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
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
was that of the free burrough or Tything wherein by the Laws of King Edward the Confessor the Tythingman or Head burrough was the Judge who as that Law tells us determined all suits and differences arising among Neighbours of the same Tything concerning petty Trespasses on one anothers grounds which if they could not be there determined might then be brought before the Court Baron which was incident to every Mannor and wherein the Suitors and not the Lord nor his Steward were the Judges and this as Sir Edward Coke tells us was first instituted for the ease of the Tenants and for the ending of Debts and Damages under Potty Shillings at home as it were at their own doors and let me tell you by the way that sorty Shillings was theo near as much as forty pound is now and if the business could not be ended here or was of too high a nature it was then brought into the Hundred Court where the Hundreder together with the Suitors were Judges and if they had not Justice there they might then remove it into the Court of Trithing or Lathe which was not the smaller Court of the Tithing mentioned nor yet the Court Leet but a particular Court consisting of three or four Hundreds which tho' now quite lost was in being at the time of the Statute of Merton as I shall shew you by and by and if the business could not be decided in the Trithing it was then removed to the Shire or County Court as Mr. Lambert shews in the Laws of King Edward which was then held as now from Month to Month and in which as well as in the Hundred Court the Suitors alone were Judges and tho' it can now only hold Pleas unless it be by Writ of Justices of any Debt or Damage to the value of Forty Shillings or above yet we â—ind from ancient Authors that this Court was so considerable that we have diverse examples of Causes between the greatest Persons of England and for Lands of great value begun and determined in this Court thus Eadmertes relates the great Trial at Pinnesden-heath between Odo Bishop of Bayenâ— half Brother to your Conqueror and by him created Earl of Kent and Lanfrank Archbishop of Canterbury concerning divers Mannors in Kent and other Counties whereof Earl Odo had diseized the See of Canterbury in the time of Arch-bishop Stigand his Predecessor whereupon the Arch-bishop Petitioned the King that Justice might be done him secundem Legem Terrae and the King thereupon sends forth a Writ to summon a County Court the debate lasted three days before the Freemen of the County of Kent in the presence of many Chiefmen Bishops and Lords and others skilful in the Laws and Judgment passed for the Arch-bishop Lanfrank by the Votes of the Freemen Or primorum or proboâ—â—â— hominum as the Historian calls them So that to conclude this head if no suit could be begun in those days but what was first commenced in the Hundred Court no distringas could issue forth till three demands were made in the Hundred and from thence to be removed to the County Court where regularly all civil causes were try'd by the Suitors as the only Judges as well as in the Hundred Court and Court Baron then it will necessarily follow that unless you can prove which I think is impossible that all the English were at that time Slaves and Villains and had no Free-hold of any sort left them that all Pleading and Proceedings in any of those Courts being before meer Englishmen must have been in English and no other Language so that after all this great cry nor a twentieth part of the Suits in England were brought to London And as for Criminal Causes unless in cases of Treason all Murthers and other Felonies were Tryed and Judged in the Country either within the particular Jurisdictions of Bishops Abbots or great Lords or else of such Cities and Towns who had the Priviledges of Infangthief and Outfangthief together with Fossa and Furca that is a Pit to drown and a Gallows to hang Malefactors and if the offence was done in the body of the County they were then tryed and condemned in the County Court Justices Itinerant not being in use till Henry the seconds Reign M I must confess you have given me a great deal of light in these matters more than I had before but as I shall not dispute whether in the lowest Courts such as the Tythings and Court Barons the smaller English Free-holders might not Judge of Petty causes amongst themselves yet that in those greater causes were brought in the Hundred and County Courts which only the greater Fleemen of the Hundred or County were Judges who these Freemen were Dr. B. hath sufficiently taught us in his Commenes upon the Conquerors Laws as also in his Glossary viz. That they were Tenants in Military Service who in those times were the only great Freemen of the Kingdom and quite different from our ordinary Free-holders at this day These were the Men the only legal Men that named and chose Juries and served on Juries themselves both in the County and Hundred Court and dispatched all Country business under the great Officers I do not deny but that there might be other lesser Freemen in those times but what their quality was farther than that their Persons and Blood was Free that is they were not Nativi or Bondmen it will give a knowing man trouble to discover it to us we find in every leaf of Doomesday Socmen liberi homines Possessors of small parcels of Land but what there quality was and of what interest in the Nation Dicat Apollo no Man yet hath made it out nor can it be done by the account we have of ordinary Free-men for a Century or two last past And for further proof of this That none but Tenants in Capite or Military Tenants at least could be Judges in the County Court appears by the Laws of King Henry the first wherein it is expresly said Regis Iudices Barones Comitatus qui liberas in t is terras habent per quos debent causae singulorum alterna prosecutione tractari c. So that these Barons of the County being certainly Feudal Tenants this service of being suitors to the County and Hundred Courts was a service incident to their Tenures and then it will also follow that those Primores and probi Viri who as you have now related tryed this Cause between Earl Odo and Archbishop Lanfranc and who let me tell you were not only of the County of Kent but of other Counties in England where the Mannors and Lands lay as Eadmerus shews us and who were the Jurors in this great Cause consisted of the great Military Tenants that were not Barons and the less which were the Probi Viri for it can be no ways probable that the ordinary Freemen which made the greatest number and were all bound to
P. 3. Anarchy of mixt or limited Monarchy F. A. M M. 4. Preface to the Observations on Aristotle F. P. O. 5. Directions for Obedience to Governours D. O. G. 2. Mr. Bohun's Preface to Sir Robert Filmer's Patriarcha B. P. P. His Conclusion to the same B. C. P. 3. Patriarcha non Monarcha P. N. M. 4. Grotius de Iure Belli Pacis G. I. B. 5. Pufendorf de Iure Naturae Gentium P. I. N. 6. Two Treatises of Government T. T. G. 7. Rushworth's Historical Collections R. H. C. 8. Bishop Sanderson's preface to the power of the Prince c. B. S. P. P. Adertisement I Desire always to be understood that when I make use of the word People I do not mean the vulgar or mixt multitude but in the state of Nature the whole Body of Free-men and women especially the Fathers and Masters of Families and in a Civil State all degrees of men as well the Nobility and Clergy as the Common People THE First Dialogue BETWEEN Mr. FREEMAN a Gentleman AND Mr. MEANWELL a Civil Lawyer Supposed to be immediately upon the late KING IAMES's first Departure F. GOOD Morrow Sir what at your Study thus early this Morning M. That is no wonder if you were acquainted with my Hours But pray Sir may I not likewise ask you what extraordinary occasion brings you out of your Lodgings so much sooner than your ordinary time F. Why Sir I 'll tell you Being awake very early this Morning and not able to sleep for thinking on the great Change that might happen let either the King or Prince get the better and hearing some odd Rumours last Night of the King's Intentions to go away I was resolved to get up and go to the Coffee-house to hear what News where I had scarcâ— satâ— down before a Gentleman comes in from Whitehall and brings us a certain account that the King withdrew himself this Morning between three and four of the Clock no Body knows whither tho' most believe he is gone after the Queen into France which I thought would be so surpriâ—ing I will not say welcome to you that being so near your Lodgings I thought it would be worth while to step up and tell you of it and take your Thoughts of this great and I hope happy Change which so great a Revolution is likely to produce in this Nation M. I thank you Sir for your kindness tho' it is not half an Hour ago that one I employ in some Business relating to a Client of mine came hither and gave me the same account that you do tho' it was no great surprize to me for ever since Sunday that the King sent the Queen and Prince away I believ'd that he gave the Game for lost F. I must confess I was of another Mind and thought that when he had secured the Queen and Child he would have had one Brush with the Prince before he could have got to London and if he had the worst of iâ— he could have but gone away at last But to leap away on this Manner and to loose Three Kingdoms without ever striking one stroke it is not I confess sutable to that high Character his Admirer have always had of his Courage and Conduct M. Alas Good King what would you have him do Or whom could he relye on When some of his near Relations and divers of those whom he had raised almost from nothing had deserted him How could he then trust an Army of Mercenaries who being most of them but the Dregs of the People would it is likely rather have delivered him up to the Prince than have ventured their Lives for him F. What you have said concerning his Majesties Relations and Confidents deserting him makes rather against than for the King's Cause since it cannot be supposed they would have left a Prince to whom they were so much obliged to joyn themselves with his Enemy from whom they had no reason to expect greater Advantages than they had already unless they had been satisfied in their Conscienceâ— that the Protestant Religion Establisht in these Nations and also our Civil Rights and Liberties were in imminent danger of being utterly lost and destroyed and tho' I grant that some of the King's Officers and Souldiers went over to the Prince yet considering how few they were that did so not being as I am credibly informed above seven or eight hundred Men at the most and what great numbers of Men he had left with him he might methings have turned out those Officers he suspected and put others in their Rooms who would have Engaged to Live and Die with him and if this would â—ot have done he might have sent those Regiments he most suspected back to London And then reckoning the Scotch and Irish Forces that came lately over besides the Papists he had in his Army and those who having more Courage than Conscience could never expect to Fight for a Prince who would pay them better I am confident if this had been done he migh after the going over of those few Troups have made up as good if not a better Army than the Princes and so need not have scampored last Week from Salisbury in that haste he did whilst the Enemy was near fifty Miles off But as it is I am very well satisfied with all that hath happen'd in this great Revolution and convinced of the Truth of that old saying Ques perdora vult Iupiter demantat priâ—â— M. So far I go along with you that God doth often make use of the Wickedness and Treachery of Men to bring his great Designs about But whether God hath ordained this great Revolution as you call it for a Deliverance or Punishment to this Nation I am yet in doubt for if you please to consider how much those two Causes have contributed to this turn of Affairs I suppose if you argue according to my Principles we must own that tho' this Change hath happened by Gods permissive Providence as all things else tho' never so ill yet whether he doth approve of â—ll that hath been done to procure it I much doubt since if divers of our Nobility with some of our Clergy had not quitted their Doctrines of Passive Obedience and Non Resistance so long owned by the Church of England this Revoluion could not have happened at all or at least not so suddenly as it did So that indeed I must confess I am not only grieved at his Majesties hard Fortune but also stand amazed and cannot but reflect with wonder on the strange Vicissitude of Worldly Affairs to see a Great King who but last Week commanded a Powerful Army of more than Forty Thousand Men forced out of his Throne and made to fly his Kingdom by a Prince that did not bring half that Number into the Field And who can sufficiently Bewail the King's Misfortunes who hath been at once betrayed by the ill Advice of his Counsellors the Treachery of his Friends and tho
this would introduce great mischief and confusion in privte Families so would it likewise prove a Foundation of Rebellion against all Civil Powers whatsoever if Subjects who are the same thing in a Kingdom that Children are in a Family in the State of Nature should take upon them to resist their Prince when ever they think he goeth about to invade either their Lives or Fortunes which would likewise serve to justify all the most horrid Rebellions in the World since all Rebels whatsoever may or do pretend that their Lives Liberties and Fortunes are unjustly invaded when indeed they are not and Likewise upon the least hardship or injustice in this kind inflicted upon any private Subject either by the Prince or his Ministers which abuses and violences do often happen even under the Best Governments any such private Person who shall think himself thus injured may upon this principle take up Arms and endeavour to right or defend himself against such violence by which means under pretence of securing a few Men in their Lives or Estates whole Kingdoms if such Persons can find follows enough may be cast into all the mischiefs and confusions of a Civil War till the Prince and Government be quite destroyed F. I must confess the Arguments you now bring are the best you have yet produced since they are drawn from that great and certain Law of procuring the common good and peace of mankind But I hope I shall make it plain to you that no such terrible consequences will follow from the Principles I have already laid down and therefore I must first take notice that you have in your answer confounded two Powers together which ought to be distingishued in the State of Nature viz. The Power which Fathers as Masters or Heads of Families may exercise over the Lives of their Children or Servants whilst they remain Members of their Family and that reverence and duty which Children must always owe their Fathers as long as they live even after they become Fathers or Masters of Families of their own In the first State I have already allowed that such Fathers as Masters of Families may Lawfully exercise a far greater Power over their Children whilst they are members of their Family than they can when they are seperated from it yet is not this Power in all Cases absolute or irresistible as I have already proved and therefore I do in the first place restrain this Right of self-defence only to such Cases where a Father would take away a Sons life in a fit of drunkenness madness or sudden passion without any crime committed or just cause given which I also limit to a bare self defence without injuring or taking away the life of the Father if it can possibly be avoided and in this Case if the Son who is like to suffer this violence may not judge when his life is really in danger to be destroyed because he may pretend so when really it is not This is no just reason to overthrow so great a Right as self Preservation since if this were a sufficient objection it would have the same force against all self defence whatsoever For it doth often happen that wicked and unreasonable Men will pretend that they were forced to take away the lives of others only to preserve their own when indeed it was altogether false and needless and they only killed them to satisfy their own malice or passion And therefore as there is no reason that the abuse of this natural Right should be used as an Argument against the use of all self-defence by any Man whatsoever So likewise neither ought the like abuse hereof by some wicked Children to be brought as an Argument against its being made use of at all by others who are never so unjustly assaulted and in danger of their Lives from their Fathers violence If the first principle be true on which this is founded that a Son may excercise this Right of self-defence in such Cases without any intrenchment upon his Fathers Paternal Authority or that Filial duty and respect which he must always owe him when ever he returns to himself and will behave himself towards him as becomes a Father and not like an Enemy or Cut-throat And as for the quarrels and confusions which you alledge may happen in Families between Fathers and Children in case such a liberty should be allowed those inconveniencies will prove very inconsiderable if you please to take Notice That first I do not allow this Right of resistance to be exercised by any Children before they attain to years of discretion Secondly that after they have attained to these years no resistance ought to be made against a Father whilst they remain part of their Fathers Family but only in defence of their own their Mothers Wives and Childrens Lives since I grant that a Son as long as he continues a member of his Fathers Family ought to bestow all his own labour for his Fathers profit and cannot acquire any property either in Lands or Goods without his Fathers consent And since you conceive this Right of self-defence if allowed to Children would be the cause of so great mischiefs in Families if Children should have no Right to judge when their Fathers abused their power over them let us a little consider on which side this abuse is most likely to happen for if you please but to look into the World and survey the Nature of Fathers and Children and set the faults of the one against the other you will find that as I confess it is the Nature of many Children to contradict and disobey their Fathers Commands and that most young people hate restraint and love too much liberty and may oftentimes think their Fathers too harsh or severe to them when really they are not yet doth such false surmises and disobedient actions seldom end either in absolute resistance or taking away their Fathers lives by force or if they do so it is really done for their own defence or whilst they are assaulted by them in their own Lives or those of their Children but is commonly acted privately to satisfie their own revenge or malice which I hold to be utterly unlawful so likewise let us consider on the other side those temptations that Fathers lye under of injuring their Children or taking away their Lives or uâ—ing them like Slaves without any just Cause you 'll find that they by reason of their age natural temper or infirmities may be easily transported to that degree of passion that not considering the follies of Youth they may oftentimes in their passion either beat them so cruelly as utterly to disable or maime them or else take away their Lives for little or no Cause And besides Fathers being often covetous and ill-natured which are the vices of old age may where there is no power over them to restrain them from it either keep them as Slaves themselves or else sell them to others for that purpose as I
to the Word of God and what not and yet you see that from the ill use of this Liberty have sprung all the Different Sects and Heresies in the World Does it therefore follow that Men must not make use of this Liberty because they may abuse it So likewise must Subjects judge in no Case whatsoever when the Supream Power Tyrannizes over them beyond what they are able to bear and must they never resist or endeavour to cast off this insupportable Yoak because they may happen one time or other to be wanton and believe themselves oppress 't when indeed they are not M. I grant your Parallel would have some what in it were the Consequences of every Mans judging for himself in Matters of Religion as fatal to the Peace and Happiness of Mankind as your Doctrine of the Subjects judging when it is fit for them to resist the Supream Powers for I do not at all debar them from the Right of Iudging when they are oppress 't or ill used by them for that may very well consist with the Publick Peace but I utterly disallow all manner of Resistance by Force because it tends not only to dissolve all Civil Government but to disturb the Common Peace and safety of Mankind F. Notwithstanding your Distinction the Parallel with hold in both Cases for are not differences in Religion as fatal to the Peace and Unity of the Church as the Subjects judging when they are oppress 't and thereupon taking up defensive Arms can be to that of a Civil State And do not more Wars and Quarrels arise about Mens differences in Religion than from any other Cause you can Name So that if the Peace of the Church were a sufficient Cause for supposing a certain or Infallible Iudge in Religion there would be the same Reason to suppose it in Civil Matters too And therefore your Argument from the abuse of this Liberty of the Subjects judging when they may resist is of no more force in one Case than the other for I grant it may so happen in a Civil State as well as in an Ecclesiastical that the Subjects may rise up and resist their Civil as well as Spiritual Governours without any just Cause doth it therefore follow that God hath wholly delivered up Mankind to the domineering humours of Men in Power let them abuse it never so grosly And therefore we must not be wiser than God Almighty himself and when he hath not appointed any certain and Infallible Iudges either in Civil or Spiritual matters without any Contradiction or Resistance we ought not to suppose a necessity of such Judges meerly because of some Inconveniences which may perhaps often happen from the abuse of that Christian Liberty he hath given us For then I doubt you will find the Remedy would be much worse than the Disease as if to avoid Heresies we should set up the Pope for an Infallible Iudge So would it be likewise if to avoid Civil Wars and Rebellions we should set up the Supream Magistrate as Mr. Hobbs hath done for a certain and Irresistible Iudge of whatsoever Means are necessary for the People's Quiet and Preservation since I have already proved that an Insupportable Tyranny is not Civil Government and that the Supream Powers can no more alter the Nature of things but their own Laws or Edicts than they can ordain Poyson to be used in stead of wholesom Food by the People M. I confess what you have now said carries some weight with it and my own Carnal Reason doth very much incline me to your Opinion were it not for two things the one as I said is the Horrid Rebellions that have and may again arise in these Kingdoms from this Principle which hath made God so strictly forbid all Resistance of the Higher Powers upon any account whatsoever And therefore you are much mistaken when you assert that Resistance tho' for Self defence is one of the Liberties that God hath left us since certainly he would never so severely have forbidden it but that he not only knew how prone Men's Corrupt Natures were to Rebellion but also foresaw the fatal Consequence of it F. If God's Commands in Scripture be the greatest Argument you have against all Resistance whatever I doubt not but to shew you when We come to it that you as well as others are mistaken in that Strict Interpretation of those places of Scripture and as for the Evil Consequences you suppose may follow from this Doctrine I doubt not likewise but to convince you that much worse will follow from the Irresistible Tyranny of the Supream Powers than ever have happen'd from the Dreadfullest Rebellions And therefore I desire you to take Notice that what I have now said is not out of any design to Iustifie so Horrid a Crime as I grant Rebellion to be or to incite Subjects to be Guilty of it but only to hinder Civil Government from being destroyed and Mankind from being made Miserable For I have first Asserted that no Resistance whatever is to be made in Absolute Governments but in those Cases in which the main Ends of Civil Government are Visibly destroyed or so near it that there is no other means left but Resistance to prevent it And then when things are once brought to this Pass it is not the People that make this War but the Governours who by their Tyranny have brought the Common-Wealth into this Anarchy and Confusion you so mâ—ch Dread so that it is not the People but they that are the Aggressors And as for the ill use that may be made of this Doctrine to stir up the People to Rebellion when they have no just or sufficient Provocation to Reâ—â—st This will not prove of that Dangerous Consequence you imagine if you will but consider that I do not allow this Resistance in any Case but when the Violence or Oppression of the Governors is so Evident and Insupportable to all the People that groan under it that no indifferent Man in his Senses will be able to deny it for as long as there remains any Disputableness whether or no the People are sufficiently Opprest in their Liberties or Estates the Trust Reposed in the Supream Magistrates makes them the Sole Iudges of the Necessity of such Exorbitant Actions as being Intrusted by the People as Men supposed to be both Wise and Good and themselves Ignorant in Diverse Cases of the true means of their own Preservation and the Supream Powers remain the Sole Iudges as long as the Case is Doubtful or Uncertain But since you have already acknowledged that the People might Iudge if such a Case should happen whether the Prince or other Supream Magistrate makes Actual War upon them I would very fain know why the People cannot as plainly distinguish when he sends his Guards or Dragoons to take away their Lives and Liberties or to turn them out of their Estates And 〈◊〉 this be done and the Tyranny so evident and general and
them that by shooting they would also call in the Neighbouring Town who might be too strong for all their Fellow Thieves Now if you will but take these honest People of the next Town for such Neighbouring Princes or States who may Joyn in the Assistance of such an Opprest People this Simile will fully answer your Argument of those Neighbouring Princes that may take Part with an Oppressing Tyrant And as for the Consequence of such Assistance on the one side or the other that it may happen to bring them into a worse Condition than they were before viz. a Subjection to Foreigners as I have put the Case it can be no cause to detâ—r the People from Resisting for if they were as I suppose reduc'd to a Condition of slavery before and had lost all their Liberties and Properties how can we Imagine them in a worse Case than they are already And it is all one to such a People whether their own or a strange Prince did Tyrannize over and oppress them Nay were I to take my Choice I had much rather be Tyrannized over and opprest by a Foreigner than from my own Natural Prince since the former conâ—ing in by force and without any precedent Promise or Compact I lye wholly at his Mercy who hath no Obligation upon him I had much rather if I were to be â— slave be so to a Stranger than to my own Father if I were assured that both the one and the other would use me with like severity And to answer your Instance of your Irish King I think that Nation hath been so far from losing any thing by their Subjection to the English Government that they have gained far greater Priviledges and Liberties both for their Persons and Estates than ever they enjoyed under their own Princes So that they are rather the better than the worse by the Change And as for your other Example of Prince Lewis it is uncertain whether the Condition of the English Nation would have been either better or worse under a French King but thus much I am sure of that had King Iohn Proceeded in that Tyrannical Course against his Barons and the rest of his Subjects they could scarce have been in a worse Condition under the French nay the Moors themselves haâ— King Iohn actually surrendered his Crown to the Sarracâ—n Emperour as the Historians of those times relate he offered to do Nor can I be of your Opinion that iâ— had been much better for the Barons and Nobility of this Kingdom never to have stirred or resisted the King at all since if they had not they had never obtained the GREAT CHARTER of our Liberties from him and if they had not as Vigorously defended it when they had once got it I doubt not but the People of England had been long before this time in the same Condition at to their Liberties and Properties as some of our Neighbouring Nations all which is sufficient I think to prove that Resistance in desperate and unavoidable Cases is not attended with those mischiefs and Inconveniencies you suppose M. I shall not say much more in answer to your lost discourse since it would be to little purpose but only take Notice that Similes are not Arguments and therefore your Comparison between Thieves and Honest Men doth not hold as to Princes and Subjects since sure there is a great deal of difference between those that are to be Obeyed as the Ordinance of God and those who are Obliged in Conscience to be subject to them and Thieves who act directly contrary to Gods Will and Honest Men who having no obligation to them may justly resist them So that if that be false the rest of the Comparison will signifie nothing And as for what you say concerning MAGNA CHARTA I think it is not much for its credit to have been extorted by Force and afterwards defended by Rebellion tho' I will not go about to Impeach the Validity of it since so many of our Succeeding Kings have so solemnly and voluntarily confirmed it only pray take notice that it is wholly derived from the Grace and Bounty of our Monarchs and therefore we are not to resist tho' it may happen to be sometimes and in some Particular Cases broken and infringed by the King for some great Occasions or Necessities of which we are not competâ—â—t Iudges But to come to the rest of those evil Consequences that may attend your Doctrine of Resistance I think the Benefits would be much greater to the People by strictly adhering to those Doctrines of Absolute Subjection and Non-resistance than by propagating yours of Rebellion For if the former were constantly taught and inculcated as most beneficial for them and if they were once really persuaded of the Truth of it and would both constantly profess and practise it it would make all Princes much more Gentle and mild to their Subjects than otherwise at some times they are For now they are still fearful that they will take the first opportunity they can to take up Arms against them And upon the least Grievance or Mis-Government to resist their Authority for then Princes not needing to keep any such constant Guards and standing Armies might afford to lay much easier Taxes and impositions upon them for the maintenance and support of the Government than now they do and in short would have much fewer Temptations to Tyranny and Oppression could they be once assured of their Subjects absolute Obedience and Subjection Whereas when they are under those constant fears and suspitions of Insurrections and Rebellions against them upon the least occasion it is no wonder if they are tempted sometimes to abuse this Power for their own Security And therefore we read in our Histories that William the Conquerour never thought himself secure from the English whom he had newly Conquered till such time as he had turned most of the Nobility and Gentry out of their Offices and Estates lest they should have any Power left either in his Life time or after his Death to turn him or his Posterity out of the Throne as they did the Heir of the Danish King Cnute who with his Danes had before Conquered England as King William did afterwards with his Normans So that upon the whole matter it seems to me much more to conduce to the main design of Civil Government viz. The Happiness and Peace of Mankind in General that Princes and other Supream Magistrates should be suffered I will not say authorized by God sometimes to abuse their Power to the general oppression and enslaving of the People without any Resistanâ—e on their side expecting their dâ—liverance WHOLY from him who can bring it about in his good time and by such means as shall seem most meet to him than that Subjects should take upon them to be both Iudges and Executioners too in their own Case and thereby introduce not only all the Mischiefs of Civil War and all those cruel Revenges which the Wrath
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
other Weapons And the 2d Article of King Iohn's Charter says expresly Concessimus etiam omnibut Liberis Hominibus Nostris Regui Anglia pro Nobis Haeâ—elibus Nostris in perpetuum omnes Liberates subscriptas â—abeâ—das â—enandas eis haeredibus â—uit de Nobia Hâ—rodibus nostris Which the Dr. himself renders thus We have also granted to all our Freemen of the Kingdom of England c. And sure then this Charter could not be made to none but Tenants in Capite unless you will suppose that none but they were Freemen and all the rest Slaves Nor was this Charter only made to relax the severity of the Feudal Tenures as you suppose since there are divers other Clauses in it which concern all the rest of the Freemen and Free holders in England as well as they for besides the first and second Chapters of this Charter which grants and confirms to the Church of England and to all the Freemen of the Nation their Rights and Liberties If you please better to consider it you will find that there are several other Chapters in this Charter which all other Freemen as well as the Tenants in Capite have thereby an Interest in as you may see by the 10 11 12 13. 15 16. 22 23 24 25. and above 30 other Chapters or Clauses therein exprest which are granted not to Tenants in Capite alone but either to Ecclesiasticks or other Lay Freemen of the whole Kingdom But to prove this a little further I shall give you but one or two instances out of this Magna Charta and that too in the Drs. own Translation Article 48. No Freman shall be taken or imprisoned or disseised of his Free Tenement or Liberties or Free Customs or Out-Lawed or Banished or any ways dâ—stroyed nor will we pass upon him or commit him to Prison unless by the Legal Judgment of his Peers or by the Law of the Land i. e. by Legal Process The other is the 49. Article of this Charter that we will not sell to any Man we will not deny any maâ— or delay Right or Justice Now Judge your self whether these two Articles were made to the Tenents in Capite alone or to all the Freemen of the whole Kingdom And hence it also plainly appears that the same Body of Freemen to whom this Charter was made were likewise present and gave their Assents to the making of it Nor were Vavasors or Fendatary Tenâ—nts of the Bishops Abbots great Lords and other Tenants in Capite Persons so inconsiderable as you would make them that they only should come hither but as followers to augment the Noise since I have already proved from Bracton that there were divers of them Men of great Estates and Power in their Countries besides the Tenants of those Abbots and Priors who as I have already mentioned did not hold in Capite of the King at all and yet made a great Part of the Kingdom besides Tenants in Petyâ— Serjeanty and those that held of great Honours who could never be represented by the Tenants in Capite at all And therefore I must notwithstanding what you affirm to the contrary look upâ— on all these Persons for as good Law-makers as the greatest Lords or Tâ—nants in Capite of them all since the main force of the Nation did not lye in them but in their Feudatary Tenants who would never have followed their Lords in this Assembly if they had not look'd upon themselve as having as good an interest in the Rights and Liberties they demanded as appears by this Silvo of all their Liberties as their Lords themselves and also as good a Right as they in giving their Assent to them when they were to be pass'd into a Law as they were by this Charter since these Feudatary Tenants were not at all obliged by their Tenure to obey their Lords Summons at any other Warlike expeditions but where the King or his Lieutenants went out in Person M. I am very well satisfied that this could be no Parliament for the reasons already given and tho I grant that these Charters were made to and in the Presence of the greatest part of the Clergy Earls Barons and Freemen of the Kingdom yet this proves not that they had any Vote or Suffrage in making of them nor indeed could they for the great Charters were only the Petitions of the People drawn into the Form of a Charter and passed under the King's Seal as his meer voluntary Free Grants and Concessions without any Votes or Authority from the People And therefore the great Charters of Henry III. recites them to have bin made of his meer Grace and Free Will as it is in the Preface to it But pray answer me a few plain Questions concerning King Iohn's Charter which if you can resolve I may be inclined to believe there might be some other great Council besides that of Tenants in Capite The first is if this Common Council of Tenants in Capite were for Assessing of Aids and Escuage only as you suppose it is provided by the last Clâ—use of this Charter why was the Cause of the Meeting to be declared in every Writ of Summons to the great Barons and Tenants in Capite if they were only Summoned about Aids and Escuage or other ordinary business of Course sure then the Cause of Summons need not to have been declared as it is here provided In omnibus Litâ—er is Submonitionis causam Submonitionis illius exponemus F. I will give you an answer to this Question immediatly but before I do it let me tell you that you are much mistaken in saying that the great Charters because they were the Kings Free Concessions were therefore passed without any Votes Suffrages or Authority of the People of England Since I have already proved in our discourse concerning the legis â—â—tive Power that the matter of those Charters was no more then an affirmative of the Common Law of England long before your Conquest and that the Peoples consent and Suffrage was sufficiently given in their drawing them up and offering them to the King to be Sealed and accepting them from him when he had done it And therefore that the great Charters are always called Statutes in our Ancient Records and Aâ—â—s of Parliament But to answer your Question I suppose that the King besides the ordinary business of their Assessing Escuage had often other affairs of great moment to be transacted with and Communicated to his Bishops great Lords and Tenants in Capite in which the rest of the Kingdom were not at all concern'd such as giving the King their Advice as a great Council concerning divers weighty Affairs as in the business of Sicily mentioned in the first Record I have cited as also about undertaking Forraign Wars against France Scotland Wales c. in which they were bound to follow and assist him together with their under-Tenants according to their respective Tenures and therefore it was but reason
at the end but the King himself Teâ—â—e meipso and farther both agree in all things material with four ancient Manuscript Copies of this Charter of the 2d of Hen. III. when he was in Minority one of which is in the Cuttonian Library a 2d was lately in possession of Sam Baldwin Serjeant at Law a third is in the Hands of Iohn Cooke Esq chief Prothonotary of the Court of Common-Pleas and a 4th is at this present with Mr. Peryt of the Inner-Temple which I my self have seen But to put this out of all doubt there is still Extant a fair Original of this Charter of confirmation of the 9th of Hen. III. when he was of full Age under the great Seal of this King which is supposed to have belonged to Bâ—â—â—ail Abby and is now to be seen in the hands of Sir Nathaniel Powel Benches of the Inner-Temple who is so civil as to Communicate it to all who have the Curiosity to see so great a Rarity so that tho it is not to be denyed but that the Charter Published by Sir Edward Coke in his 2d Institutes is properly the Charter of confirmation of Edw. I. since Boniface was at that time Arch-bishop of Canterbury and â—ulk Bishop of London E. being by â—â—stake put for F. yet I think no man has any cause to doubt whether that Clause we dispute about be not in all the Copies of this Charter as well as in this of Edward I. M. Well admitting this Charter to be as ancient as you please yet let me tell you if your sense be that the words at the end of this Charter viz. omnes de Râ—gon those who gave or granted this Subsiâ—y were Members of that Parliament if you wiâ—â— understand it so and according to the literal meaning of the words then omâ—es de Râ—gnâ— as well those thâ—t had Estates in Land as those that had not all Câ—py holders all Tradesmen all Bondmen and Villains of which there were great store in those days and all Servants were Members of Parliament And so then I would willingly understand where â—ll these People should meet how their Council shoulâ— be managed and how it is possible in such Meetings i any such there can be to prevent the greatest confusion imaginable The meaning then of the words must be that the Arch-bishops Bishops Abbot â—arâ— Barons Knights Free-Tenants and all of the Kingdom or all the King's Suâ—jects Dederunt that is paid a Fifteenth part of their Moveables to the King for his granting these Charters not that they themselveâ— gave or granted this Subsiâ—y and 't is reasonable to conclude that all the King's Subjâ—cts paid the Fifteenth part because one way or other little or much they enjoyed the benefit of them I take this to be the Geâ—uine sense of the words but Mat. Paris whom you now quoted makes it very apparent who were the constituent â—orts of this Parliament for if you please to observe the Men to whom the chief Justice Proposed this Fifteenth and those who consulted about the King's Demands and those that returned an answer to them and also granted the Fifteenth part of the Movables as well of the Ecclesiasticks as Laiâ—s oâ— the whole Kingdom were only the Arch-bishops Bishops Earls Barons Abbots Priors and therefore they were the only constituent parts of this Parliament as they were also of the Parliament or great Council held at Merâ—on in the 20th Year of this King's Reign whither says Mâ—t. Paris Consummato cum gaudio Nuptiali convivio Rex recedens a Londoniâ—s venis Mereroâ—â—m ut ibi revocati Magnaies unà â—um Rege de Regni Negotiis eâ—ntractarent F. I think I can as easily answer this small Objection against on meaning of these words at the end of this Charter Pray do I affirm that these words are to be taken literally or the contrary Therefore you do ill to put a sense upon me which I do not allow of but pray tell who ever was so mad as to believe that these words are to be understood litterally or that all those Persons who you here give us a Bed-Roll of could all appear in Parliament in Person or had all Votes at the Elections of Parliament Men and yet for all that this Clause is true in a legal tho not in a litteral sense that all the Freemen of the Kingdom granted this 15th viz. that the Prelates and Temporal Lords in their proper Persons and all the rest of the Kingdom by their respective Representatives granted this Fifteenth I hope it is a good Rule in your Civil as well as our Common Law that he who gives or grants any thing by his sufficient Proxy or Representative is said to perform it by himself and in this sense all the Men in the Kingdom gave or granted a Fifteenth for the confirmation of this Charter and so at this day it may be said in a legal sense that all the Men of the Kingdom do joyn in granting the King a Tax by themselves or their Representatives in Parliament tho none but such as are Free-holders of 40 â— a Year can have Votes at the Election of Knights of the Shire nor any but the Aldermen of divers Cities and Towns and the Freemen of Corporations and the Scot and Lot-men of Buroughs who have any Votes at the Election of Citizens or Burgesses And that your Dr. himself tho he hath misled you in the sense of this word Dederunt yet can grant this to be a reasonable Interpretation of this Clause when he is in a good humour Pray remember his Comment upon the Record of the 34th of Edw. I. which I gave you but now wherein after the Barones it follows that milites Liberi homines Communitates Comitatuum granted a 30th part of their Moveables and the Communitates Civitatum Burgorum a 20th whereupon he tells you these words are so expressed as if they had been all there in Person but these words signifie no more then that the Knights and Freemen gave by their Representatives and that the Communities of Counties and these Citizens and Burroughs gave by their Representatives and why these Milites Liberi homines Omnes de Regno might not do it as well in the same sense When this Charter was granted and confirmed I should be glad if you could give me a sufficient reason so that I shall refer it to your own Ingenuity to consider when the Charter says expresly that all the Persons therein mentioned gave a Fifteenth whether it be not a manifest wresting of the Grammatical signification of this word Dederunt to render it they pay'd for at this rate a Man may make words signifie just what he pleases But our ancient English Historians are the best Judges in this case for the ancient Annals of Waverly-Abby Published in the same Volume I last mentioned under the Year 1225. having given us a short account of the granting thâ—se Charters 9 Hen. III. recite the conclusion of the great
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
M. OH Are you come at last I have looked for you these two Nights and now began to fear you were not well or else had distrusted your cause and declined another Conference F. I beg your Pardon for disappointing you which yet I had not done had noâ— some Business hindred me but however to let you see I do not decline another Conference with you upon this Subject pray let us go on where we left off and tell me freely your sense of my Notion of the Kings forfeiture or Abdication of the Government by his violation of the Fundamental Laws of the Kingdom and refusal to repair those Breaches when he might have done it M. In answer to your demand I will deal freely with you and must tell you that I have perused all Writers that have Writ any thing considerable concerning the Laws of Government or of Nations and cannot find in any of them any thing to countenance your Notion of forfeiture or Abdication of an absolute Sovereign Prince aâ— I must still take ours to be notwithstanding all you yet said to the contrary unless what you have cited at our third meeting out of Barclays third Book contra Monarches where he allows the Subjects to resist their Prince in case he go about to destroy the Body of the People or Common wealth whereof he is the Head To which I may also add another Case which you have omitted viz. if the Prince make over his Kingdom to another without the Consent of his People And I confess that both Grotius and Pufendorf agree with Barclay in this Notion Because they look upon both these Cases as their plain downright Renunciations of their Civil Authority over those whom they were obliged to Govern But indeed the first of these Cases is so improbable nay almost impossible to happen that were it not for the over-great niceness of these Writers it need not to have been so much as mentioned since none but a Mad-man can ever go about to destroy his whole People and therefore as a Man out of his Wits such a Prince may be Resisted and lockt up if ever it should so fall out as you your self have confessed it hath very rarely for a Nation to be so unhappy as to have such a Prince but as for the Second viz. the making over their Supream Power to a Foreign Prince that likewise so very rarely happens That it is scarce worth the while to make any dispute about it But in all other Cases they held the Supream Power of every Nation to be absolutely Irresistible in any case whatsoever and if irresistible then certainly uncapable of forfeiting their Right to govern by any pretended or real Violation of the Liberties and Priviledges of the People And Bodin in his first Book de Republica tho' he grant that absolute Princes are obliged in Conscience to keep and maintain all such Priviledges which have been granted to the People by either themselves or Predecessors which are for the good of the Common-wealth yet since the Prince is sole Judge whether these Priviledges are consistent with his Supream Right to Govern and Protect his People he may therefore have occasion sometimes not only to Detract from them or dispense with them in some Cases but may wholy break and lay them aside by turning Tyrant Yet nevertheless in all these Cases People are still bound not to resist them And that he looked upon the King of England as such an Absolute Monarch as well as others he there mentions pray read me the place I now Cited where after he has allowed Resistance to be lawful against those Princes who were not properly Monarchs as enjoying but a share of the Supream Power and among which he reckons the German Emperor and the Kings of Denmark Sweden and Poland But then when he comes to speak of Real and Absolute Monarchies his Sense is quite different as you may see by these words Quod si Monarchia quaedam est summâ unius potestate constituta qualis est Francorum Hispanorum Anglorum Scotorum c. I shall slip all the rest because not to our purpose ubi Reges sine controversia jura omnia Majestatis habent per se nec singulis civibus nec universis fas est summi Principis vitam famam Fortunas in discrimen vocare seu vi feu Iudice constituto id fiat etiamsi omnium scelerum ac Flagitiorum quae in Tyrannis convenire antea diximus turpitudine infamis esset where you may observe that Force or Resistance by which such an absolute Princes Life or Regal Power here called Fortunas are as much forbid as calling him in question by appointing Judges to sit upon him And he there gives us a very good reason for it because all Subjects of what degree soever cannot pretend to any Coercive Power over the Person of a Sovereign Prince F. We have discoursed enough concerning the Resistance of Absolute Monarchs at our third and fourth meeting and therefore I desire we may not fall into that Subject which can produce nothing but needless Repetitions and I have already proved at our 5th Conversation that the King is not an Absolute Despotick Monarch but is limited and tied up by the Fundamental Laws of the Kingdom from making of Laws or raising Taxes without the consent of his People in Parliament and that our Government is mixed and made up of Monarchy with an allay of Aristocracy and Democracy in the constitution the former in the House of Lords the latter in the House of Commons as K. Charles the First himself confesses in his Answer to the Parliaments 19 Propositions and I have farther inforced this from divers Authorities out of our Anâ—ient as well as Modern Lawyers viz. Glanvill Bracton Fortescue and Sir Edward Coke So that since we have such clear proof for our Constitution from our own Histories and Authors nay from the King himself besides the whole purporâ— and style of the very Laws and Statutes of the Kingdom I do not value the Authority of Bodin a Foreigner whose business it is to set up the Authority of the French King to the highest pitch he could and therefore being sensible that antiently the Government of France and England were much the same he could not with any face make his own an Absolute Despotick Monarchy unless he had made ours so too But this is not the only Errour he has been guilty of in our History and Constitution as I can shew you when there is occasion But Arnisaeus who as well as Bodin is so much for Absolute Monarchs yet does in his Treatise of Government called his confess that a Tyrant in an Hereditary Monarchy who violates all the Laws of Justice and Equity to the endangering the Ruine of the Common-wealth doth ixcidere Iure haereditario fall from or forfeit his Hereditary Right But pray make it out by some convincing proofs either from History or Law that our Kings are
dare not insist upon it so that I do not now wonder that the Gentlemen of your Principles are so violent for this right of Resistance since it is only in order to introduce your Darling Doctrine of the Peoples Power of deposing or laying aside their Kings as you term it whenever they shall judge they turn Tyrants and have thereby forfeited their Crowns which is a most dangerous Doctrine and if it should take effect the Princes of the World had need look about them since the People may make up such a pretence for ought I know even against the very best of them that are now Regnant in Europe But sure absolute Monarchs ought not to be outted of their Crowns by strained consequences or forced interpretations of Laws therefore pray shew me this original Contract you so much insist upon and those conditions on which you suppose our limited Monarchs hold their Crowns I confess if you could shew me any clause in our Laws or ancient forms of the Coronation of our Kings as there was at the Coronation of the Kings of Arragon wherein the chief Justice on the behalf of the People plainly told him that they made him King upon this Condition that they would have more Power than himself or that in the conferring of the Regal Power it was expresly reserved in what cases it should be lawful for them to resist the King or to absolve his Subjects from their Allegiance as Bodin tells us it was expresly inserted in the Coronation Oath of Henry II. Duke of Anjou afterwards King of France when he was made King of Poland that if he broke his Oath and violated the Laws and Priviledges of the Clergy and Nobility of Poland then the People of that Kingdom should not be obliged to render him any obedience I grant then that the Liberties of such a People might be preserved but the King that took upon him the Regal Power upon such conditions would not be properly a Monarch but liable to the Judgment of his People whenever he really did or that they imagined he had thus violated their Laws since the Supream Authority would still reside in them But indeed the Case God be thanked is much otherwise with our Monarchs who are Kings by right of Inheritance whether ever they take any Coronation Oath or not as K. Edward the first was whilst he was in the Holy Land almost two years before he could come over to be Crown'd and K. Henry the sixth was not Crowned till the eighth year of his Reign as well as of his Age. But that our Kings are so by Inheritance and by the Laws of God and Man previous to any Coronation Oath or consent of the People is expresly declared by the Act of recognition of K. Iames I. and that Treason could be commited against him before he was Crowned Sir Edward Cooke tells us in Calvin's Case was the opinion of all the Judges of England in the Plot wherein Watson and Clerk the Priests were Executed and Sir Walter Rawleigh condemned So that what you have now urged from Reason or Authority of our Antient Lawyers is either quite mistaken or else does not reach the matter in hand that it cannot be made out from reason is plain since your whole Argument is built upon this false foundation that it is lawful in some cases to resist the King in case of a notorious breach of the fundamental Laws and therefore it is necessary also to declare him to have forfeited his Crown if he persist in this violation whereas I deny your Assumption for I hold it utterly unlawful to resist on any pretence or for any cause whatsoever and therefore it is impossible for the King who as I said but now is an absolute unconditioned Monarch to forfeit his Crown for any such violation of your Original Contracts or Fundamental Laws of Government so that let me tell you that the citations you have brought out of History as also Bracton and Fleta do not prove either the one or the other of these for first as to the clause in King Iohn's Charter concerning resistance and the Barons having a Power thereby to constrain the King to amend his violations of it by making War upon him and that they should not return to their former Allegiance till all was redressed make the most of it it could be no more than a particular concession for himself alone and was not intended to reach his Successours who are not at all mentioned in this Clause and that it was never intended to reach them may further appear because that this clause of resistance is omitted out of all the subsequent great Charters that were granted by Henry the III. or his Son Edward the I. and instead of this it was thought a sufficient security upon the last confirmation of these Charters in the 37 year of King Henry III. for the King Bishops Earls and Barons to agree that the Arch-bishop of Canterbury and all the rest of the Bishops should declare all those that wilfully transgressed or infringed the great Charters in any point excommunicated ipso facto not excepting the King himself according to the form of it which you will find in Mat. Paris and other Writers of this Transaction But for the places you have cited out of Bracton there is none of them reach the point in question for as to the first non est Rex ubi dominatur voluntas non Rex the meaning of it is not that he is no King but that he does not act as a King but a Tyrant when he thus governs by his meer Will and not by Law and to the same effect is the next passage Rex est dum bene regit Tyrannus dum Populum fibi tradi um violenta opprimit dominatione all which we readily grant yet since he is still an absolute Monarch all Writers hold that his governing without or against Law cannot give the subjects a power to resist him much less can it be construed as a renunciation or forfeiture of his imperial Power and therefore tho' it is true that as Bracton and Fleta tell us whilst he thus acts he does not act as God's Lieutenant but the Devils Minister yet does it not follow that we may therefore resist him with carnal Weapons or force since we cannot so resist the Devil himself and tho' he may in this matter of breach of the Laws which he has sworn to observe act as the Devils Minister yet notwithstanding in all other points of Government as in the Punishment of Robbers and other notorious offenders and in the due Administration of Justice between Man and Man he still acts as Gods Lieutenant and it is much better that we should have some civil Government tho' mixt with Tyranny and oppression than that we should fall into all the mischiefs and confusions of a Civil War nay that Anarchy too which has been often produced by it and tho' I confess the last place you
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
Tenants by Knights service as also those aids they were to pay the King or any other Lord they held of towards making his eldest Son a Knight and Marrying his eldest Daughter were in use in England before the Conqueror came over But to observe your commands I shall now proceed to shew that by the Conquest the English for a time lost all their ancient Rights and Priviledges till they again obtained them either by their mixing with the Normans so that all distinction between them and the English were taken away or else they were restored by the Charters of K. Henry the first K. Iohn and K. Henry the third I shall therefore divide the priviledges of Englishmen into these three heads first Either such as concerned their Offices or Dignities Or secondly Such as concerned their Estates Or lastly Such as concerned the Tryal for their lives in every one of which if I can prove the English Natives as well of the Clergy and Nobility suffered confideracie lesses and abridgments of their ancient 〈…〉 liberties which they formerly enjoyed I think I shall sufficiently prove the point in hand As to the first head Ingâ—ph telâ—s us that the English were so hated by the Normans in his time that how well soever they deserved they were driven from their Dignities and strangers tho' much less fit of any Nation under Heaven were taken in their places and Malmesbury who lived and writ in the time of Henry the first says that England was then become the habitation of foreigners and the Rule and Government of strangers and that there was at that day no Englishman an Earl Bishop or Abbot but that strangers devoured the Riches and gnawed the Bowels of England neither is there any hope of ending this misery So that it is plain they were now totally deprived of all Offices and Dignities in the Common Weal and consequently could have then no place in the great Council the Parliament of the Nation both for the raising of Taxes and the making of Laws and tho' I grant Mr. Petyt and your self suppose you found a clause in the Conquerors Magna Charta whereby you would prove that all the Freemen of this Kingdom should hold their Lands and Possessions Well and in Peace free from all unjust Exactions and Taillage so as nothing be exacted or taken unless their Free-services which of right they ought and are bound to perform to us and as it was appointed to them and given and granted to them by us as a perpetual right of Inheritance by the Common Council of the whole Kingdom This Common Council will not help you for without doubt here were no Englishmen in it for certainly they would not grant away their own Lands to strangers These were the Saxon Lands which William had given in Fee to his Soldiers to hold them under such services as he had appointed them and that by right of Succession or Inheritance We will now come to the second point viz. the Priviledges the Englishmen lost as to their Estates for whereas before the Conquest you affirm the K. could nor make Laws nor raise Taxes without the Common Coâ—ncil of the Kingdom it is certain K. William and his immediate Successors did by their sole Authority exercise both these Prerogatives as for his Legislative power it appears from the words of his Coronation Oath as you your self have repeated it out of Florence of Worcester and Roger Hoveden the conclusion of which Oath is se velle reâ—â—am legem statuere tenere Rapinas Injustaque Iudicia penitus interdicire Now the Legislative power was then lodged in him why else did he swear to appoint right Laws For if the constitution had been setled as it is at present the Parliament could have hindered him from making any other and that he could do so appears by that yoak of servitude which Matthew Paris as well as other Authors tells us K. William by his own Authority imposed upon the Bishopricks and Abbies in England which held Baronies which they had hitherto enjoyed free from all secular servitude he now says he put under Military service sessing all those Bishopricks and Abbies according to his pleasure how many Knights or Souldiers each of them should find to the King and his Successors and putting the Rolls of this Ecclesiastical Service in his Treasury he caused to fly out of the Kingdom many Ecclesiasticks who opposed this wicked constitution now if he could do this upon so powerful a Body as the Bishops and Abbots were at this time he might certainly as well raise what Taxes he pleased upon all the People of England and therefore Henry of Huntington tells us that K. William upon his return out of Normandy into England Anglis importabile tributum imposuit Lib. 3. p. 278. And that his Son William Rufus imposed what Taxes he would upon the People without consent of the Parliament appears by that passage of William of Malmesbury which he relates in the Reign of this K. as also in his third book de Gestis Pontificâ—m concerning Ranulâ— whom from a very mean Clerk he made Bishop of Duâ—ham and Lord Treasurer the rest I will give you in Latine Isle siquando edictum regium processisset ut nominatum tributum Anglia penderet duplum adjiciâ—bat subinde idente Rege ac dicente solum esse hominem qui sciret sic agitare ingenium nec aliorum curares odium dummodo complaceret dominum So that you may here see that the Kings Edict or Proclamation did not only impose the Tax at his pleasure but his Treasurer could double it when he had a mind to it without consent of the great Council or Parliament as we now call it and this Prerogative was exercised by divers of his Successors till the Statute de Tallagiâ— non concedendo was made But to come to the last head concerning the alteration of Tryals for mens Lives and Estates by the Conqueror from what they were before it is certain that whereas before the Conquest there were no other Tryals for mens lives but by Juries or else by Fire or Water Ordeal which was brought in by the Danes the Conqueror tho' he did not take way these yet also added the law then in use in Normandy of Trying not only Criminal but Civil Causes by Duel or Combat all the difference was that in criminal cases where there was no other Proof the accuser and accused fought with their Swords and the party vanquished was to lose his Eyes and Stones but in civil causes they only fought with Basâ—oons headed with Horn and Bucklers and he or his Champion who was overcome lost the Land that was contended for from whence you may take notice also of a great alteration in the Law not only concerning Tryals but capital Punishments so that whereas before the Conquest all crimes even Man slaughter it self were either â—ineable according to the Quality of the Person and the Rates set upon
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
Act of Parliament and therefore I must still tell you that you go upon a wrong ground when you suppose that there can be now any dispute who is rightful King of England since I have often told you that he can neither abdicate or forfeit his Right to the Crown and that no Parliament whatever much less a Convention could have any power to declare he had abdicated the Government and that thereby the Throne was become vacant for though I grant the judgement of the Estates of the Kingdom when legally assembled ought to be received with great submission and respect yet must it be only in such matters which they have a legal cognizance of and which they are impower'd by the Laws and Constitutions of the Kingdom to determine but since their Voting him whom you your self cannot deny to have been their lawful King to have abdicated the Throne when indeed he had not and then not only to declare the Throne vacant but also to place those therein whom you your self dare not affirm to be the next Heirs by blood are things quite out of their Element and beyond the Sphere of their Authority and though I grant that they may sometimes judge concerning the Succession of the Crown and who is next heir to it yet is this only to be understood as far as they judge according to the Common Laws of the Succession already laid down at our last Meeting and not when they go quite contrary to them and therefore though I own the Parliament might justly declare Henry the VIth to be an Usurper and consequently might be deposed yet doth it not therefore follow that they had a like right to declare Edward the IVth an Usurper and to pass an Act of Attainder against him as I confess they did after that Prince had held the Crown for ten years together since that was beyond their power to enact or declare by the fundamental constitution of the Government F. I am sorry your answer can afford nothing new but only the repetitions of the same false Principles and Arguments that have been already so often answered in our former Conversations for in the first place I have sufficiently proved that neither the Laws of God nor Nature have ordain'd any such thing as a lineal Succession of Kings or any irresistible or unforfeitable power in them which they can never fall from let them act never so tyrannically for I think I have sufficiently prov'd that not only in absolute Monarchies but also in limited Kingdoms where the King has not the sole Supream power a King may not only be resisted but may be also declar'd to have abdicated or forfeited his right to Govern in case of any apparent obstinate violations of the fundamental Constitution in those great points that make that Government to differ from a despotick Monarchy and that if they had not this right all their liberties will signifie nothing and their Lives Liberties and Estates would lie wholly at the Kings mercy to be invaded and taken away when ever he pleas'd I am forced to repeat this to remind you of the Reasons upon which those Principles are founded and therefore you do but fall into your old mistake when you affirm that by the fundamental constitution of the Government the Great Council of the Nation which was but the same with our late Convention had no power to declare the King to have broken the Original Contract between him and his People Therefore what you say concerning the want of Authority in this Great Council to declare the Throne vacant is altogether precarious unless you could also prove that it is against the fundamental constitution so to do whereas I have so far proved the contrary that the Throne has been declared vacant no less than eight times since the Conquest which makes up almost a third part of the Successions of all the Kings and Queens that have Reigned since that time so that if the custom and practice of Great Councils or Conventions and those not condemn'd by any subsequent Statutes can be the only Rule or Guide for the Consciences of all the Subjects of this Nation we have certainly had that as solemnly declar'd now as in any other Great Council or Convention that has been ever held in this Kingdom but as to what you say concerning the want of power in those Councils to declare or recognize who are the right Heirs to the Crown but not to make them so is very pleasant since that were all one as if two Men who contended for an Estate should bring the matter before the House of Peers and when that was done and the Case solemnly heard by Council on both sides that party who had lost the Cause should declare that this Court tho' the highest in the Kingdom had no power to judge in prejudice of himself who had an undoubted right to the Estate which were only to give the Lords power to give judgment only for one side and why the other Party if the judgment had been given against him should not have made the like Plea I cannot understand So that such a Judgement would be altogether in vain Therefore to apply this to our purpose though the Parliament being prevail'd upon by the strength and faction of the Duke of York did as I granted at our last Meeting declare that his Title could in no wise be defeated yet Henry the VIth being then in the Throne they might have certainly given a contrary judgement if they had pleased and then I suppose the Title of the House of York might have been so defeated as that the Nation had never been troubled with it again and so also when by the power of Edward the IVth a Parliament met and declared him to be lawful King from the time of his Fathers death yet when the said King was driven out of the Kingdom by the Earl of Warwick and King Henry the VIth restored to the Throne a Parliament was summon'd in the 49th of this King wherein Edward the IVth was declared an Usurper and himself attainted and to which Parliament the Duke of Clarence Brother to King Edward the IVth is first Summoned as well as the Arch-Bishop of Canterbury with all the other Bishops Temporal Lords and Judges of whom Littleton the Authour of the Book of Tenures was one so likewise upon King Edwards recovery of the Crown the year following King Henry was again deposed and a Parliament called wherein all the Dukes Earls and Barons with the Arch-Bishops of Canterbury and York and most of the rest of the Bishops Swore to Prince Edward after called Edward the Vth as Right Heir of the Crown Now I desire to know what other Law or Rule there was then for the Subjects Allegiance but the solemn judgement or declaration of the Estates of the Kingdom assembled in Parliament since their Acts and Judgements were in this dispute directly contradictory to each other so that it is evident
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