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
seize upon some Territory or Island sufficient for them to Inhabit in Yet doth not the Text tell us whether the Countrey they lived in was by them divided into particular shares or whether they made use of it in common as the Indians of America do at this day where the Quantity of Land doth far exceed that of the Inhabitants that live in it Nor lastly Supposing that a Division was made of these Countries they then inhabited doth it tell us whether it was done by the Sole Authority of their Prince or Leader claiming as his own the whole Dominion of it so that no Man could have Right to a foot of Ground in it but himself or whether this Division was made by the Joynt Consent and Agreement of all the rest of the Heads of Families and other Freemen that went along with him The Scripture is silent in these Circumstances that only telling us that the Great Grand-sons of Noah mentioned Gen. 10. The Isles of the Gentiles were divided in their Lands every one after his Tongue after their Families in their Nations And that this Division was in the days of Peleg but no where declares whether every particular Region or Countrey was then divided into distinct Shires or not And as for what you say that all Princes and Conquerors of Territories and Countries have the like Absolute Dominion and Property in them as Adam and Noah had over the whole World if it were no more than that I doubt it would be very little since I have already proved and I think you must grant that no Monarch at this day can claim his Crown as the Right Heir of Adam or Noah or as their Representatives and it will I think be much harder to prove that the Sole Property of an acquired Country or Kingdom must be in them by vertue of any such Right But as for your Instance of William the Conqueror's having a Right to all the Lands in England by Conquest since it requires somewhat a longer Answer than the time will now afford I shall refer speaking farther of it till another opportunity But pray Sir at present make me see a little plainer what those Inconveniences and Absurdities are that will follow from my Hypothesis that God at first gave the World and all Creatures therein to Mankind to be used and enjoyed in common if they thought fit M. I shall shew you some farther Absurdities that will follow from it than I have done already For tho' Grotius and Selden indeed maintain that a Community of things was by the Law of Nature of which God is the Author and yet that such a Community should not be able to continue seems to derogateâ— from the Providence of God to ordain a Community of things which could not continue And it seems also an Act of high presumption in the Descendants of Noah to abrogate the Natural Law of Community by introducing that of a Propriety in things F. I pray give me leave to interrupt you that you may not run on in a mistake for let Grotius or Selden assert what they please I am not tied to submit to it and therefore when I say that God gave the World and all the Creatures therein to Men to be used in common if they please I thereby understood that God hath by the Laws of Nature commanded nothing in this matter but hath left the Earth and all things therein to be used in common or in several as may best consist with the Convenience Necessity or Customs and Laws of each particular Nation or Common-Wealth who God designs should live peaceably together and make the best use of the Country where they inhabit and the things therein contained for their own common maintenance and safety according to the expression of the Royal Psalmist But the Earth hath God given to the Children of Men i. e. all the Descendants of Adam M. Well suppose it were so the prime Duties of the Second Table are chiefly conversant about this Right of Propriety but if this Propriety were introduced by Human Laws or Agreements as Grotius and you your self suppose then both the Moral and Divine Law would depend upon the Will of Men so that there could be no Law of Nature against Adultery or Theft if Women and all things else had been in common F. This Objection wholy proceeds from your not having any distinct or true Notions of the Nature and true Original of Propriety and therefore if you please to hear my Account of it I hope you will grant when I have done that your Objection against the Community or things will be to no purpose I do therefore in the first place distinguish between a Natural and a Civil Propriety By the former Mâ—n might be guilty of Theâ—t before Civil Propriety was instituted But as for Adultery that was always unlawful both by the Laws of God and Nature which abhâ—rs Community of Women and Promisâ—uous Copulations and God hath particularly ordained that the Man and his Wife should be one Hesh and no Man that maintains a Natural Community of things ever supposed that Women were amongst those things that were to be in common or that a Man had the same kind of Propriety in his Wife as in his Horse so that the Command against Adultery might very well consist with the Community of things M. Suppose I grant this I do not understand how there can be a Natural Propriety and yet a Community in things as you suppose F. I wonder you should not be able to apprehend this and have been so often at an Ordinary and a Play-house at the former you know tho' a Man hath a Right to his Dinner yet all the Meat at the Table being in common he cannot call any part of it his own till he hath cut it or divided it from the rest And at the latter a Man hath a Right to a Place either in the Box or in the Pit and yet he cannot tell where it is till he hath placed himself in it or sent some body to keep it for him M. I do apprehend what you mean but pray explain to me the manner of this Natural Propriety â— little more at large F. I would readily do it since if that were well done I grant it would be a great step to the clearing of the Original and Nature of all Civil Power I would readily do it were it not now too late to enter upon so long a Subject and therefore I think we may both be sufficiently 〈◊〉 with Talk so as to put it off until another opportunity when I shall give you my thoughts of the 〈◊〉 Original of Civil Government in what sense it proceeds from God and yet how far the Consentus the People is necessary to make it obligatory on the Consciences of the Subjects which when it is once well setled I hope there will be little need of disputing farther whether this great Alteration hath been brought about by Lawful means
forfeited to the Conquerour who had a Right either to retain them for himself or else to distribute them as Rewards amongst his 〈◊〉 and Soldiers And that this is the Right of all Conquerors whether Common-Wealth or Monarchs by the Law of Nations and was exercised amongst the Antient Greeks and Romans as well as other Nations I referr you to your own Authors Grotius and Pufendors And therefore since it appears from History that most of the Kingdoms now in Europe and particularly this of England began from Conquest under the Conduct of their first Kings if then whatsoever was so Conquered was acquired for them and they alone had a Property in it it will necessarily follow that all Estates which the Subjects of all sorts now enjoy must have proceeded from their Grants or Concessions And hence it is that not only in England but also in Scotland and France they are all held either mediately or immediately of the King as being at first all derived from him and we read in the antient Laws of Scotland that the King had the whole Property of the Country till the Reign of Malcolm Conmor who as we read in the Ancient Histories of that Country granted all the Lands in Scotland to his Nobility and Gentry according to that old Maxim in their Law Rex distribuit totam Toram Scotiae hominibus juis And therefore if Hereditary Property in Estates were only from the Gift and Bounty of our Kings without any Fundamental Contract between them and their Subjects as you suppose I cannot see any reason granting the worst that can happen which is highly improbable if the Kings of this or of our Neighbouring Nations should go about by force to destroy and take away this Hereditary Property they now enjoy That the People should have any Right to resist them But that it would be not only Ingratitude but Rebellion so to do For tho' I own that Kings were guilty of Perjury in the sight of God if they did it yet that being an â—ffence only against God the Subjects could have no more right to resist than Sons in the State of Nature had to resist their Father if he should go about to take away those Estates which he had before bestowed upon them And as for what you say concerning the Roman Common-Wealth I grant indeed that the Government of the People did there precede that of the Emperour yet if you please to Remember Monarchy was the first and most Antient Government of that People And I doubt not but all the Property the Romans had in their Estates tho' they preceeded from Conquest of their Arms yet it was wholly owing to the Grace and Bounty of their first Kings and when upon the Exâ—ulsion of Iarquin the Supream Power became divided between the Senate and People the Property of all the Lands that were Conquered devolved upon them who often divided them to particular Private Men as they thought fit tho' I confess the Not dividing of these Lands amongst the Common People was afterwards the Cause of great Tumults and Commotions amongst them Yet notwithstanding the Senate and Nobility still maintained their Power and to the last refused to make a Division of those Lands they had formerly Conquered So that the Roman Emperors succeeding in the Power of the Senate and People they were likewise restored as it were ex posâ—liminio to the Prerogatives of the first Kings and consequently as Seneca himself confesses in the place you have quoted tho' the particular Propriety of Estates was in Private Men yet you see he grants the Vniversal Possession or Dominion of them was in the King or Emperor from whom they were Originally derived I would not be thought to speak thus as if I were an Enemy to Mens Liberties and Properties or that I either Fear or desire any Change in them from what we now enjoy but since I think it a thing Morally Impossible to alter them and that therefore no King will be so ill advised as to go about to Seize them into his own hands but only by way of discourse supposing the worst that can happen I think we are not only Obliged in Conscience but also that it were much better for the Common Peace that the Ring should take all we have than that we should involve the Nation in Civill War and confusion and our Consciences under the Guilt of a Mortal Sin by such Resistance and Rebellion F. I am very sorry to see that by your Principles all the Free Nations of Europe lye at the Mercy of any Prince to be made as arrand slaves as any are in Turkey when ever their Monarch please or that they think that they can make more of their People by taking away their Estates and Liberties than by letâ—ing them enjoy them which would render Civil Property in all Kingdoms like private Estates which every Man may let to his Tenants aâ— VVill upon a Rack Rent or for Years or Lives as they shall think fit But I think I may very well differ from you in both your Propositions For omitting any farther discourse of thâ—se Eastern Monarchies where I grant the People are little better than Slaves Yet I think I can easily prove out of the Ancient Histories of those Kingdoms that are now in Europe that tho' most of them began by Conquest yet was it not under the Conduct of Absolute Monarchs but under such Princes or Leaders whose followers as I said before at our last meeting were not properly Subjects nor Mercenaries but Volunteers under those that Commanded them And therefore would never have gone out of their own Countries but to advantage themselves and to enjoy those Priviledges which their Country-men had at home of which Liberty in their Persons and Property in their Estates were the Chief and this is apparent in the French Nation who whatever their Condition may be now yet Anciently called themselves Francs in opposition to that Servitude which they supposed their Neighbouring Nations amongst the Germans were in to the Romans at that time And tho' I grant that these Nations of the Goths Vandals Francs and Saxons from whom most of the Kingdoms in Europe are now derived might Vest or intrust the Lands of the Countreys they had Conquered in him whom they had made their King yet still it was with this Trust that retaining a sufficient part to sustain the Royal Dignity they should distribute the rest to all their Officers and Soldiers according to each man's Valour or Merit And if they had refused to have done this can any Man believe that so free a People as the Antient Histories relate them to have been would ever have suffered it without pulling down those Kings they had set up which was then very common among them for much slighter occasions And to go no higher than William whom you call the Conquerour can any Man believe that if he had retained all the Lands of England to himself not only his
he could not have brought his whole design within the compass of Eight Dialogues as he at first intended and still hopes to do and therefore to ease you of the trouble of buying or reading more Discourses on these Subjects then what he takes to be absolutely necessary he hath reduced all that he had prepared for the Fifth Discourse upon the Subject above mentioned into the two last Dialogues wherein he designs to treat of the Justice and Lawfulness of the late Revolution and the Settlement of the Crown upon their present Mâ—jesties where the then Questions he intended to treat of will properly enough fall in But it is time to speak somewhat concerning this present Discourse since it treat of a Question to be decided only from the History and Laws of this Nation And the Author bids me assure you that he hath lay'd down nothing therein on either side but what he hath produced good Authorities for either from the Histories and Governments of our own or other Neighbouring Nations or from the Colleâ—â—ions of our English Saxon Laws and ancient as well as modern Writers upon the Laws of England and lastly from our Statutes or Acts of Parliament since the reputed Conquest which he found necessary to these Subjects without omitting any Authority that he judged material to be urged on either side But as for the Quotations themselves I hope they are truly cited for the Author assures me upon the word of a Geâ—tleman that he is not conscious of any unfair dealing in that kind either by any wilful omission or concealment and as for the Books Chapters or Pages here quoted if there be any error or mistake of that kind I pray impute it to the Press and not to the Author as well in this as all the rest of these Discourse since he could not be in Town to correct them himself but he intends God willing to rectifie all such mistakâ—s by a Table of Errata at the end of the whole work to which he intends also to add an Exact Index of all the Principal Matters that are debated in it but though I take the Author for an honest Gentleman and one who scorns the mean advantage of a false Quotation yet since many Writers like Montebanks are apt to cry up their own sincerity even when they deceive you most the best advice I can give you is that if you have the leâ—st distrust of any thing here quoted you consult the Authors or Books themselves from whence he hath transcribed them and then you will be best able to judge how far you may trust him another time As for those Parliamentary Records here cited they are either such as have been already Printed from the Rolls in the Tower or other Offices at Westminster and so are allowed for Authentic or else are sâ—ch as have not yet been made publick as for which as well as the former if you have the least distrust of any of them I leave you to search the Records themselves which are I hope now communicated without any reserve to all that are willing to take the pains to consult them I have no more to add but to assure you not from my own but better Iudgments that you will find more in this small Treatise than ever was yet publisht at once or perhaps at all upon these important Subjects Note If the Author hath made one of his Opponents call the Entrance of King William 1. into England and his taking the Crown upon the same condition as his English Predecessors a Conquest it may be understood in the largest Acceptation of that word and for Brevity sake only Authors made use of and how Denoted 1. Harmony of Divinity and Law H. D. L. 2. Dr. Iohnstons Excellency of Monarchical Government I. E. M. G. 3. Huntons Treatise of Monarchy H. T. M. 4. Sir R. Filmers Freeholders Grand Inquest F. F. G. Anarchy of a mixt Monarchy F. A. M. M. 5. Dr. Heylin's Stumbling-Block of Rebellion S. B. R. The Folio Edition 6 Mr. Petyt's Preface to his Ancient Rights of the Commons of England Asserted P.P.R.C. 7. Dr. Brady's Answer to the said Treatise B. A. P. The Folio Edition THE Fifth Dialogue BETWEEN Mr. MEANWELL a Civilian AND Mr. FREEMAN a Gentleman M. YOU are welcom Sir I pray set down by the Fire I was thinking before you came in of the best method of managing this Important Question whether by the Laws and Constitutions of this Kingdom it can in any Case whatever be Lawful to Resist the King or those that Act by Vertue of his Commissions I shall therefore proceed in the next place to the Proof of the Second Proposition in the Argument I at first proposed or to speak Logically the Minor in the Syllogism viz. That the King of England is the Sole Supream or Soveraign Power in this Kingdom and therefore is irresistible and that not only as to his own Person but also with respect to all such who act by his Orders or Commissions though the things commanded be in themselves Illegal F. I do not dislike your method though if you could never so plainly make out to me the truth of this Minor Proposition yet it will come too late to prove that all Resistance of Supream Powers is unlawful in all Cases whatever since I think you have failed in the Proof of that your fiâ—st Proposition But since I do not deny the truth of this second Proposition in some sense I pray be as short as you can in the proof of it M. I shall observe your desire and shall briefly recite some Authorities as well Ancient as Modern as also Acts of Parliament which declare an Absolute and Imperial Power to be Solely in the King To begin with the Saxon times First as to the Title of King or Emperour used Promiscuously Our King Edgar frequently in his Charters caâ—s himself Albionis Anglorum Baâ—ileus and the Grecians esteemed the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to be of full as Eminent a Signification as Emperour and King Edâ—arâ— the Confessor in a Charter to the Abby of Peterburg Stiles himself Rex Anglorum and his Government a Monarchy And King Ethelred in his Charter to Canterbury Stiles himself Angligenum Orcadarum necnon in Gyrojacentium Monarcha Anglorum Induperator So that you hereby may see that the Kings of England long before the Conquest look'd upon themselves as Emperors or absolute Civil Soveraigns So likewise after that time we find W. Rufus Dates his Charter to the Monastry of Shaftsbury Secundo anno Imperiâ— mei And tho' the Title of Emperor hath bin disused yet we shall find the Substance of it sufficiently Challenged in that Letter of W. Rufus to Archbishop Anselm telling him That he had all the Liberties in his Kingdom which the Emperor challenged in the Empire And the like was challenged by Henry the First in all his Disputes with the Pope concerning the Investiture of Bishops and Abbots
made by him as indeed it is true he compiled them out of divers other Laws formerly in force in the other Kingdoms of the Heptarchy Yet that they were also shewn and assented to by the Wittenae Gemots pray see the Conclusion of these Laws in Sir H. Spelman The words are Remarkable Ego Aelfredus West Saxonum Rex ostendi haec omnibus Sapientibus meis dixerunt places ea custodiri So that the calling them the Laws of King Alfred or King Edward doth no more prove that they alone made them then our now Citing such or such a Statute of K. Henry 8th or King Charles the 1st do therefore suppose that those Kings made Laws by their own Sole Authority such Phrases among Ancient Historians as well as our selves at this Day being used only for Brevity sake and signifie no more then their Confirmation of them M. I shall not deny but that our Ancient English Kings did for the most part make no Laws without the Consent of their Great Council Yet I think I can give you an unanswerable Argument to prove that the very Being and Constitution of Parliaments or Great Councils did in the beginning wholy proceed from the Grace and Favour of some of our Ancient Kings thâ— to which of them to ascribe it is not easie to Determine But if we may believe your own Author the Mirrour he tells us almost at the very beginning That King Alfred for the Good State of the Realm caused to Assemble the Counts or Peers and then ordained for a perpetual Custom that twice in the Year or oftner for Business in time of Peace they should Assemble at London to treat of the Government of the People of God and how folks should keep themselves from offences and live in quiet and should receive Right by certain vsages and Iudgments And According to this Establishment were made divers Ordinances by divers Kings until the present King viz. Edw. 1st But to come to the proof of what I affirm it is certain that in those first times the Saxon Kings conferred all the Bishopricks and principal Abbeys in England per Annulum Baculum as Ingulf and Malmsbury expresly tell us And as for the Earls or Aldermen of Counties as also the Great Thanes Judges or Noblemen of the Kingdom they were only Offices held for life in those times which the King might Discharge them of at his Pleasure And hence we find the Titles of Aldermanus Regis and Thanus Regis so frequently to occur in our Ancient Histories and Charters These comprehended under the general Name of Wites were the only Constituent parts of the Great Council in those times for as concerning those we now call the Commons of England we do not so much as find the least mention of them or any Representatives for them till the latter end of the Reign of King Hen. 3d. or the middle of Edw. 1sts Reign as I think Dr. Brady hath Learnedly and fully proved in his last Edition of his Answer to Mr. Petyt's Treatise of the Rights of the Commons of England Asserted Now if it plainly appears that every part or Member of the Parliament did Anciently receive their very Being from the meer Grace and Concession of our Ancient Monarchs can you or any Reasonable Man assert with any Colour of Truth that our Great Councils or Parliaments could be a part of the Fundamental Constitution and as Ancient as the Government it self And if Parliaments did thus receive all that Authority they now Exercise from the Kings Bounty can any Man doubt whether all the Rights and Priviledges we now enjoy are to be Ascribed to any other Original For if the very Keepers as you will have it of these Liberties did all proceed from the King then certainly the things to be Kept must do so too and when you can answer this Argument I have now brought I think I may safely promise you to be your Proselite and to come over to your Opinion M. I confess this is the most plausible Argument you have hitherto urged and if I can't answer it I do likewise promise you to become your Convert But tho granting that Parliaments might have received their Being from the Favours of our Kings I might deny your Consequence that therefore it will follow that all the Rights and Liberties of the Subjects of England must do so too since they might very well have reserved to themselves both Hereditary Properties as also a Right to their Lives Liberties and Estates which the King should not take from them without just Cause and Legal Tryal which when they found invaded by succeeding Princes they might then and not till then find constant Great Councils and Parliaments to be necessary for that End and as the firmest Bullwark against the Tyranny of Succeeding Princes But the Author of the Mirrour in the Section before the place from whence you took your last Quotation expresly tells us that upon the first Election of a King to Reign over the rest of the Saxon Princes they first of all madâ— him to Sweâ—r that He would maintain the Holy Christian Faith with all his Power and would govern his People according to Right without regard to any Person and should be liable to suffer Right i. e. Iudgment as well as others of his People And tho I do not give any Credit to all the Story he there relates of 40 Soveraign Princes in this Island at once Yet the Substance of it may be true that this Election was made of King Egbert by the 40 Earls or Counts of Provinces which were afterward by King Alfred called Shires But that this Author ascribes the Beginning of Great Councils to the first Institution of the Government pray see what he there fâ—rther says And tho the King can have no Peer in the Land nevertheless if by his own wrong he offends against any of his People none of those that Iudge for him can be both Iudge and Party It is therefore agreeable to Right that the King should have Companions to Hear and Determine in Parliament all Writs and Complaints concerning the Wrongs of the King Queen and their Children of which Wrongs they could not otherwise have Common Right These Companions are therefore called Counts after the Latin Câ—mitâ—e Whereby you may see that this Author and Bracton who were Contempâ—â—aries were of the same Opinion in this important Point And I cannot imagine how any Prince who had Power sufficient in his hands to do what he pleased as you suppose our English Saxon Monarchs to have had at the first would ever if they could have helpt it have instituted a Court one of whose chief Businessâ—s it was to examine and redress the Wrongs and Oppressions of themselves their Wives and Children But besides all this what you say might be somewhat likely that our Parliaments or Great Councils did owe their Original only to the Kings good Will and Pleasure did we not find the like
Constitution to have bin in all the Neighbouring Kingdoms in Europe which have bin raised according to the Gothic Model of Government upon the Ruins of the Roman Empire now let us look into Scotland and there we shall find this Institution as Ancient as any History or Record they have If we pass into France we shall find their Assembly of Estates or Great Council to have bin as Ancient as their first Kings and to have had as much Power as any where else in Europe Since they not only frequently Elected but also Deposed their Kings of the first Race and disposed of the Succession of the Crown as they thought fit If we look into Spain we shall find in the two greatest and most Considerable Kingdoms viz. Castile and Arragon the like Assemblies the Power of which was so great in the latter that they could even Depose the King himself if he Tyranniz'd over or Oppress 't them If we go more Northward we shall find in the Ancient Kingdoms of Denmark and Sweden and Norway that their Assembly of Estates or Dyets Elected their Kings and could likewise Depose them till those Kingdoms became Hereditary which was but of modern times I shall omit Poland because perhaps you may dispute whether it is a Kingdom or a Commonwealth But if we pass into Hungary which was Instituted by the Huns a Nation of Gothic Original we shall find not only the like Assembly of Estates as in the other Kingdoms but also that they had a Magistrate called the Palatine who was as it were the Conservator of the People's Liberties and who could Resist even the King himself if he invaded them and which is also very remarkable in all these Kingdoms except Denmark the Representatives of the Cities or Principal Towns which constituted the third Estate or Commons in those Kingdoms had always a place in those Great Councils So that to conclude it is almost impossible to conceive how these Kingdoms I have now mentioned could all agree to fall into the same sort of Government about the same time unless it had proceeded from the particular temper and Genius of the Germane and Gothick Nations from which they were derived Or who can believe that all these Nations and their Kings finding the like Conveniences from these Great Councils and Inconveniences by the want of them should all Conspire to set them up in each of these particular Kingdoms M. I will not deny but that the Institution of Great Councils or Assemblies of the Estates might be as Ancient as the Government it self in several of those Kingdoms you mention which were at first Elective but what is that to England where our Monarchy hath bin by Succession from the first Institution of it and not Elective as you suppose Nor do I much value the Authority of the Mirrour as to the Great Antiquity he Ascribes to this Assembly of Counts or Comites as Bracton calls them and in which by the way no Commons are mentioned And tho I grant the Iudicial Power of the House of Peers is very Ancient Yet that it wholy proceeded at first from the Indulgence of our Kings appears from hence that there was always a necessity of the King's Presence in Parliaments which is very well proved by Sir Robert Cotton in a Learned Treatise written on that Subject wherein he proves that in all Consultations of State and Decisions of private Plaints it is clear from all times the King was not only present to Advise but also to Determine And whensoever the King is present all Power of Iudging which is derived from his ceaseth the Votes of the Lords may serve for matter of Advice the Final Iudgment is only the Kings But indeed of late years Queen Mary and Queen Elizabeth by reason of their Sex being not so fit for publick Assemblies have brought it out of use by which means it is come to pass that many things which were in former times acted by Kings themselves have of late bin left to the Iudgment of the Peers who in quality of Iudges Extraordinary are permitted for the Ease of the King and in his Absence to determine such matters as were Anciently brought before the King himself sitting in Person attended by his Great Council of Prelates and Peers And the Ordinances that are made there receive their Establishment either from the King's Presence in Parliament where his Chair of State is constantly placed or at least from his Confirmation of them who in all Courts and in all Causes is Supream Iudge All Judgments are by or under him and cannot be without much less against his Approbation The King only and none but He if He were able should judge all Causes saith Bracton so that nothing seems plainer to me than that the Iurisdiction which the House of Peers have hitherto exercised for the Hearing and Determining all Causes as well Civil as Criminal by way of Appeal not only between Subjects but also in all Accusations against the Lords themselves proceeds wholy from the Kings which may appear by an Ancient Precedent mentioned by Abbot Brampton in his History It is the Case between King Edw. the Confessor and Godwin Earl of Kent whom the King accused for the Death of his Brother Prince Alfred before the House of Peers and there you will find that after the Earl had put himself upon the Iudgment of the Kings Court the King thereupon said You Noble Lords Earls and Barons i. e. Thanes of the Land who are my Liege-Men now gathered here together and have heard my Appeal and Godwin's Answer I will that in this Appeal between us ye Decree Right Iudgment and do true Iustice And upon their Judgment that the Earl should make the King sufficient Satisfaction in Gold and Silver for the Death of his Brother the King being thereof informed and not willing to contradict it the Historian there sayeth He ratified all they had judged I could give you many other Precedents of latter Date were it not too tedious But this is sufficient to shew that what the Pâ—ers acted in this matter was by the King 's Sole Will and Permission I shall only conclude with one Precedent more in Case of some what alike Nature It is that of Hen. Spencer Bishop of Norwich 7 Rich. 2d who was accused foâ— joyning with the French The Bishop complained what was done against him did not pass by the Assent and Knowledge of the Peers whereupon it was said in Parliament that the Cognisance and Punishment of his Offence did of Câ—mmon Right and Ancient Custom of the Realm of England solely and wholy belong to our Lord the King and no other From all which I infer that the Iudicial Power exercised by the House of Peers is meerly derivative from and Subservient to the Supream Power resiâ—â—ing in the King From whence it also follows that if the Peers have no Power nor Honour but what proceeds from the Prince and that the Commons
believe that the Ancient and Potent Cities of London Tâ—â— Câ—nterbury Lincoln c. Should ever be excluded from having any hand in the Great Consultation of giving Money and making Laws and for the publick defence of the Kingdom in the Saxon times any more than they are now And therefore we find that in all the Kingdom of the German or Gothick original the chief Cities and Towns have still sent Deputies to the Diets or Assemblies of Estates as I said but now In the next place tho I do not positively assert that there were Knights of Shires before the Conquest yet am I not convinced that there were none For tho I confess the Treatise you mention appears to have been written since the coming in of the Normans yet might the Substance of it have been much older than the times of Edw III. and Rich. II. or else certainly King Hen. IV. or his Chancellor for him would never have been at the trouble of transmitting a Copy of this said Modus into Ireland under the Great Seal which is thought to incroach so much on the Prerogative had he not been very well informed of the Antiquity as well as Authority thereof And therefore it might very well be written about the Time of Hen. III. from some Ancient Historians and Records not now extant tho the Copies we have of it may be of no longer standing than the time Mr Selden mentions But admitting that there were no Knights of Shires before the Conquest and tho the Thanes who I suppose made the greatest Figure in the Wittena Geâ—â—â—er were not Earls or chief Thanes that is of the Greater Nobility yet they were great Freeholders and tho Commoners yet Gentlemen and of the Lesser Nobility in the same sense as Gentlemen or Knights of Shires are now And the not elected by the Countries yet might be as well esteemed their Representatives as they are now of Freeholders under 40 s. per Annum Lease-holders and Copy-holders for years who have no Votes at the Election of Parliament men whereas these Thanes were then the chief if not the only Possessors of all the Freehold Estates in the Kingdom Nor is it any material Objection to say that these Thanes might at first owe those Estates to the Grant of the First Saxon Kings and might also after a sort hold their Estates of them as Heads of the Commonwealth by such Services as were setled by Publick Laws yet does it not therefore follow that they owed their very right of coming to the Great Council wholly to the Kings Favour For in the first place it is to be considered that tho the First Saxon Kings conquered this Island from the Brittains yet those that assisted them being only Voluntiers the chief Officers or Commanders of them might not only deserve but also capitulate for their Shares in the Land so conquered And these being given out by the King according to each mans quality condition or desert might constitute those who were called the King's Thanes as those who held likewise under them were the Middle Thanes or Vavassors Supposing till you can prove the contrary that these had Places in the Great Council as well as the other and you might as well argue that they could have no Places there but by the favour of their Lords Whereas I have already proved that an Estate of Five Hides in Land of whomsoever holden made a Thane or Nobleman of the Inferior Rank And we find by the same Laws of King Athelstan his Weregild or Price of his Head was valued but equal with that of a Mass Thanes or Priest viz. at 2000 Thrymsas So that a sufficient Estate in Land did not only make a man a Gentleman but also give him a place in the Great Council And there were besides all these several Alodoril who held their Lands discharged from all Services and could sell or dispose of them without the consent of the King or any other inferior Lord and are those mentioned in Domes-day Book qui potuit ire cum terra que â—â—but Nor is your Argument conclusive That because in those times as well as now all Lands were held either mediately or immediately of the King and were chargeable with those three general Services you mention for the publick safety and good of the Kingdom that therefore not only all mens civil properties but also their right of coming to the Great Councils must wholly depend upon the King's will Since I have already proved that the first Saxon Kings by their conquest of the Kingdom could not acquire the sole property of all the Lands thereof to themselves tho they might be made use of as publick Trustees to distribute them according to those mens qualities and deserts who had helped them in the Conquest So that when they were once possessed of such Estates they had immediately thereupon a right to a place in the Great Council the burthen of the Government lying chiefly on such as had Estates in Land And that many others besides the Kings Thanes or Great Lords had places in the Great Council of those times appears as well by the name of Mycel Synods â—â— Wittena-Gemots which are rendred by our Ancient Glossarists Numerosa or Popuâ—â—sa Conventio as also the Titles and Conclusions to divers of the Titles of those Great Councils in the Saxon Times where are often mentioned after the Comites Proceres Terrae aliorum fidelium infinita multitudo which must certainly take in many more than the Kings Thanes Judges or other of his Great Men who were then but a few in comparison of all the rest of the Freeholders of England M. I will not longer dispute the probability of what you say all the difficulty lies in the proof of the matter of Fact For in the first place I deny that any other of a less Degree than the King's Thanes of chief Tenents had any Places or Voices in the old English Councils Nor can you find as you your self are forced to confess in our Saxon Laws or Ancient Historians of those times any Representatives of the common people mentioned such as are now much less Citizens or Burgesses for any City or Burrough in England And therefore what you say concerning the Riches or Power of the Cities and Towns before the Conquest tho perhaps it might be true yet doth it not therefore follow that they must then send their Representatives to the Great Councils Nor is it any Argument to prove that they did because great Cities and Towns do or did lately send Deputies to the like Assemblies in other Countries since our Government might not only originally differ in that from theirs but that also the sending of those Deputies might be granted by some later Princes long since the time of the first beginning of those Kingdoms and I do believe will prove so if closely look'd into And in Denmark which you know was an Elective Kingdom the Cities and great Towns never sent any
and Matt. of Westminster calls some of them Milites yet this makes nothing against our Opinion for as I proved before the Great Milites were often stiled Barons and the Barons Milites Nor was this Earl and the four Barons here mentioned chosen or sent by the Baronage of the Kingdom assembled in Parliament to represent them at the Council of Lyons but were only pitch'd upon by a Body of Military men or Barons at a Tornament intended to have been held at Dunstable which was forbidden by the King and these took upon them to warn Mr. Martin the Pope's Clerk out of the Kingdom as appears by the Account Matt. Paris gives us of this Business in the Paragraph immediately following So that the History of the thing makes it plain who were the Universitas Regni to wit the Barons or the Universitas Armatorum who were met to hold the Tournament and these the King there called his Barons And after this in the 30th of Hen. III. when the Pope did not give satisfaction to their Grievances the King called as this Author tells us 〈◊〉 Parliamentum generalissimum totius Regni Anglicani totalem Nobilitatem Londini viz. Prelatorum tam Abbatum Priorum quam Epiâ—coporum Comitum quoque Baronium ut de Statu regni jam 〈◊〉 efficatiter prout exegit urgens necessitas contrectarent In this very Parliament the King conferr'd with the Bishops by themselves and the Earls and Barons by themselves about this Business of the Pope's not keeping his Promise And certainly if there had been then any Commons in this Parliament he would have also conferred with them about the same matter The result of all these Conferences was that yet for the Reverence due to the Apostolick See they should again supplicate the Pope by Letters to remove their intolerable Grievances and insupportable Yoak And this they do in separate Conferences The Bishops write by themselves the Abbots and Priors by themselves and the Earls Barons c. by themselves to the Pope and if there had been any Commons as at this day they most certainly would likewise have wrote to the Pope as well as the other Constituent Parts of this Parliament did F. I hope I shall be able to answer what you have now said In the first place tho I should grant that these Commissioners sent by the Baronage of England were all of them Barons and no Commoners among them doth it therefore follow that the persons that sent them must have been all Lords too For if those Commissioners were all Peers who represented your Barones minores or Tenants in capite who as you your self have granted were no Lords at all and why might not those Lords as well represent all the Commons of England as they did these Lesser Tenants in capite So that it seems plain to me that these Words Universitas Baronagii Angliae must needs then comprehend somewhat more than your Barons and Tenents in capite only since the Words Barones Milites alone and sufficiently expressed all the Constituent Members of your Parliament without adding Universitas Baronagii which would have been a Tautology but that it was very usual for the great Lords in those days to write Letters in their own Names as also for all the Commons of England I shall shew you by and by when I shall make use of two other Instances of a like nature in the Reigns of Edw. I. and Edw. III. And therefore it is no good Argument to prove that the Commons had no hand in this Message or Letters because they did not write by themselves much less is it so because it is not expresly mentioned by Matt. Paris that the King consulted the Commons as well as the Bishops Earls and Barons that therefore they were not there Since this Author writing very concisely comprehends all the Lay Estates under the Words Comites Barones or else Magnates alone So likewise Matt of Westminster when he mentions divers Parliaments in the Reign of Edw. I and Edw. II expresses them under the same Title And tho' this Author often mentions the Earls and Barons to have done this or that yet it is no Argument to conclude that the Commons were not then there And for this pray take these Examples our of Matt. VVestminster when Anno Dom. 1300. the 28th of Edw. I. he tells us the King held his Parliament at Lincoln where the Comites Barones demanded a Confirmation of the Great Charters and they further askt that the Deforestations made by the King should be confirmed and then he tells us that thereupon the Charters of Liberties and Forests were again renewed and being past under the Great Seal were proclaimed before all the People in every Country Where you see that the Complains were made by the Earls and Barons yet it is certain that the Confirmation of these Charters must have proceeded from all the Estates for the Bishops and Abbots and Priors are there no more mentioned than the Commons who were then as Barones Majores Constituent Members of this Parliament So also Henry De Knighton Anno Dom. 1301. the 30th Edw. I. tells us of a Parliament this King held at Stamford where met the Earls and Barons and with great courage persisted until they had got the Charter of Forests fully granted and confirmed to them Where note that tho by way of excellency the Earls and Barons who then bore the greatest sway are here only mentioned yet it is certain that the Commons were also summoned to this Parliament Now if these Later Historians pass by the Commons tho then Constituent Members of Parliament without any one express Mention why might not Matt. Paris do so too But that he did do so appears very plainly from the Letters of the Parliament held in 30th Hen. II. to the Pope and Cardinals being still at the council of Lyons to remove the intolerable Grievances above mentioned That to the Pope is tecited at large by Matt. Paris tho that to the Cardinals is omitted by him but in an Ancient Manuscript of the time extant in Sir Iohn Cottons's Library of both Letters are said to have been sent to the Cardinals at Lyons a Baronibus Militibus universitatibâ—â— Bâ—â—â—nagii Anglia Now who these were the subsequent Letter to the Pope in Matt. Poris will inform us which begins thus Sanctissimo c. 〈◊〉 filii Sui Richardus Comes Cornubia c. together with divers other Earls there named but the Barons and Commons are not particularly recited but are comprehended under these General Words Barones Proceres Magnates ac Nobiles Portuum marishabitatores necnon Clerus Populus universus salutem And pray note that Matt. Paris had before called this a Parliament Convenientibus igitur ad Parliamentum totius Regni Magnatibus Which Words take in the Knights of Shires as the Nobiles Portuum Maris habitatores doth the Barons of the Cinqâ—â— Ports
answer it I confess it appears very specious at first sight but what if I shew you that this Letter was written by the Lords only from Lincoln after the Commons had been dismissed from thence by proâ—ogation or Adjournment For tho it is commonly story'd but erroneously that this whole Parliament or at least the Temporal Lords and the Commons wrote to the Pope concerning the Jurisdiction and Superiority of the Kings of England over the Kingdom of Scotland Yet it cannot be so for this Parliament met on the Octaves of Hillary or the 20th of Ianuary and sate but eight days the Writs for the Commons Expences bear date Ianuary the 30th of the same Year and the Letter to the Pope signed by the Temporal Lords for themselves and the whole Community of the Kingdom of England is dated Feb. 12 th next following at Lincoln after the Commons had been discharged 14 Days So that you see the Barons still continued to stile themselves the Community of England and both Spiritual and Temporal Barons and other of the King's Council did stay and dispatch much Business after all others were dismissed according to the Tenor of the there recited Proclamation and may be fully proved from the Proceedings of that Paâ—liament as they are to be found in Ryley's Plâ—cita Parliamentaria So that nothing seems plainer to me than that the whole Community of England for whom the Barons there named set their Seals to that Letter you mentioned were the Community of the Barons only F. I confess Mr. Pryn in his Animadversions upon my Lord Coke's 4th Institutes was the first who started this Objection That the Commons could not be present as parties to this Letter Yet he still supposes that the Lords who stayed behind and made a kind of a Great Council at Lincoln signed it not only for themselves but for the Commons also tho not actually there and is not so extravagant as your Dr. to suppose that by the Words in this Letter Tam pro Nobis quam pro tota Communitate c. are to be understood the Community of Barons only for that would have been a Tauâ—ology indeed For so the last Word Communitas c. would have signified no more than that they subscribed for themselves and themselves and that the Word Cummaâ—â—tas Regni which I can prove to you by many Examples did then signifie the Commons of England must here mean more than your Community of the Earls and Barons For pray take notice that the Tenants in capite had now by your own concession left off to appear in Parliament in a Body as being now represented by the Knights of Shires c. So that Sir Edward Coke very well observes in his Fourth Institute that this Letter was sealed by above 104 Earls and Barons by the assent of the whole Commonalty in Parliament and Mr. Pryn is so far convinced of this in his exact History of Papal Usurpations that he â—tiles this Letter The Memorable Epistle of the Earls Barons Great Men and Commons of England c. But to shew you farther that there was no change neither of the constituent parts of our Ancient Parliaments nor of the Terms by which they are expressed our Ancient Records appears by a Plea among Mr. Ryley's printed Pleas of Parliament in 35th of Edw. I. where it is recited that in a Parliament at Carlisle Will. de Testa the Pope's Clerk was impeach'd per Comites Barones alios Magnates Communitatem totius Regni concerning divers new and intolerable Grievances laid upon them by the Pope Where you see there is no change of this Word Communitas after the Commons were as you suppose certainly present in this Parliament and why the same Word should not signifie the same thing in the beginning of this King's Reign as well as now you had need give me very good Authority to prove the contrary against such clear evidence as this But this Record goes on and farther recites that these Letters were sent to the Pope Ex parte Communitatis praedictae and in which Clerus Populus dicti Regni set forth the said grievances to the full Now as the Word Clerus here expresses all sorts of degrees of Clergy as well Superior as Inferior represented in Parliament and Convocation so much Populus here signifie the Laity of both Orders as well the Commons as Lords since the Commons were certainly present at this Parliament and why the Word Populus should not signifie the same thing long before I can see no Reason for it but the Dr.'s bear Assertion And as for what you say that the Commons could be no parties to this Letter because it appears by the Writs of Expences that they were discharged before this Letter was written admitting it were so it makes nothing against my Assertion For why could not the Commons agree upon the Substance of the Letter and leave the Lords to draw it up and subscribe it for them after they were gone home And that it was so appears by the Letter if self which recites That the King had caused the Pope's Letter In medio or pleno Parliamento exhiberi ac scriose nobis fecit exponi unde habito tractatu deliberationâ— Diligenti super câ—â—tentis in literis vestris memoratis communis concors unanimus omnium singulâ—râ—m consensus suit c. Now every one knows that understands any thing of Parliamentary Affairs that when any thing is said in an Act of Parliament or other Record to have been agreed upon in full Parliament that is always understood to have been done all the Estates being there present Nor can I see any reason why this Letter should not be called the Letter of the Commons as well as of the Lords since the very Statutes of that Age were often said to have been assented to by the Commons tho it is clear they were not drawn up into form till after the Parliament was dismissed But that the Commons were certainly parties to this Letter appears by a Record of the beginning of Edw. III. time printed by Mr. Pryn keeper of the Records of the Tower and which he tells us he found among the Rolls in the White-Town which Record contains the Heads of a Defence compiled by the King's Council in order to a stronger Defence against the Pope's taking cognizance in the Court of Rome concerning the King of England's Superiority over Scotland in the conclusion of the 2d of which Records there is a remarkable Article relating to this very Letter now before us in these Words Item ad finem quod Nobiles Regni Angliae Procuratores Crâ—munitatis subditorum Regni praedicti admittantur per ipsum Domiâ—â—â— Regem ad hujusmodi defensiones propenend prout corum Antecessores ab Avo Dicti Domâ—â—â— Regis nostri â—rant admissi Now to what Transaction of this kind in the Reign of Edw. I. this King's Grandfather can this passage
word Clâ—rus which there coming immediately after the Bishops Abbots and Priors must needs signifie the Inferior Clergy he expresses the Lay Orders thus Cum Comitibus Baronibus ac Proceribus cunctis where we may observe the word Proceres here put distinct from Barones which may very well signifie not the Less Tenants in capite but the Knights Citizens and Burgesses as I have already proved the word Proceres does often signifie both in our Historians and Records but Quadrilogus gives us the Title of these Constitutions more exactly in these words Facta est ista Recognitio coram Archiepiscopis Episcopis Clero Comitibus Proceribus Regni and in the next Line he says That those Customs were thus recognized per Archiepiscopos Episcopos Comites Barones per Nobiliores Antiquiores Regni where he likewise distinguishes between the Bishops and Inferior Clergy and those who in the first place he calls Proceres Regni In the next he calls Nibilores Antiquiores Regni by which he might mean the Knights of Shires Citizens and Burgesses who were called in the Saxon Times Seniores Sapientes as I have already proved now if the Inferior Clergy appeared by their Representatives at this Council since they could not then all come thither in person any more than now to imagine that the Commons of England should not be likewise there by their Representatives of their own order is to deprive the Commons of that Right which you cannot but allow to the Inferior Clergy To conclude You your self confess that your Less Tenants in capite sometimes called Barones minores were only nominally and nor properly Barons of the Kingdom in the sense that word is now taken and if so pray give me any satisfactory Reason why other Commoners as well as they viz. the Knights of Shires Citizens and Burgesses might not then likewise have had Places in our Great Councils or Parliaments M. I see you use your utmost endeavour from the various and equivocal sense of the words in question between us to prove that the Commons in the sense they are now taken might be comprehended under the words Barones Miiâ—a Homines sai which it is very certain could not be according to the Constitution of the Government at that time And therefore I shall give you a very plain Answer to your Question why other Commonrss as well as the lesser Tenents in Capite could not be present or have places in those Great Councils because it was contrary to the received Custom and Law of the Kingdom at that time appears by those Clauses of King Iohn's Charter which Dr. B. hath made use of with so good success against Mr. P. and the Author of Ianus Anglorum c. And therefore I desire you would read them along with me 〈◊〉 they stand here in the Appendix to the Dr's Compleat History of England and as he hath transcribed them from an Ancient Manuscript in Bennet Colledge and divided them into so many distinct Articles or Chapters but those we chiefly insist upon are these Article 14. Nullum Scutagium vel Auxilium ponam in Regno nostro nisi per Commune Consilium Regni nostri nisi ad Corpus nostrum redimendum ad Primogenâ—◠〈◊〉 filium nostrum Militem faciendum ad Primogenitam filiam nostram semel Nâ—â—tandam ad hoc non siet nisi rationabile Auxilium 15. Simili modo fiat de Auxiliis de Civitate Londinensi Civitas Londinensâ— habeat omnes antiquas Libertates Liberas Consuetudines suas tam per terras quâ—â— per aquas 16. Praeterea Volumus concedimus quod omnes aliae Civitates Burgi Villae Barones de quinque Portibus omnes Portus habeant omnes Libertà tes omnes Liberas consuetudines suas ad habendum Commune Conclium Regni de Aâ—â—liis assidendis aliter quam in tribus casibus praedictis 17. Et de Scutagiis assidendis submoneri faciemus Archiepiscopos Episcopos Abbates Comites Majores Barones Regni singillatin per Literas nostras 18. Et praterea faciemus submoneri in generali per Vice Comites Ballivos nostrâ— omnes alios qui in Capite tenent de nobis ad certum diem scilicet ad terminum quadra ginta dierum ad minus ad certum locum in omnibus literis submonitionis caâ— sam submonitionis illius exponemus 19. Et sic facta submonitione negotium procedat ad Diem assignatum secundâ—â— Consilium eorum qui praesentes fuâ—rint quamvis non omnes submoniti venerint From which Ancient Monument we may draw these Conclusions 1. That the King exercised a Royal Prerogative before this Charter of Assessing Aids and Scutages upon all sorts and degrees of Men without the Assent oâ— the Great or Common Council since called the Parliament from doing which for the Future the King by this Charter tyed up his own Iâ—â—and unless iâ— the Three Cases here particularly reserved 2. That there is no mention of any other Members to be summoned to thâ—â— Council but the Archbishops Bishops Abbots Earls and Greater Barons bâ— particular Writs and all the other Lesser Tenents in Capite by one general Summons by the Sheriff So that it is apparent that the Greaâ— Councils before this time only consisted of such Earls Greaâ— Barons and Tenents in Capite as the King by special Writ waâ— pleased to summon and this new way brought in a greateâ— number of the Tenents in Capite than ever had appeared before so that if iâ— should be true which you assert that this Charter was no new Grant to the People of England but a Confirmation of their Ancient Rights and Liberties it muâ—â— then necessarily follow that Great Lords and Tenents in Capite called sometimâ—â— Barones Minores were then the only Representatives of the Commons And that the Inferior Tenents consent was included in tâ—â— Assent of his immediate Superior Lord whose presence was râ—â—quired in those Great Councils or Parliaments need not think be doubted and I can give you if need be several Authorities to prove it But pray observe further that here is no mention at all in this Charter of any Citizens or Burgesses to be summoned to the Great Council unless you will have them included under the general Title of all others who hold in Capite and then none but such Cities and Towns who held in Capite could pretend to send any Members much less is there any mention of any Knights to be chosen for Counties which certainly would have been particularly provided for by this Charter had they then had any place in this Assembly So that I think it is very plain that the Commons were not otherwise represented than by these Tenents in Capite for the rest of King Iohn's and most part of King Henry III. Reign for ought I can yet discern For though this Charter was Confirmed in the second and ninth year of
accepit c. Now pray tell me what Common Council was this Of the Bishops and chief Men of the Kingdom that Anselm referred himself to Was it not ex more by Custom You cannot find in Eadmer any Summons to it neither Rex asâ—ivit nor praecepâ—o Regis convenerunt nor Rex sanctione suâ adunavit In short not to multiply Examples look where you will in Eadmerus or any other of the ancient Historians you have cited and you will still find that the Persons who met ex more and without any Summons were the same who Assembled by the Kings Summons at other times that is the Principes and Episcoâ—i Regni or Terrae or called more generally Priâ—ates utriusque ordinis or the Barones or Majores Regni who did at these great â—easts pro more go to Court and hold a solemn Curia or great Council there And that these made up the Vniversity or whole Body of the Kingdom pray see what Matt. Paris says In die Pentecostes Dominus Rex Anglorum Loâ—dini Festum tenens Magnum serenissimum â—unc compositâ per Regni Vniversitatem Eleganti Epistolâ c. This was about the Pope's Exactions as hath been before delivered And Hen. III. in his Letter to the Pope calls the same Persons Magnates Angliae which in his Letter to the Cardinals about the same matter he calls Magnates Nostri as you may see in the former Citations of them F. But pray give me leave to ask you this question might not our first Norman Kings often Summon the Common Council of the Kingdom at one of the said usual Feasts since it was so much for the conveniency of the Bishops great Lords and Tenants in Capite who I grant were then all Members of the Great Council to meet all the rest of the Kingdom or Representatives of the Commons at the same time Though the Writers you have quoted may not mention their being Summoned at all And as for the Writs of Summons those of much later Parliaments being lost how can it be expected we should now prove their being Summoned so many Year before M. I confess it might be so that upon extraordinary business and when the occasion was great and the King desired a great and full appearance they might also receive an express Summons at those times But then I must desire you to shew us any mention of a Summons to any of these Common Councils which when called at other times are most constantly mentioned in this Author And I desire to know of you what you will say to those words pro more convenit which is spoken of the most general Councils when the Community of the Kingdom met at the King's Court You cannot deny but that the Tenants in Capite were the Kings Barones Milites Magnates c. Upon this we will joyn issue And I affirm without bringing Proofs which are infinite in this Case that all the Bishops Earls and Barons of England did hold their Lands Earldoms and Baronies of the Crown or which is all one of the King as of his Person and that was in Capite William the Conqueror as I said before divided most of the Lands in England amongst his great followers to hold of him he made Earls and Barons such as he pleased They and their Descendants held upon the same Terms with the first grantors which was to find so many Horse and Arms and do such and such Services both Titles and Lands were Forfeitable for Treason or Felony to the King did Homage for them and every Bishop Earl and Baron of England was in those circumstances and held of the King after this manner Other Lands were given to other Persons for meaner Services as to his Woodwards Foresters Hunts-men Faulconers Cooks Chamberlains Gouldsinlibs Bayliffs of Mannours in his own hands and many other Officers which in Doomsday-Book are called Terrae Thanorum Regis and sometimes servientium Regis And I doubt not whatever the Notion of Petyt Sergeanty now is but that originally this holding of Lands was the true Tenure not but presenting the Lord with a Bow an Arrow a pair of Spurs every Year c. might also be called Petyt Serjeanty though not so properly as the other F. Not to multiply words to no purpose I think your Reply is far from being Satisfactory for in the first place it is very unreasonable to demand that we should now shew the express Summons to these common Councils which were not held de more since you know that all antient Records of that kind are destroyed and lost for if we could produce them at this day the difference between us and those of your Opinion would quickly be at an end as appears by those great Councils which are said expresly by the Historians I have cited to have been summoned and yet no such Writs of Summons are to be found nor is it any good Argument that because our ancient Historians mention no distinct Summons to the great Councils when met at the usual times of the meeting of the Tenants in Capite that therefore there were none such since we find they often pass by much more material Matters than this And though I grant that the Tenants in Capite were then part of the great Council of the Barones Milites Magnates Regni yet does it not follow for all this that none but the Kings Barons and Tenants in Capite were Members of this great Council since there might be in those times other Barons or great Freeholders who though they held their Lands of the Tenants in Capite yet might be there as Knights of Shires or else appear in Person at those Assemblies as well as the other and besides there were others who though they did not hold of the King in Capite but of some great Honor or Castle or else of some Abbot or Prior yet were Men of very great Estates and very numerous all which must otherwise have had their Estates tax'd and Laws made for them without nay against the consent of themselves or any to represent them Nor is your Assertion at all true That William the Conqueror divided most of the Lands in England to be held of him in Capite For besides those Servants and Officers you last mentioned above two third parts of the Lands of the Abbies and Priories in England were not held as also much other Lands in Kent and other Countries per Baroniam or Knights Service but in libera Elecmosina only or Socage as I have already prov'd and consequently neither they nor their Tenants could according to your Hypothesis have any Representatives in Parliament And farther you your self grant that those Lands you mention which were given out by your Conqueror to his Woodwards Foresters c. did not capacitate them to appear in Parliament since their Tenure was only by Petyt Serjeanty and not by Knights Service Nor could they become the King's Tenants in ancient Demesne because such Tenants
the sparing their Pains and Expences to have a Colloquy and Treatise with some of the same Members and therefore names the very Persons whom he commands should appear before him at Winchester to inâ—orm him and his Council of the best manner and form whereby the said Tax might be soonest and most conveniently levyed according to the intent of the said Grant So that nothing is more plain from the Writ it self than that this Assembly was no Parliament the proper Business of which is always to make Laws give Money or reâ—ress Grievances none of which â—ut it is apparent were the cause of this meeting To which these that were Summoned did not appear as Knights of the Shires their power being expired at the Dissolution of the Parliament but only 〈◊〉 so many particular private men who by reason of their Interest in the Country the King supposed could best inform him in the business above mentioned But that in the Reign of this King there were several Councils of this kind which tho no Parliaments as having but one Knight one Citizen and one Burgess and only making Temporary Constitutions concerning Trade and other things of less moment which were to be put in practice for a time till they could be confirmed by the next Parlâ—ament appears by the Ordinance or Statute of the Staple above mentioned And of these Mr. Pryn in the first part of his Parliamentary Register of Writs gives us divers Precedents which he rightly So that I hope I have now fairly run through and examined all the Precedents which you or your Doctor have been able to urge in this great Question and I think if you are aâ— candid and ingenuous as I take you to be you will not assert that any of them do amount to a proof either that the Commons were never Summoned from the â—9th of Henry III. to the 18th of Edward I. or that the Writs of Summons he there produces was to a Parliament and not to a great Council or that the King ever took upon him to appoint what number of Knights Citizens and Burgesses should come to Parliament or could nominate who they should be or could discharge whom he pleased from serving as Members therein All which your Doctor I think with greater confidence than right understanding of the true meaning of the ancient Writs and Records of Parliament hath undertaken to assert I beg your pardon for troubling you so long on these Heads since the length as well as diversity of Records you have now cited could not be answered in less compass M. I must confess you have given pretty plausible answers to most of the Authorities and Records I have now cited yet I cannot assent so far as to come over to your Opinion without a longer consideration of the strength of the answers you have now given me to the Doctors Authorities But in the mean time you would oblige me if you could give me the rest of your Arguments whereby you would undertake to prove that the Commons have been always an essential part of the Parliament ever since the Conquest for it seems to me by what I have read out of our ancient Historians that there is no express mention made of them by Name in any Historian or Record till the Reign of Edward I. and as for those Arguments Mr. P. hath given us to the contrary methinks the Doctor hath given satisfactory answers to them F. I think I have made it clear enough that the Commons of England were a constituent part of the Wittena Gâ—â—ote or Common Council of the Nation before your pretended Conquest and if it doth not appear that they were deprived of that right by the Normans entrance which you have not yet proved I think we may very well conclude that things continued in the same State as to the Fundamental Constitution of the Government as well after your Conquest as they did before Nor have you as I see proved any thing to the contrary since you confess that as much a Conquerour as King William was yet he altered nothing in those Fundamental Constitutions the most that you pretend he did being only in an alteration of the Persons who were the Legislators from English to French Men or Normans so that upon the whole matter I think there is no need of any new Arguments to confirm this truth since the Commons of England claiming a right by Prescription of having their Representatives in Parliament if you nor your Doctor nor none of those whom he follows can prove by sufficient Authorities when this began then I am sure you ought if you were of the Jury in thâ—s matter to find for the Tenants in Possession since that together with a constant usage time out of mind is as well by your Civil as our Common Law a sufficient Title to any Estate yet I doubt not but to shew you the next time we meet that the Doctor has noâ— given such satisâ—aâ—â—ory answers as you imagine to most of Mr. P's best Arguments proving this right of Prescription to have been the constant Opinion of an succeeding Ages to which I shall also add divers new Authorities as well from ancient Historians as Parliamentary Records and Statutes but since it is grown now very late I beg your pardon till another opportunity M. I thank you Sir for the pains you have taken to satisfie me in this greâ—t Question but pray come again within a Night or two that we may make an end of this weighty Controversie and then we may proceed to whaâ— we at first intended viz. whether the King can ever lawfully be resisted or whether by any Act he may Commit he can ever 〈◊〉 to be King F. I accept of your Proposal and shall wait of you again as you appoint but in the mean time pray consider well of the Authorities I have now urged and the Answers I have given to your Argument and then I hope there will be the less need of new ones M. I shall not fall to do it but in the mean time am your humble Servant F. And I am yours ADVERTISEMENT THE Publisher begs your Pardon for letting a Term pass without giving you this Dialogue which has so close a dependance on the Former but it has been his own unhappyness and not his faulâ— In the next place he hopes you will not take it ill of him that he has â—welled this to a bigger bulk than the other since the Author by reason of the weightiness as well as multiplicity of the Arguments could not make it 〈◊〉 wâ—thout doing a considerable injury to this Important Subject And to let you seâ— that I do not dissemble the Author was forced to reserâ—â— two or three Sheets more of the same Argument because he would not â—ver tire you for the next Discourse And the Author also desires the Learned Doctor Brady's pardon if through his own hast or the Inadvertency of the Compositor there have been some Omissions
the Kingdom of the West Saxons I have now instanced in but in almost all the other Kingdoms of the Heptarchy in which there are to be found many more Instances of the Deposition of their Kings thaâ— what were in the West Saxon Kingdom this waâ— then very just and necessary since these Kingdoms were all Elective and none of them Hereditary and that the general Meeting of the great Council of the Nation was always at set and constant Times and did not depend upon the Will and Pleasure of the King either to call or dissolve them as I have already proved and that this Power was no unusual thing I appeal to all the Antient Kingdoms of Europe founded after the same Model as ours and which I mentioned at our last Meeting so that nothing is more frequent in their Histories and Annals than the Deposing of their Kings for the above-mentioned Crimes of Tyranny or Misgovernments But that some of these Gothick Kingdoms as Denmark and Sweden whilst they continued Elective have exercised this Power even till of late is so notorious in matter of fact that it needs no proof since the Kings of those Kingdoms held their Crowns at this day by that Title and on those Conditions which the Nobility and People gave them after the Deposition of their Predecessors But tho this were so anciently also in England it does not therefore follow that it must be so now for since the Crown of this Kingdom became Hereditary and that the Calling and Dissolving of great Councils or Parliaments came to depend wholly upon the King's Will I must allow that the Case is quite altered and that the Two Houses of Parliament have now no power to depose the King for any Tyranny or Misgovernment whatsoever The first Parliament of King Charles the Second in the Act for attainting the Regicides have actually disclaimed all Coercive Power over the King and yet for all that the Nobility and People of England may still have a good and sufficient Right left them of defending their Lives Religion and Liberties against the King or those commissioned by him in case of a general and universal Breach and Invasion of the Fundamental Laws of the Kingdom or Original Contract if you will call it so and not to lay down those Defensive Arms till their said just Rights and Liberties are again restored and sufficiently secured to them So that tho' I will not bring the Custom of the English Saxons as a precedent for the Parliament's Deposing of the King yet I think I may make use of it thus far that this Nation has ever exercised this necessary Right of defending their Liberties and Properties when invaded by the King or his Ministers either by colour of Law or open Force And that this hath been the constant practice from almost the Time of the Conquest down to later Ages I think I can make out from sufficient Authorities both from Histories and Records M. Tho' your Doctrine is not so bad as I expected yet it is still bad enough and I never knew this Right of Resistance carried home but that it always ended in Deposing and Murdering of the King at the last as we have seen in our own Times But let the constant practice have been as it will I am sure such Resistance hath been always condemned by our Ancient Common Law as well as Modern Statutes as I shall prove farther to you by and by and therefore pray give me leave to tell you that the never so constant practice of an unlawful thing can no more justifie the doing of it than that constant usage time out of mind for Thieves to Rob between London and St. Albans not that I fore-judge you or refuse to hear any Instances and Authorities from Histories or Records to make good your Assertion F. I thank you for your patience what therefore if I prove that such Resistance has been not only actually exercised by the Clergy Nobility and People in former Ages but that it hath been also allowed by our Kings and approved of by great Councils or Parliaments in those Times for lawful and the Actors in it wholly indemnified and saved harmless nay a power given them and that by the King himself to resist him and defend themselves in case he broke his Charters and Agreements made to and with his Nobility and People or else with some Forein Prince may appear from this remarkable Instance of King Henry II at the end of whose Reign Hoveden in his Annals gives us the Conditions of the Peace made in the last Year of this King between him and Philip King of France with the Consent of their Bishops Earls and Barons where among other Articles you will find this for one particularly relating to the Barons of England who were also to swear to the Peace in these Terms Et omnes Barones Angliae jurabunt quod si Rex Angliae noluerit has Conditiones tenere quod ipsi tenebunt cum Rege Franciae Comite Richardo cos adjâ—vabunt pro posse contra Regeâ— Angliae c. Whence we may without doubt conclude that the Resistance of Subjects in some cases against their Kings was then allowed of even by the King himself and thought not inconsistent with the Allegiance they bore him tho' it might suspend it for a time M. I confess this Instance would be of some weight were it not for the Critical Time when this Peace was made viz. when Richard Earl of 〈◊〉 the King 's Eldest Son had Rebelled against his Father and taken part with the King of France and had drawn over a great many of the Norman and Pictavian and English Barons to his Party which when King Henry perceived this very Author you have quoted here tells you Quod Rex Angliae in arcto positus Pacem fecit cum Rege Philippo that is was constrained to make Peace with him so that King Henry being in this streight the King of France and Earl Richard with the Barons of his Party forced King Henry to sign what Conditions they pleased for there it no such Clause so much as mentioned for the French Barons But make the most of it it is but a Temporary Relaxation of Allegiance from King Henry to his Barons and the King might surely thus release them if he pleased But it is plain they could not have acted thus without this Condition had been expresly inferred F. Well supposing King Henry to have been never so much constrained to the making of these Conditions and that it was his own Act that rendred it lawful it still proves as much as I urge it for viz. that neither the Kings of France or England then thought this Resistance absolutely unlawful for then the King 's own Act could never have dispensed with it But to shew you farther that the People of this Nation have ever maintained this Right of Resistance even with the allowance of our Kings themselves and for the doing
you quote it yet I much doubt whether it was of any validity being no doubt drawn up by the Barons then in Arms and which the King durst not at that time refuse and so he was indeed under a kind of duresâ— when he did it And besides pray mark the conclusion of this Clause this Resistance was to be Salva Persona nostra Reginae nostrae Liberorum nostrorum cum fuerit emendatum intendent nos sicut prius fecerunt Now how this Security here reserved for the King's Person could consist with that open War the Barons made afterwards against his very Person and casting off all their Allegiance to their Natural Prince and calling in Prince Lewis Son to the King of France I cannot understand F. I think all this may very easily be solved For in the first place K. Iohn was no more compelled to agree to this Clause than he was to the Charters themselves and if those were lawful and reasonable so was this Resistance too since there was no other way or means lest to preserve them in case the King should go from his own Acts and break through all he had done so that if the ends were lawful the means to preserve it must be so too or else those Charters would have signified nothing any longer than the King pleased As for the other part of the Objection that this Resistance was still to be saving the Person of the King and Queen c. and that this did not consist with the Barons after making War against his Person and casting off all Allegiance to him It was not their faults but the King 's if they could not perform this Agreement since the King by making War upon the Clergy Nobility and People by his open and notorious breach and recalling of these Charters calling in Strangers to his assistance and declaring he would no longer govern according to Law had made it absolutely unpracticable to preserve their Allegiance to him any longer so that they never cast off their duty as Subjects till he had cast off his duty as a King and then what was there else left to be done but to provide for their own safety by calling in a Forein Prince to their Assistance as soon as they could since there was no other way left them to defend themselves against those Troops of Strangers the King had invited over and though many of them with their Captain Hugh de Boves had been cast away and drowned in a Tempest at Sea yet more were daily expected So that if Tyrants should suffer nothing for the breach of their own Charters and Oaths they would be in a better condition by their violation than the observing of them â—or by the making them they for the present quiet the Minds of their discontented Subjects and when they please may break them all again when they have got power if no body must presume to resist them or not think them as much Kings when they destroy and oppress their People as when they protect and preserve them by governing according to the Laws of the Kingdom But pray what have you to say against that general Resistance that was made by almost all the Bishops Barons and great Men of England against his Son Henry the Third about the frequent and notorious violations of the great Charters which his Father and himself had so often sworn to and confirmed and for which he had received such great Benevolences and Subsidies from the Nation M. Before I answer this Question pray take notice that I am not at all satisfied with your Arguments that when ever Subjects shall think themselves injured and oppressed by their Soveraigns that then they may cast off their Allegiance to them if they cannot have the Remedy they desire since this were to make them both Judges and Parties too in their own Cause which is altogether unjust and unreasonable between private Men much more between Kings and Subjects But passing by this at present I shall tell you my Opinion of this Resistance of Simon Montfort and the Earls and Barons his Adherents that it was down-right Rebellion and tended only to dethrone the King and make him a meer Cypher and to devolve the whole Government upon themselves as appears by the Oxford Provisions recited by so many Authors of that Age and which were afterwards condemned and consequently those violent means by which they were obtained by Lewis the Ninth King of France who in an Assembly of his Estates upon a solemn hearing of the whole difference between King Henry the Third and his Barons declared these Oxford Provisions null and void So far was this good and pious King from countenancing any Rebellion or Resistance as you term it of Subjects against their lawful Soveraign F. For all this I cannot find that the King of France did then at all condemn this defence the Earls and Barons had before made of the Liberties granted them by the great Charters for tho' he restored the King to his former Power by avoiding the Oxford Provisions yet at the same time when this was done as the Continuator of Mat. Paris tells us he expresly excepted the Ancient Charters of King Iohn Vniversâ—li seil Angliae concessae and from which per illam sententiam in nullo intendibat penâ—tus derogare and if he did not in the least intend to derogate from them he could not with any Justice condemn the only means the Barons had to maintain them after so many Trials and fresh Promises and Oaths of this fickle inconstant King all broken and laid aside so that you may as well or better alledge the Pope's shameful Absolution of this King from this Oath he had made to observe the great Charters as an Argument why they should not be any longer bound by them nor the Barons obliged to defend them as this Sentence of the King of France to render the Resistance the Barons had made in defence of the great Charters to be unlawful And that King Henry himself did afterwards allow this Resistance for good and lawful Pray see the Agreement which was not long after made in full Parliament in the 49th between the King the Prince and all the Prelates Earls and Barons of England whereby he obliged himself to observe all the Articles and Ordinances which had been before agreed upon at London in the 48th Year of his Reign And then follows this Clause in the Record which the Doctor himself has printed in his Appendix at the end of the first Volume of his Introduction to English History which I shall here translate out of French because it is very old and obscure it is thus And if our Lord the King or Monsieur Edward viz. the Prince shall go against the Peace and Ordinance aforesaid or shall grieve the Earls of Leicester or Gloucester or any of their Party by reason of any of the things aforesaid that then the great Men and Commons of the Land
Tenants by Knights service as also those aids they were to pay the King or any other Lord they held of towards making his eldest Son a Knight and Marrying his eldest Daughter were in use in England before the Conqueror came over But to observe your commands I shall now proceed to shew that by the Conquest the English for a time lost all their ancient Rights and Priviledges till they again obtained them either by their mixing with the Normans so that all distinction between them and the English were taken away or else they were restored by the Charters of K. Henry the first K. Iohn and K. Henry the third I shall therefore divide the priviledges of Englishmen into these three heads first Either such as concerned their Offices or Dignities Or secondly Such as concerned their Estates Or lastly Such as concerned the Tryal for their lives in every one of which if I can prove the English Natives as well of the Clergy and Nobility suffered confideracie lesses and abridgments of their ancient 〈…〉 liberties which they formerly enjoyed I think I shall sufficiently prove the point in hand As to the first head Ingâ—ph telâ—s us that the English were so hated by the Normans in his time that how well soever they deserved they were driven from their Dignities and strangers tho' much less fit of any Nation under Heaven were taken in their places and Malmesbury who lived and writ in the time of Henry the first says that England was then become the habitation of foreigners and the Rule and Government of strangers and that there was at that day no Englishman an Earl Bishop or Abbot but that strangers devoured the Riches and gnawed the Bowels of England neither is there any hope of ending this misery So that it is plain they were now totally deprived of all Offices and Dignities in the Common Weal and consequently could have then no place in the great Council the Parliament of the Nation both for the raising of Taxes and the making of Laws and tho' I grant Mr. Petyt and your self suppose you found a clause in the Conquerors Magna Charta whereby you would prove that all the Freemen of this Kingdom should hold their Lands and Possessions Well and in Peace free from all unjust Exactions and Taillage so as nothing be exacted or taken unless their Free-services which of right they ought and are bound to perform to us and as it was appointed to them and given and granted to them by us as a perpetual right of Inheritance by the Common Council of the whole Kingdom This Common Council will not help you for without doubt here were no Englishmen in it for certainly they would not grant away their own Lands to strangers These were the Saxon Lands which William had given in Fee to his Soldiers to hold them under such services as he had appointed them and that by right of Succession or Inheritance We will now come to the second point viz. the Priviledges the Englishmen lost as to their Estates for whereas before the Conquest you affirm the K. could nor make Laws nor raise Taxes without the Common Coâ—ncil of the Kingdom it is certain K. William and his immediate Successors did by their sole Authority exercise both these Prerogatives as for his Legislative power it appears from the words of his Coronation Oath as you your self have repeated it out of Florence of Worcester and Roger Hoveden the conclusion of which Oath is se velle reâ—â—am legem statuere tenere Rapinas Injustaque Iudicia penitus interdicire Now the Legislative power was then lodged in him why else did he swear to appoint right Laws For if the constitution had been setled as it is at present the Parliament could have hindered him from making any other and that he could do so appears by that yoak of servitude which Matthew Paris as well as other Authors tells us K. William by his own Authority imposed upon the Bishopricks and Abbies in England which held Baronies which they had hitherto enjoyed free from all secular servitude he now says he put under Military service sessing all those Bishopricks and Abbies according to his pleasure how many Knights or Souldiers each of them should find to the King and his Successors and putting the Rolls of this Ecclesiastical Service in his Treasury he caused to fly out of the Kingdom many Ecclesiasticks who opposed this wicked constitution now if he could do this upon so powerful a Body as the Bishops and Abbots were at this time he might certainly as well raise what Taxes he pleased upon all the People of England and therefore Henry of Huntington tells us that K. William upon his return out of Normandy into England Anglis importabile tributum imposuit Lib. 3. p. 278. And that his Son William Rufus imposed what Taxes he would upon the People without consent of the Parliament appears by that passage of William of Malmesbury which he relates in the Reign of this K. as also in his third book de Gestis Pontificâ—m concerning Ranulâ— whom from a very mean Clerk he made Bishop of Duâ—ham and Lord Treasurer the rest I will give you in Latine Isle siquando edictum regium processisset ut nominatum tributum Anglia penderet duplum adjiciâ—bat subinde idente Rege ac dicente solum esse hominem qui sciret sic agitare ingenium nec aliorum curares odium dummodo complaceret dominum So that you may here see that the Kings Edict or Proclamation did not only impose the Tax at his pleasure but his Treasurer could double it when he had a mind to it without consent of the great Council or Parliament as we now call it and this Prerogative was exercised by divers of his Successors till the Statute de Tallagiâ— non concedendo was made But to come to the last head concerning the alteration of Tryals for mens Lives and Estates by the Conqueror from what they were before it is certain that whereas before the Conquest there were no other Tryals for mens lives but by Juries or else by Fire or Water Ordeal which was brought in by the Danes the Conqueror tho' he did not take way these yet also added the law then in use in Normandy of Trying not only Criminal but Civil Causes by Duel or Combat all the difference was that in criminal cases where there was no other Proof the accuser and accused fought with their Swords and the party vanquished was to lose his Eyes and Stones but in civil causes they only fought with Basâ—oons headed with Horn and Bucklers and he or his Champion who was overcome lost the Land that was contended for from whence you may take notice also of a great alteration in the Law not only concerning Tryals but capital Punishments so that whereas before the Conquest all crimes even Man slaughter it self were either â—ineable according to the Quality of the Person and the Rates set upon
he brought over with him had as you suppose the greatest share of all the Lands in England they would have been too powerful a body of Men to be thus made Slaves at his pleasure but indeed his own Laws shew the contrary for in that very Law it appears otherwise Whereby all the Freemen of the Kingdom were to hold their Lands and Possessions free from all unjust Exactions and Taillage and that nothing should be exacted of them but their free service which they were bound to do according as it is appointed them by the K. and it is granted them by an Hereditary Right for ever by the Common Council of the whole Kingdom whereby you may see that they had their Lands and Liberties granted them for an Hereditary Right not only by the K. but by the Common Council of the Kingdom and that the K. could not alter K. Edward's Laws without their consent the Charter of K. Henry I. says expresly Legem Regis Edwardi vobis reddo cum illis emendationibus quibus Pater eam emendavit Concilio Baronum suorum Therefore as for that Authority you have brought out of H. Huntington that upon this Kings return from Normandy he imposed a heavy Taxe upon the English this is either to be understood of such a Tax as they gave him voluntarily tho' perhaps they durst not do otherwise as the States of Provence and Languâ—doc are fain to do to the K. of France at this day when he requires it and yet he does not claim those Countries by right of Conquest or if K. William imposed this Tribute without their consents it was not only contrary to the Law just now mentioned but also to his own Coronation Oath whereby he swore to prohibit all unjust Rapines and that he should behave himself equitably towards his Subjects with which certainly his taking away their Money without their consents would by no means consist but to answer that part of the Coronation Oath which you think makes most for you that whereby he swore only to make Right Laws which must have supposed the Power to have been in himself because the Parliament might have hindered him from doing otherwise this is but a cavil for it is already proved that he was to make Laws and raise Taxes by the Common Council of the Kingdom and therefore these words may very well bear another sense and do only give the K. a Negative voice of passing such Laws as the great Council should offer to him or else such as he might propose to them for their consent and I suppose you will not deny but that it is very possible that either the K. or the Parliament may propose such Laws as may not seem equitable or Just and then certainly both the one and the other have a negative vote and ought not to give their consents to them But to answer your last instance whereby you would prove that this King as a Conqueror imposed what Taxes and Services he pleased not only upon the Laity but the Clergy too by making the Bishopricks and greater Abbies liable to Knights Service which you suppose to have been done by his own sole Authority without any consent of the Common Council of the Kingdom this is only gratis Dictâ—m and is indeed altogether improbable for if the K had done this by his sole Power he would have imposed this Service upon all the Abbies in England whose Lands might have been as well reduced to Knights Fees as those that were put under that service and so might have been forced to find as many Souldiers as they had Fees as well as the Bishopricks and greater Abbies but indeed the Clergy were too powerful a body to be thus Arbitrarily imposed upon and they would soon have complained to the Pope against the K. for this new servitude he had imposed upon them and therefore I think we may with much more safety conclude with Mr. Selden in his Titles of honour that this imposition of Knights Service upon the Bishopricks and Abbies was done by the Common Council of the Kingdom It being too great a matter to be done without it for it appears by Eadmerus that the K. held a Council this very year tho' the Laws and Proceedings of it are all lost and this is the more likely to be so because this imposition was not laid upon all the Abbies in England but only upon the Bishopricks and such Abbies as were of Royal Foundation and held immediately of the King before your Conquest and were only such as enjoyed whole Baronies as Mat. Paris there tells us I shall now come to your last head whereby you would prove that your Conqueror by his sole power altered the Course of Tryals and introduced the custom of Duel or single Combat in Civil as well as Criminal Causes the chief argument you have for this is that there is no mention made of this tryal by Duel in our English Saxon Laws before the Conquest which is but a negative argument at the best and you can shew me no Ancient Author that says expresly that K. William introduced it and tho' I grant it is first mentioned in his Laws yet does it not therefore prove that it was not here before since it was certainly in use among the Francs and Longobards who were German Nations as well as the Saxons but admit it were first introduced by the Conqueror this was no badge of Conquest for the Normans as well as the English were subject to this Tryal which was in use in France and Normandy long before this King 's coming in so that admit he first establisht it here it might not have been done by his sole Power but by some Law made in the great Council of the Kingdom tho' it be now lost as we have very few of the Laws that were made by this K. now left us besides those which are called the Laws of K. Edward with this Kings alteration of them all which was certainly done in the Common Council the like I may say concerning the alteration of Punishment for Deer stealing and other crimes which were either Punishable by Pecuniary Mulcâ—s or else by death before the coming in of the Normans since those alterations might be also made by the consent of the great Council but that the same Forest Laws were in use before the Conquest as after you may see in the Forest Laws of King Knute as you will find in Sir H. Spelman's Glossary Title Foresta only the Punishments are there Pecuniary or else loss of liberty which after your Conquest was changed into the loss of Eyes and Members But as for other lesser matters as his disarming the English and forbidding Night Meetings if these things were done as I do not find any express Law for them for there is no such thing mentioned in the Law de nocturnis Custodiis they were either practised by this K. for his own security after the English had by their frequent
which may oftentimes tend to quite other purposes than what we suppose As for the next Clause by breaking the Original Contract I have heard that divers of the Lords and Bishops who were for the King against this new Invention of an Abdication put the other side very hard to it to make out this Original Contract and desired them to shew in what part either of our Common or Statute Law it was to be found for they knew no such Maxim in the Common Law nor no such Clause in any Statute Aucient or Modern And though I confess you have undertaken to prove to me that there is such a thing yet it has been only by Far-fetch't Consequences and from the Old Form of Government among the Saxons of above 600 years standing which iâ— there were any such thing it is now become so Antiquated and out of Date that neither the King himself nor yet our Lords Bishops or Judges except some few Lawyers of your Kidney ever before now thought of any such thing I pass by the next Clause by the Advice of Jesuits c because I cannot say by whose Advice those things which you call Breaches of the Fundamental Laws were acted but as for the next wherein the Violation of these Fundamental Laws is lay'd to his Charge I confess you have given me a prety large Catalogue of these Fundamentals at our 9th meeting which yet you cannot say are to be found together in any one Law but are to be picked up here and there out of Magna Charta and divers other old Statutes but since the King and Parliament have declar'd in the first year of King Iames I that there are such things as Fundamental Laws and Priviledges I will not deny there are none yet certainly any Breach of them by the King was never intended to Create a Forfeiture of the Crown for if it had I think there would have been but few Kings or Queens of England which would not have forfeited who for some one or more of these Breaches committed in their Reigns by the Advice of their Judges and Councellors as these were lately by the King For I suppose you cannot expect that Princes should see any otherwise in matters of Government than by other Mens Eyes nor hear but by other Peoples Ears And therefore if the wilful Breach of these Fundamentals must cause a Forfeiture or Abdication of Government call it which you please methinks it had been reasonable for the Parliament to have given a list of these Fundamentals in some one Law that the King might have been sure to have avoided the Transgressing of them and fear of losing both his Royal Dignity and his penalty ought also to have been declared But the next Clause deserves more particular consideration viz. and having withdrawn himself out of the Kingdom hath Abdicated the Government now I must confess it is the first time that ever the Kings going away for fear of losing both his Royal Dignity and his Life and that with a declar'd design and intention to return again to the exercise of the Government when ever he might do it with safety should be judged a wilful Dessertion or Abdication I am sure there is nothing in our Common or Statute Laws that can at all warrant this Notion for Common Law is nothing but Ancient usage and immemorial Custom Now Custom supposes presidents and parallel Cases But it 's granted of all Hands that the Crown of England was never judged to be Abdicated by the withdrawing of the Prince before now And therefore it follows by undeniable consequence that this Opinion can have no Foundation in the Common Law because there is not so much as one ruled Case to prove it by But if we come to those presidents we have in our English History I shall give you such of them as I can remember we read in the Reign of Edward the 2d that when he fled from the Forces of his Wife and Son who had seized the Kingdom by Force the King being deserted by his Souldiers and Followers indeavoured to get into the Isle of Lundy for safety but not being able to make it was driven back and taken in Disguise at the Abby of Neath in Wales as the King was lately at Feversham now it is certain that King Edward went away without appointing any Governour of the Realm in his absence and if this Notion of an Abdication had been then taken for Law the Parliament needed not to have been put their to Shifts to find out so many other matters for which to depose him The next is the like case of King Edward the 4th who when the Earl of Warwick had Raised a great Army against him on a suddain and forced him to fly with a few followers to the Duke of Burgundy his Brother in Law though Henry the 6th was again put into the Throne yet was it not objected against King Edward that he had lost his Title to it or that it was become vacant by his Deserting it and if these two are not parallel Cases and do not reach the matter in hand I desire you to shew me wherein they differ from the present Case of the King But I am come now to the last clause of all that the Throne is thereby become vacant which seeming only to refer to the clause of Abdication I think I have said enough already against that Notion Therefore we will admit at present for Discourse sake that the King had really Abdicated the Government by Deserting the Kingdom and thereby wholly lost his Regal Power Now according to the Fundamental Laws and Customs of this Realm which is you know an Hereditary Monarchy the eldest Son or other next Heir either Male or Female immediately Succeeds the King his Father or other Predecessor and that without any inter-regnum at all so that the Reign of the Successor immediately begins from the very moment the Last King or Queen Deceases this being the setled Law I cannot see any one step the Convention has made in their whole proceeding that can be justified by the Fundamental Laws of the Land or the Laws of Equity and Justice for Equity has no quirks in it nor ever lies at a catch Reason is always just and generous it never makes mens misfortunes an accusation nor judges in favour of violence for indeed what can be more unrighteous though in the Case of a private person than that any one should suffer yet worse for being injured and be barred his rights for the injuries of others If a man should forfeit his House to those who set it on Fire only because he quitted it without giving some formal directions to the Servants or be obliged to lose his Estate for endeavouring to preserve his life I believe it would be thought a strange piece of Justice in any Law whatever and if this be proved illegal the Title of your Present King and Queen being wholly founded upon the validity
8. p. 580 581. W. All Burroughs that sent Members antiently held in Capite of the King D. 8. p. 557 578. W. They sent such Members by an inherent Right or at the Discretion of the Sheriffs Ib. p. 593. 604. C Cain W. he forfeited his Birth-right by the Murther of his Brother D. 2. p. 67. W. His Eldest Son was a Prince over his Brethren Ib. Canons of 1640. their validity discussed D. 4. p. 284. to 286. King Charles the Firsts pretended Commission to Sir Philim O Neal considered D. 9. p. 636 637. Great Charter of King Iohnâ— W. it was the sole Act of that King or else made by the advice and consent of all the Freemen of England D. 5. p. 324. D. 7. p. 455 456. Great Charter of Hen. the Third W. all the Copies we have now of it were his or else Edward I. his Charters Ib. 461. Children how far and how long bound to be subject to their Parents D. 1. p. 45. to 52. Christians W. as much obliged to suffer for Religion now as in the Primitive Times D. 4â— p. 230. to 234. Chester its County W. the Earl thereof could charge all his Tenants in Parliament without their consent D. 7. p. 501. Church of England W. Passive Obedience be its distinguishing Doctrine from other Churches D. 4. p. 292 293. Cities and Burroughs more numerous in the Saxon times than now D. 6. p. 379. to 400. W. They had any Representatives in Parliament before the 49th of Henry the IIId D. 5. p. 565 572. Whether Cities and Burroughs had not always had Representatives in the Parliaments of Scotland D. 7. p. 505. Clerici terras habentes quae ad Ecclesias non pertinent who they were D. 7. p. 450.451 Clergy a part of the Great Council of the Kingdom in the Saxon Times and long after D. 8. p. 544 to 550. W. None of the Clergy but such as held in Capite appeared at such Councils Ibid. W. The Inferiour Clergy had their Representatives in Parliament different from the Convocation Ib. 546 to 558. Commandment Vth in what sence Princes are comprehended under it D. 2. p. 106. to 109 111. Communitas Regni W. that Phrase in ancient Records and Acts of Parliament does not often signifie the Commons as well before the 49th of Henry the Third as afterwards D. 7. p. 412 to 415. W. That Phrase does not also signifie the whole body of the Kingdom consisting of Peers and Commons D. 6. p. 416. The Drs. proofs to the contrary considered 417 to 423. W. It does also often signifie the Commons alone D. 8. p. 572. to 574. Their Declaration to the Pope in the 48th of Edward the Third D. 8. p. 581 to 582. Their Petition to Henry the Fifth Their Protestation in Parliament in Richard the Seconds time 584. Commons of Cities and great Towns had their Representatives in the Assemblies of Estates of all the Kingdoms in Europe founded by the ancient Germans and Gothes Ibid 607 to 612. Commons their request and consent when first mentioned in Old Statutes D. 5. p. 329. W. Ever summoned to Parliament from the 49th of Hen. the Third to the 18th of Edw. the First D. 7. p. 522. Commons W. part of the Great Council before the Conquest D. 5. p. 369 372. The words Commune de Commune les communes do frequently signifie the Commons before the 49th of Henry the Third D. 6. 423. D. 7. 423 to 484. Common-Council of the whole Kingdom W. different from the Common-Council of Tenants in Capite D. 7. p. 437. to 474. Communitas Scotiae W. it always signified none but Tenants in Capite Ibid. p. 505. to 508. Conquest alone W. it confers a right to a Crown D. 2. p. 128 129. W. It it gives a King a right to all the Lands and Estates of the Conquer'd Kingom D. 3. 168. to 170. W. Any Conquest of this Kingdom was made by King William the First D. 10. p. 715. to the end Constitutions of Clarendon their Title explained D. 6. p. 430 431. Contract Originel W. there were ever any such thing D. 10 p. 695 to 709. D. 12. p. 809 8â—3 Convention W. its voting King James to have abdicaâ—ed the Government be justifiable D. 11. p. 809 to 834. W. Its Declaration of King James's violations of our fundamental Rights be well grounded Ibid. p. 816 832. W. It s voting the Throne vacant can be justified from the ancient constitution of the Government D. 12. p. 839 to 883. W. Whether its placing K. W. and Q. M. on the Throne may be also justified by the said Constitution Ibid. p. 883 to 894. W. It s making an Act excluding all Roman Catholick Princes was legal Ibid. p. 894 to the end Convocation Book drawn up by Bishop Overal its validity examined D. 1. p. 6 8. Copy Holders why they to have no Votes at Elections to Parliament D. 5. p. 513. Great Councils or Convention the only Iudges of Princes Titles upon any dispute about the succession or vacancy of the Throne D. 12. p. 895. D. 13. p. 917. to 919 924. Council of the King in Parliament what it was anciently D. 5. p. 334. Great Council or general Convention of the Estates of the Kingdom W. legal without the Kings Summons D. 5. p. 353. D. 12. p. 894. to 898. Curia Regis what iâ— anciently was and W. it consisted of none but Tenants in Capite Ibid. 368. Crown W. it can by Law be ever forfeited D. 12. p. 833 834. D Defence of a Mans self in what case justifiable D. 3. p. 148 149. Declaration of the Convention setting forth King James's violation of the fundamental rights of the Nation W. justifiable or not D. 11. p. 816. to the end Private Divines their Opiâ—nions about Passive Obedience and Resistance of what Authority D. 4. p. 291 294. W. Many of them have not quitted the ancient Doctrine of the Church of England declaring the Pope to be Antichrist vid. Append. Dispencing Power W. justifiable by Law D. 12. p. 119 to 828. Dissolution of all Government W. it necessarily follows from the Conventions declaration of the vacancy of the Throne D. 12. p. 890 891. Durham W. its Bishop could lay Taxes in Parliament on the whole County Palatine without their consents D. 7. p. 501 502. E Earls of Counties their ancient Office and Institution D. 5 p. 363 to 370. King Edward the Second being deposed W. any vacancy of the Throne followed thereupon D. 12. p. 158 to 861. Queen Elizabeth W. she had any Title to the Crown but by Act of Parliament Ibid. p 872 873. England when first so called D. 5. p. 362. English-Men W. they lost all their Liberties and Estates by the Norman Conquest D. 10. p. 753. to the end English Bishops Earls and Barons W. then all deprived of their Honours and Estates Ib. 756 to 762. English Saxon Laws W. confirmed or abrogated by K. William D. 10. p. 760. Estates of the Kingdom