèm non damnare iniquum foret damnavit and therefore Sir Henry Spelman shews us in his Glossary out of an Ancient Manuscript belonging to the Family of Shurnborn in Norfolk That Edwin of Sharborn and several others that were ejected out of their Estates and Possessions went to the Conqueror and told him that never either before or in or after the Conquest they were against him the said King either by their Advice or any other aid but kept themselves peaceably and quietâ—y And this they were ready to make out which way soever the King pleased to appoint whereupon the said King ordered an Inquisition to be made throughout all England whether it were so or no which was plainly proved therefore he presently commanded that all those who so kept themselves peaceably in manner aforesaid as these had done should be repossessed of all their Estates and Inheritances as fully amply and quietly as ever they had or held them before this Conquest This is so plain an Authority that it needs no Comment I shall now conclude with a reply to what you have said to evade the Authorities of those Ancient Authors I have brought to prove that in the beginning of the Reign of King William the Second there were many English Gentlemen left of considerable Estates which you and your Doctor would â—ain make
our ancient Tenures and manner of holding and enjoying our Lands and Estates as will appear by comparing our Antient Tenures with theirs F. I shall not deny but that a great part of the matter of Fact is true as you have now put it yet tho' I grant that the Bishop Abbots Chancellors Chief Justices and other great Officers of the Crown were all or the greatest part of them Normans during the Reigns of the two first Kings of the Norman Race it doâ—s not therefore follow that these Men must have made a change in the very substance of our Laws tho' in matters of form of pleading or judicial proceedings they might have introduced great alterations for as to the Civil or Municipal Laws of this Kingdom concerning the Descent and Conveyance of Estates they continued the same after the coming in of the Normans and Lands held by Knights Service descended to the Eldest Son and Lands in free Soccage and Gavel-kind to all the Sons alike so likewise there were Estates In tail and Fee simple as now and there were also the like Customs of the Courtesie of England Burrough English c. as there are also at this day as I can prove to you by several passages out of our English Saxon Laws so likewise for Conveyance of Estates those of the better sort of People called Bookland were conveyed by Deeds with Livery and Seisin either with or without warranty as they are now but that which was called Folâ—land held by the meaner sort were only by Livery and Seisin without any Writing And tho' I grant that the custom of sealing of Deeds is derived from the Normans yet that is an alteration only in matter of forn and as for Goods and Money they were bequeathable by a Man's last Will as well after as before your Conquest And if you can have the opportunity to peruse a Manuscript Treatise of Sir Roger Owen's upon this Subject you will find it there sufficiently proved That Livery of Seisin Licenses or Fines for Alienation Daughters to Inherit Trials by Juries Abjurations Utlaries Coroners disposing of Lands by Will Escheats Gaols Writs Wrecks Warranties Felons Goods and many other parts of our Law were here in being long before the time of King William this being so as to the common Law let us see what alterations there were in the Criminal or Crown part of the Law first as to Treason and wilful Murther they were punished with Death in the Saxon times as well as after as were also Robery and Burglary in the night time but as for lesser ofâ—ences such as Batteries Maims Robberies and other breaches of the Peace they were punished by Fine as well before the Conquest as after but as for the Law of Englisherie which was that if a Man were found Murthered it should be presumed he was an Alien or Frenchman and the Town thereupon where the Body was found was to be fined unless Englisherie was proved i. e. that the person was an Englishman this Custom tho' it lasted to the Reign of Edward the Third when it was taken away by a Statute made on purpose tho it may seem a badge of the Norman Conquest yet was it indeed a Law introduced by King Knute in behalf of his Danes who being often found killed and none could tell by whom he obtained this Law to be made to prevent it as you will see at large in Bracton and the Mirrour of Justices But as for trial of all offences it was either by Juries Fire or Water ordinal by Dewel or Battle or else by Witnesses or Compurgators upon Oath as well before as after King William's entrance so that I can find nothing material as to the alterations of the Laws either in matters Criminal or Civil from what they were in the Saxons time and this being so it is easily answered how the Judges and Officers might be Normans and yet the Laws continue English still for first it is certain that for four or five years in the beginning of K. William's Reign he made no great alteration in the Judges and other great Officers of the Kingdom and by that time those whom he was afterwards pleased to imploy in the Rooms of such as either died or were turned out might very well come to understand the Laws of England as far as they distered from those of Normandy which was not in many particulars since as your self very well observed the Saxons and Normans being both Northern People had many of the same Laws and Customs common to both and the same persons might in three or four years time have very well learned English enough to have under stood the Evidence that the Witnesses gave before them without any Interpreter But say you all the Pleadings and Judgments were in French and therefore the Lawyers and Pleaders must be Frenchmen which is likewise a false consequence for Pray tell me why might not the English Lawyers have learnt French enough to Plead in three or four years time which must necessarily be required before so great an alteration could be made or Lawyers enough he brought out of Normandy and sufficiently instructed in our Laws and Customs could be fitted for their employments again supposing all Pleadings and other Proceedings to have been in French it does not follow that this practice could have obtained in all the Courts of England for tho' I grant that in the Kings Court at Westminster where the Judges as you say were for the most part Frenchmen or Normans yet this could only have some effect either in that great Court or Curia Regis where the King often sat in person together with his Chief Justiciary and other Justices or else in the Court of Common Pleas which followed the Kings Court till it was ordained otherwise by Magna Charta or else the Court of Exchequer where in those days only matters concerning the Kings Debts Lands and Revenues were chiefly heard and dispatched but as for the Court of Chancery it was not then used as a Court of Equity nor long after till the Reign of Henry the IV V and VI. when it arose by degrees as you will find in Sir William Dugdale's Origines Iuridiciales So that granting all the proceedings in these Supream Courts to have been in French because the King himself who sat there with the chief Justice and the rest of the Judges were either Normans or Frenchmen yet was this of no great importance in comparison of the Suits and Causes which were first begun and try'd in the Inferiour Courts in the Country before ever they could be brought up to London by Writ of Errour or Appeal which could only be in Causes of great Moment or between the Kings Tenants in Capite So that now to let you see that what say I say is true we will Survey all the inferiour Courâ—s of that time beginning with the lowest and going up to the highest of them The first Court we find of this kind
and Service to the Hundred and County Courts and that these very men were such as after your Conquest were called Barones Comitatus appears in this that those who before the Conquest were called Thanes are afterwards called Barons of Counties in all our Ancient Laws and Charters and for this I shall give you the Authority of Sir H. Spelman in his Glossary who tho' he does chiefly understand by this word all sort of feudal Barons dwelling in each County Proceres nempe Maneriorum domini yet nor only these but necnon liberi quique Tenentes hoc est fundoâ—um proprietarii Anglice Freeholders ut superius dectum est So that take it in which sense you will this word cannot signifie only Tenants in Capite or so much as Military Tenants as you suppose since a man might hold a Mannor by other Tenures than Knights Service as by grand or petty Serjeanty or in Soccage by a certain Rent and so likewise might he hold any other lesser Estate of Free-hold by the like Tenures which if it were so your Drs. Fancy of Tenants in Military service being then the only Free-men of the Kingdom and who were capable of serving upon Juries in the Hundred and County Court is a meer Chimera without any ground as I have already proved at our third meeting when I shewed you by the words liberi homines so often mentioned in King William's Laws are to be understood not only Tenants by Knights Service but any other Free-men or Free holders who held Lands or other Possessions which may be also proved farther by the Stat. of Merton Cap. 10. as appears by this clause Provisum est insuper quod quilibet liber â—omoqâ—â— sectam debet ad comitatum trithingum hundredum Wapentagium vel ad 〈◊〉 domini sui libere possit facere Attornatum suum ad sectas illas pro eo faciendas Whereby you may see that every Freeman who was a Master of a Family and not under the power of another was then obliged to pay Suit and Service to the County Trithing and Hundred Courts But say you these persons who were Jurors in this great Cause between Earl Odo and Arch-bishop Lanfranc are there called Primores and Probi viri not only of the County of Kent but other Counties where the Lands lay and it is not probable that the ordinary Free-men which made the greatest number and were all bound to their good behaviour could be the Probi Legales homines who served upon this Jury well I grant it that these Gentlemen you speak of might be Lords of Mannors and considerable for Quality and Estate and who alone were impannelled upon Juries in this and other such great tryals of Novel Disseiâ—in and yet for all that those lesser Free-men or Free-holders you mention were Legales homines and as such were capable of trying all Causes of what nature soever since Sir H Spelman tells us in his Glossary Title Legalis that In Iure nostro de eo dicitur qui stat rectus in Curia non exlex seu utlegatus non excommunicatus vel infamis c. sed qui in lege postulat postulâ—tur Hoc sensu vulgare illud in formulis juridicis probi legalis homines So that he does not make as you do that a Man's legality must depend upon his Tenure but upon his being rectus in Curia So that it is no more an Argument that because in some great Tryals in those times none but the chief and most considerable Men in the County were impannelled upon Juries in the County Court therefore none but they could ever serve there upon Juries at all then it would be now for a man to affirm that because in great Tryals at the Assises or at the Bar at Westminster only Knights and Gentlemen are Impannelled therefore none but they and not any Yeomen or Countrymen can ever serve upon Juries at all But let these Gentlemen you mention have been all Tenants in Capite or by Knights Service if you please yet will it not make good your assertion that they were only Normans or Frâ—nchmen who as the only Proprietors of Estates served upon this and other Juries at that time for they must have certainly been such who of their own knowledge knew the Lauds in question and to whom they did belong before K. William's entrance into England and your Dr. himself in his answer to Mr. Atwood's Ianus fully agrees to this truth as appears by this passage which I desire you would read In Tryals of Novel Dissâ—isin and for the Possession of Lands Customs Services c. the Juries at the time of the Conquest and in several of the King's Reigns next succeeding were Impannelled out of the same Town and Neighbourhood of such as did know the Land and things in question and who had been possessed of it and for what time And to this purpose in an Assize if none of the Jurors knew the right it self or truth of the matter and did testifie so much to the Court upon Oath recourse was then had to others until such were found who did know the truth but if some did know the truth and others not those that knew it not were put by and others called into the Court until twelve at the least should be found to agree therein and for this purpose it was that all Suitors to Hundred and Country Courts were bound to appear there under great penalties that thâ—re might be a Jury of such as knew whose the Land was and so far your Dr. is very much in the right but then that all the Gentlemen that served upon this Jury must be Englishmen is as plain from the reason he hath now given us and if he had not told us so we have an undeniable authority for it to wit the antient Mss. called Codex Roffâ—nsis quoted by Mr. Selâ—en in his notes upon Eadmerus where speaking of this Tryal Praecipit Rex Comitatum totum viz. of Kent absque mora considere homines Comitatus omnes Francigenas praeciput Anglos in antiquis legibus consuetudinibus peritos inâ—unum convenire But it also adds alii aliorum Comitatuum homines and so confirms what Eadmerus says so that nothing is more evident by your Doctors own shewing as also by the Testimony of this ancient Author that this great cause was Tryed either by Tenants in Capite and other great Free-holders were all Englishmen or such Frenchmen as were here before your Conquest so that from this famous Tryal we may draw two of three confusions directly contrary to your assertions First That there were many great Proprietors not only in Kent but in other Counties as appears by Eadmerus who were a sufficient number to try Causes in the County Courts a good while after your Conquerors coming over Secondly That the Pleadings and Verdict in this Cause being before Englishmen and given by them must have been all in
I do not suppose as a thing impossible it was for divers Ages exercised in the Roman Common-wealth wherein no Civil Magistrate could lay any greater punishment upon a Roman Citizen than banishment or deportation And if that Copy we have of the Laws of King William the first be authentick it is by the 67th Law in his Charter ordain'd That no English or French Subject should suffer death for any Crime whatsoever but only be punisht either by pecuniary Fines Imprisonment or else by loss of Ryes Hands Feet or Members which Law though I do not say was ever observ'd yet it shews it was then supposed to be both possible and lawful Now if this could be so there would be no necessity of supposing the Authority of the Common-wealth of Rome or of King William I. to have been deriv'd from God since they had renounced and refused the great Character thereof viz. the inflicting capital punishments but if for all that they still conâ—inued to be Lawful Civil Governments then it is evident that this power of life and death is not that which alone constitutes a Civil Power and makes it owe its Original to God But to return to what your notion concerning this power of life and death hath made me digress from pray let me â—sk you another Question After the Expulsion of King Tarquin and before the Common-wealth of Rome was form'd where was the Supream Authority lodged M. Why in the same Body it was afterwards the people of Rome comprehended under the Patritions and Plebtians that is the Nobility and Commons who yet retained the power of life and death over those of their own Children and Slaves though they communicated a great part of their power to the Senate and Consuls F. Very well Was this Authority they so conferr'd on the Senate and Consuls the same which they themselves could have exercised or was it any new Authority immediately deriv'd from God and created for that purpose M. I do not think it was any new created Authority but only a part of their former power which they so made over to the Senate and Consuls since they reserv'd one great part of it viz. the Legislative Power wholly in themselves but however this power which the Fathers of Families and Freemen among the Romans had over the lives of their Children and Slaves as also over others who were declar'd publick Enemies was deriv'd wholly from God yet there arose likewise a new power which these Fathers of Families were not invested with before viz. that of making Laws as also of War and Peace all which powers were deriv'd from God for the common good and defence of the whole People or Community F. Herein I also agree with you but then mark what follows it then plainly appears that the natural Subject of Civil Authority was the Fathers of Families and Freemen of Rome and that what share thereof was committed to the Senate and Consuls it was wholly personal and as their Representatives this being so pray answer me another Question when the Senate and People of Rome did afterwards confer their whole power upon the Roman Emperors by that Law mention'd in your Institutions Lex Regi was there then created or produc'd any new Authority from God to the first Emperor or was it the same Authority or Majesty which the Senate and People were endued with before for either it must be the same or else God must create a new parcel of this Royal Majesty or Authority wherewith to endue this first Emperor which if you suppose I can shew you a great many difficulties and absurdities that will follow from this Opinion for then I might ask you whether this Royal Majesty be like the Stoicks Anima mundi whose parts are distributed among all the Kings in the World or whether each King has his particular Majesty to himself or whether the King dying his Majesty also dies with him or whether it exist without him as the Soul do's when separated from the Body and by a certain kind of Metempsychosis is transferr'd to the new Monarch M. I shall not flick at present to affirm that this Authority or Majesty of the Roman Emperors was originally deriv'd from God though not immediately but by the mediation of the people of Rome as his Instruments especially ordain'd for the derivation of this Imperial power F. Well then I see you and I are at last agreed for I suppose all Civil power to be so deriv'd from God to the people and by them as an Instrumental Cause convey'd to the person whom they agree to make their King But if this were so in the Roman Common-wealth why are not all the rest of the Nations of the World indued with the like priviledge so that no man may justly make himself King over them without their Election or Recognition at least M. Perhaps in those Nations where the people have from the first Institution of the Government retain'd the whole Civil power in themselves or else by the Extinction of the Royal Family they became possest of it this power â—â—y afterwards by them be transferr'd or made over to one single person or more but this can by no means hold in divers other cases where God immediately bestows a Civil Power or Authority without the consent of the people as it is in the case of Kingdoms acquired by a Conquest in a Just War for as to Unjust Wars or Conquests I freely own they confer no Right at all but since you will not I suppose deny that such a Rightful Conquest confers an Absolute power on the Conqueror over the Lives and Estates of the Conquered as also an Obligation in them to submit to and obey the Conqueror hence must arise a new Civil power without any consent of the people intervening which Authority since no man can confer it upon himself must necessarily be immediately conferr'd by God since as I said before the people are only passive and have no hand at all in the conveying of it and this is the more remarkable because I suppose you will not deny but that where one Kingdom or Empire has owed its beginning to the Election or Consent of the people I could name ten that have begun from Conquest So that it is evident the people are very rarely the Efficient Causes of Civil power F. Though this Question concerning Conquest do's not immediately concern our Kings who as I have already proved do not owe their Regal Authority to Conquest but to the consent of the People Yet since the Title to a great part of our Kings Dominions begun at first from Conquest I shall now say something of it First then you grant that only Conquest in a just War can confer a Right to the Peoples obedience And therefore since the greatest part of the Governments have commenced from unjust Conquests it will therefore follow that the Right of such Princes to those Kingdoms Territories so unjustly acquired could not owe
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
of this Vote will prove so likewise F. Well you have made a pretty long discourse in Defence of King Iames's Actions as well as his late Desertion and I have heard you patiently because I grant you have collected together a great deal of matter in few words and I think all that can be justly urged in your Kings defence I shall therefore begin with the first false step that you say the Convention made in not inquiring after the Causes of the Kings departure whither he was gone and their not voting of an Address to the Prince to desire his return as for the first of these they were not at all obliged to do it since a great many of the Peers and Bishops who were then in Town very well knew the Causes of the Kings Departure and that he either went a way voluntarily or at least without any other necessity than what he had brought upon himself by his own evil Government or the ill Council of others which may be easily proved by several Circumstances for it is very well known that above a formight before the King went away the Lord D and Mr. Brent did not stick to declare that it was necessary that the King should withdraw himself so that it is plain the Popish Faction knew of it long before it was done and that it proceeded wholly from their advice appears further by a Letter to the King when he was at Salisbury which can be yet produced he was there told that it was the unanimous advice of all the Catholicks at London that he should come back from thence and withdraw himself out of the Kingdom and leave us in confusion assuring him that within two years or less we should be in such confusions that he might return and have his ends of us Now if the King was pleased to take such a desperate Counsellors Advice and thereupon to do all he could to quit the Kingdom the cause of his going is too evident as well as his design of returning to have his ends of us as they phrase it that is in plain English to have both our Religion Liberties and Properties wholly at his disposal nor in the next place needed they inquire where he was for every one knew he was gone into France to the greatest Enemy of our Religion and Nation as well as the Princes and therefore it had been altogether unsafe and indiscreet for them to have joined in any Address to the Prince for his return for whilst he was in such hands what hopes could we have of his returning to us with better but rather worse affections towards the Church of England and this Nation than what he carried with him But you say they refus'd to receive his Letters for my part I do not know that he ever sent any at least to the House of Commons I heard indeed that one of the Kings Ordinary Servants was at the Door of the House with such a Letter but that he was so inconsiderable that no body would receive the Letter or make any mention of it in the House and it was very strange that the King should have never a Friend there who had so much courage and kindness for him as would take the Letter and move for the reading of it though he had run the risque of being committed for his pains so that the House of Commons is not to be blamed for not receiving a Letter which was never offer'd them but as for the House of Lordâ— I have been told it was moved to be read there but it was carried in the Negative because it was not brought by a person of sufficient quality and credit and therefore it was the Kings fault if he would imploy such mean persons in a matter of that great moment and indeed if we may give credit to those Copies of these Letters which I have seen they retain'd rather a Justification of his past actions than an acknowledgement of those violations he had committed upon our Laws for as to his promising to Govern by Law there is nothing in that for he never yet own'd that he Govern'd otherwise 't is true there is in one of those Letters an expression of his amending past Errours but those are general words and may mean such Errours as he had committed in the ill management of his Designs which he would have mended when ever he was to do the like things again this may very well be the true Sence of a Letter it iâ— very likely written with the Equivocation of the Jesuits and French advice of a Cabal But you would have him sent for to return upon certain Terms I wonder you should be so undutiful as to urge it since if he is an absolute King without any Conditions what ever he ought certainly to be restored as King Charles the Second was without any Terms or Conditions at all and rather so than with them since he cannot give us greater assurances for his keeping them than he has already broke unless you can suppose he would give us the Guarranty of the Pope and the King of France for their performance the former of whom believes that there is no Faith to be kept with Hereticks and for the latter supposing the King and him to pass his word for the performance of these Conditions pray consider whether the bond of two Bankrupts can ever pass for a good Security and so much for the Letters and Address I come now in the next place to consider your exceptions against that Fundamental Vote of the House of Commons concerning King Iames's Abdication of the Government and thereupon declaring the Throne Vacant To begin with your first exception I think it is a very small one that because this Vote declares the King to have endeavour'd to Subvert the Constitution of this Kingdom that it was very unjust to declare him to have Abdicated the Government for a bare endeavour because we are ignorant of the true ends of the Actions of Princes to which I answer that in this Case a bare endeavour ought to be sufficient if it be so evident that there can be no dispute about it for if he had once actually subverted it the two Houses could never have met to have made this Vote and if in the case of Kings the very barâ— design or endeavour to destroy them be sufficient though it be never reduced into act I cannot see why by the same rule the endeavours of Kings to destroy the fundamental constitution of a mixt or limited Kingdom should not have the like construction in respect of them since according to the maxime you but now cited and which I have sufficiently justified that in all such Governments the safety and preservation of the People that is of the Government they have established is to be preferr'd before that of the King alone when acting in a direct opposition thereunto or otherwise it would be in the Kings Power to destroy the constitution whenever he pleas'd
the Nation from his Oppression though the Prince was pleas'd to accept it upon those terms expressed in the late Declaration of the Convention and upon his free promise to preserve preserve our Religion Laws and Liberties which he has since also confirm'd by his Coronation Oath But as to what you say that the Prince made the Kings Army desert him and wrought the People into hatred of his Person by lying Stories and mean Arts is altogether untrue since I know of no Reports he made of the King or his Government but what are in his first Declaration and that is certainly true in every part of it and as has been justified by the express Declaration of the Convention in every particular except that concerning the Prince of Wales which I confess is left still undecided because as I have already proved it is impossible to give any certain judgement in it unless the Witnesses as well as the Infant himself could be brought over hither nor doth the Prince in his said Declaration say any more concerning that business than that there are violent suspicions that the pretended Prince of Wales was not Born of the Queen but for the report of the Secret League with France for the extirpation of the Protestant Religion as there is no such thing in his Highnesses Declaration so the spreading of it cannot be laid to his charge since he never gave it out as I know of yet there are certainly great presumptions and too much cause of suspicion that it may be so as I proved at our last Meeting But though you will not allow the Prince the Title of our Deliverer yet I am sure the greatest part both of the Clergy and Laity of the Church of England were once of Opinion that King Iames's violations both upon our Religion and Laws were so great that nothing could preserve the Kingdom from a total Subversion in its Establisht Religion and Civil Constitution but his Highnesses coming over and most of the Bishops were of that Opinion who now the Government is setled refused to take the Oath of Allegiance to their present Majesties But to answer what you say that the manner of Henry the IV ths and Henry the VII ths coming to the Crown doth not at all agree with this Case of King William because they claimed by right of blood which you say King William cannot do that is not so in respect of the Queen who has certainly a right to succeed her Father by right of blood in case the Prince off Wales be not the true Son of the Queen and untill he can be proved so we must at present look upon him as if he were not so at all so that the Convention hath done no more in setling the Crown upon the King during his Life than what the Great Council of the Kingdom have frequently done before upon other vacancies of the Throne as I have proved from the Examples of William Rufus and Henry the First King Stephen King Iohn and Henry the Third And it is very hard to suppose the whole Nation to have been guilty of Perjury and Treason upâ—n their Swearing to and Fighting for those Princes after they were so Solemnlâ— Elected Crowned and Invested with the Royal Power But as for Edward III. his first and best Title was from the election of the Great Council of the Kingdom who I doubt not but if they had found him unworthy of the Royal Dignity by reason of folly or madness or Tyrannical Principles would have set him aside and have made his youngâ—â— Brother King a Protector to govern in the King's Name with Royal Power having never been known in England till the Reign of Henry the VI th but as for Henry the IV th notwithstanding his claim by right of Blood I have already proved that the Paâ—liament by their placing him in the Throne did not at all allow it nor is any such Right recited in the Act of the 7 th of Henry the IV th which by the Crown is entail'd upon that King and his four successive Sons And though it is true Henry the Seventh also claim'd the Crown by right of Inheritance in his Speech in Parliament yet they were so far from allowing it that they do not so much as mention it in that Act of Setlement which as I have recited they made of it upon that and the Heirs of his Body And therefore I think I may still maintain that the Convention hath done nothing in the present Setlement of the Crown but what hath been formerly done upon every vacancy of the Throne either by deposition or resignation of the King or Abdication or Forfeiture of the Crown as in the case of King Iames in which the Convention have done no more than exercised that Power which has always been suppos'd to reside in the great Council of the Kingdom of setling the Crown upon such a Prince of the Blood-Royal as they shall think best to deserve it Thus much I have said to preserve the Antient Right of the Great Council of the Nation But to put all this out of dispute I have been credibly inform'd that the Princess of Denmark her self did by some of her Servants in both Houses as well of the Lords as Commons declare upon a great Debate that arose about securing her Highnesses Right to the Crown immediately after her Sister the Queen that her Highness had desired them to assure the Convention that she was willing to acquiesce in whatever they should determine concerning the Succession of the Crown since it might tend to the present setlement and safety of the Nation which I think is a better Cession of her Right to his present Majesty than any you can prove that the Empress Mawd made to her Son Henry the Second or than the Countess of Richmond ever made to her Son Henry the Seventh M. You have often talked of this forfeiture and extravagant Power of your Convention by whom you suppose they are not obliged to place the Crown upon the head of the next Heir by Blood which I shall prove to be a vain Notion for if there be an absolute forfeiture of the Crown the Government would have been absolutely Dissolved for since there is no Legal Government without a King if the Throne were really vacant and that the People might place whom they pleas'd in it yet the Convention can have no Power to do it as their Representatives since upon your suppos'd dissolution of the Original Contract between the King and the People there was an end of all Conventions and Parliaments too And therefore if a King could have been chosen at all it ought to have been by the Votes of the whole body of the Clergy Nobility and Commons in their own single Persons and not by any Council or Convention to represent them since the Laws for restraining the Election of Parliament-men only to Freeholders are upon this suppos'd Dissolution of the Government altogether void and
ADVERTISEMENT THE Author hath thought fit for the Reasons he hath given you to alter the Method he laid down in his Preface to the First Dialogue and to propose the Subjects he treats of in this following Method Bibliotheca Politica OR AN ENQUIRY INTO The Ancient Constitution OF THE ENGLISH GOVERNMENT Both in respect to the just extent of Regal Power and the Rights and Liberties of the Subject Wherein all the Chief Arguments as well against as for the late Revolution are impartially Represented and considered in Thirteen Dialogues Collected out of the Best Authors as well Antient as Modern To which is added an Alphabetical INDEX to the whole Work LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford-Arms where may be had the First Second Tâ—ird Fourth Fifth Sixth Seventh Eighth Ninth Tenth Eleventh Twelvth and Thirteenth Dialogues 1694. THE QUESTIONS Debated in the Ensuing Dialogues WHETHER Monarchy be Iure Divino Dialogue the First Whether there can be made out from the Natural or revealed Law of God any Succession to Crowns by Divine Right Dialogue the Second Whether Resistances of the SVPREAM POWER by a whole Nation or People in cases of the last extremity can be justified by the Law of Nature or Rules of the Gospel Dialogue the Third Whether Absolute Non Resistances of the SVPREAM POWERS be enjoyned by the Doctrine of the Gospel and was the Ancient Practice of the Primitive Church and the constant Doctrine of our Regormed Church of England Dialogue the Fourth Whether the King be the Sole Supream Legislative Power of the Kingdom and whether our Great Councils or Parliaments be a Fundamental Part of the Government or else proceeded from the Favour and Concessions of former Kings Dialogue the Fifth Whether the Commons of England represented by Knights Citizens and Burgesses in Parliament were one of the Three Estates in Parliament before the 49th of Henry III. or 18th of Edw. I. Dialogue the Sixth Whether the Commons of England represented by Knights Citizens and Burgesses in Parliament were one of the Three Estates in Parliament before the 49th of Henry III. or 18th of Edw. I. Thâ— Second Parâ—â— Dialogue the Sevenâ—h A Continuation â—f tâ—e former Discourse concâ—rnâ—ng the Antiquity of the Commons in Parliament wherein the best Authorities for it are proposed and examined With an Entrance upon the Question of Non Resistance The Third Part Dialogue the Eighth Whether by the Ancient Laws and Constitutions of this Kingdom as well as by the Statutes of the 13th and 14th of King Charles the II. all Resistance of the King or of those Commissioned by him are expresly forbid upon any pretence whatsoever And also whether all those who assisted his present Majesty King William either before or after his coming over are guilty of the breach of this Law Dialogue the Ninth I. Whether a King of England can ever fall from or forfeit his Royal Dignity for any breach of an Original Contract or wilful violation of the Fundamental Laws of the Kingdom II. Whether King William commonly stiled the Conquerour did by the Conquest acquire such an absolute unconditioned Right to the Crown of this Realm for Himself and his Heirs as can never be lawfully resisted or forfeited for any Male-Administration or Tyranny whatever Dialogue the Tenth I. In what Sense all Civil Power is derived from God and in what Sense may be also from the People II. Whether His Present Majesty King William when Prince of Orange had a just Cause of War against King Iames the II. III. Whether the Proceedings of His Present Majesty before he was King as also of the late Convention in respect of the said King Iames is justifiable by the Law of Nations and the Constitution of our Government Dialogue the Eleventh I. Whether the Vote of the late Convention wherein they declared the Throne to be vacant can be justified from the Ancient Constitution and Customs of this Kingdom II. Whether the said Convention declaring King William and Queen Mary to be Lawful and Rightful King and Queen of England may be justified by the said Constitution III. Whether the Act passed in the said Convention after it became a Parliament whereby Roman Catholick Princes are debarred from succeeding to the Crown was according to Law Dialogue the Twelfth I. Whether an Oath of Allegiance may be taken to a King or Queen de facto or for the time being II. What is the Obligation of such an Oath whether to an actual defence of their Title against all Persons whatsoever or else to a bare submission to their Power III. Whether the Bishops who refused to take the Oath of Allegiance to their present Majesties could be lawfully deprived of their Bishopricks Dialogue the Thirteenth ADVERTISEMENT THE Author writing these Dialogue purely for the discovery of Truth and for giving a full and impartial account of all the considerable Arguments and Authorities that have been urged on either side in the Controversies discussed in the foregoing Dialogues if therefore any Person who having perused them is dissatisfied with any of the Arguments Answers or Authorities there made use of and supposes he could confute them or else put better in their stead if such Persons do not think it worth while to write a Treatise on purpose on this Subject they may if they please send their Animadversions to the Publisher of these Dialogues who will undertake to communicate them to the Author who hereby also engages to Publish them fairly without any Alterations or Additions together with his Answers or Replys to them if the Subject will admit it the Persons concerned may follow the Method used in the foregoing Appendix of Additions but are desired to send in their Animadversions by the beginning of next Michaelmas Term when if sent they shall be Publish'd Bibliotheca Politica Or A DISCOURSE By way of DIALOGUE WHETHER MONARCHY BE IVRE DIVINO Collected out of the most Approved Authors both Antient and Modern Dialogue the First LONDON Printed for Richard Baldwin in Warwick-Lane near the Oxford-Arms 1694. The Epistle Dedicatory To all Impartial and unprejudiced Readers especially those of our Hopeful and Ingenious Nobility and Gentry HAving out of Curiosity for some years before the late wonderful happy Revolution as well aâ— since for the satisfaction of my own Conscience carefully perused all Treatises of any value that have been published of late years concerning the Original and Rights of Civil Government aâ— well of Monarchy aâ— the other kinds thereof as also of the Antient Government and Fundamental Constitutions of this Kingdom I have found it necessary in order to my better retaining of what I had read and making a more certain Iudgment thereupon to commit to writing the most considerable Arguments on both sides as well of those who have Monarchy to be Jure Devino as of those who only allow it to Government in general of those who hold an Absolute Subjection or Passive Obedience as their Phrase is as well as
Cowardice of his Souldiers F. Methinks Sir there is no such great cause of wonder much less of concern in all this For who can much admire that a Prince should be thus used who had not only provok'd a Powerful Enemy to invade him from Abroad but by industriously labouring to introduce Popery and Arbitrary Government at Home had lost the Hearts of almost all except his Popish Subjects insomuch that many of his own Souldiers were so terrified with the Thoughts of being discarded like the Protestant Army in Ireland to make room for Irish and French Papists that they had very little Courage to Fight when they saw Casheering was the best Reward they could expect if they proved Victorious And who can much pity a Prince who would rather loose the Affections of his People than displease a few Priests and Jesuites So that if he suffers he may thank himself it not being Religion but Superstition which brought this Misfortune upon him Since the King having got a Prince of Wales and as it is highly suspected joined himself in a strict League with France for the Extirpation of Hereticks it laid an absolute necessity upon the Prince of Orange to come over that by the Assistance of the States of Holland he might not only relieve us but vindicate his own and her Royal Highness his Princessâ—s Right to the Succession and secure his Countrey from a dangerous and powerful invasion which it was threatned with both by Sea and Land whenever the Kings of France and England should be at leisure to joyn their Forces to make War upon them which you know all Europe hath expected for above these two Years last past M. These things were somewhat if they could be proved but indeed to deal freely with you I look upon this League and the Story of the Suppositious Birth of the Prince of Wales as meer Calumnies cast out of Wicked and Crafty Men to render the King more odious to his People F. Nay Sir you don't hear me positively affirm either the one or the other since I grant they are not yet made out but whatsoever will consider all the Circumstances of the Birth of this Child cannot but be strongly inclined to believe it an Imposture notwithstanding all the Depositions that are taken to the contrary And as for the French League you may be sure if there be any such thing it is kept very private and yet I must tell you there are very high and violent Presumptions to believe it true or else why should the King of France in a late Memorial to the Pope complain that his Holiness by Opposing his Interest in Europe had hindered him in those great Designs he had for the Extirpation of Heresie by which he must surely intend England or Holland Protestantism being sufficiently expelled out of his own Countrey already And he could not do it in either of the other without the Consent and Assistance of his Brother the King of England Or to what purpose should the King of England joyn with France to ruin Holland and his own Son in Law into the Bargain but to make a War meerly for Religion since neither the Dutch nor the Prince their Stadt-holder gave him till now any just Provocation M. Well however these are but bare suspitions and presumptions at most and not proofs and therefore in a doubtful matter as this is if we ought to judge favourably of the Actions of others much more of Princes whose Councils and Actions tho' private yet are still exposed to the Censure and Calumnies of their Enemies and therefore I hope you will not blame me if I freely confess that I am deeply concerned to see an innocent and Misled King forced to seek his Bread in a Forreign Land and the more since many of the Nobility Gentry and Common People have contributed so much to it by taking up Arms against him and that so great a part of his own Army and Officers should contrary to their Allegiance and Trust reposed in them run over to the Enemy Nay that some of our Bishops and Clergy-men should contrary to the so often acknowledged Doctrines of Passiveâ— Obedience and Non-Resistance not only Countenance but be likewise active in such desperate undertakings and this in-direct opposition to the known Laws of God and this Kingdom which must needs make our Church a Scorn to our Enemies the Papists and a Shame and Reproach to all Protestant Churches abroad and render the people of England odious to all the Crowned Heads in Europe F. Well Sir I see you are very warm and I hope more than the cause deserves You may Judge as favourably of the King's Proceedings and as hardly of the Actions of the Nobility Gentry Clergy and People in this matter as you please But yet I think I can make it as clear as the Day that they have done nothing by joining in Arms with he Prince of Orange but what is justifiable by the Principles of Self preservation the Fundamental Constitutions of the Government and a just Zoal for their Religion and Civil Liberties as they stand secured by our Laws unless you would give the King a Power of making up Papists and Slaves whenever he pleased But as for your Doctrine of an Absolute Obedience without Reserve and the Divine Right of Monarchy and Succession you need not be much concerned whether the Papists laugh at you or no since there are very few of them if any who are such Fools themselves as to believe such futilous Opinions But indeed they have more reason to laugh at you whilst you maintain than when you quit them since as they have only rendered you a fit Object of their Scorn so they would have made you but a more casâ—â— Sacrifice to their Malice For what can Thieves desire more than that those they design to Rob should think it unlawful to resist them And what could the Papists have wisht for more than that our Hands being fotterred by this Doctrine of an indefinite Passive-Obedience our Lives Religion and Liberties should lye at their Mercy Which how long we should have enjoyed whenever they thought themselves â—â—rong enough to take them away the late cruel Persecutions and Extirpations of the Protestants in France Savey Hungary and other places have proved but too fatal Examples and therefore no wonder let your high-flown Church-men write or preach what they please if the Body of the Nobility Gentry and People of England could never be perswaded to swallow Doctrines so fatal to their Religion and destructive to their Civil Rights and Liberties both as Mon and Christians And as for the Antiquity of these Doctrines I think they are so far from being the Antient Tenets of the Church of England that they are neither to be found in its Chatechism Thirty Nine Articles or Book of Homilies taken in their true Sense and Meaning thô indeed there is something that may tend that way in some of the late Church-Canons about
fifty years ago but I do not look upon them as the Antient Establisht Doctrine of our Church because these Canons are not confirmed but condemned by two Acts of Parliaments and consequently never legally Established as they ought to be by the publick Saction of the King and Nation Our Old Queen Elix Divines such as Bishop Bilson and Mr. Hooker being wholly ignorant of these Doctrines nay teaching in several places of their Writings the quite contrary Noâ— was this Doctrine of absolute Subjection and Non-Resistance ever generally maintained until about the middle of King Iame's Reign when some Court Bishops and Divines began to make new Discoveries in Politicks as well as Divinity and did by their Preaching and Writings affirm that the King had an absolute Power over Mens Estates So that it was unlawful in any Case to disobey or resist his Personal Commandâ— if they were not directly contrary to the Law of God as may appear by Dr. Harsâ—et then Bishop of Chichester his Sermon upon this Text Give unto Caesar the things that are Caesar's wherein he maintained That all the Subjects Goods and Money were Caesar's that is the Kings and therefore were not to be denied him if he demanded them for the publick use which Sermon thô order'd by the Lords and Commons to be Burnt by the Hangman yet was so grateful to the Court that he was so far from being out of Favour for it that he was not long after Translated to Norwich and from thence to the Archbishoprick of York So likewise about the beginning of the Reign of King Charles the First Dr. Manwaring preached before him the substance of whose Sermon was somewhat higher than the former viz. That the King was not bound by the Laws of the Land not to impose Taxes or Subsidies without the Consent of Parliament and that when they were so imposed the Subjects were oblieged in Conscience and upon pain of Damnation to pay them which if they refused to do they were guilty of Disloyalty and Rebelion For which Sermon he was Impeacht by the Commons in Parliament 4. Car. I and thereupon Sentenced by the House of Lords to be Disabled to hold or receve any Ecclesiastical Living or Secular Office whatever and also to be Imprisoned and Fined a Thousand Pound Notwithstanding all which we find him presently after the Parliament was disolved not only at Liberty but also presented by the King to a Rich Benefice in Essex and not long after made Bishop of St. Davids So likewise one Dr. Sibthorp about the same time preached an Asâ—ize Sermon at Northamtâ—n on Rom. 13.7 wherein he maintained much the like Doctrines as that it was the King alone that made the laws and that nothing could excuse from an active Obedience to his Commands but what is against the Law of God and Nature And that Kings had Power to lay Pole Money upon their Subject Heads But this much I have read that this Sermon was Licensed by Dr. Laud then Bishop of St. Davids because Archbishop Abbot had refused to do it as contrary to Law for which he was very much frwoned upon at Court and it is supposed to have been one of the main causes of his Suspension from his Arch-Episcopal Jurisdiction which not long after happened But as for this Siothâ—rp tho he lived long after even till the Kings Return yet being as Archbishop Abbot describes him a man of but small Learning I cannot learn that he was ever preferred higher than the Parsonages of Barchley and in Northamptonshire But I find a New Doctrine broach'd by some Modern Bishops and Divines about the middle of the Reign of King Iames the first That Monarchy was of Divine Right or Institution at least so that any other Government was scarce warrantable or lawful and of this New Sect we must more especially take notice of Sir R. F. who hath written several Treatises to prove this Doctrine and which is worse That all Monarchs being Absolute they cannot be limited or obliged either by Oaths Laws or Contracts with their People farther than they themselves shall think fit or consistent with their supposed Prerogatives of which they only are to be the Sole Judges So that whoever will but consider from the Reign of our four last Kings what strong inclinations they had to render themselves Absolute and that few Divines or Common or Civil Lawyers were preferr'd in their Reigns to any considerable Place either in Church or State who did not maintain these New Opinions both on the Bench and in the Pulpit You need not wonder when the Stream of Court Preferment ran so strong that way if so many were carried away with it since it was but to expose themselves to certain misery if not to utter ruin to oppugn it All who offered by Speaking or Writing to maintain the contrary being branded with the odious Names of Puritans Common-wealths-men Whigs c. Some of whom you may remember were not long since imprisoned Fined nay Whipt for so doing So that it was no wonder if there were but very few to be found who durst with so great hazard speak what they thought nor could any thing but the imminent danger upon our Laws Religion and Properties proceeding from the Kings illegal practices have opened the Eyes of a great many Noblemen Gentlemen and Clergy who contrary to the Opinions so much lately in vogue did generously venture both their Lives and Estates to joyn their Arms with the Prince of Orange against the King's unjust and violent Proceedings M. I do not doubt notwithstanding all you have said to prove before I have done these Doctrines of Non-Resistance and of the Divine institution of Monarchy to be most consonant to the Word of God and to the Doctrine of the Primitive Church and also to that of our Reformed Church of England Nor were those Divines you mention in K. Iames the First 's time the Authors or inventers of these Doctrines which were publickly received and Decreed by both Houses of that Convocation which began in the first Year of K. Iames and continued till the Year 1610. as appears by divers Manuscript Copies of the Acts or Decrees of this Convocation the Original of which was lately in the Library founded by Dr. Cousins late Bishop of Durham besides a very fair Copy now to be seen in the Archbishops Library at Lambeth which if you please to peruse you may be quickly satisfied that the Church of England long before ever Sir R. F. writ thoses Treatises you mention held that Civil Power was given by God to Adam and Noah and their Descendants as also that absolute subjection and obedience was due to all Soveraign Powers without any resistance as claiming under those Original Charters These Doctrines being there fully and plainly laid down and asserted as the Doctrines of our Church So that you deal very unjustly with the memory of those Divines as also of Sir R. F. to
and Subjection to Princes but by a Humane Ordinance what reason is there that the Laws of Nature should give place to those of Men I can easily reply that the Power of a Father over his Child gives place and is Subordinate to the Supream Powers because they are both ordained so by God in the Law of Nature it being highly reasonable that the good of a private Family should give place to the common good of the Common-Wealth which is a sufficient reason and extends to all Nations which never so much as heard of the Ten Commandments But to come to your Quotation out of Seneca I think this hath a great deal less weight in it than your Argument from the Fifth Commandment For tho' this Philosopher writ to the Emperour to perswade him to Clemency yet this I am sure of that as he never dreamt of this Notion of Adam's Soveraignty or believed that every Prince was endued with Paternal Authority because amongst other Titles he was stiled Pater Patriae And therefore what this Author here says is to be looked upon only as a Rhetorical flourish or at the most to be understood but in a Metaphorical sense the Arguments of this Author not being to be always taken strictly as a Logician but only as an Orator who was to make use of all appearances of Reason to perswade a young Prince to Mercy and Clemency and yet all this was not sufficient as Seneca himself found before he died by woful experience And Seneca very well knew that Tully was stiled Pater Patriae by the Senate tho' he was never endued with your Imperial or Paternal Authority But to reply a little to your Answer against my last Argument that Princes not being our Natural Fathers must often want that Natural and Fatherly Affection towards their Subjects and therefore may Tyrannize oveâ— them I think the first part of your Reply will make nothing in confutation of what I have said For tho' I will not deny but God who hath the hearts of Princes in his hands may sometimes endue them with such Affections as he thinks fit not only towards the People in general but towards each particular person yet this may be as well evil as good Affections As God is said in Iudg. 9. To have sent an evil Spirit between Abimelech one of your usurping Monarchs and the Men of Sichem his Subjects And therefore God may as well send the one for the punishment as the other for the benefit of a Nation And that God is more likely to incline the hearts of Princes to such evil than good Affections towards their Subjects may appear from Mankinds more often deserving God's Anger for their evil deeds than Favours for their good ones And I desire you would shew me in how many Absolute Monarchies now in the World God Almighty is pleased to declare this wonderful Operation of these Fatherly Affections towards their People I pray deal ingenuously and tell me is it to be found in our European Monarchies where most Princes do not only miserably harass and oppress their Subjects by intolerable Taxes and standing Armies till they reduce them to the Lowest condition of Beggary and Desperation and where for the least differences in Religion they take away their Subjects lives by that Cruel Tribunal of the Inquisition without any Fair or Legal Tryal or else where notwithstanding all Edicts Oaths and Vows to the contrary they seize upon and spoil their Subjects of their Estates and imprison and torment their persons by those Booted Apostles the Dragoons because Faith is not to be kept with Hereticks or else in another Country where the Prince took upon him a Prerogative to dispense with all Laws at his pleasure and to imprison and turn men out of their Freeholds contrary to the known Laws of the Kingdom Or to conclude must we look for these Divine Operations amongst the Eastern Monarchy where they treat their Subjects like Slaves and allow them no Property either in Lands or Goods farther than they think sit and to have their persons and lives wholy at their mercy to be castrated made Slaves of or killed as often as it shall please their humour or passion And I doubt if you will but read Antient as well as Modern Histories and also survey the State of Mankind in all the Absolute Monarchies between France and Iapan you will find more frequent Examples of the evil than good Affections of these your Artificial Fathers towards their Adopted Children M. I cannot deny but you have given a very Tragical Account of the Tyranny and Oppressions under divers Absolute Monarchies now in the World yet this is not the fault of the Government but of the Evil Principles bâ—d Education or Temper of those Monarchs as also often times from the unquiet and rebellious disposition of their Subjects from the distrusting of which they place all their security in standing Armies and Guards so that I must grant that all those Governments that are maintained by Armies too strong for the Subjects in general are 〈◊〉 and degenerate into Despotick Monarchies and are unsafe both to the Princâ— and People And to let you see that it is not my intention 〈◊〉 maintain or defend Oppression or Tyranny I must freely assert with Sir R. F. whose Principles I here take upon me to maintain that all Princes are bound to treat their Subjects as their Children and that it is contrary to the Nature of Mankind to make their Off-spring Slaves and that all Kings nay Conquerors too are bound to preserve the Lands Goods Liberties and Lives of all their Subjects not by any Municipal Law 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 But yet you have not done fairly not to take notice of the great Oppressions that are exercised in some Common-wealths likewise towards their Subjects which if you would please to consider and weigh the fewness of these against the great number of Monarchies now in the World I believe you will have good cause to confess that there are many more good Monarchs than Equal Common-wealths and I do believe there was as much Tyranny exercised in these Three Kingdoms during our late Civil Wars and afterwards under the Government of the Rump and Cromwell till the return of the late King Charles as in all the Absolute Monarchies between France and China or from the North to the South Pole And it is very remarkable that when Oliver Cromwell set up the most Absolute and Tyrannical Government that ever was in this Island there was yet no noise of any Fears or Jealousies of it in all his times F. I am very well pleased to find you so heartily agree with me in condemning of Tyranny and oppression in all sorts of Governments whatever and I do assure you I do as little approve of it if
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
Charta for example for the Statute de Tallagio non concedendo or any Liberty we enjoy are not necessary or contrary to the common good he is not tied to observe them And upon this Principle it was that the Judges in the Reign of King Charles the First founded the King's Prerogative for Ship money For they supposed that the King in case of necessity that is for the publick good of the Subjects might lay a Tax upon the Kingdom tho' without Consent of Parliament So that upon this pretence the King being the sole Iudge of the Necessity he might quickly have raised what Taxes and as often as he had pleased But lest our Kings should think themselves too strictly bound by their Coronation Oaths to observe the Laws pray see in the next Paragraph how this Author endeavours to help the King to creep out of that Obligation too Therefore pray read on Others there be that affirm that altho' Laws of themselves do not bind Kings yet the Oaths of Kings at their Coronations tye them to keep all the Laws of their Kingdoms How far this is true let us but examine the Oaths of the Kings of England at their Coronation the words whereof are these Art thou pleased to cause to be administred in all thy Judgments indifferent and upright Justice and to use Discretion with Mercy and Verity Art thou pleased that our upright Laws and Customs be observed and doest thou promise that those shall be protected and maintained by thee These two are the â—rticles of the King's Oath which concern the Laity or Subjects in general to which the King answers affirmatively being first demanded by the Arch-bishop of Canterbury Pleaseth it you to confirm and observe the Laws and Customs of Antient Times granted from God by just and devout Kings unto the English Nation by Oath unto the said People especially the Laws Liberties and Customs granted unto the Clergy and Laity by the Famous King Edward We may observe in these words of the Articles of the Oath that the King is required to observe not all the Laws but only the upright and that with Discretion and Mercy The word upright cannot mean all Laws because in the Oath of Richard the Second I find Evil and Unjust Laws mentioned which the King swears to abolish and in the Old Abridgment of Statutes set forth in King Henry the Eighths days the King is to swear wholy to put out Evil Laws which he cannot do if he be bound to all Laws Now what Laws are Upright and what Evil who shall judge but the King since he swears to administer Upright Iustice with Discretion and Mercy or as Bracton hath it aequitatem praecipiat Misericordiam So that in effect the King doth swear to keep no Laws but such as in his Iudgment are Upright and those not literally always but according to the Equity of his Conscience joyned with Mercy which is properly the Office of a Chancellor rather than of a Iudge And if a King did strictly swear to observe all the Laws he could not without Perjury give his Consent to the Repealing or Abrogating of any Statute by Act of Parliament which would be very mischievous to the State But let it be supposed for truth that Kings do swear to observe all the Laws of their Kingdoms yet no man can think it reason that Kings should be more bound by their voluntary Oaths than common persons are by theirs Now if a private person make a Contract either with Oath or without Oath he is no farther bound than the Equity and Iustice of the Contract tyes him for a Man may have Relief against an unreasonable and unjust Promise if either Deceit or Error Force or Fear induced him thereunto or if it be hurtfuls or grievous in the performance since the Laws in many Cases give the King a Prerogative above common persons I see no reason why he should be denied the Priviledge which the meanest of his Subjects doth enjoy I need not make any long Paraphrase upon these words it is sufficient that the King is here left sole Iudge of what Laws are Upright and what Unjust and consequently what Laws he pleases shall be observed and what not So that no Laws tho' thought never so just and necessary by the Parliament at the time of making of them shall signifie any thing if he thinks sit afterwards to judge otherwise And lest this should not be sufficient he hath found out another way whereby Princes may absolve themselves of this troublesom Obligation of Oaths and therefore he would have them no more bound up than common persons who because they may have Relief in Publick Courts of Justice against an unjust Promise if either Errour Deceit Force or Fear induced them thereunto nay more if it be hurtful or grievous in the performance Kings who have a Prerogative above common persons and who acknowledge no Tribunal above themselves may absolve themselves of their Oaths whenever they think good by saying it was extorted from them by Deceit Force or Fear or if they cannot satisfie themselves without it they might have had formerly the Pope's Dispensation for Money which we read King Iohn and Henry the Third obtained to be absolved of the Oaths they had taken to observe Magna Charta but this Author hath found out a shorter cut and hath made Kings both Judges and Parties and to absolve themselves by a Fundamental Right of Government And what hath proved the Conclusion of such Princes who have taken this Authors Liberty of breaking their Coronation Oath at their pleasure it hath only taught their Subjects to imitate their Example and to make as light of their Oath of Allegiance M. I will not deny but perhaps Sir R F. may have carried the Prerogative in this point a little too far yet that he meant honestly towards the Common weal in all this I pray see the 8th Section of this Chapter where you 'll find these words Many will be ready to say It is a slavish and dangerous Condition to be subject to the Will of any one Mâ—n who is not subject to the Laws But such Men consider not 1. That the Prerogative of a King is to be above all Laws for the good only of them who are under the Laws and to defend the Peoples Liberties as His Majesty graciously affirmed in his Speech after his last Answer to the Petition of Right howsoever some are afraid of the name of Prerogative yet they may assure themselves the Case of Subjects would be desperately miserable without it So that you see here he asserts no Prerogative in the King to be above all Laws but only for the good of the people and to defend their Liberties which I think is a sufficient restraint of Prerogative F. But read a little lower and the People will have no such great cause to thank him as you may see by these words In all Aristocracies the Nobles are above the Laws and
the People may sometimes happen to abuse this Natural Right of Iudging and resisting by exerting it when there is no real and absolute necessity so on the other side if they are wholy debarred from it because they may happen sometimes to abuse it the Freest People in the World viz. our selves for Example may easily be reduced into a Condition of absolute Slavery and Beggery and that without all Remedy by any Humane means that I can think of and which is the worst mischief of these two I leave to your self or any indifferent Man to Iudge M. If you will have my Opinion in this pointâ— I must freely tell you that it is a hard matter to find out a mischief so destructive to the People and which they should exchange for this miserable State of War which you suppose may prove so beneficial to them and yet I doubt if it be throughly lookt into not only the Doctrine it self but also the lasting Wars and miseries it may produce would sufficiently prove the contrary since the cruellest Tyranny Slavery and loss of Estates or any thing else almost may be better born with in Peace and Unity than a Civil War with the greatest Liberty and Plenty seeing all such comforts would quickly be devoured like Pharaoh's Fat Kine by such a Cruel Mâ—nster feeding in their bowels And therefore since Civil War is one of the greatest Calamities and Punishments that God uses to send upon a Nation it seems evident to me that the Wellfare of any State or People requires them to be Obedient unto the Supream Powers tho' they be never so great Oppressors or Cruel Tyrants For when once they enter into this dismal State of War who can tell whether it will have an End without almost the total destruction of the Nation or at least by bringing them into a far worse Condition of Slavery and Suffering than they were before since the State of Princes or other Supream Powers can never be so mean and inconsiderable in the World as not to find when like to be Opprest by such insurrections and Rebellions of their Subjects sufficient assistance from Neighbouring Princes or States who making the Cause of such a Prince their own will be sure to assist him to the utmost of their Power it being found true by experience as Tully long ago observed That the afflicted State of Kings do easily draw the help and Pity of many others especially of those who are either Kings themselves or do live in a Kingdom the Regal Name being by them esteemed to be great and Sacred And farther how ready a way it is to subvert the State of any such distractâ—d Kingdom and to bring it under the Subjection of Foreigners we need not seek a plainer Proof than by an Example no farther off than Ireland where Dermâ—t King of Leinster being forced by his Rebellious Subjects to â—rave the Aid of King Henry the II. for his Restoration to his Kingdom his assistance to recover his Right produced that effect which we now see viz. That the Irish lost their Domiâ—ion and became Subject to the Crown of England even to this day And supposing that the Subjects might likewise be assisted by some Foreign Prince who would undertake their deliverance they would not be in a much bâ—ttâ—r condition since if he were an Absolute Monarch himself he would be 〈◊〉 for example sake as well as for their own security to carry as strict a hard over tâ—em and use them more severely than their own Prince had done before and I doubt not but if Lewis Prince of France had been Crowned King of this Kingdom as he was very near it toward the latter end of King Iohn's Reign but that he would have been more cruel and Tyrannical than ever King Iohn had been before So that they would have got nothing by the bargain but a change of Masters and a heavier Yoke imposed upon them by a Foreigner And so much the Viscount Melun confessed upon his Death bed to many of the English nobility which was the reason of their returning again to their Allegiance to Henry the third So that I think it had been much better for the Barons and Nobility of this Kingdom never to have stirred or Rebell'd at all against their Lawful Prince F. You seem so in Love with slavery and all the Consequences of it that it is an hundred pities but that you should feel the smart of it a little while provided no body was to suffer by it but your self and those of your Opinion But could you see the miserable Condition those poor People are in who live under Arbitrary and Tyrannical Government I doubt not but you would be of another mind and preferr a War tho' never so Violent before such a Peace for when Men are once reduced to so desperate a Condition as neither to be secured of their Lives Liberties or Estates they may have some hope to redress themselves by Resistance but need not fear to be reduced to a worse Condition than they were before and therefore I cannot understand how all the Comforts of a Civil Life would then be lost by a Civil Waâ— when I have already put-it as a chief part of the Case that Subjects are never to make such a Resistance but when the Supream Powers are just about to begin or else have actually entered into a State of War against their Subjects For what can any foreign Enemy do more if he Conquers them than take away their Lives Liberties and Estates So that this is so far from being a State of Peace that indeed the People are already exposed to all the Calamities of War but a War which you suppose may be made without any resistance whilst the Subjects forsooth are bound to keep the Peace but much such another Peace as would be in a House unto which Thieves having broken and the Inhabitants retiring into some upper Rooms there stand upon their Guard and make Resistance whilst the Thieves having Seized upon all they have below one of them should make such a speech as this I pray Sirs come down and submit your selves to us for we assure you we intend not to Kill you but only to Bind you and take away all you have And is not slavery and loss of Goods better with Peace and safety than by assaulting us to provoke us to fire the House and Kill you all for if you once enter into a State of War with us it is very likely to end with your total destruction For if you continue to resist us or think to call in Company to your Assistance we can likewise call in many more of our Party to come and help us and then eâ—pâ—â—t no mercy Now pray tell me would not this be a very rational Argument to move these People to come down and surrender themselves to these Thieves and partake of the benefits of this excellent Peace they propos'd and whether they would not tell
all Israel saw that the King hearkened not unto them the People answered the King saying What Portion have we in David Neither have we inheritance in the Son of Jesse To your tents O Israel Now see to thine own House David So Israel dâ—parted unto their Tents And it is farther said So Israel rebelled against the House of David unto this day Nor is this action at all blamed or disapproved by the Scripture or rebuked by any Prophet at that time for tho' the Word is here translated they rebelled yet in the Hebrew it signifies no more than fell away from or Revolted and it is said before that the King hearkened not to the People For the 〈◊〉 which may be also translated REVOLUTION was from the Lord that he might perform his saying which he spake by Ahijah thâ— Sâ—ilonite unto Jeroboam when in the Chapter before the Prophet promis'd him the Kingdom of the Tâ—n Tribes and that God would rend them out of the hand of Solomon i. e. his Posterity and give them unto him who thereupon had a Right to them and that upon his being made King by the People he had also a Right to their Obedience is as evident Since to continue in a State of Rebellion towards one King and an Obligation to obey another are absolutely inconsistent in the same Subject as I have already proved at our second Conference And therefore I cannot but here take notice of that rational Account which the Earl of Clarendon in his Survey of the Leviathan which you before quoted gives of this Revolution Nor did the People viz. of Israel conceive themselves liable to those impositions as appears by the Application they made to Rehoboam upon the death of Solomon that he would abate some of that rigour his Father had exercised towards them the rough Rejection of which contrary to the advice of his wisest Counâ—ellours cost him the greatest part of his Dominions and when Rehoboam would by Arms have reduced them to obedience God would not suffer him because he had been in the fault himself M. After this extravagant way of Arguing when ever the Subjects of any Nation shall think themselves too much oppress'd with Taxes or other Grievances above what they are able to bear if they are not eas'd by the King or Supream Magistrates upon the first Petition they may presently cast off that Power they were under and set up another that would govern them upon Cheaper Terms for if the People of Israel had this Right why may not all other Nations claim the same and this Doctrine however comfortable it might be to the People I am sure it would be very Mischievous to all the Monarchies and Commonwealths in the World and it is likely that the Subjects of the French King nay States of Holland and other Princes would quickly take the first opportunity either to make their Princes and States to â—ax them no more than they please themselves or else they may presently cry with the Israelites To thy Tents O Israel nor can I see how the King and Parliament in England would be in a much better Conâ—ition in Relation to the People they represent should they impose greater Taxes than they thought they could afford to pay and this Priviledge you give the Israelites seems to be clean contrary to what you laid down at our last Conference wherein you excepted great Taxes and Tributes to Princes or States as no just Cause of Resistance or taking up Arms And therefore I think I may very well maintain the old Doctrine about this Matter and that tho' God did rend the Kingdom from Rehoboam and bestow it upon the Son of Nebat whom also when the People had made him King they were obliged to obey because it was Gods will it should be so who gives and takes away Kingdoms from whomsoever he pleases Yet doth not this at all justifie the Rebellion of the Israelites or Iereboam's â—suâ—pation of his Masters Kingdom since God oftentimes makes use of this Rebellion of the People to execute his Iudgment upon a sinful Prince and Nation And therefore it is very remarkable that after this Rebellion of the Israelites from the house of David they never prospered but by their Kings still falling one after another into the same Idolatry till God at last was so highly provoked against them that he suffered them to be carried away Captives into a strange Land near two hundred Years before the Tribes of Iudah and Benjamin underwent the same fate for the like Crime F. I hope you will not be in a Passion because I have brought this Instance of the Israelites Defection from Rehoboam as an Example of the Right that Subjects may have in those Cases I have put to resist or cast off those Supream Powers that God had once set over them For I do confess Divines and other Authors are much divided about this Action of the Israelites some maintaining it to be well done and in Pursuance to God's Will and others holding it to be Down-right Rebellion And therefore I shall not positively assert either the one or the other much less that Subjects may rebel whensoever they conceive themselves overtax't but thus much I think I may safely affirm that if the Israelites had no Right upon any score whatsoever to resist I cannot see why Rehoboam might not have made them if he had pleas'd as Arrant Slaves as ever their Ancestors were in Egypt and what he else meant by saying instead of Whips to chastise them with Scorpions which were a sort of thorny rods with which the Iews corrected their Slaves and Malefactors I cannot understand and as for Taxes tho I confess there is no setting any positive measure to them since no man can positively define what the Exigences of a State may require and I think no good Subjects ought to deny to contribute as much as ever they are able to afford to maintain the Government they live under as long as they receive the Protection of it So on the other side should the Supream Power of any Nation where the People are not meer Slaves under the Pretence of laying necessary Taxes for the Maintenance or Preservation of the Government be constantly exacting from the People more than they were able to pay as if for Example they should out of every Mans Estate take Nineteen parts and leave but the Twentieth for the Subsistance of those that own it I do not think in that Case the People were obliged in Conscience to pay it and might in such Case Lawfully resist those Officers that should come to levy it by force M. I could have argued farther against what you have now said concerning this Right of the People of resisting in case of extravagant or intolerable Taxes but since it is not to the Subject in hand I shall refer it to another time And therefore to return where I left off I shall in the next place shew you how sacred
been forc'd to fly into Scotland and 〈◊〉 to have defended himself with 1000 or 1500 of his Tenants and followers tho' without Fighting the Kings Forces that should have been seâ—â— against him but flying into the High-lands and had there maintain'd himself as David did by Free Quarters or Conâ—ribuâ—ion of the Inhabitants till his Father dyed would not this have been cryed out upon in all the Pulpits in England as a most Horrid Rebellion of a Son and a Subject against his King and Father tho' he had never done any Act of Hostility against his Forces but always 〈◊〉 from them And yet he being Heir Apparent to the Crown might have pleaded as well as David that he kept these Soldiers about him only to keep himself from being Murdered by those Officious Persons whom his Father or Uncle might send to apprehend him and to have such a Retinue of Valiant Men about him as might render his advancement to the Throne more easie when ever his Father should dye I shall not urge as a farther proof of the Lawfulness of Davids Resistance of Sauls Forces his Intention to have slay'd in Keilah and to have fortified it against Saul had not he been informed that the Men of that City would have saved themselves by delivering him up to Saul Since I confess it doth not certainly appear by the Text whether David would have stayed any longer there than till Saul had approach'd near to that place whether the Keilites would have delivered him up or not much less shall I urge that other example which some Men make use of of Davids going to the last Battle against Saul with Achish King of the Philistines For tho' it be plain he march'd with them as far as Apbek in the Tribe of Issachar yet I confess it is not certain whether he really intended to have assisted them or not in this War against his Country since he might either have gone over to Saul at the beginning of the Battle or else have stood neuter tho' neither of them would have been very Honourable or Consonant with Davids Character therefore I shall say nothing of this since the Lords of the Philistines for fear he should prove aâ— adversary to them in the Battle made him retire again into the Land of the Philistines tho' he seemed to be very much troubled to be so distrusted that he might not fight against the Enemies of that King who had so good an Opinion of him And therefore I pray will you proceed to those other Exâ—mples you have to produce out of the Old Testament M. Well since you are not fully satisfied with this Instance of David tho' I am glad you allow the Persons even of Tyrannical Princes to be Sacred therefore to proceed in the story Solomon who succeeded David in his Kingdom did all those things which God had expresly forbid the King to do He sent into Egypt for Horses He multiplied Wives and loved many strange Women together with the Daughter of Pharaoh VVomen of the Moabites Ammonites c. He Multiplied Silver and Gold For this God who is the only Iudge of Soveraign Princes was very angry with him and threatens to rend the Kingdom from him which was afterwards accomplish'd in the Days of Rehoboam but yet this did not give Authority to his Subjects to Rebel If to be under the Direction and Obligation of Laws makes a Limited Monarchy it is certain the Kingdom of Israel was so There were some things which the King was expresly forbid to do as you have already heard and the Law of Moses was to be the Rule of his Government the standing Law of his Kingdom And therefore he was Commanded when he came to the Throne to write a Copy of the Law with his own hand and to read in it all his Days that he might learn to fear the Lord his God and to keep all the Words of this Law and these Statutes to do them and yet being a Soveraign Prince if he broke these Laws God was his Iudge and Avenger but he was accountable to no earthly Tribunal nor do we find tho' there were so many wicked and Idolatrous Kings of Iudah who broke all the Laws of God given them by Moses that ever any of the Priests or Prophets stirred up the People to Rebel against them for it F. Neither of these Instances do reach the Case in hand For I grant that neither the Breach or non-observance of these Precepts enjoyned the Kings of Israel by God Nor yet their open Idolatry were a sufficient Cause for their taking up Arms or resisting their Kings in so doing since those were offences only against God and in which the People had nothing to do those being no part of that Tacit or implicit Compact of Protection and Preservation that goeth along with all Kingdoms and Supream Powers whatsoever And I have already excepted out of the Causes of Resistance or taking up Arms the Princes being of a different Religion from that of his Subject And tho' I must own that the Kings of Israel were under the direction or Obligation of the Law of Moses and so were limited Monarchs yet this limitation was not from the People but from God whose business it was to revenge the breach of it as often as they offended and if they broke those Laws God only was their Judge and Avenger as you your self very well observe who never failed severely to punish this breach of his Laws Nor yet were the People of the Iews always so nice and temperate as you make them For besides the example of Rehoboam which I have formerly made use of you will find in the 2d of Chronicles concerning Amaziah who when he turned away from following the Lord They viz. the People made a Conspiracy against him in Jerusalem and he fled to Lachish but they sent to Lachish after him and slew him there and made his Son Vzziah King in his stead nor do we read that any were punish'd for killing him as Amâ—ziab put to Death the Servants of his Father King Ioash for conspiring against him as it is related in the 10th Chap. of the 2d of Kings and you 'l find in the same Book that the City of Libna revolted which sure is the highest degree of Resistance from that wicked King Iehoram who had slain all his Brethren with the Sword and walked in the way of the Kings of Israel as did the house of Ahab and wrought that which was evil in the sight of the Lord c. And therefore it is said expresly in the Text that the City of Libna revolted from his hand because he had forsaken the God of his Fathers I bring not these Instances to Iustifie Rebellion but to let you see that it was sometimes practised amongst the Iews tho' you affirm to the contrary But much more lawful was the Resistance which Azariah and the 80 Priests that were with him
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
the mentioning of them since I grant that about the End of the Fourth Century when these things happen'd not only the common People but also the Clergy began to grow very corrupt in their Manners And therefore I cannot much value any Precedents that you can bring in that time to justifie Resistance in Christians unless you could have shewn me any before the time of Constantine which I am sure you are not able to do much less any Authority from any of the Primitive Fathers which justifieth Resistance of the Supream Powers upon any account whatsoever F. 'T is a very hard matter to satisfie you by Quotations for before the time of Constantine it is evident the Christians were not only weak dispersed and disarmed but had also the Laws of the Empire against them And I have already granted That Self-defence against Persecution upon account of Religion was unlawful but when in the time of Constantine's Son and Successor the People having the Law on their side stood upon their defence against those that would have taken away their Lives as in the Examples I have brought of the Inhabitants of Paphlagonia then the Instances come too late and the Age is grown so corrupt that they are no longer Primitive Christians than they observe your Doctrines But as for express Precepts or Testimonies out of the Scriptures and Fathers to justifie Resistance I think it is very needless to bring any for the great Mr. Hooker shews us very well that it is the intent of the Scripture to deliver us all the Credenda and Agenda necessary to Salvation but in other Matters within the compass of our Reason it is enough if we have evident Reason for them Scripturâ non contradicente and if the Scripture doth not forbid such Resistance for Self-defence as I hope I have now proved to be Lawful I do not value whether there be any Express Authority to be quoted out of the Fathers for it or not For whatever the Scripture leaves free I think the Fathers have no Power to forbid M. I see it is to no purpose to argue longer with you from Primitive Examples or Testimonies And therefore I come now to the last thing I proposed which is to shew you that the Doctrine of our Church of England as it is contained in the 39 Articles Canons and Book of Homilies is as expresly for passive Obedience and against All Resistance of the Supream Powâ—rs as the Primitive Church it self And therefore I shall begin with the Infancy of the Reformation under Henry the VIII For there I begin the Restoration of Religion to its Purity in this Kingdom F. I pray Sir give me leave to interrupt you for I must tell you I will not be concluded by any thing that the King or Church in those times did publish concerning matters of Faith or Practice since unless it were in that one Political rather than Religioâ—s Article concerning the Pope's Supremacy the Church in all other Speculative and Practical Doctrines was as much infected with Popâ—ry as it was before And therefore if you will have me to be converted by your Authorities I pray begin with the Purer Times of Edward the VI. and Queen Elizabeth M. I shall comply with your desires since you will have it so And therefore I shall begin with the 39 Articles of the Church of England where in the 37 Article as they were past under Queen Elizabeth Anno 1562 you may find it runs thus The Queen's Majesty hath the Chief Power in this Realm of England and other her Dominions unto whom the Chief Government of all the Estates of this Realm whether they be Ecclesiastical or Civil in all Causes doth appertain and is not nor ought to be subject to any foreign Iurisdiction It is true this Doctrine is not limited to the particular Case of Subjects taking up Arms but it seems to me by two necessary Consequences to be deduced from it First Because if the Pope who pretended by a Divine Right had no Power over Kings much less have the People any such Power who pretend to an Inferiour Right that of Compact Secondly Because the Article makes no distinction but excludes all other Power as well as that of the Pope And in truth the Plea is the same on either side the Pope says as long as the Prince Governs according to the Laws of God and the Church of which He is the Interpreter so long the Censures of the Church do not reach him and say the People as long as the Prince governs according to the Laws of the Land and of the meaning of those Laws they themselves will be the Interpreters so long are they bound to be obedient but as soon as the King doth any thing that may contradict the Pope then he is deservedly say the Romanists excommunicated deposed and murdered and when he usurâ—s upon the Peoples Liberties then he ought to be deposed by the People The Arguments on either side are the same and for the most part the Authorities F. I must confess this is the first time that ever I knew any Man go about to prove Passive Obedience and Non-Resistance out of the 39 Articles and indeed I should have thought you might have deduced any thing else from these Articles as well as that But let us see how what I have saiâ— in this Discourse can come within the Contents of this Article which only says that the King or Queen of England is Supream Governour over all Persons as also in all Causes whether Ecclesiastical or Civil and is not subject to any foreign Iurisdiction from whence you raise this Argument that if the Pope who claims by a Divine Right hath no Power over our Kings much less have the People who can pretend to no such Right as he does but only that by Compact Now pray tell me whether this be conclusive I assert that the People have by the Law of God and Nature a Right to defend themselves against the Supream Powers in case they are violently Assaulted in their Lives Liberties or Estates Now I would very fain have you prove to me how Resistance for Self-defence doth subjâ—ct a Prince to any Iurisdiction either Foreign or Domestick and whether the People can have no Right to Resist such Violence unless they have also an Authoritative Power over them M. It is not worth while to dispute this any longer with you to so little purpose And therefore I shall come to the Canons of the Church and in particular those of the year 1640 which I look upon as a full Explanation of the Belief of our Church in this Point where you may see in the first Canon these two plain Propositions among others First That the most Sacred Order of Kings is of Divine Right being the Ordinance of God himself founded in the Prime Laws of Nature and clearly Established by express Texts both of the Old and New Testaments Secondly For Subjects to bear
Arms against their Kings offensive or defensive upon any Pretence whatsoever is at least to resist the Powers which are ordained of God And tho' they do not invade but only resist St. Paul tells them plainly they shall receive to themselves Damnation From which you may plainly see that this Convocation which consisted of as great Men as I think had been for divers Ages do clearly maintain Monarchy to be of Divine Right and Resistance to be in no Case lawful F. I should grant the Canons of this Convocation to be a good Proof of the Iudgment of the Church of England were it not for two very good Reasons I have against them The one I will tell you presently and the other I will keep a while to my self In the first place therefore I suppose you cannot but very well know that this Convocation sate and passed these Canons which likewise received the King's Confirmation after the Parliament that was summoned together with this Convocation was dissolved And I suppose you know that by the Law of England the Convocation having from all times been looked upon as an Appendix to the Parliament was till then always dissolved with it For which Reason all Acts and Proceedings of this Convocation were condemned and declared null and void by the Long Parliament that began to fit the latter End of the same Year And which is more was likewise condemned by the first Parliament after the Restauration of King Charles the second And therefore I think I have very little Reason to own thâ—se Canons as Conclusive M. In the first place I might reply to what you have now said that that very Parliament which first condemned these Canons afterwards ruined the Monarchy it self In the next place that in old time the General or Provincial Synods were not Dependant upon the Assembly of the States at the same time And I likewise farther Answer that these Canons were made and confirmed in a full Convocation of both Provinces of Canterbury and York and the making of Canons being a work properly Ecclesiastical these Canons were made by the Representatives of the whole Clergy of this Kingdom 2. The Canons were confirmed by the King which was all that was of old required in such Cases and tho' the Convocation sate after the Dissolution of the Parliament yet this is not without President even in the Happy Days of Queen Elizabeth not to look back unto Henry the eighth or the Primitive times And as for your Objection that these Canons were reprobated since the Restitution of Charles the II. I say that I quote them not as Law but as the known Sense of the Church of England at that time F. Your first Answer in behalf of these Canons is altogether Invidious For it was not this Parliament that ruâ—ned the Monarchy but only the Rump or Fag end of it after it had suffered divers Violences and Exclusions of Members by the Army and that the House of Lords being by this Iunto voted useless and dangerous were shut out of doors nor is your second Answer any more true for antiently in the Saxons time the Wittena Gemot or Great Counsel and the General Synod made one and the same Assembly consisting both of Clergy-men and Lay men and then all matters of Ecclesiastical Discipline were enacted and confirmed by the King as also the Spiritual as well as Temporal States Nor can you shew me an Example of any General or Provincial Synod which met independently and without the States of the Realm until after the Reign of Henry the first when the Popes took upon them to encroach upon the Royal Authority as also upon our Civil Rights and by his Legaâ—s to call Synods and make Ecclesiastical Constitutions in which neither the King nor the States of the Kingdom had any thing to do And tho' I grant that upon the Reformation the King was restor'd to those Rights as Supream Governour of the Church which the Pope had before usurped yet is not this Act of the Supremacy to be so understood as to give the King all that Power which the Pope unjustly took upon him to execute before for that had been to make their Case no better than 〈◊〉 was before and therefore this Act of the Supremacy being only an Act of Restoration of the King to his Pristine Rights of which that of Calling Synods and Convocations was one of the Principal the King could not call nor continue those Assemblies in any other form or after any other manner than they were held before the Popes Usurpation in taking upon him to call such Independant Synods and notwithstanding what you tell me I am confident you cannot shew me any Precedent of a Convocation so turned into a Synod as this was in all the Reigns of Henry the eighth and Queen Elizabeth But as for your last reply that you quote not these Canons for a Law that obliges the Church but as the Sense of the Church of England at that time if they do not now oblige the Church neither in Point of Belief nor Practice as you may seem to grant it signifieth no more to me what was the Sense of the greatest part of the Members of that Convocation in this matter nor doth it any more shew me what is the true Doctrine of the Church of England than if I should tell you that because in the Reign of Queen Elizabeth the Major part of the Bishops and Clergy of our Church were rigid Calvinists in the Interpretation of that Article about Predestination that therefore Calvinism was then the Doctrine of the Church of England but is not so now And therefore we ought not to take that for a Doctrine of any National Church unless the Synod or Assembly that declares such Doctrine be solemnly and Lawfully assembled according to the Laws and Customs of that Nation or Country wherein they are so declared M. Since you so much contest the Authority of these Canons I shall no longer insist upon them but I shall here shew you out of the Books of Homilies to which all the Clergy in England are bound to subscribe by Act of Parliament as well as to the Articles and Canons as containing wholesome Doctrine and nothing contrary to the Word of God so that these Homilies do indeed thereby become a part of the known Laws of the Land that in these very Homilies there are divers passages so very full and Plain against all Resistance of the Sovereign Powers for any Cause whatsoever that if you are a true Church of England Man as I hope you are you can have no just Reason to deny their Authority The Homily or Exhortation to Obedience was made An. 1547. in the Reign of King Edward the sixth in the second part of which Sermon of Obedience we are told in these Words which I desire you to read along with me That it is the Calling of God's People to be patient and on the suffering side
you may remember by these words Cum Legis vigorem habeat quicquid de Câ—nsilio de consensu Magnatum Reipublicae communi Sponsione Authoritate Principis praecedente juste fueriâ— definitum But further to let you see how much you are out in your Argument whereby you would prove from the Form of our Indictments of Treason c. That the King hath the Sole Legislative Power of the Kingdom I shall shew you that all our Ancient Laws as well Common as Statute do declare the contrary Since divers Aâ—ts of Parliament have expresly affirmed that such and such Offences were Treaâ—on not only against the King but against the King and the whole Realm too Pray take these instances see the Statute 1 Edw. 3. c. 1. Wherein Hugh de Spencer both the Father and Son are by the King and Parliament declared Traitors and Enemies of the King and of his Realm See likewise 28 Hen. 8. c. 7. Wherein the Crown is setled by Act of Parliament on the Heirs of his Body begotten on Queen Jane or by any other after Marriage and that the Offenders that shall interrupt such Heirs in their Peaceable Succession they with their Abbeâ—tors Maintainers c. shall be declared and adjudged High Traytors to the Realm And therefore divers Ancient Indictments in Stanfords Pleas of the Crown are laid contra pacem Regis Regni And that the Parliament hath reserved to it self a Power by the Statute of the 25th of Edw. 3d. to Determine what Crime shall be Adjudged Treason besides Conspiring to kill the King and those other Offences specified in the same Statute you may Consult the Statute at large But that these Offences can be no other than an endeavour to alter the Government or Fundamental Laws of the Kingdom I think is evident since all Offences relating to the Lives or Honour of the King Queen and their Eldest Son are there particularly specified and it was by Virtue of this Statute that the Late unfortunate Earl of Strafford was first impeached by the Commons and afterwards Attainted by Act of Parliamenâ— in the Year 1641. but whether justly or not it is not my Business now to determine it is sufficient that it was then granted by the King himself that if the Earl was really Guilty of Destroying the Government and Introducing an Arbitrary Power he might have bin deservedly Condemned But that the Power of Making and Dispensing with Laws is particularly applyed not only to the King but to the Lords Spiritual Temporal and Commons pray remember the Preamble of the Statute I have already cited of the 25th Hen. 8. c. 21. wherein it is so expresly declared as also by the 24th of this King Chap. 12. the Preface of which Statute runs thus And whereas the Kings most Noble Progenitors and the Nobility and Commons of the said Realm at divers anâ— sundry Parliaments as well in the time of King Edward 1st Edward 3d. Richard 2d Henry 4th c. made sundry Ordinances Laws Statutes and Provisions for the entire and sure Conservation of the Prerogatives Liberties and Preheminences of the said Imperial Crown of this Realm c. where pray note that the making of all these Statutes is ascribed to the Lords and Commons as well as to the King Which is also farther acknowledged by the said King Henry when in a Set Speech to the Parliament Reported by Crompton in the Case of Errours he said these words We being informed by our Iudges that We at no time stand so highly in our Estate Royal as in the time of Parliament wherein we as Head and you as Members are Conjoyned and knit together into one Body Politick And sure then if the King's Simile be true whatsoever Functions are performed by the whole Body must be done by the Members as well as by the Head I shall Sum up all I have said into this Syllogism That Power which cannot make or Enact any new Law without the Advice and Consent of two other Bodies is not the Sole Legislative Power But the King is that Power which cannot c. Ergo the King is not the Sole Legislative Power M. I shall not longer Dispute this Question with you Since I own the two Houses have Claimed for some Ages past a Share in the Legislative tho' in a large and improper Sense as you your self do partly grant And though for the more just and equal Course our Kings have for a long time admitted the 3 Estates viz. the Lords Spiritual Temporal and Commons into a seeming Share of the Legislative Power Yet this was not by Constraint nor by any Fundamental Constitution of the Government as you suppose but only from their own meer Grace and Favour to make Laws by the Consent of the whole Realm because that no one part thereof should have any Cause to complain of partiality And though I grant the King is bound to observe these Laws when made by vertue of his Coronation-Oath so as that he cannot alter them without their Consent yet is he still above the Law by Virtue of his Absolute Monarchical Power and is not Subordinate to it or so bound by it as to be Responsible to the People for any Breach committed by him upon it for that were Derogatory to the Soveraign Power and inconsistent with the Nature of Monarchy and were to set up the Law which is but a Creature of the Prince's making above his Soveraign Authority And this would make our Monarchy a Kind of Government which would neither be Monarchical nor yet a Republic but some Mungrel thing made up of both So that I take the Notion of a mixt Monarchy to be a Contradiction in adjecto A limited Monarchy I confess there may be either by the Monarch's own Voluntary Grant or Consent as in this Kingdom or else on Conditions imposed upon a Prince by others either by a Foreign Power as in Tributary and Feudatary Kingdoms or else by the Natives of the same Country as in some Elective Kingdoms and Principalities but then such Limitations of Monarchical Power represent a Prince as it were fettered and who cannot Act as he would and ought for the Advantage and Wellfare of his People if he had his Liberty and the full Exercise of his Soveraign Power And therefore in most Governments limited after this manner the Soveraignty still remains in the Senate or Pâ—ople that Elected him which makes me think it Solecism in Politicks to affirm that a Monarch properly so called and still continuing so could be thus limited by Laws or Fundamental Constitutions as you call them at the first Institution of the Government For if he were thus limited that Power that could thus limit him must be either Superior or Inferior to him Superior it could not be because both the Prince and the People that could put those Conditions or Limitations upon him could not be his Superiors in the State of Nature before they made him King neither could they be
over the King in the State of Nature than it doth for a Creditor in the like State to compel by force his Debtor to pay him a Sum of Money which he owed him in case there were no Civil Iurisdiction for him to Appeal to And let us farther suppose a Council or Parliament appointed who may Remonstrate to the King his Transgressions or Violations of the Law Yet this may be without any Coercive Power over his Person or of making War upon him since the King may if he please remedy all these Disorders by Redressing their Grievances and punishing the Authors of them So if he will wilfully persist in such Violations as strike at the Fundamental Constitution of the Government and do also go about to execute them upon the People by force this being in effect a making War upon them I suppose they have then a just Right to defend themselves against his Tyranny So that if these Rights or Priviledges we now enjoy were not the meer Concessions of the King's Grace and favour as you affirm but reserved as part of their Birth-Right at the Original Constitution of the Government as I shall prove all our Fundamental Laws were the People have then as much Right to defend them their Allegiance to him being upon that Condition either express or imply'd as any other Nation hath to defend their Lives Liberties and Properties against the Violence of the Supream Powers or any Commissioned by them as I hope I have already proved to you So that notwithstanding all that you have said to the Contrary I think the Notion of a mixt or limited Monarchy in the very institution may be agreeable to Reason and practicable too either in this or any other Kingdom And when you can prove the contrary by History or Matter of Fact as you promise I will give up the Cause M. You have Broached a parcel of Special Common-Wealth Notions in which you are every way out As first in making the King's Authority derived either from or by the Peoples Consent Whereas all our Ancient Lawyers call him God's Vicar or Lieutenant on Earth and not the People's and in the next place in supposing he may be Resisted by Force of Arms whenever the People shall think themselves Opprest or their Fundamental Rights and Liberties as you call them invaded it is contrary to the Express Declaration of the Parliament by two serveral Statutes in the 2d Year of the late King Charles And though you disclaim all Coercive Power of the two Houses over the King yet it is only to place this Right of Resistance in a more fallible and ungovernable Body viz. the whole People in their Natural Capacities which as it is more consistent with your Principles so it is more dangerous to all Supream Powers as well Common-Wealths as Monarchies as I have partly shewed you already and I hope may farther convince you before I have done But since I have not now time to shew you the falsity and absurdity of these Notions and to urge the Statute at large against Resistance in any Case Whatsoever I pray go on in the Method you have proposed and let me see how you can make out that even our Parliaments do not derive that Priviledge they now enjoy of giving their consent to Laws as also their very being to the Gracious Concessions of our former Monarchs F. That I shall do with all my Heart But first let me tell you that though I own the King to be God's Lieutenant in these his Dominions Yet I must likewise aver that it was only by the Consent and Voluntary Submission of the People of this Nation that the first Monarch begin where you will could obtain that Title And as for those Statutes you mention against all Resistance in any Case Whatsoever I doubt not but to shew you that it was never the intent of that Parliament to debar us from all necessary Resistance and Self-defence in cases of illegal Violence and intollerable Oppression unless you can suppose they were resolved to alter the Government and to put it into the King's Power to destroy all our Laws and Liberties and instead of a Lawful King to Set up for a Lawless Tyrant when ever he pleased But to come to the matter in Hand I shall shew you that it is not at all impossible or improbable that without any hinderance of that Power which is necessary to the King as Supream that he might for all that have bin limited as to the Legislative at the first Institution of the Government which I shall thus make out I do therefore in the first place suppose that the English Saxons being a free People after their Conquest of this Island as well Nobles as Commons did agree by their free consents and publick Compacts to set over themselves a Prince or Soveraign and to Resign up themselves to him to be governed by such and such Fundamental Laws Here is a Supremacy of Power set up though limited as to the manner of its Exercise 2. Then because in all Governments after Cases will arise requiring an Addition of Laws suppose them Covenanting with their Sâ—veraign that if there be any Cause to Constitute any New Laws he shall not by his Sole Power perform that Work but that they will reserve in themselves a Concurrent or Co-operative Power So that they will be bound by no Laws but what they joyn with him in the making of 3. I suppose that though the Nobles may personally convenâ— Yet since the Commons being so Numerous cannot meet together in Person therefore for the doing of this Work it be agreed that every City of Considerable Town should have Power to Depute one or more to Act for the whole Body in the Legislature That the Nobles by themselves in Person and the Commons by their Deputies Assembling there may be Representatively the whole Body of the Kingdom with Power to execute that Authority reserved for establishing new Laws 4. Since the Occasion and need of making such Laws and Expounding the Old Ones could not be constant and perpetual therefore we may farther suppose for the avoiding of the inconvenience of three standing Co-ordinate Powers they did not Establish these Estates to be constantly existent but occasionally as the Causes for which they were ordained should require 5. Because a Monarchy was intended and therefore a Supremacy of Power as far as was necessary must be reserved in One it was concluded that these Estates should be still Assâ—mblies of his Subjects and Swearing Allegiance to him and that all New Laws which by agreement of these Powers should be Enacted should run in his Name and be called his Laws and they all bound to obey him in them when thus Establisht And Lastly it being supposed that He who thus was to govern by Law and for the furtherance of whose Government such New Laws were to be made should best understand when there was need of them and that the Convening and
Constitution to have bin in all the Neighbouring Kingdoms in Europe which have bin raised according to the Gothic Model of Government upon the Ruins of the Roman Empire now let us look into Scotland and there we shall find this Institution as Ancient as any History or Record they have If we pass into France we shall find their Assembly of Estates or Great Council to have bin as Ancient as their first Kings and to have had as much Power as any where else in Europe Since they not only frequently Elected but also Deposed their Kings of the first Race and disposed of the Succession of the Crown as they thought fit If we look into Spain we shall find in the two greatest and most Considerable Kingdoms viz. Castile and Arragon the like Assemblies the Power of which was so great in the latter that they could even Depose the King himself if he Tyranniz'd over or Oppress 't them If we go more Northward we shall find in the Ancient Kingdoms of Denmark and Sweden and Norway that their Assembly of Estates or Dyets Elected their Kings and could likewise Depose them till those Kingdoms became Hereditary which was but of modern times I shall omit Poland because perhaps you may dispute whether it is a Kingdom or a Commonwealth But if we pass into Hungary which was Instituted by the Huns a Nation of Gothic Original we shall find not only the like Assembly of Estates as in the other Kingdoms but also that they had a Magistrate called the Palatine who was as it were the Conservator of the People's Liberties and who could Resist even the King himself if he invaded them and which is also very remarkable in all these Kingdoms except Denmark the Representatives of the Cities or Principal Towns which constituted the third Estate or Commons in those Kingdoms had always a place in those Great Councils So that to conclude it is almost impossible to conceive how these Kingdoms I have now mentioned could all agree to fall into the same sort of Government about the same time unless it had proceeded from the particular temper and Genius of the Germane and Gothick Nations from which they were derived Or who can believe that all these Nations and their Kings finding the like Conveniences from these Great Councils and Inconveniences by the want of them should all Conspire to set them up in each of these particular Kingdoms M. I will not deny but that the Institution of Great Councils or Assemblies of the Estates might be as Ancient as the Government it self in several of those Kingdoms you mention which were at first Elective but what is that to England where our Monarchy hath bin by Succession from the first Institution of it and not Elective as you suppose Nor do I much value the Authority of the Mirrour as to the Great Antiquity he Ascribes to this Assembly of Counts or Comites as Bracton calls them and in which by the way no Commons are mentioned And tho I grant the Iudicial Power of the House of Peers is very Ancient Yet that it wholy proceeded at first from the Indulgence of our Kings appears from hence that there was always a necessity of the King's Presence in Parliaments which is very well proved by Sir Robert Cotton in a Learned Treatise written on that Subject wherein he proves that in all Consultations of State and Decisions of private Plaints it is clear from all times the King was not only present to Advise but also to Determine And whensoever the King is present all Power of Iudging which is derived from his ceaseth the Votes of the Lords may serve for matter of Advice the Final Iudgment is only the Kings But indeed of late years Queen Mary and Queen Elizabeth by reason of their Sex being not so fit for publick Assemblies have brought it out of use by which means it is come to pass that many things which were in former times acted by Kings themselves have of late bin left to the Iudgment of the Peers who in quality of Iudges Extraordinary are permitted for the Ease of the King and in his Absence to determine such matters as were Anciently brought before the King himself sitting in Person attended by his Great Council of Prelates and Peers And the Ordinances that are made there receive their Establishment either from the King's Presence in Parliament where his Chair of State is constantly placed or at least from his Confirmation of them who in all Courts and in all Causes is Supream Iudge All Judgments are by or under him and cannot be without much less against his Approbation The King only and none but He if He were able should judge all Causes saith Bracton so that nothing seems plainer to me than that the Iurisdiction which the House of Peers have hitherto exercised for the Hearing and Determining all Causes as well Civil as Criminal by way of Appeal not only between Subjects but also in all Accusations against the Lords themselves proceeds wholy from the Kings which may appear by an Ancient Precedent mentioned by Abbot Brampton in his History It is the Case between King Edw. the Confessor and Godwin Earl of Kent whom the King accused for the Death of his Brother Prince Alfred before the House of Peers and there you will find that after the Earl had put himself upon the Iudgment of the Kings Court the King thereupon said You Noble Lords Earls and Barons i. e. Thanes of the Land who are my Liege-Men now gathered here together and have heard my Appeal and Godwin's Answer I will that in this Appeal between us ye Decree Right Iudgment and do true Iustice And upon their Judgment that the Earl should make the King sufficient Satisfaction in Gold and Silver for the Death of his Brother the King being thereof informed and not willing to contradict it the Historian there sayeth He ratified all they had judged I could give you many other Precedents of latter Date were it not too tedious But this is sufficient to shew that what the Pâ—ers acted in this matter was by the King 's Sole Will and Permission I shall only conclude with one Precedent more in Case of some what alike Nature It is that of Hen. Spencer Bishop of Norwich 7 Rich. 2d who was accused foâ— joyning with the French The Bishop complained what was done against him did not pass by the Assent and Knowledge of the Peers whereupon it was said in Parliament that the Cognisance and Punishment of his Offence did of Câ—mmon Right and Ancient Custom of the Realm of England solely and wholy belong to our Lord the King and no other From all which I infer that the Iudicial Power exercised by the House of Peers is meerly derivative from and Subservient to the Supream Power resiâ—â—ing in the King From whence it also follows that if the Peers have no Power nor Honour but what proceeds from the Prince and that the Commons
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
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
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
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
to Parliament no otherwise but as 〈◊〉 in Capitâ— for tho' the said Petition reâ—ues that they hold the said Town of the K. in Capite yet they do not likewise say that they claim'th to appear there only by that Tenure for then they should have reâ—ired that they sicut caeteri Burgenses Tenentes in Capite and not sicut caeteri Burgenses Regni ad Parliamenti Regis venirâ— debeant And tho' it is true they set forth that they appeared there for all Services yet do they not say that their Tenure in Capitâ— was the only Cause of their appearance in Parliam since divers Towns and Burrought of the Kingdom which held not in Capite at all had the like Priviledge before of which I can give you divers Instances which I shall read to you ouâ— of this Note which a Learâ—ed Friend of mine slace deceaâ—'d hath taken out of the Rolls in the Tower tho' when he sent it me he thorough hast 〈◊〉 hath forgot to set down the number of the Roll to most of such Burroughs who never held in Capite and yet have always sent Burgesses to Parliament by Prescription as first the Burrough these of Arundel which always held of the Earls and never of the King being granted by Henry I. To Hugh Montgomery Earl of Arundel Secondly The City of Bath appears to hold of the Bishop of Bath and Wells Thirdly The City of Wells it self which always held of the Bishop and never of the King and is therefore called Villa Episcopi in all publick Writings belonging to that Church and was made a Free Burrough in the Third of King Iohn Fourthly Beverly was made a Free Burrough by Thurston Arch-Bishop of York which was confirmed by King Henry III. Hiâ—â—hly Badmin which always held of the Earls of Cornwall Sixthly Bridgwater for King Iohn granted it to William Brewer Quod Brugwater sit liber Burgus Seventhly Coventry which was always held of the Earls of Chester and pleaded in the Reign of Edw. I. to have never been taxed with the King's Demesnes but with the Body of the County Eighthly Bishop Linne for King Iohn granted to Iohn Bishop of Norwich Quod Burgus de Lenna sit Liber Burgus inperpetuum all which by the Writs we have left us sent Burgesses to Parliament as early as any that held in Capite These I give you only for a Taste but I doubt not but if I had time I could give you three times as many especially in Cornwall where the Burroughs did almost all hold of the Earl of Cornwall and not of the King But besides the Doctors errour in supposing that no ancient Cities or Burroughs had any Right of sending Members to Parliament but only as they held of the King in Capite his mistake is yet much more gross in his construing those remarkable words in the King's Answer to the Burgesses of St. Albans Et tunc fiat eis super hoc Iustitia vocatis evocandis si necesse fuerit Thus And then let them have Iustice in this matter and such as have been called may be called if there be necessity Upon which words you have also from the Dr. put this pleasant gloss 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 But I must needs tell you â— think nothing can be more absurd and contrary to the genuine sense of this Record than the Doctor 's construction who will needs have the words evocatis evocandis only to mean a Calling or Summoning to Parliament which is quite contrary to the true sense of the King's Answer to this Petition for if that had been his meaning that those only should be summoned to Parliament whom the King pleased to call to what purpose were these words scrutentur Rotuli c. de Cancell si temporibus Progenitorum Regis Burgenses praedicti solebant venire vel non For if their coming to Parliament had been a matter of meer grace and favour and not of right so wholly left in the King's breast whether they should come or not it was in vain for him to command the Rolls of Chancery to be searched whether the said Burgesses us'd to come to Parliament or not in the times of his Progenitors or if it had not been a matter of right why should it be here said that upon search of the Rolls Tunc fiat Iustitia let Justice be done iâ— there never was such a right of Prescription by which they claimed But I much wonder that the Dr. so great a Critick in Records should ever construe them evocatis evocandis a summoning or calling to Parliament and I desire you would shew me in what Parliament Roll or Ancient Record you can find evecaâ—â— ad Parliamentum to summon to Parliament But I more admire that you who are a profest Civilian should no better understand the sense of your own Terms whereas if you would have but consulted any Civil Law Dictionary you might have found evocaâ—e Testes always signifies to summon Wiâ—nesses and I can shew you by twenty Precedents both from our Common Law Records as well as your Canon Law Forms that evocatis eâ—ocandis does always signifie the summoning such Witnesses as are to be summon'd in a Cause and in this sense it is to be understood in this Record that not only the Rolls should be search'd but also Witnesses summon'd to prove their Claim if any dispute or doubt should arise about the matter of fact M. I shall no longer contend with you about the genuine sense of these last words since perhaps you may be in the right but yet for all that it does not appear that the King and his Council did by this Answer allow this Petition of the Town of St. Albans to be true that they had sent Burgesses to Parliament in the time of his Predecessors much less that any other City of Burrough in England were then allowed such a right by Prescription F. I grant indeed that this Petition doth not absolutely allow the matter of fact as it concerns the matter in dispute between them and the Abbot to be true as it is there set forth neither yet does it condemn it for false but whether it were true or false it matters not for both the Petition and the Answer do sufficiently prove the Point for which we make use of it viz that it was then received for a general Custom or Law time out of mind that the Cities and Burroughs had sent Members to Parliament according as in the Petition is set forth otherwise it can scarce be supposed much less believed that the Burgesses of St. Albans or the Pen-man of this Petition should dare to tell the King and his Learned Council in the face of the Parliament so great and ridiculous a Novelty to be recorded to Posterity as that they and their Predecessors
Parliament M. These Authorities tho' material yet do not in my Opinion reach the point you were to prove viz. That the Knights Citizens and Burgesses appeared in Parliament before the Reign of Richard I. for both these Authorities tho' admitted for good yet reach no higher than King Iohn's time which is within memory as your self have now set forth since the word Progenitors need not be extended any further than the time of that King who was great Grand-father to Edward the First and Second to whom these Petitions were made by these Towns-men and so do not clearly amount to your full time of prescription viz. before the Reign of Richard I. F. Well pray remember that if you grant this you have lost your Cause since certainly the Reign of King Iohn is long before the 49th of Henry III. but since you will be so over-critical I will shew you some Claims by prescription beyond all time of memory made by the Tenants in Ancient Demesne from being Taxed to contribute to the wages of Knights of Shires and if they thus prescribed it is plain there must have been Knights of Shires chosen against paying whose wages they prescribed to have had this priviledge Now this prescription must be very Ancient since as Mr. Lambard shews us in the place I have quoted there has been no new Tenants made in Ancient Demesne since the time of William I. But pray see the Writ it self in the Old Register of Writs which is there put down only as a Form for drawing of all other Writs of this kind there to be found for other Towns and particularly the Tenants of Odiham in Hampshire whenever there was occasion and therefore it is not to be wonder'd that neither the Name of the King nor of the place be expressed in words at length The Writ it self is not very long therefore I shall give it you in Latine as far as is material Rex Vicecomiti L. salutem monstraverunt nobis homines Tenenteâ— de Manerio de F. quod est de Antiquo Dominico Coâ—one Angliae ut dicitur quod licet ipsi corum Antecessores Tenentes de eodem Manerio a tempore quo non extat memoria semper hactenus quieti esse cousueverunt de expensis Militum ad Parliamenta nostra Progenitorum nostrorum Regum Angliâ—e pro Commanitate dicti Comitatus venienium c. and then proceeds that whereas the said Sheriff distrains the said Tenants to contribute to the Expences of the Knights that came to the last Parliament to their great damage otherwise than totis retroaâ—tis temporibus fieri consuevit therefore commands him that he desist from his said Distress and do not compel the said Tenants to contribute otherwise quam omnibus temporibus retroactis And now tho' this Writ be without any Kings name or date yet it appears at the bottom it was issued by G. L. Eâ—â—rope then Chancellour and William de Holston Clerk of the Chancery and this must have been before the 15th of that King because it appears by the close Rolls of that year that in December the great Seal was delivered to William d' Ayremyn under the Seals of William de Clyffe and the said William de Herlston Clerks of Chancery who are often mentioned in our Records to have been Keepers of it pro tempore till the Second of Edward the Third when the said William de Herlston had the sole custody thereof committed to him But there is yet a perfecter Writ of this kind in the 50th of Edward the Third extant on the Rolls directed to Iohn de Cobham and four other Knights therein named reciting that whereas Simon Arch-Bishop of Canterbury claims as well for himself as his predecessors and their Tenants hitherto à tempore quo non extat memoria for certain Lauds held in Gavel-kind in the County of Kent which ought to be free from the Expences of Knights coming to our Parliaments as well as those of our Progenitors and concludes with a Supersedeas to the said Sheriff not to molest the said Tenants until such time as the King be further informed and that He by the Advice of his Council has ordained what is to be done in the premisses from both which Writs we may draw these Conclusions First That there was at the time of the granting these Writs a Claim by prescription time out of mind allowed for all Tenants holding of the Arch-Bishop in Gavelkind to be exempted from contributing to the wages of Knights of the Shire or else these Petitions and the Writs upon them had been idle and ridiculous Lastly That this Claim of being thus exempted time out of mind which as I have already proved extend beyond the time of Richard the First is allowed by the King himself for good in both these Writs only in the last the King will be informed whether they are Tenants in Gavel kind or not so that the Conclusion must be that if these Tenants in Ancient Demesne and Gavel-kind were always exempted from paying to the wages of Knights of the Shires beyond memory i. e. by prescription then certainly those Knights must have been chosen time beyond memory I could give you several other Writs of like nature but I will not over charge you Now certainly if the Knights of Shires were thus Elected time beyond memory the Citizens and Burgesses must have been so too since in Scotland where there were for a long time no Commissioners for the Shires yet the Cities and Burroughs ever sent Delegates to Parliament as your Dr. himself allows M. I must beg your pardon if I cannot come over to your Opinion concerning this prescription of Knights of Shires Citizens and Burgesses appearing in Parliament before the 49th of Henry the Third since Mr. Prin in his second and third part of his Parliamentary Register has proved 1. That all the words you insist upon to prove this prescription are to be understood in another sense than what you would now put upon them so that tho' Mr. Lambard and others of great note lay the Original Title and Right of all our Countreys Ancient Cities and Burroughs Electing and sending of Burgesses to Parliament and to be by prescription time out of mind long before the Conquest yet against this Opinion Mr. Prin argues thus whose Arguments I shall contract because it would be tedious to recite them all verbatim First That as for the wages of Knights of Shires which is the principal thing you insist on in this last Argument the Ancientest Writs extant for their wages are those of 28th and 29th of Edward the First and no Records or Law-books I have seen derive their Title higher than the Reign of Edward the First The first Statute concerning them is that of the 12th of Richard II. which only enacts that the Levying Expences of Knights shall be as hath been used of old time The next Statute is of 11 of
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
Subjects there laid down into eight Discourses Since being obliged to vindicate the Antient Constitution of Parliaments from the Cavils of some late writers there was a necessity of considering what Dr. Brady had with so great industry heaped together against the House of Commons being antiently a constituent part of our Parliaments before the 49th of Henry the III. in the doing of which if I have proved too prolix I can only say I could not avoid it without baulking those Arguments the Doctor has made use of to support his opinion But having already treated in the third and fourth Dialogues upon the Questions of Passive Obedience and Non-Resistance as a Moralist and a Divine I come now to handle the same Question as a Lawyer and to examine whether by the ancient Laws and Constitutions of our English Government and by the late Statutes of the thirteenth and fourteenth of King Charles the II. all taking up of Arms against the King or those Commissioned by him be absolutely forbidden and declared Treasonable in the doing of which I can assure you I have not failed impartially to set down whatever I have either heard or read materially urged for one or the other opinion and I have also consulted some of the wisest and most Iudicious Members of the long Parliament of King Charles the II. to learn what was then the sense of both Houses of Parliament concerning the words of that Oath but whether I have any ways mistaken the sense of those August Assemblies I humbly submit it to the judgment of this present Parliament For cujus est condere ejus est interpretari and I hope for the like ingenuity from those who give a different and stricter interpretation to the words of those Statutes and the Oath therein contained which tho' it be now no longer enjoin'd yet since it may still be thought to bind such as have taken it it was very necessary to inquire what was the true intent of those that imposed it that is indeed what is the legal sense of the words of that Oath But as to the inconveniencies and mischiefs that may arise from the Peoples judging what Commissions of the Kings are Legal or Illegal and either resisting them or yielding obedience to them as they shall see cause I have only this to say that I desire those of the contrary opinion seriously to consider all the inconveniencies and mischiefs that may happen on the other side if the King is invested with an absolute irresistible power not only to issue what commissions but to whom and to what ends he pleases tho' never so illegal and arbitrary and that the whole Nation must yield an active obedience or at least a passive submission to them without the least resistance no not so much as to assist any Foreign Prince who should come in to their assistance as his Present Majesty when Prince of Orange generously did And when any man has without prejudice and passion considered consequences I shall freely leave it to him to embrace which side he pleases since I hope it is neither Heresie nor Treason to be of either and therefore I only desire the Reader to peruse this discourse without passion or prejudice and then it is indifferent to me what party he takes since I think men may be honest and conscientious who believe either way and I do not expect nor desire any man to be of this or that opinion farther than his reason shall guide him in which if he be mistaken he has no body to blame but himself since he is not sit to judge who is to be trusted with arguments only for that which he already believes to be the right side I have no more to mind you of at present but to suppose these Papers to be written before their present Majesties were declared King and Queen and in a time when every body not only thought but spoke freely THE Ninth Dialogue BETWEEN Mr. FREEMAN a Gentleman AND Mr. MEANWELL a Civilian F. SIR I am glad to see you again so soon for I was just now looking over some of our Old Historians that lie here upon the Table to rub up my Memory for sufficient Instances and Authorities that it hath been always the received and constant Custom and Practice of the Clergy Nobility and People of this Nation to defend the Ancient Government of this Kingdom by general Councils or Parliaments as also their just Liberties and Properties not only by Remonstrances and Petitions to but by Force too against the Kingâ— and those commissioned by him in case they found them evidently and violently invaded beyond what any fair or gentle means and intercession were able to redress And for proof of this I shall go as high as the Times of the Kings of the West Saxons from whom all the Kings of England before the Conquest were descended after the Kingdom of the West Saxons had prevailed over all the rest I shall therefore begin with the Reign of Sigehert King of the West Saxons who as I told you in your Sixth Conversation breaking the Laws and Constitutions of the Kingdom and Tyrannizing over all form of People was in a general Council of the whole Kingdom deposed and expelled into the Forrest of Audredswald where he was afterwards slain by a Hogheard As the Saxons Annals under the Year 755. as also Huntingdon and Malâ—sbury relate I shall not mention the Deposition of King Edwin by the Mercians and Northumbrians and their chusing his Brother Edgar in his stead because not done by the Common Council of the whole Kingdom and that also for slight and insufficient grounds Therefore since the Times before the Conquest do afford us no more examples of this kind among the Kings of the West Saxon Race to which I only confine my self since those Kings being for the most part at Wars with the Danes to the Time of Edward the Confessor had somewhat else to think on than the making themselves Absolute or Tyrannizing over their Subjects but indeed there is scarce to be found in History a Succession of more mild just and valiant Princes than Egbert the First King of all England and his Descendants M. Pray Sir tell me to what purpose you cite these Instances of the Nobility and People of England deposing and casting off their Kings in the Times before the Conquest is it that you would justifie that Common-wealth Principle that the Parliament hath the like Power to depose the King at this day in case of any Infringement of the Fundamental Laws of the Kingdom or breach of the Original Contract as those of your Party now term it if you do pray speak plain and then I shall know what Answer to give you F. Tho'l assert it as undeniable in matter of fact that the English Saxons did often exercise that Power they had reserved to themselves of Electing and Deposing their Kings when they became insupportable for Tyranny or Misgovernment as appears not only in
you quote it yet I much doubt whether it was of any validity being no doubt drawn up by the Barons then in Arms and which the King durst not at that time refuse and so he was indeed under a kind of duresâ— when he did it And besides pray mark the conclusion of this Clause this Resistance was to be Salva Persona nostra Reginae nostrae Liberorum nostrorum cum fuerit emendatum intendent nos sicut prius fecerunt Now how this Security here reserved for the King's Person could consist with that open War the Barons made afterwards against his very Person and casting off all their Allegiance to their Natural Prince and calling in Prince Lewis Son to the King of France I cannot understand F. I think all this may very easily be solved For in the first place K. Iohn was no more compelled to agree to this Clause than he was to the Charters themselves and if those were lawful and reasonable so was this Resistance too since there was no other way or means lest to preserve them in case the King should go from his own Acts and break through all he had done so that if the ends were lawful the means to preserve it must be so too or else those Charters would have signified nothing any longer than the King pleased As for the other part of the Objection that this Resistance was still to be saving the Person of the King and Queen c. and that this did not consist with the Barons after making War against his Person and casting off all Allegiance to him It was not their faults but the King 's if they could not perform this Agreement since the King by making War upon the Clergy Nobility and People by his open and notorious breach and recalling of these Charters calling in Strangers to his assistance and declaring he would no longer govern according to Law had made it absolutely unpracticable to preserve their Allegiance to him any longer so that they never cast off their duty as Subjects till he had cast off his duty as a King and then what was there else left to be done but to provide for their own safety by calling in a Forein Prince to their Assistance as soon as they could since there was no other way left them to defend themselves against those Troops of Strangers the King had invited over and though many of them with their Captain Hugh de Boves had been cast away and drowned in a Tempest at Sea yet more were daily expected So that if Tyrants should suffer nothing for the breach of their own Charters and Oaths they would be in a better condition by their violation than the observing of them â—or by the making them they for the present quiet the Minds of their discontented Subjects and when they please may break them all again when they have got power if no body must presume to resist them or not think them as much Kings when they destroy and oppress their People as when they protect and preserve them by governing according to the Laws of the Kingdom But pray what have you to say against that general Resistance that was made by almost all the Bishops Barons and great Men of England against his Son Henry the Third about the frequent and notorious violations of the great Charters which his Father and himself had so often sworn to and confirmed and for which he had received such great Benevolences and Subsidies from the Nation M. Before I answer this Question pray take notice that I am not at all satisfied with your Arguments that when ever Subjects shall think themselves injured and oppressed by their Soveraigns that then they may cast off their Allegiance to them if they cannot have the Remedy they desire since this were to make them both Judges and Parties too in their own Cause which is altogether unjust and unreasonable between private Men much more between Kings and Subjects But passing by this at present I shall tell you my Opinion of this Resistance of Simon Montfort and the Earls and Barons his Adherents that it was down-right Rebellion and tended only to dethrone the King and make him a meer Cypher and to devolve the whole Government upon themselves as appears by the Oxford Provisions recited by so many Authors of that Age and which were afterwards condemned and consequently those violent means by which they were obtained by Lewis the Ninth King of France who in an Assembly of his Estates upon a solemn hearing of the whole difference between King Henry the Third and his Barons declared these Oxford Provisions null and void So far was this good and pious King from countenancing any Rebellion or Resistance as you term it of Subjects against their lawful Soveraign F. For all this I cannot find that the King of France did then at all condemn this defence the Earls and Barons had before made of the Liberties granted them by the great Charters for tho' he restored the King to his former Power by avoiding the Oxford Provisions yet at the same time when this was done as the Continuator of Mat. Paris tells us he expresly excepted the Ancient Charters of King Iohn Vniversâ—li seil Angliae concessae and from which per illam sententiam in nullo intendibat penâ—tus derogare and if he did not in the least intend to derogate from them he could not with any Justice condemn the only means the Barons had to maintain them after so many Trials and fresh Promises and Oaths of this fickle inconstant King all broken and laid aside so that you may as well or better alledge the Pope's shameful Absolution of this King from this Oath he had made to observe the great Charters as an Argument why they should not be any longer bound by them nor the Barons obliged to defend them as this Sentence of the King of France to render the Resistance the Barons had made in defence of the great Charters to be unlawful And that King Henry himself did afterwards allow this Resistance for good and lawful Pray see the Agreement which was not long after made in full Parliament in the 49th between the King the Prince and all the Prelates Earls and Barons of England whereby he obliged himself to observe all the Articles and Ordinances which had been before agreed upon at London in the 48th Year of his Reign And then follows this Clause in the Record which the Doctor himself has printed in his Appendix at the end of the first Volume of his Introduction to English History which I shall here translate out of French because it is very old and obscure it is thus And if our Lord the King or Monsieur Edward viz. the Prince shall go against the Peace and Ordinance aforesaid or shall grieve the Earls of Leicester or Gloucester or any of their Party by reason of any of the things aforesaid that then the great Men and Commons of the Land
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
any Legal Power all which could never have happened had not that War been not only begun but continued to the very last by a Standing Army which could give what Laws they pleased even to those that pretended to command them So that why the Abuse of this Right once in a Thousand years should be made any just Argument against the ever using it at all I can see no reason in the World for it As to the rest of your Discourse against making any War about Religion that is also as fallacious for tho' I grant that true Religion is not to be propagated yet I think it may lawfully be defended by the Sword especially where it is the received Establish'd Religion of a Nation or else the defence of Religion against Infidels would be no Argument at all to fight against a Turkish or Popish Prince that unjustly invaded us For tho' it is true that Religion cannot be taken away from any Man without his consent yet a Man may be taken from his Religion and when the Professors are destroyed either by Martyrdom or violent Persecution as bad or worse than death what will become of the Church and Religion Establisht by Law when all the Persons that constitute that Church are driven away destroyed or made to renounce it And for this we need go no farther than over the Water to our next Neighbour It is likewise as fallacious what 〈◊〉 urge of the great Corruption of Manners by Civil Wars which if it be any Argument at all is so against all Standing Armies whatever whether raised by lawful or unlawful Powers And I think there was much more debauchery in the King 's late Camp at Hounslow-heath as also in all places where they quartered than was lately at York or Nottingham among those that took up Arms in defence of their Religion or Civil Liberties unjustly invaded by the King and his Ministers nor does it always happen that Armies raised for defence of Religion and Civil Liberty must prove debaucht since we may remember that the Parliament Army to its praise be it spoken was infinitely more sober and outwardly religious than the King 's but if you will say that this proceeded from their Principles as well as good Discipline I know no reason why Men who fight in defence of their Religion and Civil Liberties may not upon Church of England Principles as to Church-Government and Common-Prayer and also by a strict Discipline be as little debaucht as any Standing Armies the most lawful Monarch can maintain who if they lye idle as ours have done all this King's Reign till now of late are more likely to fall into all the wickedness that attend a loose Discipline and want of Imployment and consequently may also corrupt the Places where they Quarter by their ill example M. I shall not longer argue this point since I see it is to no purpose But you have not yet told me what these fundamental Rights and Liberties are that you suppose the People may take up Arms to defend nor yet what number of the Nation may thus judge for themselves and take up Arms when they please for it may so happen that the whole Nation may be divided as to their opinions concerning these things And the South part of England for example may think their Religion and Liberties in great danger and that it is very necessary to take up Arms for it when the North parts are not under those apprehensions but lye still as was lately seen in the riseings for the Prince of Orange F. As to the first of these queries I think I can easily give you satisfaction and such as you can have nothing material to reply to And as for the other though I do not say I can give you such an answer as will bear no exception or reply yet I doubt not but it will be that which may very well be defended and may serve to satisfie any indifferent and unprejudiced person And which if not allowed will draw much worse consequences along with it And therefore as for the just Rights and Liberties we contend for they are only such as are contained in Magna Charta and the Petition of Right and are no more than the immemorial Rights and Liberties of this Kingdom and that first In respect of the safety of mens lives and the liberties of their persons aly The security of their Estates and Civil Properties And 3ly The enjoyment of their Religion as it is established by the common consent of the whole Nation All which I will reduce to these plain Propositions 1. That no Freeman of England ought to be imprisoned or arrested contrary to Law without specifying the cause of his commitment in the warrant or mittimus whereby he is sent to prison And he ought not to be sent out of the body of the Country or Jurisdiction where the crime was supposed to be committed unless he be removed by due course of Law neither ought he by the Law of England to be detained in Prison without Trial only for a punishment but ought to be Tried the next Assizes or Goal-delivery or within some reasonable time to be allowed of by the Court. And this was Common-Law many Ages before the Act of Habeas Corpus made in the 31st of King Charles the Second which does but ascertain that Law concerning bailing men for all manner of Crimes in case no Prosecution come in against them much less can the King or any Court below the whole Parliament banish any man the Kingdom in any case unless by some known Law already made whereby he is bound to abjure it upon a lawful Trial by his Peers and conviction by his own Confession 2. Nor can the King nor any Courts of Justice condemn a man to loss of Life or Members without due Trial by his Peers and Legal Judgment given thereupon And for proof of this I need go no farther than Magna Charta and the Petition of Right which are both but declaratory of the Common-Law of England◠see therefore Magna Charta cap. 29. Whereby it is declared and enacted that no freeman may be taken and imprisoned or be disseised of his freehold or Liberties or his free customs or be Outlawed or exiled or in any manner destroyed but by the lawful Judgment of his Peers or by the Law of the land which is also farther confirmed and explained by these Statutes viz. the 37 38 42. of Edward III. and 17. of Richard the II. all which are summed up and more particularly declared against contrary to the fundamental Laws of the land in the Petition of Right exhibited to King Charles the I. in Parliament in the thirtieth of his Reign wherein the late imprisonment of the Kings Subjects without any cause shewed and the denial of Habeas Corpus are expresly resented as also putting Souldiers and Mariners to death by Martial Law in time of peace And the King's answer to this Petition is remarkable
common Air they breathe in and King Charles the First somewhere says That it was his Maxim that the King's Prerogative is to Defend the Peoples Liberties and that the peoples Liberty strengthens the King's Prerogative For indeed if the Foundations are destroyed the Superstructure cannot stand and if this Rule had been well observed by this King's Sons we had not been reduced to this great Confusion we now lye under For my Lord Bacon calls those Flatterers who put the King upon such Dangerous Courses as great Traitors to him in the Court of Heaven as he that draws his Sword against him And King Iames I. in his Speech in Parliament 1609. Calls all those who perswade Kings not to be confined within the limits of their Laws Vipers and Pests both against them and the Common-wealth M. For my part I shall not go about to defend such ill men whoever they be yet since such Insinuations are done privately and in a Corner it is very hard for Subjects to judge when such Evil Councils are inâ—used into the Ears of Princes and much more unjust for them to make any resistance on pretence to remove them and therefore besides the absurdity of making Subjects both Judges and Parties you have not yet told me what number of men must be at once oppressed in their Fundamental Rights as you call them and who may make this resistance for methinks it is very absurd to give one County for example upon the account of free Quarter a Power of rising in Arms and resisting the King's Officers and Soldiers when perhaps all the rest of the Nation where no Soldiers are feel no such thing F. I am not so unreasonable as to maintain that Subjects ought to take Arms merely because the King gives too much ear to Flatterers and wicked Ministers or is too much led by them let him be so provided the people do not smart for it But if once it comes to that pass that they grow intolerable and set the King upon a General Invasion of the peoples Rights in any of the great Points I have now laid down let them look to themselves if they will not permit a Parliament to sit and redress those Grievances they must expect the Nation will rise at last against them as they did against Gaveston and Spencers and make them undergo that punishment they so well deserve But as for what you say of making the people Judges when their Rights and Liberties are invaded the Consequence is as bad if the King alone shall judge as for example in the Case of Ship-Money the Judges gave their Opinions that the King might raise Money for Ships of War in case of Necessity without any controul but if he be sole Judge of this Necessity he might lay this Tax as often and raise it to what degree he pleased Therefore as I shall not deny that the King may judge it fit to do a great many things against the strict Letter of the Law in cases of urgent necessity but it will be at his peril if he judge amiss as for example Every man's House is his Castle and he may lawfully defend it against all Illegal Commissions Yet I think no man will deny but that in case of a Fire in London the King may by Common Law command his Officers to break open some of the next Houses and blow them up with Gun-powder to stop the Fire but admit he should out of malice or mis-information command some Houses to be blown up that stood a Mile off under pretence of stopping the Fire do you think the Owners were bound to stand still and let them do it But if the People must not judge when their Fundamental Rights and Liberties are invaded because they will be both Judges and Parties then no man whatever by this Argument ought to defend himself against the violence of another for who can be judge but he that feels the blow Nor indeed could Princes make so much as Defensive Wars since whenever they do so they are themselves both Judges and Parties as I told you at our Third Meeting when I answered as I then thought all your Arguments against the peoples ever judging for themselves So that if it be proved that the people in a limited Kingdom remain as to the defence of their Lives Liberties Religion and Properties always in the state of Nature in respect of their Prince as well as all the rest of Mankind they must certainly make use of defensive Arms when necessity requires it or else become Slaves whenever he pleases to make them so may people have no right to judge of his Violence and Oppressions But as for the number that are to make this Judgment and Resistance thereupon I grant in most Cases this is not to be done as long as the Oppression is begun by colour of Law without actual violence Secondly when it concerns only some particular Bodies of Men thus if free Quarter should be taken in one or two Towns or Counties I do not allow it a sufficient cause for all the Neighbouring Towns much less the whole County or the Neighbouring Shires to take an Alarm and rise in Arms upon it since perhaps the King may know nothing of it and if he were once informed of it would redress it but can you affirm the Case would be the same if this Grievance should become general all over the Nation and that the King should be so far from redressing it that he should put out a Declaration setting forth that it was his Prerogative so to do would not the whole Nation then take it for granted that the King's Design was to govern by a standing Army who should live upon the people and devour them as they do in France to the very Bones and might not they make Resistance against these Robberies and Oppressions the same I say for all other breaches made in any other of our Fundamental Rights I do not allow any resistanâ—e to be made till it become a general Oppression upon all or the major part of the Nation and without all hopes of being otherwise remedied and this must be also so evident that there can be no doubt or denial of the Matter of Fact for so long as the Case is disputable or the Grievance is not of a general concern I grant the people ought never to stir but of this they alone must Judge since our Constitution has left us no other Judges of these breaches but the diffusive Body of the whole people in the intervals of Parliament But for your last Question as to the number that may thus rise to make this Resistance I answer thus that when once the Mischief becomes general and without all other remedy any part of the People who think themselves strong enough to defend themselves against such violence may begin to rise if they can till the rest of the Kingdom can come into their assistance as I told you the Town of Brill did
by his Majesty and those of the Popish â—unto that advised him to issue out the late Declaration so expresly contrary to Law and the sense of both Houses of Parliament and which gave the Archbishop of Canterbury and the rest of his Brethren a sufficient ground of petitioning against it and this was so evident that a Jury in which the greatest part were high Prerogative Men could not upon a fair trial but acquit them M. I shall not further dispute this point since you have dwelt so long upon it though I must still tell you I do not look upon this as a sufficient cause for the Nations taking up arms for a reason I shall shew you by and by and therefore I shall now proceed to the next head complain'd of in the Princes late Declaration viz. the late Commission for erecting a new Court for Causes Ecclesiastical but as I will not enter upon the question of the Legality of it so on the other side it was also done by colour of Law and the King as supream head of the Church was told by his Ministers that he had power to erect what new Court Ecclesiastical he pleased provided it was not of the same kind with the High Commission Court which had been abrogated by the Stat. of the 17th of King Charles the I. as likewise particularly excepted in the Proviso in the Stat. of the XIIth of King Charles the II. for restoring Ecclesiastical Jurisdiction to the Bishops Courts so that admitting that Court was not legal yet the Persons who advised the King to erect it and the Commissioners who sate in it were only answerable for it in the next Parliament and though the Bishop of London was suspended and the President and Fellows of Magdalen Colledge were unjustly expelled by this Court yet sure none of these miscarriages could give the Subjects of this Kingdom any just pretences to take up Arms to redress them being done as I said before by colour of Law without any force or violence and was also submitted to by the Parties against which these Decrees were given and was at the most but a matter of particular concern and reacht no farther than the said Bishop and Colledge and did not touch the Religion and Civil Liberties of the whole Kingdom and consequently was not of that general importance as to be any just cause of the whole Kingdoms taking Arms much less for the Kings Officers and Souldiers to run over to the Prince of Orange as they lately have done F. To answer what you have now said concerning the Ecclesiastical Commission that I must also tell you was issued forth without so much as any colour of Law for it and though the late Chancellor and some of the worst and most Mercenary Judges countenanced it by appearing for and acting in it yet it is very well known that it was never proposed to all the Judges to be argued in the Exchequer Chamber as it ought to have been before a thing of that great importance to the whole Nation had pass'd the Seals as to what you say that the Kings Ministers told him it was according to Law and that they alone ought to answer for it in the next Parliament and that no publick disturbance ought to have been made about it because the things that that pretended Court did were but of a particular concern and only reacht the Bishop of London and one single Colledge that is but a fallacy which you put upon your self for sure if you had better consider'd of it you would find that what these Commissioners have already done is of a little more publick concernment than you are aware of for pray tell me why by the same Law by which the Bishop of London was suspended for his refusal to silence Dr. Sharp all the Bishops in England might not have been suspended one after another by that pretended Court if they had refused to obey or execute any Letters or Orders from the King tho' never so illegal or unreasonable since what command could be more illegal than the King 's positive order to the Bishop to suspend a Clergyman from his Diocess without first hearing him or giving him leave to answer for himself So likewise for the case of Magdalen Colledge by the same Law by which these Ecclesiastical Commissioners took upon them to turn out the President and Fellows for disobeying the Kings Mandamus by the same Law the King might put upon any other Colledge in either University Popish Heads and Popish Fellows till instead of Nurseries for the education of our youth in the Protestant Religion they may become as absolute Popish Seminaries as the Colledges of Doway or St. Omers and though I grant that the persons concerned in these unjust Decrees might have patiently submitted to them without any protestations against the jurisdiction of that pretended Court since they might for some prudential reasons have thought fit to submit to them without making any such protestation and yet for all that not allow their Authority but indeed the matter of fact was far otherwise for when a part of these Commissioners sate at Magdalen Colledge to expel the said President and Fellows from their places contrary to Law and the express Statutes of the Colledge they did all severally protest against their whole proceedings and appealed to the Kings Courts at Westminster And it is a plain proof how willingly Dr. H. the President of this Colledge submitted to this Sentence by his locking the Doors of his Lodgings and leaving the Commissioners to break them open before they could get in and put in his pretended Successour by force But as to what you say that the King was told he might as supream Head of the Church set up what new Court he pleased for the execution of his Ecclesiastical Jurisdiction it is certainly a great mistake for I utterly deny that the King has power to erect any new Courts either Ecclesiastical or Civil unless by Authority of Parliament the Kings power to make a Vicar general being only confirmed by the Statute of King Henry the Eighth as was also the Authority of the high Commission by the Statute of the first of Queen Elizabeth and if either of those high spirited Princes hadâ— believed themselves to have been invested with such an unbounded Prerogative they would certainly have exercised it without being beholding to the Parliament but indeed it is but a subterfuge to alledge that this Court was not of the same Nature with that of the high Commission because it did not take upon it to â—â—ne or commit Men to Prison nor to administer the Oath ex Officio to those that were convened before them since it is not the different name or some small difference in the manner of the judicial proceedings but the Causes or Matters that a Court pretends to take Cognizance of that can make it a Court of a quite different nature now it is notoriously known that this late Ecclesiastical
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
out the President and Fellows of Magdalen Colledge by the late Ecclesiastical Commission as also the turning out of the Deputy Lieutenants and Justices of Peace and all other Magistrates out of Cities and Corporations the King has sufficiently redress'd them by restoring the first to their places and by putting all the rest into Commission again and turning out those that came in their rooms and all this before the Prince of Orange came over and I doubt not but his Majesty would have been content to have given the Nation any other reasonable satisfaction they could have desired in the next Parliament Which ought to have been patiently waited for untill his Majesty thought sit to call it without going about to right our selves by Force F. I confess you have made not only the most plausible defence you can of the Kings late actions but have also urg'd the utmost that can be said against those defensive Arms that have been lately taken up by those Lords Gentlemen and others who have associated themselves to stand by the Prince of Orange till our grievances were redrest by a free Parliament but if what you have said be strictly lookt into I doubt it will prove but a mere Subtersuge to hide the nakedness of the Cause you have undertaken In the first place therefore let me tell you that though I confess the King has not yet Dragoon'd us to Mass nor has made an actual War upon the Lives and Properties of the People of this Nation yet that he has not only invaded our Liberties but also endanger'd the Protestant Religion of the Church of England establish'd by Law you your self have not the confidence to deny only you will not suppose it to have been done by any Armed Force and therefore ought not to have been resisted by Force but to have waited for their redress by Parliament which is but an evasion for in the first place it is plain that the things complain'd against in the Prince of Oranges Declaration do most of them strike at the Fundamental Constitution both of the Church and State as I have sufficiently prov'd and shall do it more particularly hereafter when there is occasion all therefore that remaines to be prov'd is this that all these breaches and violations of our Religion and Civil Liberties tho' done under colour of Law yet were acted and maintain'd by Force and Secondly that all other hopes of remedy or redress unless by joyning with the Prince of Orange was wholy taken from us the first of these I prove thus It is notoriously known that for the King to maintain a standing army in time of peace has been always declar'd against in Parliament as contrary to Law and dangerous to the Religion civil rights and Liberties of this Nation now it is also as certain that the King has ever since the Duke of Mâ—nmouths coming over set up and maintain'd a standing Army in this Kingdom in which he has also put in as many Popish Officers and they as many Popish Souldiers contrary to the Laws of the Land as ever they could find besides the many Irish Papists that have been of late sent over for no other purpose than to be listed here whilst Protestant souldiers were turn'd out of several regiments to make room for them not to mention the listing of vast numbers of loose and prâ—â—ligate fellows and some of them pardon'd Highway men who provided they had their pay would not have â—luck to Rob or Murder any body they had been ordered as may be sufficiently prov'd not only by their common taking of free quarter but by their frequent taking it in the houses of Gentlemen and other private Persons in divers places of this Kingdom and that without any amends or redress as I know of tho' frequently complain'd of at Court all which being done by the Kings arbitrary Power without the least colour of Law and in contempt of the Militia the only legal Forces of this Kingdom what was this but plainly to declare that as the King had thought fit to Act so many arbitary things clean contrary to Law so he was likewise resolv'd to maintain 'em by force since it is plain that the King never dur'st undertake to do all these Illegal and arbitrary things we have now mention'd untill such time as his standing Army was raised and tho' it is true mens Lives Liberties or Estates cannot be taken away unless by some Force or other either Legal or Military yet as for those Civil rights and Priviledges which are the main Bulwarks and defences of the former they can only be invaded or taken from us by Illegal Judgments and Declarations which if supported by a visible Force beyond what the Nation in the Circumstances it was in was able to resist this is as much a taking them by Force as if there had been resistance made about them Thus if Souldiers come into my House and say that the King hath given them Orders to quarter there upon free cost I suppose you will not deny but this is a forceable taking of my goods nowithstanding I dare not because I cannot resist them the same I may say for a whole Nation when once opprest in their Civil Liberties and those oppressions are once back'd and defended by a standing Army contrary to Law But that this Army was raised cheifly to this intent I can give you a remarkeable instance from the mouth of the late cheif Justice Wright who sent for Officers and Soldiers to make the Scholars keep silence because they Hum'd at what the President and Fellows of Magdalen's had just before done against the authority of this pretended court so that to conclude from that very time that the King beagn to keep up an Army and to list Popish Officers and Souldiers tho' utterly disabled by Law to take Commissions or to bear Arms by vertue of his Dispensing Power and all this in Order to back and support his Arbitrary proceedings I look upon this Nation under such a force as that they might Lawfully remove it by Force when ever they could And that either by joyning with some Foreign Prince or else by their own Domestick Arms. But to come to the second point to be prov'd viz. That there was no other means but Force lest us to redress these mischiefs and to retrieve us out of that sad condition in which we lately were as also to hinder us from falling into worse I shall only suppose that which I think you will readily grant that there could be no other means to cure these evils but either by some sudden change in the Kings inclinations or else by a Free Parliament the former you must acknowledge was not possible as long as he continued of the Religion he is of and suffer'd himself to be manag'd by the Counsels of the Jesuits and French King and as for a Free Parliament what hopes could there be of that as long as the King had done all he could
dare not insist upon it so that I do not now wonder that the Gentlemen of your Principles are so violent for this right of Resistance since it is only in order to introduce your Darling Doctrine of the Peoples Power of deposing or laying aside their Kings as you term it whenever they shall judge they turn Tyrants and have thereby forfeited their Crowns which is a most dangerous Doctrine and if it should take effect the Princes of the World had need look about them since the People may make up such a pretence for ought I know even against the very best of them that are now Regnant in Europe But sure absolute Monarchs ought not to be outted of their Crowns by strained consequences or forced interpretations of Laws therefore pray shew me this original Contract you so much insist upon and those conditions on which you suppose our limited Monarchs hold their Crowns I confess if you could shew me any clause in our Laws or ancient forms of the Coronation of our Kings as there was at the Coronation of the Kings of Arragon wherein the chief Justice on the behalf of the People plainly told him that they made him King upon this Condition that they would have more Power than himself or that in the conferring of the Regal Power it was expresly reserved in what cases it should be lawful for them to resist the King or to absolve his Subjects from their Allegiance as Bodin tells us it was expresly inserted in the Coronation Oath of Henry II. Duke of Anjou afterwards King of France when he was made King of Poland that if he broke his Oath and violated the Laws and Priviledges of the Clergy and Nobility of Poland then the People of that Kingdom should not be obliged to render him any obedience I grant then that the Liberties of such a People might be preserved but the King that took upon him the Regal Power upon such conditions would not be properly a Monarch but liable to the Judgment of his People whenever he really did or that they imagined he had thus violated their Laws since the Supream Authority would still reside in them But indeed the Case God be thanked is much otherwise with our Monarchs who are Kings by right of Inheritance whether ever they take any Coronation Oath or not as K. Edward the first was whilst he was in the Holy Land almost two years before he could come over to be Crown'd and K. Henry the sixth was not Crowned till the eighth year of his Reign as well as of his Age. But that our Kings are so by Inheritance and by the Laws of God and Man previous to any Coronation Oath or consent of the People is expresly declared by the Act of recognition of K. Iames I. and that Treason could be commited against him before he was Crowned Sir Edward Cooke tells us in Calvin's Case was the opinion of all the Judges of England in the Plot wherein Watson and Clerk the Priests were Executed and Sir Walter Rawleigh condemned So that what you have now urged from Reason or Authority of our Antient Lawyers is either quite mistaken or else does not reach the matter in hand that it cannot be made out from reason is plain since your whole Argument is built upon this false foundation that it is lawful in some cases to resist the King in case of a notorious breach of the fundamental Laws and therefore it is necessary also to declare him to have forfeited his Crown if he persist in this violation whereas I deny your Assumption for I hold it utterly unlawful to resist on any pretence or for any cause whatsoever and therefore it is impossible for the King who as I said but now is an absolute unconditioned Monarch to forfeit his Crown for any such violation of your Original Contracts or Fundamental Laws of Government so that let me tell you that the citations you have brought out of History as also Bracton and Fleta do not prove either the one or the other of these for first as to the clause in King Iohn's Charter concerning resistance and the Barons having a Power thereby to constrain the King to amend his violations of it by making War upon him and that they should not return to their former Allegiance till all was redressed make the most of it it could be no more than a particular concession for himself alone and was not intended to reach his Successours who are not at all mentioned in this Clause and that it was never intended to reach them may further appear because that this clause of resistance is omitted out of all the subsequent great Charters that were granted by Henry the III. or his Son Edward the I. and instead of this it was thought a sufficient security upon the last confirmation of these Charters in the 37 year of King Henry III. for the King Bishops Earls and Barons to agree that the Arch-bishop of Canterbury and all the rest of the Bishops should declare all those that wilfully transgressed or infringed the great Charters in any point excommunicated ipso facto not excepting the King himself according to the form of it which you will find in Mat. Paris and other Writers of this Transaction But for the places you have cited out of Bracton there is none of them reach the point in question for as to the first non est Rex ubi dominatur voluntas non Rex the meaning of it is not that he is no King but that he does not act as a King but a Tyrant when he thus governs by his meer Will and not by Law and to the same effect is the next passage Rex est dum bene regit Tyrannus dum Populum fibi tradi um violenta opprimit dominatione all which we readily grant yet since he is still an absolute Monarch all Writers hold that his governing without or against Law cannot give the subjects a power to resist him much less can it be construed as a renunciation or forfeiture of his imperial Power and therefore tho' it is true that as Bracton and Fleta tell us whilst he thus acts he does not act as God's Lieutenant but the Devils Minister yet does it not follow that we may therefore resist him with carnal Weapons or force since we cannot so resist the Devil himself and tho' he may in this matter of breach of the Laws which he has sworn to observe act as the Devils Minister yet notwithstanding in all other points of Government as in the Punishment of Robbers and other notorious offenders and in the due Administration of Justice between Man and Man he still acts as Gods Lieutenant and it is much better that we should have some civil Government tho' mixt with Tyranny and oppression than that we should fall into all the mischiefs and confusions of a Civil War nay that Anarchy too which has been often produced by it and tho' I confess the last place you
English and if it were so in this cause it will follow for the same reason in all other Counties all over England Lastly That these Gentlemen were well skilled in the Antient Laws and Customs of England which had been in vain if they had been altered as you suppose M. I will not deny but that in the beginning of the Conquerors Reign many Englishmen might have Estates left them which might not be taken away till some years after and Mr. Selden in his Titles of honour places this Tryal between Earl Odo and Arch-bishop Lanfranc about the first year of K. William and I suppose that it happened before the fifth year of his Reign when Matthew Paris tells us that the Earls Eadwin Morcar and Siward together with Egelwin Bishop of Durham as also many thousands of Clerks and Laicks not being able to bear the severity of K. William fled into Woody and Desart places and from thence got into the Isle of Ely where they fortified themselves and whither K. William followed them and taking the Island made them submit to mercy and then this Author tells us that the K. put the Bishop of Durham in Prison and as for the rest some of them he killed some he put to ransom and others he commited to perpetual imprisonment so that I reckon from this time the King took away most of the Englishmens Estates as not trusting them any more F. If this had all happened as you have put it yet would it not prove what you have maintained for if those Englishmem who had not been engaged with Harold or else had been pardoned for it still held their Estates and as you say they forfeited them afterwards for Rebellion then it is certain K. William did not proceed against the English as a Conqueror since if he had he would have taken away their Estates Iure belli which since as you your self confess he did not whatever Estates he took away afterwards was either for Treason committed by the English or else wrongfully if the former he did it as a lawful King if wrongfully then as a Tyrant and as such could obtain no just right against the English Nation by his unjust proceedings But indeed after all you are quite out in your account concerning this matter for as to the great Tryal you now mentioned it could not be in the first or second year of King William's Reign nor could happen sooner than the sixth or seventh of his Reign for Arch-bishop Stigand was not deposed till the year 1070. which was the Fourth year of K. William and in the next year being 1071. the Annals of Mailros as also the Chronicle of Thomas Wiks place Archbishop Lanfranc's Coâ—secration and fetching of his Pall from Rome so that it could not be until the year after this Rebellion at the soonest when Lanfranc was setled in his Bishoprick that this suit was commenced by him against Earl Odo and therefore a great many of the English Nobility and Gentry had still Estates let them after this Rebellion And that they continued to have so some years after this time appears by those Writs of K. William which Mr. Atwood hath given us in his Ianus Aâ—glorum c. concerning the restitution of the Lands belonging to the Church of Ely which are also transcribed and allowed by your Dr. in his answer to it and I desire you particularly to consider that writ of K. William's directed to Arch-bishop Lanfranc Roger E. of Morton and Ieoffery Bishop of Constance commanding them to cause to be assembled all those shires who were present at the Plea had concerning the Lands of the Church of Ely before the Queen went last into Normandy the rest being most material to the cause in hand I shall give you in Latin Cum quibus â—tiam sinc de Baronibus mâ—is qui competenter adesse potâ—â—unt praedicto placito intersuerunt qui terâ—â—s ejusdem Ecclesiae tenent Quibus in â—num congragatis eligantur plures de illis Angliâ— quisciunt quo modo terrae jacebant praefatae Ecclesiae die qua Rex Edwardus obiit quod inde dixerint ibidem jurando testentur From whence we may also gather that this Tryal concerning the Lands which is here ordered was to be in like maâ—ner and by a Jury of the same sort of Englishmen who tryed the cause between Earl Odâ— and Arch bishop Lanfranc that is they were English Gentlemen of sufficient Estates or Tenants in Capite if you please Now. let us look into the time when this happened since the Writ doth not tell us when it was only that it refers to a Plea held concerning the Church of ELy before the Queens last going into Normandy so that this tryal here mentioned could not happen till after the fourteenth year of K. William's Reign which I prove thus this Queen did not come over into England till the year 1068. when the King returned with his Queen out of Normandy after his Coronation at which she was not present after which K. William went not into Normandy till the seventh year of his Reign when he went over and took Mans and then whether he carried the Queen with him is uncertain but the Annals of Waverly tells us he went over again the next year and then he might carry the Queen with him which might be the first time she returned into Normandy but it appears by the same Annals that the King went over the year after and staying but a little while returned into Normandy to fight against his Rebellious Son Prince Robert where staying not long he returned as soon as he had driven his Son out of Normandy nor do we find he went over again till the 14 year of his Reign being the year 1080. and then I suppose since he stayed there for some time he carried the Queen with him and to this last going over I suppose this Writ we have cited refers for tho' the Queen went over again after this yet she returned no more because she died in Normandy in the year 1083. as Iogulph who was then alive relates the use I make of these particulars is this that long after the time you suppose the English to have lost all their Estates we here find a great Jury of Englishmen summoned out of several shires in England to try this great Cause concerning the Lands which the Church of Ely had been unjustly Disseised of so that here you see after the fourteenth year of this King the English still continued to keep their Estates and to serve upon Juries and consequently the Pleadings before them as well as their Verdict must have been in English M. I shall not insist upon this point any farther yet this much you cannot deny but that all the Pleadings and Proceedings at Wâ—stminster as also the old Law books were all in French as appears by the Mirror of Justices Britton not to mention those of latter days as Littleton's Tenures and others and so were
things being considered it is no wonder if the Judges and Clerks of Parliament who were in those days entrusted with the drawing up all Acts of Parliament being greater Masters of the French than Latin Tongues chose rather to draw them up in the former and thus it continued until the Reign of Henry the seventh when our Statutes began first to be drawn up and enrolled in English M I confess you have given me a greater light in this matter than I had before yet I suppose you cannot deny that the Tenure of Knights Service with those clogs that belong to it of Wardship Marriage and Relief were all derived from the Normans as appears by the grand customer of Normandy which I have already menâ—ioned so that tho' it be true that all these are now taken away by a late Statute of K. Charles the second yet since this Tenure and those services are not found among the Saxon Laws there cannot be a greater proof of the ancient power of the Conqueror or of the servitude imposed upon the Nation by him and therefore I look upon it as a very imprudent part of the late K. Charles to part with so great a tye which his Father and all his Predecessors had over the Persons and Estates of all the Nobility and Gentry of the Kingdom F. I shall not take upon me to decide whether it were Politickly done or not of K. Charles the second to part with the Wardship and Services of his Tenants by Knights Service but this much is certain that considering the abuses and corruptions that had crept into that Tenure by degrees since the first institution both by the unfit Marriages of the Heirs as also by the waste that was often times commited on the Wards Estate during his Minority it was certainly a very great grievance and burthen to the subject and considering how many of those Wardships were begged by hungry Courtiers they were of no considerable profit to the Crown and tho' I grant they were a very great tye or rather clog upon the Estates of the Nobility and Gentry of this Kingdom yet it did not thereby produce any such love or obedience as would retain the Tenents better in their duty before than since they were granted away for the forfeitures for Treason and Felony and also Fines for Alienations and are reserved to the Grown now as they were before and as for any love or respect which was anciently paid by the Heir how could there be any such thing since the King granted away the custody of the Heir and his Lands to persons who for the most part made a meer prey of them so that they were often Married against their consents and their Estates were delivered to them wasted and spoiled besides also what was exacted from them for reliefs and Ouster lismaines we need not wonder if it were rather a cause of secret discontent and hatred of the Kings Prerogative than otherwise and therefore I cannot think it was not so unpolitickly done by the King to render himself gracious and acceptable to his People upon his return to grant their request and pass that Act for taking away Wards and Liveries and to accept of a Revenue by excise of treble the value in stead of it But to come to the Original of Knights Service it self I do not think it was derived from the Normans since we are certain there were Thane Lands in England which were held of the King and that by Knights Service before King William's coming over and there were also middle Thanes who held of those Lords above them by the like Service insomuch that in the Laws of K. Knutâ— there is one concerning the Heriots which an Earl the Kings Thane as well as inferior Thanes were to pay not only to the King but to other inferiour Lords which are almost the same as were afterwards reserved by the Laws of K. Edward the Confessor confirmed by K. William as you will find them in Ingulph only there is no Gold reserved but only Horses and Arms whereas by the Law of K. Knute each E. was to pay two hundred Manenses of Gold each Kings Thane fifty and each inferiour Thane two pounds only note that he who is called E. in K. Knutes Laws is called a Count in these the Thane a Baron and the inferior Thane a Vauasor and that which is there called a 〈◊〉 is here termed a Relief And that this Tenure by Knights Service which is now called Escuage or Servitium Scuti was of ancient time named expeditio hominum cum scutis and was in use before the coming in of the Danes is also as certain for Sir E. Coke in his fourth Inst. tells us that we may in the Charter of K. Kenulph who Anno Domini 821. granted to the Abbot of Abbindon many Mannors and Lands and reserved quod expeditionem duodecim virorum cum tantis scutis exerceant antiqâ—os pontes arces renovent and also he mentions a like Charter of K. Ethelred to a Knight called Athelâ—eâ— Anno Domini 995 so that you see not only Spiritual Persons and great Thanes or Barons but also Knights held Lands by the service of so many men before your Conqueror and your Dr. also himself allows it for in his answer to Mr. P. in all ancient Charters in the Saxon times he translates the word fidelâ—s by Tenants in Capite or Military Service M. I will not deny that Military Fees were in use before the Conquest and also that the feudal Law did obtain here in many things and therefore I am so far of the Doctors opinion who in his Gossary Tit. Feudal Laws tells us The Feudal Law obtained to most Nations of Europe and in Normandy was in its full Vigor at the time of the coming over of the Conqueror but afterwards grew more mild and qualified as also the Tenure it self a perfect description of which with all its incidents of Homage Relief Ward Marriage Escuage Ayds c. are to be found in the Grand Customer Cap. 29.33 34 35. and although there were Military Fiefs or Fees here in the Saxon times yet not in such manner as after the Conquest established here by William the Conqueror and according to the usage in Normandy when as it appears by Doomesday-book in every County he divided most if not all the Land of England amongst his Normans and Followers Now that this custom of Wardships is wholly derived from the Norman Conquest you shall find in Sir E. Cookes fourth Institutes in the same Chapter you last cited as you may here read You have heard before de regali servitio before the Conquest but that regalâ— servicium which was Knights service drew unto it relief but neither Wardship of the Body or of the Land as hath been said it is true that the Conqueror in respect of that Royal service as a badge of the Conquest took the Wardship of the Land and the Marriage of the
little value for those things which are the foundations of our happiness as to desire they should be Sacrificed to an Arbitrary Power nor on the other side have I so great a value for them as to endeavour their preservation by Rebellion and deposing the King which since I look upon as altogether unlawful we are then to follow the Apostles Rule and not do Evil that Good may come of it but as for what I have urged in excuse of the Conquerors Perjury and breach of Laws I confess I have said more than the matter will well bear but I hope you will excuse it since I confess the argument is none of mine but the Doctors from whom I borrowed it and I did not consider the bad consequences of it yet this much I must still freely affirm that neither King William the Conqueror nor his present Majesty who is his heir by an Hereditary Right of Succession either could then or can now at this day be lawfully resisted much less can be deposed or can forfeit their Royal Dignity for any Male administration or Tyranny whatsoever F. Pray give me your reason for that since I think you may be very well satisfied that this Kings Title by Conquest from King William his Ancestors can signifie nothing tho' I should grant the utmost you can demand and therefore tho' I am as much against Rebellion and Deposing of Princes as you can be and doing of evil that good may come of it yet the question remains still to be decided between us whether that resistance I maintain be Rebellion or not and whether it be Treason to deny obedience to a Prince who hath done his utmost to lose the very name of King by not observing those conditions on the performance of which he can only keep his Royal Dignity now since I think I have fully proved the two Points I undertook viz. both that of the Kings forfeiting the Crown in the cases I have put as also that of the matter of Fact whereby you would maintain that the King has an indeseasable Right to the Crown of this Realm â—as an Absolute Monarch by the Conquest now since you decline arguing this Point any farther because you find it is not to be maintained pray let me know what other reasons you have why you cannot come over to my opinion M. Though I am not yet satisfied but that a great deal more may be farther urged by those who are better versed in this controversie to prove that his Majesty hath an unforfeitable Right to our Allegiance by the Conquest of King William and his Predecessors yet I shall not now insist any longer upon that Title which tho' our Kings have by so many gracious condescentions to the People of this Nation seemed to wave yet have they never renounced it as I know of but since his Majesty was setled in the Throne as an Absolute and Lawful King without any Competitor by a long series of aâ— Hereditary Succession of above six hundred years standing and confirmed by the Oaths of Allegiance of the People of this Nation both to him and his Ancestors he is not only our King by the Laws of Man but God also to whom and not to the People he owes his Crown and can therefore neither forfeit it nor be accountable to them for it and when you can prove the contrary you may then convince me to be of your opinion F. We have already partly argued this Point at our third and fourth discourses concerning the lawfulness of resistance but since perhaps you may have still somewhat farther to urge upon so important a question I desire to hear the utmost you can say to prove that Kings owe their Crowns to none but God and therefore ought never to be resisted neither can forfeit their Crown upon any pretence whatsoever and therefore pray appoint me some other time when I may wait on you again and fully discuss this Point since it is now very late M. I am sorry I cannot appoint you any certain time for since I see so great a confusion reigns every where and that there is like to be no Term and consequently no business for men of my Profession I am resolved to retire for two or three months into the Country till I see things a little better setled than they are at present and I heartily wish that the Convention which I hear is like to meet in some time may endeavour the Peace and Settlement of the Nation by sending for the King and the Prince of Wales out of France since I do not desire any more Conquests nor the Government of a Foreign Prince as long as we have a lawful King of our own who will govern us again if he might but as soon as I return to Town you shall be sure to know it In the mean time I am your Servant F. I am yours and wish you a good Journey FINIS Bibliotheca Politica OR A DISCOURSE By WAY of DIALOGUE On these following Questions I. In what Sense all Civil Power is derived from God and in what Sense may be also from the People II. Whether His Present Majesty King William when Prince of Orange had a Just Cause of War against King Iames the II. III. Whether the Proceedings of His Present Majesty before he was King as also of the late Convention in respect of the said King Iames is justifiable by the Law of Nations and the Constitution of our Government Collected out of the Best Authors as well Antient as Modern Dialogue the Eleventh LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford-Arms where also may be had the First Second Third Fourth Fifth Sixth Seventh Eighth Ninth and Tenth Dialogues 1694. Authors made use of in this Dialogue and how denoted in the Margin The History of the Desertion H. D. The Desertion discussed D. D. Some Observations upon the Ecclesiastical Jurisdiction of the Kings of England O. E. I. A Discourse of the Illegality of the Late Ecclesiastical Commission I. E. C. ADVERTISEMENT ON tke first Day of the next Term will be published the Twelfth and Last Dialogue and also a large Index to the whole Work THE PREFACE TO THE READER BEing almost arrived at the end of my intended design I thought fit to let you know that I hoped to have made this the last Discourse that I should have troubled the World with upon these Subjects but when I came to reduce my Notes into form I found that these few sheets would not contain all that could well be said on either side upon the foregoing questions and therefore am forced to refer what remains to be said concerning the Vacancy of the Throne and Their Present Majesties Title thereunto till the next Dialogue which I intend shall be the last And which I should not have drawn to that length had it not been for the benefit of those Gentlemen and others who have not Time or Money to buy or peruse the vast
wanting to the making such a Master of a Family a lawful and absolute Prince provided he was endued with such power as to be able to protect them yet all this while without supposing any new Divine Authority to be infused by God upon his accession to this Dignity M. I confess you have given me a more exact account concerning your sense of this matter than ever I had before and therefore I shall not further dispute this point with you only let me tell you that upon this Hypothesis of yours is founded that desperate Opinion concerning the real Authority or Majesty of the People which the Common-Wealths men suppose still to reside in the diffusive body thereof after the Government is Instituted And by vertue of which they suppose there still remains a power in them to call their Kings or Governours to an Account and punishing them for Tyranny or any other supposed Faults against the fundamental constitution of the Government or the Original Contract as those of your party are pleased to term it F. Well then to let you see I am none of those Common-Wealths men who maintain any such desperate Doctrine Here I do freely own that where the People have parted with their whole Power either to a Monarch or else to a Supream Council or Senate from thenceforth they have nothing at all to do to call such Governours to an Account or to punish them for the highest Tyranny or Oppression they can commit The utmost I have allowed as lawful to be done in this case in all the Conversations we have had is no more than this That the People in case they see themselves like to be destroy'd and ruin'd both in their Persoâ—â— Consciences and Estates may even under the most Absolute Governments stand upon their own defence and prevent their being thus totally ruined and may also cast off all Allegiance to such Powers in case they refuse to treat them with greater justice and moderation for the futureâ— But as for such limitted or mixt Governments as ours are where the People have still retain'd a share in the Legislature and also in the raising of publick Taxes yet since the King is by Law exempted from punishment or rendring any account of his Actions either to the People or their Representatives the utmost that I contend for is that since the King receives only a Limited Power of ruling according to such and such Laws and will Usurp that share of the Government that do's not belong to him In such cases if he refuse to amend then they may resist his Officers and Ministers nay himself in Person in the executions of such Violent and Illegal Actions And if he still prsist and rceâ—use to amend that then at last they may proceed to Declare that he hath forfeited his Crown or Regal Right of Ruling over them And then in such Case I hold that it again devolves to the People from whom it first proceeded and that this is no new Doctrine I have the Authority of Fortescut on my side who in his Treatise De Laudibusâ— Legum Angliae Where after having shewn that all Political or Limited Governments proceeded at first from the consent of the People proceeds thus Addressing himself to Prince Henry Son of King Henry the VI. For whom he composed this work Habâ—s ex hâ—c 〈◊〉 Princâ—â—s institutionis Politici Regni formam ex qâ—â— metiri poteris potestatem quam Rex eju◠〈◊〉 legis ipsius aut subditos valeat exercire Ad Tutelam â—amous legis ac subdit orum â—â—rum Corporum â—onorum Rex hujuâ—modi erectus est ad hanc Potestatem a Populo affluxam ipsi habet quo eiâ—noâ— licâ—t potestate aliâ suâ— Populâ— Dâ—minarâ— From whence we may observe that he calls the Government of this Kingdom not Regnum Simply but Regnum Politicum that is a Politick or Limited Kingdom in opposition to Regnum Absolutum made up of divers parts This he calls a â—ower flowing or proceeding from the People and if it thus proceeds from the People it must certainly return to them again upon the failure of the conditions to be performed on his part Noâ— do's this suppose any real Majesty or Authority in them who take this forfeiture any more than is â—o's suppose it in the People according to your own Hypothesis when the Civill Authority do's again devolve to them upon the Death of a King without Lawful Heirs M. I do now very well understand your Hypothesis but I think Princes are not thereby in a better condition by being thus unaccountable to and unpunishable by the people But that they are father in a much worse since you say they may resist nay kill them when they are once entered into a state of War against them For whereas where Princes are accountable to their People or Senate they may then be admitted to be heard to make their defence in case of any Oppression or Misgovernment laid to their charge As the King of Poland may at this day to the great Assembly of Estates or Dyeâ— of the Nation Whereas in the case of the King as you have put it though he is not accountable to the Parliament yet he is still lyable to that which is more dangerous viz. To be Judged Censured and Declared forfeit by every â—onsiderable fellow of the Rabble on pretence of violating this Original Contract and having broken the fundamental constitution of the Government and so shall be condemned unheard and perhaps without any just cause So that I think a man had as good be a Bâ—â—ward as a King upon such Term. F. The men of your Principles I see are not to be pleased unless Princes may do whatever they have a mind to without controul or any mans judging or opposing the Illegality of their Actions For if a Parliament takes upon its self to judge of the Kings Actions this is calling their Princes to an Account and a thing against the Laws of the Land as also that of Nations If the whole Body of the People take upon them to judge when he has violated the fundamental Laws of the Kingdom and broken the Original Contract and thereupon resist him This is making the King liable to be Judged and Censured by every mean fellow of the Rabble But to let you see that both Judging and Disobeying the Kings commands if contrary to Law is not a thing of such dangerous consequence as you would make it appears by the late Petition of the Seven Bishops wherein they take upon them to Judge that the Kings 〈◊〉 Declaration of Liberty of Conscience being against several Acts of Parliament they cannot with a safe Conscience Publish it or agree to the Reâ—ding of â—t in the Churches Now I desire to know whether this be 〈◊〉 a making the Kings Actions liable to be Judged and Censured by every one of the Rabble since these Bishops acted thus neither as Privy Councellors noâ— as Peers in Parliamentâ— for by the
this War had been made in their own names it had been but a just Return for what had been done to them before by the Late King who made actual War upon them without ever giving them the least notice or demanding satisfaction for any wrongs or damages receiv'd and this was the more justifiable because his present Majesty when Duke of York was looked upon to have a very great hand in those Councils which begun that unhappy War in which he himself serv'd as Admiral But as to the Prince of Orange there is much more to be said in his justification for in the first place tho' in some respects he was a Subject by living under and enjoying divers Lands and Territories and Commands within the Dominions of the United Provinces yet as he is Prince of Orange he is a free independent Prince and as such has a right of making War and Peace and if so all that is to be further enquired into is whether the Prince had any just cause of making War upon the King or â—ot therefore to answer your first Objection against the Prince's making War upon an Uncle and a Father-in-law without first demanding satisfaction and then denouncing War if he could not obtain it I confess this were a good Objection if you could once prove to me that the Prince could have been sure to have had granted him whatever he could in reason demand both in respect of the Church of England the security of the Protestant Religion the Rights and Liberties of the Subjects of England and his own particular concerns in respect of the Prince of Wales but whoever will impartially consider the Terms that the Prince and King were upon just before his coming over will find that he was not obliged to give the King notice of his intentions by first demanding satisfaction and then denouncing War if it had been denyed since the King might then have joyned his own with the French Fleet and sent for French Forces into England and then all that the Prince could have done in behalf of himself and the Nation had been altogether in vain And then though I grant that such satisfaction ought to be demanded in most cases yet will it not hold in this where if the Prince had sooner discovered his designs the King might have easily prevented them And how near this was to have been put in Execution may appear by this That Succours were actually offered by the French King and if they were refused by ours it was partly because it was too late for the French Fleet to be then put out and partly out of a Politick consideration that besides the losing of the Hearts of his English Subjects it might give the French such a footing here that they would not be easily gotten out again But indeed it seems as if the old formal way of making War was quite out of fashion since Charles the Second made War against the Dutch and the King of France so lately against Spain the Elector Palatine and the Emperor without any Observation of those formalities But if we consider the Grounds and Causes of this War as they are set forth in the Princes late Declaration they may be reduced to these three Heads First The Restoration of the Church of England with the Bishops and Colledges to their just Priviledges Secondly The securing of the Rights and Liberties of the Subject from the Dispensing Power and those other Incroachments that had been made upon them by the partial Judgments of Popish Ignorant or Corrupt Judges And Lastly The Enquiry into the Birth of the Prince of Wales In all which the Prince was so reasonable as to refer the decision of these differences to the Judgment of a Free Parliament Now as for the first of these That the Prince as a Neighbour and of the same Religion with us might justly secure the interest of the Protestant Religion here and also redeem the Clergy from the persecution they lay under is very evident Since it has always been held lawful for Princes to take the part and espouse the interest of those of the same Religion with themselves though Subjects to another Prince Thus Eusibius makes it a good cause of War by the Emperor Constantine against Licinius because he persecuted the Christians living under his Dominions So likewise of later Ages Queen Elizabeth assisted the Dutch Protestants of the united Provinces and those of France against the Persecutions and Oppressions they suffered from their own Princes As to the French Protestants King Charles the I. sent a Fleet and an Army to their Assistance in 1627. But as to the next Head the Oppressions we lay under in respect of our Civil Liberties the Prince had as great or rather greater right to vindicate these than the former For Bodin and Barclay though they suppose it unlawful for Subjects to take up Arms against their Prince though never so highly Opprest yet they count it not only lawful but Generous and Heroick for a Neighbouring Prince to rescue injur'd and opprest Subjects from the Tyranny of their Kings So that if the King had by his Dispensing Power his Levying of Taxes without Law and taking away the freedom of Elections for Parliament men almost totally dissolved the Government and brought it to the condition of an absolute Monarchy it was high time for the Prince to put a stop to those Encroachments both in respect of his own particular interest and also of the States whose General and Stadâ—holder he is Of the former since if this Kingdom should once become of the Popish Religion by the means of a standing Army and those other methods that have been taken to make it so granting the Prince of Wales to be truly born of the Queen yet should he happen to die the Popish faction here in England would in all likelihood debar the Prince and Princess of Orange from their lawful Succession to the Crown or at least would never admit them but upon conditions of establishing of Popery and Arbitrary Government in England the former of which is as contrary to their consciences as the latter is to their principles and inclinations So on the other side if the Prince of Wales be not the Queens true Son he had certainly a much greater interest as the presumptive Heir of the Crown to demand satisfaction in that great point which so nearly concerned their right of Succession For then certainly they might justly demand satisfaction especially when they desired no more but to have this business left to the inspection of the Estates of the Kingdom as the only proper Judges of the same For as to the Privy Council who by the Kings command though without any president had taken upon them to hear and determine this matter their Highnesses certainly had no reason to be satisfied with it since besides the incompetency of the Judges the King himself appeared too partial and interested in the affair for them to set down by
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
together with the Bishops of Winchester and Ely with divers other Earls Bishops and Lords then in Town had sent an Address to the Prince immediately upon the Kings departure and sent three Lords and one Bishop with it desiring his Highness to come speedily to London and to take the Government upon him and having before declar'd that they would with their utmost endeavours Assist his Highness for the obtaining of a Free Parliament so that the Prince had no reason upon the Kings return to Surrender that Power which the Nation as far as it was able to do without a Parliament had put into his Hands and that to a King whom he had very little reason to believe would use it any better than he had done before But I see you wilfully decline entring into the Merits of the Cause and arguing the main point in the Controversy viz. whether the King was in a State of War or Peace with the Prince upon his return for if he were still in a State of War the Prince might certainly very well justifie his clapping up the Earl of Feversham his Late Majesties General for offering to come within the Limits of the Princes Quarters without his leave especially since he was still answerable for doing his endeavour to Disband an Army a great part of which consisted of Papists and Forreigners with their Arms in their hands whereby they might have robb'd and spoyl'd the Countries or at least have kept those Arms to renew the War again with the first Opportunity so that certainly it could not be so slight a thing as a bare Invitation to St. Iames's whither the Prince could have gone without his leave being now Master of the City which could so far efâ—ace all the Princes just Resentments and make him so far confide in the Kings Word as to come to London whilst he remained there with his Guards and all those Papists and Tories in and about London ready to take his part and Rallie again into a new Army upon the first Signal But as for any Proposals of Peace or Accommodation which you say the Lord Feversham brought with him I neither know nor have heard of any such thing 't is true the King says in the said Paper he left behind him that he had writ to the Prince of Orange by the Lord Feversham and also mentions some Instructions he had given him but what they were he does not tell us but sure they were not Propositions of Peace since it is to be supposed that the King would not have sent any thing of that Consequence without first acquainting the Privy Council with it before it was sent But since we hear of nothing concerning them we may very well suppose there was no such thing or if there were his Highness was the fittest judge whether they were reasonable or not and if the King had any desire to propose any Just or Reasonable Terms whereupon he might have hoped to have been restored again to his Royal Dignity he had a very â—air Opportunity for it when a great Council of the Nobility were met at St. Iames's in Order to Sign an Association to stand by the Prince in the Calling of a Free Parliament for the King might then if he had pleased have made his Proposals by such of the Lords and Bishops as he could most confide in and have Conjured all the Peers there Assembled to have interceeded with the Prince of Orange to renew their Treaty with the King which had been before unhappily broken off and then if either the Peers had refused to do this or the Prince had refused to hear them the King might then I grant have had sufficient reason to declare to all the World that he was not fairly dealt with but for him again to go away only upon pretence that his Person was under restraint when really it was not plainly shew'd that he had no real design of making an amicable end of those differences or really desir'd to be restored to his Throne by the general consent of the Nation but either hoped for it from those Civil Dissentions he expected we should fall into upon his departure or else to the Arms of France and this being the Case I think nothing is plainer than that the King both by his first and second departure hath obstinately refused all those means whereby the Nation might have been setled with a due consideration of his Person and Authority whilst he lived and of the Prince when his Legitimacy shall be sufficiently proved and made out before a Free Parliament So that since I have already proved that the King had before the Princes Arrival committed so many Violations upon the whole Constitution of the Government and that these Violations if wilfully and obstinately persisted in do at last produce an absolute loss and forfeiture of the Crown it self I think the late King has done all that could be required to make it so But I have forgot to answer one Objection you made viz. that the Peers and Bishops when they invited the King to return to White-Hall had no Notion of this forfeiture nor the people of London who you say received him with great Joy and Acclamations and that therefore it is wholly a new invention To this I Answer that if the Lords you mention did send this message to the King it might be because they were surprised with his unexpected return and had not well considered all the Circumstances of the Case and thereby did more then they could well justifie having before declaed they would stand by his Highness in procuring a Free Parliament which must certainly be without the King since he was then gone away and they had also invited him to come to London as well as the City and how that could consist with their inviting the King thither without the Princes consent I do not well understand but it seems they quickly altered their Sentiments as appears by their presently after Subscribing a paper in the nature of an Association to stand by the Prince without taking any notice at all of the King and the very day of the Kings departure they met to consider upon the Princes Speech he had a day or two before made to them desiring them to advise on the best means how to pursue the ends of his Declaration in Calling a Free Parliament and within two days after they presented the Prince with their Advice to call a Convention on the 22th of Ianuary which was also the next day agreed to by one hundred and sixty Persons who had served as Knights Citizens and Burgesses in any of the last Parliaments in the time of King Charles the Second without taking any notice at all of the King for though it is true he was then gone away when the Commons and City two or three days after made their Addresses to the Prince Yet when the Peers met both the first and second time on the 21st and 22d of December he was
still here for the King did not leave Rochester until the 23d in the morning so it is plain it was not their design to own or take notice of him any more as King and that which makes it more remarkable is that several of the Bishops viz. the Arch-Bishop of York together with the Bishop of St. Asaph and others joyned with the rest of the Peers in these Addresses which was a plain sign they all looked upon the Kings Power to be now at an end But as for the Acclamations of the people or any great joy the City expressed upon the Kings return to Town I doubt you have had a false account of that matter for I cannot hear that any of the Citizens went out to meet him or set any Lights in their Windows though he came into London after it was dark or that any of the better sort bid him God Speed I grant indeed there was a great many of what you call the Mob but more Boys than Men who followed his Coach making Huzza's whilst the rest of the people silently looked on M. I cannot deny but you may have given a true account of these matters since you may have observ'd them better than I yet as you your self have Related them sure the King had sufficient cause to Consult his own Safety and make his escape as soon as he could for what could he expect when once the Prince had secured his Person under a Guard and had refused to Treat with him as King and that also the Peers and divers of the Bishops had made an Association to stand by the Prince of Orange and had made a fresh Address to him without taking the least notice of him as if there had been no such thing as a King in being I say what could his Majesty now expect but either a more close Confinement or else being taken off privately by poyson or some other ways since he could not be forgetful of the King his Fathers saying that there is no great distance between the Prisons and the Graves of Princes or admit he had lived till this Convention Saâ—e what could he have expected more than the retaining the bare Title of King whilst the Prince of Orange or some others appointed by Him had wholly managed the Government at their pleasure or else they might according to your Doctrine have either declared the Crown forfeited or else that he had Abdicated it by his going away or who can tell but they might have again renewed the Villany of 48. and have made him undergone the same Fate with his Father F. I grant you have urged the utmost that can be to justifie the Kings second Departure and as I would not deny but that he was the best Judge of his own Danger so were the Prince Peers and Common together with the City the best and only Judges we could then have of the true means of our settlement and safety since after so many breaches that the King had made upon his first Declaration and Coronation Oath as also his going from his late Promise of calling a Free Parliament I cannot see what farther security he could have given us that he would not repeat the same things over again or admit the Prince had suffered him to continue at White-hall and to call a third Parliament what assurance could he have given that in the end of another forty days we should not have the same trick play'd us and then in March or April have been left in the same state of Confusion we were in in December to the certain ruine of these three Kingdoms and Holland into the bargain And then by that time the French King might have got ready an Army and a Fleet and under a pretence of redeeming his Majesty from the constraint he lay under and of restoring him to the free exercise of his Regal Power have Invaded this Kingdom and I suppose you cannot deny but the King would then have sound Papists and High Tories enough to have joined with him in this pious design for certainly the scruples of the high Church-men would have been the same they are now the obligations of the Oath of Allegiance the same and the supposed Sin of deposing a Lawful K. the same though he had utterly refused to give the Prince and Nation any satisfaction so that then if we had been forced to take Arms and to declare he had forfeited his Right to the Crown all these things would have given as great or rather greater scandal than for the Nation to take him at his first offer and since he had thus rashly deserted the Throne by a needless departure to resolve he should Ascend it no more But suppose what might also as well have happened that the Prince and his Party had been killed or expelled the Kingdom by the King do you think he would have granted us then what he would not grant us now Would he not think you have disbanded his Protestant Army and have kept only Irish Scotch and French Forces in pay and have every day encreased them What respect can we hope he would ever after this have shewn to our Laws Religion or Liberties when he had now no longer any thing to fear The memory of what happened after the Duke of Monmouth's defeat though effected only by those of the Church of England will certainly never be forgotten by others whatever you Bigots of Loyalty may pretend or say So that for my part I stand amazed to see you and so many others scruple the submitting to the present King for if ever man had a just cause of War he had and that creates a right to the thing gained by it the King by withdrawing and disbanding his Army yielded him the Throne and is he had without any more Ceremony ascended it he had done no more than several Princes formerly have done on the like occasions for the Prince was no longer then bound to consider him as one that was but as one that had been King of England yet in that capacity he treated him with great respect and civility how much soever the King complained of it who did not enough consider what he had done to draw upon himself that usage but as for your insinuation that if he had stayed he might have run the same fate with his Father I think it is fuller of Passion than Truth for besides that the Lords and Commons would never had the Impudence to have committed such a Villany and the Prince himself as a Nephew and a Son-in-Law would never have suffered it M. Well God only knows the event of things and we ought to judge charitably and still to hope that if the King might have been restored upon terms that he would have been the better for his Affliction and have amended all those errours he committed since he had seen that neither the Nation nor yet his Neighbours the Dutch would permit him to make himself an Absolute
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
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 power of the two Houses of Parliament I am very well satisfied that such a Declaration must be void in it self since I have sufficiently proved that there was no such Law of Succession ever setled by any general Custom or Common Law since it hath been near as often broken as observed and as for any positive or Statute-Law enacting any hereditary right of Succession you do not so much as pretend to show it so that I think I have sufficiently proved the three Propositions I laid down viz. That ever since the time of Edward the First though the Crown has been claim'd by right of blood yet has it not been very often enjoy'd by Princes who had no just pretence to that Title Secondly that the two Houses of Parliament have often notwithstanding that claim placed or at least fixed the Crown upon the heads of those Princes who they very well knew could have no hereditary right to it Thirdly That such Princes have been always taken for lawful Kings all their Laws standing good at this day without any Confirmation by their Successours M. I did not think that you who were so great an admirer of the two Houses of Parliament should now be so much against their power in joyning with the King to declare what the true right of Succession to the Crown is and hath ever been from time beyond memory But I see Acts or Declarations of Parliament signifie nothing with you if they are against your Hypothesis or else you would never go about thus to expose those Acts of Parliament of King Edward the IVth and King Iames the Ist. Whereby they are declared both by the Law of God and Man undoubted Heirs of the Crown And the last Act I cited viz. That of King Iames the Ist. doth sufficiently confute your Notion of a Vacancy of the Throne Where it is expresly declared That immediately upon the decease of Queen Elizabeth the Crown of England with all the Dominions belonging to the same did by Inherent Birth-right and Lawful and Undoubted Succession descend and come to his Majesty King Iames. So that if there then were no Vacancy of the Throne I cannot see how there could be any such thing now the next Heir to the Crown be He who they will being certainly not so far removed from King Iames the Ist. as himself was from King Henry the VIIth under whom he claimed F. I must still confess my self to have a great veneration for the solemn Declarations of King and Parliament made by any Statute yet not so as to Idolize them or to look upon all their Declarations as infallible I grant indeed that whosoever is by them Declared and Recognized for King or Queen of England is to be acknowledged and obeyed as such by all the Subjects of this Kingdom without farther questioning his Title But if not content with this they will also take upon them to declare that such Kings or Queens have an undoubted Hereditary Right by the Laws of God and Nature When I plainly find from the Holy Scriptures as well as the History of matter of Fact and the knowledge of our Laws that they have no other Tiâ—le than what the Laws of the Land have conferred upon them and therefore you your self cannot deny but that it was gross flattery in the two Houses of Parliament to declare that Richard the IIId for-example had a true and undoubted Right to the Crown by the Laws of God and Nature and also by the Laws and Customs of this Realm when you know he was a notorious Usurper upon the Rights of his Brother King Edward's Children now how can I be assur'd that the like Declaration made to Kâ—ng Iames the I. was not lâ—kewise a piece of Courtship of the Representative of the Kingdom to this King then newly setled in his Throne since we find the People of this Nation when they are in a kind fit never think they can say or do too much for their Princes and therefore I must freely tell you that it is not the bare Declaration of a Parliament that this or that has been always the Law or Custom of this Realm when we can find from History that it has never been so held for above four hundred years at least and therefore not beyond the memory of Man as you suppose since that must be before the Reign of Richard the First as I have already proved to you at our Eighth Meeting But to answer your Objection against the vacancy of the Throne I do freely grant that aâ— often â—s the Crown descends by lineal Succession there can be no vacancy of the Throne as it did in the Case of King Iames the First yet doth it not therefore follow that there can never be any such Vacancy in any Case whatsoever since certainly it may so happen that all the Heirs Male of the Blood-Royal may fail as it happen'd in the Case of Scotland when Iohn Balioll and Robert Bruce contended for the Crown which not being to be decided by the Estates of the Kingdom they were forced to referr it to our King Edward the First and as also happen'd in France when Philip of Valois and our Edward the III d both claim'd the Crown which was decided by a great Assembly of the Estates of France in the favour of the former who claim'd as Heir of the Male Line against King Edward who was descended by a Woman and if King Iames's Abdication or Forfeiture call it which you will is good pray give me a sufficient Reason why the Convention of the Estates of England should not have as much Authority as those of France or Scotland this being as much or more a limited Kingdom thau either of the other ever were M. I do not deny that but pray shew me any sufficient Reason why the Convention should now Vote a Vacancy of the Throne since there was certainly an Heir Apparent not long since in England and I hope is now safe in France who ought to fill it or at least there should have been some sufficient cause alledged against him to prove that he was not true Son either of the King or Queen and till this was done they could not with any Right or good Conscience place any other Relation of his in the Throne since every Person ought to be esteem'd the Son of that Father and Mother that publickly own him for such for it is a Maxim in our as well as your Law Filiatio non potest probari F. How this could be performed without first declaring the Throne vacant I cannot apprehend for you your self must grant that there have been great doubts and suspitions of the Realty of this Prince of Wales and therefore that being one great reason of the Prince of Orange's coming over The truth of this Child whether he was really born of the of the body of the Q. is first to be examin'd and determin'd before he can be declar'd K. of England in the
as we read Chancellor Fortescue did Prince Henry Son to Henry the VIth and I hope he will come over again to practise them in his own Country before he comes to be infected with the Arbitrary Principles of the French Government but as for those of not keeping Faith with Hereticks and a propagating his Religion by Persecution I doubt not but the King his Father will take care not to commit his Education to any of those who are infected with such Principles and I am the more inclin'd to believe it because it is very well known that his Majesty's tenderness and moderation in matters of Religion and not persecuting any body for the belief or bare profession of it as it was the greatest cause of his late Declaration of Indulgence so it was the main original of all his late Misfortunes nor can I see any reason why a King by being a Roman Catholick must necessarily be a Tyrant and a Persecutor since you cannot deny but that we have had many good and just Kings of that Religion and it is from those Princes that professed it that we derive our Magna Charta and most of the priviledges we now enjoy F. Though I would not be thought to affirm that the Romish Religion is every way worse than the Mahometan yet this much I may safely affirm that there is no Doctrine in all that Superstition so absurd and contrary to Sence and Reason as that of Transubstantiation held by the Church of Rome in which the far greatest part are certainly Idolators which can never be objectâ—d against the Turks and therefore though I will not deny but that a Man may be saved in the Communion of the Romish Church yet it is not for being a Papist but only as far as he practises Christ's Precepts and trusts in his Merits that he can ever obtain that favour from God But as for those evil Principles both in Religion and Civil Government which you cannot deny but are now commonly believed and practiced in France and which you hope King Iames will take care that the Prince his Son shall be bred to avoid I wish it may prove as you say but if you will consider the Men that are like to be his Tutors and Instructors in matters of Religion viz. his Fathers and Mothers Confessors the Jesuits and for Civil Government those Popish Lords and Gentlemen of notorious Arbitrary Principles and Practises who are gone over to King Iames you will have small reason to believe that there is ever a Fortescus now to be found among the English-men in France or who is likely to instill into him those true English Principles you mention And though I do not affirm that every Popish Prince must needs be a Persecutor yet since that wholly depends upon those Priests that have the management of their Consciences shew me a Prince in Europe who has a Jesuit for his Confessor and tell me if he hath not deserved that Character But though I am so much of your Opinion that King Iames ownes the greatest part of his Misfortunes to his Declaration for Liberty of Conscience yet was it not so much to the thing it self as to his Arbitrary manner of doing it by assuming a Dispensing Power contrary to Law and you may be very well assured by the little opposition which the late Acts met with for taking off the Penalties against Conventicles and not coming to Church in respect of all Dissenters except the Papists that King Iames might have as easily obtain'd a like Act to pass in respect of those also as to the free profession of their Religion and having Mass in their Houses which is more than the Papists will allow the Protestants in any Country in Europe And therefore I must beg your pardon if I still find great reason to doubt whether K. Iames his tenderness towards those that differ'd from him in matters of Religion and the Indulgence he gave them were purely out of consideration of tender Consciences and not rather thereby to destroy the Church of England Established by Law since the Dispute began between King Iames and his Parliament was not about Liberty of Conscience but those Offices and Commands which the King was resolved to bestow upon the Papists whether the Parliament would or not And certainly there is a great deal of difference between a Liberty for a Man to enjoy the free profession of his own Religion and the power and benefit of having all the chief Imployments of Honour and Profit in the Common-wealth But that the Indulgence of Popish Princes towards those that dissent from them in matters of Religion may not always proceed from pure Tenderness and Compassion appears from a Manuscript Treatise of F. Parsons that great Jesuit in Queen Elizabeth's time which I have been told was found in King Iames's Closet after his departure This if you can see it will shew you that the subtil Jesuite doth there direct his Popish Successor in order to the more quiet introducing the Romish-Catholick Religion to grant a general Toleration of all Religions out of a like design Thus did Iulian the Apostare long ago tolerate all the Sects and Heresies in the Christian Religion because he thereby hoped utterly to confound and destroy it But as to what you alledge concerning Magna Charta's being granted by Popish Princes and that there has been many good Kings of that persuasion As I will not deny either the one or the other so I desire you to remember with what struglling and great difficulties this Charter was at first obtain'd and afterwards preserved though it was no more than a Declaration of most of those Antient Rights and Liberties which the Nation had always enjoy'd And you may also remember that they were Popish Princes who more than once obtain'd the Pope's Dispensation to be discharged from those solemn Oaths they had taken to observe those Charters and though there hath been divers good Princes before the Reformation yet even the very best of them made the severest Laws against Protestants and were the most cruel in their Persecutions witness King Henry the IVth Henry the Vth and Queen Mary And indeed it is dangerous to rely upon the Faith of a Prince who looks upon it as a piece of Merit to destroy all Religions but his own and when he finds it cannot be done by Law will not stick to use any Arbitrary means to bring it about To conclude pray consider whether the strict observing or violation of Magna Charta and his Coronation Oath hath been the cause of King Iames's Abdication Pardon this long Discourse which your Vindication of the Opinion and Practises of Popish Princes hath drawn from me M. Pray Sir let us quit these invidious Subjects which can do no good since Princes must be own'd and submitted to let their Principles and Practice be never so Tyrannical and let us return again to the matter in hand I will therefore at present suppose
before his Marriage with that Princess and whilest he was and Usurper upon her Right so that certainly it is no argument that since Parliaments have acted illegally therefore your Convention may do so too for it is a known Maxime in our Civil Law a facto ad Ius non valet consequentia therefore whatever they have done toward creating a good Title to King William in respect of the Queen his Wife and his Issue by her yet this doth no way excuse the wrong done to the Princess of Denmark and her Issue in case they survive your King F. 'T is very wonderful to me to see how ingenious some Men are in finding faults with the present settlement of things though never so much for the best if not done exactly according to suit with their Humour or Hypothesis when indeed there can no fault be justly found with it for you agree that if the Queen hath a Right King William hath so also during his Life and whether the Princess of Denmark and her issue may survive the King is yet uncertain but if either she or they should happen to survive his Majesty yet since she hath made no claim or protestation in the Convention against the Kings holding the Crown after the Decease of the Queen I cannot see why this should not pass for a tacit Resignation oâ—â—er Right as well as in the case of the Princess Elizabeth you but now mentioned But admit his present Majesty according to the late received rules of Succession hath not a Title by Descent yet according to those principles I have already laid down he certainly has not only a Right to the Crown from that inherent power which I suppose doth still remain in the Eslates of the Kingdom as Representatives of the whole Nation to bestow the Crown on every Abdication or Forfeiture thereof on such Prince of the Blood Royal as they shall think best to deserve it and upon this account I conceive there is none of the Blood that can stand in competition with his Present Majesty for Prudence Valour Moderation and all other Royal Vertues and therefore it is not at all to be wonder'd at if the Convention hath in this case exercised that Original Power which the People reserved to it self at the first institution of Kingly Government in this Island especially if we consider his present Majesty not only as a Conquerour over King Iames but as our Deliverer from his Oppression and that Arbitrary Government that we were so lately under and which was like to be much worse had his reign continued a little longer Therefore I cannot but here take occasion to vindicate his Present Majesty from those exceptions you have made against his Country and Civil as well as Religious Principles First As to his Country 't is true he is a Foreigner yet that can he no exception against his admission to the Throne since it was none against his great Grand-father King Iames and I doubt not but his Majesty may understand as much of the English Constitution and Government as his said Grand father did when he first came to the Crown But as for his principles in Religion I cannot see any reason to suspect him more inclinable to the Church Government of Holland then that of England since he was bred up under a Mother who was always firm to the Religion and Discipline of our Church and ever since he was Married to the Princess he hath always shew'd a very great respect to its Liturgy and Ceremonies by his so constant frequenting his Princesses Chappel so that besides his Majesties Interest to maintain Episcopacy as most agreeable to the Monarchy and Antient Constitution of this Kingdom it is likewise if he were able not in his power to destroy the Church of England since the main body of the Clergy Nobility and Gentry of this Nation is to zealous for its preservation that if he had any such inclinations it would not be easie for him to effect it and he is too wise a Prince to let others persuade him so visibly against his own interest and having so late an example before his Eyes that it was King Iames's ruine to attempt it As for what you say of Scotland 't is true Presbitery is for the present set up there but it is uncharitable to impute this to the Kings inclinations for it is notorious that of them which call themselves Episcopal in that Kingdom a very great number did either out of prejudice to the Princes Cause or in contempt of his Power refuse to be chosen Members of the Convention or else after they were chosen did so far adhere to King Iames's interest as to desert it as did my Lord Dundee and many others and by that means gave the Presbyterian Party an advantage to carry all things as they pleas'd and this Party finding the King not well settled here and the Irish in Ireland in Arms against him took hold of that opportunity to put the abolishing of Episcopacy into the very instrument of Government and to press it upon him at a time when an unavoidable necessity and the obstinacy of too many of the Episcopal Party forced him to consent to it wherefore this no way shews his Majesties inclinations to set up Presbytery even in Scotland much less doth it prove he would set it up here where the Circumstances are quite different for here the main body of the People hate that Government and will be so far from desiring it that they will never endure it so that as to this your fears of King William are as vain as your hopes of King Iames. I shall conclude with a few words in answer to your reply against those examples wherein I have shewn you that the Crown hath always been under such a disposition as the two Mouses of Parliament should appoint to which you have nothing else to object but that their admission of Henry the IV th to the Crown was condemned as unlawful by two Acts of Parliament which I have already answer'd by showing you that those Acts were obtain'd by Richard Duke of York and Edward the IV th his Son by actual Rebellion and by as great a force upon King Henry the VI th as ever was used against King Richard the II d by Henry the IV th and as for the Statute of the first of Henry the VII th you have found out a very easie way of answering it by affirming that it was done whilst he was an Usurper and before his Marriage or that he had any right to be King But by this way of arguing no Act he ever passed would be good since It is certain he did never take upon him to Govern in right of his Queen as all those that have writ his Life do acknowledge and therefore if the Parliament would then settle the Crown upon him and his right Heirs without any respect to his Queen or her Issue or Sisters in case she should die
Childless I cannot see why the Convention may not as well now settle the Crown upon King William and Queen Mary and their issue with remainder to himself for Life especially since he hath also another Title of his own to confirm it viz. that of a Conqueror over King Iames and our Deliverer from his Arbitrary Government M. I shall not go about to derogate from King Williams Personal Vertues which you so highly extoll only I wish I may not prove too true a Prophet since that is not the main question between us I shall only take upon me to answer in the first place what you have urged on the behalf of King William's pretence to the Crown as a Conquerour over King Iames and Deliverer of the Nation for whatsoever he may pretend to in respect of the latter I am sure he cannot justly pretend to the former since sure he can never have any right by Conquest who expresly sets forth in his first Declaration that he only came to obtain a Free Parliament and to Redress our Grievances Much less can he be properly call'd a Conquerour who never overcame his Enemy in any pitched Battle but by false Stories made the King's Army desert him and then when this was done having forced the King to leave the Kingdom for fear he has in the day of his power by these means obtain'd the Crown and as for a Deliverer you must pardon me if I cannot think him so since I am not yet satisfied that the worst of King Iames's Oppressions ever deserved that the Prince of Orange should take the pains to come over to redress them And therefore your paralell between your King's Title and that of Henry the IV th and Henry the VII th doth not at all agree since both of them claimed not so much by Conquest or force of Arms as by a pretended right of inheritance as you may see by both their Claims And as for Henry the IV th 't is plain he looked upon his Title by descent of blood having been allow'd in Parliament to be so good that for the first seven years of his Reign he never thought it worth while to pass an Act for the Settlement of the Crown upon himself and his Issue but for Richard the III d and Henry the VII th they were so far from owning their Titles to any Act or Declaration of Parliament that they first clap'd the Crown upon their own heads and after they had done it they immediately call'd their Parliaments which tho' they recogniz'd their Titles yet did not make them Kings but found them so whereas the Convention has by their sole Authority made the Prince of Orange and Princess King and Queen of England to the prejudice of the right Heirs of the Crown F. I doubt not but what I have already said may very well be desended notwithstanding the utmost you have now argued against it In the first place as to what you say against King William's Title as a Conquerour over King Iames is very trivial for though it is true the Prince declar'd before he came over that his coming was for no other end but to obtain a Free Parliament Redress Grievances and to remove Evil Councellors from King Iames yet that is still to be understood that the King would agree to those reasonable demands the Prince then â—aâ—e for if by his own obstinacy he would bring things to that pass as that instead of redressing those violations he had made upon our fundamental Laws he raised an Army to support himself in them and when he thought this Army would not sight in his so bad a Cause he then disbanded it and by that as well as the desertion of the Throne owned himself vanquish'd Can any body deny the Prince of Orange a right of making what advantage he could of his Successes And therefore I doubt not but that the Prince might if he pleas'd have taken upon him the Title of King immediately upon King Iames's first departure and have summon'd a Parliament to recognize his Title as Henry the VII th did after his Victory at Bosworth Field nor would this have made him a Conquerour over the Kingdom since he never made War against it but came to deliver it from Tyranny and Oppression Nor did William the Corquerour himself by his Victory over King Harold ever pretend to a right by Conquest over the whole Kingdom but only over the Estates and Persons of those who had fought against him as I have fully proved at our Tenth Meeting nor did Henry the VII th in the first Speech he made to the Parliament after his taking upon him the Crown claim a right to it by Conquest over the Kingdom as his own words were in that Speech you mention to this first Parliament but only that by the just judgment of God in giving him the Victory over his Enemy in the Field and he then farther declar'd that all his Subjects of whatsoever State and Condition should enjoy their Lands and Goods to them and their Heirs as they did before except such Persons who were to be attainted by Act of Parliament Nor is it any objection against his right by Conquest that he obtained no Victory in a pitch'd Battle since I never heard or read that to make a Prince a Conquerour it is necessary that so many thousand Men should be kill'd upon the spot for admit the adverse Prince against whom he fights will through Cowardise desert his Army or that his Army will desert him either through fear or a sence of the greater justice of the adverse Princes Cause or an affection to his Person so that it never come to a Battle yet it has been in all Ages looked upon as all one with a Victory as I can show you from several examples in History and particularly in Plutarch concerning Pyrrhus King of Epyrus who making War against Demetrius then King of Macedon and both Armies being encamped near each other the Army of the latter forsook him and went over to Pyrrhus as well out of hatred to him as esteem for his Enemy so that Demetrius being forced to steal away in disguise Pyrrhus thereupon was immediately in the Field Proclaimed King of Macedon And I doubt not but the Prince of Orange might have done the same had it not been for his great moderation and least it might give his Adversaries occasion to traduce him that he came over for no other end but to drive the King out of his Kingdom and therefore he chose rather to owe the Crown to the free Act of the Nation than to his right by Conquest over King Iames but yet I do not think he hath at all lost that right though he doth not think fit for fear of giving offence to insist upon it and therefore certainly the Convention might very well justifie the setling the Crown upon his Highness during his Life not only as a Conquerour over K. Iames but a Deliverer of
Seventh which we are now disputing about was made expresly to secure and indemnitie all those who should attend upon the King for the time being and do him true and faithful service of Allegiance c. And therefore it lies upon you still to prove that this Statute is either expired or else void in it self otherwise besides the constant practice of former times we have here an express Act of Parliament declaring it every Mans duty to pay Allegiance to the King for the time being and then certainly he is as much oblig'd to Swear it too M. I doubt not but I shall prove to you that this Statute expired with Henry the Seventh from a Clause in the Act it self for if you please to read immediately after those words you have now cited that all those who do the King for the time being true and lawful Allegiance c. it follows thus shall be secured from all manner of forfeitures and molestations relating to their Persons or Estates but mark provided always that no person or persons shall take any benefit or advantage by this Act which shall hereafter decline from his or their said Allegiance now we know a proviso is an exception or restraint upon the latitude and comprehensiveness of the Law and that all Statutes are perfectly null so far as the proviso reaches Having premised this I shall endeavour to prove that this Act was design'd only for the security of that Reign in which it was made and cannot be stretched any farther To make this appear let us now suppose a competition between the King de jure and Henry the Seventh that is one de facto and that the Subject engages for the latter in this case if the King de facto prevail there is no need of the assistance of this Statute for we cannot imagine any Prince could be so impolitick as to punish those who have ventur'd their All to maintain him in his Government this besides the ingratitude of the action would proclaim the injustice of his Cause and would serve only to ruine his interest F. Notwithstanding this objection you have now made I doubt not but this Clause will bear a very fair and legal interpretation and that not in respect of the Allegiance that might be due to the King de facto but to the King de jure since if it were not for the indemnity provided by this Statute the King de facto would have been oblig'd to have punished them for opposing their lawful Prince M. This is easily answer'd for pray do Kings de facto always perform that which the Law requires if so they never would have been Kings de facto since they could not make themselves Masters of the Sovereign power without dispossessing those who are supposed the right owners of it Secondly the possessour would not so much as seem oblig'd to punish his adherents upon a competition except he own'd himself to be no more than an unjust Usurper but we have neither example nor reason to expect such singular concessions as these for no Usurper will own himself in the wrong so long as he intends to enjoy the advantages of his injustice upon supposition therefore that the Victory had fallen on the side of a King de facto the Act would be wholly superfluous F. But why may we not also suppose that this Clause was inserted not only to secure those who had assisted the King de facto against your King de jure but also to debar all those who had fallen from their Allegiance to the King de facto from receiving any benefit by this Act if ever they should plead it in their own justification after the King de jure had prevail'd and was again setled in the Throne M. You may take it in this sence if you please but if you do it will not at all mend the matter for tho' those that stood by the King de facto will have great occasion for an Act of Indemnity yet this Act will be as helpless to them now as it was needless before for either they must submit to the King de jure or not if they do not submit it 's easie to imagine the Consequences how a Victorious and irresistible Prince will treat the obstinate and rebellious opposers of his just Title if they do submit as of necessity they must then they can claim no manner of priviledge and indemnity from this Act for they cannot come into the Party of the King de jure without deserting that de facto i. e. without declining their Allegiance to him who was King when this Statute was made by declining which Allegiance the proviso expresly excludes them from all manner of benefit or advantage by this Act. In this condition the Law would have left the de facto Party if the Sovereignty had been disputed between Henry the Seventh and the House of York and that the Prince de jure of the House of York had been successful from whence it 's undeniably plain that neither the design nor words of this Statute can be drawn to such a monstrous construction as to enact bare possession to be a good Title and make Might and Right the same thing The only design of this Parliament was to continue the Crown to Henry the Seventh during his life which both by the body and proviso of the Act was effectually done as in them lay for divers reasons that might then prevail with the two Houses to consent to a temporary alteration of the Succession to the Crown such as these that though Henry the Seventh had no just Title in his own right yet in the right of his Wife he had which he did no way disavow by this Act and you must also remember that at this time Henry the VIIth had several Children by his Queen viz. Prince Arthur Henry c. So that now the contending Families of Yorke and Lancaster being thus hapily united there was no reason to sear that a security though an unusual one to the present possessor could be prejudicial to the right Line especially since the force of that Act was confined to the Reign of that Prince as has been already proved F. You may fancy if you please that you have prov'd this Act to be expired but I think if you better consider of it you will find your self mistaken for though I may very well suppose that the King and Parliament to deter men from falling from their Allegiance to the King for the time being might insert this Clause upon a supposition that the next King whoever he was whether by right of blood or only de facto would out of a generous aversion to Traytors and Deserters hinder them by vertue of this Clause from enjoying any benefit by this Act yet I shall not longer insist upon 't whether it be insignificant or not and therefore will at present grant it to be so but what then Will a void Clause vitiate or render expir'd
an Act of Parliament which is made indefinitely without fixing it to any time or person the words in the Act are the King for the time being which must certainly extend to any other King as well as Henry the VIIth for I suppose that an Act of Parliament and a Deed agreed in this that an unnecessary Clause can by no means render the whole void But as for what you say in relation to this Acts being a security for the Title of the Queen and her Children whom you suppose to be the right Heirs of the Crown this rather serves to strengthen the Act than otherwise for if this King had a good Title in her right then it may be also very well suppos'd that she gave her assent to this Act in the person of her Husband and that not for the benefit but to the prejudice of her own Issue since if after her death which happen'd some years before his her Son Henry Prince of Wales had set up his present Title to the Crown in the right of his Mother and so would have dethron'd his Father as an Usurper I suppose no reasonable Man will deny but that this Act would have indemnified all those who had taken up Arms in defence of King Henry the VIIth against his Son though in your sence King de jure and if it would justifie the Subjects then I cannot see why it may not do the same thing now in their swearing Allegiance nay fighting for the King in possession against him whom we will for the present suppose to be King de jure M. Well however I think I can prove that this Act was no more than temporary from the judgement of the Judges in the Case of Iohn Duke of Northumberland who when he was Tryed for Treason for leading an Army against Queen Mary to settle the Lady Iane Gray in the Throne desired to be informed by the Judges whether a man acting by the Authority of the Great Seal and the Order of the Privy Council or Princes Council as Stow and Heylin word it could become thereby guilty of Treason to which all the Judges answer'd that the Great Seal of one that was not lawful Queen could give no Authority or Indemnity to those that acted by such a Warrant upon which the Duke submitted though without question he did not want Lawyers to inforce his Plea with this Statute likewise if his cause would have born it from whence I infer against Sir Edward Coke that Treason lies against a King de jure tho' out of possession for it 's plain by all our Historians that Queen Mary was so far from being possessed of the Crown when the Duke of Northumberland acted against her that the Lady Iane was not only Proclaimed Queen in London and most of all the Cities and Great Towns in England but the Tower of London with all the Forts and Naval Forces were under her Command and she had also Allegiance sworn to her by the Privy-Council and by the Lord Mayor and Aldermen and she had also the Seals in her power by which all Patents and Commissions were granted and issued in her Name and if all this be not sufficient to constitute her Queen de facto according to this Statute of Henry the VIIth I know not what was F. Yet I can tell you what was yet wanting which because she had not she was certainly neither Queen de jure nor de facto and that was a solemn Coronation and Recognition of her Right by Parliament which legal investiture since she never had she was not the Queen for the time being and consequently not intended within this Statute of the 11th of Henry the VIIth for though it is true she was appointed Successour of the Crown-by the Letters Patents of King Edward the VIth yet since she could not claim by right of blood there being so many before her all the Kingdom looked upon it as an Usurpation and an artifice of the Duke of Northumberland whose Son she had Married to get the Government of the Kingdom into his sole power so that it was no wonder if the greater part of the People were so averse to her Title and that those of the Nobility who took her part so quickly revolted from her when once the fear they were in of the Duke of Northumberland's power was removed for had this Bequest of the Crown to the Lady Iane held good this Kingdom instead of being Hereditary would have become wholly Testamentary and disposable by the last Will or Letters Patents of the King or Queen for the time being without the consent of the Great Council of the Nation which is contrary not only to the then receiv'd Laws of Succession but also to the antient constitution of the Kingdom as well before as after the Conquest But notwithstanding all this I doubt not but that if the Lady Iane had so far prevail'd against Queen Mary as to have been able to call a Parliament and to have had her Title own'd and recogniz'd therein as it was in the Case of Richard the Third and Henry the Seventh but that she would have been true and lawful Queen according to the intent of the Statute we are now discoursing of and then the Duke of Northumberland must likewise if he had fair play have been indemnified for taking up Arms in her defence against Queen Mary since Queen Iane would have been then within the letter of this Statute as much as King Henry the Seventh himself M. You must pardon me if I cannot be of your opinion in this matter since if the bare Coronation and recognition by Parliament could confer a legal right to the Crown upon one who had no hereditary right to it before the consequence of it would be that the Crown would be so far from being Elective as you suppose it to have antiently been that it would be in the power of every bold Usurper or Rebell who had but the confidence to call himself King to gain a legal Title to be so according to your Principles and then if Oliver Cromwell could have found a Party strong enough in the Army to have declar'd him King and had call'd a Parliament in his own name who had recogniz'd him for their Lawful Sovereign he would then have had as much right to our Allegiance as King Charles the IId which certainly was not only contrary to the settlement of the Crown upon Henry the VIIth and the Heirs of his body but also to that solemn recognition of King Iames the Firsts Title as lineally descended as right Heir to the said King Henry which I insisted on at our last Meeting And therefore if you will have my sence of this Act it is either expir'd for the reasons I have already given or else was void ab initio since it is not only contrary to the setled course of Succession of the Crown according to the Laws of lineal descent for divers hundred years last past but
Crown of France as ever they have been in former Times if ever our Kings should go about to revive their ancient pretentions to France or Normandy or make War upon some other Quarrel and thefore I think it will be more far the Interest of France to leave us our Laws Liberties and Priviledges as we now enjoy them nay to make an express Capitulation for them and when he has done to foment those Jealousies and Disputes that are still like to arise between the King and Us about them thereby to hinder us from joining against him then by rendring the King Absolute to take them quite away and put the sole power of the Purse as well as of the Sword wholly into his Hands To Conclude you do also very much misrepresent the matter in supposing that though the King cannot now be restor'd without falling into a new Civil War yet that does it not therefore follow that such a War is not to be desir'd for the Publick Good of the Nation since we shall thereby not only restore the Crown to its right Owner and the Succession of it to the lawfull Heir but also shall restore Episcopacy in Scotland and prevent the Church of England from falling into a dangerous Schism by depriving the Arch Bishop of Canterbury and as many other of the Bishops who are so Honest as not to take the new Oath for standing out against it by the Temporal Power of a pretended Parliament without the Judgment of a Lawfull Convocation who are the only proper and legal Judges You likewise as much mistake in supposing that this War can no ways be finisht but by so great a Concussion as shall so much weaken the Kingdom as to render it expos'd to the Invasionâ— of Foreign Enemies in which you may be very much deceived for who can tell but the hearts of this Nation may come to be so inclin'd to receive their lawful King and his right Heir and may be so weary of the present Usurpation as upon his first appearance in England with an Army sufficient to defend those who shall come into him so many of his Subjects will take this advantage as will be more than enough to restore him with as little Blood-shed as when he was driven out and then I think no indifferent Man but will acknowledge that such a War would prove for the best since it will not only setle the Government upon in ancient Foundation of a lineal Succession but will also extinguish those fatal causes of War not only from among our selves but also from Foreign Princes as long as the King and the Prince of Wales and his lawful Heirs shall continue in being which I hope will be much longer then those upon whom your Convention has setled the Crown either in Present or Reversion F. I doubt not but to show you that all you have now said is either built upon false Principles or else deduced by very uncertain Consequences for in the first place though you doubt my Principle that the People of this Nation are not bound to restore King Iames to the Throne if it cannot be done without the evident Destruction both of our Religion and Civil Liberties which certainly is true granting it to be never so much our duty to restore him when with safety we may for if the obligation of all Moral Duties whatsoever is only to be judged of according as they more or less conduce to the Happiness or Destruction of the common good of Mankind whereof this particular Nation makes a part it will necessarily follow that this Duty of restoring King Iames is not to be practised if it cannot be brought about without the Destruction of our Religion and Civil Liberties since it is only for the maintenance of those that even Kings themselves were first ordain'd in this Nation and it is evident that this Kingdom may be sufficiently Happy and subsist in the State it is now in though neither King Iames nor your Prince of Wales be ever restor'd to Reign over us So that then all the Difficulty that remains is That since his Restoration being not otherwise to be brought about without the assistance of great numbers of French or Irish Forces whether it be not only so small a hazard as you make it but twenty to one that his coming in upon these Terms will produce those dreadfull Effects which I say will certainly happen from it and though I grant that future things especially in the Revolutions of Government are not capable of Demonstration as Mathematical Propositions yet if all the circumstances of Time and the Temper and Disposition of the King himself and those who are to join with Him in bringing Him in again be considered it shall appear that Morally speaking nothing less then the evident Destruction of our Religion and Civil Liberties will follow I think I may still positively affirm that we are not oblig'd to restore Him till this Temper of Mind be alter'd and that he can be restor'd without these Fatal Consequences I now mention and if these cautions are not observ'd I deny that God hath any way promis'd to protect either our Religion or Civil Liberties or that he is bound to provide us a way to escape as you suppose if to perform this suppos'd Duty of Allegience thus unseasonably we slight the onely means God has ordained for our Preservation But as for the patience under those Sufferings that may then happen that is a very sorry reason to embrace them since God may give us that Grace if he pleases as the only Comfort we can have left us when by our own Folly and mistaken Notions of Duty we have brought all those Evils upon our selves I shall therefore now proceed to show you that these Evils I speak of must necessarily happen to us in Case King Iames be restor'd by the French or Irish Papists In the first place therefore it is very falsly suppos'd that this Alteration can be brought about without an entire Subduing or Conquest not only of their present Majesty's but the whole Nation is apparent since none but the Papists and some few of the Clergy Nobility and Gentry desire his Restoration and who if they were put altogether will not I believe amount to the hundredth Man who would be either willing or capable to come in to his Assistance with Men or Money and therefore it is a vain Supposition to believe as you do that this new Revolution can be brought about without any more Dificulty or Blood-shed then the last as long as the present King and Queen continue to Govern us according to the Declaration they subscrib'd upon their acceptance of the Crown and the Coronation Oath they have since taken which I hope they will always do since nothing but following King Iames's Example as well as to Religion as Civil Liberties can ever make this Nation willing to receive Him or your Prince of Wales with so little difficulty as you are
the only Iudges of all Disputes about the Succession of the Crown D. 2. p. 891 to 892. D. 12. p. 893. D. 13. p. 917 to 919 921. Eve W. by being subject to Adam all her Posterity became so likewise D. 1. p. 14. to 25. F Fathers W. by right of generation or of education Lords over their Children in the state of Nature D. 1 p. 13 14. W. Any such power was given by Divine Grant to Adam and in him to all other Fathers Ib. p. 26 30 to 36. W. Fathers of Families have power of life and death over their Children by the Law of Nature Ib. 19. to 26. W. They may sell their Children Ib. 26. to 31. W. They may be resisted by their Children in case of any violent assaults upon their lives Ib. p. 41. W. Perpetual Masters over their Children as long as they live Ib p. 45. to 51. Fideles the signification of the word before the Conquest D. 6. p. 390 391. D. 7. p. 448. to 451. Sir R. Filmers Principles W. they do not rather encourage Tyranny than Fatherly affection in Princes towards their Subjects D. 2. p. 118. W. They do not also favour Vsurpers Ib. 125. to 128. G Common Good of Mankind the main design of all Government D. 1. p. 55. to 61. Civil Government the end of its Institution D. 1. p. 11. 19. 21. W. There had been any necessity of it if Man had never sinned Ib. p. 11. What it is and its Prerogative D. 3. p. 173. W. it can be setled without liberty and property in Estates Ib. 174. Government of Families and Kingdoms its Original and Necessity D. 1. p. 10. to 12. Supream Governours in what cases they cease to be Gods Ordinance D. 1. p. 41. Government among the ancient Germans and Saxons always by Common Councils D. 5. p. 365. to 369. Grands or Grants in Parliaments what those words signifie in ancient Statutes and Records W. The Lords alone or the Commons also D. 6. p. 369. vid. Append. Guards of the King when when first set up D. 9. p. 639. H K. Harold W. William of Normandy had a just cause of making War upon him D. 10 p. 718. What Title he had to the Crown Ib. p. 720. Haereditamentum its derivation Ib. p. 721. Hengist and all the rest of the Kings who founded the Saxon Heptarchy W. so by Election or Conquest D. 5. p. 357. to 362. King Henry the IVth W. his Title to the Crown were by right of blood or Election of the Estates in Parliament D. 12. p. 861. to 863. King Henry the VI. W. his Son were not unjustly disinherited by the Duke of York and himself unjustly deposed by Edward the IVth Ib. p. 863. to 867. King Henry the VIIth W. he had any Title to the Crown by right of Inheritance Ib. p. 868. to 870. King Henry the VIIIth W. the several alterations he made as to the the Succession were legal D. 12. p. 871 872. Homage W. it rendred the Prince or Lord irresistible D. 10. p. 727.728 Homines Liberi its signification in English Histories D. 6. p. 428. to 430. Homilies of our Church the the chief passages therein against all manner of Resistance of Governours considered D. 4. p. 287.288 W. It be Heresie or Schism to deny their Authority in any point there laid down Ib. 289.290 vid. Append. Mr. Hookers Opinion concerning the Original of Civil Government D. 12. p. 129.130 W. The two Houses of Parliament or the whole People of England have any coercive Power ove the King D. 9. p. 634. W. The Two Houses have on the behalf of the whole People renounced all right of self-defence in any case whatsoever Ib. p. 636. to 658. I King James the Firsts Speech in Parliament against Tyranny D. 3. p. 148. The Act of Recognition of K. James's Hereditary Right how far it obliges Posterity D. 12. p. 871 to 874. King James II. W. he violatid the fundamental constitution of the Government before his desertion D. 9. p. 673. to 685. Or W. he had amended all those violations before his departure p. 685. to 689. W. His setting up a standing Army and puting in Popish Officers and Souldiers were an actual making War upon the Nation Ib. p. 683.687 W. He abdicated the Government by his breach of the Original contract or else by his deserting it D. 11. p. 790. to 799. W. He might have been again safely restored to the Government upon reasonable terms Ib. p. 801. to 807. W. He really intended to redress all the violations he had made upon it p. 805. to 807. W. He resumed the Government upon his return to London from Feversham Ib. 802. to 806. Iesus Christ did not alter Civil Government neither by taking away the Prerogative of Princes nor yet by abridging the Civil Liberties of Subjects D. 4. p. 216. to 220. Jews often rebelled and sometimes killed their Kings D. 3. p. 203 to 205. Their resistance of Antiochus considered Ibid. p. 208. to the end Jewish Government before Saul W. Aristocratical or Monarchical D. p. 93. to 101. Judah and Thamar the History considered D. 1. p. 33. Iudges over Israel their Power W. Monarchical D. 2. p. 95 96. W. Some of them were not Iudges of some particular Tribes p. 96 97. Iudgements Divine W. they may be removed by humane means or force D. 4. p. 259 260. K Kings W. to be reputed Fathers of their People as the Heirs or Representatives of those who were once so D. 2. p. 65. W. They derive their Power from God or from the People and Laws D. 11. p. 773. to 780. D. 12. p. 936 to 938. Saxon Kings of England W. absolute or limited Princes D. 5. p. 349. W. They were endued with the sole Legislative Power Ib. p. 338 to 345. Kings of the English Saxons Elected and often deposed by the Great Council Ibid. p. 365. The same done also in other Kingdoms of the Gothic Model Ib. p. 365. Kings of England ever since King William I. W. they derive their Title to the Crown from Conquest or some other Title D. 10. p. 713. Their Concessions to Subjects do no ways derogate from Royal Prerogative D. 10. p. 715.716 Kings of the Roman Catholick Religion W. many of them have not observed Magna Charta and their Coronation Oath D. 12.882.888 King by Sir R. Filmer's Principles above all Laws and alone makes them D. 2. p. 123.124 In what sence he is head of the Politick Body of the Common-wealth D. 11. p. 803. to 805. W. He could have anciently by his Prerogative Taxed all the Tenants in Capite at his discretion D. 7. p. 495. to 499. W. He could call or omit to summon to Parliament what Earls Lords and Tenants he pleased Ibid. p. 505 to 511.523 W. He could also summon those Knights of Shires who served befere without any new Election Ib. 537. W. He could by his Prerogative discharge what Knights of Shires he pleased after they were chosen Ibid.
in all Democracies the People By the like reason in a Monarchy the King must of necessity be above the Laws there can be no Soveraign Majesty in him that is under them That which gives the very being to a King is the Power to give Laws without this Power he is but an Equivocal King And most part of what follows in this Treatise is only to prove that the Parliament or Assembly of Estates was a Creature wholy of the King's Creation and consequently that he alone makes the Laws in it And he hath also written a whole Treatise called The Free-holders Grand Inquest to prove that it is the King's Authority alone that makes the Laws and therefore that he can interpret and dispense with them at his pleasure So that Richard the Second had this Author lived in his time might have made him a Judge as weâ—l as Treâ—illian and Belknap since they all maintained the same Principles But lest we should mistake him see what he says at the conclusion of this Treatise For the confirmation of this Point Aristotle saith That a perfect Kingdom is that wherein the King Rules all things according to his own Will for he that is called a King according to the Law makes no kind of Kingdom at all This it sâ—ems also the Romans well understood to be most necessary in a Monarchy for 〈◊〉 thâ—y were a People most greedy of Liberty yet the Senate did free Augustus from all necessary of Laws that he might be free of his own Authority and of absolute Poâ—â—r over himself and over the Laws to do what he pleased and leave undone what he liâ—t and this Decree was made while Augustus was yet absent Accordingly we find that Ulpian the great Lawyer delivers it for a Rule of the Civil Law Princeps Legibus solutus est The Prince is not bound by the Laws So that upon these Principles all Kings are not only discharged from the Penalty but also the very Obligation of observing Laws farther than they shall think sit And indeed this Author carries this Prerogative beyond what the most moderate Roman Emperours ever pretended to as I can easily shew you from your own Civil Law-Books and therefore pray reach me down your Volume of the Code and fee here what the Emperour declares on this matter de Testamentis Ex imperfecto Testamento nec Imperatorem haereditatem vindicare posse sape constitutum est licet enim Lex Imperii Solennibus juris Imperatorem solverit Nihil tamen tam proprium Imperii est quà m Legibus vivere See likewise in the Theodosian Code these words Digna vox est Majestate Regnantis Legibus alligatum se Principis prositeri aded de Authoritate juris nosira pendet Authoritas re vera majus Imperio est submittere Legibus Principatum oraculo praesentis Edicti quod nobis licere non patimur aliis indicamuâ— viz. Successorâ—buâ— Theodosio Valentino So that you may here see that even the Roman Emperours were more modest than to declare themselves discharged by their Prerogative or thought of any of these subtile distinctions of this Author from their obligation to the Laws however they were from the Penalty which is the true sense of this phrase of being Legibus solutus But God be thanked most of our own Kings have been more conscientious than to maintain that they were not bound by their Coronation Oath farther than they pleased For you may see in the Preamble to the Statute of Provisours made in the 25th of Ed. 3d. where it is declared and acknowledged by the King himself and both Houses of Parliament that the Right of the Crown of England and the Law of the Realm is such that upon the Mischiefs and Damages which happen to the Realm he ought and was bound of his said People in his Parliament thereof to make Remedy and Law in voiding the Mischiefs which come thereof And the King seeing the Mischiefs and Damage aforesaid and having regard to the said Statute scil the former Statute of Provisours he here farther acknowledges that he is bound by his Oath to do the same to be kept as the Law of his Realm tho' by sufferance and negligence it hath been hitherto attempted to the contrary So likewise King Henry the fourth declares in full Parliament as appears by the Parliament Roll that whereas the Commons in Parliament had granted that the King should be in as great Liberty as any of his Noble Progenitors on which our said Lord of his Royal Grace and tender Conscience hath granted in full Parliament that it is not his intent nor will he alter the Laws Statutes and good Usages nor take any Advantages by the said Grant but will keep the ancient Laws and Statutes ordained and used in the times of his Noble Progenitors and do Right to all People in Mercy and Truth Selonâ— son Serment i. e. according to his Coronation Oath M. I will not affirm but Sir R F. observing how much the Kings Prerogative was run down by the long Parliament and how the least Slips and Miscarriages in Government were aggravated by the Demogogues that then Domineered as open and violent breaches of his Coronation Oath might be willing to make the best defence he could for such Miscarriages and this Treatise of Patriarcha being a Posthumous piece perhaps he would have altered many things in it had he lived to publish it himself but I doubt not but he was a very honest Man and meant well to the Kingdom for all that And therefore I hope you will not be too rigorous in your Censure of him F. I 'll assure you Sir I shall not because he hath been dead many years and therefore I had much rather censure his Writings than his Person which I never knew But if I may Judge from his Works he was certainly no Friend to Parliaments or the Power of the Laws above the Prerogative But that I may also shew you how dangerous and Derogatory his Opinions likewise are to the Titles of all Soveraign Princes and Monarchs now in the World however he may seem to write in their defence pray turn to his Patr. Chap. 1. Par. 9. and to a Question 〈◊〉 becomes of the Right of Fatherhood in case the Crown escheat for want of an Hâ—ir he thus replies which pray read It is but the Negligence or Ignorance of the People to lose the Knowledge of the true Heir For an Heir there always is If Adam himself were still living and now ready to dye it is certain there is oâ—â— Man and but one in the World who is next Heir altho' the Knowledge who should be that one man be quite lost The which he likewise repeats to the same Effect in his Treatise of the Anarchy of a limited or mixed Monarchy Pray see the place and read these words It is a truth undeniable that there cannot be a Multitude of Men whatsoever either great or small
Synod might if it had pleased have either made more Parish Churches or united others where there were many as we find was done in divers great Councils of this nature and should it not then have been said to have met pro causis cujuslibet Ecclesiae for the business of each Parish as well as Cathedral Church Lastly The Dr. will have all these great Clergy 〈…〉 Lay-men only to meet at this Council to advise the King about what farther removals were to be made of Bishops bees as if thereupon he had had the sole power of making what Laws about them without their consent or that of the Lay-Nobility who tho' he will have to be always present in such Synods and Assemblies yet does he not give them any Votes therein whereas it appears by this Charter in Sulcardus but now cited that the Bishops Abboâ— Earls and Barons whose Names are to it consenserunt signaverunt and it was ab ipso Rage supra dictis Personis testificata consixmata auctoxiâ—ata which if I understand Latine signifies not only that they witnessed but also assented to authorized and confirmed it which also more plainly appears more fully by the conclusion of the Charter of King Stephens but now cited all which the Dr. passes by as slily as a Commentator does those words in a Text of Scripture that make against his sense for this had quite ruined and destroyed his fine notion of the Great Councils of the Kingdoms then wholly consisting of a few Bishops Abbots dignified Clergy-men and great Noblemen who had nothing else to do there but to look on whilst the King alone made the Law To conclude to shew you that this Assembly was not only an Ecclesiastical Synod but Civil Council also or Parliament as we now call it I will give you two good Testimonies for it that we are not alone in this Opinion the first is from Mr. Somners Glossary Parliamentum Synodus magna voâ—atur and to confirm this there is written in an old hand in the Margin of this Manuscript of Sulcardus over against the passage now cited this Note Nota hic amnâ—s comâ—rari at Rege sua auctoritate ad causas Religionis tractandas tam nobitas de Clero quà m Principes Regni cum aliis inferioris gradus quorum 〈◊〉 videtur essa Parliamentum M. Yet I suppose you cannot deny but that the Dr. has plainly proved from several Quotations from Gervas of Canterbury Rich. of Haâ—ulstad and the Continuator of Florence that the word Prâ—â—iâ—â—ia in this place signifies a Bishops Diocess and therefore that the Principes Regni who were summoned out of those Provinces or Diocesses were only the Bishops Abbots and other great Clergy-men Fâ—punc I will not deny but that this word Provincia does sometimes in our Ancient Authors signifie in an Ecclesiastical sense the Diocess of a Bishops us these Authors the Dr. has here cited shew us yet that it must be taken in a more unlimited signification in this place is also as certain since besides that this word Provinâ—sia does most commonly signifiâ— a Shire or County as I have already shown the very context sufficiently proves it since Bulcardus says expresly that the chief persons of both Orders were summoned from the Counâ—ies or Provinces as I already said which when it refers to Lay-men us well as to the Clergy I hope you will not affirm that it can signifie Diocesses only but that besides the Bishops and Abbots there were a great 〈◊〉 more persons prosess at this Council both of the Clergy and Laity the Dr. himself confesses Let us therefore consult the Authors themselves which Dr. Brady has cited for the sense of this word Provincia and let us see how fairly he has dealt with them Now pray Sir observe it is true the same words are almost repeated verbatim in every one of these Historians R. Hagulstad Gervas of Canterbury and the Continuation of Florence who all speak of a General Synod held at Westminster A. D. 1138 being the Third of King Stephen in those words Decima tertiâ— die Decembrie celebraetae est Synodus apud Westmonaâ—â— cui praesuâ— Albericus Hostleâ—sit Episcopus Domini Papae Legatus cum Episâ—opis diversarum Proviâ—oiarum numero XVII Abbatibus sere XXX here the Dr. concludes with an c. Now see what lies hid under this c. in R. of Hagulâ—â—ad and the Continuator of Florence it follows thus Cum Cleri Populi multitudine numerosa in Gervase of 〈◊〉 almost in the same words Cum innumera Cleri Populi multitudine Now pray tell me ingenuously what could be the Doctors meaning who pretends to be so exact in all his Quotations to leave out this so material a passage in every one of these Authors with this c. unless it were that he was afraid his Readers should take notice how numerous this Council was both of the Clergy and People which if he had done it would have quite overthrown and destroyed his notion of Tenanâ—â— in Capite and let the World have known that this Council consisted of a far greater number both of the Clergy and Laity than 17 Bishops and 30 Abbots Now had such a thing been done by Mr. Petyt it would have been branded by the Dr. with the hard Terms of taking away or leaving unrecited such words and matters as he thought would either advance or destroy his Assertions as he how justly I leave it to you to judge accuses Mr. P. in his Title to his first Edition of his Answer to him But Turpe est Doctori cum culpa redarguit ipsum M. I cannot believe the Dr. had any sinister meaning in leaving out this passage but did it either because as I said but now he supposed these expressions as only Hyperbolical phrases by which these Monkish Writers used to express all the Ecclesiastical or Lay-members of those Councils or else because he did not think it worth while since he might not look upon this innumerable company of Clergy and People here mentioned to have had any share or voice in this great Council but only to have come thither as idle Spectators aâ— the Dr. shews us the Populus did at the making of Lanfrane Arch-Bishop of Canterbury nor yet that they or the Bishops and Noble-men chose him but only all applauded the King's choice but that the Dr. was not afraid to take notice of the great multitude of People that in those Hospitable days was wont to flock to such Assemblies Pray see what he says in his Series of English great Councils or Parliaments at the end of his Introduction to English History where speaking of the Election of Arch-Bishop Anselme he recites this passage out of an Epistle in Eadmerus Huiâ— Electioni assueruns Episcopâ— Abbates Principes Regni ingens Populi multitude The ordinary People says the Dr. came to shout and make a noise at such Meetings and only for good Victuals and