no Reason since they are only Declarative and Persuant to the late Act of the Convention whereby after the Declaration of the Rights and Liberties of the Subjects King William and Queen Mary are Declared That they were and of Right ought to be by the Laws of this Realm our Soveraign Leige Lord and Lady and King and Queen of England c. M. Well it is late and besides to no purpose to argue this Point any longer since it concerns not me nor any of my Principles what new Oaths you make and impose upon those whose Consciences will never permit us to take them What I have said was only to shew you the Folly and Weakness of such Oaths and Consequently that they can be subservient to no other end then a renewal and aggravation of the Sin of Perjury among us which God forgive this sinful Nation among the many crying Sins it now growns under Yet give me leave still to mind you that you have not given any answer to the Objection I have made concerning the Schism that is like to follow from the depriving of all such Bishops and Clergy that shall refuse to take the new Oath by such a time which Deprivation being uncanonically ordain'd by the meer lay power of the Convention without the authority of a Convocation or Synod such proceedings are sufficient cause for all of our way to break off all Church Communion with you as soon as the Arch Bishop of Canterbury and those other Bishops shall happen to be deprived and new ones put in their Places since all Church Communion wholly depends upon the lawfullness of the Bishops who are the supreme Pastors of our Church F. I forgot to say any thing of this because I said so much to answer concerning the new Oath I proposed as sit to taken by those in places of Trust but since you desire it I shall say somewhat though not so large as I could speak upon this Subject First I must tell you it is altogether a new Notion and contrary to the Doctrine of the Church of England whereby it is declared that the Kings of this Realm have the same Power with Persons in the Church as the Kings of Iudah and Israel had among the Jews therefore you must either depart from the Doctrine of this Canon or else the King and Parliament who are certainly as much the supreme Power of the Nation as the Kings of Iudah were to that of the Jews may as well deprive the Arch Bishop of Canterbury for Example for Treason or Disobedience to the Government as Solomon did Abiathar for Anointing his Brother Adonijah King and besides this I can shew you many Examples of the like power exercised by the Roman and Greek Emperours in depriving and banishing not only Bishops but Patriarchs for the matters of State without any Sentence or Judgment of a Synod or general Council of other Bishops if your Doctrine were true the poor Greek Church would be in a sad Condition and all her Members in a perpetual Schism for some Ages past that there hath been scarce any Canonical Elections or Deprivations of the Patriarchs of any of the great Seats viz. Constantinople Antioch and Alexandria but they are all nominated and put in and out at the Grand Seigniors nay Visiers Will and Pleasure as any Man who will but peâ—uâ—e Sr. Paul Rycauts account of the Greek Church may easily see But indeed you fall into this Errour for want of considering the original of Bishop-pricks in England and the true meaning of this intended Deprivation for pray take Notice that though Episcopacy was setled in England in the time of the Britains yet all the Seas and Jurisdictions of the Bishops of this Realm in respect of such and such Diocesses have been wholly oweing to the bounty of our Kings and the Authority of our Great Councils which were also confirmed by the Popes Bulls and since the Reformation to the Authority of the King and Parliament as were all the Bishop-pricks erected in Henry the VIII ths Reign so that let the Bishops meer Spiritual Power of Ordaining Excommunicating c. be derived immediately from Christ if you please yet the Exercise thereof as limited and appointed to this or that Precint or See is as meer a temporal Institution as that of Parishes which was not introduced till long after Christianity was settled in this Island So that the Exercise of this Ecclesiastical Jurisdiction within the See of Canterbury for Example being a Civil Institution it hath anciently belonged to Supream Powers not only to confer this Power as appears by their ancient Investitures of our Bishops per Baculum Annulum but also to take it away for Treason or Disobedience against the State since the King and Parliament do not pretend to deprive them of their Spiritual Character or Episcopal Orders but only of their right to exercise it within such Sees or Diocesses thus although the Arch-Bishop of York and the Bishops of London and Wichester with the rest of the Popish Bishops were deprived by Act of Parliament in 1 o th of Elizabeth for not taking the Oath of Supremacy the Queen and Parliament never took upon them to degrade those Bishops of their Episcopal Orders but only to forbid their acting as Bishops in their former respective Diocesses and therefore I doubt not but that notwithstanding this Depriviation those Bishops might if they had pleased have ordained Priests and confirmed Children and that such Ordinations and Confirmations would been good even in our Protestant Church if such Priests or Children had afterwards turned Protestants since 't is very well known that the Church of England ownes the orders of the Church of Rome to be valid which is more then we do for the ordinations of meer Presbyters coming from those Protestant Countrys where there are no Bishops at all the like I may say for their Confirmations too But pray Sir consider how upon your Principles this Schism can be so Universal as to influence and involve all England in it for if the Arch Bishop of Yorke for example will rather take this Oath then suffer Deprivation and that the rest of the Bishops of his Province should be of the mind as I am credibly informed they will pray tell me how the People of that Province being a distinct Church or body Ecclesiastical from that of Canterbury as to all Spiritual matters as having a distinct Convocation of their own can ever be involved in this Schism by the deprivation of the Arch Bishop and Bishops of the Province of Canterbury And pray also tell me in the next place how all the Members of the two Universities can ever be involv'd in this intended Schism since they owe no Canonical Obedience to the arch-Arch-Bishops of Canterbury or York nor to any other Bishop but only to their Chancellour and the Vice-Chancellour as his Deputy who exercise all Ecclesiastical Jurisdiction within the said Universities and therefore their Church
Cowardice of his Souldiers F. Methinks Sir there is no such great cause of wonder much less of concern in all this For who can much admire that a Prince should be thus used who had not only provok'd a Powerful Enemy to invade him from Abroad but by industriously labouring to introduce Popery and Arbitrary Government at Home had lost the Hearts of almost all except his Popish Subjects insomuch that many of his own Souldiers were so terrified with the Thoughts of being discarded like the Protestant Army in Ireland to make room for Irish and French Papists that they had very little Courage to Fight when they saw Casheering was the best Reward they could expect if they proved Victorious And who can much pity a Prince who would rather loose the Affections of his People than displease a few Priests and Jesuites So that if he suffers he may thank himself it not being Religion but Superstition which brought this Misfortune upon him Since the King having got a Prince of Wales and as it is highly suspected joined himself in a strict League with France for the Extirpation of Hereticks it laid an absolute necessity upon the Prince of Orange to come over that by the Assistance of the States of Holland he might not only relieve us but vindicate his own and her Royal Highness his Princessâ—s Right to the Succession and secure his Countrey from a dangerous and powerful invasion which it was threatned with both by Sea and Land whenever the Kings of France and England should be at leisure to joyn their Forces to make War upon them which you know all Europe hath expected for above these two Years last past M. These things were somewhat if they could be proved but indeed to deal freely with you I look upon this League and the Story of the Suppositious Birth of the Prince of Wales as meer Calumnies cast out of Wicked and Crafty Men to render the King more odious to his People F. Nay Sir you don't hear me positively affirm either the one or the other since I grant they are not yet made out but whatsoever will consider all the Circumstances of the Birth of this Child cannot but be strongly inclined to believe it an Imposture notwithstanding all the Depositions that are taken to the contrary And as for the French League you may be sure if there be any such thing it is kept very private and yet I must tell you there are very high and violent Presumptions to believe it true or else why should the King of France in a late Memorial to the Pope complain that his Holiness by Opposing his Interest in Europe had hindered him in those great Designs he had for the Extirpation of Heresie by which he must surely intend England or Holland Protestantism being sufficiently expelled out of his own Countrey already And he could not do it in either of the other without the Consent and Assistance of his Brother the King of England Or to what purpose should the King of England joyn with France to ruin Holland and his own Son in Law into the Bargain but to make a War meerly for Religion since neither the Dutch nor the Prince their Stadt-holder gave him till now any just Provocation M. Well however these are but bare suspitions and presumptions at most and not proofs and therefore in a doubtful matter as this is if we ought to judge favourably of the Actions of others much more of Princes whose Councils and Actions tho' private yet are still exposed to the Censure and Calumnies of their Enemies and therefore I hope you will not blame me if I freely confess that I am deeply concerned to see an innocent and Misled King forced to seek his Bread in a Forreign Land and the more since many of the Nobility Gentry and Common People have contributed so much to it by taking up Arms against him and that so great a part of his own Army and Officers should contrary to their Allegiance and Trust reposed in them run over to the Enemy Nay that some of our Bishops and Clergy-men should contrary to the so often acknowledged Doctrines of Passiveâ— Obedience and Non-Resistance not only Countenance but be likewise active in such desperate undertakings and this in-direct opposition to the known Laws of God and this Kingdom which must needs make our Church a Scorn to our Enemies the Papists and a Shame and Reproach to all Protestant Churches abroad and render the people of England odious to all the Crowned Heads in Europe F. Well Sir I see you are very warm and I hope more than the cause deserves You may Judge as favourably of the King's Proceedings and as hardly of the Actions of the Nobility Gentry Clergy and People in this matter as you please But yet I think I can make it as clear as the Day that they have done nothing by joining in Arms with he Prince of Orange but what is justifiable by the Principles of Self preservation the Fundamental Constitutions of the Government and a just Zoal for their Religion and Civil Liberties as they stand secured by our Laws unless you would give the King a Power of making up Papists and Slaves whenever he pleased But as for your Doctrine of an Absolute Obedience without Reserve and the Divine Right of Monarchy and Succession you need not be much concerned whether the Papists laugh at you or no since there are very few of them if any who are such Fools themselves as to believe such futilous Opinions But indeed they have more reason to laugh at you whilst you maintain than when you quit them since as they have only rendered you a fit Object of their Scorn so they would have made you but a more casâ—â— Sacrifice to their Malice For what can Thieves desire more than that those they design to Rob should think it unlawful to resist them And what could the Papists have wisht for more than that our Hands being fotterred by this Doctrine of an indefinite Passive-Obedience our Lives Religion and Liberties should lye at their Mercy Which how long we should have enjoyed whenever they thought themselves â—â—rong enough to take them away the late cruel Persecutions and Extirpations of the Protestants in France Savey Hungary and other places have proved but too fatal Examples and therefore no wonder let your high-flown Church-men write or preach what they please if the Body of the Nobility Gentry and People of England could never be perswaded to swallow Doctrines so fatal to their Religion and destructive to their Civil Rights and Liberties both as Mon and Christians And as for the Antiquity of these Doctrines I think they are so far from being the Antient Tenets of the Church of England that they are neither to be found in its Chatechism Thirty Nine Articles or Book of Homilies taken in their true Sense and Meaning thô indeed there is something that may tend that way in some of the late Church-Canons about
fifty years ago but I do not look upon them as the Antient Establisht Doctrine of our Church because these Canons are not confirmed but condemned by two Acts of Parliaments and consequently never legally Established as they ought to be by the publick Saction of the King and Nation Our Old Queen Elix Divines such as Bishop Bilson and Mr. Hooker being wholly ignorant of these Doctrines nay teaching in several places of their Writings the quite contrary Noâ— was this Doctrine of absolute Subjection and Non-Resistance ever generally maintained until about the middle of King Iame's Reign when some Court Bishops and Divines began to make new Discoveries in Politicks as well as Divinity and did by their Preaching and Writings affirm that the King had an absolute Power over Mens Estates So that it was unlawful in any Case to disobey or resist his Personal Commandâ— if they were not directly contrary to the Law of God as may appear by Dr. Harsâ—et then Bishop of Chichester his Sermon upon this Text Give unto Caesar the things that are Caesar's wherein he maintained That all the Subjects Goods and Money were Caesar's that is the Kings and therefore were not to be denied him if he demanded them for the publick use which Sermon thô order'd by the Lords and Commons to be Burnt by the Hangman yet was so grateful to the Court that he was so far from being out of Favour for it that he was not long after Translated to Norwich and from thence to the Archbishoprick of York So likewise about the beginning of the Reign of King Charles the First Dr. Manwaring preached before him the substance of whose Sermon was somewhat higher than the former viz. That the King was not bound by the Laws of the Land not to impose Taxes or Subsidies without the Consent of Parliament and that when they were so imposed the Subjects were oblieged in Conscience and upon pain of Damnation to pay them which if they refused to do they were guilty of Disloyalty and Rebelion For which Sermon he was Impeacht by the Commons in Parliament 4. Car. I and thereupon Sentenced by the House of Lords to be Disabled to hold or receve any Ecclesiastical Living or Secular Office whatever and also to be Imprisoned and Fined a Thousand Pound Notwithstanding all which we find him presently after the Parliament was disolved not only at Liberty but also presented by the King to a Rich Benefice in Essex and not long after made Bishop of St. Davids So likewise one Dr. Sibthorp about the same time preached an Asâ—ize Sermon at Northamtâ—n on Rom. 13.7 wherein he maintained much the like Doctrines as that it was the King alone that made the laws and that nothing could excuse from an active Obedience to his Commands but what is against the Law of God and Nature And that Kings had Power to lay Pole Money upon their Subject Heads But this much I have read that this Sermon was Licensed by Dr. Laud then Bishop of St. Davids because Archbishop Abbot had refused to do it as contrary to Law for which he was very much frwoned upon at Court and it is supposed to have been one of the main causes of his Suspension from his Arch-Episcopal Jurisdiction which not long after happened But as for this Siothâ—rp tho he lived long after even till the Kings Return yet being as Archbishop Abbot describes him a man of but small Learning I cannot learn that he was ever preferred higher than the Parsonages of Barchley and in Northamptonshire But I find a New Doctrine broach'd by some Modern Bishops and Divines about the middle of the Reign of King Iames the first That Monarchy was of Divine Right or Institution at least so that any other Government was scarce warrantable or lawful and of this New Sect we must more especially take notice of Sir R. F. who hath written several Treatises to prove this Doctrine and which is worse That all Monarchs being Absolute they cannot be limited or obliged either by Oaths Laws or Contracts with their People farther than they themselves shall think fit or consistent with their supposed Prerogatives of which they only are to be the Sole Judges So that whoever will but consider from the Reign of our four last Kings what strong inclinations they had to render themselves Absolute and that few Divines or Common or Civil Lawyers were preferr'd in their Reigns to any considerable Place either in Church or State who did not maintain these New Opinions both on the Bench and in the Pulpit You need not wonder when the Stream of Court Preferment ran so strong that way if so many were carried away with it since it was but to expose themselves to certain misery if not to utter ruin to oppugn it All who offered by Speaking or Writing to maintain the contrary being branded with the odious Names of Puritans Common-wealths-men Whigs c. Some of whom you may remember were not long since imprisoned Fined nay Whipt for so doing So that it was no wonder if there were but very few to be found who durst with so great hazard speak what they thought nor could any thing but the imminent danger upon our Laws Religion and Properties proceeding from the Kings illegal practices have opened the Eyes of a great many Noblemen Gentlemen and Clergy who contrary to the Opinions so much lately in vogue did generously venture both their Lives and Estates to joyn their Arms with the Prince of Orange against the King's unjust and violent Proceedings M. I do not doubt notwithstanding all you have said to prove before I have done these Doctrines of Non-Resistance and of the Divine institution of Monarchy to be most consonant to the Word of God and to the Doctrine of the Primitive Church and also to that of our Reformed Church of England Nor were those Divines you mention in K. Iames the First 's time the Authors or inventers of these Doctrines which were publickly received and Decreed by both Houses of that Convocation which began in the first Year of K. Iames and continued till the Year 1610. as appears by divers Manuscript Copies of the Acts or Decrees of this Convocation the Original of which was lately in the Library founded by Dr. Cousins late Bishop of Durham besides a very fair Copy now to be seen in the Archbishops Library at Lambeth which if you please to peruse you may be quickly satisfied that the Church of England long before ever Sir R. F. writ thoses Treatises you mention held that Civil Power was given by God to Adam and Noah and their Descendants as also that absolute subjection and obedience was due to all Soveraign Powers without any resistance as claiming under those Original Charters These Doctrines being there fully and plainly laid down and asserted as the Doctrines of our Church So that you deal very unjustly with the memory of those Divines as also of Sir R. F. to
make them the first breachers of it whereas you may find that it was the opinion of the whole Convocation for many years before ever those Divines or that Gentleman began to Preach or write upon this subject Nor were these the only men who maintained these Principles but Archbishop Usher and Bishop Sanderson whom I suppose you will not reckon among your flattering Court Bishops have as learnedly and fully asserted those Doctrines you so much condemn as any of that party you find fault with and have very well proved all resistance of the Supream Powers to be unlawful not only in absolute but limited Monarchies Of the Truth of which you may sufficiently satisfie your self if you will but take the Pains to read the Learned and Elaborate Treatises written by those good Bishops viz. The Lord Primate Usher's Power of the Prince and Obedience of the Subject and the Bishop of Lincoln's Preface before it as also the said Bishop's Treatise de Iura nouto written whilst he was Doctor of the Chair in Oxford F. I must beg your pardon Sir if I have never yet seen or heard of that Convocation Book you mention much less of the opinions therein contained since there is no mention made of their proceedings in any History or Record of those times either Ecclesiastical or Civil as I know of But this much I am certain of That these Determinations or Decrees you mention call them which you please never received the Royal Assent much less the confirmation of the King and Parliament one of which if not both is certainly requisite to make any opinion either in Doctrine or Discipline to be received by us Lay-men for the Doctrine of the Church of England otherwise the Canons made in 1640 would oblige us in Conscience tho' they stand at this day condemned by Act of Parliament so that however even according to your own Principles you cannot urge this Book as the Authoritative Doctrine of the Church of England unless their Determinations had received the Royal Assent which you your self do not affirm they had for you very well know that as in Civil Laws no Bill is any more than waste Parchment if once the King hath refused to give his Royal Assent to it so likewise in Spiritual or Ecclesiastical matters I think no Decrees or Determinations of Convocations are to be received as binding either in points of Faith or Manners by us Lay-men till they have received the confirmation of the King and the two Houses of Parliament or otherwise the consequence would be that if the King who hath the nomination of all the Bishopricks and Deaneries as also of most of the great Prebendaries in England of which the Convocation chiefly consists should nominate such men into those places which would agree with him to alter the present establisht Reformed Religion â—n Governmenâ— and to bring in Popery or Arbitrary Power the whole Kingdom would be obliged in Conscience to embrace it or at least to submit without any contraditioâ— to those Canons the King and Convocation should thus agree to make which of how fatal a consequence it might prove to the Reformed Religion in this Kingdom this Kings choice of Bishops and Deans such as he thought most fit for his turn would have taught â—s when it had been too late M. You very must mistake me Sir if you believe that I urge the Authority of this Book to you as containing any Ecclesiastical Canons which I grant must have the Royal Assent but whether that of the two Houses of Parliament I very much question since the King without the Parliament is Head of the Church and diverse Canons made under Queen Elizabeth and King Iames are good in Law at this day tho' they were never confirmed by Parliament But I only urge the Authority of this Book to you to let you see that these Doctrines are more Antient than the time you prescribe and also that the Major part of the Bishops and â—lergy of the Church of England held these Doctrines which you so much condemn long before those Court Bishops or Divines you mention medled with this controversie and I suppose we may as well quote such a Convocation Book as a Testimony of their sense upon these subjects as we do the French Helvetian or any other Protestant Churches Confessions of Faith drawn up and passed in Synod of their Divines tho' without any confirmation of the Civil Power F. If you urge this Convocation Book only as a Testimony and not Authority I shall not contend any further about it but then let me tell you that if the Canons or Decrees of a Convocation though never so much confirmed by King and Parliament do no further oblige in Conscience than as they are agreable to the Doctrine of the Holy Scriptures sure their determinations without any such Authority can only be look'd upon as the Opinions of so many particular private Men. And tho' I have a very great Reuerence for the Judgments of so many Learned Men yet granting those Doctrines you mention to be contained in this Book I think notwithstanding that we may justly examine them according to the Rules of Reason and express Testimonies of Scripture by either of which when I see you can convince me of the falshood of my Tenets I shall count my self happy to be beâ—â—er informed But as for those Treatises of Bishop Usâ—er and Bishop â—anderson which you now mentioned I must needs confess they are learnedly and elaborately writen and tho' I am against Rebellion as much as any man and do believe that subjects may too often be guilty of it yet am I not therefore convinced that it is absolutely unlawful in all cases whatsoever even in the most Absolute and Arbitrary sort of Civil Government for the People when violently and intolerably opprest to take up Arms and resist such unjust violence or to join with any Foraign Prince who will be so generous as to take upon him their deliverance So that though I freely acknowledge that those good Bishops you mention were very Pious and Learned men â—im â—hat I bear great reverence to their memories yet doth it not therefore follow that I must oâ—â— them to be Infallible or as great Polititians as they were Learned Divines or that they understood the Laws of England as well as they did the Scriptures or Fathers and perhaps there may be a great deal more said on their behalfe than can be for divers others who have since Wâ—â—een and Prâ—â— so much upon those subjects for if you please to consider the times of their writing those Treatises you will find them written about the beginning or middle of the late Civil Wars which they supposed to be begâ—n and carried on contrary to all Law and Justice under the pretenced Authority of the two Houses of Parliament against King Charles the First and therefore it is no wonder if they thought themselves obliged to Write very high for the Prerogatives
quit his Fathers Family and joyning himself to his Wife may set up another of his own But as for the Children that were begotten between them tho' I grant they might be intended both for the comfort and assistance of him and her yet I have already proved that the Parents are more chiefly intended for their Childrens Propagation and Preservation than the Children are for their Interest and Happyness Your fouth consideration is only a supposition of the question which is yet to be pâ—oved that Eve was under an absolute subjection to Adam after the Fall I have already proved this supposition not to be true and therefore the consequence as to the Children is false likewise Your fifth is rather an interrogation than an Argument whether Children ought not to be and have not always been subject to their Parents all over the World In answer to which I grant that it is true that they have ever been so tho' not in your sense For I hold this subjection neither to be servile or absolute nor yet perpetual as long as they live but in reply to this limitation of the Power of Parents over their Children both in its extent and duration you tell me this is purely owing to the Civil Laws of Nations and not to the Laws of Nature and for a proof of this you produce Gods own people the Jews for an example that the power of the Father over his Son was not determined but by his Death But your self confesses that he could not exercise this Power of Life and Death but in the presence of the Magistrate the circumstances of which if they be considered will rather make against you for first the Father could not have this rebellioâ—s Son put to Death till he had accus'd him before the Elders of the City that is the Judges who were establisht in every Precinct who upon a solemn hearing were to sentence such a rebellious Son to be stoned to Death by all the People of the City where you may observe that the Father had no power to put him to Death himself and therefore acted in this case as an accuser or a witness not as a Judge But if you 'l believe Maimonides one of the most Learned of the Jewish Rabbins he will tell you that by the Municipal Law of the Jews this power of the Father did scarce extend beyond the thirteenth year of the Son's Age after which the Son was reckoned Adult and Emancipated from his Fathers Powers and could not after that incur this punishment of a Stubborn and Rebellious Son and a Father who did but strike his Son after he was Adult incurr'd Excommunication for that he offended against the Law And tho' I grant that the Nations you mention did exercise a Power of Life and Death over their Wives and Children yet will not the Practice of some particular Nations tho' never so much civiliz'd amount to a proof of a Law of Nature which is only to be made out from evident Rules of Right Reason and the great end of this Law the common good of Mankind and especially when against the Examples of those Nations which you produce I can likewise set those of many more Nations where this Custum was not allowed after once Civil Government was establisht And as for the Romans themselves amongst whom the greatest Examples of this kind are to be found they will not all of them amount to above three or four in six or seven hundred years and then tho' there might be very good cause for it yet the People of Rome never so much esteemed or loved such Fathers after they had put their Sons to Death as they did before but counted them too severe and cruel for so doing And you read in Valerius Maximus and Seneca that they killed Erixiin a Roman Gentleman for whipping his Son to Death like a Slave so much did they abhor all such Cruelty of Parents towards their Children and afterwards when by the General Corruption of Manners amongst the Romans Fathers grew more cruel to their Children and often put them to Death without cause Those of your Faculty suppose that some of the Roman Emperous tho' it is uncertain who took away this Power from Fathers and made it as it is now among us Murder for a Father to put his Son to Death tho' others since there are no particular Edicts to be found concerning this matter do suppose this Law to be changed by degrees and to be left off by common consent of the Romans themselves for it seems dangerous to grant to a private person the cognizance of any crime which might belong to publick Authority and they thought it better to strengthen both the Paternal and Marital Power by other Laws than putting to Death And therefore Simplecius upon Epictetus his Enchiridion says that the Romans allowed Fathers this Power because they thought they might very well trust their Natural Affection to their Children for the exercise of that Power of selling them or putting them to Death which 't was supposed they would rarely use unless compelled by extream necessity or unpardonable crimes and therefore if a Father would put his Son to death he was to do it with his own hands that he might suffer as well as his Son but when this render affection â—oo failed it was no wonder that the Roman Emperors did not think it for the common good of their People to trust Fathers with this Power any longer which they had hitherto exercised not so properly by right of Fatherhood as that of the Master of a Family who governed his Servants and his Sons by a like Authority To conclude I cannot but observe how slyly you wave my objection against the Divine Institution of Monarchy for tho' you seem loth expresly to condemn all other Governments as unlawful yet the consequence will be the same upon your principles For if it be a good argument which some make use of for the Government of the Church by Bishops because that Government being supposed by them to have been instituted by the Apostles by Divine Precept therefore that no other Government but Episcopacy can be lawful or any true Church where that Government is not in use so the same argument will likewise hold in Civil Governments that all others must be unlawful if Monarchy alone were ordained by God and that all other forms whatsoever began from Rebellion or the Fancies of Men. M. To answer what you have said in the first place I cannot so slightly pass over this argument of the Law of Nations by which I supposed the Power of Fathers over the Persons of their Children is sufficiently established and from whence also it appears that among the Iews as well as Romans the Children were lookt upon as part of the substance of their Father and consequently that they had a perpetual right in their Persons as long as they lived that the Romans had the power of selling their Children
this point without better consideration but methinks you have not yet fully answered one of my main Arguments to prove the Power of Life and Death to proceed from God alone and therefore must have been conferred as first on Adam since no Man hath a Power over his own life as I said before and therefore cannot have it over that of others F. I thought I had already as good as answered this doughty objection when I had yielded to you that neither private Men nor Masters of Families have any Right to defend their own lives much less to take away those of others but as it is granted them by God in the Law of Nature in order to the procuring the great end of it viz. the happiness and propagation of Mankind which I own could not in this lapsed and depraved State of Nature we now are in long subsist without such a Power Yet I think I have already sufficiently proved that we have no need to recur to I know not what divine Charter granted by God to Adam or Noah and from them derived to all Civil Magistrates that ever have been or shall be in the World the consequence of which would be that no Sentence of Death could be justly given against any Man but in such Kingdoms or Common-wealths who own this Authority as conferred on them by God in Adam or Noah from which they must deride their Title to it Now I desire you would shew me how many Kingdoms or Common-wealths there are in the World who ever heard of much less owned this Divine Charter this fine notion yea scarce reaching farther than some few Divines and high Royalists of our own Island But be it as it will the Antecedent or first Proposition is not true that no Man in any case whatsoever hath power over his own life and therefore neither is your consequence for I suppose that for the same End for which the Civil Powers may take away another Man's life viz. in order to the greater good of Mankind of which my Religion or Countrey is a part I am likewise Master of my own and may lay it down or expose it when I think it can conduce to a greater good than my single life can amount to And therefore the Example of Codrus the Athenian King is highly celebrated by all ancient Authors and is not condemned by any Christian Writer that I know of for Exposing himself to certain death to gain his Citizens the Victory the loss of which would have been the ruin of the State And in the first Book of Maccabees Chap. 6.43 which thâ— it be not Canonical Scripture yet is allowed to be Read in our Churches as containing Examples of good manners you may Read that Eleazar the younger Brother of Iudas Maccabeus is there highly commended for his valour in killing the Elephant on which the supposed King Antiochus was mounted that he might thereby destroy him likewise tho he might be assured of his own death by the Elephants falling upon him And the zeal for the Christian Religion amongst the Primitive Christians was so great that we may read in Tertullian and divers Ecclesiastical Historians of whole Troops of Martyrs who tho unaccused yet offered up their lives at the Heathen Tribunals to a voluntary Martyrdom and farther Eusebius himself doth not condemn but rather commends some Primitive Christians that being like to be taken by their Heathen Persecutors cast themselves down head long from the top of their Houses esteeming as he their tells us a certain Death as an advantage because they thereby avoided the cruelty and malice of their Persecutors I could likewise give you if it were not two tedious several other Examples of Ancient Martyrs who have given up themselves to certain Death to save the Lives of some of their friends or else of Christian Bishops whom they lookt upon as more useful to the Church than themselves and which St. Paul himself does likewise suppose to be Lawful when he tells the Romans That the scarcely for a Righteous Man would one dye yet per adventure for a good Man somâ— would even dare to dye that is a Man highly beneficial to others And the same Apostle in the last Chapter of this Epistle returns thanks to Priscilla and Aquila not only on his own behalf but also for all the Churches of the Gentiles because they had for his Life laid down their own Necks that is hazarded their lives to save his and where ever they might have thus exposed them surely they might have lost them too And therefore I think I may with reason affirm that in most Cases where a Prince or Commonwealth may command a Man to expose his Life to certain destruction for the publick good of his Religion or Countrey he hath power likewise to do it of his own accord without any such command the Obligation proceeding not only from the orders of his Superiour but from that zeal and affection which by the Laws of God and Nature he ought to have for his Religion and Country even beyond the preservation of his own Life M. Well I confess that this that you have now said carries some colour of reason with it and is more than I had considered before But pray resolve me one difficulty more which still lies upon my mind By what Authority less than a Divine Commission from God himself revealed in Scripture do Supream Powers take upon them to make Lawâ— And that under no less penalty than Death it self against such offences as by the Laws of Nature do no ways deserve Death such as Theft Counterfiting the publick Coyn with divers other offences needless here to be reckoned up And if a Father as you will not allow him hath no Right over the Lives or Persons of his Wife and Children I cannot see how a Master of a separate Family can have any such Power more than his Wife or any other of the Family and the Scripture seems to countenance this Power of punishing for Murder to be in any that will take it upon them and therefore you see Cain said whoever meets me will slay me And God tells Noah whoever sheddeth Mans Blood by Man shall his Blood be shed without restraining it to any Man particularly who is to do it F. This Objection is easily answered if you please to consider what you your self did a good whâ—â—â— since urge to me that God endowed Adam with so much Authority as should enable him to govern his own Family and Children as long as he lived which I readily granted you and I only differed in the manner of its derivation you affirming it to proceed from a Divine Charter or Grant by Revelation conferred upon him by God and I maintaining that both he and every other Master of a separate Family derive it only from Gods Natural and not Revealed Law which if it be well proved such Masters of Families as also all Civil Powers whom I suppose to be endued
Spirits of Fortitude and the Greeks call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which we render Boldness of Confidence and which did often transport them to say those things to persecuting Kings or their Governours which had been insufferable to any man else on another occasion and this was not only in words but Actions too Thus when the Emperours Numerianus or Deâ—â—us for my Author doth not know which it was would have entred into the Cathedral Church of Antioch in time of Divine Service Babylus the Bishop standing in the Church-Porch shut the Door against him telling him that He would not suffer him who was a Wolf to enter into the Sheep fold of Christ. And we also read that Valentinian who was afterwards Emperour being then an Officer under Iulian and wanting upon him to the Door of a Heathen Temple gave the Priest a Box on the Ear because he offered to sprinkle him being a Christian with his Prophane Holy Water Yet I confess Theodoret commends the Action and says they after chose that Valentinian Emperour him who had before struck the Priest And therefore I wonder to what purpose you quote such Passages â—ut of Antient Writers and the Actions of Primitive Christians which if you are a Man of that Loyalty or good Breeding as I hope you are you will not your self approve of F. I do not tell you I quote them for our Imitation but only to let you see that the Actions of those you call Primitive Christians and Fathers are not by your own Confession to be the only Pattern for us to follow so that indeed their Practices can signifie nothing to us unless the Principle they acted by were suitable to the Laws of God and right Reason unless you will have no Precedents to be good but what shall suite with your Humour and those Principles you have already imbibed and if Babylus the Martyr might without any sin shut the Emperour out of the Church by Force and that Valentinian was commended for striking the Emperours Priest on the Face I think here are by your own Confession two sufficient Primitive Examples of Resistance both of the Emperour's Person as also of those commissioned by him as certainly this Priest was or else he could have had no Right to have exercised his Idolatrous Worship after the Temples had been shut up under Constantine and Constantius But I now desire your Patience to let you see that not long after these times the Christians as well Souldiers as others were not so through paced in these Doctrines of Passive Obedience and Non-resistance as you would make them for it was by the Rebellion of the Christian Legions in Britain that Maximus took the boldness to Rebel against the Emperour Gratian and making himself Emperour marched into Gaul against him where the poor Prince being also deserted by his Christian Army and forced to fly away with a few followers was not long after murdered by Andragathius after which this Maximus had so good Success that he possessed himself not only of Britain but Spain Gaul and part of Germany and was also acknowledged for Emperour by all the Subjects in those Provinces as well Clergy as Laity tho' the Emperour Valentinian the Son of Gratian was then alive All the Bishops making their Applications to him and desiring him to call a Council in Gaul to suppress the Heresie of Priscillian which he did in Complyance with their Desires wherein they condemned him and his Followers of Heresie who afterwards at the Instance of Ithacius and some other Bishops by this Usurping Emperour were condemned with diveâ—s other of his Followers to suffer Death being the first that ever suffered that Punishment for Heresie This Maximus after five years Reign was overcome and killed in Battle By the Emperour Theodosius who restored that part of the Empire to Valentinian the II. And farther to let you see that the common People of these Primitive Times tho' they were not able to make Emperours so well as the Army yet they were not so streight-laced as not to Resist the Emperours Orders whenever they thought they entrenched upon their Religion or that they went about to persecute them for it I can give you a great many Examples out of Ecclesiastical History of which I will only here set down some few The first is out of Socrates Eccl Hist. Book 2 d. when the Emperour Constantius at the Instigation of Macedonius the Arian Bishop had perswaded him to send some Bands of Soldiers into Paphlagonis to terrifie the People â—punc and make them turn Arrians The Inhabitants of Mantinium enflamed with a Zeal for the Orthodox Religion marched against the Soldiers with a good Courage and having provided themselves with the best Arms they could they gave them Battle in which few or none of the Emperour's Soldiers escaped And tho' I confess the Historians say these People were most of them Novatians yet this Action ought not to be condemned only for that Cause since they were rather lookt upon as Schismaticks than Hereticks and were in all things else except that one point about reconciling the lapsed very Orthodox but in all other things were more strict and scrupulous than the Catholicks themselves So likewise when the Orthodox at Constantinople had chosen Paul for their Bishop but the Emperour resolving to make Macedonius Bishop in spite of their Teeth and had sent Philip the President to fix Macedonius in that See as he was about to give him Possession of the Church tho' they were guarded all along with Soldiers Yet when they came near the Door the People made that Resistance that they could not get in till several thousands of them were killed And some years after when the Emperour Theodosius the II. had banished St. Chrysostome about the Year 404. The People flocked together about the Palace so that the Emperour to pacifie them was forced to recall him from his Banishmen And when St. Ambrosâ— was banished by Valentinian at the Instigation of his Mother Iustina the People did Resist such as came to carry him away and such was their Zâ—al for the Truth and Love to their Injured Bishop that they chose rather to lose their Lives than suffer their Pastor to be taken away by the Soldiers that were sent to drag him out of the Church I could give you more Instances of this kind from the e Primitive Times but these may be sufficiâ—nt to shew you of how little account the Doctrine of Non-Resistance was in those times aftâ—â— Christianity was once settled and that the People supposed they 〈◊〉 the Law on their side Neither do I produce them as fit to be imitated 〈◊〉 like Cases but only to let you see that the Example of those times you call Primitive are no Sufficient Argument of what was lawful or unlawful to be done M. Since you your self do allow All or however most of these Actions to be unlawful I think you might very well have spared
Arms against their Kings offensive or defensive upon any Pretence whatsoever is at least to resist the Powers which are ordained of God And tho' they do not invade but only resist St. Paul tells them plainly they shall receive to themselves Damnation From which you may plainly see that this Convocation which consisted of as great Men as I think had been for divers Ages do clearly maintain Monarchy to be of Divine Right and Resistance to be in no Case lawful F. I should grant the Canons of this Convocation to be a good Proof of the Iudgment of the Church of England were it not for two very good Reasons I have against them The one I will tell you presently and the other I will keep a while to my self In the first place therefore I suppose you cannot but very well know that this Convocation sate and passed these Canons which likewise received the King's Confirmation after the Parliament that was summoned together with this Convocation was dissolved And I suppose you know that by the Law of England the Convocation having from all times been looked upon as an Appendix to the Parliament was till then always dissolved with it For which Reason all Acts and Proceedings of this Convocation were condemned and declared null and void by the Long Parliament that began to fit the latter End of the same Year And which is more was likewise condemned by the first Parliament after the Restauration of King Charles the second And therefore I think I have very little Reason to own thâ—se Canons as Conclusive M. In the first place I might reply to what you have now said that that very Parliament which first condemned these Canons afterwards ruined the Monarchy it self In the next place that in old time the General or Provincial Synods were not Dependant upon the Assembly of the States at the same time And I likewise farther Answer that these Canons were made and confirmed in a full Convocation of both Provinces of Canterbury and York and the making of Canons being a work properly Ecclesiastical these Canons were made by the Representatives of the whole Clergy of this Kingdom 2. The Canons were confirmed by the King which was all that was of old required in such Cases and tho' the Convocation sate after the Dissolution of the Parliament yet this is not without President even in the Happy Days of Queen Elizabeth not to look back unto Henry the eighth or the Primitive times And as for your Objection that these Canons were reprobated since the Restitution of Charles the II. I say that I quote them not as Law but as the known Sense of the Church of England at that time F. Your first Answer in behalf of these Canons is altogether Invidious For it was not this Parliament that ruâ—ned the Monarchy but only the Rump or Fag end of it after it had suffered divers Violences and Exclusions of Members by the Army and that the House of Lords being by this Iunto voted useless and dangerous were shut out of doors nor is your second Answer any more true for antiently in the Saxons time the Wittena Gemot or Great Counsel and the General Synod made one and the same Assembly consisting both of Clergy-men and Lay men and then all matters of Ecclesiastical Discipline were enacted and confirmed by the King as also the Spiritual as well as Temporal States Nor can you shew me an Example of any General or Provincial Synod which met independently and without the States of the Realm until after the Reign of Henry the first when the Popes took upon them to encroach upon the Royal Authority as also upon our Civil Rights and by his Legaâ—s to call Synods and make Ecclesiastical Constitutions in which neither the King nor the States of the Kingdom had any thing to do And tho' I grant that upon the Reformation the King was restor'd to those Rights as Supream Governour of the Church which the Pope had before usurped yet is not this Act of the Supremacy to be so understood as to give the King all that Power which the Pope unjustly took upon him to execute before for that had been to make their Case no better than 〈◊〉 was before and therefore this Act of the Supremacy being only an Act of Restoration of the King to his Pristine Rights of which that of Calling Synods and Convocations was one of the Principal the King could not call nor continue those Assemblies in any other form or after any other manner than they were held before the Popes Usurpation in taking upon him to call such Independant Synods and notwithstanding what you tell me I am confident you cannot shew me any Precedent of a Convocation so turned into a Synod as this was in all the Reigns of Henry the eighth and Queen Elizabeth But as for your last reply that you quote not these Canons for a Law that obliges the Church but as the Sense of the Church of England at that time if they do not now oblige the Church neither in Point of Belief nor Practice as you may seem to grant it signifieth no more to me what was the Sense of the greatest part of the Members of that Convocation in this matter nor doth it any more shew me what is the true Doctrine of the Church of England than if I should tell you that because in the Reign of Queen Elizabeth the Major part of the Bishops and Clergy of our Church were rigid Calvinists in the Interpretation of that Article about Predestination that therefore Calvinism was then the Doctrine of the Church of England but is not so now And therefore we ought not to take that for a Doctrine of any National Church unless the Synod or Assembly that declares such Doctrine be solemnly and Lawfully assembled according to the Laws and Customs of that Nation or Country wherein they are so declared M. Since you so much contest the Authority of these Canons I shall no longer insist upon them but I shall here shew you out of the Books of Homilies to which all the Clergy in England are bound to subscribe by Act of Parliament as well as to the Articles and Canons as containing wholesome Doctrine and nothing contrary to the Word of God so that these Homilies do indeed thereby become a part of the known Laws of the Land that in these very Homilies there are divers passages so very full and Plain against all Resistance of the Sovereign Powers for any Cause whatsoever that if you are a true Church of England Man as I hope you are you can have no just Reason to deny their Authority The Homily or Exhortation to Obedience was made An. 1547. in the Reign of King Edward the sixth in the second part of which Sermon of Obedience we are told in these Words which I desire you to read along with me That it is the Calling of God's People to be patient and on the suffering side
from that of Hereditary Succession which Mat. Paris was long since aware of when writing of this King he says Rex Anglâ—ae ex Conquestu dicitur tameâ— quod beatus Edwardus co quod haerede caruit Regnum legaviâ— Willielmo Bastardo Duci Normannorum With whom Sir Henry Spellman in his Glossary agrees Willielmus primus Conquestor dicitur quia Angliam conquisivit i. e. acquisivit purchased â—on quod subegit And the learned Sir Iohn Skene in his Book de verborum significatione writes thus Conquestus signifyes Lands quiâ—ilk ony Person acquiriâ— and Possessâ—s privato Iure vel singulari titulo vel donatione vel singulari oliquo contractu And therefore I very much doubt whether or no the Latin Version of these words Apres le Conquest dâ— la verre post subactam tetram be as ancient as the French Original and be not rather the Version of some Clerk or Monk who lived long after But whether these Laws were not intended as well for the benefit of the English as Norman Subjects I appeal to this Title it self tho you have omitted part of it Hae sunt Leges Consuetudines quas Gulielmus Rex concessit Vniverso Populo Angliae post subactam terram So that unless the English were none of the People of England these Laws were as well intended for the one as the other And I appeal to that Charter of King William you have now quoted whether or no it doth not begin Omnibus hominibus suit Francis Anglis by which words certainly the English as well as Normans had an interest in those Laws and Priviledges therein granted I mention this only by the by in answer to what you have said But to return to what I am chiefly concerned to speak of The King 's sole Legislative Power in the first place I shall not deny but as this Kingdom is a limited Monarchy so it is suitable to the Honour and Dignity of the Monarch that all Laws and Constitutions should run in his Name and are often said to be made by him tho in a Political or Legal Sense they could not be made without the advice and consent of his Great Council or Parliament And that this was the custom in the time of William the First as of all others his Successors I need quote only the 55 th Law of this King in these words Prout Statuâ—um est eis scil Liberis hominibus illis à nobis datum concessum jure haereditario in perpetuum per Commune Concilium totius Regâ—i â—â—stri praedicti From whence you may observe that this King could not then make Laws without the Consent of the Common Council of his whole Kingdom And tho he might do many Arbitrary and Illegal things to the prejudice of the Old English Liberties yet this was no more his Right nor any more to be quoted as a precedent than his Seizing upon the Bishops and Abbots Lands and violently taking away the Plaâ—e out of Churches and Monasteries as Historians tell us he did could give him a Right to them I have not much to observe upon the Reign of William Rufus since we have none of his Laws left us if ever he made any But thus much we plainly find from the Historians and especially Eadmerus that he called divors Great Councils of all the Nobility of the Kingdom especially about his difference with Anselm whom it is plain he could not condemn without the Consent of this Great Council But to come to the Reign of King Henry the First it appears plainly by W. Malmsbury and Mat. Paris that he was Elected and Crowned King by the Common Suffrages and favour of the Clergy and People and certainly that Council whose Voteâ— could make a King was also necessary to all such Laws as he was to make And you your self have granted that this Charter of his was made in a Great Council and it appears in Mat. Paris as also in the Laws of this King published by Mr. Lambard Thaâ— the Archbishops Bishops Barons Earls Vicounts or Sheriffâ— Optimates totius Regâ—i Angliae were Witnesses to this Charter And I can tell you of a very ancient Charter of King Iohn which recites that those Laws were made de Communi Consilio Assensu Baronum Regni Angliae It being usual in succeeding Ages at the Coronations of our English Kings to confirm make and ordain Laws de Assensu Baronum Regni vel per Commune Concilium Regni i. e. the Parliament as it was afterwards called As for Henry the Second's Reign it is apparent by the Laws of this King in Spellman's Councils that he granted his Charter in a Great or General Council and consequently they must likewise give their Assents to it as well as to that of his Grandfather Henry the First And tho in the Constitutions of Clarendon the King alone is said to have made on decreed them yet nothing is plainer than that the King could not make them without the advice and consent of his Great Council or else to what purpose were they to be called and if their Assent was necessary certainly they had also a â—â—nd in making those Constitutions But that the King could not condemn any Peer or Great man of the Kingdom in those days without a Legal Tryal in the Great Council of the Kingdom I need go no further than a Council Summoned by Hubert Archbishop of Canterbury as the King's Commissioner in his absence where Log. Hoveden tells us that having shewed the Letters of Earl Iohn to the Bishops Earls and Barons per Commune Concilium Regni definitum est quod Comes Iohannes dissaisietur which interprets that passage you have quoted out of the same Author that the King in a Great Council disseized Gerard Canville and others that is by the Authority and Sentence of the said Council And so likewise in the same sense is to be understood those words you mentioned the King appointed to be given him constituit sibi dari two Shillings on every Plough-land that is he desired it to be given him by them For if he could have taken it without their Consent to what purpose did he propose it there if he could have absolutely demanded it why should he only request or desire it of them So likewise for the Great Council in King Iohn's time nothing is more plain than that they were parties to all the Laws that were made in his time and that even the Great Charter was a Statute to which their Assent was likewise necessary I shall shew you by and by when I come to speak of the Great Chrrter of King Henry the Third and the several Confirmations of it by his Successors But if either William Rufus King Iohn or any other King ever levyed any Taxes upon the People without consent of the Great Council or Parliament it was contrary to our ancient Laws and the Liberties of the Subjects and
were of a much later Date then both the Being and Priviledges of both Houses had but one and the Self-same Original viz. nothing else but the meer Grace or Favour of our Kings I have only added this the better to enforce my former Argument And therefore I desire you would now answer them both together F. I am very glad your last Argument doth not prove so formidable as you suppose for to remove that out of the way I must tell you that you now very much mistake the Question which is not only concerning the Iudicial power of the Peers alone but the Legislative Power of the House of Peers and Commons taken together which is the Subject of our present Dispute And therefore if I should grant you that the Iudicial Power of the Peers is derived wholy from the King Yet would it not at all â—mpaiâ— the Legislative Power of either of the Houses which no Historian or Law-book that I know of that is of any Credit or Antiquity ascribes to the King's Favour as you suppose Nor is it true that the House of Peers can give no Iudgment either Civil or Criminal without the King's Consent or Approbation which is never so much as askt let the Cause be what it will nor is his Presence at such Judgments at all 〈◊〉 but indeed you confound the King's Council in Parliament where I have shewed you already he sat and dispatched divers Causes in a Room or Chambeâ— distinct from that of the Peers with the House of Lords But to come to your main Argument that our Parliament must owe its Original to the King because each of the Estates of which it consists doth so This I hope will prove as weak when throughly considered For first of all I could shew you that those Councils could not owe their Original to the K. since the Saxon Kings rather owed their Original to them by whom they were most commonly Elected as I could shew you out of our Ancient Historians if it were now a proper time for it But as for our Bishops and Abbots c. which anciently made so great a figure in our Saxon Great Councils which I can shew you were then both Civil and Ecâ—lâ—siasticâ—l Assemblies I have already proved out of Tacitus that among the Ancient Germans a part of whom our Ancient English Saxons were their Priests who were their Clergy had a Considerable Authority in their Common Councils And can any body believe that a sort of People so Powerful and Subâ—ile as the Priests then were would lose their Power after they came over into England And we find in Bede that Edwin King of Northumberland consulted with a Council of his Great Mâ—n and Priests concerning his embracing the Christian Râ—ligiâ—n and when it was generally received can any body think that the Christian Bishâ—ps and Clergy would not expect to Succeed in the same Station which the Heathen Priests before held in their Councils And that they enjoyed this Power very early appears from hence that the same Ethelbert could not endow the Church and Monastery of Canterbury Sine Assensu Magnatum Principum tam Cleri quam Populi But indeed you are as much mistaken in the manner of the Ancient Elections of Bishops and Abbots in England For tho I own that at the time of the Conquest and somewhat before there might be no such Elections of them as the Ancient Canons required Yet that this was not so at the first you may see in Bede's Ecclesiastical History and other Historians where it is often mentioned that Bishops were chosen according to the Canons by the Archbishops and Bishops of the Province and Abbots by their Convent Nor was the Kings investing of them per annulum Bacculum then lookt upon as any Derogation to their Canonical Election that being no more than either a Ceremony of investing them with their Temporalities or a token of the King's Confirmation of the Election And that this was so appears by King Edgars Charter to the Abby of Glastenbury wherein he retains to himself and his Heirs jus tribuendi fratri Electo baculum pastoralem But that which so much Scandalized both Ingulf and Malmsbury was a Custom then in use as also long before the Conquest of confirming the Bishop Elect in a full Synod or Parliament And to this Custom Ingulf refers when he tells us A multis annis retroactis nulla eras Electio Prelatorum merè Libera Canonica Sed omnes Dignitates tam Episcoporum quam Abbatum Regis Curia pro suâ— complacentia conferebat Where by Curia Regis you must not understand the King's Court in the Sense it is commonly taken but for the Great Council or Mikel Synod as it was then called and which dispatched Ecclesiastical as well as Civil Affairs in the same Sense as Curia Regis is used by Brompton in the Case of King Edw. and Earl Godwin which you but now cited And in which Sense it is always used by Ingulph when he speaks of the Great Councils under the two Williams I will not be very tedious on this Subject and shall therefore give you but one Authority on this Head and it is that of Walslan who was made Bishop of Worcester in the time of Edw. the Confessor and that as Mat. Paris tells us Vnanimi consensu tam Clâ—ri quam totius Plebis Rege ut quem vellent sibi eligerent praesulem annuente in Episcopum ejusdem loci eligitur And then he goes on thus Nam licet fratrum non deesset electio Yet that there concurred to it Plebis petitio Voluntas Episcoporum Gratia Procerum Regis Authoritas All which amounts to no more than that he was Elected Chosen and Confirmed by the King and all the Three Estates For here is the Petition of the Commons joyned with the Good-will of the Lords and both backt by the Kings Authority Yet that all this did not hinder him from being invested per Baculum Annulum as the Custom then was may appear by the Speech this Bishop Wulstan made at the Tomb of Edward the Confessor whither he went to resign his Pastoral Staff after his being deprived of his Bishoprick by Arch-Bishop Lanfrank and the Synod And the Conclusion of this Speech is remarkable Tibi Scil. Edwardo Baculum resigno qui dâ—disti Curam â—orum dimitto quos mihi commendasti A like Example I could give you of the Election of this Arch-Bishop Lanfrank himself in the Kings Curia or Great Council not long after the Entrance of K. William but for this I refer you to Eadmerus But admitting that the King alone had in those days conferred all Bishopricks does it therefore follow that his Nomination of Bishops in the Pursuance of that Trust which the Kingdom reposed in him did likewise make them to derive all the Right they had to sit in the Great Council from the King 's Sole Authority you might indeed with as much Reason urge
that because the Emperour Theodosius as likewise divers of his Predecessours did Nominate Bishops to Sees therefore they did likewise receive from them all the Authority they had of appearing and acting in General Councils which I am sure you are too good a Church of England Men to affirm M. I must confess I never did so closely examine the Ancient Form of conferring of Bishopricks before the Conquest as I find you have done and I will better Examine your Authorities and if I find this Custom to have been constant and uniform I shall come over to your opinion tho' I doubt it will not prove to have been so general as you would make it since by the Authority you have now brought out of Mat. Paris it appears that it was the King who gave leave to this Election of Bishop Wulstan in the Great Council which I am not yet convinc'd did then take upon them to meddle in Ecclesiastical matters without the Kings Consent but since you have spoken enough concerning the Right and Antiquity of the Bishops sitting in our Great Councils it is time you now speak of the Right of the Peers or Temporal Lords which certainly could have no place there but from the Favour and Concession of our Kings So that whether we consider those Lords in the Saxon time as Rulers of Counties called in old English Earls or Aldermen in Latin Duces or Comites or else as Judges or Counsellors called in old Saxon Wites or Wisemen in Latin Sapientes or lastly as Thanes in Latin Ministri who were either Military Tenants or Civil Ministers or else Officers of the King in his Court or other Employments none of them were Hereditary in those times but all of them either depended upon the King's VVill or else owed their Honours and â—states to his Favour F. I hope notwithstanding the Confidence you put in this part of the Argument that it hath no more weight in it than the former For tho' I grant there was no such thing as Hereditary Earldoms before the coming in of the Normans so that tho both the Earls and Aldermen might have places in the Great Councils ratione officii as the Earl Mareschal of England has at this day and not by Tenure as they did after that time Yet I very much doubt whether they sate there only ratione officii and not as Thanes or by reason of their great Lordships or Estates in Lands but if they sate there as Earls or Aldermâ—n yet might they not be the only Persons that sate in those Councils by that Title For there were besides these Aldermen of Cities and Burrougâ—s who were Elected by those Places and who it is very likely appeared for them as their Representatives in those Councils until by Succession of time those Towns began to send two Burgesses in their stead some Footsteps of which still remain in London where the Aldermen of every Ward are first proposed to be Elected Parliament Men before any other and it is certain that these Aldermen in the most Ancient Cities as London York Lincoln â— are not Elected by any Grant or Charter from the Crown but by an immemoâ—ial Right of Prescription But admitting that these Earls or Aldermen appeared in these Councils by reason of their Offices or Dignities which the King conferred upon them yet doth it not prove that the very Office it self proceeded 〈◊〉 from him since we find the Authority of those chief Men whom 〈◊〉 calls Princes and which Answer these Earls to have been used among the Ancient Germans long before when he tells us in the same Chapter where we cited the rest Iura per Pagâ—â— Viâ—osque Principes reddunt â—enteni Singulis ex plebe Comites Consilium simul auctoritas adsunt Which exactly answers our County and Hundred Courts under the Saxon Kings wherein the Alderman of the County or his Deputy the Sheriff preâ—ided and the Free Men of the County or Hundred were the Iudges of all matters of Fact So that tho the King might appoint these Princes or Governours of Provinces or Counties yet doth it no more follow that they owed their Being and Place in the great Council wholy to his Will than as I said before supposing that the King had Anciently the Nomâ—nation of all the Bishops and Abbots in England that therefore they must also owe their Place in our great Councils or Synods wholy to them since the King performed both of them as a Publick Trust committed to him by the Common Weal in the one case as much as in the other But indeed I think the greatest part of the Members of this Assembly besides Aldermen and Burgesses for Cities and Towns consisted of those Thanes whose Names are often found in the Subscription of the Anâ—ient Charters of our Saxon Kings after the Principes Duces and Comâ—â—â—s and that tho many of them might be the Kings Feudal Thanes or 〈◊〉 Grand Serjeanty or Knights Sâ—rvice in Chief as Mr. Sâ—lden tells us in his Titles of Honour yet that Author no where excludes the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. middle or less Thanes from having Voices in those Assemblies who were afterward Stiled Vavissours or Lords of Townships afterwards called Maunors with Courts annexed to them under the Names of Sac Soc which were the same with our Court 〈◊〉 and Court-Baron Especially if you please farther to consider what a vast nâ—mber of Alâ—dariâ— or Free Tenants there were then who held their Lands Discharged of all Services but the Common Burthens and Taxes of the Nation none but the Lands of the Kings Thanes being held by Military Sâ—rvices before the Entrance of the Normans So that whoever will but consider the Nature of our Saxon Councils will find that the Greatest part of the Persons that appeared there did not owe their 〈◊〉 to their being the King's Ministers or Officers as you suppose but to their holding such Lands and Possâ—ssions as Capacitated them and gave them a Right to have places in those Great Councils And that this was 〈◊〉 we need go no further than the Laws of King Athelâ—â—an where you will find Gâ—mility it self annexed to an Estate in Land For if you will but be pleased to Consult King Athelston's Laws you will there find that if a Villaâ—aus or Câ—eorl could so thrive as to get an Estate of five Hides in Lands he was reckon'd a Thane i. e. a Gentleman or Nobleman as they were promiscuoully reckoned at that time So that tho I suppose there might not be in those times that exact distinction between Peers and Commons as there hath bin established since the coming in of the Normans Yet was it the same thing in effect since the Bishops Earls or Aldermen of Shires tho not enjoyed as Hereditary Honours might make then the Greater Nobility or Peers as the Thanes were the Less Nobility Gentlemen or Freeholders who all appearing in person might together with
the true meaning of these Villani by another Record dated but two years after this of yours viz. 21 Hen. 3. Rex Vic. Kant Salut Sciâ—s cum octavis Sancti Hillarii c. ad mandatum nostrum convenirent apud Westm ' Archiepiscopi Episcopi Abbates Priores Comites Barones totius Regni nostri ut tractatum haberent nobiscum de statu nostro Regni nostri iidem Archiepiscopi Episcopi Abbates Priores Clerici Terras habentes quae ad Ecclesias non pertinent Comites Barones Milites Liberi Homines pro se suis Villanis nobis concesserunt in Auxilium Tricessimam partem honorum From this Record we may observe 1. That the King's Writ was only issued to the Arch-bishops Bishops c. Earls Barons of the whole Kingdom 2. That in the recital of this Tax the Sheriff is told first that the Arch-bishops Bishops c. and the Clergy which had Land not belonging to their Churches a certain sign that they granted by themselves and out of nothing else but that and then that the Earls Barons Knights and Free men for themselves and their Villains granted a thirtieth part of their moveables And from this Record it is also manifest these Liberi Homines had Villanos if not Bondmen Villagars or Rusticks Colonos or Husbandmen at least of whose Estates by publick Assent and for the publick benefit they might in part dispose of which Liberi Homines according to the Tenor of all our Records and Histories were Tenants in Capite and that the Villani mentioned in the other Record of 16. Hen. 3. to have given a fortieth part of their Moveables did grant by their Lords that is their Lords Paramount that were Tenants in Capite did grant for them though they held it not immediately of them but of other Tenants in Military Service which immediately held of the Tenants in Capite who did charge them by publick Taxes hath been shewn from divers Records So that it was frequent in those times to say such and such concesserunt granted such a Taxe that is by those who had Power and Authority to do it for them and without their consent too when those for whom they granted were not capable of being Members of Parliament themselves I could give you more Examples of the like Nature but I will not tire you F. I pray Sir give me leave to answer this long speech and to begin with your Interpretation of this word Fideles First then we are so far agreed that the word Fideles had two or three different Significations First it signified all the Subjects in general in the next place all Vassals or Feudatary Tenants whatever whether of the King or any other Lord as appears by the Passage you have cited out of William of Malmsbury as also divers antient Charters particularly those of King William I. and Maud the Emperess and King Stephen which are divers of them directed Fidelibus suis Francis Anglâ— which cannot mean Tenants in Capite since the Doctor and your self will scarce allow any English Men to have then held Lands in Capite of the Crown Lastly I grant this word Fideles may sometimes signifie the Tenants in Capite of the King all which being so I think you cannot deny that it is not the bare word but the sense it bears in the Places where it is used that must direct us to its true Signification and that the fideles there mentioned to have granted Caruage in the 4 th of Hen. 3. could not be the King's Tenants in Capite only I have given you a sufficient reason which you do not think fit to answer viz. That Caruage was a general Tax imposed upon all the Lands of the Kingdom as well what was held by Knights Service as what was not and how your Tenants in Capite could Tax those Lands which were never held by Knights Service I desire you would resolve me And therefore by the Fideles here mentioned in this and many other Records are not to be understood the Tenants in Capite only but all other Subjects who did Fealty who though they could not all appear in Person in our great Councils or Parliaments yet were there by their Representatives the great Freeholders Lords of Mannors or else by the Knights Citizens and Burgesses But I must now make some Remarks upon your Interpretation of â—he Writs of the 16 th and 21 th of Hen. 3. wherein you have certainly very much mistaken the sense of all the main Words For in the first place as for the Clerici terras habentes non ad Ecclesias pertinentes which you interpret to have been Clerks having Mannors and Military Fees not belonging to their â—enefices but held of the King in Capite seems to be altogether forced For whoever heard of Clerks that is inferior Clergy Men Parsons or Vicars of Churches who held Benefices of the King in Capite and not in Franc Almoigne or if they had any such that therefore those Lands so held should be called Lands not belonging to their Churches for at this rate the Lands of Bishops all Abbots Priors c. which held of the King in Capite would have been in your sense Lands not belonging to the Church but who but you and your Doctor ever gave such an unreasonable Comment on those words Nor will that Passage you cite out of Mat. Paris at all favour your Interpretation for either these Bishops and Prelates there mentioned gave this sortieth part of their Moveables in Parliament with the rest of the Kingdom or else as Clergy men in Convocation If the former then these Clerici could have no Votes there in Person for I believe it would puzzle you to prove that at this time any Ecclesiastical Person below the degree of an Abbot or Prior had any place in Parliament by reason of his Tenure by Knights Service in Capite for those Lands he held in Right of his Church but if you 'll have this Tax to be granted by the whole Clergy in Convocation then such Clerks as you mention could not be there in Person First because they are said to be such as had Lands quâ—e ad Ecclesias suas non pertinent and so could not have any place there as Clergy-men nor could they be included under the Praelati since that word takes in none beneath the degree of a Dean And therefore if these Clerks gave any thing in Parliament they must do it by their lawful Representatives the Knights of Shires or if in Convocation by their Clerks of the lower House then called Procuratores Cleri So that take it which way you will those Clerks could not be present themselves at these Parliaments when those Taxes of the 30th and 40th part of their Moveables were given to the King and therefore either as Lay-men or Clergy-men must be Taxed by their Representatives but in deed the words Proceree Regni which immediately come after Episcopi Pralati in
Praelatorum Comitum Baronum aliorum proborum hominum de Terra pâ—tentium quod Rex concedere veli quod ipsi pâ—ssunt taâ—â—iâ—re antiqua dominica unde sunt in Tenantia â—icut Râ—x Dominica sua taliavit itâ— responâ—um est fiat ut petitur From all which you may plain see that the Kings of England had anciently a Prerogative of laying Taxes not only upon their own Tenants and their Mesne Tenants who held under them but upon the whole Kingdom too and it their Successors have acted otherwise it has proceeded from their meet grace and favour who have tyed up their owne hands from exercising this Prerogative F. I confess you have muster'd up a great many Authorities but for what end I know not unless it be to prove that some former Kings stretcht their Prerogative to act directly against Law and their own Charters to the contrary and to justifie them in it when they have doâ—e as if all things were done according to their Lawful Prerogative because they did it if this be Law or Reason either much good may do you with it for at this rate the King notwithstanding all Laws made and sworn by him to the contrary may take what he pleases out of our Estates without our consents because his Predecessors broke the Laws and their Coronation Oath into the Bargain but you might have remembred that a de fâ—cto ad jus non datur consequentia but I doubt the Precedents you have now brought will not come up to the proof of the assertion you have laid down for it is plain as well from King Iohn's Charter as by that passage in Bracton I but now cited whereby it appears that extraordinary Taxes such as Hidage Corage and Carvage alia under which I suppose was included your Scutage-Tax also could not be imposed without the consent of the Common Council of the whole Kingdom when the King met his People in Parliament if then this were Law whatever K. Iohn oâ— Henry the Third or any other King acted contrary to this Rule was illegal and produced among other mischiefs the general revolt of all the Baronage i. e. as well the Inferior as Superior Nobility of the whole Kingdom till such time as our Kings finding they could do no good by force were fain at last to content themselves with the Legal Prerogatives of the Crown and by new Laws and fresh Declarations of the ancient Law to declare it unlawful for them to impose any Taxes upon their Subjects without their consents in Parliament But let me tell you that by thus setting up the Kings Illegal Prerogative of taxing the Mesne Tenants of their Tenants in Capite you quit the question for I asked you by what right the Tenants in Capite whom you suppose could grant by this great Charter a Fifteenth of the Moveables of the whole Kingdom as well of those who did not hold of them by Military Service as of those that did nay of those who never held of them at all and you then fly presently to I know not what unknown Royal Prerogative of Taxing the Mesne Tenants of the Tenants in Capite at pleasure which was either according to Law or it was not if the former I have already proved he could not do it by Law at all but if against Law there was the like reason why he should have had the like Prerogative over his Tenants in Capite too even over the very Bishops Abbots and Temporal Lords and then I desire to know whether the great Council of the Kingdom had not been long since destroyed and given up But to examine your Authorities it is true Hoveden says of Richard the First that accepit de unaquaque Hida Terrae V. solidos yet does it not therefore follow that he took this Tax without consent of his great Council it was the ordinary Phrase of Writers in those times to say Rex accepit i. e. received such a Tax when indeed he took nothing but what was given him by his Parliament And therefore tho we find this Tax not mentioned in any other Writer but only Hoveden and so cannot give you an express proof that this Tax was granted in a great Council yet it is most likely nay certain it was for the word accepit does not in its own nature import any violent or illegal exaction and therefore considering the nature of the thing it is greater reason to suppose that this aid was granted by consent since this same Author tells us in the relation of this affair that this Money was received by the hands of two lawful Knights of each Hundred and that they did answer this Money to the Exchequer Coram Episcopis Abbatibus Baronibus ad hoc assignatis who would never have undertaken it had not this Tax been granted by the Common Council of the Kingdom but that this King could not tax the whole Kingdom at his pleasure may appear by a relation out of this very Author in the very same year but a little before viz. that when the King demanded by Hubert Archbishop of Canterbury that Homines Angliae the men of England should find him 300 Milites i. e. Knights to stay one whole year in his Service or else would give him so much money as that he might therewith maintain those 300 Knights in constant pay viz. to every Knight three Shillings of English Money wages a day and that to grant this all the rest were willing as not daring to resist the King's will only Hugh Bishop of Lincoln as a true servant of God abstaining from all evil answered That he would by no means agree to the Kings desire because it would redound to the detriment of his Church c. and so it seems the business fell and came to nothing Now it is plain that this Request must have been made in the great Council of the Kingdom or at least in that of the Tenants in Capite and if he could not charge his Subjects with the keeping but of 300 Horsemen for one year without their assents can any body believe that he should presently after extort a much greater Sum viz. five Shillings out of every Plow-land in England But as for all your Precedants for King Iohn's reign he was such a Notorious Tyrant and breaker of his Coronacion Oath and common Faith both to God and man that I hoped that neither your self nor any good English man would have fetcht Precedents for Prerogative from so prosâ—igate a Reign as his and in which I grant there were more than once illegal Exactions of this nature which yet are branded by those very Historians that relate them for great oppressions and unjust exactions as particularly in this first instance of out of Mat. Paris of K. Iohn's taking away by force the Seventh of the Moveable Goods of the whole Kingdom which is by this Author called by no better than Rapinam Rapine or Robbery The same I may say
Writ to the Sheriffs of Counties to Summon two Knights de Legalioribus Discretoribus singulorum Comitatuum â— though it doth not appear by the Writ whether the Sheriffs of the Counties were to Elect and send these Knights the Sheriffs being then of the Faction and made by them for 't is there said only quod venire faciarâ— There are also other Writs recited to have been directed to all the great Cities and Towns of England as also to the Cinque Ports to send two of the most Legal and Discreet of each of the said Cities Burroughs Towns and Cinque Ports to the said Parliament at Westminster at the time aforesaid So that without the History of this Niâ—k of time these Writs which are said to be for the Delivery of the Prince out of Prison and for the settling of tranquility and Peace in the Nation cannot be understood But Prince Edward's Release could not be agreed upon in this Parliament whatever other Business might be dispatched So that things still remained in this uncertain condition the King being all this time a meer Shadow until such time as Simon Montfort and Gilbert de Clare Earl of Glocester falling out the latter at last took up Arms and joyning with the Earles of Surry and Pembroke to whom also came Prince Edward after he had made his Escape from Hereford they altogether raised considerable Forces against Monfort who meeting them and joyning Battle near Evesham Monfort with one of his Sons and many other Lords and Knights were Slain and all his Party routed Now pray tell me if this is not a very clear account from the History of the matter of Fact why the Commons were first called to Parliament by Monfort during his Rebellion and I think I can also give you very good reasons and Authorities to back them why they were again discontinued all the rest of this Kings Reign untill the 18th of Edward I. F. I shall tell you my opinion of your Narrative by and by but in the mean time pray satisfie me in one or two Questions pray Sir what may be the reason that we can find but twenty three Earls and Barons Summoned of that great number there was then and only to thirteen Bishops in this Parliament and yet at the same time there should be summoned above an hundred Abbots and Priors and but five Deans of Cathedral Churches pray why might not these numerous Barons be trusted as well as all the Abbots and Priors M. As for his not Summoning all the the Earls Barons and Tenants in Capite but putting Knights of Shires and Burgesses in their rooms there may be a very good reason given for it viz. the danger that Simon Monford and his Privado's apprehended from the too great Concourse of the Nobility and their great Retinueâ— and the Example of his own and the Barons Practices at Oxford in the Parliament of 42 d. of Henry the Third might be the cause why they altered the ancient Usage and of their sending Writs out commanding the Sheriffs of each County as also the Cities and Burghs to send two Knights Citizens and Burgesses respectively But the Reason why there was so many Abbots and Priors Summoned was because Simon Monfort thought himself sure of them He was a great Zealot and a Godly Man in those times and a great Minion of these Religious men as then called as also of the Bishops and Clergy and they were at least seemingly Great Favourites of his F. I must confess there is some colour of Reason why Simon Monfort should Summon so many Abbots and Priors to this Parliament if he were sure of all their Votes before hand but there is no certainty of this for if he had been so sure of them there was as much reason why he should have called them all likewise to the Parliament at London which you say he Summoned the year before when with the Consents of the Bishops Barons and others he made the new Ordinances you mention but you cannot find in any Historian or Record that he then Summoned so many of them and it seems pretty strange that all these Abbots and Priors and Deans not a fourth part of which were Tenants in Capite should all take the trouble to come to this Parliament without any scruple if neither they nor their Predecessors had ever been Summoned before But the other reason you give why so many Earls and Barons should be omitted is much more unlikely for if the numerous Barons Factious Practices at Oxford had before frustrated Monfort's designs there had been indeed some reason why he should have done all he could to have hindered their coming again whereas on the contrary the Earls and Barons at the Parliament at Oxford though they came thither with Arms and great Retinues yet it was only to joyn with him and to force the King to agree to the Oxford Provisions But if the Commons were now Summon'd as you suppose to curb the extravagant Power of the Lords yet it could not be his Interest or indeed in his Power so to do not the latter because the Earls Barons and Tenants in Capite were too powerful and numerous a body to have suffered such an affront and breach on their Right as this was Nor could he and his two and twenty Companions have ever dared to have displeased so great and powerful a body of men as you must allow your great Barons and Tenants in Capite both great and small then were and who made such a powerful opposition for their Liberties in King Iohn's time or that they would have thus tamely permitted men wholly of the Sheriffs choice to have thus taken away their places in Parliament and made Laws for them much less the Citizens and Burgesses most of whom were certainly not Noble by Birth nor yet held Lands in Capite nor could it be for Monfort's Interest so to do for the greatest part of the Earls and Barons were of his side already and thus to â—â—clude them had been the only way to disoblige them and make them leave him and go over to the King's side So that I must needs tell you upon the whole matter granting Monfort to have been such a Knave and Hypocrite as you make him yet certainly he was no Fool but a great Politician and I leave it to your self or any indifferent person to judge whether it was possible for him to do so silly and unpolitick a thing as this For granting all the Abbots and Priors to have been of his side as you suppose they could no way counterballance the great Power of those Earls and Barons and numerous Tenants in Capite that were all hereby excluded So that let the Commons have been Summoned when you will it was certainly before this 49 â—h of Henry the Third or not at all But to give you my opinion why so few Earls and Barons are mentioned in this Record of the 49 of Hen. 3 d to have been Summon'd
Drink F. Very well I think I shall easily Answer your and the Dr's Learned Observations First as for the Monkish Hyperbolical Phrases of innumerae or numerosa Cleri Populi multitude I confess you might suppose there was somewhat in them if they had been peculiar only to one or two of them but when all these Writers do with one consent agree in almost the same words to express all the Members of such Councils I cannot see how they could have writ thus unless they intended to be understood literally that there were great Numbers both of Clergy-Men and Laicks who appeared as Members of those Assemblies far more than the Dr's Tenants in Capite that they had also Votes therein appears by that Passage in the Conclusion of King Stephen's Charter which I quoted but now out of Sulcardus when speaking of this very Council in the 3d of King Stephen which we last mentioned that not only the Comites Barones Regni but the innumera multitudo cleri Populi were not only present but Religioso favore voluntatem Assensum Authoritati nostrae paginae Privilegio praebuerunt i. e. yielded their good wills and consents to this Charter of Priviledges to the Abby of Westminster And to shew you farther that this infinite multitude of Clergy-men and Laics were also part of this Council Pray remember the passage I but now cited out of Florence of the Council held at London cum innumera Cleri Populi multitudine who all alike gave their consents to the Constitutions by placet placet placet and consider what the same Sulcardus has said in the next Council of the 4 th of King Stephen when after Concilio adunato Cleri Populi and a recital of the Bishops he concludes with Monachorum Clericorum Plebisque infinitae multitudinis as all alike Members of it Now I shall leave it to your self or any sober unprejudiced person to consider whether it is likely that so grave and august a thing as the R. Charter of a Prince should take notice of the frothy consent and applause of the meer Rabble or Mob whether of the Clergy or Laity or so judicious a Writer as this Author and the rest of the Historians now cited should have nothing else to do but to record to Posterity for a very remarkable Transaction that a great multitude of the oâ—â—uary or vulgar sort of People came to these Assemblies only to shout and make a noise for good Victuals and Drink and therefore the Dr. and you I hope will pardon me if I still keep my former Opinion that both the Arch-Bishops Lanfranc and Anselm were not only named or proposed by K. William the First and Second in the Common or General Council of the Kingdom but were also therein Elected or Chosen by the Citrus and Populus according to the manner of that Age and the literal meaning of those Ancient Authors whose words the Dr. either leaves out of strives to wrest to quite another seâ—ses nor to his Objections against the Election of Lanfranc at all considerable For as to the first Objection against the literal sense of the Old Author â—â—â—nted at the end of Taylor 's Gavel kind that he could not be Elected consensu totius Populi Angliae because who can believe that all the People of England or the hundredth part of them ever knew or understood of Lanfranc's being made Arch-Bishop Now pray let me ask you this Question supposing this Election had been made in a General 〈◊〉 of the Clergy alone and the words had been instead of totius Populi totius Cleri Anglicae would it not have been meer cavilling to ask how all the Clergy of England could leave their Livings and come up to give their Consents at this Election or that the hundredth part of them ever knew of it since every body is sensible those words are not to be understood in a literal but legal sense that is the whole Clergy are said to give their Consents to a thing when they do it by their lawful Representatives the Bishops and Procurators of the Inferiour Clergy And why may not the whole People of England be as well said to give their Consents to this Election by their lawful Representatives at that time But that we are not singular in this Opinion pray see what Arch-Bishop Parker says in his Antiquitates Brittannicae of this Election of Lanfranc's celeberrima est autem hujus prae caeteris Electio c. Electus est enim à Majoribus Cantuarensis Ecclesiae tâ—n accessâ—t Procerum atque Praesulum totiusque quasi Populi consensus in Aula Regis quod sanè est inslar Senatus seu Parliamenti Anglicani As for the next Objection against this Election of Lanfranc's it is yet weaker than the former because the Dr. has answered this Question himself how the English Saxon Bishops Barons and the whole People should chuse a Stranger a Person they had never known and postpone all their deserving Countrey-men Now pray read a very good Solution to this difficulty if he may be believed in his Answer to Mr. P. wherein he tells us that King William had taken away from the English their Estates and gave them to his Normans and that this he did from his very first coming in and then reckons up the Earldoms he gave to his Norman followers Now if the English had then no Estates they could sure have no Places or Votes in that great Council when Lanfranc was chosen but if to solve this you will say as the Dr. does in his Answer to Antinâ—s mannicum that this Council was held about the fourth year of the Conqueror some years before he had made an absolute Conquest and that the English Bishops and Barons and Freemen had still some Estates left and therefore might then make the major part of this great Council when Lanfranc was made Bishop so would never have Elected him had it been left to their choice Pray tell me if the fear of refusing be a sufficient Objection that he was not Elected whether or no it will not be as strong an Objection against his being Elected by the Seniors of the Church of Canterb. aâ— Gervase tells us expresly he was because says the Dr. they did it by order and direction from King William and their proceeding no other than it is now by the Chapters of other Churches upon a Conge dé Estire they could not refuse him And now supposing his Power to have been as great as a Conqueror in the Common Council of the Kingdom as in the Chapter of Canterbury why may we not say almost in the same words they could not they durst not refuse him who was already Elected by the Prior and Chapter of Canterbury for fear of â—â—â—ing their Estates But if an Election that cannot be refused is none at all the Dr. may do well to consider whether there was then or is now any Canonical Elections of Bishops in
to Parliament no otherwise but as 〈◊〉 in Capitâ— for tho' the said Petition reâ—ues that they hold the said Town of the K. in Capite yet they do not likewise say that they claim'th to appear there only by that Tenure for then they should have reâ—ired that they sicut caeteri Burgenses Tenentes in Capite and not sicut caeteri Burgenses Regni ad Parliamenti Regis venirâ— debeant And tho' it is true they set forth that they appeared there for all Services yet do they not say that their Tenure in Capitâ— was the only Cause of their appearance in Parliam since divers Towns and Burrought of the Kingdom which held not in Capite at all had the like Priviledge before of which I can give you divers Instances which I shall read to you ouâ— of this Note which a Learâ—ed Friend of mine slace deceaâ—'d hath taken out of the Rolls in the Tower tho' when he sent it me he thorough hast 〈◊〉 hath forgot to set down the number of the Roll to most of such Burroughs who never held in Capite and yet have always sent Burgesses to Parliament by Prescription as first the Burrough these of Arundel which always held of the Earls and never of the King being granted by Henry I. To Hugh Montgomery Earl of Arundel Secondly The City of Bath appears to hold of the Bishop of Bath and Wells Thirdly The City of Wells it self which always held of the Bishop and never of the King and is therefore called Villa Episcopi in all publick Writings belonging to that Church and was made a Free Burrough in the Third of King Iohn Fourthly Beverly was made a Free Burrough by Thurston Arch-Bishop of York which was confirmed by King Henry III. Hiâ—â—hly Badmin which always held of the Earls of Cornwall Sixthly Bridgwater for King Iohn granted it to William Brewer Quod Brugwater sit liber Burgus Seventhly Coventry which was always held of the Earls of Chester and pleaded in the Reign of Edw. I. to have never been taxed with the King's Demesnes but with the Body of the County Eighthly Bishop Linne for King Iohn granted to Iohn Bishop of Norwich Quod Burgus de Lenna sit Liber Burgus inperpetuum all which by the Writs we have left us sent Burgesses to Parliament as early as any that held in Capite These I give you only for a Taste but I doubt not but if I had time I could give you three times as many especially in Cornwall where the Burroughs did almost all hold of the Earl of Cornwall and not of the King But besides the Doctors errour in supposing that no ancient Cities or Burroughs had any Right of sending Members to Parliament but only as they held of the King in Capite his mistake is yet much more gross in his construing those remarkable words in the King's Answer to the Burgesses of St. Albans Et tunc fiat eis super hoc Iustitia vocatis evocandis si necesse fuerit Thus And then let them have Iustice in this matter and such as have been called may be called if there be necessity Upon which words you have also from the Dr. put this pleasant gloss Hence 't is clear the King and his Council were equally judges when it was necessary to call them and for them to come as they were of their Rights and Pretences to come But I must needs tell you â— think nothing can be more absurd and contrary to the genuine sense of this Record than the Doctor 's construction who will needs have the words evocatis evocandis only to mean a Calling or Summoning to Parliament which is quite contrary to the true sense of the King's Answer to this Petition for if that had been his meaning that those only should be summoned to Parliament whom the King pleased to call to what purpose were these words scrutentur Rotuli c. de Cancell si temporibus Progenitorum Regis Burgenses praedicti solebant venire vel non For if their coming to Parliament had been a matter of meer grace and favour and not of right so wholly left in the King's breast whether they should come or not it was in vain for him to command the Rolls of Chancery to be searched whether the said Burgesses us'd to come to Parliament or not in the times of his Progenitors or if it had not been a matter of right why should it be here said that upon search of the Rolls Tunc fiat Iustitia let Justice be done iâ— there never was such a right of Prescription by which they claimed But I much wonder that the Dr. so great a Critick in Records should ever construe them evocatis evocandis a summoning or calling to Parliament and I desire you would shew me in what Parliament Roll or Ancient Record you can find evecaâ—â— ad Parliamentum to summon to Parliament But I more admire that you who are a profest Civilian should no better understand the sense of your own Terms whereas if you would have but consulted any Civil Law Dictionary you might have found evocaâ—e Testes always signifies to summon Wiâ—nesses and I can shew you by twenty Precedents both from our Common Law Records as well as your Canon Law Forms that evocatis eâ—ocandis does always signifie the summoning such Witnesses as are to be summon'd in a Cause and in this sense it is to be understood in this Record that not only the Rolls should be search'd but also Witnesses summon'd to prove their Claim if any dispute or doubt should arise about the matter of fact M. I shall no longer contend with you about the genuine sense of these last words since perhaps you may be in the right but yet for all that it does not appear that the King and his Council did by this Answer allow this Petition of the Town of St. Albans to be true that they had sent Burgesses to Parliament in the time of his Predecessors much less that any other City of Burrough in England were then allowed such a right by Prescription F. I grant indeed that this Petition doth not absolutely allow the matter of fact as it concerns the matter in dispute between them and the Abbot to be true as it is there set forth neither yet does it condemn it for false but whether it were true or false it matters not for both the Petition and the Answer do sufficiently prove the Point for which we make use of it viz that it was then received for a general Custom or Law time out of mind that the Cities and Burroughs had sent Members to Parliament according as in the Petition is set forth otherwise it can scarce be supposed much less believed that the Burgesses of St. Albans or the Pen-man of this Petition should dare to tell the King and his Learned Council in the face of the Parliament so great and ridiculous a Novelty to be recorded to Posterity as that they and their Predecessors
of this I shall proceed with the earliest Instances of this kind after the Conquest viz. in the Time of King Richard the First during whose absence in the holy Land he had committed the Government of his Kingdom to William Bishop of Ely who abused his Power by an Arbitrary and Insolent Carriage affronting and oppressing Iohn Earl of Morton the King 's own Brother and Geoffry Arch-Bishop of York the King 's base Brother whereupon they rose up against him and having the Bishops the Earls and Barons of their side appointed the said Bishop a day to answer to his Crimes in the King's Court or great Council of the Bishops Lords and Tenants in Capite then called Curia Regis where when he refused to appear they all with one consent came to London and fought with the Followers and Adherents of the said Chancellour by the way when they came to Town Earl Iohn with the Arch-Bishops of York and Rouen with all the Earls and Barons together with the Citizens of London met in St. Paul's Church-Yard and there it was proposed that the said Chancellour should for his Evil Government he deposed and banisht the Kingdom and so he immediately was by the general Consent of the Common Council of the Kingdom so that you see the Nobility Clergy and People had then no notion of an Irresistible Power in the King and those put in Commission by him when they found their Power to grow Tyrannical and Insupportable M. But if I forget not you omit one material Circumstance in this Affâ—ir which seems to make against you which is that Arch-Bishop of Rouen and William the Earl Mareschal did at that time produce the King's Letters signed with his 〈◊〉 wherein he had appointed that they two should be associated in the Government with the Bishop of Ely and that he should do nothing without their privity and consents and of those associated with him in the business of the Kingdom and that if he offered to do otherwise he should be deposed So that it seems what they now acted was not so muchin opposition to the King's Commission as to the Bishops who had refused to obey his Commands F. I confess it was as you set forth yet this makes nothing against my Opinion since it is apparent that Arms were taken and this Resistance made by the major part of the Bishops Earls and Barons together with the Londoners before ever it was known that such Letters were written by the King And so it seems they would have done much the same thing if there had been no such Letters sent by the King at all You may also rememâ—er that all these proceedings also were approved of and confirmed by the King himself But that I may proceed in my History of Non-Resistance I come to the Reign of King Iohn his Brother who when he had refused the Arch-Bishop of Canterbury and all the Bishops Earls and Barons of the Kingdom to confirm the great Charter of King Henry the First they together with the rest of the great Men and People of the Kingdom of all degrees and conditions took up Arms and made a vast Army resolving never to lay them down till he had new granted and confirmed the Charters of Liberties and Forrests till at last the King finding himself almost quite forsaken so that he had scarce five Knights left about him he was at last forced to meet the said Bishops Earls Barons and People at Runne-Mead and there to grant them that great Charter which has been the Subject of so much discourse between us so that you see here that the Church of England in those Times if the Bishops and Clergy are the Representatives of this Church had then no notion of this Doctrine of Passiâ—e Obedienâ—e to the King 's Absolute Will and Commands M. I cannot deny the matter of fact to be as you say but yet you may remember that the same Author tells us that the Pope thought the King hardly dealt withal in this matter so that he gave Audience to the King's Ambassadors concerning the Rebellions and Injuries which the Barons of England had committed against their King and that upon a solemn hearing of the whole business and after a consultation with his Cardinals he did as Supreme Lord of Engâ—and after King Iohn's Resignation of his Crown to him by his Bull then published make void the said great Charters of Liberties and Forrests and condemn all the Barons proceedings as against their Duty and Allegiance to the King their Soveraign Lord so that it seems this was not approved of any where but by the Actors the Pope thereupon Excommunicating the Barons and Suspending the Arch-Bishop of Caâ—terbury for joyning with them F. I believe you will make nothing of this Objection for it appears from the same Author that the Pope had before this Excommunicated the King and as far as lay in his power depriv'd him of his Kingdom and absolved all his Subjects of their Allegiance so that it is plaiâ— it was not out of any true Principle or hatred of Rebellion and Resistance in Subjects that the Pope had thus acted but purely to gratifie the King at this juncture of time and to defend him in his Tyranny and breach of his own Charters because he was then become his Vassal and so he cared not how much he oppressed his Subjects because he was thereby the more able to pay him the Tribute before promised and he could also expect the more securely to extort Money from the whole Kingdom But that this Bull of the Popes was contrary to the King 's own Express Act and Agreement appears plainly by that Clause which is still to be found in a Charter under the Seal of this King and which seems to have been the Heads of the great Charter according to which it was drawn into the Form we now find it in Mat. Paris in which it is expresly provided and granted by the said King that in case he should go about to break or infringe any Clause in the said Charter and shall not amend it within the space of forty days that then Iâ—li Barones cum Communia totius Terrae distringent gravabunt nos modis omnibus quibus pouerint aut scil per captionem Castrorum Terrarum possessionum aliis modis quibus potuerint donec fuerit emendatum secundum arbitrium eorum salva Persona nostra Reginâ—e nostra Liberorum nostrorum cum â—uerit emendatum intendent nobis sient prius fecerunt So that you see here in the Judgment even of the King himself they might freely resist and take up Arms against him till he made good every Article of these Charters if violated and were not to return to their Obedience till it was amended and the like Clause almost word for word is also to be found in the conclusion of the great Charters published in Mat. Paris M. I grant the Clause is there as
necessary consequence of your sense of this Oath So that upon the whole matter and considering the late Scene of Affairs I darst leave it to the Judgment of any indifferent Foreiner tho' a Papist which was most likely before the unexpected coming of the Prince of Orange into this Kingdom that the People should rise up in Arms and expel the King from his Throne or that he should by vertue of the pretended sense of this Oath backt by your Doctrine of Passive Obedience have enslaved this Nation and set up what Government and Religion he pleased M. I must confess you have given a very cunning and specious gloss upon the words of this Oath and Declaration of the Parliament of King Charles the Second but whether it is legal or not I very much doubt since I never heard of it before and I could have wisht that if they designed not to lay a snare upon Mens Consciences in this great point that they would have been more clear in expressing all those Cases wherein it might be lawful for us to resist the King or those Commissioned by him as also who should judge when the King's Commissions are so illegal and violent as to require Resistance for if every private Subject may judge of the legality or illegality of the King 's Military Commissions and can raise a Party strong enough to make opposition against those that are Commissioned by them in the Execution of the King's Orders a discontented Party of this Nation may soon find a pretence to raise another Rebellion and Civil War as dreadful as the former and notwithstanding your great care and concern for the King's person which you grant to be sacred and inviolable could it long continue so for if the King himself appeared at the Head of his Men to command and encourage them in their duty it would be much worse as long as the matter they took up Arms for should be by them accounted a violation of the Laws Thus we may remember that tho' the Parliament of 41. did pretend to take up Arms for defence of the King's person and only to take away Evil Councellors yet did they for all that order their Generals and Officers to fight aâ— much when the King was personally present as at any other place or time so that His Majesties person had not God thought fit to order it otherwise might have been as well destroyed in the Battles of Edg-hill or Naseby as his great Grand-father King Iames the Third of Scotland was in that Battle against his Rebellious Subjects headed by his own Son So that according to your interpretation instead of mending the matter this Parliament of King Charles the Second had only left it far worse than they found it For whereas the Long Parliament made themselves the sole Judges and Redressers of the King's Violations of the Peoples Rights Now according to your interpretation of this Oath and Declaration of the Parliament of King Charleâ—'s the Second every private Man may not only judge of the King's Violation of the Law by his Military Commissions but also make Resistance against them when-ever they think themselves able so to do and then notwithstanding that Parliament utter renouncing all Arms whether offensive or defensive to be raised by themselves against the King they would have still left a power in any part of the People strong enough to make this Resistance which they had renounced for themselves who are their Lawful Representatives Thus for example supposing the last Civil War had begun upon the account of raising of Ship Money which whether it was lawful I will not now dispute it was sufficient that all the Judges except two gave their Opinions for it and if any County in England strong enough to make an Insurrection had rose in Arms upon the Levying of this Tax as it has several times happened even about Taxes granted in Parliament this Tax tho' small yet being lookt upon against Law must have engaged the whole Nations in a Civil War and also endangered His Majesties person in case he had appeared in the Field with those Men he had raised to subdue that Rebellion so that I am still satisfied that it is far better to suffer a mischief than an inconvenience that is it is better to trust to the King's Conscience and Discretion what Commissions to grant tho' sometimes perhaps they may chance to be illegal than to leave it in the power of the people to rise in Rebellion when-ever they think such Commissions to violate their supposed or pretended Liberties and Properties F. I see you will not argue against the Resistance of the King's person in case he should go about to Ravish Rob or Murder his people But now you raise another difficulty who shall judge and consequently make this Resistance against the King's Commissions when executed by illegal persons to illegal and violent ends for if the people may judge for themselves of the illegality of such Commissions a Rebellion may be raised and His Majesties person endangered notwithstanding all the provision the Parliament have made against it But before I answer this Argument of yours pray give me leave to ask you one or two Questions Do you think the King 's Late Declaration for the Dispensing Power and the Commissions granted thereupon to be according to Law or not M. I must confess I think they are unlawful yet it does not follow that they may be therefore resisted F. I do not ask you that now but only tell me whether you think the Bishops are obliged in Conscience to disperse that Declaration or the Clergy to read it in their Churches and whether those have done well who have refused to read it M. I must tell you I am so good a Protestant and so true an Englishman that I cannot allow the King that power and therefore I must grant that the Bishops did nobly and like true Christian Bishops to refuse to disperse it and where it was dispersed the Inferiour Clergy have done very well not to read it F. Well then notwithstanding all the dreadful Mischiefs proceeding from private Subjects juding of the legality or illegality of the King's Declarations and Commissions or Commands yet they may it seems not only judge whether they are lawful or not but a disobedience to them may not only be lawfully exercised but is very commendable Now what is this disobedience to these Commands but a Moral or Civil Resistance of the King's Power in this matter and why may not such a Judgment he made by the People in as plain a case and also Resistance follow thereupon against such violent illegal Commissions suppose to raise Money without Act of Parliament or to Dragoon Men to go to Mass since the violence is more evident and apparent in this case upon Mens persons than in the other upon the bare Consciences of the Bishops and Clergy for the force being more immediate and pressing upon their Persons and Estates
raising Money at his pleasure but the people reserved to themselves their share of both at the first institution of the Monarchy all those Princes that claim by Vertue of their Right are tied by this first original contract whether they ever took any Coronation Oath or not nor tho the Crown now become no more Elective does it at all alter the condition or the limitation of his Ancestors as long as the present King holds by and under the same Title and by vertue of the same original contract since as it was by the Peoples will that it was at first Elective so it was also by their Will that it became successive since every entail of the Crown upon heirs can only proceed from the Peoples agreement or consent to maintain it as a standing Law or else every King might alter it at his pleasure As for your next reply that if we resist the King because when he turns Tyrant he Acts not as Gods Lieutenant but the Devils Minister for so that tho' it is lawful to resist the Devil yet we cannot use carnal force against him this assumption is false since if we can suppose the Devil does ever use carnal force we may also repel the same by force or else those famous Stories of Witches and Spirits being afraid of and flying from naked Swords are all false I beg your pardon for speaking so long which I could not well contract into less compass without passing by your arguments and answers to my quotations M. You have indeed out-done me in making long Speeches but I have heard you patiently because I cannot deny but that you have argued fairly had it been upon a right foundation but since it is not pray give me leave to set you right and shew you that notwithstanding all you have urged to the contrary yet all our Kings since the Conquest were absolute Monarchs and if so not only irresistible upon any breach of their Coronation Oaths but also have been invested with such an absolute unconditioned power as can never be lost or forfeited upon account of the highest acts of Tyranny but before I come to my proofs give me leave to say somewhat to those last citations you have brought from King Edwards Laws as also from Bracton and Fleta First as to that Law you have cited that passes under the Title of one of those confirmed by King William the Conquerour give me leave to tell you that I much question whether it be genuine and not foisted in by some of the Monks that had the keeping of the Copies of those Laws in their Monasteries after the Original it self was no more to be found for in the first place I must observe it does not savour of that absolute Power that I take K. William to have acquited by his Sword to own his Royal Dignity forfeitable or that he could lose the name of King upon any account whatsoever at this pretended Law seems to intimate by these words nec nomen Regis in to constabit now that it strongly savours of the ignorance of the Monks I shall shew you by the very Law it self wherein the chief points for which the King must lose his Royal Title is not only if he does not defend his Earthly Kingdom but also the People of God that is the Clergy and also shall fail to reverence Holy Church that is the Bishops and Clergy of whom the Monks looked upon themselves as the chief and most considerable part as also if he fail to destroy evil doers that is Hereticks out of the Church then forsooth not so much as the name of King must remain to him now pray see the consequence of this and whether you will own this to be a fundamental Law of the Kingdom for then at this rate Henry the VIII who suppressed Monasteries and took away Abby-Lands and let injurious persons spoil the Church by Sacriledge and also all other Princes who have not extirpated those who when this Law was supposed to have been made would have passed for Hereticks that is all Protestants must have all forfeited their Royal Dignities and consequently the Pope did Henry VIII and Queen Elizabeth no wrong if in pursuance of this Law they Excommunicated them and declared they had forfeited their Crown since this Law says that Pope Iohn testified this truth quod nomen Regis perdet But nothing makes out more evidently to me the forgery of this pretended Law than the notorious faults there are in the Chronology where the sentence of Pope Iohn against King Childerick is mentioned as an evidence to make it good whereas indeed it was not Pope Iohn but Zachary who gave this sentence But in Hovedens Copy of this Law there is yet a more gross errour for it makes Pipin and his Son Charles to have writ to William the Bastard upon their hearing this definitive sentence so wisely given by him concerning the Title of King all which is so notorious a piece of folly and ignorance that it needs no other confuration But granting that part containing the Law it self to be genuine it does not at all set forth your Original Contract or make it a forfeiture in the King to do any of those things which you supposed to be main parts of the Fundamental Constitution only says in general that unless he defend his Earthly Kingdom and the People of God and reverence Holy Church by defending it from injurious Persons and removing Evil doers from it name of the King will not belong to him now all this the most absolute Monarch in Christendom even the King of France himself will say he performs to a tittle and therefore there is no fear of a forfeiture for any King tho' never so Absolute and Tyrannical upon these Terms unless he will do that which I think he is too wise ever to go about to destroy his People wilfully or to fall upon the Church of Rome and its Clergy As for the rest of the places you have cited out of Bracton and Fleta to prove this Notion of a Forfeiture I must freely tell you that they do not seem to me to come up to the point for which you bring them for as to that place you have cited out of Bracton non est Rex c. you and I differ about the sense of it and I see no reason why I may not still keep my own opinion the other place I confess seems more express viz. That it is the Crown or Dignity of the King to do Justice or Judgment without which it cannot hold or consist this also does refer only to such Justice and Judgment as the King is to give and distribute between Man and Man without any relation to his own actions towards his Subjects and if a Prince will not do this either by Himself or Deputies I grant his Crown or Royal Dignity cannot long subsist to be maintained since this will bring all things to utter confusion so that strangers will
not because he kept a Kingdom bequeathed to him by K. Edward since some Writers relate this King named not him but Harold for his Successor tho' others say that he recommended Edgar to the good will of the English Nobility So that the only true and just cause D. William had of making War upon Harold was his breaking the Promises and Oath he had not long before made him of securing the Kingdom of England for him upon the Death of K. Edward instead of doing which he had seized it for himself and which is worse refused to restore it or so much as to hold it of Duke William as his Homager So that tho' for the strengthning of his own Tide he pretended to the Will or Donation of King Edward and to avoid the envy of the name might out of modesty or to put a better colour upon this matter refuse to take the Title of Conqueror and to insist upon the Donation of K. Edward yet nothing is plainer than that he could claim by no other Title but the Sword and that he looked upon himself as no other than an Absolute Conqueror may appear by these great and evident instances 1. His change of the English Laws and introducing the Norman Customs in their stead and also changing the Tenures of Lands not only of the Layety but also of the Bishops and greater Abbeys 2. By his debarring all those of the English Nation from enjoying any Honour Office or Preferment either in Church or State and also in taking away the Estates of all the Nobility and Gentry not only from those of their Heirs that had been slain in the Battle of Hastings but also of the rest so that they had left them but what they could purchase of those Norman or French Noblemen to whom King Wiiliam had given their Lands as a reward of their good service for the proof of both which Assertions I have so very good authority on my side and that of Writers of or near those times in which these things were done that I think no indifferent man can have any cause to doubt the matter of Fact to have been as I relate it nor did he by any after act ever renounce this right of Conquest as you suppose much less refer it to the Election of the English or Normans since the former were not in a condition to make any farther resistance against him the Clergy and great men of the Kingdom having been forced to submit themselves to him without any other precedent conditions or stipulations than for the saving of their lives and as for the Normans they were his Subjects and they Conquered the Kingdom only for his use and benefit as his Souldiers and Vassalâ— and it is not likely he would owe the Kingdom which he had thus acquired by the Sword to their Votes or Election neither does any Author that I know of mention any Election before his Coronation when tho' it is true he took such an Oath as you mention yet it was in too general terms to bind him to any observation of the ancient English Laws much less to preserve their Rights and Priviledges farther than he thought fit and therefore could never take the Crown upon your Conditions of Resistance or Forfeiture in case of any alteration in that which you call the Fundamental Constitution This being the true matter of Fact without any disguise it is easie to answer all that you have said against K. William's requiring an Absolute Hereditary Right to the Crown of England for himself and all his descendants by the Sword first then as to the Justice of the War and Conquest it self I suppose you will not deny but that Duke William had a good cause of War against Harold for the breach of his Oath and if so against all that took his part at the Battle of Hastings so that upon the Conquest of Harold and those that were in that Fight he also acquired a Right by Conquest to all that they enjoyed and consequently had a right to Harold's Crown as well as his other Estate as also to the Estates of all those that were either slain or escaped alive from that Battle and not only to these but also to all the Lands of the whole Kingdom since the War was made not only against Harolds Person but against the Kingdom of England the People of which according to their Allegiance assisted him in that War either with Men or Money but admitting the War to have been in it self never so unjust yet all Writers on this Subject even Grotius and Pufendorf agree that Conquest even in an unjust War with a thorough settlement in the Conqueror and his Successors by the non claim dereliction submission or exstinction of the next Heirs of the former Kings together with a long uninterrupted possession beyond all time of memory will confer as good a Title especially when all these confirmed by a constant submission and recognition of the People testified not only at the first Conquest but in all succeeding times by as absolute and unconditioned Oaths of Allegiance as can be invented or that were ever taken to the most Absolute Monarch and such Oaths are always to be interpreted in favour of the Prince to whom they are sworn and as strictly against the People that take them as all Writers also agree now granting this to be the case of K. William the Conqueror that by all or some of these means he acquired a right to the Crown not only for himself but his Heirs this Power was Absolute without any conditions to be observed on their part for the Oath of Allegiance is positive without any condition or restriction so that I can see no manner of pretence that the People of this Nation can have of forcing their K's to the maintenance or observation of those rights and priviledges which they or their Predecessors have so freely granted to them or their Ancestors As Pusendorf whom you now cited very rightly observes and consequently can have no right to repel force by force since our Kings do not now hold their Crown by force or right of Conquest alone but by all things required by the Law of Nations to create a full and absolute right viz. a long uninterrupted Possession and the Absolute submission of the People for themselves and all their descendants so that tho' I grant bare conquest considered as a Force can give no right alone yet it may often be the Mother of Right and may at last grow to a Right by the means I have already mentioned F. Before I reply any thing farther to what you have now said to the matter of Right acquired by your Conqueror and his Heirs pray in the first place prove the matter of Fact to have been as you lay it and therefore produce your quotations from the Authors you mention but first give me leave to tell you that Dr B. and you are the first I have heard to
he was made King nor can I see how their taking of Lands from Him could make him become an Absolute and Irresistible Monarch over them and their Descendants so that if upon your supposition all the owners of Lands in England at this day hold their Estates either by descent or purchase from those Antient Normans or French Proprietors they must also succeed to the same Liberties and Priviledges as those under whom they claim did formerly enjoy But before I conclude I cannot but take notice of what you have said against my proofs of the formal election of King William for if the keeping of a guard about the place where the King is Elected and Crowned should void the freedom of the Election I doubt whether the election of any elective Kings or Monarchs no not of the German Emperor himself would hold goods as for the other reason that they could not chuse but â—lect him that is yet mâ—re trivial for there being no more than one thaâ— stood to be chosen they could indeed chuse no other but if not having a Liberty to refuse must void the Right of Election pray consider as I told you before whether there be any Canonical Election of Bishops in the Church of England at this day therefore I doubt not but that King William I. was as lawfully and freely elected as K. Edward the Confessor his Predecessor whom all Authors agree to have had no other Title and Williâ—lmus Gemeticensis in the place I now cited tells us he was Elected King as well of the Norman as English Nobles and if the custom had not â—â—en â—â—cen to Elâ—â—â— the King before he was Crowned it is not likely thaâ— your Conqueror would have introduced a new custom to the prejudice of his pretended right by Conquest but indeed there is not only more cogent argument to prove that the Crown was formerly elective than â—he constant usage as you your self confess ever since your preâ—ended Conquest to this day of asking the People whether they are content to have such a one for their King As for your Doctors quotation out of William of â—oictoâ— pray take notice that he places your Conquerors Hereditary bequest together with the Oaths of the English as his best Title and the right of War last by which this Author did not understand a Conquest of the People of England but his prevailing against Harold M. I do own with the learned Dr. B. that the Descendants of those ancient Norman and Freâ—â—h Earls and Baâ—ons than came in with the Conquerour and their Posterity afterwards seeing the Yoke of feudâ—l Tenures and other prerogatives this King and His Descendants exercised over them to press as hard upon them as the Antient English were those that made such a disturbance for their Right and Liberties in the Reigns of H. Iohn and Henry the third and tho' I grant their Ancestors were never conquered and consequently could not be obliged to him as to a Conqueror 〈◊〉 may for all this maintain that they and their Posterity were as much bound to an Absolute Subiection without any resistance aâ— the English whom they conquer'd for they were either his own Subjects in Aâ—â—mandâ— before his coming oâ—eâ— hither or else were such Volunteers who followed him but of hopes of Estates and Brâ—ferment was for all those of the former 〈◊〉 and 〈◊〉 were his subjects before they were tied not only by their 〈◊〉 Oaths of a Regiance which they had taken in Normandy but were also bound by the same obligation of Non resistance as all other subjects must always be both in that and all other Governments to all which was added another Obligation in respect of those who were not his subjects before his entrance since this whole Kingdom was by Conquest the Conqueâ—ors as appears in that he bestowed the 〈◊〉 part of 〈◊〉 his Followeâ—â— whose blood runs at this day in the Veins of most of our English Genâ—ry and Nobility as a reward for their Service and Assistance tho' he might have some part to the English Natives and their Heirs yet so aâ— that he altered the Tenure and made it descend with such burdens as he pleased to lay upon them so that as well â—his own Countrymen Normans as those of all other Nations who thus became Subjects and Feudataries to him for all the Lands they possessed in England since he was the only Directus Dominus or Lord Paramount of the whole Kingdom were also his Vassals and Subjects for in case of Treason and Rebellion or Death without Heir those Lands were to return to him again and to be aâ— his dispossal so that all subjects as well Normans as other Foreigners who had Lands granted to them by the Conqueror thus became his homines Ligei Liegemen and did owe Faith and true Allegiance to him as their Supream and Liege Lord as the King is called in several Statutes and the definition of Liegeancy is set down to the grand Customary of Normandy Ligeantia est ex quâ domino tementur vasalli sui c that is Liegeancy is an obligation upon all subjects to take part with their Liege Lord against all men living to aid and assist him with their Bodies and Goods and with their advice and power 〈◊〉 to lift up their hands against him nor to support in any wise those who oppose him and tho' I grant that the Supream or Liege Lord is likewise bound to govern and defend his Liege People according to the Rights Customs and Laws of the Countrey yet is he not liable to resistance much less forfeiture if he neglect it For tho' if Subjects break their Covenants and prove disloyal all their Lands and other Rights are forfeited to the King yea if the King or Supream Lord break his Oaâ—â—â— notwithstanding his sailing therein neither his Crown nor any Rights belonging to his Royal Dignity are thereby â—orfeiâ—ed the reason of this inequality is because the King gave Laws to the â—eople but the People did not give Laws to him so that it is plain that however you 〈◊〉 the Conquerors entrance whether by the Sword or to avoid the Envy of the Title of a Conqueror by a voluntary submission of the English Nation to him as to their Sovereign the conclusion cannot vary because the duty of Non-resistance arises from their own Act they taking an Oath of Allegiance to be his True and Loyal Subjects with which Oath Resistance can by no means consist F. I must beg your pardon if I cannot take what you have now said for a satisfactory answer since I doubt it will do you little service whether you make use of it either in respect of the Normans or other Foreigners for as to the soâ—mâ—r it appears from the Antient Constitution of Normandy that the Duke was no absolute Monarch there but Feudaâ—ary to the King of France and farther could make no Laws nor impose Taxes in Normandy without the consent of the Estates of that Dutchy as
to private Churches and if his Nobles or Followers had unjustly dissieâ—ed any Bishop or Abbot of their Estates the King caused them to be restored again as appears by many Presidents of this kind which are to be found in Ingulphus and Eadmerus this being premised let us see in the next place what proportion the Lands belonging to the Church did in those days bear to the rest of the Lands in England now we find in Sprot's Chronicle as also from the old Legierbook cited by Mr. Selden in his Titles of Honour and particularly from that Secretum Abbotis formerly belonging to the Abby of Glassenbury and now in the Library of the University of Oxon that there were not long after your Conquest 60215 Knights fees in England of which the Bishops Abbots and other Church-men then enjoyed 28015. When it is supposed this account was taken then it will follow that in the Reign of your Conqueror there were above 28000 Knights Fees which belonged to the Church and in these we do not any where find that K. William dispossessed their Tenants of their Estates most of which were held in Fee under them and those Tenants were great and powerful men in their Countries and hence we read in the ancient Records and Legier Books of the Barons and Knights that held of divers Bishops and great Abbots several examples which you will find in Sir Henry Spellman Title Baro now it is certain that King William could not turn all these men out of their Estates and give them to his followers without committing sacriledge and invading the Rights of the Church which that King durst not commonly do so that the utmost that you can suppose he could do was to take the forfeitures of all such Tenants of the Church who had taken part with King Harold or had any ways committed Treason against himself which were far from the whole number of them so that here goes off at once almost a half of all the Lands held by Knights service which the King did never dispossess the ancient owners of to these may be also added all Tenants in ancient Demesne all Tenants in Socage as also all Tenants in Gavel kind which in those days made at least two thirds of the Lands of Kent which by the way was never conquer'd but surrender'd upon Terms to â—are their ancient Customs and Tenures as Mr. Cambden himself acknowledges in his description of this County besides what was held in other Counties by the same Tenure as you will find in Mr. Taylor 's History of Gavel kind all which being not Tenures in chief by Knights Service are not Register'd in Domesday book nor does it appear that the owners were ever dispossessed of them to which may also be added the Lands of those smaller Thanes or Officers of King Edward whose names are found in Domesday book who held their Lands ratione officii To all these we may also add all such Norman Noblemen and Gentlemen who having come into England in Edward the Confessors time and having Honours and Lands given them by him had continued here ever since and these were so numerous that it was thought worth while by King William to make a particular Law concerning them that they should partake of all the Customs the Rights and Priviledges of Native Englishmen and pay Scot and Lot as they did of these was the Earl of Moâ—ton besides many others whose names appear in Doomesday book and not only these men but also divers Cities and Towns held Lands of King William by the same Rents and Services as they had formerly paid in the time of King Edward the Confessor as Oxford for example But to give an answer to some of your instances as when you say that King William gave away whole Counties as all Cheshire to Hugh Lupus and the greatest part of Shropshire to Roger de Montgomery c. It is a great error to suppose that these Earls had all the Lands mentioned in these Counties to dispose of at their Pleasure and that they turned out all the Old Propâ—ietors which it is certain they did not as I could prove to you by several instances of Antient English Families who have held their Lands and enjoyed the same seats they had in the Conquerors time so that you see there is a great deal of difference between a grant of all the Land of a County and that of the whole County what is meant by the former is plain but as for the latter it generally implies not any thing more than the Government of that County Thus whereas your Dr. would have it that the greatest part of Shropshire was given to Roger de Montgomery Doomesday says only that he had the City of Shrewsbury totum Comitatum and the whole County But that is soon explained by what follows totum Dominum quod Rex ipse tenebat where it is plain that by Dominium is meant no more than that power to govern it which King Edward had for otherwise the Grant of totum Comitatum had been sufficient M. I confess this is more than I ever heard or considered before concerning this matter but you do not give me any positive proof that at the time when Doomes day Book was made there were any Englishmen who held Earldoms or Baronies or other great Estates of the King or any of his great Men so that what you have said hitherto tho' it carry a great shew of probability yet is no positive proof against the Doctors assertion F. I shall not go about to deny what William of Malmesbury and Henry of Huntington so positively affirm that for sometime before the end of King William's Reign there was no Englishman a Bishop Abbot or Earl in England yet does it not therefore follow that it was thus thorough his whole Reign or if it were so that it will therefore follows that there were few Englishmen who when Domesday Book was made possessed any Lands in England but that in part of King William's Reign there were many English Earls and Barons appears by above a dozen Charters cited by Sir William Dugdale in the Saxon and Latin Tongues in his Monast. Anglic. which are either directed by K. William to all his Earls and Thains or else in Latin Omnibus Baronibus Francigenis Anglis or else Omnibus Baronibus Fidelibus suis Francis Anglis salutem the like Charters also appear of Henry J. and the Empress Maud his Daughter so that if Francigena and Francus signifie a Frenchman and Anglus and Englishman and if Fidelis does as your Dr. would have it signifie a Tenant in Capite then I think nothing is plainer than that there were for great part of King William's Reign both Earls Barons and Tenants in Capite of English Extraction But to come to particular persons it will appear by the Saxon or English names in Doomesday book as also by several recitals therein that there were divers English
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
wanting to the making such a Master of a Family a lawful and absolute Prince provided he was endued with such power as to be able to protect them yet all this while without supposing any new Divine Authority to be infused by God upon his accession to this Dignity M. I confess you have given me a more exact account concerning your sense of this matter than ever I had before and therefore I shall not further dispute this point with you only let me tell you that upon this Hypothesis of yours is founded that desperate Opinion concerning the real Authority or Majesty of the People which the Common-Wealths men suppose still to reside in the diffusive body thereof after the Government is Instituted And by vertue of which they suppose there still remains a power in them to call their Kings or Governours to an Account and punishing them for Tyranny or any other supposed Faults against the fundamental constitution of the Government or the Original Contract as those of your party are pleased to term it F. Well then to let you see I am none of those Common-Wealths men who maintain any such desperate Doctrine Here I do freely own that where the People have parted with their whole Power either to a Monarch or else to a Supream Council or Senate from thenceforth they have nothing at all to do to call such Governours to an Account or to punish them for the highest Tyranny or Oppression they can commit The utmost I have allowed as lawful to be done in this case in all the Conversations we have had is no more than this That the People in case they see themselves like to be destroy'd and ruin'd both in their Persoâ—â— Consciences and Estates may even under the most Absolute Governments stand upon their own defence and prevent their being thus totally ruined and may also cast off all Allegiance to such Powers in case they refuse to treat them with greater justice and moderation for the futureâ— But as for such limitted or mixt Governments as ours are where the People have still retain'd a share in the Legislature and also in the raising of publick Taxes yet since the King is by Law exempted from punishment or rendring any account of his Actions either to the People or their Representatives the utmost that I contend for is that since the King receives only a Limited Power of ruling according to such and such Laws and will Usurp that share of the Government that do's not belong to him In such cases if he refuse to amend then they may resist his Officers and Ministers nay himself in Person in the executions of such Violent and Illegal Actions And if he still prsist and rceâ—use to amend that then at last they may proceed to Declare that he hath forfeited his Crown or Regal Right of Ruling over them And then in such Case I hold that it again devolves to the People from whom it first proceeded and that this is no new Doctrine I have the Authority of Fortescut on my side who in his Treatise De Laudibusâ— Legum Angliae Where after having shewn that all Political or Limited Governments proceeded at first from the consent of the People proceeds thus Addressing himself to Prince Henry Son of King Henry the VI. For whom he composed this work Habâ—s ex hâ—c 〈◊〉 Princâ—â—s institutionis Politici Regni formam ex qâ—â— metiri poteris potestatem quam Rex eju◠〈◊〉 legis ipsius aut subditos valeat exercire Ad Tutelam â—amous legis ac subdit orum â—â—rum Corporum â—onorum Rex hujuâ—modi erectus est ad hanc Potestatem a Populo affluxam ipsi habet quo eiâ—noâ— licâ—t potestate aliâ suâ— Populâ— Dâ—minarâ— From whence we may observe that he calls the Government of this Kingdom not Regnum Simply but Regnum Politicum that is a Politick or Limited Kingdom in opposition to Regnum Absolutum made up of divers parts This he calls a â—ower flowing or proceeding from the People and if it thus proceeds from the People it must certainly return to them again upon the failure of the conditions to be performed on his part Noâ— do's this suppose any real Majesty or Authority in them who take this forfeiture any more than is â—o's suppose it in the People according to your own Hypothesis when the Civill Authority do's again devolve to them upon the Death of a King without Lawful Heirs M. I do now very well understand your Hypothesis but I think Princes are not thereby in a better condition by being thus unaccountable to and unpunishable by the people But that they are father in a much worse since you say they may resist nay kill them when they are once entered into a state of War against them For whereas where Princes are accountable to their People or Senate they may then be admitted to be heard to make their defence in case of any Oppression or Misgovernment laid to their charge As the King of Poland may at this day to the great Assembly of Estates or Dyeâ— of the Nation Whereas in the case of the King as you have put it though he is not accountable to the Parliament yet he is still lyable to that which is more dangerous viz. To be Judged Censured and Declared forfeit by every â—onsiderable fellow of the Rabble on pretence of violating this Original Contract and having broken the fundamental constitution of the Government and so shall be condemned unheard and perhaps without any just cause So that I think a man had as good be a Bâ—â—ward as a King upon such Term. F. The men of your Principles I see are not to be pleased unless Princes may do whatever they have a mind to without controul or any mans judging or opposing the Illegality of their Actions For if a Parliament takes upon its self to judge of the Kings Actions this is calling their Princes to an Account and a thing against the Laws of the Land as also that of Nations If the whole Body of the People take upon them to judge when he has violated the fundamental Laws of the Kingdom and broken the Original Contract and thereupon resist him This is making the King liable to be Judged and Censured by every mean fellow of the Rabble But to let you see that both Judging and Disobeying the Kings commands if contrary to Law is not a thing of such dangerous consequence as you would make it appears by the late Petition of the Seven Bishops wherein they take upon them to Judge that the Kings 〈◊〉 Declaration of Liberty of Conscience being against several Acts of Parliament they cannot with a safe Conscience Publish it or agree to the Reâ—ding of â—t in the Churches Now I desire to know whether this be 〈◊〉 a making the Kings Actions liable to be Judged and Censured by every one of the Rabble since these Bishops acted thus neither as Privy Councellors noâ— as Peers in Parliamentâ— for by the
same right by which they took upon them to make this Declaration by the same right not only every Curate of a Parish but also every Layman in England was free to Judge of the Kings breach of this Law and consequently of denying obedience thereunto which disobedience if it once prove general will quickly make the Kings personal commands wholly insignificant So that it seems it is not the Peopleâ— Judging of the Illegality of the Kingâ— Actions and Commands which is the thing you 〈◊〉 fault with since when these Bishops acted thus all the high men of the Church of England praised it to the Skie So that it seems it is now the bare Censuring and Disobedience that makes it a crime but it is the iâ—sisting such Violent and Illegal orders and commands and at last Declaring that Power void and forfeited by which they were made That sticks in your stomach which is as much as to say that this Judging and Disobedience in its self is no Crime but the pushing it home and doing it in such a way as that it may be mended for the future though this is never lawful to be done but when things come to that extremity that all milder remedies are become ineffectual But to answer your Objections a little more closely the consequences of my Opinion are not so dangerous as you suppose them if you will please to consider what I have already laid down at our last Meeting As first That this Resistance is never to be made but when this violent breach of the Laws becomes evident and undeniable not to the Rabble alone but to the whole Nation that is all sorts and degrees or men and as long as there is any question about it I acknowledge it is by no means to be used And lastly As to declare the Regal Power forfeited this likewise is never to be done but when the King becomes so obstinately resolved to pursue those evil and illegal coâ—â—es as that he is utterly irreclaimable and refuses all propositions and terms of amending or redressing them And as to what you say that the King is hereby depriv'd of all means of justifying himself or vindicating his Actions that is not so since if a War be once begun he may do this either by Declaration or Treaties as King Charles the First did in his War with the Parliament by which means he gain'd a great many both of the Nobility Gentry and Commonalty to his Party who were before absolutely set against him But if you will needs have a Parliament to Judge and examine the reality of this forfeiture I so far joyn with you that though every private man may first judge thereof yet is it not become absolute and an Act of the whole People till the Estates of the Kingdom have by some solemn Vote or Declaration made it so M. Well I see you do all you can to make the best of a bad Cause but though I think nothing of what you have said can give Subjectâ— any right to resist much less to cast off all Allegiance to their Natural Prince yet I shall not now dispute this point any longer with you but will proceed to the merits of the Cause and shall lâ—â— you see that even upon your own principles the King has not been dealt 〈◊〉 in all this whole transaction either like an Ally by the States General of the United Provinces or like a near Relation or a Son in-law by the Prince of Orange or like a King by his own Subjects To begin with the Estates in the first place it is apparent that they have acted treacherously with the King and contrary to the last Treaty of Peace and Alliance in furnishing the Prince 〈…〉 their Captain General and 〈◊〉 holder both with Ships Men and Money and make this late Expedition against England without so much as ever declaring the cause of their Quarrel or demanding any satisfaction if any occasion of difference had been given But the Prince of Orange his dealing with the King his Father-in law has been much less justifiable for in the first place he is not only guilty of the same fault with his Masters the Dutch in beginning a War without ever declaring the causes of it or demanding any satisfaction or â—eparation if he had been injur'd till it was too late to go back and that his Fleet was ready and the Army shipt for the Expedition but which was more unkind from a Nephew and a Son-in-law who had reason to expect all the satisfaction which a King an Uncle and a Father-in-law could give though indeed to speak the truth the whole War was in my Opinion altogether unjust on the Pâ—â—nces side since his chief pretences were to redress Grievances and to re-establish the Bishops and Church of England with the Colledges in their just Rights and also restore the whole Nation to the just Execution of the Laws by a Free Parliament and Priviledges Now I desire to know what the Prince of Orange had to do either as a Neighbour or a Son-in-law to concern himself with the Mis-government of the Affairs of England much less to countenance and take the part of those many Male contents and Traitours who have ever since the Duke of Manmouth's Rebellion gone over into Holland So that upon the whole matter I can find but one thing which he had so much as a pretence of making War about if it had been real viz. the pretended suppoâ—â—â—tioâ—s Birth of the Prince of Wales and yet even for this he ought not to have made War till such time as all reasonable satisfaction in this matter had been demanded and denied him and that the next Parliament which the King had before declared should meet in November last had been either hindered from medling in it or that they had faâ—â—'d to make a due enquiry into it But if we look home F. Pray Sir before you come to consider what has been done here give me leave to iustifie the late proceedings of the States General and the Prince of Orange in this matter First as to the Estates it is a very great mistake for you affirm that they made this War upon the King in their own names or furnish'd the Prince of Orange with Ships or Men as their Sâ—adt-holder or General but only as a free Independent Prince whom they looked upon to have a good Cause of making War against the King of England as one they had great cause to believe was so far engag'd in the France interesâ— as instead of standing 〈◊〉 in this War with the Empire which they every day expected when he would joyn with France and declare War against them as they had reason to â—ear by several angry Memorials which the French King's Eâ—voy in Holland had not long before given them so that indeed it was but according to the Rules of Self-preservation to begin first especially when it might be done without their appearing in it at allâ— but granting
during his confinement there sent a Lady I could name on a message to two reverend Prelates of our Church together with an Emrauld Ring from his Finger as a Testimony of the Truth of her Commission to this effect That his Majesty being sensible of the sad condition the Church of England as well as he himself was in and that there was no way so likely for him to get out of it as by granting his Subjects and particularly the Church of England such securities for the enjoyment of their just Rights and Liberties as they could in reason demand therefore he wholly left it to the discretion of those Bishops to make to the Peers and Bishops that were then to meet suddenly whatever proposals they should think reasonable on his behalf for the satisfaction of the Church and safety of the Nation and that he would be ready to grant and ratifie them whensoever he should be required F. This is indeed more than ever I heard before and can scarce believe but did the Lady go and deliver her message And pray what answer did those Bishop give to this fair proposal M. Yes the Lady did deliver her message and these Bishops answer'd both to the same effect that they had a real duty and affection for his Majesty and a great desire to serve him but that considering the great Power of the Prince of Orange and his present aversion to any agreement with his Majesty they very much feared that the Peers would not venture to give the Prince any such advice or to interpose with him on his Majesties behalf which in my opinion was very meanly and cowardly done of them who considering their duty to him as King and also those particular obligations they owed him as their Benefactor and who had been the greatest means of their being raised to those dignities in his Brothers Reign now I desire to know if this message had received its intended effect what greater demonstration his Majesty could have given to satisfie the World that he really intended to set all things right again had he been permitted to do it F. I will not farther question the Truth of this Relation though perhaps I might have sufficient reason for it since you say you had it from a person of good credit and who was privy to this transaction nor yet will I be so inquisitive as to know the names either of the Bishops or of the Lady since you make it a secret but yet notwithstanding I do still very much question whether the King did ever really design to do what he then offer'd and did not intend to put a sham upon their Lordships to serve his present occasion and to see if he could divide the Bishops and Peers of the Church of England from the Prince of Oranges Interest and so by making them offer such Proposals as the Prince should not think fit to agree to might make them declare against his proceedings which would have created great divisions and heart-burnings between those of the high Church of England party and the Prince and thereby have involved us again in fresh disturbances of which no doubt the King and the Popish Faction were like to receive the greatest advantage for you know the old saying divide impera But to let you see that I do not speak without just grounds for my opinion let us examine every circumstance of this matter first if the King had meant really is it likely that he would have trusted a business of that high moment to a Woman When he had then the Lords of Alesbury and Arron besides other Protestant Gentlemen then waiting on him and they were much fitter to be trusted than this Lady let her be whom she will Or can any one believe if the King had meant really that he would not have sent his Proposals in Writing since he very well knew from the Princes Declaration as well as the Bishops Petition and Addresses to him what the whole Nation and the Church of England in particular required at his hands But that he must send a loose and uncertain Message which it was in his power to disown whenever he pleased by saying the foolish Woman mistook his meaning and she also might be so much his Creature as to take the fault wholly upon her self whenever it should serve the Kings turn so to do and therefore I think it was very wisely and honestly done of those reverend Prelets to refuse medling in such a ticklish affair since it is plain by his not making any such proposals to the Prince of Orange himself or the Lords about him that he was not to be made privy to it but rather it should be carried on whether he would or no and without giving him any satisfaction in his particular concern as to the Prince of Wales and lastly I desire you farther to consider whether the King might not hereafter when ever he had power have made void whatever agreements or concessions he should have then granted either to the Church of England or to the Nation by pleading afterwards that they were obtained by decrees whilst he was not sui juris but under the Power of the Prince of Orange I have but one thing more to add which I before omitted which is to make some reply to what you said concerning the mischief that the Mob has done upon Houses Forests and Praks since his Majesty's first departure and therefore granting the matter of Fact that much mischief and spoil has been committed yet I deny that it is more than has been done by the most Arbitrary Kings since the Conquest to this day as you are pleased to affirm for I believe you forget the Thirty Parish Churches and Towns which our Historian tell us your William the Conquerour and his Son Ruâ—us destroyed when they inlarged new Forrests and therein acted contrary to their Oaths like true despotick Tyrants you likewise forget the miserable spoil and waste which King Iohn and Henry the III. made upon the Houses Castles and Estates of the Barons and Gentry of England who opposed them in their unjust and illegal violations of Magna Charta besides other Tyrannical actions of the same kind committed by King Edward and Richard the II. too long here to relate but if these mischiefs were done you speak of who have we to thank for it but the King who stealing away on the sudden without leaving any orders for the Government of the Kingdom all persons in Commission either Civil or Military doubted whether their Commissions were noâ— at an end by the Kings deserting the Government as he did besides you very well know that the Common People were so enraged against the Popish Faction for so many insolent actions they had committed in King Iames's Reign and so many apparent breaches and contempts of all the Laws made against them that you cannot wonder if when they were rid of the fear of the Irish and of King Iames's Army they kept
carried on with great vigour and though I grant that after divers changes of fortune the Empress was at last forced to quit the Kingdom yet her Son Duke Henry did not fail to continue his claim to the Crown in right of his Mother and coming over into England renewed the War against King Stephen which was at last compos'd by an agreement between them which as Matthew Paris and Mat. Westminster relate it was thus That King Stephen acknowledged in an Assembly of Bishops and other great men of the Kingdom that Duke Henry had an Hereditary right to the Crown and the Duke thereupon as kindly granted that King Stephen should peaceably possess it during his Life so that it is certain till this agreement even by his own acknowledgment he had no right to it and though I grant that the Empress Maud for some reasons we are not able to give a true account of never took upon her the Title of Queen yet it is very certain that she acted as such during all the time she was in England receiving Homage and Fealty from those Lords and others who came over to her side and also granting Charters and conferring Honours by the Title of Anglorum Domina which shews she look'd upon her self to be the Supream Governess of the Kingdom though not under the Title of Queen so that I think you can find nothing in this transaction that can support your Notion of Vacancy F. Pray give me leave to answer what you have now said before you proceed farther first I cannot excuse neither King Stephen for taking the Crown nor the Bishops and Great men that set it on his Head from perjury and injustice since the Emperess Maud had been before in a Common-Council of the whole Kingdom declared the Lawful Successor and that Fealty had been sworn to her as such All that I insist upon in this affair is this that Quod furi non debâ—t factum valet And though this ought not to have been done yet when once done did stand good and therefore if whilst the Throne was vacant King Stephen by the Election and Consent of the Bishops and Great Men of England was placed therein he was there looked upon as true and legal King as long as he lived And this was the reason why the Emperess never took upon her the Title of Queen of England no not when she had taken King Stephen prisoner and one would have thought might have justly done it as a Conqueress But yet she forbore it because that Title was not then to be taken without the consent of the Great Council of the Kingdom which I cannot find she ever held her party being not great enough to make one And though I cannot deny but that she might in some particulars exercise some prerogatives of Royal Power yet this was only upon a pretence of her being Elected and Stiled by this Title of Lady of the English in a Synod of the Clergy at Winchester by the procurement of Henry the then Bishop of that See and the Popes Legat who was now turned against his brother King Stephen For she was never generally received nor own'd as Queen nor did she ever exercise those great prerogatives of Sovereign Power viz. Calling of Great Councils making of Laws raising of Taxes or Coining Mony But whereas you represent King Stephen to have been Elected but by a very small party of the Bishops and Noblemen of England yet it is very much to be doubted whether William of Malmesbury who Dedicated his History to Robert Earl of Gloucester King Stephens greatest Enemy being no friend to his Title is to be altogether credited in this matter For Henry of Huntington who lived not long after tells us expresly that Omnes qui Sacramentum juraverant tam Praesules quam Consules Principes assensum Stephano praebutrunt hominium fecerunt And it is also as certain that the Earls of Gloucester and Chester the two greatest men of England did then likewise swear Allegiance to him and own his Title though they afterwards revolted from him again Yet could they do nothing considerable against him till his own Brother the Bishop of Winchester revolted also from him upon pretence that the King had violated the Rights of the Church And though it is true that after the Empresses departure out of England Duke Henry her Son came over and prosecuted the War against King Stephen yet could it not be in his own but his Mothers Right who was then alive Nor could the agreement you mention be made between the King and the Duke as having then a right to the Crown in his own Person since we read of no concession the Empress his Mother had made to him of it And therefore whatever Title Henry could claim thereunto Upon the death of King Stephen it was wholly due to this Kings adopting him for his Son and declaring him his Successor upon condition that he himself should enjoy the Crown during his life which agreement was solemnly confirmed and ratified and that by Oath in a full Assembly of all the Bishops Lords and great men of the Kingdom For Ordericus Vitalis in his Annals p. 989. Is very express in the manner of this great Transaction in these words Sic tamen in praesentiarum ipse Rex Caeteri Potentes Sacramento â—irmarent quod Dux post mortem Regis si tempore eum superviveret pacifice aâ—â—que contâ—adâ—ctione Regnum haberet therefore as long as the Empress Maud lived who died after her Son King Henry's coming to the Crown ' â—is plain he could have no Hereditary Right to it notwithstanding what Matthew Paris and Matthew Westminster who lived long after these Transactions have said to the contrary and therein are to be looked upon as Authors that speak their own sense rather than that of the Writers of those times M. I confess what you have urged in this matter concerning Duke Henry's being admitted as Heir of the Kingdom during the Life of his Mother the Empress Maud seems to the purpose and there could be nothing said against it but that this was done by the Concession of the Empress her self who surrender'd all her pretentions to her Son tho' we have no particular account of it or else which is more likely in my opinion that the Government of Women being then unknown in England and Normandy and consequently odious to the English and Norman Nobility and for which reason chiefly they had before set this Empress aside they thought they did in effect perform their Oath to her when they acknowledged her Title in her Son Duke Henry who is said by the Historians of those times to have succeeded Stephen Iure Haereditario which could not at all agree with your notion of his receiving his Title from the Consent or Election of the great Council But I shall pass over this and come to your next instance of the Vacancy of the Throne which you pretend
the Government in the unsetled state it is in to follow Cromwell's Example and to impose no Oaths of Allegiance at all since the Government may be as secure without it as for all that I can see they can be with it and as it is now managed I see little it can serve for but to distinguish and divide us one from another and besides its being a snare to the Consciences of so many that take it it is like also to prove the ruine of divers of our Bishops and other honest Men both of the Clergy and Laity who will certainly rather lose their Dignities and Imployments than ever take it which will also cause a great Schism in the Church as I doubt you will find when it is too late whereas if these men might have held their Bishopricks and all other Preferments and Offices without having this Oath impos'd upon them I doubt not but they would serve both the Church and State in their several stations according to their duties and as far as lawfully they could F. I cannot deny but you have spoken very honestly and like a good English Man in many things you have now said in case your intentions towards the present Government were real as your words are fair and therefore I cannot wonder that you have been formerly a stiff asserter of the lawfulness and necessity of the Oath of Allegiance should now be for taking it quite away now it grows too hard for you self and those of your Opinion to digest As if to oblige Subjects to defend their Governours were a necessary security for your rightful Princes but were unnecessary for those whom you shall think fit to suppose to be Usurpers And though I confess I must very much pity the over-nice Principles of those of your way who are truly peaceable and consciencious and are like to be ruin'd by their refusal of it yet for all that I very much doubt whether it would be for the best to take this Oath quite away since it would make a strange alteration in the Government to admit all persons into ordinary Charges much less into Imployments of Trust and Profit without taking any Oath at all Your only Objections against it are these First that you doubt that it is unlawful to impose promissary Oaths and the next is that it will not perform the end for which it is intended viz. to distinguish those who will serve the Government faithfully and those that will not since you confess that a great many who are not at all satisfied in their Consciences will for interest not only hold their old Imployments but will also take new ones under it which I grant is not to be avoided if men will venture to be damned So likewise on the other side I must tell you that the quite taking away the Oath of Allegiance will not at all mend the matter but make it much worse since then not only those whose Consoiences will give them leave to take the Oaths but also those who think they ought not to take them will be alike capable of Imployments and when they are in them though I grant they may be both alike free to act as they please against the present Government and for restoring of King Iames yet I must needs tell you for all that that I am much more fearful of the ill will or malice of those who think themselues oblig'd in Conscience to overthrow the present settlement and who continue stiff to their first Principles than of those who will so far comply with this present Government and their own interest as to take the new Oath of Allegiance in whatever sence they please for I am very well satisfied that such men though they are not so right for the Government as I could wish them yet either fear of punishment or else the consideration of their own self-interest will always make them desire to retain those Imployments they have already got since they can never be assured of bettering their Condition under King Iames and a Popish Government should he ever return whereas those that are bigotted to Principles will always think it their duty by vertue of this notion of a Natural Allegiance as well as their former Oath to endeavour to restore him by all the ways and means that can ever lie in their power But as for the unlawfulness of a promissory Oath since you your self speak doubtfully of it and few Casuists except Grotius have been of that Opinion I think it is not safe to quit our antient Laws which particularly prescribe that not only all Magistrates and Officers but also all other of the Kings Subjects should take the old Oath of Fidelity or Allegiance as we now stile it in the Court Leet or Sheriffs Torne when they come to the Age of fourteen years which Oath as appears by what we can find of it in Edward the Confessors and King William's Laws which we have already recited as also you may find it in Sir H. Spelman's Glossary Tit. Fidelitas was made to the King as their Leige Lord of Life and Limb and which implies an active Obedience to defend him against all his Enemies without any exception of such as may claim by Inheritance or right of Blood Now this being so I cannot be perswaded that the Government ought to quit any lawful means whereby it may preserve it self and distinguish those who would really serve it from those who will not and though perhaps the Government may find it self mistaken in its account in some Men whose Consciences are large enough to swallow any Oath whatsoever yet I think I may still safely maintain that it is still in less danger from a few such Libertines than from those of your Opinion who would not only keep their Places under this Government but will also continue in a perfect state of War against it let them be treated never so kindly and therefore as to those dreadful Consequences of Schisms in the Church and the lessening and dividing our Party as to the former we must run the hazard of it since it was never heard of that the Bishops who are in some respects Temporal Barons held their Bishopricks under any King since the Conquest without owning his Authority And I can also shew you that the King and Parliament have either actually deprived or else declared such Bishops Traytors to the Government So that if any such a Schism be made it will proceed from a scandal unjustly taken by some scrupulous Men and not by the Government And as for the other inconvenience I think it is much safer for the Government to imploy fewer Men then by not knowing who are Friends or Foes to trust all promiscuously though perhaps notwithstanding their utmost care some Men of little or no Consciences will places in this as well as they have done formerly which can by no other means be prevented as I know off but by chusâ—ing Men of honest Principles
Latine Translation of the Old Coronation-Oath D. 8. p. 560. to 563. W Wales W. it s Titular Prince be really Son to King James the Second and Queen Mary D. 11. p. 784 to 789. W. He ought to have been received as the true Son and Heir of the said King D. 12. p. 875. to 877. and that let the consequences be what they will Ib. p. 879. to 881. Wardship Marriage and Relief W. wholly derived from the Normans D. 10. p. 750.751 Its advantages and inconveniencies considered Ib. A Wife W. she can ever be discharged from the Power her Husband hath over her in the state of Nature by any means but by his express consent D. 1. p. 43. King William the First why stiled the Conquerour D. 5. p. 325. W. He claimed to be King of England by Donation of King Edward the Confessor or by Conquest D. 10. p. 715.718 719. W. He was ever Elected and took the same Coronation-Oath as the English Saxon Kings had done before D. 10. p. 716.722 to 737. W. He might justly have seized all the Lands in England to his own use D. 2. p. 171. W. He gave most of the Lands of England to his followers Ibid. p. 721 to 729. and to 747. W. He alter'd any thing in the fundamental constitution of the Government D. 5. p. 320. to 322. W. He altered all the Old Laws of England or confirmed those of King Edward D. 10. p. 737. to 760. His Second Oath upon the Relicks of St. Alban Ib. 761 762. His Laws concerning all Freemens exemption from Taxes upon their finding Arms D. 6. p. 426 427. W. He and his Son William Rufus made Laws and imposed Taxes without the consent of the Great Council D 10. p. 744 755. King William the Third W. he hath any Title by Conquest over King James or else from his Marriage with the Princess and the Act of the Convention D. 12. p. 883. to 899. His Religion and Principles vindicated Ib. 886 887. Wites or Wise-Men in the English Saxon Councils the true signification of that term D. 6. p. 373. to 378. Wittena à Gemots or Great Councils among the English Saxons W. they consisted of more than the higher Nobility Ib. p. 381. Wives how far obliged to be obedient to the Commands of their Husbands D. 1. p. 40. Writ of Summons to the Commmons of the 49th of Henry the Third W it was the first of that kind D. 7. p. 519. to 521. W. Any Writs of Summons of Bishops or Lords to Parliament are to be found before that time Ib. p. 516. Writ of the 19th of Henry the Third to the Sâ—eriffs to levy two Marks Scutage upon Tenants by Knights Service holding of Tenants in Capite Ib. 445 Writ of the 24th of Henry the Third commanding all Men holding a whole Knights Fee of whatsoever Tenure to be Knighted D. 6. p. 432. Writs of Summons to Knights Citizens and Burgesses to Parliament at Shrewsbury in the 11th of Edward the First D. 8. p. 574. Writ of Summons to Knights of Shires cited by Dr. B. in the 18th of Edward the First W. it was to a Parliament D. 7. p. 530. to 536. Writ of the 22d of Edward the First W. a Summons to Parliament D. 7. p. 533 534. Writ of the 30th of Edward the First commanding the Levying of Forty Shillings upon each Knights Fee which had been granted ever since the Eighteenth Ibid. p. 479. W. The Commons Granted that Tax Ibid. Writs of the 28th of Edward the First and 45th of Edward the Third W. of Summons to Parliaments Ib. 537. Writs for Expences to Knights of Shires how ancient D. 8. p. 589. to 591. Y Duke of York Richard his Title declared in Parliament D. 12. p. 863. Edward Duke of York Recognized by Parliament to be lawful King from the Death of his Father Richard Duke of York Ib. p. 865. Duke of York James W. he was not intirely in the French Interest and Designs before he came to the Crown D. 11. p. 802. AN APPENDIX Containing some Authorities sit to be added for farther confirmation of some things laid down in the foregoing Dialogues TO be added to Dialogue the Fourth p. 290. at the end of F s Speech after these words no particular Church can read thus And that divers of the most Eminent Divines of our Church have used the same freedom with several other Doctrines contained in these Homilies may appear from Dr. Hammonds Dr. Heylins and Dr. Taylors with several other Eminent Writers expresly denying that the Church of Rome is guilty of Idolatry or that the Pope is Antichrist tho' both these Doctrines are as plainly laid down in the Homilies as the Doctrine of Non-Resistance And yet none of these Men are ever taxed by those of the Church of England for quitting her Ancient Orthodox Doctrines and I desire you to give me a good Reason if you can why it is more lawful and excusable to part with the former of these Doctrines than the latter The like I may say also for the Doctrine of Predestination which tho expresly asserted in the 36 Articles of the Church of England as interpreted by all the Bishops and Writers in the Reign of Queen Elizabeth and King Iames as also the Bishops and Divines sent as Delegates from our Church to the Synod of Dort who joyned in the interpretation of that Article in the strict Calvinistical sense you find in all the determinations of that Synod against the Doctrines of the Arminians which then began to prevail yet since the time that Arch-Bishop Laud had the nominating of what Persons he thought fit to be made Bishops Deans c. not one in ten of them but have been Arminians in all those Points wherein they wholly differ from the Doctrine of Calvin which is but the same with that of our 36 Articles so interpreted yet none of the Divines of our present Church who hold these Opinions are branded with Apostacy from its Ancient Doctrine but if any well meaning Divine out of love to his Country and to prevent Popery and Slavery from breaking in upon us have but Preach'd or Publish'd any thing in derogation to these Darling Doctrines of Passive Obedience and Non-Resistance he is straight branded with Apostacy from the Church in quitting its main distinguishing Character and we have lately seen Degrading nay the most cruel Whipping and Imprisonment thought too little for such a Man but one may say of some Men with truth enough Dat veniam Corvis vexat censura Columbis So Dialogue the Sixth p. 397. at the bottom after these words in those times read this But that the House of Commons were anciently often comprehended under the stile of Grantz which is the same with Magnates in Latine pray consult the Parliament Rolls of Edward the Third where you will find in the 4 th of that King this passage est assentu accorde per nostre Seigneur le Roy tous les Grantz
appears by the Title to the Latin Customs of Normandy which are at the End of the Old French Edition of the Constumiers de Normandy Printed at Râ—aâ— 1515. The Title of which is thuâ— Iura Consuetudines Ducatus Noâ—maniae The Prologue to which begins thus Quoniam Leges Instituta quae Normanorum Principes non sint magna provisionis Industria Praelatorum Comitum Baronum nec non Caeterorum virorum prudentum consilio Assensu ad salutem humani foederis Statuerunt Whereby it is apparent that the Antient Laws of Normandy were made by the Advice and Consent of the Estates for the Preservation of that humane Covenant they had formerly made with their first Duke Rollo when he had that Dutchy granted him by the King of France and whoever will consult the antient Histories and Laws of that Dutchy will find theâ—â— Dukes of Normandy no more absolute Monarchs there than the Kings of Norway from whence they came so that if their Duke should have gone about to take away their Estates or inslave the Persons of the Norman Nobility and People he might justly have been resisted by them and therefore their taking Lands from K. William after his pretended Conquest here must either have conferred an Estate upon them according to the Laws of England or Normandy not according to the former for you assert that Tenures in Capite and Knight's service were generally introduced by his coming so that if they were by the Normans Law as you suppose they were then no farther subjects to their Duke by that Tenure when made King of England than they were whilst he was Duke of Normandy viz. only according to the Laws and Customs by which they held these Estates so that if their Duke was not irresistible by them in case of Tyranny in his own Country so he was also here by the same reason since whatever he did in respect of the English he could acquire no new right over them And that an Oath of Homage alone doth not make the Person to whom it is taken irresistible if he makes an unjust War upon his Vassals appears by the Dukes of Normandy themselves who tho' they held that Dutchy by Homage to the King of France and took the same Oath to him upon every Kings Accession to the Crown of being his Liegeman and to be True and Faithful to his Lord the King of France for the said Dutchy of Normandy yet might the Dukes of Normandy without any Imputation of Rebellion have resisted the King of France in case he made an unjust War upon them nor were ever the Dukes of Normandy accused of Rebellion for so doing in all the Wars that they had with the Kings of France And therefore the holding of an Estate by Homage doth not suppose that the Lord of whom it is held was irresistible nor doth the word of Allegiance signifie any more than that duty which the Liegemen by the Old Norman Law owed to their Supream Lord of whom they held their Lands and therefore when the King or Supream Lord of the Fee did not perform his part of the Contract but went about to turn them out of their Estates or to invade any of their just rights by force it was usual for the Tenants to defie the Lords and renounce their Homage to them for which they used the Barbarous Latin word diffidare in French to defie that is to renounce that Faith and Allegiance which before they owed them and the supream Lords also oftentimes defied their Tenants thus Mat. Paris tells in Anno 1233. that K. Henry the Third by the Counsel of the Bishop of Winchester defied Richard the Earl Mareschal and the year following we find the Earl justifying himself in this manner being then in Ireland First I answer that I never acted Treasonably against the King for he has unjustly spoil'd me of my Office of Mareschal without the Judgment of my Peers and has Proclaim'd me banisht thorough all England he has burnt my Houses destroyed my Lands c. he has more than once defied me when I was always ready to stand to the Judgment of my Peers from which time said he I ceased to be the Kings Liegeman and was absolved from his Homage not by my self but by him and whereas you say that tho' the King or Supream Lord cannot forfeit his Right tho' he breaks his part of the Compact because of the inequality which there is between a King and a Subject then this Prerogative of Non-resistance doth not belong to the King as he is Supream Lord of the Land but as he is King and giveth Law to the Subjects which may have some colour of Truth in Absolute Monarchies but was of no Force either in the Government of Normandy or England where the Duke or King without the consent of his Estates never could alone make Laws but as I will not deny our Government to be a Monarchy so it is as certain that it is limited in the very constitution either by the Saxons or Normans begin where you please and therefore my conclusion still holds good that if the English have now succeeded to those very Lands and Priviledges which the Normans anciently enjoyed then whatsoever Right or Liberty the English Proprietors of Estates do at this day enjoy they do not only hold them as the Successors and Descendants of those Normans and Frenchmen but are also restored to them Iure postliminii as you Civilians Term it since they never submitted themselves or took an Oath of Allegiance to King William and his heirs but only to himself Personally there being no such clause in any Oath of Allegiance till it was so ordained many ages after in the Reign of K. Henry the fourth nor was this Oath ever taken by our English Ancestors to K. William as to a Conqueror but the lawful Successor of K. Edward the Confessor and K. Williams actual taking away the Estates of a great many of the English Nobility and Gentry contrary to his own Oath and without any just oâ—use could no more give him a right so to do than if Henry the fourth or Henry the seventh both which came to the Crown by the assistance of a Foreign force should upon a pretence of being Conquerors have govern'd by an Army and so have taken away whose Estate they pleased and given them to their followers that came over with them M. I shall not dispute this matter with you any further therefore pray proceed to the other Point you took upon you to prove that King William did not take away so great a share of the Lands of England as the Dr. and those of our Opinion affirm F. I shall observe your commands and therefore in the first place I desire you to take notice that according to the Doctors own shewing your Conqueror never took away the Lands of all the Bishops and Abbots of England much less those that belonged to Deans and Chapters or