England and Scotland there was no difference in Point of Priviledges as to being taxed or having Voices in the great Council of the Kingdom between the higher Nobility such as had the Titles of Dukes Marquesses and Counts and simple Gentlemen whereas in England it has been always otherwise at least since the Conquest and the Earls and Barons had by 〈◊〉 Tenures Places as Lords or Peers in the great Council of the Kingdom and so made a distinct Body from the rest of the People whereas in other Countreys the higher Nobility and Gentry are reckon'd as all one Estate and therefore it was but Reason that the rest of the Inferior Nobility or Gentry should have their Representatives in this great Council or Parliament or otherwise they would have been as very Vassals as to their Estates to the great Barons and Tenants in Capite as the Boors in Germany or the Paisants in France were to their Lords by whom they were taxed aâ— their Pleasures which they never were in England as we can find either from History or Records So that tho I grant that it is the municipal Laws of each Kingdom or Nation that must determine what are the governing part of the People in those Countreys yet tho that was not absolutely the same in all of them as it is in England yet we find it so in the main and the Representatives of the Cities and Towns do sufficiently assert the Right of the Plebians or Common People who make the 3d Estate in those great Councils But I must here except Sweden in which it is certain that the meer Rusticks or Boors had always their own Deputies in their Dyets as well as the Cities and Towns and if Sweden had this priviledge I cannot see why the English Gentry and Yeomanry who make but one body of Commons might not have had the like till you can shew me more sufficient proofs to the contrary M Well Siâ— I shall consider of what you say but since it grows late that we may wind up this Conversation as fast as we can give me leave to tell you that tho' I should admit all that you have hitherto averred for truth and that we should grant the Commons of England to have been as ancient a part of the great Council or Parliaments as any of the other two what is that to the main Point in question between us viz that of Non-resisâ—ance of the King upon any account whatsoever or how can you justsfie those of the Clergy Nobility and Gentry of the Church of England for taking up Arms against the King and contributing so much as they have done to the driving him away and in bringing things to this confusion they are now in since let your Constitution of great Councils and Parliaments be never so ancient let us also for once suppose them as you do to have a share in the Legislative Power of the Nation yet how can this authorize them much less any private persons out of Parliament to take up Arms against the King or those commissioned by him since the whole current both of Common as well as Statute-Law runs directly against you and all with one consent assert that the disposal of the Militia or Military Force of the Kingdom has been even so absolutely in the King's power and at his disposal that no man can without being guilty of Treason take up Arms whether offensive or defensive without his Commission to authorize him to do it so that no Government in the World is more averse to all forcible Resistance than our own the King having been even from your time beyond memory so fully possest of the whole Militia or power of raising offensive or defensive Arms in this Kingdom that it is expresly forbid by the Statute of the 7th Ed. I. against coming to Parliaments and Treatises with force of Arms in which the King sets forth That in the last Parliament the Prelates Earls Barons and the Commonalry in Latine Communitas or Body of the Realm have said that to us i e. to the King it belongeth and our part it is through our Royal Seignâ—ury to defend that is in old French to forbid force of Armour and all other force against our Peace at all times when it shall please us and to punish them according to our Laws and Vsages of our Realm and hereunto they are bound to Aid us as their Soveraign Lord as oft as need shall be From whence you may observe that it is the King's Prerogative to forbid all manner of Arms or Armed force within the Realm so that no man can lawfully Arm himself without his Authority And this is further confirm'd by the Statute of 25 Ed. the Third concerning Treasons wherein it is declared without any excepted Cases to the contrary That to Levy War against our Lord the King in this Realm or to be adherent to the King's Enemies in his Realm giving them Aid or Comfort in the Realm or elsewhere is Treason And Sir Edward Coke upon this Statute saith thus That this was High Treason before by the Common Law for no Subject can Levy War within the Realm without Authority from the King and if any man Levy War to expulse Strangers to deliver men out of Prisons to remove wicked Councellors or against any Statute or to any other End pretending Reformation on their own heads without Warrant this is Levying of War against the King because they take upon them Royal Authority From which Statute as also from your own Oracles Sir Ed. Coke 's Interpretation of it you may observe that it is not only Treasâ—n to make War against the King's Person but to take Arms to make any Reformation or Alteration in Church or State without the King's Authority nor can any Subject of England justifie the taking Arms upon any account whatsoever unless it be by the King's Commission and therefore all the Judges of England in the Case of Dr. Story who was Executed for Treason in the Reign of Queen Elizabeth did with one consent agree that the very Consultation concerning making War against the Queen shall be interpreted a making War against her Person and supposes a design against her Life So that nothing seems plainer to me than that by the Ancient as well as Modern Laws of England all defensive as well as offensive Arms are expresly forbidden and condemned F. I think I shall be able to make out notwithstanding what you have now said that all Resistance of the King or those commissioned by â—im is so far from being Treason as you suppose that it is every mans duty to oppose him in case he goes about to set up instead of a Legal Monarchy a Tyrannical Arbitrary Power in this Nation since this is but to preserve the Original Constitution of Parliaments which in some cases cannot be maintained without such a Resistance be allowed But to proceed to the Authorities you bring from our Statutes as for the first you urge
ordered and disposed of all publick Affairs conferr'd Offices and Bishopricks as if they were lawful Kings before your pretended Election or the ceremony of their Coronation and also had Ambassadors sent to them from Foreign Princes as appears from your own Quotation out of Hoveden Of those that were sent by the King of Scots to King Iohn before he was crowned though it is true he there stiles him no more than Duke of Normandy And this also may further appear by that passage I have cited out of the same Author that King Richard had Fealty Sworn to him as King of England by all the Freemen of England before he was Crown'd and you your self acknowledge the same Oath to be taken by the same persons to King Iohn before he came over to take the Crown And Lastly To make it yet plainer that there was no Vacancy or Inter-regnum in all these Successions you have mention'd consult what Chronologer you please or look into the most ancient Tables of the Succession of our Kings of England or into our old Printed Statutes or Law Books and you will still find the Reign of the Suceeding Prince to commence from the Death of his next Predecessor without any Vacancy or Inter-regnum between And these I think to be a great deal surer marks of their succeeding to their Royal Dignity by a pretence at least of a right of Inheritance from their Father or Brother rather thau this fancy of yours that you lay so much stress upon That because of their not being stiled Kings by our Historians till their pretended Election and Coronation was over they were not so indeed And I hope this may serve to satisfie this mighty Objection F. I must beg your pardon if I still declare my self not satisfied with your answers for though I grant that if this Argument of the Historians not stiling them Kings had stood single without any thing else to support it that your answers might have signified something But if you please better to consider it you will find that of these Princes taking in William your Conqueror claimed as your self must acknowledge not by any Hereditary right but by the Testament of the deceased Predecessor and if so where was your setled right of Succession by right of Blood Secondly It is likewise as plain that these four were never admitted or acted in England as lawful Kings till those Testaments were confirmed by the Election of the Great Council before whom they declar'd their Rights And till this was done how the Throne could be otherwise than Vacant I cannot for my Life conceive But as for two of them whom you call downright Usurpers viz. Henry the I and King Stephen it is certain they could have no colour of a Title till their Elections and if not till then and that neither your next Heir of the Crown nor yet they themselves took upon them the Title of Kings Was not this a Vacancy of the Throne in the mean time Suppose that time to have been but for the space of three or four days as it was after the death of King William Rufus In the next place pray consider that upon the death of every one of these Princes we do not find the Great Council of the Kingdom which still assembled to Elect the Successor was ever call'd in their names but met by their own Inherent Authority for how could they be summon'd by the King before he took that Title upon him which as your self are forced to acknowledge he never did till after his Coronation Lastly Pray remember farther that whoever was thus Elected and Confirm'd by the Great Council whether he was next Heir by Blood or not was always looked upon as Lawful King and has always passed for such in all our Chronicles and Laws and not those that claimed as the right Heirs by Blood and if this be not sufficient to prove that these Princes had no true and compleat right to the Crown till this Election was past I desire you would shew me my mistake These things premis'd I think it will be very easie to reply to every one of those answers you pretend to have made to my Query Therefore as to your First That they were really Kings before their Election or Coronation because they order'd and dispos'd of all publick affairs I do not deny but that some of them who Succeeded either as Heirs by Testament or by right of Blood might do many publick Acts by reason that they looked upon themselves as Heirs Apparent to the Kingdom and whom the Great Council I grant could not without high Injustice set aside and upon this account they might also receive Ambassadors from Foreign Princes in Affairs relating to Peace or War that they might know how to deal with them or what to expect from them after they were setled in the Throne yet that they sent not to them by the Title of Kings appears by that passage I cited out of Hoveden but I defie you to shew me any one instance that any of these Princes above mention'd ever took upon them to exercise any of those Prerogatives of Sovereign Power such as making War or Peace Enacting Laws Coining of Money before their Election and Coronation which though in some of them was done both at once yet in others it appears plainly to have been at different times and not upon the same day as it happen'd in the case of Henry I. whose Election was at Winchester upon Saturday and his Coronation was not till the next day as also that of Henry the 3 d. whose Election was upon St. Simon and Iude's Day but his Coronation not till the day after But as for your next reply which I grant to have been the strongest you have made that King Richard I. and King Iohn had both of them Homage and Fealty sworn to them as Kings by all the Freemen of England before they were Crowned this were a material argument if it were made out as I think it cannot for in the first place the bare swearing of Homage and Fealty to a Prince doth not make him immediately King though I grant it might give him in that Age a right to be looked upon as Heir Apparent to the Crown thus Henry the I. made all the Lords and Great Men of England to swear Homage and Fealty to Prince William his Son and so after his being drown'd to the Empress Maud his Daughter which was the true reason why she looked upon her self afterwards as Heiress to the Crown so likewise King Stephen a little before his Death at the great Council I have mention'd caus'd all the great men of the Kingdom to Swear Homage and Fealty to Henry Duke of Anjou as his immediate Successour so that you see this swearing of Fealty was in those days often perform'd â—efore the persons that received it were Kings indeed and so I believe it was done in both those instances you now give me for though I
and the other Less Barons or Tenants in capite ever since the 17th of King Iohn were summoned by one Common Writ directed to the Sheriff of the County since which time if not some time before I grant these Tenants in capite were not look'd upon as Barons or Peers of the Kingdom properly so called Yet did their Votes in Parliament still conclude and charge their Tenants in the making and imposing of Taxes or Laws which they alone together with the Bishops and greater Barons still performed until the Times I assign F. I see you are in a Wood and do not know well under what Class to rank your Tenants in capite for if they were at first all Lords or Peers how could they serve upon Juries in Hundred or County Courts If they were meer Commoners then there were Commons in Parliament before the 49th of Henry III. and why might not others as considerable Commoners have Places in the Great Council as well as they whether they were the Kings Barons or Tenents in capite or not But in answer to this you tell me that we never had any Barons held by mean Tenure here in England this is plainly equivocal for if you mean it of Baronies in capite it is true if of other Baronies it is false by your own Confession And Sir H. Spâ—lman tells us in the Title last quoted that the Barons of Burford pleaded to hold of the King per Baroniam and yet he was never any Baron of the Kingdom Now I desire you to shew me if he and such like Barons as himself had no place in Parliament who it was represented them there And therefore in answer to your Dilemma I grant that every Baron by Tenure was a Tenant in capite but every Tenant in capite was not a Baron and this I think is so plain that you your self cannot deny it But in answer to your next Question I can answer it without asking the Gentleman from whom you suppose I borrow the Notion that there might be other Barons or Lords of Mannors who by reason of their Estates might have Places in Parliament supposing Knights of Shires were not introduced till after Henry the II. or King Iohn's Time when such Freeholders became too numerous all to appear in person and yet these might not be Barons by Tenure And therefore all your Questions conclude nothing For you suppose that which is still to be proved That because all the Barons of England properly so called held of the King in capite and were consequently his Barons that therefore none but Bâ—rons and Tenants in capite had any place in our Great Councils which is the thing you only suppose and I as positively deny M. Well Sir since you put it to that issue I hope I shall fully convince you that none but the Persons I have mentioned were the constituent Members of the Common Council or Parliament before 49th Hen. III or 18th Edw. I and who done gave assent to all Laws that were made and all Taxes that were to be imposed on themselves and their Under-Tenants who were then concluded by the Acts of their Superior Lords But not to wrangle with you any longer about the signification of the Word Barones I grant there were Nominal or Titular Barons very many such as I have mentioned nay that there were several other Great Subjects who had Tenants that held 5 6 7 8 〈◊〉 nay more Knights Fees under them and who had the Name and Title of Barons But what is this to the purpose I desire you would prove to me by any direct proof that these sort of men had any Voices either by themselves or their Representatives in our Great Councils till after the time we allow them and this besides the Proofs I have already brought I think is sufficient Since it is plain that the Barones Regni or Terra and the Milites and Homines sui are all one and the same Persons that is they were the King 's Great Barons or Tenents in capite who alone constituted the Baronage or University of the Baronage of England or of the Kingdom in our Great Councils or Parliaments And for the farther proof of this I need go no farther than those very Arguments your own Author Mr. P. hath made use of in his Right of the Commons asserted wherein he would prove from certain Letters that were sent from the Baronage or University of the Baronage of England to the Pope against the Church of Rome's Exactions here in England And therefore I shall not bring only Fragments Phrases or single Words out of the Records or Histories which seem to countenance my Opinion contrary to the true meaning of those Records and the sense of the Historians as some of your men do but shall give you the Quotations out of those Authors whole and entire and shall make such reasonable Deductions from them as I think you will have no reason to deny to be fairly raised from the Words themselves And also as Matt. Paris relates in the 29th Hen. III. the Earls and Barons sent Letters to the Pope then at the Council of Lions to complain of the Pope's Exactions which Letters are said by this Author to be directed A Magnatibus Universitate Regni Angliae And tho it is also true that in the same Year there were other Letters sent thither from the same Parties to the Cardinals there assembled which are recited by the Old Manuscript to have sent Messengers to the Cardinals and the Old Manuscript in the Cottonian Library that they sent to the Cardinals assembled at the Council of Lyons Letâ—ers a Baronibus Militibus universis Baronagii Regni Angliae per procuratores 〈◊〉 Rogeram Bigod Comitem Norff. Willielmum de Cantelupo Iohannem silium Galfriâ—â—â— Radulphum filium Nicholas Philippum Basset Barones Procuratores Baronagii Angâ—â—â— tunc temporis Innocentio Papa Quarto celebrante Concilium ibi generale Anno Gratia 1245. And the Letters are thus directed Venerabilibus in Christo Fratribus uniâ—â—sis Singulis Dei Gratia Salutem Barones Milites Universitas Baronagii Regis Angliae And that Matt. of Westminster does likewise agree in this Relation only stiles the Persons last named Milites whom Matt. Paris calls Viri Nobiles discreti But this will make no difference as I shall shew you by and by And to these Matt. of Westminster adds Mr. William Powic Clark who seems to have been their Secretary But notwithstanding it will appear that all these Persons so sent named Barones Milites universitas Baronagii did not represent the Commons of England at all but only the Great Earls Barons and Tenants in Capite For first it appears from Sir W. Dugdale's Baronage of England that every one of the Persons here named was either an Earl Baron or Great Tenant in capite and nâ—â— Common Persons as your Author would have them And tho it true the Cottonian Manuscript
refer but to this very Letter which was assented as well per procuratores Communitatis Regni as by your Barons here called Nobiles Regni And this Application thereof is given by Mr Pryn himself when he makes use of these Records But to let you see farther that the Lords and Commons for all this Author Opinion to the contrary might joyn in a Letter ro the Pope I shall shew you by that which was writ in the Name of the whole Parliament to the Pope in the 17 th of Edw. III. about the Provisions of Benefices which then grew so exorbitant that Walsingham tells us in his History Quod Rex tota Nobilitas Regni pati noluit c. which Phrase the Letter it self will best explain The beginning and conclusion of which I shall give you in English as you may find it in Mr. Fox's Book of Martyrs To the Most Holy Father in God Lord Clement by the Grace of God of the Holy Church of Rome and of the Universal Church Chief and High-Bishop His humble and devout Children the Princes Dukes Earls Barons Knights Citizens and Burgesses and all the Communalty of the Realm of England assembled at a Parliament holden at Westminster the 15 th Day of May last past c. In witness whereof we have hereunto set Our 〈◊〉 Given in the full Parliament at Westminst on the 18th Day of May Anno Drâ— 1343. And it still appears by the Parliament Roll of this Year viz. 17th Edw. III. n. 59. that the Commons petitioned the King that the Lords might stay at the Parliament till they had perfected and seal'd this Letter And that there was such a Letter then written by the Parliament appears by the King's Letter to the Pope about the same Matter still among the Tower Records In which he imitated his Grandfather Edw. I. and Great Grandfather Hen. III. who also seâ— Letters to the Pope on such like occasions but in those to excuse the Arch-Bishop of Canterbury from being the Author of those Complain he had this Passage that since it was the Judgment tam Procerum Nobilium quaâ— Communitatis Regni in ultimo Parliamento contra Provisorum Exercitum To conclude I think nothing is plainer than that under the Universitas Regâ—â— in the first Letter to the Pope 29th Hen. III. and under the Communitas Regni mentioned in the Letter of the 29th Edw. I. were meant the same Estates or Orders of Men as were more particularly recited in this present Letter viz. The 〈◊〉 Lords and Commons in Parliament assembled M. I must freely tell you I am not yet satisfied with the Sense you now put â—pon these Words Universitas and Communitas Regni before the Commons were summoned to Parliament for you your self must grant that as the word Universitas Regni takes in the whole Representative Body of the Kingdom so likewise the word Communitas signifies no more than the same whole Body or Community thereof Therefore if I prove to you that in those times this Universâ—â—y or Community consisted only of the Earls Barons and Tenants in capite that word Communitas Regni ought never to be interpreted by the English word Commoâ—â—lty or Commons of England till after the time that I allow the Commons were admitted to make a constituent part of the Great Council or Parliament nor always then neither And Mr. P. in his Book which we have so often cited hath done very unfairly to make the Universitas and Communitas Regni to comprehend the Commons of England before they everappeared in Parliament at all and so hath he likewise abused the Word Populus as I have already observed to signifie the Commons when indeed there is no more thereby meant than the whole Assembly of the Laity which at that time consisted of no more than the Earls Barons or other Tenants in Capite And tho I grant that by Communitas Praelatorum or Baronum are often understood the Body of the Prelates or greater Barons only called by way of Eminency Proceres Magnates yet most frequently these with all the other Tenants in capite did make the whole Body of the King 's immediate Tenants in Military Service and were altogether called the Baronage of England the Community of the Land or Community of the Kingdom and for this I think I shall give you undeniable proofs by and by F. I am very well aware that the Word Populus often signifies the whole Body of the Laity yet not excluding the Commons as I have already sufficiently proved For then the word must signifie quite contrary to its genuine Signification instead of People the Greater Nobility only yet that when it is put after as distinct from Magnates it must mean the Commons as now understood I shall shew you by and by But that this word Populus does not always signifie the whole Body of the Nobility only but takes in oftentimes the Commons too pray see Matt. VVest who tells us King Edw. I. in the 34th year of his Reign making his Son a Knight Pro hac melitia silii Regis concessus est Regi zomus Denarius a Populo Clero Mercatores vero vicesâ—mum concesserunt Upon which your Dr. in his Glossary very well remarks that it is evident upon Record who were the Populus meant by the Historian viz. the Comites Barones alii Magnates nec non Milites Comitatuum So that unless the Knights of Shires were Lords it is plain Populus takes in the Commonâ— too But Universitas Regni and Communitas Regni called in French le Communâ— Dangletterre is often taken for the whole Community or Body of the whole Parliament and this Sir Edward Coke owns expresly in his 2d Instit. upon these Words In Articulis supâ—â— Chartas Thus here Le Commune is taken for People so astout le Commune is here taken for all the People and this is proved by the Sense of the Words For Magna Charta was not granted to the Commons of the Realm but generally to all the Subjects of the Realm viz. to those of thâ— Clergy and to those of the Nobility and to the Commons also And this is a Rational as well as Grammatical Interpretation For as the Word Universitas is derived from the Adjective Universus which signifies the VVhole 〈◊〉 Universal So the Word Communitas is derived from the Adjective 〈◊〉 Common or General So that these two Words when used simply in a Political 〈◊〉 Legal Sense ought to take in the whole Body of the Kingdom or all sorts and conditions of Freemen appearing themselves or their Lawful Proxies or Representatives in Parliament But I have already sufficiently proved that under those General words used in our Historians and Records viz. Principes Proceres Nobiles Magnates Barones alii de Regno were then comprehended either all the considerable Freeholders oâ— Lords of Manners or else the Knights of Shires Citizens and Burgesses So
this War had been made in their own names it had been but a just Return for what had been done to them before by the Late King who made actual War upon them without ever giving them the least notice or demanding satisfaction for any wrongs or damages receiv'd and this was the more justifiable because his present Majesty when Duke of York was looked upon to have a very great hand in those Councils which begun that unhappy War in which he himself serv'd as Admiral But as to the Prince of Orange there is much more to be said in his justification for in the first place tho' in some respects he was a Subject by living under and enjoying divers Lands and Territories and Commands within the Dominions of the United Provinces yet as he is Prince of Orange he is a free independent Prince and as such has a right of making War and Peace and if so all that is to be further enquired into is whether the Prince had any just cause of making War upon the King or â—ot therefore to answer your first Objection against the Prince's making War upon an Uncle and a Father-in-law without first demanding satisfaction and then denouncing War if he could not obtain it I confess this were a good Objection if you could once prove to me that the Prince could have been sure to have had granted him whatever he could in reason demand both in respect of the Church of England the security of the Protestant Religion the Rights and Liberties of the Subjects of England and his own particular concerns in respect of the Prince of Wales but whoever will impartially consider the Terms that the Prince and King were upon just before his coming over will find that he was not obliged to give the King notice of his intentions by first demanding satisfaction and then denouncing War if it had been denyed since the King might then have joyned his own with the French Fleet and sent for French Forces into England and then all that the Prince could have done in behalf of himself and the Nation had been altogether in vain And then though I grant that such satisfaction ought to be demanded in most cases yet will it not hold in this where if the Prince had sooner discovered his designs the King might have easily prevented them And how near this was to have been put in Execution may appear by this That Succours were actually offered by the French King and if they were refused by ours it was partly because it was too late for the French Fleet to be then put out and partly out of a Politick consideration that besides the losing of the Hearts of his English Subjects it might give the French such a footing here that they would not be easily gotten out again But indeed it seems as if the old formal way of making War was quite out of fashion since Charles the Second made War against the Dutch and the King of France so lately against Spain the Elector Palatine and the Emperor without any Observation of those formalities But if we consider the Grounds and Causes of this War as they are set forth in the Princes late Declaration they may be reduced to these three Heads First The Restoration of the Church of England with the Bishops and Colledges to their just Priviledges Secondly The securing of the Rights and Liberties of the Subject from the Dispensing Power and those other Incroachments that had been made upon them by the partial Judgments of Popish Ignorant or Corrupt Judges And Lastly The Enquiry into the Birth of the Prince of Wales In all which the Prince was so reasonable as to refer the decision of these differences to the Judgment of a Free Parliament Now as for the first of these That the Prince as a Neighbour and of the same Religion with us might justly secure the interest of the Protestant Religion here and also redeem the Clergy from the persecution they lay under is very evident Since it has always been held lawful for Princes to take the part and espouse the interest of those of the same Religion with themselves though Subjects to another Prince Thus Eusibius makes it a good cause of War by the Emperor Constantine against Licinius because he persecuted the Christians living under his Dominions So likewise of later Ages Queen Elizabeth assisted the Dutch Protestants of the united Provinces and those of France against the Persecutions and Oppressions they suffered from their own Princes As to the French Protestants King Charles the I. sent a Fleet and an Army to their Assistance in 1627. But as to the next Head the Oppressions we lay under in respect of our Civil Liberties the Prince had as great or rather greater right to vindicate these than the former For Bodin and Barclay though they suppose it unlawful for Subjects to take up Arms against their Prince though never so highly Opprest yet they count it not only lawful but Generous and Heroick for a Neighbouring Prince to rescue injur'd and opprest Subjects from the Tyranny of their Kings So that if the King had by his Dispensing Power his Levying of Taxes without Law and taking away the freedom of Elections for Parliament men almost totally dissolved the Government and brought it to the condition of an absolute Monarchy it was high time for the Prince to put a stop to those Encroachments both in respect of his own particular interest and also of the States whose General and Stadâ—holder he is Of the former since if this Kingdom should once become of the Popish Religion by the means of a standing Army and those other methods that have been taken to make it so granting the Prince of Wales to be truly born of the Queen yet should he happen to die the Popish faction here in England would in all likelihood debar the Prince and Princess of Orange from their lawful Succession to the Crown or at least would never admit them but upon conditions of establishing of Popery and Arbitrary Government in England the former of which is as contrary to their consciences as the latter is to their principles and inclinations So on the other side if the Prince of Wales be not the Queens true Son he had certainly a much greater interest as the presumptive Heir of the Crown to demand satisfaction in that great point which so nearly concerned their right of Succession For then certainly they might justly demand satisfaction especially when they desired no more but to have this business left to the inspection of the Estates of the Kingdom as the only proper Judges of the same For as to the Privy Council who by the Kings command though without any president had taken upon them to hear and determine this matter their Highnesses certainly had no reason to be satisfied with it since besides the incompetency of the Judges the King himself appeared too partial and interested in the affair for them to set down by
ADVERTISEMENT THE Author hath thought fit for the Reasons he hath given you to alter the Method he laid down in his Preface to the First Dialogue and to propose the Subjects he treats of in this following Method Bibliotheca Politica OR AN ENQUIRY INTO The Ancient Constitution OF THE ENGLISH GOVERNMENT Both in respect to the just extent of Regal Power and the Rights and Liberties of the Subject Wherein all the Chief Arguments as well against as for the late Revolution are impartially Represented and considered in Thirteen Dialogues Collected out of the Best Authors as well Antient as Modern To which is added an Alphabetical INDEX to the whole Work LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford-Arms where may be had the First Second Tâ—ird Fourth Fifth Sixth Seventh Eighth Ninth Tenth Eleventh Twelvth and Thirteenth Dialogues 1694. THE QUESTIONS Debated in the Ensuing Dialogues WHETHER Monarchy be Iure Divino Dialogue the First Whether there can be made out from the Natural or revealed Law of God any Succession to Crowns by Divine Right Dialogue the Second Whether Resistances of the SVPREAM POWER by a whole Nation or People in cases of the last extremity can be justified by the Law of Nature or Rules of the Gospel Dialogue the Third Whether Absolute Non Resistances of the SVPREAM POWERS be enjoyned by the Doctrine of the Gospel and was the Ancient Practice of the Primitive Church and the constant Doctrine of our Regormed Church of England Dialogue the Fourth Whether the King be the Sole Supream Legislative Power of the Kingdom and whether our Great Councils or Parliaments be a Fundamental Part of the Government or else proceeded from the Favour and Concessions of former Kings Dialogue the Fifth Whether the Commons of England represented by Knights Citizens and Burgesses in Parliament were one of the Three Estates in Parliament before the 49th of Henry III. or 18th of Edw. I. Dialogue the Sixth Whether the Commons of England represented by Knights Citizens and Burgesses in Parliament were one of the Three Estates in Parliament before the 49th of Henry III. or 18th of Edw. I. Thâ— Second Parâ—â— Dialogue the Sevenâ—h A Continuation â—f tâ—e former Discourse concâ—rnâ—ng the Antiquity of the Commons in Parliament wherein the best Authorities for it are proposed and examined With an Entrance upon the Question of Non Resistance The Third Part Dialogue the Eighth Whether by the Ancient Laws and Constitutions of this Kingdom as well as by the Statutes of the 13th and 14th of King Charles the II. all Resistance of the King or of those Commissioned by him are expresly forbid upon any pretence whatsoever And also whether all those who assisted his present Majesty King William either before or after his coming over are guilty of the breach of this Law Dialogue the Ninth I. Whether a King of England can ever fall from or forfeit his Royal Dignity for any breach of an Original Contract or wilful violation of the Fundamental Laws of the Kingdom II. Whether King William commonly stiled the Conquerour did by the Conquest acquire such an absolute unconditioned Right to the Crown of this Realm for Himself and his Heirs as can never be lawfully resisted or forfeited for any Male-Administration or Tyranny whatever Dialogue the Tenth I. In what Sense all Civil Power is derived from God and in what Sense may be also from the People II. Whether His Present Majesty King William when Prince of Orange had a just Cause of War against King Iames the II. III. Whether the Proceedings of His Present Majesty before he was King as also of the late Convention in respect of the said King Iames is justifiable by the Law of Nations and the Constitution of our Government Dialogue the Eleventh I. Whether the Vote of the late Convention wherein they declared the Throne to be vacant can be justified from the Ancient Constitution and Customs of this Kingdom II. Whether the said Convention declaring King William and Queen Mary to be Lawful and Rightful King and Queen of England may be justified by the said Constitution III. Whether the Act passed in the said Convention after it became a Parliament whereby Roman Catholick Princes are debarred from succeeding to the Crown was according to Law Dialogue the Twelfth I. Whether an Oath of Allegiance may be taken to a King or Queen de facto or for the time being II. What is the Obligation of such an Oath whether to an actual defence of their Title against all Persons whatsoever or else to a bare submission to their Power III. Whether the Bishops who refused to take the Oath of Allegiance to their present Majesties could be lawfully deprived of their Bishopricks Dialogue the Thirteenth ADVERTISEMENT THE Author writing these Dialogue purely for the discovery of Truth and for giving a full and impartial account of all the considerable Arguments and Authorities that have been urged on either side in the Controversies discussed in the foregoing Dialogues if therefore any Person who having perused them is dissatisfied with any of the Arguments Answers or Authorities there made use of and supposes he could confute them or else put better in their stead if such Persons do not think it worth while to write a Treatise on purpose on this Subject they may if they please send their Animadversions to the Publisher of these Dialogues who will undertake to communicate them to the Author who hereby also engages to Publish them fairly without any Alterations or Additions together with his Answers or Replys to them if the Subject will admit it the Persons concerned may follow the Method used in the foregoing Appendix of Additions but are desired to send in their Animadversions by the beginning of next Michaelmas Term when if sent they shall be Publish'd Bibliotheca Politica Or A DISCOURSE By way of DIALOGUE WHETHER MONARCHY BE IVRE DIVINO Collected out of the most Approved Authors both Antient and Modern Dialogue the First LONDON Printed for Richard Baldwin in Warwick-Lane near the Oxford-Arms 1694. The Epistle Dedicatory To all Impartial and unprejudiced Readers especially those of our Hopeful and Ingenious Nobility and Gentry HAving out of Curiosity for some years before the late wonderful happy Revolution as well aâ— since for the satisfaction of my own Conscience carefully perused all Treatises of any value that have been published of late years concerning the Original and Rights of Civil Government aâ— well of Monarchy aâ— the other kinds thereof as also of the Antient Government and Fundamental Constitutions of this Kingdom I have found it necessary in order to my better retaining of what I had read and making a more certain Iudgment thereupon to commit to writing the most considerable Arguments on both sides as well of those who have Monarchy to be Jure Devino as of those who only allow it to Government in general of those who hold an Absolute Subjection or Passive Obedience as their Phrase is as well as
make them the first breachers of it whereas you may find that it was the opinion of the whole Convocation for many years before ever those Divines or that Gentleman began to Preach or write upon this subject Nor were these the only men who maintained these Principles but Archbishop Usher and Bishop Sanderson whom I suppose you will not reckon among your flattering Court Bishops have as learnedly and fully asserted those Doctrines you so much condemn as any of that party you find fault with and have very well proved all resistance of the Supream Powers to be unlawful not only in absolute but limited Monarchies Of the Truth of which you may sufficiently satisfie your self if you will but take the Pains to read the Learned and Elaborate Treatises written by those good Bishops viz. The Lord Primate Usher's Power of the Prince and Obedience of the Subject and the Bishop of Lincoln's Preface before it as also the said Bishop's Treatise de Iura nouto written whilst he was Doctor of the Chair in Oxford F. I must beg your pardon Sir if I have never yet seen or heard of that Convocation Book you mention much less of the opinions therein contained since there is no mention made of their proceedings in any History or Record of those times either Ecclesiastical or Civil as I know of But this much I am certain of That these Determinations or Decrees you mention call them which you please never received the Royal Assent much less the confirmation of the King and Parliament one of which if not both is certainly requisite to make any opinion either in Doctrine or Discipline to be received by us Lay-men for the Doctrine of the Church of England otherwise the Canons made in 1640 would oblige us in Conscience tho' they stand at this day condemned by Act of Parliament so that however even according to your own Principles you cannot urge this Book as the Authoritative Doctrine of the Church of England unless their Determinations had received the Royal Assent which you your self do not affirm they had for you very well know that as in Civil Laws no Bill is any more than waste Parchment if once the King hath refused to give his Royal Assent to it so likewise in Spiritual or Ecclesiastical matters I think no Decrees or Determinations of Convocations are to be received as binding either in points of Faith or Manners by us Lay-men till they have received the confirmation of the King and the two Houses of Parliament or otherwise the consequence would be that if the King who hath the nomination of all the Bishopricks and Deaneries as also of most of the great Prebendaries in England of which the Convocation chiefly consists should nominate such men into those places which would agree with him to alter the present establisht Reformed Religion â—n Governmenâ— and to bring in Popery or Arbitrary Power the whole Kingdom would be obliged in Conscience to embrace it or at least to submit without any contraditioâ— to those Canons the King and Convocation should thus agree to make which of how fatal a consequence it might prove to the Reformed Religion in this Kingdom this Kings choice of Bishops and Deans such as he thought most fit for his turn would have taught â—s when it had been too late M. You very must mistake me Sir if you believe that I urge the Authority of this Book to you as containing any Ecclesiastical Canons which I grant must have the Royal Assent but whether that of the two Houses of Parliament I very much question since the King without the Parliament is Head of the Church and diverse Canons made under Queen Elizabeth and King Iames are good in Law at this day tho' they were never confirmed by Parliament But I only urge the Authority of this Book to you to let you see that these Doctrines are more Antient than the time you prescribe and also that the Major part of the Bishops and â—lergy of the Church of England held these Doctrines which you so much condemn long before those Court Bishops or Divines you mention medled with this controversie and I suppose we may as well quote such a Convocation Book as a Testimony of their sense upon these subjects as we do the French Helvetian or any other Protestant Churches Confessions of Faith drawn up and passed in Synod of their Divines tho' without any confirmation of the Civil Power F. If you urge this Convocation Book only as a Testimony and not Authority I shall not contend any further about it but then let me tell you that if the Canons or Decrees of a Convocation though never so much confirmed by King and Parliament do no further oblige in Conscience than as they are agreable to the Doctrine of the Holy Scriptures sure their determinations without any such Authority can only be look'd upon as the Opinions of so many particular private Men. And tho' I have a very great Reuerence for the Judgments of so many Learned Men yet granting those Doctrines you mention to be contained in this Book I think notwithstanding that we may justly examine them according to the Rules of Reason and express Testimonies of Scripture by either of which when I see you can convince me of the falshood of my Tenets I shall count my self happy to be beâ—â—er informed But as for those Treatises of Bishop Usâ—er and Bishop â—anderson which you now mentioned I must needs confess they are learnedly and elaborately writen and tho' I am against Rebellion as much as any man and do believe that subjects may too often be guilty of it yet am I not therefore convinced that it is absolutely unlawful in all cases whatsoever even in the most Absolute and Arbitrary sort of Civil Government for the People when violently and intolerably opprest to take up Arms and resist such unjust violence or to join with any Foraign Prince who will be so generous as to take upon him their deliverance So that though I freely acknowledge that those good Bishops you mention were very Pious and Learned men â—im â—hat I bear great reverence to their memories yet doth it not therefore follow that I must oâ—â— them to be Infallible or as great Polititians as they were Learned Divines or that they understood the Laws of England as well as they did the Scriptures or Fathers and perhaps there may be a great deal more said on their behalfe than can be for divers others who have since Wâ—â—een and Prâ—â— so much upon those subjects for if you please to consider the times of their writing those Treatises you will find them written about the beginning or middle of the late Civil Wars which they supposed to be begâ—n and carried on contrary to all Law and Justice under the pretenced Authority of the two Houses of Parliament against King Charles the First and therefore it is no wonder if they thought themselves obliged to Write very high for the Prerogatives
it would be left in her Power not only to govern her self but by marrying to chuse a King for her Subjects whom they do not approve of And therefore we read that in diverse of the Antient Kingdoms of the World Women were excluded from the Succession Nor are these the only questions that either might then or else have in latter Ages been started concerning Succession in Kingdoms and Principalities and have been the cause of great disputes between Pretenders to Crowns where a King Dies without Lawful Issue as whether a Grandson by a Younger Daughter shall inherit before a Grand-daughter by an Elder Daughter Whether the Elder Son by a Concubine before the Younger Son by a Wife From whence also will arise many Questions concerning Legitimation and what by the Laws of Nature is the difference betwixt a Wife and a Concubine All which can no ways be decided but by the Municipal or Positive Laws of those Kingdoms or Principalities It may further be enquired whether the eldest Son being a Fool or Madman shall inherit this Paternal Power before the Younger a Wise Man And what degree of â—olly or madness it must be that shall exclude him and who shall be the Judges of it Also whether the Son of a Fool so excluded for his Folly shall succeed before the Son of his Wiser Brother who last Reigned Who shall have the regal Power whilst a Widdow Queen is with Child by the Deceased King until she be brought to Bed These and many more such difficulties might be proposed about the Title of Succession and the Right of Inheritance to Kingdoms and that not as idle speculations but such as in History we shall frequently find examples of not only in our own but likewise other Kingdoms From all which we may gather that if the Laws of God or Nature had prescribed any set rules of Succession they would have gone farther than one or two cases as concerning the Succession of Elder Sons or Brothers where an Elder Son dies without Issue and would also have given certain infallible rules in all other Cases of Succession besides these and not have left it to the Will or particular Laws of diverse Nations to have established the succession so many several ways as I am able to shew have been practised in the World M. I must confess you have taken a great deal of pains to perplex the Succession to Adam which seems designed for nothing else but to make me believe that if Adam or any of his Sons were Kings or Princes it must have been by the Consent or Election of their Children or Descendants which is all one as to say that those Antient Princes derived their Titles from the Iudgment or Consent of the People the contrary to which is evident as well out of Sacred as Civil History F. Since you appeal to History to History you shall go and to let you see that I have not invented these doubts about Succession of my own Head and that there might have very well been a real dispute about the Succession to Adam in the Cases I have put may appear by the many disputes and quarrels that have been in several Nations concerning the Right of Succession between the Uncle and the Nephew of which Grotius is so sensible that he confesses in the latter end of the Chapter last cited that where it could not be decided by the Peoples Iudgment it was fain to be so by Civil Wars as well as private Combats and therefore he is forced ingenuously to confess that this hath been practised divers ways according to the different Laws and Customs of Nations and he gives us here a distinction between a direct Lineal Succession and a transversed and acknowledges that amongst the Germans as also the Goths and Vandales Nephews were not admitted to the Succession of the Crown before their Uncles the like may be said of the Saxons and Normans and therefore we find in our Antient English History that before the Conquest the Uncle if he were Older always enjoyed the Crown before the Nephew which I can more particularly shew you if you think fit to question it The like manner of succession was also amongst the Irish-Scotch for above 200 years after â—â—rgus their first King The like Custom was also observed among the Irish as long as they had any Kings amongst them and is called the Law of Tanistry The same was also observed in the Kingdom of â—astile where after the death of Alphonso the fifth the States of that Kingdom admitted his Younger Son Sancho to be King putting by Ferdinand de la Cerda the Grand-Son to the late King by his Eldest Son tho' he had the Crown left him by his Grand-Father's Will So likewise in Sicily upon the Death of Charles the Second who left a Grand Son behind him by his Eldest Son as also a Younger Son named Robert between whom a difference arising concerning the Succession it being referred to Pope Clement V. He gave Judgment for Robert the Younger Son of Charles who was thereupon Crowned King of Sicily and for this reason it was that Earl Iohn Brother to King Richard the second was declared King of England by the Estates before Arthur Earl of Brittain Son of Ieoffrey the Elder Brother and Glanvil who was Lord Chief Justice under Henry the second in that little Treatise we have of his makes it a great question who should be preferred to an Inheritance the Uncle or Nephew But as for Daughters whether they shall inherit at all or not or at least be preferred before their Uncles is much more doubtfull since not only France but most of the Kingdoms of the East at this day from Turkey to Iapan do exclude Women from the Throne And it was likewise as much against the Grain of the Antient Northern Nations and hence it is that we find no mention of any Queen to have reigned amongst the Antient Germans or Irish-Scots and never but two among the English-Saxons and those by Murder or Usurpation and not by Election as they ought to have done And upon this Ground it was that the Nobility and People of England put by Maud the Emperess and preferred Stephen Earl of Blois to the Crown before her for tho' he derived his affinity to the Crown by a Woman yet as being a Man he thought himself to be preferred before her So likewise in the Kingdom of Aragon Mariana in his History tells us that Antiently the Brother of the King was to inherit before the Daughter examples may also be given of divers of the other instances but these may suffice M. I Pray give me leave to interrupt you a little for by these examples you would seem to infer that these Laws about setling the succession of Crowns in several Kingdoms depended upon the Will of the People whereas I may with better reason suppose that if such Laws and Alterations have been in such successions they were made by
the sole Will of the first Princes in which the People had no hand for in the most Antient Monarchies there was a time when the People of all Countreys were Governed by the Sole Wills of their Princes which by degrees came to be so well known in several instances that inferior Magistrates needed not resort to them in those cases and the People being for a considerable time accustomed to such Usages they grew easie and Familiar to them and so were retained tho the Memory of those Princes who first introduced them was lost and after Kings finding it better to continue what was so received than to run the hazard and trouble of changing them were for their own ease and the good of their Subjects contented they should be still from Age to Age so continued Which custom may hold as well in Laws about Succession as other things And therefore we find that even in those Monarchies where the People have nothing to do in making Laws Women are excluded which could proceed at first from nothing else but the declared Will or Law of the first Monarchs So likewise the Original of the Salique Law is wholly ascribed to Pharamond the first French King and Mariana whom you lately cited tells us that Alphonso King of Arragon made a Law that where Heirs Male were wanting the Sons of a Daughter should be preferred before the Aunt which Law is wholly attributed to the King for he adds presently after Sic saepe ad Regum arbitrium jura regnandi commutantur F. Granting all this true that you have said you cannot but confess that the Laws of God and Nature have established nothing in this matter or else it could not be in the Power of Kings to make or alter Laws concerning the succession as your last Quotation intimates they may yet even in the most absolute Monarchies the Laws about the Succession of the Crown must wholly depend upon the Consent of the People who are to see them observed or else every Monarch might alter these Laws of Succession at his pleasure and the Great Turk or King of France now the Assembly of Estates is lost might leave the Crown to a Daughter if either of them pleased and disinherit the next Heir Male. But as for the Original of this â—alique Law in France you 'l find your self much mistaken if you suppose that that Law was made by the Sole Authority of Pharamond for the Antient French Histories tell us that the Body of Salique Laws which are now extant were made by the Common Consent of the whole Nation of the Francs who committed the drawing of them up to three Judges or Commissioners and which Laws Pharamond did only confirm and any one that will but consult those Histories may see that Kings were so far from having the Sole Legislative Power in their own hand that they were frequently Elected by the Estates nor is it truer that you suppose from Mariana that the Kings of Arragon had Power alone to make Laws it appears quite contrary from the Constitutions of that Kingdom where the King could do nothing of this kind without the Consent of the Estates and was not admitted to the Crown without taking an Oath to the Chief Justice in the name of the People that he would observe the Laws and Constitutions of the Kingdom otherwise that they would not be obliged to obey him But at once to let you see that about the Succession of the Sons or Descendants by Daughters the Cases are much more nice and intricate and that when such Cases happen in limited Monarchies where there is an Assembly of Estates they are the Sole Iudges of such differences may appear by two famous examples in modern History The first is in Scotland about four hundred years ago when after the Death of King Alexander III who died without Issue when two or three several competitors claim'd a Right to the Crown as descended from several Daughters of David Earl of Huntington great Uncle to the last King the Chief of which being Iohn Bayliol and Robert Bâ—uâ—â— the Estates of the Kingdom not being able to decide it they agreed to refer it to Edward I. King of England who adjudged the Crown to Bayliol yet did not this put an end to this great controversie for not long after Bayliol being deposed Bruce revived his Title and the States of Scotland declared him King whose Posterity enjoy it at this day A like Case happened in the last Age in Portugal after the Death of Henry surnamed the Cardinal without Issue when no less than four Eminent Competitors put in their Claim some claiming from the Daughters of Don Durate youngest Brother to the last King Henry But the King of Spain and other Princes as Sons to the Sisters of the said King Henry dying without Issue left ten Governours over the Kingdom to decide together with the Estates the Differences about the Succession who quarrelling among themselves as also with the Estates before it was decided Philip the second King of Spain raised an Army and soon conquered Portugal And yet we have seen in his Grand son's time that the Estates of Portugal declared this Title void and the Crown was settled in the Posterity of the Duke of Braganza who still enjoy it And how much even Kings themselves have attributed to the Authority of the Estates in this matter appears by the League made between Philip the Long King of France and David King of Scots wherein this condition was exprest That if there should happen any Difference about the Succession in either of these Realms he of the two Kings which remained alive should not suffer any to place himself on the Throne but him who should have the Judgment of the Estates on his side and then he should with all his Power oppose him who would after this contest the Crown To conclude I cannot see any means how if such Differences as these had arisen in the first Generation after Adam I say how they could ever have been decided without a Civil War or else leaving the Judgment thereof to the Heads or Fathers of Families that were then in being Which how much it would have differed from the Judgment or Declaration of the States of a Kingdom at this day I leave it to your self to judge M. I shall not trouble my self to determine how far Princes may tye up their own hands in this matter of the Succession and leave it to the States of the Kingdom to limit or determine of it but from the beginning it was not so and therefore give me leave to trace this Paternal Government a little farther For tho' I grant that when Iacob and his twelve Sons went into Egypt together with their Families they exercised a Supreme Patriarchal Jurisdiction which was intermitted because they were in Subjection to a stronger Prince Yet after the return of these Israelites out of Bondage God from a special
it be any where exercised in Common-Wealths as you can do in Monarchies only I must needs tell you I am not at all of your Opinion that the Oppressions or abuses committed by the Magistrates in Common-Wealths are to be compared with the Tyrannies and Cruelties exercised by absolute Monarchs and their Subordinate Ministers For tho' I grant they often lay very severe Taxes and impositions upon their Subjects especially such as they have acquired by Conquest and so act like absolute Monarchs over them Yet are these oppressions not at all to be compared to those under Arbitrary Monarchies for tho' perhaps divers Common-Wealths may impose greater Taxes upon their Subjects than some Neighbouring Monarchs yet doth it not follow that their Government is more severe for all that since the People having an opportunity by free Trade Liberty of Conscience in such Common-Wealths to acquire a greater share of Riches are also thereby enabled to Contribute more to the maintenance of the Government by which they reap so great Benefits Thus we see a Citizen of Amsterdam is able to pay six times the Taxes of one of Antwerp and Therefore I dare for all that appeal to any Common Subject tho' a Papist of the United Provinces whether he had not rather live under the States of Holland than under the French King or to any Subject of the Common Wealths of Venice Genoa or Luca whether he doth not prefer his Condition as bad as it is to that of any of the Subjects of the Pope Duke of Florence or any other Italian Prince not to go over into Turkey and those other Eastern Monarchies where the Yoke of Slavery lyes yet more heavy upon the Subjects than in Europe And as for what you say in the comparing of those Illegal Arbitrary Proceedings that were exercised in England during the late Civil Wars and afterwards till the Kings coming in I must beg your pardon if besides the great Hyperbole in your expressions on that occasion which I am sure are very far from Truth I impute those Miscarriages not as the fault of this or that â—ort of Government but rather to a Powerful Faction Backt by a Standing Army which was more like a Tyranny or corrupt Oligarchy than any Settled Government Nor is what you say concerning Oliver's Government more true than the former for all men except his own Faction were not only afraid but really sensible of the loâ—s of their Liberties under his Tyrannical Usurpation Tho' indeed there was a very good reason why there should be fewer fears or Jealousies of it than in his late Majesties time when his Government began to grow uneasie through the Peoples fear of Popery and Arbitrary Government which the former People had no Jealousie of in Cromwel's time and as for the latter they had no occasion to fear that which was already happened But that you may not mistake me for a Common-Wealths Man I must so far agree with you that to condemn Monarchy as such were to repine at the Government of God himself so that I also grant that the fault lies not in the form of Government but in the Frail Nature of Men which can rarely administer that great Trust committed unto them as becomes what they take upon them to be God's Vicegerents upon Earth And I must own that I esteem Monarchy limited by known Laws as the best and most Equal Government in the World and under which both Prince and People may live most happily and easily if each of them will be but contented with their due share But I beg your pardon for this digression and to come to a conclusion I must freely tell you it is not a Straw matter what yours or Sr R. F's Principles are concerning the Fatherly Power of Princes for as long as there is no ground for it in Scripture or Nature you cannot expect that either Princes or People will ever believe you neither is it true that Princes as Fathers are bound to treat their Subjects in all things like their Children for then Princes ought to maintain their Subjects and not Subjects their Princes since it is the Apostles Rule That Children ought not to lay up for the Parents but the Parents for the Children And tho' you pretend not to plead for Tyranny or Arbitrary Government yet I cannot at all understand why if it were not for this end you should assert not long since in your answer to me that God thought fit to change Paternal Government into Hereditary Monarchy because of the excessive Wickedness of Mankind before the Flood proceeding from tho too great Lenity of those Patriarchal Princes in not punishing the disorders of their Subject Children which is a very bold assertion Since you know no more than I what that wickedness was in particular for which God drowned the World much less what was the occasion of it And therefore if God thought fit to change Paternal Power into Hereditary Monarchies which as I have proved do not at all proceed from Paternal Power it will also follow that the Government of your Patriarchs was not sufficient for the well-being and happiness of Mankind or else God would never have thought fit to have altered it for a more Cruel and severe way of Government But as for what you say concerning those Princes that place all their security in Guards and Armies too strong for the Subjects that they are uneasie and degenerate into Despotick Monarchies you might better have said Tyrannies and that they are unsafe both for Prince and People is very true and I altogether agree with you in it But those of your Principles have no reason to find fault with Princes for so doing for since they do but use their just Prerogative over their Slaves or Vassals it is but fit that they should be made to undergo that Yoke whether they will or no which they would not bear willingly and as long as Princes look upon themselves to be what they really are upon your Principles the Masters and not the Fathers of their People as they suppose the Goods and Estates of their Subjects to be wholly at their disposal So can they never command them as they please without the Assistance of Standing Armies nor have you any reason to complain of those Princes for keeping them too strong for the Subjects since upon your Principles be they Strong or Weak the Subjects are not to resist them but if Princes without your extraordinary fondness of using their People like Children would but always use them like Subjects with ordinary Justice and Moderation and not oppress them with excessive Taxes and unnecessary Penal Laws about Religion you would find there would be no need of Standing Armies to keep the People in awe who would themselves be the best defence not only against Domestick but Forreign Enemies and this I 'll assure you is a much better receipt against Rebellion than all your new Recipe's of Paternal Power in Monarchs which
their Subjects for any Breaches or Infringements of such Liberties and Immunities And this may serve against the Fancies of all those who think Princes have nothing but what the People have given them and likewise against such as Mr. Hobbs who maintain so much is conferred on them that they have a Right to leave no body else any thing to enjoy that they have a mind to take from them And this I take to be a much better Security for the Peoples Liberties to leave it to the Honour and Conscience of their Princes and that Fear they ought to have of the Divine Vengeance in case they oppress their Subjects contrary to Law than your heady and violent Methods of Resistance for the Oppression or Tyranny of Princes which would but give the common people a pretence of taking Arms and Rebelling against their Princes upon every slight provocation F. You have made a very plausible Discourse whether of your own or from the Author you quote is not much material for I doubt when it comes to be examined it will appear much more like a Romance than a true History And therefore granting at present your Principles to be true tho' they are not I desire you to shew me how you can make it out either from Sacred or Prophane History that any Limited Kingdom now in the World ever had its Original from those gracious Condescensions or Concessions of Princes as you here mention For by all that ever I can read or observe either from our own or Foreign History all the Liberties and Priviledges which Subjects enjoy at this day proceeded at first either from the Original Contracts Customs or Constitutions of those Kingdoms or Nations at the first Institution of their Government or else were forced from Princes by their Subjects who would no longer endure the severity of their Yoke or else were granted by some of them who believing they had worse Titles than their Competitors to the Crown were willing to engage the People to their side by granting them greater Priviledges than they before enjoyed And tho' I grant the Reflections you make upon the exercise of Arbitrary Power and the Miseries it brings both upon the Prince and People are very true Yet I am sure the practice of most Absolute Monarchs throughout the whole World hath run quite contrary to your suppositions For Princes are so far by what I ever read or observed from being willing to part with any of their Power that they have still endeavoured by degrees to enlarge it and render it more absolute than it was left them as you may observe in the Government of France Spain Denmark and Sweden in this last Age and what Encroachments were made in this Kingdom by the Prerogative upon the Peoples Liberties during the Reigns of our last Princes he is a stranger to the History of the Country that hath not read of if he do not remember them And how much higher they would have been carried if this strange and sudden Revolution had not put a stop to it I had rather you and I should understand in Idea than by Experience But if such grave Reflections as these of yours were able to work upon the first Monarchs I desire to know the reason why those of Turkey Persia Russia and the African Emperors of Morocco and of the Abissines who sure have been as wise as any you can name should not in so many Ages as they have Governed see these Inconveniences you mention and restrain their Exorbitant Power within some moderate Limits Nay to the contrary one of the most ambitious and aspiring Monarchs in Europe is making what haste he can to reduce his Kingdom into the same Model And what do you think would the Princes and Councellors of these Empires say to such a one as you or I who should offer to preach this strange Doctrine to them That they ought under pain of Damnation to use their Subjects as their Children and not as Slaves or meer Vassals I doubt they would make us pay dear for publishing such false Doctrine in their Dominions or at least would despise us for half-witted fellows without any true Notions in Politicks since they believe that the true Security and Glory of a King consists in vast Standing Armies Great Fleets and a power to take from their Subjects and Neighbours whatever they please thereby to enjoy their own pleasures and humours in all their hearts can desire and to extend their Empires per fas nefas as far as ever their Conquering Swords will give them leave And if you should tell them that their Subjects could not love them nor live happily nor contentedly under such a Government I suppose their Answer would be if they could speak Latine Oderint dum metuant or in the Language of their own Country that they would rather trust a Standing Army than the Affections of their People and that it is better to take from their Subjects what they have a mind to than to leave it to their good will what they will give them These are all the Antient and Modern Politicks that I can observe in most Absolute Monarchies or in those Kingdoms where Kings have taken upon them so to Govern their Subjects at this day But I defie you to shew me any one Kingdom in the World where the People owe all their Liberties and Priviledges meerly to the good will and favour of their Princes who granted them only out of those wise considerations you have now mentioned But as for the Expedient at the latter end of your Speech that these Priviledges and Condescensions when once granted by Kings to their Subjâ—cts and past into constant and standing Laws and also solemnly sworn to by Princes at their Coronation do not only bind those Princes that granted them but also their Successors under pain of Damnation I so far agree with you tho' I must beg your pardon if I cannot think this a sufficient Security for several Reasons I can give you at a more convenient time when I shall when you please more fully discuss this point M. I must freely tell you Sir I am not yet satisfied neither with the Instances you have brought nor yet with your replies to my answers and I think I can shew you as to this Kingdom that they are false in matter of Fact For if that the first and most ancient Kingdoms and Monarchies began by Conquest at first and that perhaps for the most part by Wars unjustly made as I may also Instance in England if this were a proper season for it so that indeed the greatest Liberty in the World if it be duely considered is for a People to live under a Paternal Monarchy It is the Magna Charta of this Kingdom all other shews or Pretexts of Liberty are but several degrees of Slavery and a Liberty only to destroy Liberty So that I think I may very well keep my first opinion that Paternal Government is the
of an Incensed Prince may justly inflict upon such Rebels in this Life but also the Wrath of God and those Punishments that he hath denounced in the Holy Scriptures in the Life to come against such Rebellious Subjects as dare resist the Supream Powers ordained by God F. Before I answer the main part of your last discourse give me leave first to justifie my Simile for tho' I grant Similes are no Arguments yet they often serve to expose the absurdity of several things which either the â—alse colours of Eloquence or the too great Authority of learned men might otherwise have hid from our Eyes and therefore if the Supream Powers have no Authority from the Revealed Will of God or the Law of Nature nor by the Municipal Laws of any Countrey to invade their Subjects Lives Liberties or Estates they may be so far compared to Thieves and Robbers when they do nor are such violent Actions of theirs to be submitted to as the Ordinance of God And I suppose you will not deny but that a Prince or State that does thus Acts as directly contrary to Gods Will as Thieves themselves and consequently all honest men or Subjects having so far no obligation to suffer or obey may justly Resist them So that if this be true all the rest of the Comparison currit quatuor pedibus But as for your reflections upon MAGNA CHARTA it is you your self not I that asserted it to have been extorted by force and dâ—fended by Rebellion for it is very well known to those who are at all Conveâ—sant in our English Histories and Laws that there was nothing granted in that CHARTER which was not the Birth-right of the Clergy Nobility and People long before the Conquest and were comprised under the Title of King Edwards Laws and which were after confirmed by William the first as also more expresly by the Grants of his Son Henry the first and King Stephen as appears by their Charters still to be seen And therefore these fundamental Rights and Priviledges were not extorted by force from King Iohn as you suppose The War commencing between him and his Barons was not because he would not grant them fresh Priviledges which they had not before but because he had not kept nor observed the Fundamental Laws of the Land and those Rights and Priviledges which before belonged to the Clergy Nobility and People as well by the Common Law of the Land as the Grants of former Kings And therefore if King Iohn by his apparent breach of them forced the Nobility and People to defend them it was no Rebellion for so doing nor was it ever declared to be so by any Law now extant But to come to the main force of your Argument I confess it were an admirable expedient not only against Rebellion but also the Tyranny of Princes to PREACH that they should not oppress their People nor yet that the People should rebel against them but the preaching of these Doctrines or getting as many as you can to believe them will no more make Princes leave keeping standing Armies or laying great Taxes upon their People than Constant Preaching against Robbery or Murder will take away the necessary use of Gallows out of the Nation Since we know very well that as long as the Corruption of humane Nature continues so long must likewise all Powerful Remedies against it And therefore your Instance of William the Conqueror will signifie very little for I believe had all those learned Divines who have of late so much Written and Preached for Passive Obedience and Non-resistance been then alive and had exerted the utmost of their Reason and Eloquence to prove them necessary nay farther I do not believe tho' all the People of England should have given it under their hands that they would not have Resisted or Rebelled against King William that yet he would have trusted them the more for all that or have kept one Soldier the less for it nor have remitted one Denier of those great Taxes he imposed for he was too cunning and Politick a Prince not to understand humane Nature which cannot willingly endure great and intolerable Slavery and Oppression without Resistance if men are able and therefore he very well knew that after the forcible taking away of so many of the English Nobilities Estates there was no way but force to keep them in Obedience And as Princes can never be satisfied that their Subjects have been throughly paced in these difficult Doctrines so they can never be secure that they will not play the Iades and Kick and fling their Riders when they spur them too severely and press too hard upon them And therefore I doubt such Princes whose Government is severe will always find it necessary to Ride this Beast as you call it the People with strong Curbs and Cavessons But besides all this there is likewise another infirmity in the Nature of Mankind and of which Princes may as well be Guilty as other men that they are more apt to oppress and insult over those whose Principles or Natural Tempers may be against all Resistance and for this I appeal to your Example of the Primitive Christians who were not one jot the better used by the Roman Emperours tho' they expresly disclaimed all Resistance of those Emperours for Persecution in matters of Religion and tho' some neighbouring Princes are thought to have their Subjects in more perfect Subjection and that either their Religion or Natural Tempers makes them less apt to resist the Violence and Oppression of their Monarchs than the English or other Nations Yet I desire you to enquire whether Taxes and all other oppressions do not Reign as much under those Governments however sensible the Princes may be of their Subjects Loyalty and Obedience Therefore to conclude I shall freely leave it to your Judgment or that of any indifferent Person which is most agreeable to the main Ends of Civil Government viz the Common good of Mankind and the Happiness and Safety of each particular Kingdom or Commonwealth that the Violence and Tyranny of Princes should be sometimes Resisted than that the People under the Pretence of this irresistible Power should be liable to be made beggars and Slaves whenever any Prince or State had a Mind to it And I appeal to your own Conscience if the supposed belief of the Passive Obedience of some of our Church was not one of the greatest encouragements which the King and the Iesuited Fâ—ction had to bring in the Popish Religion under the Colour of the dispensing Power Ecclesiastical Commissioners and force of a standing Army from which Unavoidable mischiefs nothing under God but this wonderful Revolution could have rescued us And therefore I think it becomes any honest man to thank God for it and join with his Highness the Prince of Oriâ—â—ge as the only means now miracles are ceased which God hath been plâ—ased to ordain by the course of his Providence for our Deliverance M. I
all Israel saw that the King hearkened not unto them the People answered the King saying What Portion have we in David Neither have we inheritance in the Son of Jesse To your tents O Israel Now see to thine own House David So Israel dâ—parted unto their Tents And it is farther said So Israel rebelled against the House of David unto this day Nor is this action at all blamed or disapproved by the Scripture or rebuked by any Prophet at that time for tho' the Word is here translated they rebelled yet in the Hebrew it signifies no more than fell away from or Revolted and it is said before that the King hearkened not to the People For the 〈◊〉 which may be also translated REVOLUTION was from the Lord that he might perform his saying which he spake by Ahijah thâ— Sâ—ilonite unto Jeroboam when in the Chapter before the Prophet promis'd him the Kingdom of the Tâ—n Tribes and that God would rend them out of the hand of Solomon i. e. his Posterity and give them unto him who thereupon had a Right to them and that upon his being made King by the People he had also a Right to their Obedience is as evident Since to continue in a State of Rebellion towards one King and an Obligation to obey another are absolutely inconsistent in the same Subject as I have already proved at our second Conference And therefore I cannot but here take notice of that rational Account which the Earl of Clarendon in his Survey of the Leviathan which you before quoted gives of this Revolution Nor did the People viz. of Israel conceive themselves liable to those impositions as appears by the Application they made to Rehoboam upon the death of Solomon that he would abate some of that rigour his Father had exercised towards them the rough Rejection of which contrary to the advice of his wisest Counâ—ellours cost him the greatest part of his Dominions and when Rehoboam would by Arms have reduced them to obedience God would not suffer him because he had been in the fault himself M. After this extravagant way of Arguing when ever the Subjects of any Nation shall think themselves too much oppress'd with Taxes or other Grievances above what they are able to bear if they are not eas'd by the King or Supream Magistrates upon the first Petition they may presently cast off that Power they were under and set up another that would govern them upon Cheaper Terms for if the People of Israel had this Right why may not all other Nations claim the same and this Doctrine however comfortable it might be to the People I am sure it would be very Mischievous to all the Monarchies and Commonwealths in the World and it is likely that the Subjects of the French King nay States of Holland and other Princes would quickly take the first opportunity either to make their Princes and States to â—ax them no more than they please themselves or else they may presently cry with the Israelites To thy Tents O Israel nor can I see how the King and Parliament in England would be in a much better Conâ—ition in Relation to the People they represent should they impose greater Taxes than they thought they could afford to pay and this Priviledge you give the Israelites seems to be clean contrary to what you laid down at our last Conference wherein you excepted great Taxes and Tributes to Princes or States as no just Cause of Resistance or taking up Arms And therefore I think I may very well maintain the old Doctrine about this Matter and that tho' God did rend the Kingdom from Rehoboam and bestow it upon the Son of Nebat whom also when the People had made him King they were obliged to obey because it was Gods will it should be so who gives and takes away Kingdoms from whomsoever he pleases Yet doth not this at all justifie the Rebellion of the Israelites or Iereboam's â—suâ—pation of his Masters Kingdom since God oftentimes makes use of this Rebellion of the People to execute his Iudgment upon a sinful Prince and Nation And therefore it is very remarkable that after this Rebellion of the Israelites from the house of David they never prospered but by their Kings still falling one after another into the same Idolatry till God at last was so highly provoked against them that he suffered them to be carried away Captives into a strange Land near two hundred Years before the Tribes of Iudah and Benjamin underwent the same fate for the like Crime F. I hope you will not be in a Passion because I have brought this Instance of the Israelites Defection from Rehoboam as an Example of the Right that Subjects may have in those Cases I have put to resist or cast off those Supream Powers that God had once set over them For I do confess Divines and other Authors are much divided about this Action of the Israelites some maintaining it to be well done and in Pursuance to God's Will and others holding it to be Down-right Rebellion And therefore I shall not positively assert either the one or the other much less that Subjects may rebel whensoever they conceive themselves overtax't but thus much I think I may safely affirm that if the Israelites had no Right upon any score whatsoever to resist I cannot see why Rehoboam might not have made them if he had pleas'd as Arrant Slaves as ever their Ancestors were in Egypt and what he else meant by saying instead of Whips to chastise them with Scorpions which were a sort of thorny rods with which the Iews corrected their Slaves and Malefactors I cannot understand and as for Taxes tho I confess there is no setting any positive measure to them since no man can positively define what the Exigences of a State may require and I think no good Subjects ought to deny to contribute as much as ever they are able to afford to maintain the Government they live under as long as they receive the Protection of it So on the other side should the Supream Power of any Nation where the People are not meer Slaves under the Pretence of laying necessary Taxes for the Maintenance or Preservation of the Government be constantly exacting from the People more than they were able to pay as if for Example they should out of every Mans Estate take Nineteen parts and leave but the Twentieth for the Subsistance of those that own it I do not think in that Case the People were obliged in Conscience to pay it and might in such Case Lawfully resist those Officers that should come to levy it by force M. I could have argued farther against what you have now said concerning this Right of the People of resisting in case of extravagant or intolerable Taxes but since it is not to the Subject in hand I shall refer it to another time And therefore to return where I left off I shall in the next place shew you how sacred
by the Scripture as by Iosephus his Testimony that there was no more Divine Revelation after Malachi neither do the Books of the Maccabees Iosephus Sulpitius Severus or any other ancient Ecclesiastical Writer mention these Maccabees as Men inspired by God I grant indeed they might be excited by some Divine Impulse of Gods spirit to do what they did But this is so far from being at all Miraculous that I do suppose that divers great and good Men have been in our latter times of Reformation stirred up by the same Divine Spirit to undertake and perform extraordinary things for the Reformation of Religion and the deliverance of Gods Church and People And therefore as for the Vision or Dream which you mention it doth not appear that it was any more than an Ordinary Dream and if this might pâ—sâ— for a proof of a Divine Revelation I could quote you many such Dreams as this out of the Lives of Luther Calvin and divers others of the first Reformers whom I suppose you will not maintain to have had any express Revelation to do what they did contrary to the Civil and Ecclesiastic Laws of those Princes and States under which they lived And tho' t is true these Books are not held Canonical yet they were always esteemed in the Church as Sacred Writing as Written tho' not by Inspired yet by Pious Men and tho' they are not received in matters of Faith and Doctrine yet you know very well they are Commanded to be read in our Châ—râ—â—es as containing excellent Precepts and Examples in matters of Morality and therefore 〈◊〉 pâ—rhaps they would not be a good Authority to a Praesbyterian yet I hope we of the Churchâ—s England cannot refuse them as Rules of Morality But I think we are now come to the last Instancâ—â—hat can be brought before the Coming of Christ and therefore pray will you now proceed with your Quotations out of the New Testament which I suppose you have ready for me M. I confess I am not able in a Story so imperfectly related as this of the Maccabees to prove they had Gods express Warrant for this Resistance and you on the other side produce bâ—t a Negative Argument that they had not viz because neither Iosephus nor the Book of the Maccabees expresly mention any such thing and yet for all that Mattathias might for ought that you or I know have acted in this matter by Divine Revelation since as the Rabbins suppose there was for a long time after the times of the Prophets a lâ—wer sâ—â—t of Revelation given by God to some particular Men called Batcol that is the Daughter of the Vâ—â—ce which seems to have been some Private or inward Voice by which God Revealed his Will in some Particular Cases and we read that long after this Iosephus relates that Hâ—rcanus the last good High-Priest of the Maccabean Race had the Gift of Prophecy by Divine Revelation And why his Great Grand-Father might not have it likewise I see no reason besides all this there might be other reasons that God might allow to the People of the Iews a greater Liberty of Resistance even without Cruel Authority to revenge the Profanation of his Temple and Religion being the Place where he was pleased particularly to place his Name than are allowed to us Christians at this Day who have no such Visible Temple nor are under such severe Obligations to extirpate Idolatry So that what Mattathias and the People of the Iews acted in this matter they might do it by the Right of Zealotâ— for the defence of the Law of Moses even as Phineas did who by killing Zimri and Cosbi for Fornication and Idolatry did that which in another occasion and at another time would have been down right Murder But be it as it will I think we Christians are by the Laws of the Gospel tyed to a stricter Subjection to the Supream Powers if it be possible than the Iews themselves were and whatsoever they might have done under Antiochus for their own defence and to avoid Persecution yet Iesus Christ doth now require Higher things of us and hath by his own Example as well as Precept forbidden us to Resist the Supream Powers for any Persâ—cution for Religion whatsoever since he hath Ordained his Religion to be Propagated and desended by Sufferings and Persuasions and not by Force of Arms against the Will of the Supream Powers and if not for Religion the most Weightâ— of all Concerns surely not for any Temporal thing whatsoever But the Proof of this requires more time than this evening will afford without trespassing too much upon your as well as my own repose And therefore I should be glad of another Eveningâ— conversation with you to free your Mind if it were possible from this dangerous Error and to bring you over to the true Belief and Practice of the Primitive Christians and of our Mother the Church of England who treids exactly in their steps F. I humbly thank you for your great Kindness to me and the Pains you have taken â—as also for what you intend to take for the better Information of my Conscience and therefore if you please and that you have no other occasion to draw you forth out of your Lodgings I will wait upon you again to morrow in the Evening about seven and shall think it a very proper Work for the Lords Day to have my Conscience better informed by those Testimonies which you say you will bring out of the New Testament and Waitings of the Primitive Fathers and Church Historians for my Instruction and if you can out of them prove to me that all Resistance whatever is unlawful I promise you upon the Word of an Honest Man to become a Proselyte to this Doctrine M. I humbly thank you Sir for your great Candour and Ingenuity and tho' I am no Profest Divine yet I hope by the help of the Scripture and those Quotations that I can produce out of the Fathers as also from the constant practice of the Primitive Church to prove these Doctrines of Passive Obedience and Non-resistance to be the true Antient and Apostolical Bâ—â—â—s But it is now late and I will not trouble you any longer to night therefore shall take my leave of you and so Sir your Humble Servant F. Dear Sir good Night yours most heartily Well to morrow I will wait upon you as I appointed M. Pray be sure to come at your hour for I 'll expect you FINIS Bibliotheca Politica Or A DISCOURSE By way of DIALOGUE WHETHER Absolute Non Resistances of the SVPREAM POWERS be enjoyned by the Doctrine of the Gospel and was the Ancient Practice of the Primitive Church and the constant Doctrine of our Reformed Church of England Collected out of the most Approved Authors both Antient and Modern Dialogue the Fourth LONDON Printed for R. Baldwin in Warwick-Lane neaâ— the Oxford-Arms where also may be had the First Second and Third Dialogues 169â— The Subject of the
Arms against their Kings offensive or defensive upon any Pretence whatsoever is at least to resist the Powers which are ordained of God And tho' they do not invade but only resist St. Paul tells them plainly they shall receive to themselves Damnation From which you may plainly see that this Convocation which consisted of as great Men as I think had been for divers Ages do clearly maintain Monarchy to be of Divine Right and Resistance to be in no Case lawful F. I should grant the Canons of this Convocation to be a good Proof of the Iudgment of the Church of England were it not for two very good Reasons I have against them The one I will tell you presently and the other I will keep a while to my self In the first place therefore I suppose you cannot but very well know that this Convocation sate and passed these Canons which likewise received the King's Confirmation after the Parliament that was summoned together with this Convocation was dissolved And I suppose you know that by the Law of England the Convocation having from all times been looked upon as an Appendix to the Parliament was till then always dissolved with it For which Reason all Acts and Proceedings of this Convocation were condemned and declared null and void by the Long Parliament that began to fit the latter End of the same Year And which is more was likewise condemned by the first Parliament after the Restauration of King Charles the second And therefore I think I have very little Reason to own thâ—se Canons as Conclusive M. In the first place I might reply to what you have now said that that very Parliament which first condemned these Canons afterwards ruined the Monarchy it self In the next place that in old time the General or Provincial Synods were not Dependant upon the Assembly of the States at the same time And I likewise farther Answer that these Canons were made and confirmed in a full Convocation of both Provinces of Canterbury and York and the making of Canons being a work properly Ecclesiastical these Canons were made by the Representatives of the whole Clergy of this Kingdom 2. The Canons were confirmed by the King which was all that was of old required in such Cases and tho' the Convocation sate after the Dissolution of the Parliament yet this is not without President even in the Happy Days of Queen Elizabeth not to look back unto Henry the eighth or the Primitive times And as for your Objection that these Canons were reprobated since the Restitution of Charles the II. I say that I quote them not as Law but as the known Sense of the Church of England at that time F. Your first Answer in behalf of these Canons is altogether Invidious For it was not this Parliament that ruâ—ned the Monarchy but only the Rump or Fag end of it after it had suffered divers Violences and Exclusions of Members by the Army and that the House of Lords being by this Iunto voted useless and dangerous were shut out of doors nor is your second Answer any more true for antiently in the Saxons time the Wittena Gemot or Great Counsel and the General Synod made one and the same Assembly consisting both of Clergy-men and Lay men and then all matters of Ecclesiastical Discipline were enacted and confirmed by the King as also the Spiritual as well as Temporal States Nor can you shew me an Example of any General or Provincial Synod which met independently and without the States of the Realm until after the Reign of Henry the first when the Popes took upon them to encroach upon the Royal Authority as also upon our Civil Rights and by his Legaâ—s to call Synods and make Ecclesiastical Constitutions in which neither the King nor the States of the Kingdom had any thing to do And tho' I grant that upon the Reformation the King was restor'd to those Rights as Supream Governour of the Church which the Pope had before usurped yet is not this Act of the Supremacy to be so understood as to give the King all that Power which the Pope unjustly took upon him to execute before for that had been to make their Case no better than 〈◊〉 was before and therefore this Act of the Supremacy being only an Act of Restoration of the King to his Pristine Rights of which that of Calling Synods and Convocations was one of the Principal the King could not call nor continue those Assemblies in any other form or after any other manner than they were held before the Popes Usurpation in taking upon him to call such Independant Synods and notwithstanding what you tell me I am confident you cannot shew me any Precedent of a Convocation so turned into a Synod as this was in all the Reigns of Henry the eighth and Queen Elizabeth But as for your last reply that you quote not these Canons for a Law that obliges the Church but as the Sense of the Church of England at that time if they do not now oblige the Church neither in Point of Belief nor Practice as you may seem to grant it signifieth no more to me what was the Sense of the greatest part of the Members of that Convocation in this matter nor doth it any more shew me what is the true Doctrine of the Church of England than if I should tell you that because in the Reign of Queen Elizabeth the Major part of the Bishops and Clergy of our Church were rigid Calvinists in the Interpretation of that Article about Predestination that therefore Calvinism was then the Doctrine of the Church of England but is not so now And therefore we ought not to take that for a Doctrine of any National Church unless the Synod or Assembly that declares such Doctrine be solemnly and Lawfully assembled according to the Laws and Customs of that Nation or Country wherein they are so declared M. Since you so much contest the Authority of these Canons I shall no longer insist upon them but I shall here shew you out of the Books of Homilies to which all the Clergy in England are bound to subscribe by Act of Parliament as well as to the Articles and Canons as containing wholesome Doctrine and nothing contrary to the Word of God so that these Homilies do indeed thereby become a part of the known Laws of the Land that in these very Homilies there are divers passages so very full and Plain against all Resistance of the Sovereign Powers for any Cause whatsoever that if you are a true Church of England Man as I hope you are you can have no just Reason to deny their Authority The Homily or Exhortation to Obedience was made An. 1547. in the Reign of King Edward the sixth in the second part of which Sermon of Obedience we are told in these Words which I desire you to read along with me That it is the Calling of God's People to be patient and on the suffering side
ordinationes totius Regni Angliae fuit mensura Domini Regis composita But farther to convince you that in the Opinion of the Lord Chancellour and those Learned Judges who framed the Writs that were issued out upon any of these Antient Statutes you will find that they who lived in those very times believed that those Statutes were made not by the K. alone but by him and the Common Council of the Kingdom which Writs as you may see in the Register of Writs run thus Rex Vicecom c. Salut Si A. fecerit c. tunc summonias c. B. quod sit coram Iusticiarijs c. Ostensuris quare cum de Communi Concilio Regni Nostri Angliae provisum sit c. as you may see in the Writs Granted upon the Statutes of Magna Charta Marlbridg Merton Glocester c. which have all of them this or the like Recitals cum de Statuto or juxia formam Statuti de Communi Concilio Regni nostri Ang. inde provisi The like Instance I could give you upon the Statute of Marlbridge and divers other Old Statutes in which the King by the Statute it self seems only to have Enacted it and yet you may see that our Sages of the Law were very well Convinced that those Statutes were made not by the King alone but by the whole Common Council of England So that there is no avoiding the Conclusion that the Great Council or Parliament had then a Great Share in the Legislative Power unless you can suppose the King alone to have bin the whole Common-Council of the Kingdom mentioned in these Writs But as for the rest of your Instances of Edw. 2d and Edw. 3ds times I think I can shew you that there is no General Rule to be drawn from some few Examples For though it is very true that the first of Edw. 2d begins thus Our Lord the King hath granted c. Yet it is plain by the Statute it self that it was made in and by Parliament The like I may say of the rest of the Statutes of this King's Reign though they do not all agree in Form as you may see by the Statute of Sheriffs 9th Edw. 2d Our Lord the King by the Assent of the Prelates Earls Barons and other Great Estates hath Ordained and Established And though you would fain draw some mighty Consequence from those Phrases in the Statutes of Edw. 3d. and many of his Successors by the Assent of the Lords and at the Request of the Commons as if the Consent of the latter were not as necessary as the former Yet indeed it is a meer difference in Form and proceeds only from hence that that Estate which found it self grieved always Petitioned the King for Redress and which amounted to as much as a Consent For you shall always find that the Petitioning Part still refers to that Body which was then oppressed without giving any other Assent For certainly their Requesting to have an Act made doth necessarily express their Consent And to prove what I have now said by Examples pray see the 8th of Hen. 6. c. 1. Where it is Recited in the Preamble that our Soveraign Lord the King Willing Graciously to provide for the Security and Quiet of the said Prelates and Clergy at the Supplication of the said Prelates c. and of the Assent of the Great Men and Commons aforesaid hath Ordained and Establishs't where you may see that the Assent of the Prelates is not here at all mentioned because it was needless as being made at their Request And if Praying and Requesting should destroy the Legislative Power I doubt whether Edw. 3d. did not give away his when in his 14th Year in a Statute concerning the Subsidy of Wools The Preamble runs thus nevertheless the King prayeth the Earls Barons and all the Commonalty for the Great Business which he hath in Hand c. that they would grant him some Aid upon Wools Leather c. Where upon Deliberation being bad the said Prelates Barons and Commons of the Kingdom have Granted him 40 Shillings to be taken on every Sack of Wooll But to return to the Matter to let you see that not only the Commons but also the Lords have bin oftentimes Petitioners as well as the Commons Pray see these Authorities The 1 is the Statute of Provisors 27 Edw. 3d. runs thus Our Soveraign Lord the King with the Assent and Prayers of the Great Men and the Commons of the Realm of England hath ordained c. And in the 4th of Ed. 4th i. e. It is Recited thus The King by the Assent Advice Request and Authority of his Lords Spiritual Temporal and Commons c. hath Ordain'd and Establisht in the Preamble of the Statute of 1. Edw. 6. c. 4. it is thus Wherefore the King our Soveraign Lord minding and entirely desiring at the Humble Petition and Suit of the Lords and Commons in this present Parliament Assembled doth Declare Ordain and Enact by the Assent of the Lords Spiritual and Temporal and the Commons in this present Parliament Assembled and by the Authority of the same And that the Assent of the Commons was always necessary to the making of Laws not as bare Petitioners but as Assenters too as well as the Lords appears by this Protestation or Declaration of the Commons to Edw. 3d. which is still to be found in the Parliament Rolls of 51. of that King which I shall read to you in English out of the Law-French which perhaps you are not used to Also the said Commons do Petition our Lord the King that no Statute or Ordinance may be made or Granted at the Petition of the Clergy unless it be by the Assent of the Commons Neither that the said Commons should be obliged by any Constitution which they may make for their Advantage without the Assent os the said Commons For they will not be obliged to any of your viz. the Kings Statutes or Ordinances made without their Assent M. I do not deny but that the Assent of the Commons as well as Lords hath bin allowed as necessary for a long time But whether the Consent of either at first was so is a great doubt since we find the first Ancient Statutes as I have already observed to have bin made wholy by the King alone And I think the most Ancient Laws are the best Interpreters of the Original Legislative Power And thence it appears that many Provisions Ordinances and Proclamations made heretofore out of Parliament have bin always acknowledged for Laws and Statutes We have among the Printed Statutes to this purpose one called the Statute of Ireland Dated at Westminster the 9th of February 14 Hen. 3d. Which is nothing but a Letter of the King to Gerard Fitz Maurice Justiciar of Ireland The Explanations of the Statute of Gloucester made by the King and his Iustices only were received always for Statutes and are still printed with them Also the Statute made
voluntate Regis teâ—â—ere praesumptum est sed quod consilio Magistratuum suoâ—an Rege Authoritatem praesâ—aâ—â—e babâ—â—a super hoâ— deliberatâ—one So that you see in the time when this Author Writ the King could do no more by his Prerogative then the Law allowed him to do and though it is true it is his Will and Authority that gives Vigour to the Law yet this only as it is declared in Parliament and in those Acts which had before received the Consent of his Great Council here called the Kings Magistrates And therefore you have done what you can to confound the difference between the Kings Declaration or Writs Explaining and Enforcing the Common Laws of England or else Interpreting former Acts of Parliament already made which was a Prerogative often exercised by the King and his Council in Parliament which then consisted of all or most of the Iudges and Great Officers of the Kingdom of which I shall speak more at large by and by And I confess we are much in the Dark because our Ancient Parliament-Rolls are almost all lost and consequently the Statutes therein contained So that we have almost nothing left of them but such Copies or Remains as were preserved by Iudges and Lawyers in those and Succeeding times whilst they were still in Being And therefore I think I may at present boldly affirm that if that which you call the Statute of Ireland was not founded upon some former Statute not now in being it was no Act of Parliament at all but only the King 's Writ to the Chief Justiciar of Ireland Commanding and Enforcing the Common Law of England in the Case of Coparceners to be observed in Ireland The like I may say to the Explanation of the Statute of Gloucester which might be no more than the Interpretation of the King and his Iustices of the Sense of some Articles in that Statute and this for its Greater Authority Exemplified under the Great Seal and so sent to all the Courts at Westminster and often to the Sheriffs of all the Counties in England yet without altering that Statute in some Points as you would have it The like I may say of the Statute of Acon Burnel and therefore it is very rashly done to conclude that though we have not the Original Acts and Records of Parliament of that time that therefore such Statutes were made by the King alone in his Privy Council So that I must still continue of the same Opinion with the Great Selden in this Point who in his Marâ— Clausum tells us It is most certain that according to Ancient Custom no Answer is given either by the King or in the King's Name to any Parliamentary Bill before that Bill whether it be brought in first by the Lords or by the Commons hath past both Houses as is known to all that are versed in Parliamentary Affairs Which if it hath bin the Fundamental Law of this Kingdom it signifies very little in what Form the Law is express't whether in the King's Name only as giving the last Assent thereto or else as his Concession to the Lords and Common's Petition as long as you grant that their Assent was necessary For sure whosoever Petitions another to do a thing which he cannot impose upon him without his Request must give his consent to the Doing it unless you can prove that it could be done whether the Petitioner would or not And this by the way will serve to answer an Objection which though you insist much upon it is scarce worth it viz. The King's Answer to the Lords and Commons Petition of Right which was indeed no Grant or Concession of any New Rights or Priviledges from the King to the People But only a Declaration of several Ancient Rights and Liberties of the Subjects which had been very much broken and infringed of late and therefore the King's Answer was very proper soit Droict faict comme est desire The next mistake you fall into proceeds from your confounding the King 's extraordinary Council in Parliament with the King 's Special or Privy Council and in a manner making this a fourth Estate by whom as well as by the Lords and Commons Laws are often made whereas indeed neither the one nor the other is true For tho I grant that there is often made mention in our Ancient Statutes or Records of the Kings Council yet this is not to be understood of his Privy Council but of a Special Council with whom our King 's formerly sate during the time of Parliament and before whom and to whom we find by divers Records that both the Lords and Commons did often Petition as you your self do truly affirm But that this was not the King 's Privy Council but another quite different from it And to which it seems to me that Fleâ—a refers in his 2d Book Cap. 2. Habet enim Rex curiam suam in Concilio suo in Parliamentis suis praesentibus Praelatis Comit. c. And this Council consisted of all the Great Officers of the Kingdom viz. The Lord Treasurer Chancellor and Keeper of the Privy Seal Master of the Wardrobe the Judges of the King's Bench Common Pleas Barons of the Exchequâ—r Justices Itinerant and Justices of Assizes with such of the Dignified Clergy as it pleased the King to call Which that they were altogether distinct from the King 's Privy Council appears plainly by this that the later never included all the Iudges nor did the Privy Council ever exercise any Iudicial Authority in Parliament as this Council did in those days but that this Council consisted of the Parties above mentioned see the Statute of Escheators made 29 Edw. I. and in the Placita Parliamentaria of that year the Statute runs thus Per Consilium Regis concordatum est coram Domino Rege ipso consentiente c. But in the Close Roll of this year it is clearly explained who were of this Council their Names being there particularly recited viz. all the Great Officers above-mentioned together with the Iudges of the King's Courts and Justices Itinerant c. Which is likewise explained by the Parliament Roll 9. Edw. 2. Rex voluit quod Dominus Cancellarius Thesaurarius Barones Soaccarii Iustiâ—iarii alii de Consilio Domini Regis Londin existente convenirent I could give you many more Examples of this kind but I shall give you but two more to prove that this Council in Parliament could not be the King 's Ordinary Privy Council The first is in Placit Parliament 2 Edw. 3. in a Cause betwixt Thomas Fitz-Peter and Alienora Wife of Iohn de Mowbray Coram Rege The Record is long but concludes thus to the Justices Et si difficultas aliqua subfuerit quare praemissa facere non possâ—tis tunâ— placitum illâ—â—d usque in Prox. Parliamentum nostrum udjornetis ut ibidem â—unc inde fieri valeat quod de Consilio nostro fuerit faciendum By which we may very
well gather that this was none of the King 's Ordinary or Privy Council or else to what purpose was this Cause adjourned to the meeting of the next Parliament Since if it had been to be determined by the Privy Council it might have been done forthwith I shall give you but one Instance more out of the Close Roll of the 41 of this King wherein a Cause between Elizabeth Wife of Nicholas D'Audley and Iames D'Audley in a Controversie between them touching certain Lands contained in in the Covenants of her Marriage is said to have been adjudged Devant Son Conseil c'est a scavoir Chanceller Thresorier Iustices Aâ—ires Sages assemblez en la Chambre des Etoiles i. e. Before his Council viz. the Chancellor Treasurer Justices and other wise men assembled in the Star-Chamber So that when any thing in our old Statutes is said to be Ordained by the King and his Council it is always to be understood not as if this Council were a fourth Estate whose Assâ—nt or Advice was as necessary to the making of Laws as that of the Lordi Spiritual Temporal and Commons for then they would have had the same Power still but only according to the Custom of those times when most Acts of Parliament were drawn by them and that the King past none without their advice it was then said to be done by the King and his Council viz. in Parliament and I conceive the Power of this Council continued till the beginning of the Reign of Henry the Seventh when this Court being by Act of Parliament annexed to that of the Star-Chamber where also this Council of the King used to meet before as appears by the Case I have last cited and having afterwards only to do with Criminal Causes and that as well out of as in Parliament and that King Hen. 7 th not caring to exercise his Iudicial Power in private Causes as his Predecessors had done or to make use of their advice either in the drawing or passing of Bills which now began to be drawn by Committees in either house wherein those Bills were preferred this Council came by degrees to grow quite out of use as it is at this day I hope you will pardon this long digression which I have been drawn into to rectifie a Common mistake of the Gentlemen of your opinion who when they find any thing in our ancient Statutes or Records wherein the King's Council is mentioned presently entertain strange fancies of the Antiquity and Authority of the Privy Council M. I am so far from thinking this Discourse you have now made to be at all tedious that I give you many thanks for it since it gives me a light into many things which I confess I did not know before and I shall better consider the Authorities you have now given me and if I find they will hold shall come over to your opinion in that point tho I am not as yet satisfied as to the Legistative Power of the two Houses and therefore pray proceed to answer the rest of the Presidents I have brought on that Subject F. I shall readily comply with your Commands and therefore to come to those Statutes of the 15 th and 20 th of Edw. 3. which you suppose to have been repealed by that King without the Consent of the Lords and Commonâ— I grant indeed that the Statutes you mention were intended to be repealâ—d by the King without Assent of Parliament Yet was this not done by himself and his Council alone as you suppose but by a Council of Earls Barons and Commons which the Kings of England in those days were wont to call upon emergent occasions and for the doing of that which they thought Parliaments could not so speedily perform as in this pretended repeal of the Statute you mention And tho I grant this was a great brâ—â—ch upon the fundamental Constitutions of the Kingdom yet that it was done in such a Great Council as I have now mentioned I refer you to this pretended Statute its self and to your recital of it And that the King often called such Great Councils appears by an agreement of Exchange made for the Castle of Berwick between King Hen. IV. in the fifth year of his Reign and the Earl of Northumberland where the King promiseth to deliver to the Earl Lands and Tenements to the value of the Castle by these words which I shall render out of French from the Original which remains in the Tower By the advice and â—ssent of the Estates of the Realm and of his Parliament so that the Parliamâ—nt happen before the Feast of St. Lucie otherwise by the Assent of his Great Council and other Estates of his said Realm which the King will cause to be assembled before the said Feast in case the Parliament do not happen c. And yet notwithstanding this high strain of Prerogative King Edw. III. himself was not satisfied with this repeal of those Statutes you have mentioned but in the next Parliament held in his 17 th year he procured a formal and Legal repeal of them as by the Parliament Rolls of that year remaining in the Tower doth plainly appear And which I could give you at large did I not fear to be too tedâ—ous But I think it fit to let you know this because most ordinary Readers seeing no more appear in Print in our Statute Books are apt to imagin that the Kings of England in those days did often take upon them without Authority of Parliament to make and repeal Laws But as for your next Instance of the Statute of Edw. III. it is much weaker since tho I confess that in the Preface to these Acts there is only mention of the Great Men or Grantz as it is in our old French and other wise Men of our Council yet I shall prove at another time that under this word Grantz were meant the Lords in Parliament as by the wise men of our Council are understood the Commons And therefore it seems most reasonable to interpret the sense of many ancient Statutes wherein the King alone is said to make and ordain Laws by those later or more modern ones wherein the King by the Consent of the Lords and Commons or by Authority of Parliament is said to have Ordained them Since the true Stile and Meaning of ancient Laws which were penned with the greatest brevity ought to be still Interpreted by the Modern ones and not the Modern ones by the Ancient So that I am of the Learned Mr. Lambardâ— opinion who in his Arcbâ—ion or Discourse upon the High Courts of Justice in England expressly tells us That whether the Laws are said to be made by the King and his Wise Men or by the King and his Council or his Common Council or by the King his Earls Barons and other Wise Men or after such other like Phrases whereof you meet with many in the Volumes of Parliaments It comes all to this one
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
were of a much later Date then both the Being and Priviledges of both Houses had but one and the Self-same Original viz. nothing else but the meer Grace or Favour of our Kings I have only added this the better to enforce my former Argument And therefore I desire you would now answer them both together F. I am very glad your last Argument doth not prove so formidable as you suppose for to remove that out of the way I must tell you that you now very much mistake the Question which is not only concerning the Iudicial power of the Peers alone but the Legislative Power of the House of Peers and Commons taken together which is the Subject of our present Dispute And therefore if I should grant you that the Iudicial Power of the Peers is derived wholy from the King Yet would it not at all â—mpaiâ— the Legislative Power of either of the Houses which no Historian or Law-book that I know of that is of any Credit or Antiquity ascribes to the King's Favour as you suppose Nor is it true that the House of Peers can give no Iudgment either Civil or Criminal without the King's Consent or Approbation which is never so much as askt let the Cause be what it will nor is his Presence at such Judgments at all 〈◊〉 but indeed you confound the King's Council in Parliament where I have shewed you already he sat and dispatched divers Causes in a Room or Chambeâ— distinct from that of the Peers with the House of Lords But to come to your main Argument that our Parliament must owe its Original to the King because each of the Estates of which it consists doth so This I hope will prove as weak when throughly considered For first of all I could shew you that those Councils could not owe their Original to the K. since the Saxon Kings rather owed their Original to them by whom they were most commonly Elected as I could shew you out of our Ancient Historians if it were now a proper time for it But as for our Bishops and Abbots c. which anciently made so great a figure in our Saxon Great Councils which I can shew you were then both Civil and Ecâ—lâ—siasticâ—l Assemblies I have already proved out of Tacitus that among the Ancient Germans a part of whom our Ancient English Saxons were their Priests who were their Clergy had a Considerable Authority in their Common Councils And can any body believe that a sort of People so Powerful and Subâ—ile as the Priests then were would lose their Power after they came over into England And we find in Bede that Edwin King of Northumberland consulted with a Council of his Great Mâ—n and Priests concerning his embracing the Christian Râ—ligiâ—n and when it was generally received can any body think that the Christian Bishâ—ps and Clergy would not expect to Succeed in the same Station which the Heathen Priests before held in their Councils And that they enjoyed this Power very early appears from hence that the same Ethelbert could not endow the Church and Monastery of Canterbury Sine Assensu Magnatum Principum tam Cleri quam Populi But indeed you are as much mistaken in the manner of the Ancient Elections of Bishops and Abbots in England For tho I own that at the time of the Conquest and somewhat before there might be no such Elections of them as the Ancient Canons required Yet that this was not so at the first you may see in Bede's Ecclesiastical History and other Historians where it is often mentioned that Bishops were chosen according to the Canons by the Archbishops and Bishops of the Province and Abbots by their Convent Nor was the Kings investing of them per annulum Bacculum then lookt upon as any Derogation to their Canonical Election that being no more than either a Ceremony of investing them with their Temporalities or a token of the King's Confirmation of the Election And that this was so appears by King Edgars Charter to the Abby of Glastenbury wherein he retains to himself and his Heirs jus tribuendi fratri Electo baculum pastoralem But that which so much Scandalized both Ingulf and Malmsbury was a Custom then in use as also long before the Conquest of confirming the Bishop Elect in a full Synod or Parliament And to this Custom Ingulf refers when he tells us A multis annis retroactis nulla eras Electio Prelatorum merè Libera Canonica Sed omnes Dignitates tam Episcoporum quam Abbatum Regis Curia pro suâ— complacentia conferebat Where by Curia Regis you must not understand the King's Court in the Sense it is commonly taken but for the Great Council or Mikel Synod as it was then called and which dispatched Ecclesiastical as well as Civil Affairs in the same Sense as Curia Regis is used by Brompton in the Case of King Edw. and Earl Godwin which you but now cited And in which Sense it is always used by Ingulph when he speaks of the Great Councils under the two Williams I will not be very tedious on this Subject and shall therefore give you but one Authority on this Head and it is that of Walslan who was made Bishop of Worcester in the time of Edw. the Confessor and that as Mat. Paris tells us Vnanimi consensu tam Clâ—ri quam totius Plebis Rege ut quem vellent sibi eligerent praesulem annuente in Episcopum ejusdem loci eligitur And then he goes on thus Nam licet fratrum non deesset electio Yet that there concurred to it Plebis petitio Voluntas Episcoporum Gratia Procerum Regis Authoritas All which amounts to no more than that he was Elected Chosen and Confirmed by the King and all the Three Estates For here is the Petition of the Commons joyned with the Good-will of the Lords and both backt by the Kings Authority Yet that all this did not hinder him from being invested per Baculum Annulum as the Custom then was may appear by the Speech this Bishop Wulstan made at the Tomb of Edward the Confessor whither he went to resign his Pastoral Staff after his being deprived of his Bishoprick by Arch-Bishop Lanfrank and the Synod And the Conclusion of this Speech is remarkable Tibi Scil. Edwardo Baculum resigno qui dâ—disti Curam â—orum dimitto quos mihi commendasti A like Example I could give you of the Election of this Arch-Bishop Lanfrank himself in the Kings Curia or Great Council not long after the Entrance of K. William but for this I refer you to Eadmerus But admitting that the King alone had in those days conferred all Bishopricks does it therefore follow that his Nomination of Bishops in the Pursuance of that Trust which the Kingdom reposed in him did likewise make them to derive all the Right they had to sit in the Great Council from the King 's Sole Authority you might indeed with as much Reason urge
that because the Emperour Theodosius as likewise divers of his Predecessours did Nominate Bishops to Sees therefore they did likewise receive from them all the Authority they had of appearing and acting in General Councils which I am sure you are too good a Church of England Men to affirm M. I must confess I never did so closely examine the Ancient Form of conferring of Bishopricks before the Conquest as I find you have done and I will better Examine your Authorities and if I find this Custom to have been constant and uniform I shall come over to your opinion tho' I doubt it will not prove to have been so general as you would make it since by the Authority you have now brought out of Mat. Paris it appears that it was the King who gave leave to this Election of Bishop Wulstan in the Great Council which I am not yet convinc'd did then take upon them to meddle in Ecclesiastical matters without the Kings Consent but since you have spoken enough concerning the Right and Antiquity of the Bishops sitting in our Great Councils it is time you now speak of the Right of the Peers or Temporal Lords which certainly could have no place there but from the Favour and Concession of our Kings So that whether we consider those Lords in the Saxon time as Rulers of Counties called in old English Earls or Aldermen in Latin Duces or Comites or else as Judges or Counsellors called in old Saxon Wites or Wisemen in Latin Sapientes or lastly as Thanes in Latin Ministri who were either Military Tenants or Civil Ministers or else Officers of the King in his Court or other Employments none of them were Hereditary in those times but all of them either depended upon the King's VVill or else owed their Honours and â—states to his Favour F. I hope notwithstanding the Confidence you put in this part of the Argument that it hath no more weight in it than the former For tho' I grant there was no such thing as Hereditary Earldoms before the coming in of the Normans so that tho both the Earls and Aldermen might have places in the Great Councils ratione officii as the Earl Mareschal of England has at this day and not by Tenure as they did after that time Yet I very much doubt whether they sate there only ratione officii and not as Thanes or by reason of their great Lordships or Estates in Lands but if they sate there as Earls or Aldermâ—n yet might they not be the only Persons that sate in those Councils by that Title For there were besides these Aldermen of Cities and Burrougâ—s who were Elected by those Places and who it is very likely appeared for them as their Representatives in those Councils until by Succession of time those Towns began to send two Burgesses in their stead some Footsteps of which still remain in London where the Aldermen of every Ward are first proposed to be Elected Parliament Men before any other and it is certain that these Aldermen in the most Ancient Cities as London York Lincoln â— are not Elected by any Grant or Charter from the Crown but by an immemoâ—ial Right of Prescription But admitting that these Earls or Aldermen appeared in these Councils by reason of their Offices or Dignities which the King conferred upon them yet doth it not prove that the very Office it self proceeded 〈◊〉 from him since we find the Authority of those chief Men whom 〈◊〉 calls Princes and which Answer these Earls to have been used among the Ancient Germans long before when he tells us in the same Chapter where we cited the rest Iura per Pagâ—â— Viâ—osque Principes reddunt â—enteni Singulis ex plebe Comites Consilium simul auctoritas adsunt Which exactly answers our County and Hundred Courts under the Saxon Kings wherein the Alderman of the County or his Deputy the Sheriff preâ—ided and the Free Men of the County or Hundred were the Iudges of all matters of Fact So that tho the King might appoint these Princes or Governours of Provinces or Counties yet doth it no more follow that they owed their Being and Place in the great Council wholy to his Will than as I said before supposing that the King had Anciently the Nomâ—nation of all the Bishops and Abbots in England that therefore they must also owe their Place in our great Councils or Synods wholy to them since the King performed both of them as a Publick Trust committed to him by the Common Weal in the one case as much as in the other But indeed I think the greatest part of the Members of this Assembly besides Aldermen and Burgesses for Cities and Towns consisted of those Thanes whose Names are often found in the Subscription of the Anâ—ient Charters of our Saxon Kings after the Principes Duces and Comâ—â—â—s and that tho many of them might be the Kings Feudal Thanes or 〈◊〉 Grand Serjeanty or Knights Sâ—rvice in Chief as Mr. Sâ—lden tells us in his Titles of Honour yet that Author no where excludes the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. middle or less Thanes from having Voices in those Assemblies who were afterward Stiled Vavissours or Lords of Townships afterwards called Maunors with Courts annexed to them under the Names of Sac Soc which were the same with our Court 〈◊〉 and Court-Baron Especially if you please farther to consider what a vast nâ—mber of Alâ—dariâ— or Free Tenants there were then who held their Lands Discharged of all Services but the Common Burthens and Taxes of the Nation none but the Lands of the Kings Thanes being held by Military Sâ—rvices before the Entrance of the Normans So that whoever will but consider the Nature of our Saxon Councils will find that the Greatest part of the Persons that appeared there did not owe their 〈◊〉 to their being the King's Ministers or Officers as you suppose but to their holding such Lands and Possâ—ssions as Capacitated them and gave them a Right to have places in those Great Councils And that this was 〈◊〉 we need go no further than the Laws of King Athelâ—â—an where you will find Gâ—mility it self annexed to an Estate in Land For if you will but be pleased to Consult King Athelston's Laws you will there find that if a Villaâ—aus or Câ—eorl could so thrive as to get an Estate of five Hides in Lands he was reckon'd a Thane i. e. a Gentleman or Nobleman as they were promiscuoully reckoned at that time So that tho I suppose there might not be in those times that exact distinction between Peers and Commons as there hath bin established since the coming in of the Normans Yet was it the same thing in effect since the Bishops Earls or Aldermen of Shires tho not enjoyed as Hereditary Honours might make then the Greater Nobility or Peers as the Thanes were the Less Nobility Gentlemen or Freeholders who all appearing in person might together with
the Aldermen or Burgesses of Towns Represent those which we now call the Commons And supposing that then there were no Knights of Shires yet these being then the only Proprietors of any considerable Estates of Land in the Nation might very well represent all their Vâ—ssals or Vnder-Tenents as Tenents for years and at Will are at this day by the Knights of Shires tho they have no Votes at their Elâ—ction To conclude tho I grant that the King 's of England are the Fountain of that Honour which we call Peerage Yet it is only in Pursuance of that Ancient Constitution which their Ancestors brought out of Old Saxony and Normandy along with them as the firmest defence of Kingly Power against the Insolency and Encroachments of the Common or Meaner sort of People as well as Tyranny in their Princes And therefore in all Monarchies where there is no Hereditary Nobility the Prince hath no surer â—ay to maintain his Power than by Standing Armies to whose Humours and Pactions he is more Subject and is also more liable to be Murdered or Deposed by them when discontented with him than ever any limited Prince yet was or can be by his Nobility or People As I could shew you from a multitude of Examples not only from the Roman but Moorish Arabick and Turkish Histories and therefore to constitute a lasting stable limited Monarchy as ours is it must be according to the Model I have here Proposed M. I shall not contradict the latter part of your Discourse but I must freely tell you that if as you your self grant there were no Knights of Shires in the Saxon times I cannot see how those we call the vulgar or Commons of England had then any Representatives in the Great Council since those Thanes or Lords of Mannors whom you suppose to have Represented their Tenants or Vassals were never chosen by them and consequently could not properly be their Representatives But I think it will be easy enough to prove that none of your Inferior or middle Thanes but only the Chiâ—f or Superior had places in those Assemblies So that these Feudal Thanes or such as held of the King in Chief by Military Service were of the sam Kind with them that were after the Norman times Honorary or Parliamentary Barons and their Thainlands alone were the Honorary Thainlands and such as were afterwards Parliamentary Baronies Nor can I find any Footsteps in our Ancient English Histories of Cities and Buroughs sending any Representatives to those Great Councils So that admit I should own at present that the Bishops and some Great Abbots had from the first Setling of Christianity in this Island an Indisputable place in the Great Councils and likewise that the Earls Aldermen or Great Nobility had also Votes in those Assemblies and that the Chief Thanes or less Nobles had also their places there by reason of the Tenure of their Estates yet certainly the House of Commons was of a much later Date and owed its being either to the Grace and Favour of our Kings of the Norman Race or else to those that had Vsurp't their Power And this I think Dr. Brady hath very well proved against Mr. Petyt and I think I could convince you also of the Truth of it by his as well as other Arguments were it not now too late to enter upon so long a Subject F. Therefore pray let us defer any further Discourse of this Question till the next time we meet wherein I hope I may shew you that if you owe that Opinion to the Doctors Arguments he hath led you into a very gross mistake And I shall only at present take my leave of you and bid you good night M. I wish you the like ADVERTISEMENT A Brief Discourse of the Law of Nature according to the Principles and Method laid down in the Reverend Dr. Cumberland's now Lord Bishop of Peterborough's Latin Treatise on that Subject As also his Confutations of Mr. Hobb's Principles put into another Method With the Right Reverend Author's Approbation FINIS Bibliotheca Politica Or A DISCOURSE By way of DIALOGUE WHETHER The Commons of England represented by Knights Citizens and Burgesses in Parliament were one of the Three Estates in Parliament before the 49th of Henry III. or 18th of Edw. I. Collected out of the most Approved Authors both Ancient and Modern Dialogue the Sixth LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford-Arms where also may be had the First Second Third Fourth and Fifth Dialogues 1693. Authors made use of and how denoted 1. Mr. Pettit's Ancient Right of the Commons of England Asserted P.R.C. 2. Dr. Brady's Answer thereunto Edit in Folio B. A. P. 3. The said Doctor 's Glossary at the end of it B. G. 4. Anamadversions upon Treatise Ianii Anglorum forces novo B. A. I. 5. The Author of Ianus c. his Confutation of the said Doctor entituled Ianus Anglorum ab Antique I. A. A. 6. Dr. Brady's Preface to his History B. P. H. 7. Dr. Iohnston's Excellency of Monarchical Government I. E. M. G. THE PREFACE TO THE READER HAving in my last Discourse treated of the Legislative Power of this Kingdom as also the Ancient Constitution of our English Government by great Councils or Parliaments the former of which questions I should scarce have dwelt so long upon had I then known of a Learned Treatise now 〈◊〉 to be publisht on that Subject I am at last arrived at the hardest and most important though perhaps in the Iudgment of some the driest and most unpleasant part of my Task viz. Who were anciently the constituent Parts or Orders of Men who made up thâ—se Assemblies That the Bishops Abbots Priors Earls and Chief Thanes or Barons were Principal Members is granted by all Parties but whether there were from the very Original of these Great Councils nay till long after the coming in of the Normans any Representatives for the Commons as we now call them in distinction from the Lords Spiritual and Temporal is a doubt which as it was for ought I can find first raised by an Italian who writ the History of England in the last Age so hath it been continued by some Antiquaries of our present Age though the first that ever appeared to prove the contrary was a Treatise published by James Howel in the Cottoni Posthuma under the Name of Sir Robert Cotton about 1654. but whether it was his or no I know not only it was supposed to be so by Mr. Pryn in his Preface to the Collection of Records which he published under the Name of the same Author in 1657. and after him this Notion of the Bishops Lords and other Tenants in Capite being the Sole Representative for the whole Nation in those Councils was next printed in the Second part of Sir Henry Spelman's Glossary Tit. Parliamentum where King John's Charter is made use of at the main Argument to prove that Assertion The next who appear'd in Prâ—nt on
with the Advice and Assistance of their VVites or Wise-men simply without mentioning any particular Orders of men whatsoever And when any Rank or Degrees of men are particularly mentioned they are only the same before rehearsed both Ecclesiasticks and Laicks 2. I note that it cannot be denied but that in every one of these Wittena Gâ—motes Micel Synods Micel Gemotes or Great Councils where the Laws are said to be made only by the King with the advice of his Wites or Sapientes without particularizing any degrees of Persons the Bishops and Abbots for the Spiritual Nobility and the Eorls or Aldermen and Thanes for the Temporal were present at the making of them as also the Judges if there were any of the higher Class other than Bishops Aldermen and Gereves or Praepositi 3. I note that it follows from thence that these all jointly were the Sapientes where there are only Wites or Sapientes in general named without reciting any particular Orders or Degrees of Men. Now if you can shew me from as good Authorities as I have here produced that any of the Commons sate in these Great Councils at least to represent the Body of the Commons among the Saxons I will grant that during the Saxon Government the Freemen or Commons of England as now called and distinguished from the Great Lords were an essential constituent part of the Common Councils of those times F. To return you as short an Answer as I can to those Authorities you now cite I must in the first place premise That tho I grant all Nobility among the ancient Germans Saxons and Franks who were but so many Stirps or Branches of the Gothic Nation were at first wholly Military yet it is a very great mistake and savours of the Prejudices of the Age and Country we live in to imagine that anciently there were the same Distinctions between Peers or Noblemen and Gentlemen whom we now call Commoners as there are now For if we go but over into France or Germany we shall find no difference there between the greater and the less Nobility and a Gentleman is as noble as a Dâ—ke or a Marquiss And if we pass farther into Denmark and Norway from whence most of the Danish Laws are supposed to come it is certain that but few years ago there were no such Titles among them as Earls or Barons every Lord of a Town or District being that which they call an Adelman or Nobleman And so I suppose it anciently was among the English Saxons The Word Athel or Adel comprehending to speak in our present Dialect all Degrees as well Noblemen as Gentlemen And for this I can give you the Authority of an Ancient Author viz. Paulus Warnefridus de gestis Longobardorum who speaking of these Adelmen or Adelings tell us Sic and eos quidam Nobiles prosapia vocabantur So likewise Sir H. Spelman in his Glossary Tit. Adelingi Tit. p. 9 10. writes thus Anglorum legibus dici pro nobilibus in genere quod nec dum apud Germanos antiquatum est qui omnes nobiles Aedelmen vocant a Saxonico Aedel pro nobili And Mr. Selden in his Titles of Honour makes the Word Aethelum to signifie all one either Gentlemen or Noblemen Besides Adam of Bremen and Nitardus likewise both Ancient Historians divide the Saxon Nation into three different Degrees or Orders viz into Athelings i. e. Nobles Frilings i. e. Freemen and Lazzos i. e. Villains Bours or Bondmen Besides which Noblemen or Gentlemen there was likewise another sort of men who tho of an inferior Rank yet as Freemen and having a considerable share of the Riches and Strength of the Nation in their hands had likewise a Place in the Great Councils as well as the former And these were the Aldermen or other Magistrates of Cities and Burroughs and in this they resembled the German Diets whose constituent Members were according to Gonterus an Ancient German Poet Praelati Proceres missisque potentibus Urbes But since this is a Dispute about the Signification of Words in what sense they were used in that Age we are now treating of it will not be inconvenient to examine from the most Learned Glossarists the Ancient Signification of those Words which are in dispute between us And therefore since we are agreed about the meaning of all other Words except these viz. Aldermen Thanes Wites Magnates Optimates and Principes Preceres or Primates let us examine each of their Ancient Significations To begin then with the Word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 man Alderman which Word was of a very general Signification For Sir Hen. Spelman in his Glossary Tit. Alderman tells us that there was Aldermannus Regis Comitatus Civitatis Burgi c. de quorum potestate non facile est definire Mr. Lambard renders the Word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 man in Latin Senator i. e. one that had place in the Great Council and so doth Mr. Somner in his Saxon Dictionary from whence you may learn that this Word is of a large signification and might comprehend such as in latter times were called Commons to distinguish them from the Lords or higher Nobility and could not exclude them Verstegan renders this Word thus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 So written in our ancient Language is properly an Elder or Senior yet an 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 man which we call now an Alderman was such in effect among our Ancestors as was the Tribunus Plebis with the Romans that is one that had chief Iurisdiction among the Commons as being a Maintainer of their Liberties And if so such persons must certainly have had a place in the Great Council as Commoners and therefore must from the reason of the thing signifie something more in those times than an Earl or great Officer of the King only So likewise that the Word Thane comprehended more than the Kings Great Feudal or Military Tenents may appear by these Interpretations of it which our Antiquaries have given us The Industrious Mr. Somner in his Glossary at the end of the X. Scriptores as also Mr. Selden in his Titles of Honour do both agree in the difference I now make between the Greater and the Less Thanes the former being called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Thani Regii the other called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Mediocres vel Inferiores Thani Middle or Less Thanes who were Maneriorum Domini Nobiles miâ—â—â—es Vavasores nonnunquam liberi tenentes with whom Sir H. Spelman in his Glossary agrees Thanorum duo erant genera Majores quos Thainâ—s Regis appellabant nos Barones Regis Thaini Simpliciter seu Thaini Minores quâ— iidem erant qui Barones Minores hoc est Maneriorum Domini Nobiles minores nonnunquam Liberi Tenentes nuncupantur So likewise Mr. Lambard in his Glossary thus Thani autem appellatione viri interdum Nobiles interdum liberae conditionis homines interdum Magistratus
prolix already which the abuse your Dr. hath put upon these words would not permit me to avoid But now we have cleared most of the Terms in dispute between us I hope we may proceed with greater Certainty M. Though your Discourse hath been long yet since it is so essentially necessâ—ry to the right understanding the matter in hand I am well satisfied and I shall more fully consider the account you give of these words another time but a present give me leave to tell you That suppose I should admit that those words on which you have now given Interpretation of divers Authors may sometimes be taken in the sense you have now put upon them and that consequently the Commons might be represented under some of those general Names Yet am I not satisfied how the Aldermen and Magistrates of Cities and Boroughs could be included under this word VVites since in the Auctuary to the 35 Law of Edw. the Confessor 't is said Erant aliae potestates dignitates per Provincias Patrias universas per singulos Comitatus totius Regni constitutae qui Heretoches apud Anglos vocabantur Scilicet Barones Nobiles insignes Sapientes c. And Gregory of Tours Rodovicus and many of the foreign ancient Historians mention Sapientes only as Lawyers Counsellors Judges and among the modern foreign Lawyers Hottomon and Calvin say expresly they were such But perhaps not of the Inferior Ranâ— no more than the Saxons Sapientes were of which their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 only consisted And we have at this day the Iudges and King's Council and other great Lawyers that sit in the Lord's House and are assistant to the Parliament when there is occasion Nor have you yet brought any proof that the Cities or Towns then sent their Representatives to the great Councils in the Saxon times by this or any other Title But as for the Knights of Shires though I grant the Treatise called Modus tenendi Parliamentum mentions such Persons to have been present in Parliament in the time of K. Ethelred yet by that word Parliament so often used by the Author of that Treatise and divers other Circumstances it may be easily perceived that the Author lived but about the time of Edw. 3. or Rich. 2. as Mr. Selden in his Titles of Honour and Mr. Pryn in his Animadversions to Sir E. Cook 's 4th Institutes have very fully proved so that admitting that your Thanes or Lords of Towns did then appear in those Councils for themselves and their Tenants yet could they not be properly said to be their Representatives because as I told you before they were never chosen by them whereas now the ordinary Freeholders of forty Shillings a Year and the Freemen and Inhabitants in Cities and Towns have the grâ—â—test share in the Election of Knights Citizens and Burgesses And as for those Thanes you mention they or those under whom they claimed owed their Estates wholly to the Grants of former Kings and held their Possessions from them by some Tenure or other And by virtue of this Tenure it was that all the Lands of England were liable even those that belonged to the Church to those three Services anciently called Trinoda Necessitas viz. Expediâ—â—â— Castelli Pontis extructio that is Military Service against a Foreign Enemy and the Repair of Castles and Bridges and subject to the common Services of the Kingdom And that the Earls and Chief Thanes did hold their Lands by Knights or Military Service appears by the reliefs of the Earls and Thanes exâ—â—rest in the Laws of King Cnut in Sir H. Spelman's Councils So that if all the persons who held those Lands owed them wholly to the King's bounty it seems plain to me that they must likewise owe their places in the great Council to the same Original F. I think what you have now farther urged will be of no great moment against my Opinion for as to the Authority you bring from the Addition to that Law of Edw. the Confessor it is plain by the word Barones that it was added long since that time that word not being commonly in use till some time after the Norman Conquest But letting that pass it is plain by the rest of the Law if you would have been pleased to have read it out that these Heretoches here called Barons were no other than ordinary Gentlemen or Thanes which then answered the word Barones And these as this Law it self expresly tells us were chosen by all the Freemen in the Folemote or County-Court And therefore tho I grant they might be men of Estates yet there was no necessity of their being Lords or Noble by Birth nor is it likely that the people would have chosen their Earls or any other of the like Order to command them when they had sufficient choice of Thanes or Gentlemen in their own Countrey to command the Military Forces of it And tho it is true these Gentlemen are called Nobles and remarkable Wise Men yet this according to your own shewing doth not exclude others and those of a far different Profession viz. Counsellors Lawyers and Iudges all which you suppose had then Places in the Great Council as they have now in the Lordâ— House And if this Word might comprehend both Sword-men and Lawyers I cannot see why it may not also take in the better and richer sort of Citizens and Magistrates who in that Age as was notorious were elected by their respective Corporations And I have already proved that these were called Sapientes in other Countries and I see no reason why they â—ny not have been called so here too But that the King's Judges and Counsellors could have no Votes in the Saxon Great Councils I have already given a sufficient Reason to the contrary But I shall now farther shew you That the Cities and Boroughs in the Saxon times being so much more numerous and considerable than they are now must needs have had according to the custom of those Times a considerable share in those Great Councils since in them consisted a great part of the Strength and Riches of the Kingdom and were many more than they are at this day for Bede 〈◊〉 in the beginning of his History That there were in England long before his time 28 Famous Cities besides innumerable Castles and walled Towns of note many of which tho now extremely decayed or quite mined were then very considerable the greatest and richest part of the Nation inhabiting in those times for the most part in Cities or great Towns for their greater benefit or security and the greater part of the Lands of England in the Saxon times and long after â—y incultivated and over run with Forâ—sts and Bogâ— so that the Inhabitants of those Cities and Boroughs being them so considerable for Estates in Lands as well as other Richâ—â— could not â—e excluded from having Places both in the Brittish or Saxon Great Councils what man of Sense can
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
dispute the matter farther with you concerning the Word Populus since I shall refer speaking more about it till I come to the times after the Conquest And therefore to return to the Matter in hand Had you but read a little farther in the same Leaf in the Author you have cited you might have found who they were whom King Edward the Elder called to this Council The Words are these Edwardus Rex Synodum Praedictam Nobilium Anglorum congregavit cui presidebat Plegmundus Here your own Author tells us in few words the meaning of a long Title of this Synod now mentioned viz. that the Bishops Abbots Fideles Proceres Populus were all Nobiles Noblemen that is the Ecclesiasticks and Laies or the Bishops and Lay-Nobility as I shall make more evident hereafter and not the Vulgus Commons or ordinary sort of People And to this effect Malmsbury and the Manuscript in the Bodleian Library cited by Sir William Dugdale and Mr. Somner from the Treasury of the Records and Evidences of the Church of Canterbury cited by Sir H. Spelman do all report of this very Council That Edwardus Rex congregavit Synodum Senatorum Gentis Angloâ—â—â— cui prasidebat Plegmundus c. That King Edward convened a Synod of the Senators in the Saxon Aldermen of the English Nation that is such as were usually called to such Councils which were only the Nobles and Great men for ought yet appears from this Instance But what if after all there was never any such Synod called and consequently no such Title to it For it was said to have been assembled by reason of a chiding Letter from Pope Formosus Now this Formosus died Anno 895. that is ten years before this Council was supposed to be called F. I see this Authority galls you therefore I do not blame you to do what you can to be rid of it but I shall not give it up for all that For that this Word Populorum then signified all the Lay-persons who were actually Noblemen that is of the Greater Nobility I think is a great mistake for to what purpose are all these different Words here heapt together since the Word Proceres had donâ— as well alone in your sense and at once comprehended all those Lordâ— or Noblemen that you would only have to be there But the Word Nobiles did not in those times neither doth at this day in any other Countrey but England signifie none but Great Lords Barons or Peers since in Germany and France and other Countries every private Gentleman is Nobilis And I think the Middle or Less Thanes might then as well be called Nobiles as the Great ones And the Aldermen or other Magistrates of Great Cities and Towns might also very well be stiled Nobiles ratione officii for the time they acted in that Employment and might also deserve the Name of Senators as well as the Greater Aldermen or Earls And if there were no other Lay-Men but your greater sort of Aldermen then what becomes of your chief or Kings Thanes which you your self grant were constant Members of those Councils Nor indeed doth the Word Senator only signifie such who were Noblemen by Birth since among the Romans there were Senators of the Plebeian as well as Patrician Order as any man who hath but read Lucius Florus may quickly see But as for your Exception That there was no such Council because Pope Formosus is said to have died ten years before this Council was called it is a bold Assertion to annihilate a whole Council because of the mistake of the Date or time of its meeting or perhaps in the Name of the Pope or King then reigning especially when it was assembled upon so remarkable an occasion as the erecting of these new Bishopricks which all our Historians ascribe to this Council But I shall now proceed to another Authority and that is to the Great or Common Council held at Winchester Anno 853. where you will find in Sir H. Spelman's Councils as also in Ingulphus's History that after the Bishops Earls and other Great Men or Thanes who subscribed to the Law of Tythes granted by way of Charter there mentioned wherein these following Parties are mentioned Aliorumque Fidelium infinita multitudo qui omnes Regium Chirographum laudaverunt Dignitates verò sua nomina Subscripserunt and the Learned Commentator upon King Alfred's Life published in Latin at Oxford is so well satisfied that the Commons were meant by this Expression that he hath this remarkable Observation upon this King 's granting of these Tythes Bis videtur Rex Decimas Ecclesiae concessisse Primum Anno 844 2 vero 855. vel ut alii 854 è tota Regione cum Assensu omnium Nobilium totius Populi where this Author rightly supposes that the Words at the conclusion of this Council did comprehend the consent of the People or Commons as well as of the Lords or Noblemen Or else this reciting of this Word Populus as distinct from the Nobiles had been altogether in vain So that tho I do not affirm that the meer Vulgar or Plebeian sort of People did appear personally in the Great Council of those times any more than they do now yet they were there by their Representatives viz. either by Knights of Shires as now or else the chief Thanes or Freeholders of the Kingdom as also by the Aldermen or chief Burgesses of great Cities and Towns who I suppose did then represent those Politick Bodies since all men could not appear there in person But I shall give you another Authority out of the same Author viz. Arch-Bishop Parker's British Antiquities where when he relates the calling of the Council of Calne for the turning of Married Priests out of Monasteries and Cathedral Churches and putting Monks into their places He tells us a remarkable Accident that then happened viz. The falling down of the Room where the Council was assembled So that there fell together all of a sudden pray take the words themselves out of the Authors there cited Praesules Proceres Equites Nobiles pariter Ignobiles Corruerunt So that you see here were other sorts of men present in this Council beside the Prasules i. e. Bishops and Abbots and the Proceres i. e. the Earls and chief Thanes viz. the Knights or Inferior Thanes Noblemen or Gentlemen as also Ignobiles those that were not Noble by Birth such as were the Representatives of Cities and Burroughs and of this opinion the Arch-Bishop himself seems to be for at the end of this Relation he makes this Remark Sed nec hujus domus in qu◠〈◊〉 Ordinum tam Conspicui Clarique viri Consulto Convenerunt tam repentina ruiâ—â—â—pe Diabolica carere potuit Where by Omnium Ordinum he must certainly mean the three Estates of the Kingdom in the same sense as the word Ordines is used by Camden and other Latin Writers who call our Parliament Conventus Ordinum that
errant Slaves and Vassals notwithstanding their Tenure in capite as the meanest person of the Kingdom who was taxed as you would have it at the Will of his Superior Lord which whether so great and powerful a Body of men would ever have sufferd I leave to any indifferent person to judge M. I grant this may now appear somewhat hard yet since it was the receiv'd Law and Custom of the Kingdom it was not then look'd upon as a grievance and it was then no more unjust than it is now that persons under forty Shillings a year tho of never so good Estates in Money or Stock or that Tenants for years or for the Life of another should at this day have no Votes at the Election of Knights of Shires and consequently be without any Representatives in Parliament of their own Choice and yet be subject to all Laws and Taxes tho never so great when made and imposed by the King in Parliament And I am able to give you divers good Authorities to prove that even London it self and all other Cities and Towns which held of the King in capite and were called his Demesnes were often taxed by the King and his Council out of Parliament before the Statute De Tallagio non concedendo And I think Dr. B. hath proved this beyond exception in his Animadversions upon Mr. A's Iani Anglorum facies noâ—e and he there gives us the Record it self of 39 Hen. III. now in the keeping of the King's Remembrancer of the Exchequer That the King did that year as he had divers times before Talliate or Tax all his Demesne Lands in England and then likewise demanded of the City of London the sum of 3000 Marks in name of the Talliage or Tax so laid And the Mayor and Citizens at last yielded after a great Contest It appearing upon search of the Rolls in the Ezchequer that the Citizens of London had been several times before so taxed in the Reigns of King Iohn and the King himself and so they payed at last the Sum which the King demanded By which you see that the greatest and richest Cities and Towns in England were taxed at the King's Will nay I think I am able to prove were it now necessary that the whole Kingdom was often taxed by the King and his Council only before the granting of King Iohn's Magna Charta and the Statute de Tallagio non concedendo above mentioned But to return to the Matter from which you forced me to digress I think nothing is more plain than that our Ancient Parliaments were only the King's Court Baron for the dispatch of the Publick Affairs of the Kingdom and in which as in the Lesser Courts Baroa or Courts of Mannor the Suitors or Tenents were together with the Lord or his Stewards the sole Judges So that at first after the Conquest it belong'd to the King alone as the Supreme Lord of the Kingdom to appoint or call which or what sort of those Tenants be pleased to attend him with their Aid and Advice at his Common Councils or Parliaments And I think nothing is more evident as I shall prove more at large from our Ancient Histories Records and Statutes then that before the 49th Hen. III. and some years also after that time none but the Bishops Abbots Earls and Greater Barons and some of the Less called in King Iohn's Charter the other Tenents in capite then constituted the whole Body of the Parliament under â—he Titles of Baronagium Angliae or Communitas or Universitas Baronagii Angliae And for this I can give you so good Authorities that nothing but more cogent and evident Proofs can bring me from this Opinion And therefore I must tell you I do not value those loose and inconsiderate Expressions of Historians either before or after that time F. I see the Testimonies of Historians are of no credit if they make against your Hypothesis but I shall show you your Mistakes about the King's Taxing anon but the main force of your Argument lies in the signification of those Latin Words you have last mentioned and which I must needs tell you I think you take in too strict a sense For first as to the Word Baro I grant it was not much in use before William I. obtained the English Diadem Baro says Camden Britanni pro suo non agnoscum in Anglo-Saxonicis legibus nusquam comparet nec in Aâ—frici Glossario Saxonico inter dignitatum vocabula habetur For the English Saxons called those in their own Language Aealdermen which in Latin were named Comites and by the Danes Earls but it was of so extensive an import in its signification that we read of Aldermani Regis Aldermani Comitatus c. as I have already shewed you So that according to the strict Sense of this Word we had whole Regiments of Earls whose Titles seldom if at all descended Hereditary till the Confessors Time and after William I. the Saxon Words Aealderman and Thegnes began to be changed and in the room of Aldermanni Thani we find Comites Barones as in all our Ancient Laws and Histories Nor was the Word Barones only taken in those days for Great Barons and Tenents in capite but also for the Inferior Barons or Free Tenents which held great Estates of other Mesne Lords as well as of the King by certain Services and to whom the Great Lords or Earls as Sir H. Spelman shews us in his Glossary Title Baro often directed their Charters Barombus Fidelibus nostris tam Francis quam Anglis and we there also read some Quotations from the old Book of Ramsey Abby wherein the Barons of the Church of Ramsey as also the Milites and Liberi homines thereof are particularly mentioned all which as this Learned Author tells us non de Magnatibus sunt intelligenda sid de Vassallis feodalibus note Scil melioris And the same Author says a little lower that Barons are often taken pro liberè Tenentibus in genere hoc est tam in Soccagio quam per servitium Militare M. What then do you suppose that all the Freeholders in England by whatsoever Tenure they held appeared in Person in Parliament before the time Sir H. Spelman in his Glossary and Dr. B. Assign for the summoning of the Commons to Parliament At this rate every Yeoman or Petty Freeholder was a Baron so that this Assembly might then consist of above 50 or 60 Thousand Persons Since Spot in his Chronicle tells us that William the Conqueror reserved to himself the service of about 60000 Knights Fees which by the time I suppose might have been divided into many more lesser ones by Co-heirship or by sale and otherwise parcelled out by the King's License into Half-Knighs-Fees Third Part of Fees Fourth Part of Fees Eight Parts Sixteen Twenty Thirty and Forty Parts of Fees and so have been increased into as many more And these besides the Tenants in
in these two Quotations since in that out of Camden you cannot deny but he hath truly quoted that Author as it was in his First Edition and if he afterwares altered it it may very well be questioned whether he did not add the Word Superiores rather out of fear of displeasing the Greater Nobility whom that Quotation had before Shockt than out of any sense of his being in the Wrong as it appears by the Words immediately following when he tells us out of a nameless Manuscript Author That Henry III. out of so great a multitude of Barons which was seditious and turbulent called the best and chiefest of them only by Writ to Parliament By which it plainly appears that he supposed all those Less Barons or Tenants in capite tho no Lords as now understood who were thus excluded to have been only Nominal and not Real Barons and if so Commoners or else he must extend the Peerage of England to at least Three or Four Thousand Persons For so many Tenents in capite might very well be at that time The same I may likewise say as to the Quotation out of Mr. Selden for by the Words quibus peculiaris in ordinum Comitiis locus est 't is plain he supposed that all the rest of those Tenents in capite were but meer Commoners yet he no where affirms that none but these appeared in Parliament for all the Commons of England for he very well knew the unreasonableness of that Supposition Since besides these Barons or Tenants in capite Bracton in his first Book tells us of divers other Orders of Men of Great Dignity and Power in this Kingdom about the time when you suppose this marvellous Alteration to have happened His Words are these Et sub iis viz. Regibus Duces Comites Barones Magnates sive vavassores Milites etiam Liberi Villani deversa Potestates sub Rege constitutae and a little farther sunt alti Potentes sub Rege qui dicuntur Barones hoc est Robur belli sunt alii qui dicuntur Vavassores viri 〈◊〉 Dignitatis From which Words I desire you to observe that he here makes the Magnates and the Vavassores or Feudatory Tenants to be all one and also ranks them before the Milites Now whether these Vavassores and Milites who did not all hold of the King in capite were men of so great Dignity and Power as these whom he here reckons immediately after the Earls and Great Barons should have no Votes in Parliament neither by themselves nor their Representatives is altogether improbable And agreeable to this of Bracton Du Fresne in his Lexicon Tit. Vavasor tells us that Vavassorum duo erant ordines sub majorum apellatione implectuntur qui Barones apellantur sub â—norum vero quos vulgò Vavassores dicunt ut leges Henrici I. Reg. Ang. Thaines minores respectu Thainorum majorum qui Baronibus aequiparantur But that these Lesser Thanes or Vavassors were also stiled Barones Sir H. Spelman tells us expresly in his Glossary Tit. Baro etiam Barones Comitum Procer umque hoc est Barones subalterni Baronum Barones sâ—pissime leguntur and of this he gives us many Examples and particularly of the Chief Tenants of the Abby of Ramsey above mentioned So likewise the same Author a Leaf or two farther speaking of the Barones of London mentioned in the Charter of King Henry I. understands them pro civibus praestantioribus qui socnas suas consuetudines i. e. Curias habuerunt Privilegia eorum instar qui in Comitatu Barones Comitatus dicuntur c. Nor did this Title of Barones extend to London alone but he also immediately tells us in the same place Sic Barones de Ebaraco de Cestria de Warwico de Soe Feversham plurium Villaram Regiis Privilegiis insignium cum in Anglia tum in Gallia c. and that Barons of Counties were no more than Lords of Mannors I have just now proved for Socna means no more than a Court Baron or Court of a Mannor So that here arises a plain distinction between the Barones Regis the King 's Great Barons or Tenants in capite and these Lesser Barons we now are here speaking of called Medmesse Thegnes and Burgh Thegnes by the Saxons till they 〈◊〉 on the Word Parliamentum to signifie the Common Council of the Kingdom who tho no Peers yet were Barones Regni Barons or Noblemen of the Kingdom according to the general acceptation of the Word Nobiles in that Age and is such made up the Body of the Baronage called by Matt. Paris and other Authors Baronagium or Communitas Baronagit totius Angliae M. I see you do all you can from the equivocal use of the Word Barones to croud in new and unknown men into the Great Council of the Kingdom viz. your Barons of Counties Cities and Towns whom since you dare not affirm there were then any Knights of Shires you suppose to have served instead of them and these you would have to be not Barones Regis but Regni or Terrae forsooth i. e. of the Land or Kingdom whereas we never had any True Barones held by mean Tenures here in England this if you deny you must deny all History and all our Ancient Laws and Law-Books too and if you grant it you must confess that every Baron was a Tenant in capite and by your own Concession he must then be the King's Baron or Baro Regis I grant indeed there were Nominal or Titular Barons such as you mention many in those Times such as were Tenants to Great Lords Bishops or Abbots of whom we find frequent mention in our Ancient Histories Records and Charters But these are not the men who had ever any Place in our Great Councils and I desire you would prove to me that ever they appeared there before the Times I assign and I would also have you inform your self of the Gentlemen of whom you borrow this Notion if they can prove that there were any such kind of Tenure as Tenura de Terra or de Regno or whether there was ever any man that held an Estate de Regno Whether forfeitures or Escheats were to the Kingdom And whether Fealty was sworn or Homage done to the Kingdom Or whether an Earl was invested or Girt with the Sword of the County by the Kingdom Or whether the ancient Ceremonies used at the Creations of Earls and Barons were done by the Kingdom Thus all the Barons of England held of the King and thus all these things were performed and done to our Ancient Kings and by them which are most manifest Notes of the King 's immediate Jurisdiction over the Barons and that they were his Tenants in capite and by consequence his Barons only which you cannot deny and of which Tenants in capite the Earls and Greater Barons always created by Investiture of Robes or other Ceremonies were summoned by particular Write
that if the Sense of these Words have been sufficiently explained I think no reasonable man can have any cause to doubt whether these Abstract Words Nobilitas Universitas and Communitas should be taken for all Sorts and Degrees of men when thus represented in the Great Council or whether they shall be confined to the Greater or Lesser Nobility only viz. the Great Lords Bishops and Tenants in caâ—ite as you would make me believe which requires stronger Proofs than what you have yet brought Besides which Sense of this Word Communitas or le Commune it is also more commonly used at this day and often then too in another more restrained and yet legal sense and that is when it is used for the Commonalty or Commons of England distinct from the Peers and this may very easily be distinguished by observing that when it is taken in this Sense it is always set after the particular enumeration of the other Orders of the Lords or Peers viz. the Arch-Bishops Bishops Abbots Priors Earls and Barons or when it is put contradistinct to the Word Magnates I shall give you some Authorities and Examples from Historians and Records of both these and that in the Times preceding those that you allow the Commons to have been summoned in Parliament Of this sort is that which Matt. VVestm mentions as a Parliament held 37th Hen. III. and which is thus recited in the Patent Roll of this year where after the Excommunication denounced against all Infringers of Magna Charta there is this solemn Clause aâ—ded That if to the Writings concerning the said Sentence any other thing or in any otherwise should be added thereunto besides the Forms of the said Sentence then to be denounced and approved of that then Dominus Rex praedicti Magnates Communitas Populi Pretestantur publice before all the Bishops that they would never consent thereunto and conclude thus In cujus Rei Testimonium in posterum Veritatis testimonium as well the King as the Earl of Norff. Heref. Essex and VVarwick as Peter de Sabaâ—dia ad Inslantiam aliorum Magnatum Populi Praescripti sigilla sua apposuerunt where you may see that it was usual before the 49th Hen. III. for those that were Peers to sign for the Communitas Populi or Commons M I pray give me leave to answer your Authorities as you bring them lest I not onely forget some of them but also tire both you and my self with too long a Discourse I hope I am very well able to prove by the learned Dr.'s assistance that the Communitas Populi here mentioned doâ—h signifie not the Commonalty or Commons but the Community of the Laity there present consisting of the Greater Barons or else the Less or Tenants in capite And for proof of this pray take notice that Matt. Paris called this Council Tota Angliae Nobilitas And in this Parliament the King demanding a great Sum of Money of them after much contest and upon promise to reform all Abuses according to the Tenour of the Great Charters thereupon the same Author tells us The Church granted the Tenth of the Revenue for three years and the Knights or Nobility granted for that year Scutage to wit Three Marks of every Scuâ—uâ— or Knights 〈◊〉 And then the Arch-Bishops and Bishops in their Pontificalibus with Light-Candles in their Hands in the presence and with the assent of the King the Earl of Cornwal his Brother and several Earls there named aliorum Optimatum Regni Angliae and other chief men of the Kingdom excommunicated and cursed all those that from thence forward should deprive the Church of her Right and all those that should change alter or diminish the Liberties of the Church and Anciâ—â—t Customs of the Kingdom especially those granted in the Great Charter of the Common Liberties of England and Charter of the Forest granted by the King Arâ—hiâ—piscopis Episcopis cateris Angliae Praelatis Comitibus Baronibus Militibus â—â—berè Tenentibus c. i. e. To the Arch-Bishops Bishops and other Prelates of â—â—gland and to the Earls Barons Knights and Free-Tenants or Tenants in Military 〈◊〉 Knights Service For they only were such aâ— paid Scutage which was at this â—ime a kind of composition with the King for the confirming Magna Charta and was never charged but upon Knights Fees and these were such that held perhaps one narrow or scanty Knights Fee only or some part of a Knight's Fee as an half 3d 4th 6th 8th part c. who all paid a proportionable share of Scuâ—age to the Great Lords or Tenants in capite for the Land they held of them in Military Service which was paid first to the Great Lords and by them paid to the King And from thence I collect that besides the Barones Majores that came to this Great Council or Parliament there were also the Tenants in Capite according to the Directions and Law for Summons in King Iohn's Charter who were comprehended under the Words tota Nobilitas Milites and that other Tenants but held of the Tenants in capite by Knights Service were bound by their Acts 〈◊〉 they all knew how many Knights Fees they held of the King in capite and if â—â—ey had given any away to others they held of them as they did of the Crown â—â—d answered a proportionable rate towards this Tax for the Fees Quantities 〈◊〉 Parts of Fees they held of them about which there could be no mistake 〈◊〉 the Scutage was ascertain'd So that in so Great an Assembly where all the Nobility of England were called together by the King 's Writ and upon so great 〈◊〉 occasion and solemnity as confirming the Great Charter of Liberties after such an extraordinary a manner it cannot be doubted but besides the Barons all the 〈◊〉 in capite both Great and Small which were then very numerous were â—resent or at least most of them from whence it is not difficult to tell you to the Communitas were after the Prelates Barons and Magnaâ—â—â— they were no other than the Small Tenants in capite who were all summoned by one General Writ nor chosen and sent by the people but summoned as the Great Barons in general by King Iohn ' Magna Charta as I shall shew you hereafter F. I hope I shall be well enough able to prove that what you have now alledged is pure imagination or in the Dr. Phrase an airy Ambuscade and quite contrary to the Sense of Matt. Paris as also of the Lawyers and Historians of those Times For in the first place nothing is plainer than that this Author by the Words Communitas Populi must understand an Order of Men distinct from the Magnates or else if the Word Magnates might have comprehended them all it would have been to no purpose to have mentioned any more But to answer those Authorities you bring from Mat. Paris As for the Word Nobilitas since you still insist upon it I
have already proved that the whole Parliament as well the Lords Spiritual and Temporal as Commons were both before and after this time comprehended under these words Nobilitas Angliae and if you yet doubt of it I can give you a plain Authority out of VValsingham for it is in his Life of Edw. II. Anno 1327. where relating the manner of that King's Deposition he tells us That when the Queen and Prince came to London there then met Tota Regni Nobilitas to depose the King and chuse his Son in his stead and then there was sent to the King being Prisoner in Kenelworth Castle on behalf of the whole Kingdom two Bishops two Earls two Abbots and of every County three Knights and also from London and other Cities and Great Towns especially the Cinque Ports a certain number of persons who informed him of the Election of his Son and that he should renounce the Crown and Royal Dignity c. This Proof is so plain it needs no Comment As for the rest of your Argument the strength of it chiefly consists in this that the Tax there mentioned is said to be granted à Militibus or Tenants in capite as you would have it of three Marks upon every Knight's Fee But in the first place I desire you to take notice that this Scutage is not Scutage Service but a general Land Tax or Manner of taxing according to Knights Fees and which was continued long after Hen. III. Reign as it appears by this Passage in Sir Henry Spelman's Glossary Tit. Scutagium Edwardus primus habuit 40 Soli de quolibet 〈◊〉 Anno Regni 13 Dom. 1285. pro expeditione contra VVallos And it was also granted by the Lords and Commons after the 18th of Edw. I. when you and the Dr. supposes the Commons to have then came to Parliament and if so I desire to know why a Militibus here mentioned by this Author must only signifie Tenants in capite by Knights Service and not the Knights of Shires since it is not here said a Militibus qui de Rege tenuerunt in capite And therefore it is a forced Interpretation of the Dr.'s and without any Authority to limit these words Militibus libere Tenentibus omnibus de Regno nostro which you omit with an c. as also the omnibus Hominibus Liberis Regni nostri only to the Arch-Bishops Bishops and other Prelates of England and to the Earls Barons Knights and Free Tenants or Tenants in Military or Knight's Service because they were only such as paid Scutage VVhereas you have already acknowledged that Magna Charta was granted to all the people of England who had all a benefit by it and who paid towards the aid there granted as well as the Tenants in capite But if Knights Fees alone were Taxed and that by the Tenants in capite only I desire to know by what Right all Tenants in Petit Serjeanty and by Burgoge oâ— Sâ—occage Tenure who made a greater Body of men in this Kingdom in those Times could pay this Scutage since they held not by Knights Service but by certain Rents or other Services and so not appearing in Person could have no Representatives in this or any other Parliament of those Times But if you will tell me they might pay according to the value that Knights Fees were then reckoned at viz. for every 20 l. a years Estate I desire to know how this could be called Scutage or how the Tenants in capite or other Lords from whom they held those Lands could give away their Money for them And in the next place I desire also to know how all the Cities and Burroughs in England could be charged with this Tax a great many of them is you your self grant holding of the King in capite or else of Bishops Abbots or other Mesâ—e Lords by Soccage or Bargage Tenure So that this Tax if granted only by the Tenants in capite by Knights Service could reach them and no other persons but if by this Word a Militibus may be understood Knights of Shires then the Tax was general as well upon Soccage Tenants as those by Knights Service But for the other Words you insist upon viz. the Liberi Tenentes which you translate Tenants by Military Service if that had been the meaning of these words then they had been altogether in vain since you have already told me that the â—â—lites were so called non a Militari Cingulo sed a Feodo and if it were no Name of Dignity then certainly the Word Milites would have served to comprehend all your Liberi Tenentes or Tenants in capite without any other addition But that these Words Laberi Tenentes do not here signifie Tenants by Military Service pray see Sir Henry Spelman's Glossary Tit. Liber Homo liber Tenens where he there gives us a more general Signification of thesewords thus Ad Nobilesolim spectabant isti 〈◊〉 à majoribus ortos omnino Liberis and then ends thus vide Ingenuus Legalis 〈◊〉 Francus Tenens Liberè alias Liber Tenent quo etiam sensu occurrit interdum Homo 〈◊〉 which upon every one of these Titles he makes to signifie all one â—â—d the same thing viz. an ordinary Freeholder And therefore it is a very forced Interpretation of yours to limit these Words Communitas Populi only to the Community or Body of the Earls Barons and Tenants in capite Tho I confess you are very kind in one main Point in únderstanding the Communitas Populi to mean the Community of the Lesser Tenants in capite that were no Barons and then do what you can these Words must here signifie Meer Commoners or Commons unless you can shew us a Third Sort of Men who tho neither Lords nor Commons yet had a place in Parliament So that these Gentlemen notwithstanding their Tenure were no more Noble than their Feudatory Tenants or Vavafors themselves my than the Knights of Shires are at this day And then granting as I doubt not but I shall be able to prove that the Cities and Boroughs had then also their Representatives there I pray tell me whether or no there were not Commons in Parliament before 49 Hen. III. or not which is contrary to your Dr.'s Assertion in divers places of his Answerâ— to Mr. P. And that the Word Populus must here signifie the Commons and not the whole Body of the Laity appears plainly by this place you have quoted since it is restrained by your self to mean not the whole Community of the Kingdom but only the Community of Lesser Tenants in capite who were not Lords But that Matt. Paris doth also in another place take the Word Populus for the Commoners and not for the whole Body of the Laity pray again remember what he says in Anno 1225. where relating the manner how Magna Charta came to be confirmed in 9th Hen. III. he tells us Rex Henricus ad Natale tenuit Curiam suam apud VVestm
Praesentibus Clero Populo cum Magnatibus Regionis which pray let us put into English and see if it will not prove what I say viz. the Clergy and People being present with the Great Men of the Kingdom Now if the Word Magnates as you affirm did then comprehend all the Barons and Tenants in capite to what purpose is the Word People put here as a distinct Member of this Parliament But to shew you father that this Word Populus is not always to be understood for the whole Body of the Laicks but Lords and Knights of Shires 〈◊〉 shall shew you out of Walsingham Anno 1297. 24th Edw. I. where he mentions a Parliament held at St. Edmundsbury In quo a Civitatibus Burgis concessa est Regâ— Octava a Populo vero reliquo duodecima pars Bonorum Where by Populus 〈◊〉 not only meant the Peers but Knights of Shires or Grands des 〈◊〉 also M. I am not prepared at present to answer all the Queries and Difficulties that you can make or raise against the Dr.'s Arguments yet I think I am able to give you a very satisfactory answer why all Tenants in Soccage should be bounâ— by the Acts of those of whom they held their Estates For since as I have a ready proved all the Land in England except what belong to Religious Houses was granted out by King William the Conqueror to be held in capite by Knights Service and was again granted out by these Head-Tenants to their Feudatory oâ— Mesne Tenants by the like Services there being very few Lands granted in Free Soccage at the first And tho it is true that in process of time maâ— of those Estates and Lands became Free Tenements or were holde in Soccage that is were Freeholds yet the Lords still retaiâ— the Homage which in the Times we speak of was no idle insignificant Word and by that a Dominion over the Estate whereby upon Disobedience Treachery or Injury done to the Lords the Lands were forfeited to them and theâ— neither the Lands nor the Tenants to them which were termed Freeholderâ— were subject to any base Services or servile Works yet the Lords had still great power over these Tenants by reason of their doing Homage to them 〈◊〉 â—o nominè their Lands were many ways liable to forfeiture and therefore it waâ— but reason that the Chief Lords being Tenants in capite should conclude that Tenants in Soccage also and both make Laws and give Taxes for them without their being at all privy to it But admitting I grant that before 49th 〈◊〉 there were in some sense Commons in Parliament tho not as Knights Citizen and Burgesses chosen by the Common People as their Representatives Yet 〈◊〉 it not destroy mine or the Dr.'s Assertion who in the Introduction before the Answer to Mr. P. only affirms That before the 49th aforesaid the Body of the Commons of England or Ordinary Freemen as now understood or as we now call them collectively taken c. had any share or Votes in making Laws unless as they were 〈◊〉 presented by the Tenants in capite F. Be it so But I am sure in many places of the Dr's Booâ— he absolutely denies that there were any Commons in Parliament till the Time he Assigns But as for what you alledge in answer to my Queries how Tenants in Soccage could have Laws made for them and Taxes laid upon them 〈◊〉 â—heir Lords or Tenants in capite your answer is wholly grounded upon mistakes For in the first place King VVilliam did not grant all the Lands in England to be held of him by Knight's Service since as I shall prove hereafter there were many subordinate Tenants to Bishops Abbots and other Great Lords who never forfeited their Estates at all nor were disseiz'd of them by your Conqueror â—ad who had also great numbers of considerable Freeholders under them as in 〈◊〉 at the greatest part of the Land was Gavelkind which was Soccage Teâ—re In the next place neither were all the Lands he bestowed upon his Followers granted to be held by Knight's Service since you your seâ—f own that a great deal â—land was given by him to his Inferior Servants to be held by Petit Serjeanty and besides this a great deal of other Lands was regranted by that King himself 〈◊〉 some of those old Proprietors who had been dispossessed to be held in Soccage is appears from Fleta who speaking of these sort of men says expresly In 〈◊〉 maneriis seilicet Regis erant liberi Hemines Labâ—ri Tenentes quorum quidaâ—i 〈◊〉 per Potentiores a Tenementis fuerant ejecti eadem post modum in Villenagium tenenâ—â— resempserunt quia hujusmodi Tenentes cultores Regis esse dâ—gnoscuntur provisa 〈◊〉 quiet ne sectas facerent ad Comitatum Vel hundredum c quorâ—m â—â—gregationem tunc Soccam appellarent hinc est quod Sokemanni bodie dicunâ—â— c. Where you may see that these Socmen or Soccagers were then created by a â—ew Tenure from this King Nor did all the Tenants in capite grant their Lands â—o others to be held by Knights Service since they as well as the King did at first 〈◊〉 also in process of time grant Lands to the Old English Proprietors to be held of â—â—em in Soccage nor was Homage the proper or only Badge of Soccage Tenure but â—ealty unless the Land had been held by Knights Service at first as you may see in Littleton's 2d Book Sect. 118. Nor did this Soccage Tenure give the Lord any more right over his Tenants Estate to tax him de alto bâ—sso at his Will by â—eason of the subjection he was in to the Lord in respect of Forfeiture since â—hen the King should have had for the same reason the same Rights over all his 〈◊〉 in capite to tax them likewise at his pleasure and this Right of Forfeiâ—â—â— in case of Felony or for want of Heirs continued to the Lords as well of Soccage Tenants as others long after the time you assign for the coming of the Commons to Parliament even to our own Times and yet for all that those Lords could not give taxes for such Tenants in Soccage at their pleasure But that we may proceed pray consider also the form of the Peace agreed upon between the King the Prince his Son and the whole Body of the Kingdom assembled in Parliament to compose all Differences between the King and the â—arons The Title of which in the Record is thus Haec est forma 〈◊〉 a Domino Rege Domino Edwardo filio suo Praelatis Proceriâ—â—â—â—â—â—â—ibus cum Communitate totâ Regni Angliae Communitèr Conâ—â—â—ditèr approbata Which Articles were signed by the Bishop of Lincoln the Bishop of Ely Earl of Norf. Earl of Oxon Humphry Bohun William de Monte Canisio Majore London in Parliamento London Mense Iunii Anno Domini 1264. Haec autem â—rimatio facta est London de Consensu
Voluntate Precipto Domini Regis nec non â—â—â—datorum Baâ—onium ac etiam Communitatis tunc ibidem praesentium M. I think the Dr. hath given us full satisfaction as to this Record in his Answer to Mr. P. the substance of which I shall here give you in short First It is certain that at the making of this forced Peace Simon Mountford and his Faction then held the King and Prince as also Richard Earl of Cornwal the King's Brother as good as Prisoners and made them do what he pleased and he carried the King and Prince along with him until he had taken in all the strong places of the Kingdom and when he had done then he called this Parliament which could not be one in the sense it is now taken since there was none there but the Earls Barons and Heads of the Rebels which had the King and Prince in their power and as you your self set forth were the same persons that sealed it for themselves and the other Barons and the whole Community of the Kingdom of England which Community must be the Community of the Barons and Great Men or Tenants in capite by Military Service and no other for how can the Lords and Barons sign any thing for the Commons as at this day understood They did not then nor now do represent them But I shall give you another Authority to make this clearer of some years before related in Matt. Paris viz. Anno Dom. 12â—â— 42 d Hen. III. where Letters are said to be sent a Communitate Angliae to the Pope concerning Aymer de Valence Bishop Elect of Wachester the Direction is thus Sanctissimo in Christo Patri c. Communitas Comitum Procerum Magnatum Aliorumque Regni Angliae cum subjectione debita Pedum Osrâ—â—â— c. And to put the Matter beyond all doubt it is certain that these Letters were sealed by six Earls and five Barons onely vice totius Communitatis I need 〈◊〉 give you their Names since you may find them in the Author himself as also cited by the Dr. And as for H. Bigod the Chief Justice and the four Persons named after him they are proved by Sir VVilliam Dugdale in his Baronage of England to have been the Greatest Barons in the Kingdom Now pray let me ask you this Question Did these Eleven Persons all Great Earls and Barons represent the whole Commons or Community of England as at this day understood or did they represent the Community of the Barons only together with the Alios the Milites which held by Military Service of the Great Barons and the Less Tenants in capite for the whole Community here intended must be one of them take which you please you 'l lose the Cause For certainly these Great 〈◊〉 and Barons that sealed this Letter vice totius Communitatis were not chosen nor sent by the Commons to this Parliament or Meeting nor were the Commons represented as at this Day by them as you your self have already granted F. I hope I shall not need to make any long Reply to this Answer of youâ—â— or rather of your Dr.'s since it is built upon the same false Supposition with the other viz. that the Words Cum Communitate tot â Regni Angliae must always mean only the Community of the Tenants in capite which Supposition if it be false in your former Argument is also as falfe in this of the Lords and Commons too and therefore it is impertinent to repeat my Answer to it But if this were no true Parliament because Simon Mountford had then the King and Prince in his power This would likewise serve to unparliament that of the 49 th of this King from whence the Gentlemen of your Opinion date the first coming of the Commons to Parliament since the King and Prince were as much in Simon Mountford's power then as now and yet no man as I know of ever questioned the validity of it tho I cannot also omit that you pass by in this Letter the words Magnatum aliorumque Regni under which Words as I have already proved might very well be comprehended all the Knights of Shires as well as Citizens and Burgesses unless the words had run thus as they should have done to have made out your Assertion aliorumque qui de Rege Tenent in capite But to come to the main point you insist upon which is How these Great Earlâ— and Barons could seal this Form of the Peace and these Letters to the Pope in the Name of all the Commons of England Before I answer to that I pray give me leave to ask you one Question You have already allowed that the ordinary Tenants in capite of which that numerous Body chiefly consisted tho called by courtesy Barones Minores were really no Barons nor Peers of the Realm and if so were but Commoners Now pray tell me how these Great Earls and Barons you mentioned to have signed this Peace and this Letter to the Pope could put their Seals for those who were no Barons themselves by your own confession and you cannot say they represented them for they were as good Tenants in capite as the Greatest Lords But if you say they did it by their order and consent pray why might not these Great Lords or Barons as well do the like for the Knights of Shires and Burgesses by their appointment Since I have already proved that the Lords did act thus in the Letters which were sent to the Pope concerning the Business of Scotland And besides I must here observe that the Dr. and you do not deal fairly with your Adversaries in citing this Authority of the Lords and Barons signing these Letters to the Pope Vice tâ—tius Communitatâ—s Angliae since I acknowledge in this place the Word Communitas being put alone doth mean no more than the Community of the whole Kingdom But in the Authority I have quoted it is put after the Earls and Barons and so then must mean the whole Commonalty or Body of the Commons in the Sense they are now taken and as it hath been always used in French as well as in Latin when it comes after the Earls and Barons as I have already noted And for this pray see the Stat. of Westm. I. made 3 d Edw. I. but eleven years after the 49 th of Hen. III. Per l'assâ—ntments des Aechievesques Evesques Abbes Priors Counts Barons tout le Comminalty de la terre illonques summones Which Phrase I can shew you to have continued the same in most of our French Statutes during the Reign of this King and all his Successors in many Records and Acts of Parliament whilst they were writ in Latin or French which I shall omit reciting because I suppose you your self will allow it I have a great deal more to say concerning the true sense of the Words Communitas le Commune le Communalty which because it is long and it now grows late I shall
confer any new Right or Priviledge upon Freeholders of 40 s. per Annum to give their Voices at such Election as you suppose but only takes away the Right which the smaller Freeholders of under 40 s per Annum whether Tenants in capite or not had before and restrains it only to such as shall have Lands or Tenements to the vaâ—â— of 40 s. by year above all charges And it is yet a much greater mistake to suppose as your Dr. doth that this Statute of 8 th Hen. VI. was at all altered by that of the 10 th of this King which is no more than an Explanation of it viz. that by 40 s. per Annum was meant 40 s. Freehold and that of Lands lying within the County where the Election should be made So that nothing can prove more expresly that all Freeholders as well Tenants in capite as by any other Tenure were all alike capable of Elections and being elected by the Ancient Law and Custom of England long before those Statutes and consequently were all alike Freeholders in the Eye of the Law But if you have nothing at present to object against what I have now said pray pursue the Method you have undertaken and let me see those convincing Proofs you so much rely upon and which you hope may also serve to convert me M. Before I undertake this Task pray permit me to give you my Opinion in answer to the Difficulty you have now proposed which I confess seems to carry some weight with it but those Prejudices will soon vanish when we consider that the first time this Alteration was practised it was done in the King's Name tho by the absolute power of Simon Mountfort in the 49th Hen III. and after a discontinuance of above twenty years was again renewed by Edw. I. at the desire of the Earls and Barons as I hope I shall shew you before we have finished our Conversation And therefore it being first done by the King 's absolute Power and after with the general consent of the Lords there needed no Statute to introduce it any more than there was in the Reign of VVilliam the Conqueror to give the Bishops and Abbots that held by Knight's Service places in Parliament among the Temporal Lords and to bring their Lands which were held before in Franc Almoigne under the Yoak of Military Service But to proceed in the Design I have undertaken it is necessary that I shew you first of all who were those Freemen or Freeholders properly so called upon whom the whole burden of the subordinate Government of the Kingdom chiefly relied and who then constituted the Legal University or Community thereof immediately after the Norman Conquest and during many King's Reigns after that time I suppose you are not ignorant that King VVilliam the Conqueror having outed all the English Nobility and Gentry of their Estates gave them away to his French and Norman Followers to be held of him and his Successors in capite either by Knights Service or Petit Serjeanty reserving to himself the Ancient Demesnes of the Crown and adding more thereunto for the maintenance of the Royal Dignity and for this I need refer you to no better Author than Doomsday's Book it self And then after he had thus distributed the Lands of England as aforesaid he composed a Body of Laws still extant and which are in great part Addition to the Ancient Laws of King Edward and his Predecessors I shall give you three or four of these new Laws and then I shall leave you to judge who were the true Freemen or Freeholders of the whole Kingdom The first is the 52 d Law of this King Tit. De Fide obsequio ergo Regem Statuâ—mus etiam ut omnes Liberi Homines faedere Sacramento affirmarent quod intra extra Regnum Angliae quod olim vocabâ—o Regnum Britannie VVilâ—ielmo Regi Domino suo Fideles esse volunt Tâ—ras Honores illius omni fidelitate servare cum eo contra inimicos alienigenar difendere Now who these Freemen were that were thus to maintain the King in his Lands and Honours we shall see in the 55th Law following Tit. De Clienteleri seu Feudorum Iure Ingenuòrum immunitate Volumus etiam ac firmiter praecipimus concedimus ut omnes Liberi Homines totius Monarchiae Regni nostri praedicti habeant â—â— meant terras suas Póssessiones sâ—â—s benè in pace libere ab omni Exactione injusto ab omni Tallagio it a quod nihil ab eis exigatur vel capiatur nisi servitium suum liberum quod de jùre nobis facere debent facere tenentur prout Statutum est in allis a Nobis Datum Concessum jure Hereditario imperpetuum per Commune Consilium votius Regni nostri Whereby you may see that all the Freemen here mentioned who were to hold their Lands and Possessions in Peace and free from all unjâ— Exaction and Taillage were only such who were to perform Free Service i. e. Knight's Service which was before appointed and granted them in Hereditary Right by the King in the Common Council of the Kingdom So that none were properly Freemen or exempt from Tax or Talliage but such as held by Military Tenure tho not Knighted And pray also by the way take notice that by this Commune Consilium Regni you are not to understand a Council of English men or of English and French together but one wholly made up of Frenchmen or Normans who as well Bishops and Abbots as Temporal Earls and Barons held almost all the Lands in the Kingdom by Knights Service Which is also farther made out by the 58 th Law Tit. De Clientum seu Vassallorem prastationibus Statuimus etiam firmiter praecipimus ut omnes Comites Bermes Milites Servientes Universi Liberi Homines totius Regni nostri prâ—â—â—â—tihabeant teneant se semper benè in Armis in equis ut decet oportet qud sint semper prompti benè parati ad servitium suum integrum nobis explendum pâ—â—â—gendum cum semper opus adfuerit secundum quod Nobis debent de Feodis Teneâ—â—â—tis suis de Iure facere sicut illis statuimus per Commune Consilium totius Regni nostri praedicti illis dedimus Concessimus in Feodo Iure Haereditario hoc praeceptum non sit violatum ullo modo super foris facturam nostram plenam So that here all the Freemen of his Kingdom were to perform their Military Services with Horse and Arms according to their Fees and Tenures Therefore they were Tenants in Military Service onely which in those times were the only great Freemen and that Service the only Free Service which were meant in this Law And â—ow different they were from our ordinary Freeholders at this day for whom neither of these Laws were made I dare leave it
to the Judgment of every indifferent person These then were the men the only Legal men that named and chose Juries and served on Juries themselves both in the Countrey and Hundred Courts and dispatched all Countrey Business under the Great Officers as will appear by the next Law with a little Explication Ut Iura Regia illaesa servare pro viribus câ—entur subditi Statuimus etiam firmiter praecipimus ut omnes Liberi Homines totius Regni praedicti sint Fratres conjurati ad Monarchiam nostram ad Regnum nostrum pro viribus suis facultatibus contra inimicos pro posse suo defendendum viriliter servaâ—um Pacem Dignitatem Coronae nostrae integram observandam ad Iudicium Recâ—um Iustitiam constanter omnibus modis pro posse suo sine dolo sine dilatione faâ—endam Now the Judgment they were to give and the Justice they were to do by this Law besides that in their own Courts and Jurisdictions was principally as they were Jurors or Recognitors upon Assizes c. tho some of the greatest of their Milites were often Sheriffs Hundredaries and other Under Iudges and Ministerial Officers of Justice in their several Counties as may be seen in Glanâ—ille every where but especially Lib. 2. c. 10 11. lib. 9. c. 7. c. 17. lib. 13. throughout This of being Suitors to the County and Hundred Courts c. being a Service incident to their Tenures and before them many times anciently in the County and Hundred Courts and not privately in a Chamber were Executed Deeds Grants and Donations of Lands contained in very small pieces of Pâ—rchment witnessed by Thomas of such a Town Iohn of another Richard of a third c. which were Knights and Liberi Tenentes in Military Service in those Towns of considerable Estates and not the lower sort of people And this Execution of Sales and Assurances in open Courts was as publick and notorious and as secure as if at that time there had been a publick Register for them F. Before I answer your Conclusion from King VVilliam's Laws I must tell you I am not at all satisfied neither with the Account you give how the Commonâ— of England could come in to be a part of the Parliament without any noise or notice taken of it either by our Acts of Parliament or Historians since it is not only improbable but also quite contrary to Matter of Fact and History it self as I shall I hope make good when we come to treat of that Subject Nor is your Argument of any weight since it doth not follow that because VVilliam the Conqueror so subjected the Lands of Bishops and Abbots to Tenure by Knights Service that therefore this was done by his sole Power without any Law for it made by the Common Council of the whole Kingdom Since I observe in the first Law of King VVilliam which you have now cited that the very Services which you say were reserved upon the Lands he had bestowed are said to be so appointed or setled by the Common Council of the whole Kingdom and therefore certainly the Services of the Bishops and Abbots must be so likewise And therefore I must confess my self to be of Mr. Selden's Opinion in this Matter who presumes there was a Law for it tho now lost and cannot believe that this King how powerful soever should attempt to introduce so great a yoak upon all the Bishops and so many of the Abbots and Pâ—â—ors of England without their consents expresly given to a Law and made in the Great Council concerning it tho that Law as many others of this King is not now to be found But to come to the main Design of your present Discourse which is to shew that none but Tenants by Military Service in capite were in the first times after the Conquest properly the only true Freemen or Freeholders of the whole Kingdom I shall shew you that first the Notion is quite new and never heard of till the Dr. from whom you have borrowed it first broach'd it neither Mr. Lambard Mr. Somneâ— nor Sir Henry Spelman nor any of our English Antiquaries or Lawyers ever discovered any such thing before your Dr. arose to disperse these Clouds every man of the Kingdom who was no Villain being look'd upon as a Freeman and every Owner of Lands of Inheritance though of never so small a proportion reckoned a Freeholder and his Estate called his Franc Tenement or Freehold as well in our Ancient as Modern Laws and that Freehold was not restrained only to Military Service within a hundred years after the Conquest appears by King Iohn's Magna Charta In which it is expresly recited that Nullus distriâ—â—tur ad faciendum majus servitium de Feodo Militis nec de alio Libero Tenemento quâ—â— inde debetur and that Socage Tenants tho by Villain Services were as much Freemen as your Tenants in capite see Spelman's Glossary Tit. Socman where he says thus Socmannus in natura brevinan brevi de Recto propriè talis est qui Liâ—e est tenet de Rege seu de alio Domino in antiquo dominico terras suas seu Tenementâ— in Villenagio Libro Sancti Albani Tit. Honcton Chap I. Rege Angliae manerium de Hâ—â—cton tenuerunt in dominico omnes Tenentes Liberi scil custumarii per sokam defendebant tenementa sua c. ex quo patet sokmans liberos 〈◊〉 significare But since you seem to make a distinction between Freemen and Freeholders properly or improperly so called since King VVilliam's Laws you have now cited do not warrant any such Distinction I must beg your excuse if I am not of your Opinion for the First Law you have quoted warrants no such thing it only says That all Freemen in general shall take an Oath of Fealty to the King to maintain him his Lands and Honours against 〈◊〉 Enemies and Strangers Now it is apparent that this Law extended to all Freemen who were by the Ancient Saxon Laws recited in the Addition to the Laws of King Edward to take the very same Oath in the Folkmote as they were after your Conquest to do according to this Law either in the County Courts or Sheriffs Tourne Nor will the next Law do the business any more than this for the Words are That all Freemen of our said Kingdom may have and hold their Lands and Possessions free from all â—njust Taillage Exactions c. Which Word Possessions extends not only to Lands of Inheritance much less to Lands held by Knights Service but also to Estates for Life and all other Chattels or Possessions as well real as personal Nor doth the Words Servitium Liberum extend only to those Services which were reserved upon Lands held by Knights Service in capite but also to those Common Services called Trinoda necessitas which I have formerly mentioned â—iz The building and repairing of Castles and Bridges and Expedition against Foreign Enemies
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
that King last mentioned per Commune Consilium 〈◊〉 Regni yet there is likewise no mention made of any Knights and Citizens 〈◊〉 Burgesses F. Before I answer this main Argument of yours which I freely grant carrieth the greatest shew of probability of any you have yet brought give me â—â—â—ve to take notice that I think you are very much out in your first Conclusion that before this Charter the King exercised a Royal Prerogative of Imposing Taxes without the Assent of Parliament for if you mean that this Exaction was exercised de facto and from thence you would make it a Prerogative of the Crown I grant this was true not only before but after this Charter before the Statute de Tallagio non concedendo was made but if you mean de Iure I affirm that our Kings were as much tyed up by the 55th Law of William the First which you have already Cited from Levying any unjust Taxes or Exactions 〈◊〉 Communi Consilio totius Regni as they could be afterwards by any other subsequent Law that could be made But I shall proceed to answer the Authority you have now brought from this Clause in King Iohn's Charter to prove That none but Tenants in capite had any place in our Great Councils or Parliaments But though I confess the Charters of Henry III. and Confirmation of Edward I. are the same with this in the most material parts yet there are several Clauses of which this Clause in question is one which are in King Iohn's Charter and yet are totally omitted out of both those of Henry III. as I shall shew you hereafter So that let â—â—e sense of this place be what it will I defie you to shew me any Great Council of the Kingdom that was ever summoned according to this Imaginary Model of yours and that I do not speak without Book that Parliament or Council of 9. Henry the Third when but 11 years after King Iohn's Charter was Conâ—â—â—med Mâ—t. Paris as I have already observed tells us it consisted of Cleâ—â— Populus cum Magnatibus Regionis But give me leave to read this Clause according as your Dr. himself hath Printed and Transcribed it and as your self have now read it and I doubt not but it will appear plain enough that the Clause you insist on in this Charâ—â—r doth not at all concern the Great Council of the Kingdom and for the proof of this I desire you only to observe that by the 15th and 16th Clauses of this Charter you have now read both the City of London and all other Cities Barâ—â—ghs and Towns had a Right to have a Great Council of the Kingdom for the â—â—â—essment of Aids otherwise than in the Three Cases there expected And â—ay take the Dr's Paraphrase to this Clause along with you in his Appendix to his compleat History of England viz. That they viz. the Citizens Burgesses and Cinque Ports shall send their Representatives or Commissioners to the Common Council of the Kingdom for the Assessment of Aids So that according to his Concession there must have been Citizens and Burgesses in the Great Council in the Reign of King Iohn and if so I desire you to tell me whether those Gentlemen were Commoners or not But I will not insist too much upon his Concessions for I think it is very plain from the Words themselves which point out a distinction between the Common Council of the Kingdom mentioned in the first Clause which was to meet to grant or assess Aids or Subsidies and that other tho not Common Council or Assembly consisting of all the Tenants in capite which by the 17 th and 18 th Clauses of that Charter are to meet to assess Escuage and to do such other Business as was express'd in their Summons So that nothing seems plainer to me than that this Assembly mentioned in this Charter for assessing Escuage was a distinct Council from the Great Council of the Kingdom which was appointed for the granting of other Taxes called Auxilia and for the making of Laws M. I confess this Gloss of yours seems at first sight very plausible and agreeable enough to the way of Reading and Pointing with which the Dr. himself published this Charter but for all that I much doubt whether you are in the right or not therefore pray give me leave to put off this Debate till our nâ—â—t Meeting since it now grows late and in the mean while I will take time to consider the Arguments and Authorities you have now made use of F. Pray take your own time but do not defer it above a day or two for I have a great mind to have this Question dispatch'd off our hands I am your Servant M. Good night Sir FINIS Books Printed for Richard Baldwin near the Oxford-Arms in Warwick-Lane A Brief Disquisition of the Law of Nature according to the Principles and Method laid down in the Reverend Dr. Cumberland's now Lord Bishop of Peterborough's Latin Treatise on that Subject As also his Confutation of Mr. Hobb's Principles put into another Method With the Right Reverend Author's Approbation The Gentleman's Iournal Or the Monthly Miscellany By way of Letter to a Gentleman in the Country Consisting of News History Philosophy Poetry Musick Translations c. Compleat for the Year 1692. Printed for Rich. Parker and are to be sold by Richard Baldwin near the Oxford-Arms in Warwick Lane Where are to be had the Single Iournals for each Month or Compleat Setts bound The Tragedies of the Last Age consider'd and examin'd by the Practice of the Ancients and by the Common sense of all Ages in a Letter to Fleetwood Shepherd Edq A Short View of Tragedy its Original Excellency and Corruption With some Reflections on Shakespear and other Practitioners for the Stage Both by Mr. Rymer Servant to their Majesties Bibliotheca Politica OR A DISCOURSE By Way of DIALOGUE WHETHER The Commons of England represented by Knights Citizens and Burgesses in Parliament were One of the Three Estates in Parliament before the 49th of Henry III. or 18th of Edw. I. The Second Part. Collected out of the most Approved Authors both Antient and Modern Dialogue the Seventh LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford-Arms where also may be had the First Second Third Fourth Fifth and Sixth Dialogues 1693. Authors made use of and how denoted 1. Mr. Petut's Ancient Right of the Commons of England Asserted P. R. C. 2. Dr. Brady's Answer thereunto Edit in Folio B. A. P. 3. The said Doctor 's Glossary at the end of it B. G. 4. Animadversions upon Mr. Atwood's Treatise Intituled Iani Anglorum faces nova B. A. I. 5. Mr. Atwood his Confutatin of the said Doctor Intituled Ius Anglorum ab Antiquo I. A. A. 6. Dr. Brady's Preface to his History B. P. H. 7. Dr. Iohnston's Excellency of Monarchical Government I. E. M. G. THE Seventh Dialogue BETWEEN Mr. MEANWELL a Civilian AND Mr. FREEMAN a Gentleman F. YOU are
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
held wholly by Socage Tenure whereas it appears plainly by Littleton that Tenants in Petyt Serjeanty were subject to Wardship Marriage and Relief So that whoever will but consider that near half the Lands in England were held by Bishops Abbots Priors c. and of whom not a third part held by Knights Service of the Crown and will then likewise consider what a vast number of Tenants those Abbots Priors Deans and Chapters who were not Tenants in Capite at all must have had and who either held Estates in Fee or else for Life under them in Socage as well as by Knights Service as also all the other sorts of Tenures I have already mentioned which either held of the King as of some Honor or Castle or else of other Mesne Lords by other Tenures than Knights Service must certainly conclude that not above one half of the Lands of the whole Kingdom was held either immediately of the King or else of other Mesne Lords by that Tenure So that if all these Persons which were far the greater Number of the Free-holders in England should have been thus excluded from having any thing to do in our Great Councils I doubt not but we should have found sufficient Clamour in our Histories against so unjust a Constitution and when the whole Body of the Kingdom was in Arms against King Iohn at Running-Mead they would likewise have inserted a Clause for themselves if they had not had their Suffrages there before either by themselves in their own Persons or by their lawful Representatives And therefore upon the whole matter I durst leave it to the Consideration of any unprejudiced Man whether it is not much more probable that the Constitution of Knights of Shires Citizens and Burgesses appearing in Parliament should be much more antient then the time you assign than that so small a Body of Men as the Bishops Lords and Tenants in Capite should represent all the Freeholders and People of England who never held of them by Knights Service at all Nor have you yet answered the Quotation I have brought out of Bracton in my last Discourse to the contrary And whoever will but consult that Author in his Chapter of Tenures will find that the Tenants in Capite were so far from having a Power of charging all the Mesne Tenants at their Pleasure that in his Chapter de Tenuris it appears that a Mesne Tenant in Capite having purchased an Estate for a valuable Consideration was lyable to no other Services and Conditions than what his Tenure express'd which once performed the Lord had no more to say to him and if so be he laid any further Burthens upon him he might have had a Writ of acquital out of the King's Court against him directed to the Sheriffs several Forms of which you may see in Glanville and in the old Register M. We are not to rest upon meer Probabilities for some things that now appear to us unreasonable at this instant of time might then be very just for if the Feudatary Tenants of the Bishops Barons and other Tenants in Capite were well enough contented with the Constitution of the Kingdom as it then was and that it plainly appears by matter of fact that there was but one Common Council for the whole Kingdom and that of the Bishops Abbots Great Lords and less Tenants in Capite only it is in vain to argue of any unreasonableness in or Inconveniencies that might arise from such a Constitution though perhaps a great part of the Kingdom did not hold in Capite nor yet by Knights Service and therefore though the Feudatary Tenants of the Tenants in Capite were upon the performance of their Services acquitted of all other Charges yet this was still to be understood only of such ordinary Services as those Tenants were to perform by virtue of their Tenures such as was Scutage Service or the attending upon their Lords when they went out to War along with the King but did not extend to such Scutages as were granted in Parliament or as a Tax upon Land by the common consent of the Nation for then the Tenants in Capite were not only the Grantors but the Collectors too of such Scutage Tax from their Military Tenants and the Writs to the Sheriffs were different from those for Scutage Service and for proof of this I desire you would peruâ—e that Writ which the Dr. Quotes of the 19th of Hen. III. which is still to be seen in the close Roll of that Year Rex Vice Comiti Sussex salutem Scias quod Archiepiscopi Episcopi Abbates Priâ—reâ— Comites Barones omnes alii de Regno nostro Angliae qui de nobis tenent in Capite spontanea voluâ—â—â—te suâ— sine Conâ—uetudine concesserunt nobis Efficax Auxilium ad magna Negotia nostra Expedienda unde provisum 〈◊〉 de Consilâ—o illorum quod habeamus de feodis Militum Wardis quae de nobis Tenent in Gapite duâ—s Marcas ad predictum Auxilium faciendum unde proviâ—erint reddere nobis unam medietatem ante Festum sancti Micâ—aelis Anno Regni 19. aliam Medictatem ad Pasche Anno Regni â—osirâ— 20. Ideo tibi precipimus quod ad Mandatum venerabilis Patris R. Cicestren Episcopi Cancellarii nostri sine dilatione Distringas omnes Milites liberos Tenentes qui de eo Tenent per Servitium Militare in Balliva tua ad redlendum ei de singulis feotis militum Wardis duas Marcas ad predictum Auxilium nobis per manum suam Reddendum in Terminis predictis Sic scribitur pro aliis Episcopis Abbatibus Prioribus Magnatibus Now I desire you to tell me whether any thing can be more plain than that this Tax was granted by a Common Council of the Kingdom according to that Clause of King Iohn's Charter I have now cited Wherein it is first especially provided that no Aid or Scutage shall be imposed upon the Kingdom unless by the Common Council thereof and yet you see by this Writ that the Archbishops c. with the Barons there mentioned together with the other Tenants in Capite alone granted an Aid or Scutage Tax of two Marks for every Knights Fee which they held of the King and that by virtue thereof not only those Knights Fees they held in their hands but also all those Subseudatary Tenants called here Freeholders who held of them by Knights Service were likewise charged for every Knights Fee so held the like Summ of two Marks Now I think nothing can be more plain from this Record than that this was a Common Council of the whole Kingdom and yet consisted of Tenants in Capite only and therefore I desire you to shew me some better Proofs than you yet have done that these Tenants in Capite ever made a distinct Council different from the Common Council of the whole Kingdom F. I grant this seems at first sight to be a good Authority for
other Weapons And the 2d Article of King Iohn's Charter says expresly Concessimus etiam omnibut Liberis Hominibus Nostris Regui Anglia pro Nobis Haeâ—elibus Nostris in perpetuum omnes Liberates subscriptas â—abeâ—das â—enandas eis haeredibus â—uit de Nobia Hâ—rodibus nostris Which the Dr. himself renders thus We have also granted to all our Freemen of the Kingdom of England c. And sure then this Charter could not be made to none but Tenants in Capite unless you will suppose that none but they were Freemen and all the rest Slaves Nor was this Charter only made to relax the severity of the Feudal Tenures as you suppose since there are divers other Clauses in it which concern all the rest of the Freemen and Free holders in England as well as they for besides the first and second Chapters of this Charter which grants and confirms to the Church of England and to all the Freemen of the Nation their Rights and Liberties If you please better to consider it you will find that there are several other Chapters in this Charter which all other Freemen as well as the Tenants in Capite have thereby an Interest in as you may see by the 10 11 12 13. 15 16. 22 23 24 25. and above 30 other Chapters or Clauses therein exprest which are granted not to Tenants in Capite alone but either to Ecclesiasticks or other Lay Freemen of the whole Kingdom But to prove this a little further I shall give you but one or two instances out of this Magna Charta and that too in the Drs. own Translation Article 48. No Freman shall be taken or imprisoned or disseised of his Free Tenement or Liberties or Free Customs or Out-Lawed or Banished or any ways dâ—stroyed nor will we pass upon him or commit him to Prison unless by the Legal Judgment of his Peers or by the Law of the Land i. e. by Legal Process The other is the 49. Article of this Charter that we will not sell to any Man we will not deny any maâ— or delay Right or Justice Now Judge your self whether these two Articles were made to the Tenents in Capite alone or to all the Freemen of the whole Kingdom And hence it also plainly appears that the same Body of Freemen to whom this Charter was made were likewise present and gave their Assents to the making of it Nor were Vavasors or Fendatary Tenâ—nts of the Bishops Abbots great Lords and other Tenants in Capite Persons so inconsiderable as you would make them that they only should come hither but as followers to augment the Noise since I have already proved from Bracton that there were divers of them Men of great Estates and Power in their Countries besides the Tenants of those Abbots and Priors who as I have already mentioned did not hold in Capite of the King at all and yet made a great Part of the Kingdom besides Tenants in Petyâ— Serjeanty and those that held of great Honours who could never be represented by the Tenants in Capite at all And therefore I must notwithstanding what you affirm to the contrary look upâ— on all these Persons for as good Law-makers as the greatest Lords or Tâ—nants in Capite of them all since the main force of the Nation did not lye in them but in their Feudatary Tenants who would never have followed their Lords in this Assembly if they had not look'd upon themselve as having as good an interest in the Rights and Liberties they demanded as appears by this Silvo of all their Liberties as their Lords themselves and also as good a Right as they in giving their Assent to them when they were to be pass'd into a Law as they were by this Charter since these Feudatary Tenants were not at all obliged by their Tenure to obey their Lords Summons at any other Warlike expeditions but where the King or his Lieutenants went out in Person M. I am very well satisfied that this could be no Parliament for the reasons already given and tho I grant that these Charters were made to and in the Presence of the greatest part of the Clergy Earls Barons and Freemen of the Kingdom yet this proves not that they had any Vote or Suffrage in making of them nor indeed could they for the great Charters were only the Petitions of the People drawn into the Form of a Charter and passed under the King's Seal as his meer voluntary Free Grants and Concessions without any Votes or Authority from the People And therefore the great Charters of Henry III. recites them to have bin made of his meer Grace and Free Will as it is in the Preface to it But pray answer me a few plain Questions concerning King Iohn's Charter which if you can resolve I may be inclined to believe there might be some other great Council besides that of Tenants in Capite The first is if this Common Council of Tenants in Capite were for Assessing of Aids and Escuage only as you suppose it is provided by the last Clâ—use of this Charter why was the Cause of the Meeting to be declared in every Writ of Summons to the great Barons and Tenants in Capite if they were only Summoned about Aids and Escuage or other ordinary business of Course sure then the Cause of Summons need not to have been declared as it is here provided In omnibus Litâ—er is Submonitionis causam Submonitionis illius exponemus F. I will give you an answer to this Question immediatly but before I do it let me tell you that you are much mistaken in saying that the great Charters because they were the Kings Free Concessions were therefore passed without any Votes Suffrages or Authority of the People of England Since I have already proved in our discourse concerning the legis â—â—tive Power that the matter of those Charters was no more then an affirmative of the Common Law of England long before your Conquest and that the Peoples consent and Suffrage was sufficiently given in their drawing them up and offering them to the King to be Sealed and accepting them from him when he had done it And therefore that the great Charters are always called Statutes in our Ancient Records and Aâ—â—s of Parliament But to answer your Question I suppose that the King besides the ordinary business of their Assessing Escuage had often other affairs of great moment to be transacted with and Communicated to his Bishops great Lords and Tenants in Capite in which the rest of the Kingdom were not at all concern'd such as giving the King their Advice as a great Council concerning divers weighty Affairs as in the business of Sicily mentioned in the first Record I have cited as also about undertaking Forraign Wars against France Scotland Wales c. in which they were bound to follow and assist him together with their under-Tenants according to their respective Tenures and therefore it was but reason
that they should have timely notice that they might give their advice in it as also that they might either come or stay away according to the greatness or urgency of the occasion and might also give their Under-Tenants notice to provide themselves with Horses and Arms and all things necessary in case a War should be agreed on which I think are sufficient reasons for thus expressing the Causes of their Meeting in the Writs of Summons M. Admit this were so which I shall yet take further time to consider of pray tell me in the next place if all your inferiour Barons Vavasors or Lords of Manours c. supposing them either to have appeared in Person or else as chosen for Knights of Shires or else as Citizens and Burgesses who were the Members of the great Council of the Nation I pray tell me why there should not have been the same care taken that they might be also Summoned as well as the Tenants in Capite certainly they came not to them by instinct nor is it scarce probable that they would leave their Country busineâ—s to Travel from one remote part of England to another to these great Councils which seldom continued above three or four days if they had had a Right so to do F. I shall answer you in few words because it was not at all necessary to express that Clause you mention for them all Since it was sufficient therein to follow the old Course of Summoning the Common Council of the Kingdom for doing which it had always been the Custom to give sufficient Notice by Writs of Summons of their Meetings whereas in this Council of Tenants in Capite Since there was by this Charter some alteration in the manner of their Summoning so there was also for expressing the cause of their Meeting For whereas before that as the Dr. himself allows all the Lesser Tenants in Capite had particular Letters or Writs of Summons expressing the Cause of their Meeting they were for the future to be Summoned by general Writs directed to the Sheriffs and therefore it was but reason that there should be a particular Clause reserved for their general Summoning which there was no need of in those Writs that were Issued for the summoning therest of the People or Commons to the great Council or Parliament as I doubt not but it would appear in case we had those Writs to produce in which likewise there was anciently often exprest the particular cause of their Meeting as there was for instance in those famous Writs to the Lords and Commons of the 49. Hen. III. which the Dr. hath given us in his answer to Mr. P. M. But I have still a greater objection behind than either of the former You cannot deny but that by the first clause of King Iohn's Charter which I have made use of all Aids and Escuages were to be imposed by the Common Council of the Kingdom and Littleton himself tells us in the second Book of his Tenures That Escuage is always to be Assâ—ssed by Parliament upon those that failed to do their Services after the Expedition was ended Now if this had not been a Right Inherent to the Great or Common Council of the Kingdom but that the Tenants in Capite alone assessed it in King Iohn's time how came they to lose that Priviledge and the great Council of the Kingdom or Parliament to get it if the former had not been the only great Council at the first F. I hope to give you as satisfactory an answer to this as I have to the rest of your Demands This alteration might have fallen out two ways either according to Camdens old Manuscript Author cited in his Introdâ—ction to his Britania the Summ of which is that when King Henry III. after his great Wars with Sim. Momford and the Barons had Ruined many of them he out of so great a Multitude which was before Seditious and Turbulent called the best and chiefest of them only by Writ to Parliament who after that time became Barons by Writ and not by Tenure as they were before And as for the lâ—sser sort of them called â—â—ones Minores they might be wholly resolv'd into the Body of the Commons or ordinary sort of â—ree-holders and the King being fearful of any farther encrease of Power in these Barons and Tenants in Capite might no more desire their Company at the usual Feasts of the Year whither before they used to come ex more and so their Power fell of course to the Council or Parliament of which before they only made a part Or else it might happen from the negligence of the Tenants in Capite themselves who growing weary of their Attendance might neglect to come to those Councils because of the great trouble and charge of those Journeys and the King being as willing to dispense with their Presence this Court was lost by Non-usage and so the judicial part of it remained in the House of Peers and that of Assessing Escuage and advising and giving Aids in matters of War fell wholly to the great Council of the Kingdom of which these Tenants in Capite by their being capable of being Elected Knights of Shires soon became the Principal Members But admit I should take this Council for Assessing Escuages for the Comâ—on Council of the Kingdom pray give me leave to ask you one or two Questions likewise in my turn Pray tell me therefore if this Council had been such as you would have it to what purpose is there a full Stop in all the old Coppies at the end of this Clause ad babendum Commune Concilium legâ—l de Scutagiis assidendis aliâ—er quam in tribus Casibus praelictis and why â—ould the next Clause begin with de Scutagiis assidendis submoneri faciâ—â—us 〈◊〉 if they had been both one and the same Councils Since it had been easier to put it all under one Clause If the matters therâ— Treated of had been the 〈◊〉 In the next place pray tell me if this were the great Council of the Kingdom or Parliament as it is now called why are there no other Rights or Priviledges reserved to this Council but this of Assesing Escuage Were not the Powers of granting other Taxes which could not be included under the word Escuages and also of giving their Assent to Laws things of as great say greater moment than this of Assessing Escuage M. I shall give you as short and satisfactory an answer as I can to those Queries In the first place I will not deny but that both the Clauses you mention might have been contracted into one supposing them to be read without any full stop between them as Sir H. Spellman in his Glossary supposes them to be But what is this to the purpose Must these therefore be two distinct Councils because the Charter it self words them a little more loosely than it needed to have done And as for your next Query there was no
need of inserting any Clause to this Charter of reserving or conferring any Power to this Common Council of granting Taxes and giving their Assent to Laws because they were things which at that time they had no reason to complain of since we do not read that King Iohn as Arbitrary as he was ever took upon him to make any new Laws without their consents and besides it was implicitly reserved to them by the last Clause of this Charter viz. Saving to the Archâ—bishops Bishops c. Earls Barons Knights and all others c. the Liberties and Free Customs which they had before So that there was no need of any other Clause than this because it had been not only the Custom but the Law of the Kingdom for the King to lay Taxes and Assess Escuage upon the Nation without the Consent or Assistance of this great Council which grew now so great a grievance that they would not be contented untill the King by this Charter had renounced it F. I shall not now trouble my self or you to confute this mistake of yours That the Kings of England could legally raise Taxes upon all their Subjects without consent of their great Council or that they ever exercised such a Prerogative unless it were in the violent Reigns of the Two Williams and then if it was ever done it was only upon their English and not their Norman Subjects the latter being exempt from it by the very Magna Charta of King William I. by your own confession Nor would they I believe have born it at his hands but I shall speak more particularly of this another time Only pray give me leave to ask you this one Question If this Charter of King Iohn had been intended as a constant standing Rule or Form not only for this but all succeeding Common Councils or Parliaments what could be the reason that this Clause you so much insist upon of Summoning all the Tenants in Capite should be omitted in the great Charter of Hen. III. granted In the 2d Year of his Reign and but Three Years after the 17. of King Iohn when these Charters were first granted as also when it was again confirmed in the 9th of Hen. III. For can any one of sense imagine that so material a Clause as this and so express for the Rights and Priviledges of the whole Body of Tenants in Capite as the sole Representatives of the whole Nation could have been omitted had they alone in those times constituted the common great Council of the whole Kingdom How comes it to pâ—sâ— that in all the Records of Hen. III. Reign wherein this Charter is mentioned It is always recited Magna Charta Nostra viz. his own Charter without taking notice of his Fathers I should be glad to receive a satisfactory answer to this Question from your self or any other intelligent Person M. I hope I may give you a satisfactory answer to this Scruple which I think may be thus satisfied I conceive that the first great Charter we have which is commoly attributed to Henry III. and stiled his Charter in our Statute-Books was properly the Charters of Edw. I. or perhaps rather his Explication or Enlargement of those Charters of King Iohn and Henry III. For we find not the great Charter either of that or King Iohn's in any of the Rolls until the 25th of Edw. I. and he had a greater Summ of Money for confirming this Charter than Henry III. had Now in this Charter then confirmed there is no Provision made for any Summons to great Councils or Parliaments and the reason may well be because the constitution of great Councils or Parliaments was lately changed from what it was in the beginning of King Iohn's time and till the 49. of Henry III. nor perhaps was it so fixed and peremptorily resolved on at this time what it should exactly be for the future as to have it made an Article of the Charter and to this conjecture the frequent variations of Summons to Parliaments in those times do give a probable confirmation F. I am not at all satisfied with this supposition of yours For I doubt not but to prove that it is altogether vain and grounded upon no good Authorities either from History or Records but I shall shew you before I have done that the Magna Charta which we have still upon Record by Inspeximus of Edw. I is the very same word for word in all the material parts of it with that of Hen. III. both of the 2d and 9th Year of his Reign and that there was no alteration at all made as to the manner of it a Summoning or chusing Members of Parliaments from the beginning of this Kings Reign to the very end of it Nor yet in the time of Edw. I. as you suppose M. I should not be displeased to see that proved though I think I am able to shew you the contrary But before we proceed to that I must needs tell you I am not yet satisfied that there ever were anciently two Councils one of the Tenants in Capite and the other of the whole Kingdom for methinks not only your self but Mr. Petyt and Mr. Atwood his second have fallen very short of their proofs they have brought in this point and there is nothing in the Drs. whole answer to them in which in my opinion he hath obtained a clearer Victory therefore pray give me some better proofs of this distinction if you have any F. I did not imagin I should have needed to have spoken any further upon that head yet since you now require it I shall obey your commands Since therefore you tell me that the times before your Conquest are obscure and the Authorities uncertain I will give you a short History of these Councils beginning with King William I and so going down as low as Henry III. So fâ—r then we are agreed that the Council of Tenants in Capite met ex more at the great Feasts of the Year and that they also granted the King Aids or Subsidies to be Levyed upon themselves alone as I grant appears by the Writ of 19th of Henry III. which you have but now cited directed to the Sheriff of Sussex But that this Council which was thus held ex more was also often Summoned to meet at other times when the Kings occasions required it it also as certain as appears by this Writ of the 26. of the same King which I shall read to you Rex Vice-comiti Northampton c. Praecipimus tibi sicut alias praecipimus quod Summoniri facier Archiepiscopos Episcopos Comites Barones Abbates Priores Milites liberos homines qui de nobis Tenent in Capite eodem modo scribitur omnibus Vice-comitibus Angliae Which Writ extending only to those who held in Capite could never be a Summons to the Common Council of the whole Kingdom for then this restriction had bin needless qui de nobis Tenent in Capite and it would have
of Coventry where by Proceres Populus are to be understood the same orders of Men as by Magnates Populus in Mat. Paris so that it was with the smaller Tenants in Capite and the inferior Clergy with whom the King had this larger or more diffusive Treaty as this Author words it F. I confess you have now put a very fair gloss upon these Places I have now made use of but 't is an hundred pitties that such a fine Hypothesis should have no better proofs than your bare Surmises to support it for that is all the Authority that I can see you bring for your sense of this word Populus for the smaller Tenants in Capite and not for the rest of the People but I see no good Authority as yet brought by you to prove it except that clause in King John's Charter which if as I have lately shewed you it will beat a quite different Interpretation all that you have said upon that head will signifie nothing therefore as for the main Argument you raise from the words infinita multitudo nobiâ—ium in Mat. Paris that they could not be the Knights of Shires together with the Citizens and Burgesses because they could not be such an infinite Multitude as this Author here mentions to have me at London as also because of the shortness of the time of the Summons If these are material Objections against our Opinion so it will be likewise against yours for how could this be a great Council according to King John's Charter which expresly provides for Forty days Summons for the Tenants in Capite to come to this Assembly and if so be this usage was broken at this time upon some urgent occasion in respect of them it might be so also as to all the rest of the Kingdom for the Knights of Shires might be chosen at the next Country-court and their Names returned immediately before or together with their meeting at London and as to the Citizens and Burgesses it was yet more easie for them to be chosen and returned in three Weeks time since every body knows the Cities might have called Common Councils and the Towns and Burroughs by the notice of their proper Officers to whom the Writs were delivered might have assembled at their common Halls or Town-houses immediately upon the receipt of the Writs and these together with the Knights Citizens and Burgesses joyn with the great Lords and Tenants in Capite made up the infinita Nobilium multitudo mentioned by Mat. Paria But your main Objection I confess is behind how these Representatives of the Commons here called infinita Nobilium multitudo could be the Knights Citizens and Burgesses whose number could not be at that time above 500 Persons As for this pray consider if the difficulty will not bear as hard upon you for if your Tenants in Capite made such a vaft multitude all those difficulties will arise that you press me with upon my Hypothesis of the meeting of all the chief Free-holders or Lords of Manors in England in Parliament before Knights of Shires were introduced in the room of them viz. How it was possible for so great a multitude to debate vote or do any business and what Room or Church was able to hold so many and the like so that granting all your smaller Tenants in Capite who had but one Knights Fee apiece to have met there these might have made a body of 5 or 5000 Men which how they could have been managed any better then 20000 or 30000 which would have more then taken in all their Feudatary Tenants too I desire you would resolve me if you can so that at last upon your own Hypothesis this Populus consisting of the Tenants in Capite were as much Commoners as the Knights oâ— Shires at this day for as for the word Nobilium I have already proved and you must needs here grant it that it takes in the inferior Nobility or Gentry under the degree of Lords as well as the Superior and if so why not all the considerable measu Tenants of those Tenants so that you have hitherto brought no proof but your bare Assertion that under this infinita multitudo Nobilium Populus must be understood only the great Lords and Tenants in Capite since either this Author speaks Hyperbolically or else all the chief Gentry of England of whatsoever Tenure might have appear'd at this great and extraordinary Assembly So that you are under this Dilemma either this Curia which you confess met ex more was the great Council of the Kingdom or it was not if it was not then there was some other greater Council besides that but if it was then it will plainly follow though you do all you can to mince the matter that this great Council of the Kingdom or Parliament met of course by ancient custom three times in the year without any Summons at all from the King which if I should have affirmed you would have called it a Common-wealth Notion since nothing can be a greater proof that this Assembly of the whole Nation in Parliament did not upon your Hypothesis immediately depend on the Kings Writs of Summons for their Assembling and Acting when met M. Well since you can bring no direct proof that these were any other besides the Tenants in Capite who met at this great Council I have still more reason to suppose them to have been so then you can do for the conorary Opinion therefore pray give me if you can some clearer and later proofs for this difference between the two Councils F. I shall comply with your desires and in order to it shall conclude with two or three of those very Authorities the Doctor has given us in his Answer to Mr. P. where he gives us this passage out of Mat. Paris in the 2â—â—th of Hen. 3. which plainly proves the Tenants in Capite not to have been the common University or sole Rep. esentative of the whole Kingdom â— pray read it Eâ—â—â— in Anno convenerunt regis summonitione convocati Londinum Magnates totius Regni Arciâ—pisâ—ori Episcopi Abbates Priores Comites Barones in quo Concilio portis Rex oâ—e proprio in presentia magnatum i. e. of all the parties above mentioned in Refectorio Westmonasteriensi Axilium sieri pecuniare cui fuit responsum quâ—d super â—oc tractarent â—recedentesque Magnates de Râ—fectorio convenerunt Archiepiscopi â—â— Episcopi Abbates Priores seorsim per se superque hoc diligenter tractaturi â—andâ—m requisiti fuerunt ex parte eorum Comites Barones si vellent illis unanimiter conâ—entire in responsione previsione super hiâ— facienda qui responderunt scâ—licet Comites Barones quod sine communi universitate nihil facerent ture de communi dissâ—nsu electi fuerunt ex parie cleri Electus Cant. c. Now I think here is as manifest a distinction as need to be between the Lords and Commons as Members
to the like Exactions of his Son Hâ—n the Third which are branded by all Writers as horrible and illegal oppressionâ— nay are owned to be so by this Kings frequent Confirmations of Magna Charta and Acknowledgments of his breach of them and promised to observe them better for the future But I am sorry to find your Doctor whom you follow both in his Answers to Mr. P. and Mr. A. as also in his compleat History still to cite the most violent and illegal Actions nay the very perjuries for â—lowers of the Crown and Royal Prerogatives But as for the Authorities you urge for this Kings Talliating his Demesnes without consent of Parliament you your self grant that this Talliage was not general upon the whole Kingdom and if so could only concern his own Tenants in ancient Demesn and none else who were always exempted from being taxed with the rest of the Nation because they were lyable to yield the King a reasonable Talliage ratione Tenurae whensoever he needed it yet this was counted rather a priviledge than otherwise since they were not only free from all other burthens and Parliamentary attendance but were also Taxed much less than the rest of the Nation in regard of their Tilling the Kings Lands but when this reasonable Prerogative grew to be abused and the Exactions levyed upon them became intollerable then they would no longer suffer it but got it taken away by the Statute de Tallagio non concedendo after which we find the Tenants in ancient Demesne frequently giving their shares of Aides and Subsidies in Parliament by Delegates of their own as in the Record of the 35 th of Edward the First which you have now cited till at last they came to be resolved into the common body of the Kingdom but aâ— for the City of London it was never taken for part of the Kings Demeans and so is not to be found in Dooms day Book but as appears by Record held of the King in Capite and therefore could be no otherwise Taxed then as the rest of the Tenants in Capite that is by the Common Council of the Kingdom And this made the Londoners deny to be otherwise Talliated as appears by this Record of Henry the Third which you have now cited But the truth is they had this Exaction first laid upon them in the exorbitant Reign of King Iohn and this was afterwards trumped again upon them in all the ill part of his Sons Government because his Father had done it before and I doubt not but if Ship-mony had passed unquestioned and been as often paid in the Reign of K. Charles the First but that it would have been urged as a Precedent in the Reign of Charles the Second But as for your last Authority of the 33 d. of Edward the First pray take notice that it is before the Statute de Tallagio non concedendo and extends only to such Estates in ancient Demesn as were held of the King by Noblemen or Gentlemen either by Gift or Purchase and which for all that still kept the ancient custom of being Talliated by the King as their under Tenants were by them to enable the Lords to pay the Kings Talliage and in this sense I understand these words in this Record unde sunt in Tenantia i. e. of which they are in Tenancy to the King Nor does the Record call them Dominica sua as it does the Kings Demesns that follow so that this could not be a Tax upon all under Tenants by Knights Service as you suppose sinâ—e their Estates were never called Antiqua Dominica and therefore I think after all you cannot shew me any legal Precedent that our Kings claimed a Right under colour of their Prerogative of Taxing the whole Nation de Alto â—â—sso at their pleasure M. I shall not now dispute it longer with you whether the Kings of England had not anciently a power of Taxing the Lands held of them without the consent of their Great Council but thus much I think I may safely aver that when this Great Charter was made the Tenants in Capite as the Common Council of the Kingdom gave Taxes and made Laws not only for themselves but their Mesne Tenants and the whole Nation also Nor was this at all unreasonable that those who thus held Estates by Mesne Tenure under the Tenants in Capite should be bound by the Acts of those of whom they held them since we see in Scotland that at this day none sit there either as Commissioners of Shires or Burgesses for the Royal Buroughs but such as hold in Capite of the King for anciently before the Law for excusing the smaller Barons and free Tenants in Capite and sending Commissioners of Shires in their stead was introduced by a Statuâ—e made in the Seventh Parliament of K. Iam. 1. A. Dom. 1420 it consisted all of Tenants in Capite viz. of the Bishops Abbots Priors Earls Barons Libere Tenentibus qui de Râ—ge tâ—nent in Capite as appears by the very words in the Latine Titles to divers of those Statutes as you may find them in Slenes Collection of Scotch Laws Now if this Law did anciently and does still prevail in Scotland that the Tenants in Capite should be the sole Representatives of that whole Kingdom I cannot see any Reason why it might not have been so anciently in Englâ—nd also especially since I can give you so good Reasons to back this opinion M. I will answer your Argument from Scotland by and by but in the mean time give me leave to tell you why I think it could never have been the custom in England and that for two Reasons first because it was against Reason and 2 ly because it was against the known Law of the Kingdom that it was against Reason is apparent since what reason was there that if a Man in those times purchased an Estate for a valuable consideration of a Lord or any other Tenant in Capite as certainly thousands did to be held either by Knights Service or in Socage that such a Tenant should lye at the Mercy of his Lord to dispose of his Estate in Taxes and make Laws for him at his pleasure however exorbitant those Taxes were or inconvenient those Laws might prove the Lord being no Representative of his own choice or appointment In the next place that this was contrary to the received Law and Custom of the Kingdom in those times I can prove by two very sufficient Authorities the one of the Earl of Chester the other of the Bishop of Durham Now it is certain that both this Earl and Bishop helâ— their County Palatines in Capite immediately of the King nor had those Counties any Representatives in Parliament till long after that they had Knights of Shires and Burgesses granted them by particular Statutes made for that purpose now according to your Hypothesis all the Freeholders and Inhabitants of those County-Palatines should have been bound by all Acts
whole Nation in Parliament and I am of this opinion because in many of the old Statutes before the time of Robert the 2 d. we find the Communitas totius Regni coming immediately after the Earls and Barons as in our own ancient Statutes and Records but after those Reigns we find no more mention of this Communitas but only of the Dukes Earls Barons Liberi Tenentibus Burgensibus qui de Rege tenent in Capite as in the Titles to those Statutes of K. Robert the 3 d and Iames the 5 th you have now cited And yet that Liber Tenens was not anciently taken for a Tenant in Capite only pray see the 14 th Chap. of the Laws of K. Alexander the 2 d. made Anno Dom. 1214. with your Doctors comment upon them Statutum est quod nec Episcopi nec Abbates nec Comites nec aliqui liberi Tenentes tenebunt curias suas nisi Vicecomes Regis vel servientes Vicecomitis ibidem fuerant upon which words the Doctor in his answer to Mr. P. hath this remark viz. this again shews us that the Freeholders were Lords of Mannors at least So that unless you will suppose that none but Tenants in Capite were Lords of Mannors or held Courts as certainly very many of the Mesne Tenants did this word Liber Tenens must extend to any other great Freeholder or Lord of a Mannor of whatsoever Lord he held it and as such might anciently have had a Vote in that Parliament so that if I have as I think sufficiently proved that the word Communitas coming after the Earls and Barons in our ancient Statutes and Records did certainly signifie another order of men distinct from the Tenants in Capite I I have the same reason to believe it was so in Scotland too not only because these general words Communitas totius Regni must needs be more comprehensive than to express the Tenants in Capite only who could never Represent all the great Freeholders in Scotland any more than they did in England but also because it is acknowledged by the Scotch Lawyers that the Fundamental Laws and Constitutions are the same in both Kingdomâ— for Sir Iohn Skene in his Epistle to K. Iames before his Scottish Laws says thus Intelligo tuas tuorumque Majorum leges cum legibus Regni tui Angliae magna ex parte consentiunt which is also acknowledged by the King himself in the Speech he made in Parliament concerning the Union of both Kingdoms To conclude I cannot but admire your Doctors strange partiality who does allow the Commons of Scotland to have even been a third Estate when he expressly grants that the Commons of Scotland were and are at this day the Kings Tenents in Capite and that the Kings Royal Burroughs were such as ever did and do at this day in Scotland only send Burgesses to Parliament Now why the Cities and Burroughs in England should not have always had the like Priviledge as well as in Scotland I wish you could give me any sufficient reason M. Since you own that the Tenants Capite or else Commissioners in their stead have been the sole Representatives for the whole Kingdom of Scotland for above 200 years I doubt not but they were so long before that time since you confess you cannot shew any Law by which this ancient Custom came to be changed though I grant that the Statutes before K. David and Robert the 2 d are said to be made by the Communitas totius Regni yet you must not suppose that Constitution of the Kingdom altered when the Clerks altered their phrases in penning their Statutes and Records so that this Communitas was the Community of the Tenants in Capite only and not of the Freeholders or of the Citizens and Burgesses of the whole Kingdom since as for the former you cannot say that all the People in Scotland had ever a right to chuse the Commissioners for the Shires for then 't is most likely they would have kept to this day whereas we see that none but Tenants in Coplie have Votes at such Elections And as for Cities and Burroughs I cannot find nor do I believe you can shew me any instance of a City or Burrough-Town in Scotland that ever sent Deputies to Parliament but what held in Capite of the King For though there are at I said already besides the Royal Burghs two other sorts viz. Burroughs of Regality and Burroughs of Barony who hold of the King but not in Capite or else of some Bishop or Temporal Lord and though divers of these are considerable for Trade and Riches yet none of them send any Burgesses to Parliament so that though I confess there are three Estates in the Scotch Parliament called in the Statutes of K. David and Robert the 2 d the Treâ— Communitates Regni yet did these always consist of the Tenants in Capite only who therefore sit together and make but one Assembly Now that we may apply what hath been said to England I desire you to take notice that the Doctor and we that are of his opinion do not positively affirm that that the Commons of England were not at all represented before 49 Hen. 4. but that they were not represented in Parliament by Knights Citizens and Burgesses of their own choice but by the greater and lesser Tenants in Capite the greatest part of which I grant were not Lords and admit that I should grant you that some Cities and Burroughs sent Members to Parliament before the 49 th of Henry the Third yet were they only such as held in Capite and no other as the Doctor has very well observ'd in his Answer to Mr. P's argument from the Petition of the Town of St. Albans so that upon the whole matter there will be no more gain'd by you in this Controversie than that perhaps some Citizens and Burgesses appear'd in Parliament and constituted a third sort of men which you may call the Commons if you please though I cannot find they were so called till after the time of Edward the First but supposing this to be so it is very far from your Republican levelling opinion who do suppose that all the Freeholders of England had an ancient indisputable right of appearing in Parliament by reason of their propriety in Lands or other Estates whereas by our Hypothesis we suppose the great Council or Parliament to have anciently been the Kings Court-Baron consisting of his immediate Tenants call'd thither by him their Supreme Lord to advertise him of the Grievances of the Nation and to propose what new Laws were necessary for the publick good of the Commonweal and together with him to raise such publick Taxes both upon themselves and their Tenants as the necessities of the State requir'd yet notwithstanding there is a vast difference between your notion and mine concerning the Rights which such Tenants in Capite might claim of coming to Parliament since before King Iohn's Charter whereby
I grant all the lesser Barons or Tenants in Capite were to be Summonld by the Sheriff to come to the Common Council of the Kingdom the King might have only call'd some of the greatest and wisest of them and such as he thought most fit to advise him in making Laws and imposing Taxes upon the Nation And the like Prerogative his Son Henry the Third resumed during the greater part of his Reign as I shall shew you from divers old Statutes by and by And that our Kings did often take upon them to call whom they pleased and omit whom they pleased of these Tenants in Capite may appear by those who were called Pares Baronum or alios Magnates who are put after the Barons and of these there are many instances of their being called to Parliament and again omitted in several Kings Reigns after the Commons were a third Estate as represented as at this day F. I must beg your pardon if I cannot come over to your opinion notwithstanding what you now have said since I do not find your reason to come up to what you intend therein for you only suppose but without any proof that the words Populus and Communitas must signifie only Tenants in Capite in the ancient Scotish Charters and Statutes All the Argument you bring to the contrary is that I cannot shew you any Law by which it was altered to what it is now and therefore that the Constitution has been always the same as at this day Now pray consider whether this will not press altogether as hard upon you in relation to England for you cannot shew me any Law whereby the Tenants in Capite were excluded here and Knights of Shires introduced in their fleads and therefore by the same Rule let the Scottish Parliaments have been of what they will yet ours have been still the same they are now But if you say that this contrary usage hath been introduced either by the Kings Prerogative or by the silent consent of the People or by some Law that is now lost are not all the same Arguments to be made use of in the case of the Scotish Parliaments which I may upon as good Grounds suppose to have deviated from their original Constitution as you do that our English Parliaments have done it So that if those Arguments are of any weight they will serve for England as well as Scotland but if they are not it is in vain to make use of them at all The like I may say as to Burroughs in Scotland since it is as easie to suppose that divers Burroughs in Scotland might voluntarily desist from sending their Deputies to Parliament that did not hold of the King in Capite as it is that divers Burroughs in England did Petition to be exempted from sending Burgesses to Parliament by reason of their inability to pay the Expences of their Burgesses as I could shew you by divers Precedents some of which are in Print had I now time As for the rest of your Discourse I cannot imagin to what it tends for if the Tenants in Capite had any place in or right to come to Parliament how came they to have it but by reason of the great Freehold Estates they held of the King and if so I can see no reason why those that had as good or better Freehold Estates than they should be all excluded Or why a small Tenant in Capite of but one Knights Fee held of the King in Capite should give him a right to a place in Parliament and get that a Mesne Tenant or Vavasour as he was then called who held ten Knights Fees of some Bishop or Abbot who perhaps did not hold in Capite at all should have no right of appearing there nor of choosing any Representative for him since notwithstanding all you have now said the Doctor either contradicts himself or you when he tells us expressly in his Answer to Mr. P. That the Tenants in Capite who were no Barons represented only themselves and not the Commons but how this will agree with what he says in his Introduction that the Body of the Commons had no share in making Laws c. before 49 th of Henry the Third unless they were represented by thd Tenants in Capite and if so must then certainly represent those that he here calls the Body of the Commons of England Collectively taken But as for your notion of the Parliament's being the King's Court Baron tho you have borrowed it of a Learned Scotch Lawyer Sir George Meâ—â—ensy yet let me tell you it was never true for it is well known that the Great or Common Councils both in England and Scotland are much more ancient than the Tennres of Lands by Knights Service or then the very Institution of Mannors in this Kingdom which the Doctor tells us are of no higher an original than the Norman Conquest But admit I should allow your notion of the Parliaments being anciently the Kings Court Baron then certainly all the Tenants in Capite had a right to appear there and to be not only Suitoâ—s but Judges of all differences arising among the Tenants in the Lords Court where neither the Lord himself nor his Steward were Judges and that of right and not by savour whereas you suppose such a Court-Baron as was never heard of where the Lord could admit or exclude whom of his Tenants he pleased to which if they had a right ratione Tenurae certainly he could never do So that instead of a Court-Baron and a Common Council according to King Iohn's Charter whereby all the Tenants in Capite were to be Summoned to this Council or pretended Court Baron you suppose the King still retained a Prerogative of calling or omitting whom he pleased which instead of confirming the validity of the Charter and that it was to be a Rule how such Councils should be called for the future you make to signifie just nothing and that no Common Council was ever called according to that Model But pray shew me a Court-Baron wherein the Tenants ever took upon themselves a Power of giving Taxes out of their Estates that did not hold of the mannour though they were resident within it But indeed you are out in the whole matter for the Doctor himself grants in his answer to Mr. P. when he gives us King Iohn's Letters of Summons to a Council directed to the Barons and Knights and as he translates Eidelibus Feudatories or Vassals of all England wherein he lets them know that he had sent his Letters to every one of them if it might have been done Now what reason had he to write thus if these Gentlemen had no right to be consulted or that the King might have called or left out whom of them he pleased But the Barons and Tenants in Capite were in another mind when in the 37th of King Hen. III. as Mar. Paris tells us they refused to Act or Proceed upon any thing
French Peasants at this day and so were not Reckoned among the Freemen all Freedom consisting then in so much Freehold Lands held in a Man 's own right or being Freemen of some City or Burrough Town and this gives us a reason why Copy-holders and Tenants for years have no Vote in Parliament at this day since it is certain and all our Law Books allow it that at the first all Copy-hold Estates were held by Villenage and the owners of them at first the Villani or Tillers of the Demefnes of the Lord of that Town there being at first no Free-hold less then that of a whole Township since a Mannour and therefore all Copy-holders and Tenants for years or at Will though Freemen are not admitted to have Votes at this day because as I said before Freedom anciently consisted in the Inheritance or Free-hold Estate of Land or in Riches in Trade or Traffick Leases for Life and Years being not known or at least not commonly in Use in those days and hence it is that when Estates of Free-hold came to be divided into small Parcels all Free-holders till the Statutes of Henry IV. and VI. which we have before cited were as much capable of giving their Votes at the Election of Knights of Shires as the best and greatest Tenant in Capite in England till it was reduced by those Statutes to 40 s. Freehold per Annum these Freeholders and Burgesses of Towns being anciently looked upon in the Eye of the Law as the only Freemen and it was these Freeholders alone who owed Suit and Service to the County Court and were amerced if they did not appear This being premised and sufficiently understood will give us a very good account why Copy-holder and Lease-holders for years do not give any Votes at Elections of Knights of Shires and yet the Parliament may still continue the Representative of all the Freemen of the Nation as the People of Rome and the Territories about it were of all the Romans though there were a great many Liberti and in Inqui lini who sure were Freemen and not Slaves and yet had no Votes in theirs Comitiis Centuriatis or general Assemblies of all the Roman Citizens But that the Liberi homines Libere Tenentes de Regno must take in more than your Tenants in Capite the Doctor himself is at last forced to confess in his Glossary notwithstanding his maintaining the contrary in the body of his Book viz. that the Liberi Homines Libere Tenentes mentioned in Iohn's Magna Charta were not only the Tenants in Capite but their Retinue and Tenants in Military Service also and whom he there supposes to have been then the only men of Honour Faith and Reputation in the Kingdom and if so might certainly have been chosen Knights of Shires as well as any of the Tenants in Capite though this is but Argumentum ad Hominem for the truth is that the Mesne Tenants by Military Service were not the only men of Faith and Honour in those times since it is certain the Kings Tenants in Peâ—yt Serjeantry and of some Honour or Castle or else his Tenants in Socage besides those who held of other Mesne Lords and the Tenants of those Abbots and Priors who did not hold in Capite and yet were very numerous were men of as much Faith and Honour as those that did since many of them possest as good if not better Estates than the Tenants in Capite themselves so that you are certainly mistaken in matter of Fact when you say the whole force and strength of the Nation lay in their hands for if you mean Legal force I have already proved that the Tenants in Capite had no Legal right to give away the Estates of their Mesne Tenants or to make Laws for them without their consents who were altogether as free as themselves Servitiis suis debitis solum-modo exceptis as Bracton tells us much less for so great a Body of Men as I now mentioned who never held of them at all and consequently could not upon your own Hypothesis be ever represented by them but if you mean a Physical strength or force though this can give no Natural much less Legal right for one Man to Lord it over another yet even this was much farther from truth since the Mesne Tenants of all sorts as well by Military Service as in Socage together with those above mentioned who never held of the Tenants in Capite at all made six times a greater Body of Men both for numbers as well as Estates then all the Tenants in Capite taken together But to conclude neither is your remark upon my Authorities from Gheller and Durham at all to the purpose for I have sufficiently proved that those County Palatines were not at first concluded within the general Laws and Taxes of the Kingdom since they had their particular Councils for both within themselves as the Supplication of the Estates of the County Palatine of Chester sufficiently declares and certainly Durham had the like Priviledges since I never heard that the Men in that County were more Slaves to their Bishop then the Cheshire Men to their Earl and tho I grant that about the confused Times of King Hen. VI. there was a great breach made on the ancient Liberties of these two Counties Palatines and if the King and Parliament made Laws for and Levyed Taxes upon them though they had no Representatives therein this proceeded partly from their being over-powered by the rest of the Nation and partly by the ease they found in being excused from the Expences of Knights of Shires and Burgesses which all the rest of the Kingdom was at that time liable to and which came to a great deal of Money Four shillings per diem being in those days more then Forty Shillings now and yet you see at last they were aware of their Errour and at their request got the Priviledge of having Representatives in Parliament of their own choosing as well as the rest of the Kingdom and if this had not been a certain right of English Subjects how came the Welsh Counties which were anciently no part of the Kingdom of England to have been admitted to choose one Knight for each County and Burgesses for each Burrough Town as well in North Wales as South Wales though both these were Conquered Countries at the first and incorporated to England by particular Statutes and therefore we have no reason to deny the Truth of Bracton's and Fortescue's assertion that no Laws are made nor Taxes imposed in England sine consensu communi â—uius Regni or as the latter truly adds in Parliamento and certainly this word common Assent must take in all their Assents who had Estates either in Land or other Riches at that time when this Law was Established But leaving this dispute about Scotland and the County Palatines pray make an end for it grows late and give me the rest of your Reasons
whole Nation as to intreat the King to admit their under-Tenants to partake of so large a share in both is so extravagant a Fancy that if it had not suited with the Doctor 's present Hypothesis he would never have asserted it in cold blood since himself affirmâ— that upon the making of King Iohn's Charter that the Earls Barons and Tenants in Capâ—â—e were the only Parties to it and that all the rest of their Tenants who were there present were only their Retinue and Tenants in Military Service which were with them at Runnemede and were hardly to be reckoned among the Freemen of the Kingdom all the rest being only Followers who helped to augment the noise and were not Law-makers for 't is not probable says the Doctor very well that those men that had the force of the Nation would permit men of small Reputation to share with them in Law-making those that had the power of this or any other Nation de Facâ—o always did give Laws and Tax the People But it seems these Great Lords and Tenants in Capite are either very stiff to maintain or else easie to give up their priviledges just as it best suits with the Doctors present occasion but the Doctor may contradict himself as much as he pleases since it is not his fault but his Hypothesis that hath lead him into it M. I confess it does seem somewhat hard at present to conceive it but we know not what reasons the Lords and Tenants in Capite might have had to desire the Concurrence of these Knights of Shires at this Juncture of time but that their coming to Parliament looks like a new Institution may farther appear from hence that the King for a good while after the introducing Knights of Shires to serve in Parliament was wont to use the liberty of Nominating the same Members of Parliament who were formerly chosen appears by a very remarkable Writ the Doctor there likewise gives us of the 28 th of the same King directed to the Sheriff of Cumberland whereby he is commanded to cause to appear at the Parliament at Lincoln on the Octive of St. Hilary the very same Knights Citizens and Burgesses who had before appeared at the last Parliament unless any of them were sick or dead From which we may collect that our Kings in those days often made use of their Prerogative of Summoning such Members to Parliament as were not then actually chosen to serve in that Parliament and for a farther confirmation of this there is still extant upon Record in the same Roll the Returns of several of the Sheriffs upon the same Writs Whereby it appears that the same Members were returned to appear in this Parliament who had before served at the precedent unless in the Case of some that were sick or dead And that our Kings had not yet a long time after lost their Prerogative of Nominating how many Knights Citizens and Burgesses they would have chosen and returned to appear in Parliament may appear by a Writ of the 45. Edw. 3. whereby one Knight for a County and one Citizen and Burgess and those too named by the King to the Sheriff were to be Summoned to appear at Winchester to do those things that are appointed in the same Writ which were likewise directed to all the Sheriffs in England and that this was a Parliament appears from hence that the Knights Citizens and Burgesses had Writs for their Expences at this Meeting at Winchester And tho in these Writs it is only expressed by these words Magnum Consilium Nosâ—rum yet from this Writ of â—ummons it is evident it did the Business of a Parliament and so no great matter for the Name F. If thâ—se be all the Arguments you have to produce against the Ancient Right of the Commons being part of the Parliament before the 18 Edw. 1. I doubt they will not be sufficient to do the business For as to this Record of the â—8 of Edw. 1. whereby the King is supposed to have had a power to cause those Knights of Shires to be returned who were Elected to serve in the Parliament before going without any new Eleâ—tion this is altogether Preâ—arâ—ouâ— for if you will but read the Writ it self and the reason of the King 's thus acting it will plainly prove the contrary For the King reâ—iteâ— in that Writ That having resolved that the Charter of Forests should be observed and that his Subjects had made a perambulation thereupon yet that he would conclude nothing in that matter without the Counsel of the Prelates Earls Barons and other Great Men and therefore desiring to hasten that business as far as he could without any delay He thereby orders him to cause to come before him to the Parliament at Lincoln the same Knights Citizeâ—n and Burgesses as were before Elected Now the King might have very good reason for it why he would rather treat with them than with any other because they had been privy to all the precedent transactions concerning this business of Forests and therfore were most likely to come to the speediest conclusion with the King in that affair as being better instructed in it than it was possible for any new Members to be who had not before been privy to the whole Affair Yet that the King never intended hereby to impose Representatives upon his People without their free Consent appears by this Clause at the end of the said Writ 〈◊〉 quâ—d Milites Câ—ves Burgenses praedicti dictis die loco nâ—â—dis omnibus interâ—ut eum plena potestate audâ—endi faciendi ea quae ibidem in praemissâ—â— ordinaeri conâ—ingent pro cummuni commodo dicti Regni Now how these Knights Citizens and Burgesses could appear in Parliament with full power of acting therein without the new Election or Confirmation at least of those whom they represented I should be very glad â—f the Doctor or your self could inform me But to come to your next Record of the 45 Edw. 3. whereby you would prove that the King in those days had a Power of appointing not only how many Citizens and Burgesses should appear in Parliament for each County but also could name the Persons that should appear therein I wonder how the Doctor could so impose upon your or his own understanding since nothing is more apparent than that this Council at Winchester to which they were Summoned was no Parliament at all but a Great Council as appears by the very words of the Writ it self which recites That whereas a Parliament lately at Westminster had given the King a Suâ—sidy of 24 sh. and 3 d. upon every Parish in England that the King being willing to be better inform'd after what manner the Levy of this Tax might be soonest performed and because it would be burthensom for all the Great Men Knights Citizens and Burgesses who came to the said Parliament to meet together again for this matter therefore he Ordained for
Inferiour had either themselves in person or else by their Representatives a place in the Saxon Witten Gemots or Mycel Synods and made together with the Laity one entire Council or general Assembly without the joynt consent of both which no Laws or Constitutions whether Ecclesiastical or Civil could be enacted for proof of this we need go no farther than Sir H. Spelman's first Volume of Saxon Councils and particularly in the Councils or Synods of Clovesho first and second that of Kingston A. D. 838. that held under King Egbert and Withlafe King of the Mercians and that of Winchester under the same King Egbert in which Tithes were first granted in all which you will find that both the Clergy as well the Inferiour below the degree of Bishops and Abbots as also the Laity below your Earls and great Aldermen and Wites had a share And that this continued so both in and after the Norman Times appears by the first great Councils we have left us that were held under the first Kings of the Norman Race M. I should be very glad to see that proved for I always hitherto believed that none of the Clergy had then any Votes in the Great or Common Council of the Kingdom but those Bishops Abbots and Priors who all held in Capite of the King alone and tho' it is true there was also a Synod or Convocation of the Clergy often held at the same time when the Common Council of the Kingdom was assembled yet was it no part of that Council and as the Clergy had nothing to do in the making of Temporal Laws so had the Laity no hand in the making of Ecclesiastical Canons or Constitutions for the Popes Legate or Arch-Bishop of Canterbury often held these Synods at other times when the Common Council of the Kingdom was not assembled at all and thus it continued till the 25th and 26th of Henry the 8th when the King was first by the Clergy in Convocation and afterwards by the whole Parliament recognized and declared Supreme Head of the Church of England under Christ and from that time the King reassumed the Power which the Pope had before usurped and his consent alone under the great Seal is the only Ratification of all Canons or Ecclesiastical Constitutions passed in either of the Convocations of Canterbury or York at this day F. I grant that for between three hundred and four hundred years the matter of fact hath been as you say but that it was not so from the beginning is also as certain for first in the Saxon times before the Popes Usurpation came in it is evident from the Councils or Synods I have now cited that the King had no more power to make or confirm any general Ecclesiastical Laws or Constitutions without the consent of the Wittena Gemot or Mycel Synod consisting of the Clergy as well as Laity than he had to make Temporal Laws without it So far were they in those times from having any notion of any personal Supremacy in the King in Spiritual more than in Temporal matters and that this continued so till the Pope did not only usurp upon the King 's Right but that of the whole Kingdom in general may appear by those Memorialâ— we have left us of such common Councils or Synods in the Reigns of our first Norman Kings For the Proof of which I shall begin with the Reign of William l. in whose 14 th Year the Priviledges of the Abby of Westminster were Confirmed by that King in a Common Council as well of all the Clergy as Laity of the whole Kingdom as may be proved by a Charter still to be sound at large in the Old Charâ—ulary of the Abby of Westminster now in the Corronian Library Collected by Sulcardus an ancient Monk of that Abby the Conclusion of which Charter of Priviledges makes it very plain of what Members this Council then consisted and who gave their Consents to the Acts of it which pray read In solemnitate Pentecostâ— haebito consilio in celeberrino loco praescripti Westmonast a nostra regia Majâ—sâ—ate Conventis in unum cunctis Regni nostri Primatibus ad audiendes confirmandas quosdam Synodalis decreti causas necessarias communi consensu maxime Episcoporum Abbatum alioâ—um insignium Procerum c. Scripta est haec Charta sigillata ab ipso Regâ— supradicâ—is personis testificata confirmat auctorizata in Dei nomine c. This being one of the first and most remarkable Councils of this Kings Reign I cannot let it pass without observing First That all the chief men of the Kingdom were there as well of the Clergy as of the Laity and that the Words Primates and Proceres here mentioned are very Comprehensive and may take in many others besides your great Lords and Tenants in Capite I have already proved at our last Meeting but one Secondly Pray observe that this Charter of Priviledges tho' all of them concern meer Temporal Things is authorised Confirmed by the common Consent and Subscriptions of all the chief men as well of the Clergy as Laity from all which nothing can appear more plain to me than that in the Reign of this King the Clergy and Laity made one Common Council without whose joynt Consents nothing could be transacted in the Legislative Whether of Ecclesiastical or Civil Concernment I could give you more Instances of this kind in this King's Reign but I make haste to that of his Son William II. in whose 7th Year Eadmeâ—â—s tells us there was a Common-Council held at Rockingham about the difference between Archbishop Anselme and the King at which were present Episcopi Abbates Principes ac Clericorum ac Laicorum numerosa multitudo noâ— that by Principes or Chief Men may be here meant many more than your Tenants in Capite I have already sufficiently proved and that this Numerosa multitudo must mean somewhat more than those I shall prove fâ—rther by and by In the long Reign of Henry I. I could give you many Instances of this kind buâ— let these suffiâ—e In the 7th Year of this King Bromton tells us in his History speaking of the Council in which this King gave up his Right of Investituâ—es Clero Populo ad Concilium Londoniae congregato and who this Clerus and Populus then were he immediately explains himself thus Astantibus Archiepiscopis Episcopis caeteraq multitudine maxima Procerum Magnatum under which words I have already proved that divers others besides your Tenants in Capite might be comprehended and their great number shews them to have been more than those But tho' this Author does not here expresly say it yet that the Inferiour Clergy were likewise at these Councils appears from Sim. of Durham and the Câ—ntinuator of Florence of Worcester A. D. 1126. being the 25. of this King where they both make mention of a Synod or Council held at London at which were
Assembled the Archbishops Bishops Abbots c the Pope's Legate presiding over the Clergy and besides these cum innumera Cloi Populi Multitudine and the Continuator of Florence shews us the manner of their giving their Consents to those Constitutions as well Civil as Ecclesiastical there made and Published they being proposed with a Placet vobis and the Answer to them is Plaecet Placet Placet thrice repeated which is very like the Form still observed in the Bishops and Lords giving their Consent to all Matters proposed in their House by saying Content So likewise the Continuator of Florence in Anno Dom. 1127. being the 27th of this King mentions such another General Council or great Synod wherein William Archbishop of Canterbury Presided over the Clergy and after the recital of all the Superior Clergy as before he thus proceeds Confluxere quoque illue i. e. to Westminster magnae multitudines Clericorum Laicorum tam Divitum quam Mediocrium sactus est Conventus inaestimabilis sedit etiam tribus diebus acta sunt ibi de negotiis saecularibus nonnulla quaedam quidem determinata quaedam dilata quaedam vero propter nimium aestuantis turbae tumultum ab Audientia judicantium proâ—â—igata And tho' the Author gives us the Ecclesiastical Constitutions only yet it is plain from him that Civil Matters were also transacted in this very Council which consisted as well of the Superior as Inferior Clergy as also of the Nobility and Commons which are all expressed under the general words of Divitum Mediocrium and resemble the Phrases of the Majores Minores and the des Greindres des Meindres mentioned in the Statutes of Marlbridge and Glocester which words were debated at our last Meeting In the Reign of K. Stephen there were also several Councils held of the same sort and particularly that of his Third Year in which was granted a Charter of Confirmation of this Kings of the Priviledges of the Abbey of Westminster which is also to be found in Sulcardus's Chartalary above-mentioned wherein after the general words of habito universali totius Angliae consilio and a mention of the Pope's Legate who Presided over the Clergy It follows thus â—ffuerunt etiam Comites Regni mei Barones quamplurimi innumera Cleri Populi multitudo qui his omnibus interfuerunt Religioso favore voluntatem Assensum Authoritati nostrae paginae Privilegio praebuâ—rent c. So likewise in an ancient Manuscript Chronicle of the Abby of Ely under A. D. 1139. being the 4th Year of K. Stephen there is a remarkable Passage when speaking of a great Council then held at London he expresses it in these Terms Concilio adunato Cleri Populi and then explains of what Members these did consist viz Episcoporum atque Abbatum Monachorum Clericorum Plebisque infinitae multitudinis Now pray give me leave to make some Observations from these Passages in all these ancient Charters and Historians that besides these Bishops Abbots Earls and Barons of the Kingdom there were also an innumerable Multitude of Clergy and People or as the Ely Chronicle words it an infinite number of Clerks and Commons Now pray tell me what can be meant here by all these put distinct from the rest of the higher Orders but the inferior Clergy as the Deans Arch-deacons and Procurators of the Chapters of Cathedral Churches as also those of the secular Clergy of the whole Diocess And who can be meant by this infinite Multitude of People or Plebis which naturally signifies the common People distinct from the higher Nobility but the most considerable Free-holders or Lords of Manners whether Tenants in capite or not under the degree of the higher Nobility together with the Citizens and Burgesses of Cities and Towns and who came not only as idle Spectators since the Charter I last cited expresly mentions that they were not only present but also gave their Assents to this Charter of King Stephens M. And may I not with as good reason ask you why these words Populus and Plebs may not in the Historical barbarous Latine of that Age serve only to express not the Multitude or Rabble or meer common People but the whole Body of lesser Tenants in capite beneath the Dignity of the greater Barons F. I will give you two very good Reasons for that First from the great Analogy there was then between the Members of the inferior Clergy and those of the inferior Laiety or Commons the former of which even all the Abbots and Priors except those few that held in capite with all the rest of the inferior Clergy already mention'd holding only in Frank Alimoign and not by any Military Tenure at all Now pray give me any sufficient Reason why the Layety should not also consist of all other Orders of Men who did not hold in capite neither and by whom I do not mean the meer Vulgar or Rabble tho' Freemen of Free-holders of small Estates but the most considerable Free-holders or Lords of Mannors in England or else the Knights of Shires who I suppose represented not only themselves but their inferior Tenants whether Copy-holders or for Term of Years as also the Representatives of all the Cities and Borough Towns in England Now these might together with your Tenants in capite make so great an Assembly as might very well deserve the Title with an easie Hyperbole of Infinita or innumera multitudo as our Ancient Historians express it Whereas your Drs. Tenants in Capite could never in these first Times after this Conquest amount to so great a Multitude not being by his own Confession above 700 Persons besides the Bishops Abbots and Priors who did not make above 100 more which could never deserve the Title of an infinite and innumerable Multitude M. I must confess that neither your Notion nor your Authorities to prove it do any way satisfie me for in the first place your Argument from the Analogy between the Clergy and Layety who you say made up this Assembly does not hold for tho' I grant there might be in that part of it which we call the Convocation and was then called the Synod all the Bishops Abbots and great dignified Clergy-men nay Procurators of the inferior Clergy too if you please yet were not these who I grant were not Tenants in Capite Members of the great Council of the Kingdom but a distinct Assembly from it which treated only of Spiritual Matters and together with the Bishops and Abbots made Ecclesiastical Canons as the two Houses of Convocation do at this day yet medled not at all in Matters of a meer Civil or Temporal concern any more than the Lay Council could meddle with Spirituals and to let you see that this was true it is evident beyond dispute that this Ecclesiastical Synod was often assembled by the Authority of the Pope or Archbishops of Canterbury and York when the Common
translates the Clergy and Commons together with the Nobility being summoned And in 1 of Richard I. R. Hoveden also tells us of a great Council held at Pipewel Abby in Northamptonshire where the Archbishop of Canterbury produced a Charter of King William I. Coram Rege Vniversis Episcopis Clero Populo And an ancient Charter of primo of King Iohn now in the Archbishop of Canterbury's Library entituled Charta Moderationis seod magni sigilli recites the said King to have been Crowned Mediante tam Cleri quam Populi unanimi consensu savore and tho the rest of his Reign was Turbulent yet the Author of the Manuscript Eulogium quoted by Mr. Selden in his Titles of Honour mentions a great Council at London in the 16 th Year of King Iohn where the Archbishop of Canterbury was present Cum toto Clero tota secta Laicali i. e. says Dr. Heylin in the same place The Clergy of both Ranks and Orders with all the Laity called here Secta Laicalis and the Lords and Commons had then their places in Parliament and the Dr. proceeds thus and in possession of this Right the Clergy stood when Magna Charta was set forth by King Henry the 3 d. Wherein the Freedom Rights and Priviledges of the Church of England of which this evidently was one was Confirmed to them i. e. the whole Clergy in general I have here shewed you what Dr. Heylins sense was to let you see that a Person of great Learning and a high Churchman thought it no Heresie to be of our Opinion and to maintain as he does all along in that Chapter that the Inferior Clergy and the Commons were a Constituent Part of the Common Council or Parliament long before the 49 th of Henry 3 d and that the Inferior Clergy continued to be so till the Reign of Henry the 4 th at least But that their Consents was also anciently asked in the making of Laws we need go no farther than the Authority I have now given you from the Continuation of Florence of Worcester And farther that they were once a part of this great Council or Parliament besides the Testimony of the Modus tenendi Parliamentum who tho he be exploded as an ancient Author yet certainly is a good Witness for his own time viz. that of Edward the third where the Procuratores Cleri are reckoned among the Constituent Members or States of Parliament which is also confirmed by the two first Writs of Summons we have left us on the Rolls viz. the 23 d of Edward I. where in this Clause of Praemunâ—entes Clerum is particularly exprest which pray read from your Drs. Answer to Mr. P. Praemunientes Priorem Capitulum Ecclesiae vestrae Archidiaconos totumque Clerum vestrae Diocaesis facientes quod iidem Prior Archidiac in propriis Personis suis dictum Capitulum per duos Procuratores idoneos plenam sufficientem potestatem ab ipsis Capitulis Clero habentes una vobiscum intersint modis omnibus tunc ibidem ad tractandum ordinandum faciendum nobiscum cum coeteris Praelatis Proceribus aliis Incolis Regni nostri qualiter sit hujusae modi periculis obviandum viz. The dangers in the Writ mentioned to be threatned from France and that this was not the first time this Clause of Praemunientes was inserted in the Writs of Summons to Bishops might be easily proved had we all the Writs of Summons before the 23 d of Edward I. as well as since But we may hence observe that the Inferior Clergy are not onely summoned to treat with the Prelates but are as well as they here authorised to Treat Ordain and Act with them and the Lords and Knights Citizens and Burgesses for so your Dr. himself here in the Margin translates Aliis Incolis Regni and how they could thus Consult and Act with them if they had not beeâ— then as well as the Prelates a part of the same Body of the great Council or Parliament of the Kingdom I confess surpasses my Capacity to understand nor is this Clause found in this Writ alone but is also in most other Writs of the Bishops Summons to Parliament as low as our own times and that these Writs were not to Convocation but Parliament appears in Pryns Parliament Register plainly by the Letters of Procuration made by the Prior and Chapter of Bath to William Swynham and Iohn de Merston appointing them to appear and Act for them as their Lawful Procurators in the Parliament summoned Ann. Dom. 1299. being the 27 th of Edward I. which is of a different form from another Letter of Procuration of the same Prior and Chapter Ann. Dom. 1295. 231. Edward I. to their Procurators therein named to act for them in the Convocation then summoned at Westminster the same difference is also observed in all the Writs of Summons to Convocation different from those whereby the same Persons are summoned to Parliament the former being directed onely to the two Archbishops or their Vicar Generals to Summon all the Bishops Abbots Priors and Clergy of their respective Provinces without any particular Writs issued to any other Bishops Abbots Priors or Clergy-men as in Summons to great Councils or Parliaments wherein there are commonly particular Orders to the Bishop to warn all the Inferior Clergy in the manner but now mentioned as Mr. Pryn very well observes in his first part of his said Parliamentary Register where you may see there is a Writ of Summons to Parliament of the 31 st Edward 3 d to the Archbishop of Canterbury reciting that he intended a Parliament for divers arduous and urgent Businesses concerning Himself and Crown and the necessary Defence of the Kingdom and Church of England And then proceeds thus Et quia Negotia praedicta perquam Ardua sine Maxima deliberatione tam Praelatorum Cleri quam Magnatum Communitatis ejusdem Regni c. and therefore it behoved him to Summon the said Clergy Great Men and Commons and then requires him to summon all the Bishops Abbots and Deans and Priors and Arch-deacons to appear personally and the rest of the Clergy by two Procurators with full Power ad tractandum consulendum super praemissis una vobiscum ad consentiendum Illis quae tunc ibidem super dictis negotiis divina savente Clementia contigerit ordinari M. But what can you say to their being omitted to be summoâ—ed in divers Writs to Parliament as appears in Pryns Register you now cited and from whence himself has there made this Observation That there is no Clause of Praemunientes c. in any Writs of Summons to Councils of State but onely to Parliaments and that not always but at the Kings Pleasure Which shews plainly that tho they were sometimes summoned as a part yet were certainly no Essential Constituent part of this general Council since they were omitted in so many of them
became less necessary we must have recourse to the Bull of Popâ— Boniface the 8 th in the 24 th of Edward I. by which he forbad all the Clergy of the Western Church as well Superior as Inferior to give any more Taxes of Subsidies to Temporal Princes without his Holinesses Licence whereupon the King summoned the Bishops and Clergy to Parliament at St. Edmunds-Bury in the 24 th of â—is Reign where when they then reâ—used to grant him any supplies he then as all the Historians tell us held his Parliaments at Westminister Cum Baronibus suis excluso Clero without either Bishops Abbots or Inferior Clergy which was the first Precedent of this kind that we ever read of in this Parliament the King with the consent of the Lay Lords and Commons seized all the Temporalities of the Clergy as well Bishops as others and put them out of his Protection untill they were forced to redeem themselves by paying a 5 th part of their Moveables for doing of which they were afterward forced to procure the Popes Absolutions some of which Mr. Pryn has given us in this said Register and yet for all this the Pope maintain'd this Power over the Clergy for the future so that they could not be taxed without his express License which since it could not always be obtained no wonder if our Kings did more frequently omit summoning any more than the Bishops and Abbots who were bound to appear in Parliament by their Tenures and so left out all the Inferior Clergy as useless the main business and cause of their summoning to Parliament viz. giving of Money being now taken away by the Popes usurped Power tho whenever his Licence was obtain'd yet that their own express Consents in Parliaments or Convocation was necessary appears by that Passage in the Annals of Burton in Anno 1255. already cited when the Inferior Clergy being extravagantly opprest between the Pope and King they sent express Messengers when they met in Parliament who were to set forth their greivances to his Holiness I have given you as good an account as I am able how the Inferior Clergy which as well as the Superior did once make a Constituent part of our great Councils before the Conquest nay for above 200 Years after did at last cease to be so partly by the prevailing Power of the Bishops partly by the Usurpation of the Pope tho chiefly by their own silence and consent not complaining of their want of Summons to Parliament as long as they could 'scape scot free and all the rest of the Kingdom pay Taxes notwithstanding which the clause of their Acting and Consulting with all the rest of the Estates in Parliament still remaining in the Writs of Summons is a sufficient Monument to Posterity to prove their ancient Right And the Clergy of the lower House of Convocation was so sensible of this that among certain Petitions by them made to Dr. Cranmer then Archbishop of Canterbury and the rest of the Prelates in the higher House of Convocation in the Reign of King Edward the 6th the 2 d Article of which runs thus Also that according to the ancient Custom of the Realm and the Tenor of the Kings Writ for summoning of the Parliament which now and ever have been directed to the Bishop of every Diocess the Clergy of the lower House of Convocation may be adjoyned and associate with the lower House of Parliament or else that all such Statutes and Ordinances as shall be made concerning all matters of Religion and causes Ecclesiastical may not pass without the sight and assent of the Clergy and there is in the same place a second Petition as also a Paper of Reasons offered to Queen Elizabeth and after to King Iames to the same effect And lastly to shew you that the Government of the Church and State of Scotland was anciently all one and the same in respect of their Clergy as well as Laity with that of England in their great Councils or Parliaments appears by the Agreement between King Edward the â— and the States of Scotland concerning the Marriage of his Son Prince Edward with the Princess of Norway then Heiress of Scotland which is publisht at large in Mr. Pryns 1 st Vol. of the Popes Usurpation where you will find this Agreement to have been made between the said King Edward ex una parte venerabiles Patres custodes scil Scotiae Episcopos Abbates totum Clerum nobiles viros Comites Barones totamque communitatem Regni Scotiae ex altera de matrimonio contrabendo c. From whence you may observe that as the same stile was observed there in the Titles of their general Councils or Parliaments as with us and as the Inferior Clergy there put after the Bishops and Abbots did not hold in Capite but frank Abnoign in that Kingdom So likewise by the same Analogy between the lowest Temporal State with the Spiritual the Commonalty of Scotland here stiled Communitas Scotiae could not then consist onely of Tenants in Capite as your Dr. and those of this Opinion suppose it did M. I must confess you have shewn me more for the Inferior Clergies being once a Constituent part of the Parliament than ever I knew before I will take time farther to consider them but that the word Populus must needs then take in any more than the Tenants in Capite I much doubt since the other word Plebs which you so much insist upon from the old Book of Ely signifies no more than Populus which as the Dr. shews us in his Glossary In it self signifies neither Great nor little People but only Laity and therefore as it is used and restrained signifies either the Lay Plebs or the Lay Magnates as I can shew you by several Examples as particularly out of Mat. Westminster Ann. Dom. 1295. 23 d Edward I. where speaking how the Popes Legates were received in England who came to make up the differences between England and France He thus relates their Reception Quos in Regnâ— Angliae applicatos excepit Plebs debito honore accita per Regem apud Westmonasterium Primatum Optimatum suorum Caterva Here the Plebs were the Kings Great or Chief Men that is the Earls and Barons which he had called to Westminster who so honourably received these two Cardinals So likewise the same Author Ann. Dom. 1297. 25. Edward I. The King and Barons being at some difference about the Observation of Magna Charta and the Charter of Forrest speaking how the King declared that he intended to observe those Charters after this he relateâ— that the King thereupon required to be given him by the Incolae or Inhabitants the eighth Penny and says thus Articulos in praedictis Chartis Contentos innovari insuper observari Rex Mandavit exigendo pro hac Concessione ab Incolis Octavum denarium sibi dari qui mox Concessus est a Plebe in sua
that that Dr. has with so much artifice put upon them still using them like Charms to bewitch and impose upon his unwary Readers especially since a right Notion of these words is absolutely necessary for the right understanding the true sense and meaning of our Ancient English Historian 〈…〉 after all this pother the Dr. makes about the signification of those words Populus Plebs Vulgus as synonimous as he grants them to be they must all signifie the whole Body of the People as well the Commons as the Lords represented in Parliament by his own confession or else I leave it to your self to consider who of the two is guilty of levelling Notions your Dr. or Mr. P. since one does but allert with the general consent of Ancient and Modern Writers that the words Barones and Baronagium Angliae did anciently take in more than the Lords and Tenants in Capite And the Dr. straight calls him a man of Levelling Principles and that jambles the Commons together with the Lords whereas your Dr. can when he pleases make the words Plebs and Vulgus to to signifie the great Lords and Tenants in Capite contrary to the subject matter on which he discourses and to their Genuine signification either in Ancient or Modern Latine M. I must consess you have now told me more than I ever yet heard or read of or indeed thought could have been urged for the Inferior Clergies having been once a part of the Civil as well as Ecclesiastical Council of the Kingdom and I will consider farther of it But in the mean time let me tell you you have not been yet so clear in your Explanation of the other opposite word Populus for admitting I should grant you that there were in some sort Commons in Parliament as represented by the lesser Tenants in Capite who were not Lords yet does it not therefore follow that there must have been another rank or order of Persons beneath or different from them since as I said it is but how 't is only the Custom and Law of each Countrey that can determine what is the Community or Representative Body of the People so that there is no such certain Analogy between the Clerus when taken for the Inferior Clergy and the Populus when taken for the lesser Nobility or Tenants in Capite Since in Scotland tho' their great Council or Parliament might consist of the Abbots and Inferior Clergy as with us who did not hold in Capite yet you cannot deny but that the Temporal Estate or Layety at least of late Ages wholly consisted of the Earls Barons Lairds or smaller Barons together with the Burgesses of Royal Boroughts all which held in Capite and for ought as I can see from any clear Proofs you have brought to the contrary did so from Times beyond all memory and so it might have been in England too for ought as I know for tho' you have taken a great deal of pains to Answer the Dr's and my Arguments against the Tenants in Capite being the Representatives of the whole Kingdom in Parliament before the 49th of Henry the Third and 18th of Edward the First and also to prove that the words made use of in our ancient Historians Records and Acts of Parliament are of a more comprehensive signification than to be confined to them alone But you have not as yet proved that these Gentlemen who you suppose to have had Places in our great Councils besides the Tenants in Capite were Knights Citizens and Burgesses or whether all the Lords of Mannours or great Freeholders in England appeared there in person for themselves and their under Tenants therefore I pray be a little more clear in this point and shew me some Authorities that the Knights of Shires Citizens and Burgesses have been always constituent Members of Parliament ever since the Conquest for methinks you waver in this Matter and sometimes you seem to assert the former and sometimes the latter F. I confess it is not my humour to be positive in any thing that is in the least doubtful or obscure and therefore as I will not maintain that Knights of Shires always a constituent part of Parliament before your Conquest or presently were after tho' it is positively asserted by the Author of the Modus tenendi Parliamentum since the Antiquity of that Piece is justly questioned by Mr. Selden and other Modern Antiquaries so on the other side I shall not assert that they were not there at all but this much I think I am able to prove that they were Summoned to Parliament long before the 49th of Henry the Third or 18th of Edward the First But as for the Cities and Boroughs that they had their Representatives in Parliament at or presently after your Conquest I think I can prove from as undeniable Testimonies as can be expected Since all the most ancient Rolls and Records of great Councils and Parliaments are long since lost and destroyed Yet to shew you that we have some very ancient Authors that seem to mention not only the Citizens and Burgesses but Knights of Shires to have been summoned before the times you insist upon and if it prove so whether they were there from the very Time of the Conquest is not material since if I confute your and your Dr's Opinion of the 49th of Henry the Third and 18th of Edward the First I carry the Cause and you may then invent if you can some other Epocha whereon to fix their first appearing at our great Councils I shall therefore give you another Quotation out of the same old Monk Sulcardus which immediately follows the conclusion of the Charter of K. William the First to the Abby of Westminster but now cited and it has been made use of not only by Mr. P. in his Ancient Rights of the Commons c. but by Sir William Dugdale himself in his Origines Iuridiciales as also by the Author of Argumentum Aâ—tinormaunicum to prove the Commons to have been summoned to a great Council in the 9th Year of K. William the First Anno Dom. 1075. the words as cited in Sir William Dugdale are these That after the King had Subscribed his Name to this Charter with the Sign of the Cross adding many of the Bishops Abbots and Temporal Nobility instead of Cum multis aliis hath these words Multis praeterea illustrissimis virorum personis Regni Principibus diversi Ordinis omissis qui huic Confirmationi piisimo affectu testes â—autores fuerunt Hii autem illo tempore à Regia potestate diversis Provinciis urbibus ad universalem Synodum pro causis cujuslibet Christiane Ecclesâ—e audiendis tractandis ad praescriptum celeberriumum Coenobium quod Westmonasterium dicitur Convoceti Now I shall only observe from this Author that Mr. Selden in his Titles of Honour and Sir Henry Spelman in his Glossary do render Provincia for a County or Shire M. I pray give me leave
produced against the Drs. Opinion and I should be throughly convinced could you shew me any Writs of Expences for the Knights Citizens and Burgesses who appeared at this Parliament F. I hope you will not averr against an express Record tho the Writs of Expences for that Year are lost being never entred upon the Roll by the Omission of the Clerks who as Mr. Pryn acknowledges oftentimes neglected the Entries of Writs of Summons themselves as well as of Expences but if this were any material Objection then there should have been no Commons summoned to any Parliament from the 49 th of Henry the 3 d. to the 28 th of Edward the first when the fist Writs of Expences except those of the 49 th of Henry the 3 d do first appear upon the Rolls and so you must then go from the Drs. new Notion of the Commons being again summoned in the 18 th of this King but to shew you that these expences for the Knights Citizens and Burgesses could be no new things pray peruse the Clause in this second Writ de expensis Militum Burgensium of the 28 th of Edward I. we have upon the Rolls the Writ is to the Sheriff of Sammershire to pay to the Knights of that County Venientibus ibidem nobisoum de diversis negotiis nos Populum Regni nostri specialiter tangentibus Rationabiles expensas suâ—â— in veniendo ad nos ibidem morando inde ad propria redeando and now observe what follows prout alias in Casu Consimili furi consuerit Now pray tell me how this last Clause could ever be true if the Knight of Shires Citizens and Burgesses had never been summoned to Parliament since the 49th of Henry the 3 d which was but 32 Years or the 18 th of this King but 10 Years before this Writ was published all over the Kingdom M. I confess what you now say seems to carry some weight with it but yet in my Opinion falls far short of a Prescription since a thing might be said to be done as in like Cases was accostomed tho it had never been practised above 20 or 30 times F. I see neither you nor your Dr. by Reason of your different imployments had ever any true Knowledge of the Nature of Tenures and Prescription according to the Laws of England which He is not to be blamed for had he not taken upon him to be so great a Master in both but I hope he will for the Future remember that old Adage ne sutor ultra Crepidam therefore to set you Right for the future you must know that the Knights Citizens and Burgesses have ever claimed being summoned to all Parliaments by Prescription as I shall prove by and by but as for that part of it called Custom my Lord Cookâ— tells us in his Notes upon Littleton That in every Custom there be two Essential parts Time and Usage Time out of Mind and Continual Peaceable Usuage without lawful Interruption Now the Commonâ— have in all times beyond the Memory of Man challenged to have enjoyed both those Essential parts of Common Law or general Custom So that these words Praut Câ—su'Consâ—mili consuevit must be by Implication of Law extend beyond the times of Henry the 3 d and Edward the 1 st And for proof of this I shall shew you what claimes the Commons have made to this Usage from time immemorial therefore I shall begin with Mr. P's first Argument in his Rights of the Commons asserred Where the Burgesses of St. Albans in their Petition to King Edward II. in Parliament A. D. 8. Say that they Sicâ—t caeteri Burgenses Regni ad Parliamentum Regis when it should happen to be summoned Per duos Comburgenses suos venire debeant prout totis retroactis temponibus venire consueverunt tam tempore Domini Edwardi nuper Regis Angliae patris Regis Progenitorum suorum as in the time of Edward II. Sâ—mper ante instans Parliamentum c. and farther declare that the Names of such Burgesses coming to Parliament were always inrolled in the Rolls of the Chancery notwithstanding all which the Sheriff of Hertford at the Procuration and favour of the Abbot of St. Albans and his Council refused Burgenses praedictos praemunire sou nomina corum 〈◊〉 prout ad ipsum pertinuit c. and therefore they pray Remedy the King and Councils Answer whereunto was thus Scrutentur 〈◊〉 c. de Cancellariâ— si temporibâ—s â—rogenitorum Regis Burgenses praedicti solebant Venire vel non tunc siat t is supeâ— hoc Iustitia vocatis evocandis si necesse suâ—vit Where by the words totis retroactis temporibus c. must be understood that they and their Predecessors were always accustomed to send two Burgesses to Parliament in all former Ages not only in the time of Edw. I. but his Progenitors therefore in King Iohn's time his Grand-father at least and so long before the 49th Hen. III. M. I confess the Gentlemen of your Party make a great deal of Noise with this Quotation but if it be strictly lookt into I believe it will prove of no such great consequence as you would make it For Mr. P. hath concealed the main Cause of these Burgesses pretending a Right of sending Members to Parliaments and therefore 't will not be amiss to give you the rest of it at large Ad Petitionem Burgensium villae de Sancto Albano suggâ—rentium Regi quod licet ipsa tenent villam praedictam de Rege in capite ipsi sicut caeteri Burgenses Regni ad Parliamenâ—a Regis cum ea suâ—â—noniri contigerit per duos Comburgenses suos venire debeane prout totis retroactis temporibus venire consueverunt pro omnibus servitiis Regi faciendis c. By which words as the Dr. very well shews us it is evident that the Burgesses of St. Albars claim'd not nor prescribed to come to Parliaments as meerly from a Burrough but as from a Town that held in Chief of the King and this Service was incident to their Tenure and was such as the King's Progenitors had accepted in lien of all Services due by reason thereof And farther the Answer to this Petition is remarkable which amounts to no more than this that if it did appear by the Roth of Chancery that the Burgesses of St. Albans were wont to come to Parliaments in the time of the King's Progenitors then such as have been called i. e. to Parliament should be called when there was necessary for it Hence 't is clear the King and his Council were equally judges when it was necessary to call them and for them to come as they were of their Rights and Pretences to come F. I very much wonder a Gentleman of your Understanding should be so much imposed upon by such weak Inferences for in the first place it is a Great Mistake in matter of factâ— that these Burgesses of St. Albans claimed to come
opulent Cities such as Canterbury Lincoln Exeter c. who were not made Cities by having Bishops Sees annoxt to them but were such long before Christianity was preacht to the English Saxons as I have already proved nor could this Power of the Sheriff extend to the Cinque Ports whose Rights of sending two Barons for each Port was sure very well known and setled in the 49th of Henry the 3d as appears by these general Words at the foot of the Writ similiter mandatum est singulis Portubus pro se without naming them in particular so that if it had not been sufficiently known what Ports were thus to send all the Sea Port Towns in England might have had Precepts sent them as well as the Cinque Ports who had at first their Summons directed to the Barons and Baylifts in general nor is there any Writ found directed to the Warden of the Cinque Ports to Summon each of them to send Burgesses till the 17th of Edward ad as Mr. Prin here shews you so that in all these Elections and Returns being above 20 the Sheriff could have no Power and therefore did not depend upon his good Will and Pleasure alone as this Author would have it But to come to that which Mr. Prin chiefly insists on viz. the putting in and leaving out divers of the smaller Burroughs in so many Kings Reigns and which he attributes wholy to the favour or partiality of the Sheriffs I shall first argue against the improbability of the Notion and then shall Confute it by plain proofs from Mr. Prin himself First It is not at all likely that the King should ever trust the Sheriff with this great Prerogative of making what or as many Burroughs as he pleased in a County Since that could not be then done without some particular Writ or Charter for otherwise this had made the Power of the Sheriffs more Arbitrary than that of the King himself it he had in those Reigns you treat or no other Rule to go by than his own humour passion or interestâ— nor would the King have ever endured such an Innovation since it would have been in the power of the Sheriffâ— to have made as many Burroughs as they pleased and to have encreased the House of Commons to an unreasonable bulk wineh was against all Rules of Policy for him to suffer Lastly Neither would the House of Commons themselves have suffered this Encroachment for since most of the Cities and Burroughs of England sent Members in Parliament before this Innovation of the Sheriffs began they would never have quietâ—â— permitted new Men to be sent in among them from obscure places they never heard of without either turning them out themselves or complaining to the King in Parliament of so great an Abuse M. But what can you say against direct matter of fact has not Mr. Prin here plainly proved to you that the Sheriffs did in those times exercise an Arbitrary Power in this matter returning some Towns out of ill will only to charge them with Electing Burgesses to make them liable to the payment of wages to them omitting others also out of spight as appears by this Petition of the Towns-men of St. Albans you have now cited a great many of which were so long omitted that they came at last to lose all right of sending any more till it came to be again revived of late years as in the Case of divers Burroughs whose names Mr. Prin has here given us who by Orders of the Long Parliament in 1640. again sent Members to Parliament after some Ages intermission Pray now tell me what other satisfactory account can be given for the making of so many new Burroughs and omitting so many old ones but the Arbitrary power of the Sheriffs who then took upon them to do what they pleased in this matter as appears by so many Instances he has here given us F. Well since the improbability I may say impossibility of the thing will not satisfie you I doubt not but to shew you that tho' the Sheriffs might sometimes abuse the trust committed to them in sending Precepts to the Burroughs that were not liable to them yet that for all this they never exercised that Arbitrary Power you fancy of making and unmaking what Burroughs and consequently as many Parliament-men as they pleased Now to prove this from Mr. Prin's own Instances and Authorities I shall reduce all the Causes of this Abuse to these Heads 1. The Favour or Malice of the Sheriffs 2. The Ambition of the Neighbouring Gentlemen who desired to get to be Elected at such Burroughs Or lastly from the desire of those Towns themselves to get this priviledge among them of Electing and Returning Members to Parliament To begin with the first of these it could never proceed from the Favour of Sheriffs to such Towns because the charge of wages to the Burgesses was then so great when two shillings a day was more than ten shillings is now that they could never look upon it as a favour to have this charge imposed upon them unless it were some few who were very large and in a rich and flourishing condition and those always sent Burgesses to Parliament before the Sheriffs had this power committed to them as you supposed by that general Clause in the Writ of sending Summons to the Cities and Burroughs nor could the Sheriffs if they would have long continued to lay this burthen upon any Town out of Malice for if such Towns could not afford this extraordinary Charge of sending Burgesses to Parliament they might have 'scaped it whenever they would either by making no Returns at all to their Precepts sent them as Mr. Prin here shews in the Lists he has given us of Returns very many of them did or else they might have taken that Remedy against it which as this here Author expresly acknowledges divers Towns did who being maliciously charged by the Sheriffs to send Burgesses when both unwilling and unable and who upon their refusal to Elect returned Burgesses for them against their wills whereupon they complained to the King or Parliament of the Abuse and so were eased of this Charge and Trouble or else eased themselves other Burroughs growing very poor and unable to send Burgesses to Parliament and defray their Expences were thereupon discharged by the Sheriffs who made special Returns in their Favour and of these he gives you several Instances in his Collection of Returns for the County of Bucks or else for Poverty as in the Case of Lancaster others procured perpetual or else temporary Exemptions from the King or the King and his Council from sending Burgesses to future Parliaments and upon some one or more of these Precedent grounds they quitted waved or lost their Ancient Priviledge of sending Burgesses which they rather reputed a charge burthen and oppression than an honour and of this he gives as a remarkable Instance in Toriton in Devonshire
that Charter being lost they desire a Confirmation of it from the King whereupon He by this Commission directs a Writ of Enquiry to several Gentlemen and others therein mentioned to enquire if the said Burgesses had enjoyed all those Liberties so granted by the said Charter of King Athelstan or not which would have been ridiculous if the King and Council had been satisfied that no Cities and Burroughâ— sent any Members to Parliament under the Saxon Kings and not before the 49th of Henry the Third and this Authority is the more remarkable because Barâ—staple is one of Mr. Prin's Modern Burroughs for which he can find no Precepts or Returns earlier than the 26th of Edward the Third tho' no doubt as appears by this their Petition in the 17th of this King it had sent Burgesses to Parliament many Ages before tho' the Precepts and Returns upon them be all lost And that not only the Cities and Burroughs do thus claim by prescription but that the Knights of Shires have always claimed the same Priviledge may appear by another Petition of the Commons House extant on the Parliament-Rolls of the 51th of Edward the Third which I shall contract and put into English out of French reciting thus because of Common Right in the Roll de Commune dâ—oit of the Realm there are and shall be Elected two from every County of England to come to Parliament for the Commune of the said Counties And also the Prelates Dukes Barons Counts Barons and such as hold by Barony which are and shall be summoned by Writs to come to Parliament except the Cities and Burroughs who ought to Elect from among themselves such as ought to answer for them Whence we may conclude that the Commons then claimed to come to Parliament of Common Right that is by Common Law or general Custom of the Realm time out of mind as much as the Bishops Abbots and great Lords 2. That neither the Bishops Lords nor Tenants in Capite had any Authority to impose Taxes or make Laws for the Commons of the Counties or these for the Cities and Burroughs without their consents because they had each of them Representatives of their own Order to answer for them in Parliament M. I must confess this would have been absolutely convincing could we have seen this Charter of K. Athelstans but since the Towns-men of Barnstaple do only in their Petition among others set forth this priviledge of sending Burgesses to Parliament now who can tell whether there was any such thing in their Charter or not since they confess they had lost it Or granting it was as they set forth yet is will sufficiently evince that the right of Cities and Burroughs to send their Representatives to Parliaments was not as you suppose as ancient as the Government but had its Original from the Grants and Charters of former Kings F. As to these Objections we can have but all the proof that this Subject is capable of at such a distance of time but if I were a Jury-man in this matter I should rather believe that the Town of Barnstaple had such Charter not long before they made this Petition to King Edward the Third and that there was such Clause therein as they here set forth than that these Towns-men should be so impudent as to desire a new Charter of Confirmation from him of all their priviledges of which this of Electing Burgesses was one if there had never been any such Clause in it at all But as for the other Objection that if it were so then it appears that all the right of Cities and Burroughs sending Members to Parliament is derived from the Grants and Charters of former Kings it is very fallacious as you will find if you consider and compare the Ancient right of the Bishops and Abbots as also of all the Temporal Nobility to come to the great Council of the Kingdom which as to the first of them I proved to be as Ancient as Christianity it self among the English Saxons And as for the Priesthood and Nobility in general to have been as old as the Institution of the Government it self Now tho' you grant that long before the Conquest our Kings had the nomination of Bishops and Abbots and also the making of Aldermen Earls and Thanes who made the Temporal Nobility in those great Councils will it therefore follow that because our Kings were thus entrusted by the people with this prerogative of naming and investing Bishops and Abbots per Annulum Baculum and also of creating those great Men now mentioned that therefore all the right either Order had to appear at those Councils not only proceeded from but depended wholly on the King's good will and pleasure and that he could have chosen whether he would have named any Bishops or Abbots to vacant Sees and Abbeys or made any Aldermen Earls and Thanes or not but have changed the whole frame of the Government into an Absolute Despotick Monarchy by destroying the great Council of the Kingdom whether you believe the Clergy Nobility and People would have suffered any of those Kings to have made such an Innovation Apply this to the right of the most of Ancient Cities and Burroughs in England and see if it do not exactly agree with this parallel Case of the Bishops Abbots and Temporal Nobility since as there were Priests and Nobles who from the very first Institution of our great Councils did not owe their Original to the King but brought it with them out of Germany and to whose Suffrages the first Saxon Kings owed their Elections so no doubâ— were there divers Cities and Towns in England so considerable from the time of the Expulsion of the Britains that it was thought â—it to pitch upon them as most able to send Representatives to the great Councils of the Nation that so they might imitate their old Government in their own Countrey in which the great Cities and Towns had always a considerable share as they have in the German Diets to this day tho' the King might then as he is now be entrusted with the Prerogative of making new Cities and Burroughs with like priviledge with the old ones tho' this was but rarely practised till the Reign of King Iames I. The two Vniversities being some of the first Corporations on which he conferred this priviledge by Charter of Electing and sending two Burgesses to Parliament which power has I confess been exercised even to a grievance in the Reigns of his Son and Grand-sons so that it were to be wisht that there was a Law passed that no New City or Burrough should be made for the future without an express Act of Parliament Now I would very gladly hear what you can further say to so many weighty Authorities which I have now given you for evident it is that if they are compared and considered in series of time that neither Edw. 2d or 3d nor their Judges or Learned Council no nor the Parliaments
are the Bishops the Nobility and Civitatum delegati the Deputies or Commissioners of Towns and Cities For Sweden it comes near the Government and forms of Danemark and hath the same Estates and degrees of People as amongst the Danes that is to say Proceres Nobiles the greater and the less Nobility Episcopi Ecclesiastici the Bishops and inferiour Clergy Civitates Vniversitates the Cities and Towns Corporate for so I think he means by Vniversitates as Tâ—uanus mustereth them To which we may also add tho here omitted by this Author the Delegates of the Rusticks or Husbandmen who make a fourth Estate in the Assembly of Estates of this Kingdom And in this Realm the Bishops and Clergy enjoy the place and priviledges of the third Estate notwithstanding the Alteration of Religion to this very day the Bishops in their own Persons and a certain number of the Clergy out of every Sochen a Division like our Rural Deanries in the name of the rest having a necessary Vote in all their Parliaments And this Swedish great Council is the more remarkable because it comes very near our Constitution in England in which I proved the Inferior Clergy and the Commons not excepting the meanest Freeholders anciently had their Representatives So that it had been the strangest thing that could have been observed in all the Political Constitutioâ—s on this side of Europe if that of England tho descended from the same Gothick Original and founded according to the same model should have had no Representatives for the Commons or Plebians in their great Councils or Parliaments The Dr. here concludes with Scotland and England the former of which since you agree to have had from all times Citizens and Burgesses in their great Councils or Parliaments I need not repeat what is there since it is no more than what you your self have granted and as for England he owns as appears by the Passages I have already cited out of this Chapter that the Clergy Nobility and People were called to a Parliament held under Henry the ad at Clerkâ—nwell M I will not deny but there were Representatives of the Cities and great Towns in the great Councils or Assembly of Estates of all those Kingdoms you have now mention'd out of Dr. Heylins Treatise yet whether they were there from the very first Institution of those Governments is much to be doubted But since I have not now leasure to inquire into the Original of all these Kingdoms nor at what time each State began to come to these great Councils give me leave in the mean time to remark that all these Kingdoms except Sweden came nearer to that Constitution which we suppose to have been anciently in England and Scotland and also other Kingdoms where feudatory Tenures were observed and consequently none but the Chief Lords or Barons by Knights Service and that held of the King so that all those Foreign Councils or Dyeâ—s c. at first were all the same as consisting of Emperours or Kings with their Earls and Barons Bishops and great Officers as is evident from all the old German and French Authors and since Cities sent Deputies in Germany and Italy they were only from Imperial Cities the like I believe would be found in France and those other Kingdoms you have now mentioned but you cannot shew me unless in Sweden any Representatives elected by the Common People or Rusticks distinct from the Nobility and Gentry like our Knights of Shires in England So that I still doubt whether all the Representatives of the great Lords and other Nobility that appeared in the Councils of these Kingdoms were not all Tenants in Capite and no other F. That this is a meer surmise of yours I think I can easily prove for in the first place as for the Bishops Abbots and Clergy who still made the first Estates in all these Kingdoms nothing is more certain than that they never any of them held of the King by Knights Service and therefore could not 〈◊〉 in their great Councils by that Tenure that Institution being for ought as I know peculiar to England and introduced by your Conqueror as you your self acknowledge and as for the Temporal Nobility you will find that in France not onely those Noblemen that held of the King by Military Service but those who held in libero Alodio without any such Service at all had places either by themselves or their Deputies in the Assembly of the Estates so likewise for the Cities and Towns that sent Deputies to it I believe you will not find that any of them held of the King in Capite and to come to Germany you are likewise as much mistaken in fancying that all the Imperial Cities were Subject immediately to the Emperor before they became so for Hamburgh and Lubec were Subject to their own Princes the former to the Duke of Holstein and Sleswic and the latter to Earls of its own till at last they either purchased their Liberties they enioy from their Princes or else cast them off and were after received into the Body of the Diet by the Bulls or Charters of several Emperors and so likewise Brunswick was always a fâ—â—e City till it was united to the Empire by its own Consent I could shew you the like of several other Cities now called Imperial who held anciently not of the Emperour but either of their own Earls or Bishops tho I grant it was the Charters of the Emperor with the Consent of the Dyet that gave them a place in those Assemblies and tho it is true that in all the rest of these Kingdoms the meer Rusticks or Paisants have no Representatives in their great Councils yet this makes no Alteration in the Case if you please to consider it for the Nobility and Gentry are the only true and proper owners of the Lands of those Kingdoms all the Rusticks or Paisants being meer Vassals and in France almost Slaves to their Nobility and Gentry who as I have already said had all alike Votes in their Assembly of Estates as well those who held of the King in Chief by Knights Service as those that did not whereas it was always far otherwise in England where the meanest Freeholder was always as free as to his Person and Estate as the greatest Lord of whom he held and hence it is that we have had from all Times those of the degree of Yeomen so peculiar to England as Fortiscut in his Treatise de Laudibus Legum Angliae takes notice who if they lived on their own Lands had no more dependance on the Noblemen and Gentlemen than they have now and therefore it was but Reason that these should have their Representatives in Parliament as well as the Inhabitants of the Cities and Burroughs who had most of them a far less share in the Riches and real Estates of the Kingdom Secondly Pray take notice that in the rest of the Kingdoms of Europe except
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
of this I shall proceed with the earliest Instances of this kind after the Conquest viz. in the Time of King Richard the First during whose absence in the holy Land he had committed the Government of his Kingdom to William Bishop of Ely who abused his Power by an Arbitrary and Insolent Carriage affronting and oppressing Iohn Earl of Morton the King 's own Brother and Geoffry Arch-Bishop of York the King 's base Brother whereupon they rose up against him and having the Bishops the Earls and Barons of their side appointed the said Bishop a day to answer to his Crimes in the King's Court or great Council of the Bishops Lords and Tenants in Capite then called Curia Regis where when he refused to appear they all with one consent came to London and fought with the Followers and Adherents of the said Chancellour by the way when they came to Town Earl Iohn with the Arch-Bishops of York and Rouen with all the Earls and Barons together with the Citizens of London met in St. Paul's Church-Yard and there it was proposed that the said Chancellour should for his Evil Government he deposed and banisht the Kingdom and so he immediately was by the general Consent of the Common Council of the Kingdom so that you see the Nobility Clergy and People had then no notion of an Irresistible Power in the King and those put in Commission by him when they found their Power to grow Tyrannical and Insupportable M. But if I forget not you omit one material Circumstance in this Affâ—ir which seems to make against you which is that Arch-Bishop of Rouen and William the Earl Mareschal did at that time produce the King's Letters signed with his 〈◊〉 wherein he had appointed that they two should be associated in the Government with the Bishop of Ely and that he should do nothing without their privity and consents and of those associated with him in the business of the Kingdom and that if he offered to do otherwise he should be deposed So that it seems what they now acted was not so muchin opposition to the King's Commission as to the Bishops who had refused to obey his Commands F. I confess it was as you set forth yet this makes nothing against my Opinion since it is apparent that Arms were taken and this Resistance made by the major part of the Bishops Earls and Barons together with the Londoners before ever it was known that such Letters were written by the King And so it seems they would have done much the same thing if there had been no such Letters sent by the King at all You may also rememâ—er that all these proceedings also were approved of and confirmed by the King himself But that I may proceed in my History of Non-Resistance I come to the Reign of King Iohn his Brother who when he had refused the Arch-Bishop of Canterbury and all the Bishops Earls and Barons of the Kingdom to confirm the great Charter of King Henry the First they together with the rest of the great Men and People of the Kingdom of all degrees and conditions took up Arms and made a vast Army resolving never to lay them down till he had new granted and confirmed the Charters of Liberties and Forrests till at last the King finding himself almost quite forsaken so that he had scarce five Knights left about him he was at last forced to meet the said Bishops Earls Barons and People at Runne-Mead and there to grant them that great Charter which has been the Subject of so much discourse between us so that you see here that the Church of England in those Times if the Bishops and Clergy are the Representatives of this Church had then no notion of this Doctrine of Passiâ—e Obedienâ—e to the King 's Absolute Will and Commands M. I cannot deny the matter of fact to be as you say but yet you may remember that the same Author tells us that the Pope thought the King hardly dealt withal in this matter so that he gave Audience to the King's Ambassadors concerning the Rebellions and Injuries which the Barons of England had committed against their King and that upon a solemn hearing of the whole business and after a consultation with his Cardinals he did as Supreme Lord of Engâ—and after King Iohn's Resignation of his Crown to him by his Bull then published make void the said great Charters of Liberties and Forrests and condemn all the Barons proceedings as against their Duty and Allegiance to the King their Soveraign Lord so that it seems this was not approved of any where but by the Actors the Pope thereupon Excommunicating the Barons and Suspending the Arch-Bishop of Caâ—terbury for joyning with them F. I believe you will make nothing of this Objection for it appears from the same Author that the Pope had before this Excommunicated the King and as far as lay in his power depriv'd him of his Kingdom and absolved all his Subjects of their Allegiance so that it is plaiâ— it was not out of any true Principle or hatred of Rebellion and Resistance in Subjects that the Pope had thus acted but purely to gratifie the King at this juncture of time and to defend him in his Tyranny and breach of his own Charters because he was then become his Vassal and so he cared not how much he oppressed his Subjects because he was thereby the more able to pay him the Tribute before promised and he could also expect the more securely to extort Money from the whole Kingdom But that this Bull of the Popes was contrary to the King 's own Express Act and Agreement appears plainly by that Clause which is still to be found in a Charter under the Seal of this King and which seems to have been the Heads of the great Charter according to which it was drawn into the Form we now find it in Mat. Paris in which it is expresly provided and granted by the said King that in case he should go about to break or infringe any Clause in the said Charter and shall not amend it within the space of forty days that then Iâ—li Barones cum Communia totius Terrae distringent gravabunt nos modis omnibus quibus pouerint aut scil per captionem Castrorum Terrarum possessionum aliis modis quibus potuerint donec fuerit emendatum secundum arbitrium eorum salva Persona nostra Reginâ—e nostra Liberorum nostrorum cum â—uerit emendatum intendent nobis sient prius fecerunt So that you see here in the Judgment even of the King himself they might freely resist and take up Arms against him till he made good every Article of these Charters if violated and were not to return to their Obedience till it was amended and the like Clause almost word for word is also to be found in the conclusion of the great Charters published in Mat. Paris M. I grant the Clause is there as
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
his Father and to be Exiled from the Realm of England and that therefore the King that now is and the Queen his Mother being in so great Jeopardy in a strange Countrey and seeing the destructions and disinherisons which were notoriously done in England upon holy Church the Prelates Earls Barons and the Commonalty of the same by the said Spencers Robert Baldock and Edmund Earl of Arundel by the Encroachment of Royal Power to themselves and seeing they might not remedy the same unless they came into England with an Army of Men of War and have by the Grace of God with such puissance and the help of the great Men and Commons of the Realm vanquished and destroyed the said Spencers c. therefore our Soveraign Lord the King by the Common Council of the Prelates Earls Barons and other great Men and of the Commons of the Realm have provided and ordained c. as follows That no great Man nor other of what Estate Dignity or Condition soever he be that came in with the said King that now is and with the Queen in Aid of them to pursue their said Enemies and in which pursuit the King his Father was taken and put in Ward c. shall be impeached molested or grieved in person or in goods in any of the King's Courts c. for the pursuit and taking in hold the body of the said King Edward nor for the pursuit of any other persons not taking their goods nor for the death of any Man nor any other things perpetrated or committed in the said pursuit from the day of the King and Queens Arrival until the day of the Coronation of the said King This Act of Indemnity is so full a Justification of the necessity and lawfulness of the Resistance that was then made against King Edward the Second and his wicked Councellors the Spencers that it needs no Comment And tho' King Edward the Third took warning by the example of his Father and was too wise then to follow the like Arbitrary Courses yet Richard the Second his Grandson being a wilful hot headed young Prince fell into all the Errours of his great Grand-father and found the like if not greater Resistance from his Nobility and People for when he had highly mis-governed the Realm by the Advice of his favourites Alexander Arch-Bishop of York the Duke of Ireland and others a Parliament being called in the 10th Year of his Reign the Government of the Kingdom was taken out of their hands and committed to the Bishops of Canterbury and Ely with Thomas Duke of Gloucester the King's Uncle Richard Earl of Arundel and Thomas Earl of Warwick and nine or ten other Lords and Bishops but notwithstanding this the King being newly of Age refused to be governed by the said Duke and Earls but was carried about the Kingdom by the said Duke of Ireland and others to try what Forces they could raise and also to hinder the said Duke and Earls from having any Access to him But see what followed these violent and arbitrary courses as it is related by Henry de Knighton who lived and wrote in that very time and is more exact in this King's Reign than any other Historian he there tells us that when Thomas Duke of Gloucester and the other Bishops and Earls now mentioned sound they could not proceed in the Government of the King and Kingdom according to the Ordinance of the preceding Parliament through the hinderance of Mich. de la Poole Robert de Vere Duke of Ireland Nich. Brembar and Robert Tresillian Chief Justice and others who had seduced the King and made him alienate himself from the Council of the said Lords to the great damage of the Kingdom whereupon the said Duke of Gloucester and the Lords aforesaid with a great Guard of Knights Esquires and Archers came up towards London and quartered in the Villages adjacent and then the Arch-Bishop of Canterbury the Lord Lovat the Lord Cobham the Lord Eures with others went to the King in the name of the the Duke and Earls and demanded all the persons above-mentioned to be banished as Seducers and Traitors to the King and all the Lords then swore upon the Cross of the said Arch-Bishop not to desist till they had obtained what they came for the conclusion of this Meeting was that the King not being able to withstand them was forced immediately to call that remarkable Parliament of the 11th Year of his Reign in which Mich. de la Poole and the Duke of Ireland were attainted and Tresillian and divers other Judges sentenced to be hanged at Tyburn upon the Impeachment of the said Duke of Gloucester and the Earl of Arundel for delivering their Opinions contrary to Law and the Articles the King had not long before proposed to them at Nottingham I shall omit the Resistance which Henry Duke of Lancaster made after his Arrival by the Assistance of the Nobility and People of the North of England against the Arbitrary Government of this King being then in Ireland not only because it is notoriously known but because it was carried on farther than perhaps it needed to have been and ended in the Deposition of this King Only in the first Year of Henry the 4th there was the same Act of Indemnity almost word for word passed for all those that had come over with that King and had assisted him against Richard the Second and his evil Councellors as was passed before in primo of Edward the Third I shall not also insist upon the Resistance of Richard Duke of York in the Reign of King Henry the 6th who took up Arms against the Evil Government of the Queen and her Minion the Duke of Suffolk because you may say that this was justifiable by the Duke of York as right Heir of the Crown nor will I instance in the Resistance made by the Two Houses of Parliament during the late Civil Wars in the time of King Charles the First since it is disputed to this day who was in the fault and began this Civil War whether the King or the Parliament Only thus much I cannot omit to take notice of that the King in none of his Declarations ever denied but that the People had a right to Resist him in case he had made War upon them or had introduced Arbitrary Government and expresly owned in his Answer to one of the Parliaments Messages that they had a sufficient power to restrain Tyranny but denied himself to be guilty of it and still asserted that he took up Arms in defence of his just Right and Prerogative to the Command of the Militia of the Kingdom which they went about to take from him by force M. I have with the greater patience hearkened to your History of Resistance in all the Kings Reigns you have mentioned because I cannot desire any better Argument to prove the unlawfulness of such Resistance than those Acts of Pardon and Indemnity You cannot but confess have
against those that are Commissioned by him in pursuance of such Military Commissions and it is also to be noted that all Mayors of Cities or other Corporations were obliged by a former Statute of the 13th of this King to take the same Oath From both which Statutes and Declaration we may draw these Conclusions First That the Militia i. e. the Command of all Military Forces and War-like Affairs are declared to be wholly in the King Secondly That either or both Houses of Parliament cannot make any War offensive or defensive against him c. Pray mark that Thirdly That the contrary practice hath tended almost to the destruction of this Kingdom and that many evil and Rebellious Principles whereof this without doubt is intended for the chief have been instilled into the minds of the People c. And lastly That in pursuance thereof all persons above-mentioned were not only obliged to renounce taking up Arms against the King upon any pretence whatsoever but also against any that shall be authoriz'd by the King 's Military Commissions without any Exceptions And it is farther Enacted That all Clergy-men should be obliged to take this Oath as well as the Laity and it is likewise there ordained That all Clergy-men who were to enjoy any Livings or Preferments in the Church were likewise for the space of Twenty Years next ensuing obliged to subscribe this Declaration so that it is no wonder if the Loyal Clergy of the Church of England think themselves not only tied by the Express Rules of Scripture but also by the Laws of the Land strictly to observe this great Law of Passive Obedience and Non-Resistance Now pray see here the Doctrine of Non-Resistance in its full amplitude yea this very Doctrine declared to be the Law of this Kingdom and that by two express Acts of Parliament And can you think the Two Houses were not in earnest when they made this Declaration surely had they not been so they had been very ridiculous to jest with all our Laws and Liberties had they not been I say verily perswaded of the truth of this Doctrine by Law as well as by Scripture So that I hope you must now be forced to confess that even our own Representatives have solemnly renounc'd for themselves and the whole Nation all right of Resistance so much as defensive against those Commissioned by the King upon any pretence or occasion whatsoever and we have left us nothing whereby to defend our selves against our Kings or those Commissioned by them no not if they never so much abuse their power but the old Primitive Artillery of Preces and Lachryma F. As for what you have more than once said that this Doctrine of Resistance if carried home always ends in the Deposition and Murder of the King tho' it hath I grant sometimes happened yet that has not been always so but most often to the contrary as appears in those Resistances that were made in the Reigns of King Richard the First Henry the Third Edward the First and divers times in Edward and Richard the Second's Reign before things were driven to that extremity as they afterwards were and as I will not justifie the Deposition of those Princes tho' done by Parliament yet will I not absolutely condemn them since no Act of Parliament hath as I know ever done it And tho' it is true all the proceedings in Parliament against Edward the Second are taken off the Rolls yet was it not done by Order of Parliament but by Richard the 2d alone when he by his exorbitant courses feared to be served after the same manner but that there was in those times some Ancient Law extant which was also destroyed by that King appears by that remarkable Declaration of the Lords and Commons in Parliament sent by way of Message to the King then wilfully absenting himself from the Parliament by the Duke of Gloucester his Uncle and the Bishop of Ely who sure were too great to tell so notorious a Lye The Speech you will find at large in Knyghton beginning thus Domine Râ—x And after many Petitions and good Advices at last thus concludes which I shall give you in Latine Sed unum aeliud de animo nostro superest nobis ex parte Populi vestri vobis intimare habint enim ex antiquo Statuto de facto non longe retroactis temporibus experienter quod dolendum est habito si Rex maligno Consilio quocunque vel inepta conâ—â—macia aut contemptu seu protervae voluntate singulari aut quovis modo irregulari se alienaverit à Populo suo nec voluerit per jura Regni Statuta laudabiles Ordinationes cum salubri Consilio Dominorum Procerum Regni gubernari regulari sed captiosâ— in suis inâ—anis Confiliis propriam voluntatem suam singularem proterve exercere tunc licituâ— est iis cum comâ—uni assensu Populi Regni ipsum Regem de Regali solio abrogare propinquiorem aliquem de stirpe Regis loco ejus in Regni solio sublimare From whence you may observe that the Lords here relate to an Ancient Statute or Law then in being tho' the execution of it on the person of his great Grand-father Edward the Second was but of times not long passed and that King Richard might as well destroy the Record of that Law being not then commonly known or in private mens hands as well as he did divers other Records as appears in the 24th Article against this King wherein it is set forth That the said King had caused the Rolls of the Records touching the State and Government of this Kingdom to be defaced and razed to the great prejudice of his People and the disinherison of the said Realm c. So that nothing is more certain than that the Two Houses of Parliament at that time did look upon it as their undoubted right to Depose the King in case he violated the Fundamental Laws and Constitutions of the Kingdom tho' how this could consist with that Power which the King then exercised of calling and dissolving Parliaments at his pleasure I do not understand since it can never be supposed that a King if in full power would permit a Parliament called in his name to sit to Depose himself for Evil Government As for the Resistance made by the Two Houses against King Charles the First I shall not undertake to justifie for the Reasons already given as also because it it was not a War undertaken by the general consent of the whole Kingdom but carried on chiefly by the Puritan or Presbyterian Party For tho' the City of London and many other great Towns were for the Parliament yet it is also certain that the major part of the Nobility and Gentry of England fought for the King and were so considerable a number as to make an Anti-Parliament at Oxford so that this War could never have happened had not the King parted with the power of
the Doctrine of the Church of England but the known Laws of the Land F. I do not deny but the persons of the Kings and Queens of this Realm are and ought to be sacred and inviolable and yet no man will therefore say that they are irresistible too in all cases whatsoever as if the King for example should attempt to ravish Women or rob or murder men upon the High-way or in the Streets as the Ancient Historians relate of Nero and Commodus the Emperours and as is reported of the last King of Portugal and which was one of the reasons of the Estates of the Kingdom removing him from the Government And as our Henry the Fifth is related by our Historians to have robbed Men upon the High-way before he was King so if he had gone about to continue the same frollick after he came to the Crown I do believe his Person and all those that Robbed by his Commission had not been irresistible nor would it have been Treason within the Statute of the 25th of Edward the Third tho' he was then actually King any more than it would have been Treason had the like happened when he was Prince tho' he was expresly within that Statute and yet this would not have contradicted the Parliament◠Declaration in the 12th of Car. the 2d That neither the Parliament nor the People having Coercive Power over the persons of the Kings of this Realm since by Coercive Power must be here understood his being subject to the penalties of the Law or being called to an account by any ordinary Jurisdiction but there is a vast difference between that and Resistance for Self defence since I may use this against the violence of my Father in the State of Nature as I have already proved tho' I cannot justifie the punishment of my Father or calling him to an account as his Superiour therefore it is only in the King 's Politick Capacity that he can be said to do no wrong since you see he may personally commit the greatest Crimes imaginable tho' his person is unaccountable for want of a Superiour Power to call him to an account yet is it not so with those who act by his Illegal Commissions or Commands since having delegated the Executive part of his Regal Power to his subordinate Ministers and Officers 't is they that are accountable and punishable too by the Law of the Land in case they any way transgress or violate it by his illegal Commissions or Commands as I shall prove more at large by and by And as no War properly so called can be made against a single person but against a Man as he is aided or assisted by many others So this War against the King can only be interpreted of such Wars or Rebellion as are made against him in his politick capacity as he is King and Supream Governour of the Realm and the Commander of all the Militia thereof to Legal intents and for the defence thereof against Forein or Domestick Enemies nor was there any great fear according to the Ancient Legal Constitution of this Kingdom that this could often fall out or indeed he put in practice by the Kings of this Realm if we consider the Ancient Form of ordering the Forces or Militia of this Kingdom For in the first place I desire you to observe that by the Common Law of England before these Acts of the Militia the King himself could not but in case of Invasion or Insurrection Levy or keep on foot any standing Forces in England unless for Forein Succours which was usually by Contract with some great Lord or other Person or by Tenure against the Scotch and Welch and as for the Militia it was never reduced into Troops Companies or Regiments till the Spanish Invasion as will appear by all Acts of Parliament in the Statutes at large where Acts for the Assize of Arms were made only for Men to provide and have in readiness such Horses and Arms to shew them before the King's Commissioners when they should be required to take view of them a Regimented Militia being of no elder date than Queen Elizabeth King Iames the First did by Act of Parliament in the first year of his Reign repeal all former Acts for Assize of Arms and never established any thing in 〈◊〉 thereof So it stood till King Charles the Seconds time that these new Acts for the Militia wer made And to confirm this point beyond all dispute in all the quarrels between the King and the Barons and York and Lancaster the Parliament still refused to meet unless the Forces were disbanded that were raised upon those occasions Nor had any King standing Forces or Guards till King Henry the Seventh◠Time when that of the Yeomen was settled by a special Act of Parliament and what is most remarkable the Commons in the Long Parliament of Charles the Second did by their Votes entered upon their Journals declare and assert that by Law no Armed Force could be kept up in time of Peace except the Militia and as for Foreign Succours they were obliged to be carried immediately to the Port of their discharge and were not to exceed one Month at furthest from the time of their first Muster as for Castles and Forts within the Realm they were all supplied and defended by Tenures but for the Militia of old time it was in the Sheriffs of the Counties to make use thereof for the Execution of the Laws and defence of the Kingdom except in the cases aforesaid and it was Treason for any Subject to Levy Souldiers except by the King's Commission and in the cases aforesaid or so much as to Ride or go Arm'd as may appear by the Statute of Northampton in the 2d of Edward the Third much less was it lawful for them to take up Arms unless in their own defence against Illegal Violence and in such manner as the Law directs and it was one of the Articles that was adjudged to be Treason in Parliament against Mortimer that he Rid Armed to Parliaments and threatned the Prelates and Peers that did any thing against his will and caused the King to make War on his Nobles who advised the King to Levy War upon his Subjects See Coke's 4th Institutes Title Council-board where the 4th Article against the Spencers is that they falsly and maliciously had counselled the King to raise Horse and Arms in destruction of the good People against the Form of Magna Charta and so by their Evil Counsel would have moved War within the Realm to the destruction of Holy Church and of the People for their proper quarrel so that taking Arms by the King against his Subjects and the Subjects against the King was both alike against Law 2ly That taking Arms against the King in construction of Law is Levying War but this by no means extends to defensive Arms in maintenance of the Law which is allowed and enjoyned and that nothing else was here mean is plain
still in God's hands even when we fall under the power of Thieves and Robbers But is our safety then so great as when we are out of their hands Or may we not get from them by force if we are able especially if what Bracton tells us be true in these words in his Third Book Exercere igitur debet Rex potestatem juris sicut Dei minister Vicarius in Terrà quia illa Potestas solius Dei est potestas autem injuriae Diaboli non Dei cujus horum operum facit Râ—â— ejus minister erit cujus borum operum facit igitur dum â—acit justitias vicarius est Regis aeterni minister autem Diaboli cum declinet ad injuriam Now pray tell me if the King can thus cease to be God's Lieutenant and become the Devil's Officer whether he can properly be said to be under the Power ordained by God or that we can be very safe in such hands I cannot very well see As for unnecessary Wars undertaken without any such cause for meer pretences of Liberty and the publick good and which may have sometimes caused many more Mischiefs and Inconveniencies than those they pretended to cure meerly does it therefore follow that no Wars tho' against insupportable Tyranny and for self-defence have never been nor may be undertaken by any Nation in the World and that the state they are in after such a War is always much worse than it was before which is notoriously false as you may see by so many instances I have given you from our own Histories as I could also shew you from other Countries such as the Switzers and Dutch who have by defending their Liberties when unjustly oppressed brought themselves into a state of Plenty Liberty and Safety and therefore notwithstanding your making so light of mens Just Rights Liberties and Properties there are certainly such things that distinguish a free people from slaves as any who will but travel into France Turkey or any other Arbitrary Government may easily satisfie themselves and if these things ought to be really esteemed as the causes of all the earthly happiness we enjoy then certainly they may be defended and fought for and if in the purchase of them many mens Lives happen to be lost this is no necessary consequence since such Reformations are often brought about with very little Bloodshed as appears by many instances I have now given of such resistance and may more evidently appear by this late great and wonderful Revolution but admitting it should happen as you say and that a great part of a Nation should be destroy'd in a Civil War for their just Rights and Liberties yet it is still upon your own Topick better for Mankind that â—t should be so if true Liberty I do not mean from lawful Authority may be but obtain'd at last thereby since life is not to be esteemed only for meer living but living happily non est vivere sed valere vita and life is enjoyed by Slaves in Galleys as much as by the greatest Prince yet no rational man but will allow that Men may venture their lives rather than suffer themselves and their Posterity to fall into that miserable Condition the like he may if they were only to be reduced to the Condition of the meer Peasants in France or ordinary Christians in Turkey and if so I think I may then safely affirm that it is better that half the people of any Country should be destroyed by a Civil War if their just Rights and Liberties may be preserved to them and their Children at the last then that Slavery with all its consequences such as Ignorance baseness of Mind Cowardice Beggary c. should ever be entailed upon a Nation for as for the loss of Men it may be made up again in some Generations but when Mens civil Liberties and Properties are once lost they cannot without some rare and unexpected Revolution be ever regained as we see in the Subjects of all sorts in France Turkey and Muscovy c. at this day and therefore if you please better to consider the real Liberties of a people such as we contend for are not that of School-Boys to be free from the Lash of their Masters however that if such a Discipline were to be exercised upon Men all their life-times I think no man but would say it were worth venturing his life rather than to fall into so miserable a state so that what you cite from the Poet Lucan is only to be taken as a Poetical Exclamation against the Miseries that Civil Wars often bring upon a Nation but to say that it was Lucan's Opinion that Subjection under the severest Tyrant was better than the Liberty the people of Rome enjoyed is to suppose that either you or I have never read that Author since nothing is more plain than that the main design of that Poem is to magnifie Cato and Pompey who fought for the Liberty of their Countrey above Caesar and those that joyned with him to destroy it As for all the rest that you have said that you could make a History of greater Miseries as loss of Liberty c. that have come upon whole Nations by fighting for their Just Rights and Liberties against Tyrants than by all the Tyranny and Violence of Mankind I think you would have a hard task to make it good since I suppose under Absolute Monarchies it is unlawful for the People to take up Arms till they are either like to be enslaved or destroyed by the Tyranny of their Prince or else so intolerably opprest by his Souldiers that they can scarce even in a state of War live in a much worse condition and if they are ever subdued and reduced to their former condition they cannot be worse than what they were under before The like I may say as to Limited Monarchies or Common-wealths that degenerate into Tyrannies the People may perhaps better their condition by Resistance and recover their Liberties but cannot be in a worse if they are overcome for I do not allow such Resistance lawful till the very Fundamental Constitutions of their Government whereby it is distinguisht from an Arbitrary Despotick Power be actually invaded or taken from them so that let the worst that can happen they can scarce fall into worse condition than they were before And as for England we may speak it experimentally that of all the Resistances that have been made by the Major part of the Nation or greater part of it in defence of their Just Rights and Liberties every one of them have happened for the bâ—â—t and been a means of restoring this Kingdom to its former Estate except the last in which I grant we lost it by that War yet that was not from the Doctrine it self but because the War was begun and carried on by a Violent Faction upon unjust grounds and which was worse the Government and Discipline of the Church as Establisht by Law was altered without
any Legal Power all which could never have happened had not that War been not only begun but continued to the very last by a Standing Army which could give what Laws they pleased even to those that pretended to command them So that why the Abuse of this Right once in a Thousand years should be made any just Argument against the ever using it at all I can see no reason in the World for it As to the rest of your Discourse against making any War about Religion that is also as fallacious for tho' I grant that true Religion is not to be propagated yet I think it may lawfully be defended by the Sword especially where it is the received Establish'd Religion of a Nation or else the defence of Religion against Infidels would be no Argument at all to fight against a Turkish or Popish Prince that unjustly invaded us For tho' it is true that Religion cannot be taken away from any Man without his consent yet a Man may be taken from his Religion and when the Professors are destroyed either by Martyrdom or violent Persecution as bad or worse than death what will become of the Church and Religion Establisht by Law when all the Persons that constitute that Church are driven away destroyed or made to renounce it And for this we need go no farther than over the Water to our next Neighbour It is likewise as fallacious what 〈◊〉 urge of the great Corruption of Manners by Civil Wars which if it be any Argument at all is so against all Standing Armies whatever whether raised by lawful or unlawful Powers And I think there was much more debauchery in the King 's late Camp at Hounslow-heath as also in all places where they quartered than was lately at York or Nottingham among those that took up Arms in defence of their Religion or Civil Liberties unjustly invaded by the King and his Ministers nor does it always happen that Armies raised for defence of Religion and Civil Liberty must prove debaucht since we may remember that the Parliament Army to its praise be it spoken was infinitely more sober and outwardly religious than the King 's but if you will say that this proceeded from their Principles as well as good Discipline I know no reason why Men who fight in defence of their Religion and Civil Liberties may not upon Church of England Principles as to Church-Government and Common-Prayer and also by a strict Discipline be as little debaucht as any Standing Armies the most lawful Monarch can maintain who if they lye idle as ours have done all this King's Reign till now of late are more likely to fall into all the wickedness that attend a loose Discipline and want of Imployment and consequently may also corrupt the Places where they Quarter by their ill example M. I shall not longer argue this point since I see it is to no purpose But you have not yet told me what these fundamental Rights and Liberties are that you suppose the People may take up Arms to defend nor yet what number of the Nation may thus judge for themselves and take up Arms when they please for it may so happen that the whole Nation may be divided as to their opinions concerning these things And the South part of England for example may think their Religion and Liberties in great danger and that it is very necessary to take up Arms for it when the North parts are not under those apprehensions but lye still as was lately seen in the riseings for the Prince of Orange F. As to the first of these queries I think I can easily give you satisfaction and such as you can have nothing material to reply to And as for the other though I do not say I can give you such an answer as will bear no exception or reply yet I doubt not but it will be that which may very well be defended and may serve to satisfie any indifferent and unprejudiced person And which if not allowed will draw much worse consequences along with it And therefore as for the just Rights and Liberties we contend for they are only such as are contained in Magna Charta and the Petition of Right and are no more than the immemorial Rights and Liberties of this Kingdom and that first In respect of the safety of mens lives and the liberties of their persons aly The security of their Estates and Civil Properties And 3ly The enjoyment of their Religion as it is established by the common consent of the whole Nation All which I will reduce to these plain Propositions 1. That no Freeman of England ought to be imprisoned or arrested contrary to Law without specifying the cause of his commitment in the warrant or mittimus whereby he is sent to prison And he ought not to be sent out of the body of the Country or Jurisdiction where the crime was supposed to be committed unless he be removed by due course of Law neither ought he by the Law of England to be detained in Prison without Trial only for a punishment but ought to be Tried the next Assizes or Goal-delivery or within some reasonable time to be allowed of by the Court. And this was Common-Law many Ages before the Act of Habeas Corpus made in the 31st of King Charles the Second which does but ascertain that Law concerning bailing men for all manner of Crimes in case no Prosecution come in against them much less can the King or any Court below the whole Parliament banish any man the Kingdom in any case unless by some known Law already made whereby he is bound to abjure it upon a lawful Trial by his Peers and conviction by his own Confession 2. Nor can the King nor any Courts of Justice condemn a man to loss of Life or Members without due Trial by his Peers and Legal Judgment given thereupon And for proof of this I need go no farther than Magna Charta and the Petition of Right which are both but declaratory of the Common-Law of England◠see therefore Magna Charta cap. 29. Whereby it is declared and enacted that no freeman may be taken and imprisoned or be disseised of his freehold or Liberties or his free customs or be Outlawed or exiled or in any manner destroyed but by the lawful Judgment of his Peers or by the Law of the land which is also farther confirmed and explained by these Statutes viz. the 37 38 42. of Edward III. and 17. of Richard the II. all which are summed up and more particularly declared against contrary to the fundamental Laws of the land in the Petition of Right exhibited to King Charles the I. in Parliament in the thirtieth of his Reign wherein the late imprisonment of the Kings Subjects without any cause shewed and the denial of Habeas Corpus are expresly resented as also putting Souldiers and Mariners to death by Martial Law in time of peace And the King's answer to this Petition is remarkable
and Lord Lieutenants and if they had refused to answer positively to those questions proposed to them I know no other penalty they had been liable to more than being put out of Commission which sure is no punishment but rather an ease and tho' I do not defend those evil Ministers that put the King upon this Method of distrusting and disobliging his best Protestant Subjects I mean those of the Church of England by putting them out and putting in either Papists or Fanaticks in their steads yet all that own themselves of that Communion ought to have been of more loyal Principles than to have taken up Arms as some of them have done upon pretence of standing by the Prince of Oranges Declaration against these abuses F. I see though you cannot directly justifie the examining of the Lords Lieutenants and Deputy Lieutenants and Justices of the Peace about taking away the Penal Laws and Test and turning those out of Commission that refus'd yet you strive to mitigate it as far as you can by making it part of the Kings Prerogative to put in and out what Judges Justices and other Officers he pleases well granting this to be so yet sure you cannot deny but that the clositing of Judges and all other Officers you have now mention'd and putting those out of Commission that refus'd to comply with the Kings Will and that for no other reason was sure a strange abuse of that Prerogative and the excuse you make that the persons examin'd had a liberty to refuse whether they would give any positive answer or not is yet more trivial since it is very well known that as well those who gave doubtful answers or refused to make any answer at all were as much turned out as they who positively denied to comply with the Kings demands so that no answer was looked upon as satisfactory but such as seemed to give up all freedom of Elections and Votes in Parliament none being to be chosen by the Kings directions but such as would engage before hand to repeal the Test and Penal Laws and I think you will not deny but that the King by thus examining all these Magistrates and Officers you now mention and by turning those out that refused to comply did all he could to hinder the free Election of Members to serve in Parliament and the freedom of giving their Votes when they came thither and the King might as well another time have declar'd that he would have no Members chosen but such as would agree to take away the Statute de Tallagio non concidendo or any branch of Magna Chartâ— which he should think fit to have repeal'd and as this strikes at the very fundamental constitution of the Government viz the free Election of Parliament men so it was inserted among the Articles against Richard the II. that he had caus'd the Sheriffs to return whom he pleas'd for Knights of Shires as I have already shewed you But what say you to the Kings late calling in almost all the Charters of Cities Towns and Corporations in England and putting in Popish or Fanatick Officers and Magistrates into the rooms of those that were turn'd out only to influence Elections and to procure what persons he desired to be return'd for Parliament men is not this a grand breach of the fundamental constitution of the Kingdom thus to take away the legal Rights and Priviledges of these Corporations for no other cause than to procure the King such Parliament men as he had a mind to M. I beg your pardon I forgot to mention this sooner and though I will not take upon me absolutely to defend the Legality of it much less the design for which it was done since I grant that it was in order to destroy or at least to humble the Church of England yet since iâ— was done by colour of Law and Judgment of the Court of Kings Bench and no more than what has been formerly done in the Reign of King Charles I cannot see how the Noblemen and Gentlemen lately in Arms could defend their rising upon that ground unless they would also at the same time justifie the lawfulness of the Plot and Rebellion intended in the same Reign and in which so many of the Whig Nobility and Gentry were deeply engaged F. To answer what you have said in vindication of this great violation of one of the fundamental Rights and Liberties of the Kingdom I must in the first place tell you that as I shall not now examine into the matter of Law whether a Corporation can forfeit it's Charter for misdemeanours or not much less shall I concern my self whether it were done by or without colour of Law or the Judgment of the Court of Kings Bench since it is notoriously known that none of the Judges were permitted to sit there nor any new ones put in but such as would blindly agree to all the Court would have done and therefore I value nor any thing they did nor think it one â—ot the more legal for their Judgments nor is it any excuse that the same thing was done in King Charles Reign and therefore might as well be done now without any rising against it for though I must tell you I look upon the taking away of the Charters from the City of London and the other Cities and Corporations of the Kingdom one of the most arbitrary and illegal acts of that Kings Reign yet there were several reasons which made it unlawful for the Nation to rise then yet it might not be so now as in the first place because most of those Charters were either willingly surrender'd by the members of those Corporations or else were declared forfeited by due trial and Judgment of Law whereas it was much otherwise in this Kings Time when notwithstanding that all the Cities and Towns Corporate in England had but a few years before taken out new Charters to their great trouble and expence they were now summon'd anew to surrender these again for no other reason but because it was the Kings pleasure it should be so for who can imagine that all the Corporations of England could have forfeited their Charters in so short a time as three or four years and they were plainly told that the King must and would have them and that it was to no purpose to stand out and therefore it was no wonder if all the Cities and Corporations of England were forced to submit patiently to this violation since they found by experience the Judges were ready to give Judgment against them right or wrong And besides this I have already laid it down as a Maxime that no resistance whatever is to be made till matters become desperate and all other means are become absolutely ineffectual which I think they were not as long as King Charles lived who besides the inconstancy of his humour which seldome persisted long either in well or evil doing especially if the ill consequences of it were well laid
open to him was too timorous then to have put in any Magistrates into Corporations but such as were for the Protestant Religion as it stands by Law establisht and such however angry they might be with those they call'd Whigs in respect of their opposing the Dukes succession to the Crown yet I believe most of them would never have given up the freedom of Elections of Parliament men or have done any thing to bring in Popery among us so that as long as things remained in this State there were some hopes still lest of a redress of our grievances whenever a Parliament had met and that the Nation was grown more cool and had come to it self again after those heats which had risen in the late Parliaments about the succession and other things whereas now the case was far otherwise in this Kings Reign wherein we found not only our Religion but the fundamental Rights and Priviledges of the Nation struck at by the Kings dispensing power and the Arbitrary proceedings of the Judges and not only the freedom of Elections of Knights of Shires but of Cittizens and Burgesses endeavour'd to be taken from us either by threatning the Electors or else by open force as I shall prove by and by when I shall have occasion to speak farther upon that head so that unless a great part of the Nation had declared for the Prince of Orange he had been repuls'd with shame and ruine and our Chains tyed faster upon us than ever they were before M. I shall forbear replying further to what you have now said till I come to conclude but in the mean time I cannot omit another material grievance set down in the Princes Declaration viz. the turning out and disarming the English Protestant Magistrates Officers and Souldiers in Ireland and putting of Irish Papists in their Rooms as also the late Declaration of Indulgence in Scotland but as I will not defend the Justice or Prudence of those Councils so I think none of them could give any sufficient cause for the people of this Kingdom to rise in Arms for sure it is enough if not too much for them to concern themselves with the grievances and miscarriages of their own Country without taking upon them to take up Arms to reform those of their Neighbours since they are not only ignorant of the Laws and Constitutions of those Kingdoms but may also mistake the true reasons and grounds on which those alterations were made F. I see you can as little defend what has been illegally acted in Scotland as in Ireland only you would sain put me off by telling me that the people of this Nation have nothing to do to take notice of what is done in other Kingdoms and you may as well tell me that a man ought not to take any warning as to defend himself against Thieves though he see 's another man robb'd by them before his Eyes or that the Protestants of England should not take warning by the sad example of those in France from ever suffering a Popish King from having the same power here as the French King has in France for fear of the like fatal effects since I never found Papists give Protestants the least forbearance or shew them any mercy longer than whilst it was not in their Power to hurt them But to come to the matter in hand we cannot but concern our selves with what has been so lately done in Scotland and Ireland for the introducing of Popery and Arbitrary Government in those Kingdoms since the latter is notoriously known to be govern'd by the same Laws as England and it is as much against the Laws of that Kingdom as it is of ours for the Irish Papists to be put in Arms and the Protestant Militia disarmed and for Popish Judges and Justices of Peace to be put in Commission as hath been practised under the Government of the Lord Tyrconnel and if English Protestants in Ireland cannot enjoy their Estates and Liberties without being turned out of them by the Papists how could we in England expect better treatment whenever they shall think themselves strong enough and as for Scotland tho' it be not wholy governed by the same Laws as England yet the fundamental constitution of the Government is the same in both Kingdoms and the King can no more make abrogate or dispense with Laws in Scotland without the Parliament than he can here and therefore for the King not only to issue out such a Declaration of Indulgence and suspension of all the Penal Laws in Scotland against Papists but also therein to declare that he expected an obedience to all his commands without reserve whether legal or not was so bold a stroke that we could not but expect the like in England tho' his Majesty thought it not fit at present to discover his Mind so plainly to us M. I shall not any longer dispute these points with you but own that the abuses you mention were indeed of great concern both to the Protestant Religion and our Civil Liberties yet however besides the Laws of the Land which I still suppose do expresly forbid all resistance of the King upon any account whatsoever I think there ought to have been no such thing done by any Subject of this Nation even upon your own principles which seem not to allow of such resistance but in case of an actual and violent assault upon mens Religion Lives and Properties and that by open force of Armes now I desire you to shew me whom it is that the King has ever yet Dragoon'd or persecuted till they would become of his Religion or whose Life his Majesty hath taken away even of the most notorious Traytors but by due Trial and course of Law nay he has pardon'd divers several after they were condemn'd meerly because he was inform'd they were not really guilty of the Crimes whereof they stood Condemn'd and as for mens civil properties I defie you to shew me any persons Estate that has been taken from him without due course of Law or any Taxes that have been Assessed upon the Nation but what have been granted by Parliament or else raised by the opinion of the Judges by whom if his Majesty hath been misinform'd they only ought to answer for it in the next Parliament who are the only proper Judges of their Miscarriages without having any course to Force which the Laws of this Kingdom so much abhor and therefore make the worst of it you can all these Greivances already mentioned were no more than some breaches upon the outward Splendour of our Church Religion or some of our civil liberties whilst the main Essential parts of both continu'd untouch'd since God be thanked we have hitherto enjoy'd the Free publick profession of our Religion together with our lives Liberties and Estates in perfect peace and undisturb'd by any outward Force or Violence from the King or any Commission'd by him and as for those Grievances you mention viz. The turning
have made use of to wit Rex habet Superiorem Legem Curiam suam viz. Comites Barones c. who ought if he transgress the Law to put a Bridle upon him yet by this as I have already proved neither Bracton nor Fleta could mean any co-active â—orce but only a Moral restraint upon the King by Petitions Remonstrances or denial of aids till he would be Reform'd by fair means but that it does not go farther appears by the parrallel Bracton there makes between our Saviour Christ and the Virgin Mary who being both free from the Law of Moses yet voluntarily chose to be obedient to it which sufficiently proves that those Authors never designed that the Parliament should oblige the King by force or whether He would or no to amend his faults since that was as you your self must acknowledge against their very institution since both their meeâ—ing and their dissolution wholly depend upon the Kings Will. F. I confess you have made a long and elaborate speech in answer to my notion that a King may forfeit his Crown that is by his own act cease to be King but I shall be able to give you a satisfactory answer to all this if you please to take it In the first place therefore I cannot but observe that all your Discourse depends upon two Principles alike false first that no absolute Monarch can by his own act forfeit or lose his right to the Government without a formal resignation of the Crown or secondly that the Kings of England have ever been such absolute Monarchs which if they are both great mistakes all that you have said on this head falls of it self Now that a King tho' an absolute Monarch may do such an act as shall make a forfeiture of his Crown without any solemn resignation of it you your self are forced to allow in the two cases you have put viz. that of such a Monarchs becoming an Enemy to his People and going about to destroy them and that of his making over his Kingdom to another without the Peoples consent now if the diffusive body of the People in an absolute Government can judge of these two cases whenever they happen without appealing to any General Council or Assembly of the whole Nation I desire to know why it may not be as easie and lawful for the People to judge without a Parliament when the fundamental Laws of the constitution are generally and wilfully broken and violated and that violation persisted in by the King for the introduction of Tyranny and an Arbitrary Government since the Rules I have laid down to know it are but a few and easie to be known and judged of by the most common capacities Now that a Superiour or Governour may lose all that power and authority he once had and that without any act of the party governed may appear by those great and natural relations of a Husband and a Master in the former of which if a Husband in the state of nature use his Wife so cruelly that she can no longer live or co-habit with him without danger of her Life I doubt not but she may quit him and may also when she is out of his Power Marry her self again to another Man that will use her better so in the other relation of a Master if such a one in the state of Nature have a Slave and will not allow him sufficient Cloaths Victuals or will beat him or use him so cruelly for no just cause that he cannot enjoy the ordinary comforts of Life no man will deny but that such a slave may lawfully run away from such a Master and â—s at liberty either to live of himself or to chuse another Master if he think good and this instance is much more strong in an hired Servant who is to serve his Master for such and such Wages or to do such and such Work and no other if in this case the Master refuse to pay him his Wages or put him to do other work than what was agreed upon between them or instead of an hired Servant will make him his absolute Slave in these cases no man can doubt but by this unjust treatment of the Master the Servant is discharged of his Service and may go whether he pleases and of these actions I have already proved at our first meeting the party injured be they Wife or Servant must be the only Judges in the state of Nature where there is no Civil Power over them or else if the Husband or Master shall Judge for himself the Wife or Servant is never like to get any Redress apply this to the case of a limited or conditional King and his Subjects and see if it be not absolutely the same upon the total breach of the Original constitution of the Government and whether the Bond of Allegiance is not then as absolutely dissolved by the sole act of the Prince without any authoritative power in the Subjects as it is in the case of such a Wife or Servant by the sole Act of the Husband or Master without any Superior Authority in such Wife or Servant to quit them and so to discharge themselves of their Wedlock or Service Therefore as to your accusation that my notion is worse than that of the Rump Parliament that put the King to death I deny it for they supposed that there was no way of being rid of a Tyrannical King but by making the People and consequently the Parliament as their Representatives his Superiours or Judges to call him to an account and Judge and Punish him for his Tyranny this I abhor as much as your self for I grant that a King cannot be properly the Supream and at the same time own another Power above him to Punish or call him to an Account for his Miscarriages but this Power that I insist on is not as I have all along told you a power of punishment but a right of resistance for self-defence in the first place and of Judging and Declaring the King to have forfeited his Crown or Right to Govern if he persist in his Tyranny without any amendment or satisfaction given to the People Nor is this Doctrine of the Peoples thus Judging for themselves so dangerous as that of the Rumpers as you suppose who put this right of Judging when the King had thus forfeited his Power in the Parliament of which they thought themselves the only lawful or necessary Members but indeed it was not so for they still supposed him to be their lawful King and yet at the same pretended to Arraign him as you may see by the Title of the Charge or Indictment they drew up against him all which I grant to be altogether unjust and illegal but it is not more but rather less dangerous to put this power of Judging when the King has thus dissolved the Government and forfeited his Crown upon such notorious and wilful breaches of the Fundamental Laws in the whole or diffusive body
of this necessity as certainly he is in the intervals of Parliament it can never be supposed that the first Prince or his Successors that first parted with these Priviledges to the People ever intended to be so straitly tied to them as that in no case whatever tho' never so pressing they should not depart from them much less that he should forfeit his Crown if he should wholly break them nay should persist so to do and resolve to turn this limited into an absolute despotick Monarchy since the observation of these Laws being but concessions of his own or his Predecessors can never be looked upon as conditions of his holding the Crown nor of the Subjects Allegiance to it there being as you your self confess no such clause exprest in either part neither in the Kings Coronation Oath nor yet in their Allegiance to him as you your self cannot but acknowledge and tho' it is true the King swears at his Coronation to keep and maintain the Laws yet Grotius tells us Lib. 1. cap. 3. that an Empire does not cease to be Absolute altho' he who is to rule promise some things to God or to his Subjects even such which may appertain to the manner of the Empire and that not only concerning the observation of the natural or divine Law but of certain Rules to which without a promise he were not obliged So that in all Promises of this kind the manner of the obligation is not reciprocal or of the same sort on both sides as for example it is only moral in respect of the King and it is lefâ— wholly to God to judge between the King and his Subjects and to punish him when he breaks his part but to the King as God's Lieutenant on Earth it belongs not only to judge of his Subjects breach of their Oath and Contract but also to punish them for so doing and compel them to the performance of it and of this Judgment are all the Modern Civilians as for Bodin I have given you his opinion in the chapter I last cited concerning this matter and he as well as Grotius is clearly of opinion that Absolute Monarchs such as he reckons the King of England to be are not to be called in question or destroyed let their breach of Laws and Tyranny be never so notorious much less can they forfeit their Royal Dignity for such male-administration and tho' Grotius is of opinion that in cases of great and evident danger of Life Subjects may have a right of resistance against absolute Princes and those commissioned by them what is this to the case in hand viz. a resistance against an Absolute Monarch for violation of those Priviledges and Liberties that were granted by himself or his Ancestors and without which Subjects may very well live and subsist as we see they do under the most Absolute Despotick Monarchies where they enjoy no such thing tho' perhaps they do not live so well and freely as we do nay Pufendorf the Author you so much make use of in his seventh Book will not allow Subjects to take up Arms or resist Absolute Princes nor for too great cruelty in punishment nor for imposing too immoderate Taxes since the presumption of Justice and necessity for the doing of these things is always on the Princes side nay if his Promises are not kept or priviledges formerly granted are taken away if the Prince be Absolute and will pretend any fault necessity or remarkable benefit thereby to the common-wealth he shall be deemed to have acted by a right of which the faculty of judging is wholly wanting to the Subjects since all Priviledges have this exception unless the welfare or necessity of the Common weal forbid them to be observed F. Since your last Discourse consists of two parts matter of Fact and matter of right deducible from that fact I shall speak to each of them in order first as to the matter of Fact it is a great mistake in you and Dr. Brady to maintain that K. William I. was really a Conqueror and by his Sword without any other Title obtain'd such an entire Victory over K. Harold and the whole English Nation as gave him an Hereditary Right for himself and his Heirs to the Absolute Allegiance of the whole English Nation without any reserve or conditions whatever so that all our Ancient Liberties and Priviledges being thereby lost and forfeited this Nation can claim nothing of that kind but from the grants and concessions of that King or his Successors every one of which Propositions contain so many notorious mistakes in matter of Fact for in the first place King William never claim'd the Crown by Conquest but by the adoption and Testament of King Edward the Confessor and I desie you to shew me any Ancient Law or Charter either of his own or any of his immediate descendants wherein he is stiled Conqueror 't is true in his Charter to the Abby of Westminster he says in one that by the Edge of the Sword he obtain'd the Kingdom by the Conquest of Harold and his accomplices yet does not found his Right in that Victory alone but on the donation of King Edward his Cozen the words are remarkable in ore gladii adeptus sum Regnum Anglorum devicto Haraldo Rege cum suis complicibus qui mihi Regnum divinâ providentiâ destinatum beneficio concessionis Domini Cognati mei gloriosi Regis Edwardi concessum conati sunt auferre And this donation he calls an Hereditary Right in divers other Charters as particularly in one also recorded by inspeximinus beginning thus In nomine Patris Filii spiritus sancti Amâ—n Ego Willielâ—us Rex Anglorum haereditatio Iure factus So likewise his Son K. Henry I. in his Charter to the Abbot of Ely creating him a Bishop calls himself the Son of William the Great not the Conqueror Qui Edwardo Regi Haereditario jure successit in Regnum And in vertue of this Donation he was after his Victory against Harold by publick and full consent of the whole Nation or People of England as also of the Normans he brought with him Elected and Crowned King and at his Coronation took the same Oath at the High-Altar at Westminster which his Predecessors the Saxon Kings had taken before him with this one Clause farther which was very necessary to be done at that time viz. quod aquo Iure Anglos Francos tractaâ—t so that let his Title by Conquest have been what it would it was either by a just right of War to recover his due or by none at all if the former he could only succeed to such Rights as K. Edward the Confessor before exercised and enjoyed since he came hither only to take the Crown that was so bequeathed to him and to hold it under that Title but if he had no Title at all but his Sword he then could obtain no just right to the Crown of England either for himself or
his Successors but if they will only insist upon their Title by the Sword without any preceeding or subsequent right they may be as lawfully turned out again by the Sword since it is own'd by all Writers on this Subject that a Conqueror in an unjust War can obtain no right over a free People So much for the matter of Fact I come in the next place to point of Right in Law I grant indeed that a simple Oath or Pact between an Absolute Monarch and his Subjects to do or perform such or such a thing or to let them enjoy such and such Priviledges does not immediately give the People a Power to compel such a Monarch and his Successors by Force of Arms to the strict observance of them in case of a violation on his part but our case is very different from this for here a Foreign Prince recovers a former Right to the Kingdom and that by Force and is invested with the Crown in Vertue of that Right by which he claimed it and is also sworn to maintain the Ancient Government and Laws according to which the whole Legislative Power was not in the King alone but jointly in the King and the great Council of the Nation without whose grant or consent he ought not to have laid any Taxe upon the Nation as I shall prove if there be occasion Now all our Ancient Rights being granted and acknowledged by him and a constant common Council of the Kingdom appointed to meet to see them observed as it did many times in this King's Reign as also in those of his Successors they were not bare Priviledges conferred of favour and which might be observed or broken at the Will of the Prince that granted them but a Form or Rule of Government by Laws to be made and agreed upon in a standing Council appointed not only to make them but also to see them observed as appears by that passage so often cited wherein the King is expresly said to have a Superiour viz. the Law and the Court of Barons who were to put a Bridle upon the King in case of his governing without Law and this farther appears by the great Charters of Henry I. K. Stephen and K. Iohn c. In the first of which it is declar'd that the Nation having been oppressed by unjust i. e. illegal exactions he therefore forbids all Common Money or Taxes not taken through all Cities or Counties in the time of K. Edward and also confirms the Laws of his Father whereby his Barons and Tenants in Capite should be free from all Taillage or Taxes and he also thereby restored to them the Laws of K. Edward with those emendations which his Father had made by the Common Council of his Barons Now the great Charter of K. Iohn was but an Addition or rather Explanation of this Charter of K. Henry I. which was at first demanded by the Barons to be again confirmed by this King at the instigation of Stephen Langton Archbishop of Canterbury as Mat. Paris shews us at large Now since neither K. William the I. nor his Successors ever changed the fundamental constitution of the Government as to the Legislative part of it as hath been already proved and that those breaches that had been made upon it by taking Taillage or Taxes without the consent of the great Council are all hereby expresly forbid these are certainly more than such meer Priviledges which the King himself is the only keeper of and can dispense with at his Pleasure but are indeed such Fundamentals as concern the very cosâ—iâ—uent form or Rule of Government which as I have also proved was mixt not limited in that very institution and tho' the learned Pufendoâ—f agreeâ— with you in the case of compacts between an Absolute Monarch and his Subjects yet as to the point in hand he is wholly of my mind as you may see by this passage in his Academick Dissertations in his Discourse de Interreguis where arguing against Mr. Hobs who will not allow of any compacts between an Absolute Prince and his Subjects he has this passage which I shall here read to you in English That tho' in Pacts in which submission is wanting certain and defined performances may be set forth to be observed on either side from an intrinsick impulse of Conscience when either of these refuse to perform them nothing but War or the compulsion of a Superior Lord common to both of them remains yet in pacts by which one Party is made subject to the other it belongs to the latter to define what ought to be performed by him as also a power over the other compelling him to the performance whether he will or not which power does not belong reciprocally to the other party against the former hence the party commanding cannot be questioned for a breach of compact unless he either wilfully abdicaâ—e all care of the common wealth or put on an hostile mind towards his Subjects or manifestly or deceitfully in latin dolo malo depart from the rule of governing on whose observance as upon a condition the subjects Allegiance depends which is easily to be avoided by any Ruler if he will consider that not the highest of Mortals are free from the Laws of humane chance so that let the power of your Conqueror have bene never so great or Absolute it is plain he not only renounced it himself but several of his Successors have done the same for themselves and their heirs therefore make the most of it they must still claim by â—ertuâ— of the contract to maintain the constitution as they found it or else resolve all their right into meer force and then vim vi pellere licitum est M. It is no wonder that you and I differ in our conclusions since we also differ so much in the premises and in the very matter of fact concerning King William the Conquerors coming to the Crown you saying he came to it partly by the Sword but founded on a donation of Edward the Confessor and partly by the consent and election of the People of England yet you your self cannot deny but force or conquest had a great share in the business and indeed was all the right he had for as for that donation of K. Edward it is either forged or else K. William could claim nothing by it since England was then either an Hereditary Kingdom or elective and take it which way you will this donation of the Confessors cou'd signifie nothing either to the prejudice of the People that were to Elect or the next Heirs who were to succeed after K. Edward's decease neither could he claim as Heir to him by blood for the relation between him and K. Edward was by his Mother Emma Sister to Richard the second Duke of Normandy this William's Uncle so that the Conqueror was no way descended from the Blood Royal of England Therefore his true quarrel with Harold Let his pretence be what it will was
no man will say that their Acclamations and crying yea yea will make our Kings Elective any more than it could do it in the Case of K. William who had a Title by Conquest precedent to this prâ—tended Election tho' I grant this custom may have been in use ever fined this Coronation of the Conqueror But that King William claimed indeed by Conquest and by no other Title let us not mind his specious colourable pretences but his actions which are the best Interpreters of the Thoughts of Princes and we shall find that thorough all his Reign he Governed this Kingdom as a Conqueror and this I shall prove by making good the three Instances I have already given of his great alterations of the Property Laws and Civil Liberties of the People of this Nation to begin with the first of these For the proof of which I shall make use of the Authority of Gervace of Tiâ—bury a considerable Officer in the Exchequer in the time of Henry the Second and who received his information from Henry of Bloâ—s Bishop of Winchester and Grand-child to the Conqâ—eror who is most full to that purpose which he thus delivers in the Manuscript Treatise called the black book of the Exchequer which I shall read to you according to the Learned Dr. B's Translation of it After the Conquest of the Kingdom and the just subversion of the Rebels when the King himself and his great men had viewed and surveyed their new acquests there was a strict enquiry made who they were which had fought against the King and secured themselves by Flight from these and the Heirs of such as were slain in the Field all hopes of possessing either Lands or Rents were cut off for they counted it a great favour to have their Lives given them But such as were called and sollicited to fight against King William and did not if by an humble submission they could gain the Favour of their Lords and Masters they then had the liberty of possessing somewhat in their own persons but without any right of leaving it to their Posterity their Children enjoying it only at the Will of their Lords to whom when they became unacceptable they were every way outed of their Estates neither would any restore what they had taken away And when the miserable Natives represented their Grievances publickly to the King informing him how they were spoiled of their Fortunes and that without redress they must be forced to pass into other Countries At length upon consultation it was ordered that what they could obtain of their Lords by way of Desert or Lawful Bargain they should hold by â—unqestionable Right but should not claim any thing from the time the Nation was Conquered under the Title of Succession or Descent upon what great consideration this was done is manifest says Gervacâ— for they being obliged to compliance and obedience to purchase their Lords â—avour therefore whoever of the Conquered Nation Possessed Lands c. obtained them not as if they were their Right by Succession or Inheritance but as a reward of their service or by some intervening agreement This alone were sufficient coming from an Author of such Credit and living so very near the time but besides his I shall give you the Authority of divers other Authors to the same purpose and particularly Ordericus Vitalis whom you but now cited tells us how William the first circumvented the two great Earls of Moreâ—a and that after Edwin was slain and Morcar imprisoned then King William began to shew himself and gave his Assistants the best and most considerable Counties in England and made Rich Collonels and Captains of very mean Normans and that he thus disposed of whole Counties to divers great men appears by Domesday Book wherein it is seen that the whole County of Chester was given by the Conqueror to â—upus a Norman so likewise the greatest part of Shropshire was given to Monâ—gomery And further he took away from the English their Estates and gave them to his Normans and this he did from his first coming in for Fitz-Osbern was made Earl of Arundel and Hereford at his first coming in and was Lord of Bettivil in Normandy and established the Laws of that Town at Hereford Alan Earl of Bâ—itain had all Earl Edwin's Lands given to him at the Seige of York about three years after his arrival to these I may add the 795 Mannors Robert Earl of Morâ—ton in Normandy and Cornwal in England had given to him by K. William so likewise â—lan Earl of Britain and Richmond 442 Mannors and Ieffery Bishop of Constance had 280 Mannâ—rs given him by the Conqueror besides many other Lands of the Saxon Earls Thains c. were all given to the Normans who took their Title from King William's Conquering Sword So that I think it is very evident that this King had distributed most of the Lands of the Nation to his Norman's long before the survey was begun and by that infallible Record it is clear that he gave near all the Lands of the Nation to his followers and very little or none to the English who held that they had hys new Title and new services from the Conqueror or his great Lords or became Tenants to or Drudges upon their own Lands as we heard before from Bracton and Fleta Here is enough to satisfie any unbyassed person that thâ— Conqueror did not lay by his Sword after the Battle of Hastings F. In answer to what you have now said concerning your Conquerors taking away the Lands of a great many of the English Nobility and Gentry it is so apparent in matter of Fact that it were a high piece of impudence to go about to deny it yet will it not therefore follow that what he thus disposed of were almost all the Lands of England as I shall shew you by and by but in the mean time to let you see that I am a fair adversary I will at present suppose that K. William took away all the Lands from the former owners and gave them to his followers who helpt him in his Conquest but these were not only the Normans his Subjects but French Flemmings Anjovins Britains Poictovins and People of other Natioâ—s who made up a great part of his Army and came in with him under great and considerable men their Leaders and whom your Dr. tells us came not out of staâ—k love and kindness without any consideration of sharing with and under him in the Conquest Now I desire to know by what Law or Act of theirs they thus constituted K. William an Absolute Monarch over them and their Descendants For as for the Normans tho' they were it's true his subjects yet they enjoyed divers considerable Rights and Priviledges at home and surely never intended to come over hither to make themselves as great Slaves as the People they had Conquered much less can it be supposed of these of other Nations who were not subjects to Duke William before
tho' they themselves remained free men but your Dr. from whom you borrow this is very much out in his application of those passages he cites for neither of those Authors do affirm this of all owners of Lands whatsoever but only there to give us the Original of Soccage Tennants on the Kings Demeasnes as appears by Bracton's Title to that Chapter from whence the Dr. cites this passage which is de diversis conditionibus personarum tenentium in dominicis Domini Regis and the first words of this chapter make it yet plainer beginning thus in Dominico Domini Regis plura sunt genera hominum sunt enim ibi servi sive Nativi ante Conquestum in Conquestu post Conquestum and under these last ranges the persons you mentioned but Fleta is more exact in his Chapter de Sokemannis where he tells us that these men were Tenants of the Kings Ancient Mannors in Demeasne quia hujusmodi cultores Regis dignoscuntur provisa fuit quies nâ— sectas facerent ad Comitatum vel hundredum tamen pro terra quorum congregationem tune socam appellarunt hinc est quod Sokemanni hodie dicuntur esse So that tho' King William might permit his Ancient Tenants to be thus outed of their Estates they held in his own Demeasnes yet does it not therefore follow that he took away the Estates of the Ancient Owners all over England of whatsoever Tenure they were or of whomsoever held But as for your quotation out of Mat. Paris it proves no more than what I readily grant that King William after his return out of Normandy liberally rewarded his Followers with the Estates of the English which might he only of such as fought against him at the Battle of Hastings and as for that little which was left them which he says was put under the Yoak of a perpetual servitude he means no more by this expression than that new Tenure of Knights service which King William imposed upon them as this Author in the very next leaf speaking of the Lands of the Bishopricks and Abbies which were held before free from all secular servitude sub servitute statuit Militari and therefore you seem to contradict your self when contrary to your own Author Sir William Dugdale you deny the truth of any part of the Story because that in Doomesday book the name of Edwin of Sharnborn is not to be found and that William de Albeni is not named amongst the owners of that Mannor which is not material since this William might obtain a share therein after this Survey was made and as for Sharnborn himself his not being there mentioned is no argument that he had no Lands within that Mannor or the other that is mentioned in that Narrative since oftentimes the chief Lords of the Fee are only mentioned in Doomesday book tho' all the Proprietors under them are not particularly named but it is in vain to discourse any longer with you upon the Subject of your Conquerors taking away the Lands of English owners I have given you my opinion and the reasons against it and if you are not of my mind I cannot help it therefore pray go on to your next head and shew me by sufficient Authorities that King William as a Conqueror altered all the Laws and Customs of this Kingdom M. I will not undertake to prove that he altered all the Laws of England and brought in quite new ones yet that he did so in great part and that by his sole Authority I think I can prove by sufficient Testimonies and therefore I shall begin with that of Eadmer a Monk of Canterbury a companion of Archbishop Lanfranc's who tells us in his History that William designing to establish in England those Usages and Laws which his Ancestors and he observed in Normandy made such persons Bishops Abbots and other Principal men through the whole Nation who could not be thought so unworthy as to be guilty of any reluctancy and disobedience to them knowing by whom and to what they were raised all Divine and Humane things he ordered at his pleasure And after the Historian hath recounted in what things he disallowed the Authority of the Pope and Archbishop he concludes thus But what he did in secular matters I forbear to write because it is not my purpose and because also any one may from what hath been delivered guess what he did in seculars From which I think nothing is plainer than that K. William did not only design to alter many things in the Laws and Customs of England but did also actually do it since to that end he made the Bishops Abbots and other Principal men who were to be Judges in all Courts such as he could wholly confide in now that K. William govern'd the Nation as Conqueror and did so live and repute himself so to be and as such brought in and imposed new Laws upon the People of this Nation is as clear as I shall prove from these particulars first The Justiciaries or cheif Justices the Chancellors the Lawyers the Ministerial Officers and under Judges Earls Sheriffs Bailiffs Hundre duties were all Normans from his first coming until above a hundred years after as I can make it out by particular instances and undeniable Reasons were not the Catalogues too long to be here inserted If therefore the Justiciaries Chancellors Earls Sheriffs Lords of Mannors such as heard Causes and gave Judgment were Normans if the Lawyers and Pleaders were also Normans the Pleadings and Judgments in their several Courts musts of necessity have been in that Language and the Law also I mean the Norman Law otherwise they had said and done they knew not what and Judged they knew not how especially when the controversies were to be determined by Military Men as Earls Sheriffs Lords of Mannors c. that understood not the English Tongue or Law or when the cheif Justiciary himself was a Military Man as it often happen'd and understood only the Norman Language and 't is hardly to be believed these Men would give themselves the trouble of learning and understanding the English Law and Language Secondly Tho' we have many Laws and Customs from the Northern People and North parts of Germany from whence both Saxons and Normans came yet after the Conquest the Bulk and Main of our Laws were brought hither from Normandy by the Conqueror from whence we received the Tenures and the manner of holding our Estates in every respect from whence also have we received the Customs incident to those Estates And likewise the Quality of them being most of them feudal and enjoyed under several Military Conditions and services so that of necessary consequence from thence we must receive the Laws also by which these Tenures and the Customs incident to them were regulated and by which every mans right in such Estates was secured according to the Nature of them from Normandy and brought in by the Conqueror we received most if not all
our ancient Tenures and manner of holding and enjoying our Lands and Estates as will appear by comparing our Antient Tenures with theirs F. I shall not deny but that a great part of the matter of Fact is true as you have now put it yet tho' I grant that the Bishop Abbots Chancellors Chief Justices and other great Officers of the Crown were all or the greatest part of them Normans during the Reigns of the two first Kings of the Norman Race it doâ—s not therefore follow that these Men must have made a change in the very substance of our Laws tho' in matters of form of pleading or judicial proceedings they might have introduced great alterations for as to the Civil or Municipal Laws of this Kingdom concerning the Descent and Conveyance of Estates they continued the same after the coming in of the Normans and Lands held by Knights Service descended to the Eldest Son and Lands in free Soccage and Gavel-kind to all the Sons alike so likewise there were Estates In tail and Fee simple as now and there were also the like Customs of the Courtesie of England Burrough English c. as there are also at this day as I can prove to you by several passages out of our English Saxon Laws so likewise for Conveyance of Estates those of the better sort of People called Bookland were conveyed by Deeds with Livery and Seisin either with or without warranty as they are now but that which was called Folâ—land held by the meaner sort were only by Livery and Seisin without any Writing And tho' I grant that the custom of sealing of Deeds is derived from the Normans yet that is an alteration only in matter of forn and as for Goods and Money they were bequeathable by a Man's last Will as well after as before your Conquest And if you can have the opportunity to peruse a Manuscript Treatise of Sir Roger Owen's upon this Subject you will find it there sufficiently proved That Livery of Seisin Licenses or Fines for Alienation Daughters to Inherit Trials by Juries Abjurations Utlaries Coroners disposing of Lands by Will Escheats Gaols Writs Wrecks Warranties Felons Goods and many other parts of our Law were here in being long before the time of King William this being so as to the common Law let us see what alterations there were in the Criminal or Crown part of the Law first as to Treason and wilful Murther they were punished with Death in the Saxon times as well as after as were also Robery and Burglary in the night time but as for lesser ofâ—ences such as Batteries Maims Robberies and other breaches of the Peace they were punished by Fine as well before the Conquest as after but as for the Law of Englisherie which was that if a Man were found Murthered it should be presumed he was an Alien or Frenchman and the Town thereupon where the Body was found was to be fined unless Englisherie was proved i. e. that the person was an Englishman this Custom tho' it lasted to the Reign of Edward the Third when it was taken away by a Statute made on purpose tho it may seem a badge of the Norman Conquest yet was it indeed a Law introduced by King Knute in behalf of his Danes who being often found killed and none could tell by whom he obtained this Law to be made to prevent it as you will see at large in Bracton and the Mirrour of Justices But as for trial of all offences it was either by Juries Fire or Water ordinal by Dewel or Battle or else by Witnesses or Compurgators upon Oath as well before as after King William's entrance so that I can find nothing material as to the alterations of the Laws either in matters Criminal or Civil from what they were in the Saxons time and this being so it is easily answered how the Judges and Officers might be Normans and yet the Laws continue English still for first it is certain that for four or five years in the beginning of K. William's Reign he made no great alteration in the Judges and other great Officers of the Kingdom and by that time those whom he was afterwards pleased to imploy in the Rooms of such as either died or were turned out might very well come to understand the Laws of England as far as they distered from those of Normandy which was not in many particulars since as your self very well observed the Saxons and Normans being both Northern People had many of the same Laws and Customs common to both and the same persons might in three or four years time have very well learned English enough to have under stood the Evidence that the Witnesses gave before them without any Interpreter But say you all the Pleadings and Judgments were in French and therefore the Lawyers and Pleaders must be Frenchmen which is likewise a false consequence for Pray tell me why might not the English Lawyers have learnt French enough to Plead in three or four years time which must necessarily be required before so great an alteration could be made or Lawyers enough he brought out of Normandy and sufficiently instructed in our Laws and Customs could be fitted for their employments again supposing all Pleadings and other Proceedings to have been in French it does not follow that this practice could have obtained in all the Courts of England for tho' I grant that in the Kings Court at Westminster where the Judges as you say were for the most part Frenchmen or Normans yet this could only have some effect either in that great Court or Curia Regis where the King often sat in person together with his Chief Justiciary and other Justices or else in the Court of Common Pleas which followed the Kings Court till it was ordained otherwise by Magna Charta or else the Court of Exchequer where in those days only matters concerning the Kings Debts Lands and Revenues were chiefly heard and dispatched but as for the Court of Chancery it was not then used as a Court of Equity nor long after till the Reign of Henry the IV V and VI. when it arose by degrees as you will find in Sir William Dugdale's Origines Iuridiciales So that granting all the proceedings in these Supream Courts to have been in French because the King himself who sat there with the chief Justice and the rest of the Judges were either Normans or Frenchmen yet was this of no great importance in comparison of the Suits and Causes which were first begun and try'd in the Inferiour Courts in the Country before ever they could be brought up to London by Writ of Errour or Appeal which could only be in Causes of great Moment or between the Kings Tenants in Capite So that now to let you see that what say I say is true we will Survey all the inferiour Courâ—s of that time beginning with the lowest and going up to the highest of them The first Court we find of this kind
was that of the free burrough or Tything wherein by the Laws of King Edward the Confessor the Tythingman or Head burrough was the Judge who as that Law tells us determined all suits and differences arising among Neighbours of the same Tything concerning petty Trespasses on one anothers grounds which if they could not be there determined might then be brought before the Court Baron which was incident to every Mannor and wherein the Suitors and not the Lord nor his Steward were the Judges and this as Sir Edward Coke tells us was first instituted for the ease of the Tenants and for the ending of Debts and Damages under Potty Shillings at home as it were at their own doors and let me tell you by the way that sorty Shillings was theo near as much as forty pound is now and if the business could not be ended here or was of too high a nature it was then brought into the Hundred Court where the Hundreder together with the Suitors were Judges and if they had not Justice there they might then remove it into the Court of Trithing or Lathe which was not the smaller Court of the Tithing mentioned nor yet the Court Leet but a particular Court consisting of three or four Hundreds which tho' now quite lost was in being at the time of the Statute of Merton as I shall shew you by and by and if the business could not be decided in the Trithing it was then removed to the Shire or County Court as Mr. Lambert shews in the Laws of King Edward which was then held as now from Month to Month and in which as well as in the Hundred Court the Suitors alone were Judges and tho' it can now only hold Pleas unless it be by Writ of Justices of any Debt or Damage to the value of Forty Shillings or above yet we â—ind from ancient Authors that this Court was so considerable that we have diverse examples of Causes between the greatest Persons of England and for Lands of great value begun and determined in this Court thus Eadmertes relates the great Trial at Pinnesden-heath between Odo Bishop of Bayenâ— half Brother to your Conqueror and by him created Earl of Kent and Lanfrank Archbishop of Canterbury concerning divers Mannors in Kent and other Counties whereof Earl Odo had diseized the See of Canterbury in the time of Arch-bishop Stigand his Predecessor whereupon the Arch-bishop Petitioned the King that Justice might be done him secundem Legem Terrae and the King thereupon sends forth a Writ to summon a County Court the debate lasted three days before the Freemen of the County of Kent in the presence of many Chiefmen Bishops and Lords and others skilful in the Laws and Judgment passed for the Arch-bishop Lanfrank by the Votes of the Freemen Or primorum or proboâ—â—â— hominum as the Historian calls them So that to conclude this head if no suit could be begun in those days but what was first commenced in the Hundred Court no distringas could issue forth till three demands were made in the Hundred and from thence to be removed to the County Court where regularly all civil causes were try'd by the Suitors as the only Judges as well as in the Hundred Court and Court Baron then it will necessarily follow that unless you can prove which I think is impossible that all the English were at that time Slaves and Villains and had no Free-hold of any sort left them that all Pleading and Proceedings in any of those Courts being before meer Englishmen must have been in English and no other Language so that after all this great cry nor a twentieth part of the Suits in England were brought to London And as for Criminal Causes unless in cases of Treason all Murthers and other Felonies were Tryed and Judged in the Country either within the particular Jurisdictions of Bishops Abbots or great Lords or else of such Cities and Towns who had the Priviledges of Infangthief and Outfangthief together with Fossa and Furca that is a Pit to drown and a Gallows to hang Malefactors and if the offence was done in the body of the County they were then tryed and condemned in the County Court Justices Itinerant not being in use till Henry the seconds Reign M I must confess you have given me a great deal of light in these matters more than I had before but as I shall not dispute whether in the lowest Courts such as the Tythings and Court Barons the smaller English Free-holders might not Judge of Petty causes amongst themselves yet that in those greater causes were brought in the Hundred and County Courts which only the greater Fleemen of the Hundred or County were Judges who these Freemen were Dr. B. hath sufficiently taught us in his Commenes upon the Conquerors Laws as also in his Glossary viz. That they were Tenants in Military Service who in those times were the only great Freemen of the Kingdom and quite different from our ordinary Free-holders at this day These were the Men the only legal Men that named and chose Juries and served on Juries themselves both in the County and Hundred Court and dispatched all Country business under the great Officers I do not deny but that there might be other lesser Freemen in those times but what their quality was farther than that their Persons and Blood was Free that is they were not Nativi or Bondmen it will give a knowing man trouble to discover it to us we find in every leaf of Doomesday Socmen liberi homines Possessors of small parcels of Land but what there quality was and of what interest in the Nation Dicat Apollo no Man yet hath made it out nor can it be done by the account we have of ordinary Free-men for a Century or two last past And for further proof of this That none but Tenants in Capite or Military Tenants at least could be Judges in the County Court appears by the Laws of King Henry the first wherein it is expresly said Regis Iudices Barones Comitatus qui liberas in t is terras habent per quos debent causae singulorum alterna prosecutione tractari c. So that these Barons of the County being certainly Feudal Tenants this service of being suitors to the County and Hundred Courts was a service incident to their Tenures and then it will also follow that those Primores and probi Viri who as you have now related tryed this Cause between Earl Odo and Archbishop Lanfranc and who let me tell you were not only of the County of Kent but of other Counties in England where the Mannors and Lands lay as Eadmerus shews us and who were the Jurors in this great Cause consisted of the great Military Tenants that were not Barons and the less which were the Probi Viri for it can be no ways probable that the ordinary Freemen which made the greatest number and were all bound to
English and if it were so in this cause it will follow for the same reason in all other Counties all over England Lastly That these Gentlemen were well skilled in the Antient Laws and Customs of England which had been in vain if they had been altered as you suppose M. I will not deny but that in the beginning of the Conquerors Reign many Englishmen might have Estates left them which might not be taken away till some years after and Mr. Selden in his Titles of honour places this Tryal between Earl Odo and Arch-bishop Lanfranc about the first year of K. William and I suppose that it happened before the fifth year of his Reign when Matthew Paris tells us that the Earls Eadwin Morcar and Siward together with Egelwin Bishop of Durham as also many thousands of Clerks and Laicks not being able to bear the severity of K. William fled into Woody and Desart places and from thence got into the Isle of Ely where they fortified themselves and whither K. William followed them and taking the Island made them submit to mercy and then this Author tells us that the K. put the Bishop of Durham in Prison and as for the rest some of them he killed some he put to ransom and others he commited to perpetual imprisonment so that I reckon from this time the King took away most of the Englishmens Estates as not trusting them any more F. If this had all happened as you have put it yet would it not prove what you have maintained for if those Englishmem who had not been engaged with Harold or else had been pardoned for it still held their Estates and as you say they forfeited them afterwards for Rebellion then it is certain K. William did not proceed against the English as a Conqueror since if he had he would have taken away their Estates Iure belli which since as you your self confess he did not whatever Estates he took away afterwards was either for Treason committed by the English or else wrongfully if the former he did it as a lawful King if wrongfully then as a Tyrant and as such could obtain no just right against the English Nation by his unjust proceedings But indeed after all you are quite out in your account concerning this matter for as to the great Tryal you now mentioned it could not be in the first or second year of King William's Reign nor could happen sooner than the sixth or seventh of his Reign for Arch-bishop Stigand was not deposed till the year 1070. which was the Fourth year of K. William and in the next year being 1071. the Annals of Mailros as also the Chronicle of Thomas Wiks place Archbishop Lanfranc's Coâ—secration and fetching of his Pall from Rome so that it could not be until the year after this Rebellion at the soonest when Lanfranc was setled in his Bishoprick that this suit was commenced by him against Earl Odo and therefore a great many of the English Nobility and Gentry had still Estates let them after this Rebellion And that they continued to have so some years after this time appears by those Writs of K. William which Mr. Atwood hath given us in his Ianus Aâ—glorum c. concerning the restitution of the Lands belonging to the Church of Ely which are also transcribed and allowed by your Dr. in his answer to it and I desire you particularly to consider that writ of K. William's directed to Arch-bishop Lanfranc Roger E. of Morton and Ieoffery Bishop of Constance commanding them to cause to be assembled all those shires who were present at the Plea had concerning the Lands of the Church of Ely before the Queen went last into Normandy the rest being most material to the cause in hand I shall give you in Latin Cum quibus â—tiam sinc de Baronibus mâ—is qui competenter adesse potâ—â—unt praedicto placito intersuerunt qui terâ—â—s ejusdem Ecclesiae tenent Quibus in â—num congragatis eligantur plures de illis Angliâ— quisciunt quo modo terrae jacebant praefatae Ecclesiae die qua Rex Edwardus obiit quod inde dixerint ibidem jurando testentur From whence we may also gather that this Tryal concerning the Lands which is here ordered was to be in like maâ—ner and by a Jury of the same sort of Englishmen who tryed the cause between Earl Odâ— and Arch bishop Lanfranc that is they were English Gentlemen of sufficient Estates or Tenants in Capite if you please Now. let us look into the time when this happened since the Writ doth not tell us when it was only that it refers to a Plea held concerning the Church of ELy before the Queens last going into Normandy so that this tryal here mentioned could not happen till after the fourteenth year of K. William's Reign which I prove thus this Queen did not come over into England till the year 1068. when the King returned with his Queen out of Normandy after his Coronation at which she was not present after which K. William went not into Normandy till the seventh year of his Reign when he went over and took Mans and then whether he carried the Queen with him is uncertain but the Annals of Waverly tells us he went over again the next year and then he might carry the Queen with him which might be the first time she returned into Normandy but it appears by the same Annals that the King went over the year after and staying but a little while returned into Normandy to fight against his Rebellious Son Prince Robert where staying not long he returned as soon as he had driven his Son out of Normandy nor do we find he went over again till the 14 year of his Reign being the year 1080. and then I suppose since he stayed there for some time he carried the Queen with him and to this last going over I suppose this Writ we have cited refers for tho' the Queen went over again after this yet she returned no more because she died in Normandy in the year 1083. as Iogulph who was then alive relates the use I make of these particulars is this that long after the time you suppose the English to have lost all their Estates we here find a great Jury of Englishmen summoned out of several shires in England to try this great Cause concerning the Lands which the Church of Ely had been unjustly Disseised of so that here you see after the fourteenth year of this King the English still continued to keep their Estates and to serve upon Juries and consequently the Pleadings before them as well as their Verdict must have been in English M. I shall not insist upon this point any farther yet this much you cannot deny but that all the Pleadings and Proceedings at Wâ—stminster as also the old Law books were all in French as appears by the Mirror of Justices Britton not to mention those of latter days as Littleton's Tenures and others and so were
Tenants by Knights service as also those aids they were to pay the King or any other Lord they held of towards making his eldest Son a Knight and Marrying his eldest Daughter were in use in England before the Conqueror came over But to observe your commands I shall now proceed to shew that by the Conquest the English for a time lost all their ancient Rights and Priviledges till they again obtained them either by their mixing with the Normans so that all distinction between them and the English were taken away or else they were restored by the Charters of K. Henry the first K. Iohn and K. Henry the third I shall therefore divide the priviledges of Englishmen into these three heads first Either such as concerned their Offices or Dignities Or secondly Such as concerned their Estates Or lastly Such as concerned the Tryal for their lives in every one of which if I can prove the English Natives as well of the Clergy and Nobility suffered confideracie lesses and abridgments of their ancient 〈…〉 liberties which they formerly enjoyed I think I shall sufficiently prove the point in hand As to the first head Ingâ—ph telâ—s us that the English were so hated by the Normans in his time that how well soever they deserved they were driven from their Dignities and strangers tho' much less fit of any Nation under Heaven were taken in their places and Malmesbury who lived and writ in the time of Henry the first says that England was then become the habitation of foreigners and the Rule and Government of strangers and that there was at that day no Englishman an Earl Bishop or Abbot but that strangers devoured the Riches and gnawed the Bowels of England neither is there any hope of ending this misery So that it is plain they were now totally deprived of all Offices and Dignities in the Common Weal and consequently could have then no place in the great Council the Parliament of the Nation both for the raising of Taxes and the making of Laws and tho' I grant Mr. Petyt and your self suppose you found a clause in the Conquerors Magna Charta whereby you would prove that all the Freemen of this Kingdom should hold their Lands and Possessions Well and in Peace free from all unjust Exactions and Taillage so as nothing be exacted or taken unless their Free-services which of right they ought and are bound to perform to us and as it was appointed to them and given and granted to them by us as a perpetual right of Inheritance by the Common Council of the whole Kingdom This Common Council will not help you for without doubt here were no Englishmen in it for certainly they would not grant away their own Lands to strangers These were the Saxon Lands which William had given in Fee to his Soldiers to hold them under such services as he had appointed them and that by right of Succession or Inheritance We will now come to the second point viz. the Priviledges the Englishmen lost as to their Estates for whereas before the Conquest you affirm the K. could nor make Laws nor raise Taxes without the Common Coâ—ncil of the Kingdom it is certain K. William and his immediate Successors did by their sole Authority exercise both these Prerogatives as for his Legislative power it appears from the words of his Coronation Oath as you your self have repeated it out of Florence of Worcester and Roger Hoveden the conclusion of which Oath is se velle reâ—â—am legem statuere tenere Rapinas Injustaque Iudicia penitus interdicire Now the Legislative power was then lodged in him why else did he swear to appoint right Laws For if the constitution had been setled as it is at present the Parliament could have hindered him from making any other and that he could do so appears by that yoak of servitude which Matthew Paris as well as other Authors tells us K. William by his own Authority imposed upon the Bishopricks and Abbies in England which held Baronies which they had hitherto enjoyed free from all secular servitude he now says he put under Military service sessing all those Bishopricks and Abbies according to his pleasure how many Knights or Souldiers each of them should find to the King and his Successors and putting the Rolls of this Ecclesiastical Service in his Treasury he caused to fly out of the Kingdom many Ecclesiasticks who opposed this wicked constitution now if he could do this upon so powerful a Body as the Bishops and Abbots were at this time he might certainly as well raise what Taxes he pleased upon all the People of England and therefore Henry of Huntington tells us that K. William upon his return out of Normandy into England Anglis importabile tributum imposuit Lib. 3. p. 278. And that his Son William Rufus imposed what Taxes he would upon the People without consent of the Parliament appears by that passage of William of Malmesbury which he relates in the Reign of this K. as also in his third book de Gestis Pontificâ—m concerning Ranulâ— whom from a very mean Clerk he made Bishop of Duâ—ham and Lord Treasurer the rest I will give you in Latine Isle siquando edictum regium processisset ut nominatum tributum Anglia penderet duplum adjiciâ—bat subinde idente Rege ac dicente solum esse hominem qui sciret sic agitare ingenium nec aliorum curares odium dummodo complaceret dominum So that you may here see that the Kings Edict or Proclamation did not only impose the Tax at his pleasure but his Treasurer could double it when he had a mind to it without consent of the great Council or Parliament as we now call it and this Prerogative was exercised by divers of his Successors till the Statute de Tallagiâ— non concedendo was made But to come to the last head concerning the alteration of Tryals for mens Lives and Estates by the Conqueror from what they were before it is certain that whereas before the Conquest there were no other Tryals for mens lives but by Juries or else by Fire or Water Ordeal which was brought in by the Danes the Conqueror tho' he did not take way these yet also added the law then in use in Normandy of Trying not only Criminal but Civil Causes by Duel or Combat all the difference was that in criminal cases where there was no other Proof the accuser and accused fought with their Swords and the party vanquished was to lose his Eyes and Stones but in civil causes they only fought with Basâ—oons headed with Horn and Bucklers and he or his Champion who was overcome lost the Land that was contended for from whence you may take notice also of a great alteration in the Law not only concerning Tryals but capital Punishments so that whereas before the Conquest all crimes even Man slaughter it self were either â—ineable according to the Quality of the Person and the Rates set upon
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
same right by which they took upon them to make this Declaration by the same right not only every Curate of a Parish but also every Layman in England was free to Judge of the Kings breach of this Law and consequently of denying obedience thereunto which disobedience if it once prove general will quickly make the Kings personal commands wholly insignificant So that it seems it is not the Peopleâ— Judging of the Illegality of the Kingâ— Actions and Commands which is the thing you 〈◊〉 fault with since when these Bishops acted thus all the high men of the Church of England praised it to the Skie So that it seems it is now the bare Censuring and Disobedience that makes it a crime but it is the iâ—sisting such Violent and Illegal orders and commands and at last Declaring that Power void and forfeited by which they were made That sticks in your stomach which is as much as to say that this Judging and Disobedience in its self is no Crime but the pushing it home and doing it in such a way as that it may be mended for the future though this is never lawful to be done but when things come to that extremity that all milder remedies are become ineffectual But to answer your Objections a little more closely the consequences of my Opinion are not so dangerous as you suppose them if you will please to consider what I have already laid down at our last Meeting As first That this Resistance is never to be made but when this violent breach of the Laws becomes evident and undeniable not to the Rabble alone but to the whole Nation that is all sorts and degrees or men and as long as there is any question about it I acknowledge it is by no means to be used And lastly As to declare the Regal Power forfeited this likewise is never to be done but when the King becomes so obstinately resolved to pursue those evil and illegal coâ—â—es as that he is utterly irreclaimable and refuses all propositions and terms of amending or redressing them And as to what you say that the King is hereby depriv'd of all means of justifying himself or vindicating his Actions that is not so since if a War be once begun he may do this either by Declaration or Treaties as King Charles the First did in his War with the Parliament by which means he gain'd a great many both of the Nobility Gentry and Commonalty to his Party who were before absolutely set against him But if you will needs have a Parliament to Judge and examine the reality of this forfeiture I so far joyn with you that though every private man may first judge thereof yet is it not become absolute and an Act of the whole People till the Estates of the Kingdom have by some solemn Vote or Declaration made it so M. Well I see you do all you can to make the best of a bad Cause but though I think nothing of what you have said can give Subjectâ— any right to resist much less to cast off all Allegiance to their Natural Prince yet I shall not now dispute this point any longer with you but will proceed to the merits of the Cause and shall lâ—â— you see that even upon your own principles the King has not been dealt 〈◊〉 in all this whole transaction either like an Ally by the States General of the United Provinces or like a near Relation or a Son in-law by the Prince of Orange or like a King by his own Subjects To begin with the Estates in the first place it is apparent that they have acted treacherously with the King and contrary to the last Treaty of Peace and Alliance in furnishing the Prince 〈…〉 their Captain General and 〈◊〉 holder both with Ships Men and Money and make this late Expedition against England without so much as ever declaring the cause of their Quarrel or demanding any satisfaction if any occasion of difference had been given But the Prince of Orange his dealing with the King his Father-in law has been much less justifiable for in the first place he is not only guilty of the same fault with his Masters the Dutch in beginning a War without ever declaring the causes of it or demanding any satisfaction or â—eparation if he had been injur'd till it was too late to go back and that his Fleet was ready and the Army shipt for the Expedition but which was more unkind from a Nephew and a Son-in-law who had reason to expect all the satisfaction which a King an Uncle and a Father-in-law could give though indeed to speak the truth the whole War was in my Opinion altogether unjust on the Pâ—â—nces side since his chief pretences were to redress Grievances and to re-establish the Bishops and Church of England with the Colledges in their just Rights and also restore the whole Nation to the just Execution of the Laws by a Free Parliament and Priviledges Now I desire to know what the Prince of Orange had to do either as a Neighbour or a Son-in-law to concern himself with the Mis-government of the Affairs of England much less to countenance and take the part of those many Male contents and Traitours who have ever since the Duke of Manmouth's Rebellion gone over into Holland So that upon the whole matter I can find but one thing which he had so much as a pretence of making War about if it had been real viz. the pretended suppoâ—â—â—tioâ—s Birth of the Prince of Wales and yet even for this he ought not to have made War till such time as all reasonable satisfaction in this matter had been demanded and denied him and that the next Parliament which the King had before declared should meet in November last had been either hindered from medling in it or that they had faâ—â—'d to make a due enquiry into it But if we look home F. Pray Sir before you come to consider what has been done here give me leave to iustifie the late proceedings of the States General and the Prince of Orange in this matter First as to the Estates it is a very great mistake for you affirm that they made this War upon the King in their own names or furnish'd the Prince of Orange with Ships or Men as their Sâ—adt-holder or General but only as a free Independent Prince whom they looked upon to have a good Cause of making War against the King of England as one they had great cause to believe was so far engag'd in the France interesâ— as instead of standing 〈◊〉 in this War with the Empire which they every day expected when he would joyn with France and declare War against them as they had reason to â—ear by several angry Memorials which the French King's Eâ—voy in Holland had not long before given them so that indeed it was but according to the Rules of Self-preservation to begin first especially when it might be done without their appearing in it at allâ— but granting
Popish Faction instead of suffering the Elections for Parliament-Men to proceed as he had promised and as was hoped for by us all on a sudden he order'd the rest of the Writs for Elections that were not sent down to be burnt and a Caveat to be entred against the making use of those that were sent already into the Country and at the same time he sent Order to the Earl of Feversham to disband the Army and dismiss all the Souldiers with their Arms. But I had forgot to put you in mind that just before this the King had sent away the Queen with the Prince into France and that she carried the Great Seal of England along with her whereby it was plain the King intended to put it wholly out of his power to Issue out any Writs or Pass any publick Act wherein the Great Seal should be used and that this Seal was carried away appears by its being not long since drawn up out of the Thames by a Fisherman's Net near Lambeth Bridge where it 's supposed to have been thrown in by the Queen or some of Her Attendance in Her passage over the Water and farther that the King was resolved wholly to quit the Government of this Kingdom at least for the present appears by his so speedy following of the Queen within three days after stealing from his Pallace by Night in a Boat to Gravesend and from thence in a small Vessel to Feversham where how he was seis'd by the Mob of that Town and afterwards return'd to London as you have set forth I need take no further notice Now this being a true and fair Narrative of the whole Matter I shall only offer two or three questions to your consideration and desire you would give me a fair and satisfactory answer to them First pray tell me whether it was not the Kings fault that it was rendered impossible for Parliament-Men to be elected by burning of the Writs and sending away the Great Seal Secondly whether the King by first stealing away did not plainly confess himself conquer'd by the Prince and did thereby Abdicate the Government also by his obstinate refusal to redress the Grievances of the Nation hath forfeited his Crown and all Allegiance from his Subjects and was not after this to be own'd as King of England either by the Prince of Orange or any body else and therefore whatever treatment he after this received from the Prince it was not to be looked upon as done to a Lawful King but a Conquered Prince and his Highness might not only justly refuse to treat with him any more as a Crowned Head but might also have justified not only the taking him Prisoner but sending him into Holland if he had pleas'd but instead of this the Prince only desir'd his removal out of Town from that conflux of Papists that flocked to him and by securing his Person to put it out of their power to play an after-Game and rally the late disbanded Army of whom there was at least twenty thousand of the Scotch Irish and English who would have stood by the King till the last and therefore the English as well as the Dutch Counsel about the Prince did not think it safe for him to come to Town as long as the King had his Guards about him at White-hall since they might have been increased to an Army whenever he pleased And though I grant good breeding and manners especially to Kings as also respect from a Son-in-law to a Father are duties incumbent upon Princes as well as private Men yet when these lesser things stand in competition with their own welfare and safety as also of the whole Nation for which the Prince was now engaged if he might for these ends justly require the removing and securing the Kings Person it was no great matter what time of night he had notice to remove though this was not done neither with any design to affront or surprise him but happen'd indeed through pure accident for when it was resolved that the Princes Guards should March to London and secure White-hall it was also resolved that the King should have notice to remove and since it was not thought fit to let him know it till the Posts were all secur'd the ways being very deep and dirty between Windsor and London the Dutch Guards commanded by Count Solms could not reach the Town till past ten at night and after that it was near twelve before the English Guards about White-hall could be drawn off without fighting and till that was done it was not thought at all proper or safe to deliver to the King the Princes message for his departure so that indeed it was not of any design that either the Prince and his Counsel who ordered it or of these Lords who very well understand good breeding thus to deliver their message to him at that time of Night But tho he was in Bed yet that he was not a sleep is very probable since he had not been above half an hour in Bed and it is not very likely he should be a sleep when he very well knew before of the arrival of the Princes Troops about White-hall and therefore could not be without too much concern about it presently to compose himself to sleep But as for his removal from London it is plain that his Highness was so far from owning or receiving the King in the same capacity he was in before his departure that as soon as ever he heard he was at the Earl of Winchelsea's and about to return to London he sent away Monsieur Zulestein with a Letter to let him know that he desired him not as yet to come to London but to stay at Rochester till he himself should come to Town but Monsieur Zulestein missing of the King by the way he came to White-hall yet could not but know that his being there was not with the Princes consent since the same Gentleman followed him thither and there delivered him the Princes Letters so that this second Message by these Lords could be no new thing or surprise to him yet that his Highness never intended or acted the least violence towards the Kings Person may appear by this that he left it to the Kings choice what place he would go to as also what Guards or other Attendance he would take with him and the King refused to take his English Guards with him though they were offer'd him and indeed these Dutch Guards that attended him might in his Majesties judgment be very well trusted they being as well as their Officers for the most part Papists but that the Prince did not intend either to detain his Majesties Person as a Prisoner may appear in this that whilst he remain'd at Rochester none that would were debarr'd from access to him and that the Officers and Souldiers of the Guards were order'd to be under his command and every Night to take the Word from him and had it not been for the Kings
a generous Prince a Nephew and a Son-in-law and one who was bound in Conscience and Honour to consult the lasting Peace and Happiness of the Nation more than his own private interest or the ambition of wearing a Crown F. You have made the utmost defence that I suppose can be brought for the King 's first going away yet if it be better consider'd I doubt it will not serve the turn I see you are forc'd to lay the whole fault of the Kings departure in the midst of the Treaty with the Prince and his refusing to call a Parliament according to his own Promise and Proclamation upon his want of security for himself the Queen and Prince if he had stay'd by reason of the want of fidelity in his Army the general prejudice of the Nation against him and the great firmness and resolution there was in the Princes Army to adhere to him Now I shall shew you that every one of these were but pretences and that the real cause of his departure was because he fear'd to leave the inquiry into the Birth of the Prince of Wales and the free examination and redress of our grievances and those violations he had committed upon the fundamental constitution of the Government to the impartial judgment of a free Parliament For in the first place as to want of fidelity in his Army that can be no just excuse for his deserting and disbanding them as he did without any pay since he himself in his said Letter to the Earl of Feversham expresly owns that there were a great many brave men both Officers and Souldiers among them and therefore if he was satisfied of this he ought to have first sent for all his Officers both Collonels and Captains and have examin'd them how far they would stand by him in the Defence of his Person and Cause against the Prince of Orange and he might have also order'd those Officers to have examin'd every Regiment Troop and Company in his whole Army how far they would engage in his defence and if he had proceeded thus at Salisbury before he fled away in that confusion to London I have been credibly inform'd by divers Officers of that Army that the King might have found above Twenty Thousand men that would have stood by him to the last man in his Quarrel against the Prince and therefore I impute his going away as he did from Salisbury to some strange pannick fear that God had cast upon him and all the Popish Faction about him since he has been known not to want sufficient courage upon other occasions but though he had omitted it there yet he certainly ought to have tryed this last experiment after he came to London rather than have quitted the Kingdom so dishonourably as he then did and thereby giving the P. of Orange's Friends an opportunity of seizing or getting delivered into their power all the Garisons and strong places in England besides Portsmouth in those three or four days time that he was not heard of besides great part of the Army that was not disbanded had in that time gone in to the Prince in hopes of their pay and future preferment now that the King might with safety have resided with his Army somewhere about London he himself grants in his Proposals to the Prince to this effect That in the mean time till all matters were adjusted concerning the freedom of Elections and a security of their sitting the respective Armies may be retained within such Limits and at such distance from London as may prevent all apprehensions that the Parliament may be in any kind disturbed which Proposals being made not long after the Kings arrival at London we may reasonably suppose that he was then well enough satisfied with the fidelity of the greatest part at least of his own Army to him and if he were not he might have been better satisfied if he pleased but as for the next difficulty the Nations being poisoned and prepossessed against him admit it were so as long as he had a sufficient Army about him as I suppose he might have had he need not have feared any thing the People could do but indeed this was a needless fear for before the Parliament could sit it was not the Peoples Interest to hinder it or to fall upon the King or his Army when matters were in a fair way of accommodation so after the Parliament sate there would have been less cause of fear since the reverence of that Court would have kept them in awe but as to the firmness and resolution of the Princes Army the fear of that was also as needless as long as the Kings Army continued as firm to him and if the Princes Army had been the first Agressors I doubt not but the People would have taken part with the King against them but after all it was certainly and you must grant it so much more safe and honourable for the King to have treated with the Prince and held a Parliament with an Army about him than to have yielded the same things as you suppose him willing to have done after his return to Town when his Army was disbanded and London had received the Prince and had joined with him and when almost all the strong places of England were in the Princes power so that upon the whole matter it evidently appears that the King chose to trust his own Person together with that of the Queen and Prince to a Foreign Monarch rather than he would relye upon the justice or fidelity of his own Nation You say in the next place that nothing the King has done in all these exorbitances he committed that can in any wise amount to a Forfeiture or Abdication of the Government not to the former because the King redress'd all our Grievances before he went away 't is true I grant he redressed some of them by putting divers things in the same State they were before yet for all this the greatest still remained unredressed viz. the Raising of Mony contrary to Law and the Dispensing Power both which as I have already shewed you at our last meeting he never Disclaimed neither took any sufficient course by Calling a Parliament to prevent its being exercised for the future besides his going away without giving the Prince and Nation any further Satisfaction about the Birth of the Prince of Wales all which not being done I must still affirm that this wrought a forfeiture of the Crown or an Abdication of it at least by his refusal to Hold and Govern it according to the Fundamental Laws thereof for he that destroys the Law or Conditions by which he holds an Estate does Tacitly Renounce his Title to it As I shewed you in the Case of Tenant for Life altering in Fee So that this being considered as also that the City of London and the whole Nation had Surrendred themselves to the Prince of Orange and that even the Arch-Bishops of Canterbury and York
still here for the King did not leave Rochester until the 23d in the morning so it is plain it was not their design to own or take notice of him any more as King and that which makes it more remarkable is that several of the Bishops viz. the Arch-Bishop of York together with the Bishop of St. Asaph and others joyned with the rest of the Peers in these Addresses which was a plain sign they all looked upon the Kings Power to be now at an end But as for the Acclamations of the people or any great joy the City expressed upon the Kings return to Town I doubt you have had a false account of that matter for I cannot hear that any of the Citizens went out to meet him or set any Lights in their Windows though he came into London after it was dark or that any of the better sort bid him God Speed I grant indeed there was a great many of what you call the Mob but more Boys than Men who followed his Coach making Huzza's whilst the rest of the people silently looked on M. I cannot deny but you may have given a true account of these matters since you may have observ'd them better than I yet as you your self have Related them sure the King had sufficient cause to Consult his own Safety and make his escape as soon as he could for what could he expect when once the Prince had secured his Person under a Guard and had refused to Treat with him as King and that also the Peers and divers of the Bishops had made an Association to stand by the Prince of Orange and had made a fresh Address to him without taking the least notice of him as if there had been no such thing as a King in being I say what could his Majesty now expect but either a more close Confinement or else being taken off privately by poyson or some other ways since he could not be forgetful of the King his Fathers saying that there is no great distance between the Prisons and the Graves of Princes or admit he had lived till this Convention Saâ—e what could he have expected more than the retaining the bare Title of King whilst the Prince of Orange or some others appointed by Him had wholly managed the Government at their pleasure or else they might according to your Doctrine have either declared the Crown forfeited or else that he had Abdicated it by his going away or who can tell but they might have again renewed the Villany of 48. and have made him undergone the same Fate with his Father F. I grant you have urged the utmost that can be to justifie the Kings second Departure and as I would not deny but that he was the best Judge of his own Danger so were the Prince Peers and Common together with the City the best and only Judges we could then have of the true means of our settlement and safety since after so many breaches that the King had made upon his first Declaration and Coronation Oath as also his going from his late Promise of calling a Free Parliament I cannot see what farther security he could have given us that he would not repeat the same things over again or admit the Prince had suffered him to continue at White-hall and to call a third Parliament what assurance could he have given that in the end of another forty days we should not have the same trick play'd us and then in March or April have been left in the same state of Confusion we were in in December to the certain ruine of these three Kingdoms and Holland into the bargain And then by that time the French King might have got ready an Army and a Fleet and under a pretence of redeeming his Majesty from the constraint he lay under and of restoring him to the free exercise of his Regal Power have Invaded this Kingdom and I suppose you cannot deny but the King would then have sound Papists and High Tories enough to have joined with him in this pious design for certainly the scruples of the high Church-men would have been the same they are now the obligations of the Oath of Allegiance the same and the supposed Sin of deposing a Lawful K. the same though he had utterly refused to give the Prince and Nation any satisfaction so that then if we had been forced to take Arms and to declare he had forfeited his Right to the Crown all these things would have given as great or rather greater scandal than for the Nation to take him at his first offer and since he had thus rashly deserted the Throne by a needless departure to resolve he should Ascend it no more But suppose what might also as well have happened that the Prince and his Party had been killed or expelled the Kingdom by the King do you think he would have granted us then what he would not grant us now Would he not think you have disbanded his Protestant Army and have kept only Irish Scotch and French Forces in pay and have every day encreased them What respect can we hope he would ever after this have shewn to our Laws Religion or Liberties when he had now no longer any thing to fear The memory of what happened after the Duke of Monmouth's defeat though effected only by those of the Church of England will certainly never be forgotten by others whatever you Bigots of Loyalty may pretend or say So that for my part I stand amazed to see you and so many others scruple the submitting to the present King for if ever man had a just cause of War he had and that creates a right to the thing gained by it the King by withdrawing and disbanding his Army yielded him the Throne and is he had without any more Ceremony ascended it he had done no more than several Princes formerly have done on the like occasions for the Prince was no longer then bound to consider him as one that was but as one that had been King of England yet in that capacity he treated him with great respect and civility how much soever the King complained of it who did not enough consider what he had done to draw upon himself that usage but as for your insinuation that if he had stayed he might have run the same fate with his Father I think it is fuller of Passion than Truth for besides that the Lords and Commons would never had the Impudence to have committed such a Villany and the Prince himself as a Nephew and a Son-in-Law would never have suffered it M. Well God only knows the event of things and we ought to judge charitably and still to hope that if the King might have been restored upon terms that he would have been the better for his Affliction and have amended all those errours he committed since he had seen that neither the Nation nor yet his Neighbours the Dutch would permit him to make himself an Absolute
Monarch I believe he would have been too much afraid of the King of France ever to have made use of his Forces to have setled Popery and Arbitrary Government and without his assistance I suppose you will grant it never could have been done since he plainly found that a Protestant Army would never have joined with him to act in such pernitious designs but however let the worst have happened that could be I think it had been much better for the Nation to have endured it with Patience than to have done that which was Evil though for the procuring of the greatest seeming Good tho' for the advantage of our Religion and civil Liberties and therefore it had been better for us in this extremity to have trusted God than Men since he always promises to protect those that relye upon him and strictly perform his Will and admit the worst that could have happened God would either have removed those afflictions from us in due time or have given us Patience to have born them since I suppose you will not deny that God oftentimes brings Persecutions and Afflictions upon a Sinful Church and Nation either for a punishment for their Sins or else to give an occasion for those that are truly Pious and Sincere to shew their Courage and Constancy in Suffering for the Truth and by withstanding not by force but Passive Obedience all the Kings Illegal and Arbitrary Commands if he should after his re-establishment in the Throne have again renewed his former courses these are the only remedies which we of the Church of England as obedient Subjects to the King and his Laws must think could have been Lawfully taken in this case F. I do not deny but what you say is in the main very pious and honest were the case as you have put it but the greatest part of your discourse depends wholly upon those old principles and prejudices of the unlawfulness of all resistance of the Supream Powers and that the King is the only Supream Power in this Kingdom both which propositions I have sufficiently confuted at our third fourth and fifth meetings and also at our last save one in which I gave you a true account of the Legal sense of those Oaths and Statutes of King Charles II. concerning Resistance as was also given by the best Lawyers and most considering Men of the then House of Lords and Commons so that if the means we have used are lawful both by the Laws of God and Man I think we are not bound to bring Afflictions upon our selves but to avoid them all we can especially when they come evidently attended with the utter loss and ruine of what ought to be most dear to us our Religion Civil Liberties and Properties and that not only for our selves but our Posterity who perhaps would never have regained them when they were once lost of which the French Nation is an evident example before our Eyes who by not opposing the Arbitrary Power of their Kings in due time have fallen into a Government almost as Despotick as that of Turky for when once the common good of the Subjects ceases to be the main end of the Governours the Government then ceasing to be Gods Ordinance degenerates into Tyranny which I think may be always Lawfully opposed by a free-born People who at first agreed to be Governed not as Slaves but Subjects But as for the first part of your Speech it needs not any long answer it first supposes the King might have been again restored upon terms now since it is plain these Terms must have been imposed upon him against his Will and as necessary Conditions of his Restoration I would be glad to know who it was should undertake to impose them upon him and to see them kept when they had been made whether the Prince of Orange or the Parliament if the former I grant indeed he might have made such Conditions with the King that the Church of England as well as the whole Nation should for the future enjoy their Just Rights and Liberties but then the Prince must either have trusted wholy to the Kings Honour or else he must have had some strong places put into his Hands for a Security that the King would not again make the same Violations upon our Laws Religion and Liberties as he had done before if the former I suppose you will not deny but that the King might if he had pleased have broken them all again as soon as ever the Princes back had been turned and that he had been once engaged in a War with France which could not have been long avoided considering the necessity there is at this juncture of time for the States of Holland and Consequently the Prince as their General to engage with the Emperor and King of Spain to drive the French out of the Empire and to hinder him from making himself Universal Monarch of Europe which it is plain is the thing he now drives at But if the Prince should have kept any strong places here as cautionary Towns for the Kings performance of the Terms agreed upon this must have been done either by English or Forreign Forces if by the former this would have been looked upon as inconsistent with their Duty and Allegiance to the King if he should have commanded them to be delivered up into his Hands since you tell us the King has the sole Command of the Militia and consequently of all Garrisons man'd by his Subjects within his Dominions But if the Forces that should have held these places had been Dutch-men or other Forreigners it would never have been endured either by the King or the Nation that Forreigners should possess the strong Holds and Keys of the Kingdom and the King might soon have wrought by some jealousies and suspitions which he would not have failed to have raised that the Nation it self should have joyned with him to drive them out and then the King might have done what he pleased without Controul but if you will place this power into the whole People or Nation or else their Representatives the Parliament of holding the King to these Terms agreed upon this could not have been done without their constant Siting and a power of Resisting him in case he infring'd them and then either they must have given up all their Liberties to the Kings Will or else farewell to the Darling Doctrines of Passive Obedience and Non-resistance so that take it which way you will all imposing of Terms upon the King either by the Prince of Orange or the Nation would in a short time have become either Unpracticable or Insignificant Nor is your other Supposition any whit truer that the King would never have made use of the Forces of France to subdue and keep under the people of England for fear he should not be able to get the French out again Ti 's true this would be a very good Argument to a Prince who were no Bigot and was not resolved
during his confinement there sent a Lady I could name on a message to two reverend Prelates of our Church together with an Emrauld Ring from his Finger as a Testimony of the Truth of her Commission to this effect That his Majesty being sensible of the sad condition the Church of England as well as he himself was in and that there was no way so likely for him to get out of it as by granting his Subjects and particularly the Church of England such securities for the enjoyment of their just Rights and Liberties as they could in reason demand therefore he wholly left it to the discretion of those Bishops to make to the Peers and Bishops that were then to meet suddenly whatever proposals they should think reasonable on his behalf for the satisfaction of the Church and safety of the Nation and that he would be ready to grant and ratifie them whensoever he should be required F. This is indeed more than ever I heard before and can scarce believe but did the Lady go and deliver her message And pray what answer did those Bishop give to this fair proposal M. Yes the Lady did deliver her message and these Bishops answer'd both to the same effect that they had a real duty and affection for his Majesty and a great desire to serve him but that considering the great Power of the Prince of Orange and his present aversion to any agreement with his Majesty they very much feared that the Peers would not venture to give the Prince any such advice or to interpose with him on his Majesties behalf which in my opinion was very meanly and cowardly done of them who considering their duty to him as King and also those particular obligations they owed him as their Benefactor and who had been the greatest means of their being raised to those dignities in his Brothers Reign now I desire to know if this message had received its intended effect what greater demonstration his Majesty could have given to satisfie the World that he really intended to set all things right again had he been permitted to do it F. I will not farther question the Truth of this Relation though perhaps I might have sufficient reason for it since you say you had it from a person of good credit and who was privy to this transaction nor yet will I be so inquisitive as to know the names either of the Bishops or of the Lady since you make it a secret but yet notwithstanding I do still very much question whether the King did ever really design to do what he then offer'd and did not intend to put a sham upon their Lordships to serve his present occasion and to see if he could divide the Bishops and Peers of the Church of England from the Prince of Oranges Interest and so by making them offer such Proposals as the Prince should not think fit to agree to might make them declare against his proceedings which would have created great divisions and heart-burnings between those of the high Church of England party and the Prince and thereby have involved us again in fresh disturbances of which no doubt the King and the Popish Faction were like to receive the greatest advantage for you know the old saying divide impera But to let you see that I do not speak without just grounds for my opinion let us examine every circumstance of this matter first if the King had meant really is it likely that he would have trusted a business of that high moment to a Woman When he had then the Lords of Alesbury and Arron besides other Protestant Gentlemen then waiting on him and they were much fitter to be trusted than this Lady let her be whom she will Or can any one believe if the King had meant really that he would not have sent his Proposals in Writing since he very well knew from the Princes Declaration as well as the Bishops Petition and Addresses to him what the whole Nation and the Church of England in particular required at his hands But that he must send a loose and uncertain Message which it was in his power to disown whenever he pleased by saying the foolish Woman mistook his meaning and she also might be so much his Creature as to take the fault wholly upon her self whenever it should serve the Kings turn so to do and therefore I think it was very wisely and honestly done of those reverend Prelets to refuse medling in such a ticklish affair since it is plain by his not making any such proposals to the Prince of Orange himself or the Lords about him that he was not to be made privy to it but rather it should be carried on whether he would or no and without giving him any satisfaction in his particular concern as to the Prince of Wales and lastly I desire you farther to consider whether the King might not hereafter when ever he had power have made void whatever agreements or concessions he should have then granted either to the Church of England or to the Nation by pleading afterwards that they were obtained by decrees whilst he was not sui juris but under the Power of the Prince of Orange I have but one thing more to add which I before omitted which is to make some reply to what you said concerning the mischief that the Mob has done upon Houses Forests and Praks since his Majesty's first departure and therefore granting the matter of Fact that much mischief and spoil has been committed yet I deny that it is more than has been done by the most Arbitrary Kings since the Conquest to this day as you are pleased to affirm for I believe you forget the Thirty Parish Churches and Towns which our Historian tell us your William the Conquerour and his Son Ruâ—us destroyed when they inlarged new Forrests and therein acted contrary to their Oaths like true despotick Tyrants you likewise forget the miserable spoil and waste which King Iohn and Henry the III. made upon the Houses Castles and Estates of the Barons and Gentry of England who opposed them in their unjust and illegal violations of Magna Charta besides other Tyrannical actions of the same kind committed by King Edward and Richard the II. too long here to relate but if these mischiefs were done you speak of who have we to thank for it but the King who stealing away on the sudden without leaving any orders for the Government of the Kingdom all persons in Commission either Civil or Military doubted whether their Commissions were noâ— at an end by the Kings deserting the Government as he did besides you very well know that the Common People were so enraged against the Popish Faction for so many insolent actions they had committed in King Iames's Reign and so many apparent breaches and contempts of all the Laws made against them that you cannot wonder if when they were rid of the fear of the Irish and of King Iames's Army they kept
since according to your doctrine the bare endeavouring it would be nothing and after he had once brought it to pass it would be then too late to retrieve it But that the King did really endeavour thus to subvert the fundamental constitution appears not only by his closeting and threatning Members to turn them out of their places if they would not submit to his Will in taking off the Penal Laws about Religion whereby all freedom of Voting would have been quite taken away But when the King saw this would not do he then fell a new modelling of Corporations and by bringing Quo Warranto's against their Charters to get it into his own power to nominate or approve of all Mayors Aldermen and Common Council men who in those Corporations having the sole Elections of Parliament men he would thereby have had the naming of them also in his power your next exception is against their declaring him to have broke the Original Contract between the King and the People for that you are not yet persuaded there was any such thing because we cannot shew it you in any Common Law or Statute Book written in express words as for the Statute Law I grant that there is no such express Contract to be found in any Statute yet doth it not therefore follow that there is no such Contract by the Antient Common Law of the Kingdom Now that our Fundamental Laws are not all to be found in writing is no wonder since it is a maxime of our Common Law that it was not a Law because it was Written but it was Written because it was a Law for it was a Law when it was only in the Breast and Heads of the King and People of this Nation without any writing at all and you your self must grant that if the Hereditary Succession to the Crown be a Fundamental Constitution it is notwithstanding no where to be found in Writings as I know of but the contrary asserted by divers Acts of Parliament but that there is such a thing as an Original Contract I shall prove from such a necessary consequence as I think cannot be denied for as that Statute of King Iames. I. sets forth which I have now cited and your self have already acknowledged there are such things as Fundamental Laws that is Laws that are as antient as the constitution of the Government there must have been also an implicit Fundamental Covenant or Contract on the Kings part that he would maintain them without any violation and this is that we mean by an Original Contract and if it were not so it had been the most foolish and unreasonable thing in the World to require every King to swear before he was Crown'd that he would maintain the Rights of the Church and the Antient Laws and Customs of the Kingdom and that this was Antiently looked upon as a renewal of this Original Contract appears by all our antient Historians who till the Reign of King Ed. I. never give the next Heir the Title of King but of Duke of Normandy till he was actually Crown'd and had taken his Coronation Oath and for this I desire you would consult all our antient Histoâ—ians since your Conquest beginning with Inguâ—â— and Eadmerus ending with Thom. Walsingham But as for your exception against his violating of the Fundamental Laws is yet more trivial for you cannot deny that there are such things and if so surely a King may violate them if he pleases and therefore your excuse for the Kings breach of them because they are not to be found together in any one place but are to be pick'd up here and there from Magna Charta and other Statutes makes nothing against the validity or the possibility of his knowing them for as before they were reduced to Writing by those Statutes which only declare and confirm the Antient Common Laws and Liberties of England they existed as I said but now in the Heads and Hearts of the King and People so when divers Kings of England by their Tyrannical and Illegal practices had made divers violations of these Fundamental Rights and Priviledges there then grew a necessity of new granting and confirming those Liberties and consequently of reducing them into Writing which there was not before and that is the true reason why Magna Charta and other Statutes made in the time of Henry the III. Ed. the I. and divers others of their Successors were made either for their explanation or ratification according as occasion requir'd and as several Princes had more or less violated these fundamental Laws of the Government for before they had so done there was no need of the Parliaments making or declaring any law about it But if the King would have but read and considered the Articles exhibited in Parliament against Edward and Richard the II. he might easily have seen the Laws altogether that will make a Prince to be declared by his Subjects to have forfeited his Crown But that King Iames had before his desertion endeavour'd to extirpate the Protestant Religion the Laws and Liberties of the Nation appears by those several Articles the Convention has given us in their late Declaration which they presented to King William upon their declaring him and his Princess K. and Queen of England to which I shall refer you since it is commonly to be had you know it consists in the recital of divers things the violation of which has been always counted in all Kings Reigns a breach of the Original Contract I come now to the last Clause save one you except against viz. That having withdrawn himself out of the Kingdom hath Abdicated the Government Now your main argument against it is that the Kings desertion of the Government being only for fear of his life or of being depos'd from his Royal Dignity could not by his going away be said to Abdicate or renounce the Crown since he went away with an intention to return and repossess it as soon as with safety he might to which before I make any answer I must freely own that were this the case as you have put it I think there would be no great dispute in it since I grant that a King who is thus forc'd to fly for fear of his life ought not to have any such injustice put upon him but if you please better to consider it the case was quite otherwise for I have already proved that when King Iames I. went away he had then an Army about him was free and in his own Pallace and was at that time in actual Treaty with the Prince nor had London nor any considerable strong place in England then surrender'd it self to the Prince so that if there was any necessity for his departure but what he had brought upon himself by his refusing to call a Parliament burning the Writs and sending away the Queen and Child together with the main instrument of Government the Great Seal of England this must certainly be looked upon
offending from his Office or Dignity whether he will or not so that if the Convention have adjudged the King to have Abdicated they must suppose it to have been by his own consent or not at all but if they suppos'd him to have forfeited why did they not down right declare so as well as the Scotch Convention had done and then I could have â—old better what to have said to them and have proved that only Subjects and not Kings are liable to forfeituâ—e F. I will not deny but that the word Forfeited had been more proper than Abdicated in this Vote of the Convention but yet I think I have sufficiently proved that there is no great difference between a mans Abdicating an Estate by a wilful disposing of it otherwise than the Law requires and â— forfeiture of it as I shewed you that Tenant for life aliening in Fee doth not only forfeit his Estate to him in reversion but is also an Abdication of it though perhaps he had reserved to himself a lease of the Estate for years and this is call'd a Forfeiture of the Estate though he committed no other crime than the wrong done to him in reversion and therefore as I said before this Forfeiture doth not always suppose any crime for which the party may be punished otherwise than by the loss of the Estate nor yet doth it suppose any Superiour Power in the party that takes it But your exception against my authority from Tully or Mark Anthony's imply'd Abdication of the Consulship without any express renunciation of it is very â—rivolous for you your self own that Anthony did not expresly but only effectually renounce the Consulship when he offered Caesar the Crown and if he did not do it expressly then it seems Anthony could renounce the Consulship without ever intending it by doing an act that in effect abrogated his own power and why King Iames might not do so too with his Crown I desire you would shew me any sufficient 〈◊〉 But that the Convention did also look upon this Abdicatiâ—â— of King Iames as a Forfeiture appears plainly by their declaring the Throne Vacantâ— without troubling themselves to find out who was the next Heir to be placed therein But to conclude there might be a very good reason why the Convention did not think fit to make use of the word Forfeiture as the Parliament of Scotland have done in the like case for some of the most wary and prudent Members of the House of Commonâ— considering that this word Forfeiture might prove of very hard digestion to a great part of the House and also might give great offence to divers of the Bishops and Lords in the House of Peers they found out this word Abdicated is an expediâ—â—â— to solve that difficulty aâ—d which might not only express the Kings wilful desertion of the Government by his first departure but also his renunciaton of it upon those legal conditions he was to hold it 〈…〉 I have already observed the word Abdicated in their Vote refer not only to his having withdrawn himself out of the Kingdom but to all the rest of the clauses foregoing or else they would signifie nothing in that place both the Abdication and the Vacancy of the Throne being grounded upon all of them alike I should now proceed to your last exception against this Vote of the Conventions viz That the Throne is thereby Vacant But I see it is now very late and therefore it is best to defer the farther discussing of that matter till â—â—other opportunity which I desire I may have as soon as you please M. Yea and then we will also confides that part of the Conventions Declaration whereby they resolve that the Prince and Princess of Orange be declar'd K. and Queen of England c. which if you can prove to me to be according to the Laws of England I will then acknowledge them to be lawful King and Queen of England but till I am convinced of it I must beg their pardons F. Well I could wait on you again two or three days hence and then I hope I shall make out those points as well or better than any I have done hitherto and in the mean time I am your humble Servant M. I pray do it better if you can or else you will not very much edify me but however I wish you good night FINIS Bibliotheca Politica OR A DISCOURSE By WAY of DIALOGUE On these following Questions I. Whether the Vote of the late Convention wherein they declared the Throne to be vacant can be justified from the Ancient Constitution and Customs of this Kingdom II. Whether the said Convention declaring King William and Queen Mary to be Lawful and Rightful King and Queen of England may be justified by the said Constitution III. Whether the Act passed in the said Convention after it became a Parliament whereby Roman Catholick Princes are debarred from succeeding to the Crown was according to Law Collected out of the Best Authors as well Antient as Modern Dialogue the Twelfth LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford-Arms where also may be had the First Second Third Fourth Fifth Sixth Seventh Eighth Ninth Tenth and Eleventh Dialogues 1694. Authors most commonly used in this Discourse and how denoted in the Margin The Succession of the Crown discussed S. D. Dr. Brady's Exact History of the Succession to the Crown B. H. S. An Enquiry into the Nature and Obligation of Legal Rights E.L.R. The PREFACE to the READER THE ensuing Discourse being upon so Weighty a Subject as their present Majesties Title to the Crown it is requisite that I give you some Account of the Method I have pursued and what Authors I have made use of for the proving of it As to the former since the Main Questions in this great Affair are Whether the Convention can be Iustified in declaring the Throne Vacant and then placing their present Majesties thereon as the next Heirs it was necessary to shew from an exact History of the Succession of the Crown of England that the late Parliament whilst it was a Convention have done no more in this great Affair than what former Parliaments or Great Councils have done ever since the time of King William I. on the like Occasions when they have not only declared the Throne Vacant but have also judged which of the Royal Family were fittest to fill it and the Persons so placed therein have been still taken for Lawful Kings and as such have had true Allegiance paid them by all the Subjects during the time they continued possest of the Royal Power and Dignity As for the Authors cited in this Disquisition I have made use of the Antientest and those who lived nearest the times in which the Matters we treat of were transacted and therefore I have studiously forborn quoting any Authors in Latin or English who lived in more Modern Times unless when there are no other to be had that treat of
those Affairs But not to be partial to one Opinion I have faithfully recited all those Authorities and Arguments made use of by the Author of the Treatise Intituled The Hereditary Succession discuss'd as also by the Learned Dr. Brady in his exact History of the Succession of the Crown wherein those Authors endeavour to prove that the Crown of England is and hath always been Hereditary from the very beginning of our Monarchy notwithstanding the many and various Breaches that have been made upon it which Authorities and Arguments whether they prove the Matter in debate I shall leave to your better Iudgment but hope those Gentlemen will not take it ill if I cannot let all they write pass for clear Demonstration and therefore have taken upon me to cite all those Arguments and Authorities that either have been or as far as I know of may be made use of by those of the contrary Opinion in the performance of which if I have not dealt candidly with both Parties in fairly representing the utmost that they had to say I shall be obliged if any Friend to Truth will shew me my failings But tho it is true I have not gone higher in this History than the coming in of K. William I. yet I hope I may be excused looking farther back for these Reasons First because an Examination of the Succession before that time would not only be tedious by swelling this Discourse to an unreasonable Bulk but would also be superfluous since the Gentleman whom I suppose Freeman here Argues against makes K. William I. to have been an absolute Conqueror and to have altered all the former Laws in the Saxon Times and if so sure then those concerning the Succession of the Crown And I desire them to shew me any Reason if he and his Descendants held the Kingdom as Absolute Monarchs by Conquest why they might not bequeath or make it over as is justifiable in Patrimonial Kingdoms to which of their Sons Kindred or Relations they should think fit and if so what will then become of this Fundamental Right of a Lineal Hereditary Succession And besides all this it is needless upon another Account since I have already proved in the Tenth Dialogue from no less Authority than K. Alfred's Will that before the Conquest the Crown was partly Testamentary and partly Elective sometimes wholly Elective as in K. Edward the Confessor and whoever doubts of this I shall only desire them to read impartially Dr. Brady's above-mentioned History of the Succession and then I shall leave it to them to consider whether he does not grant in effect what he takes upon him to Confute viz. That there was no Lineal Descent of the Crown known or setled in those Times but what was Alterable by the Testament of those Kings But since the rest of this Discourse besides the enquiry into bare Matter of Fact is chiefly the applying those Precedents I have here made use of to the Case of their present Majesties I hope neither they nor any that wish well to their Government will resent it if I have not gone in the common Road of former Writers in supposing the Titular Prince of Wales to be an Impostor without any other proof than those bare Suspitions that have been publish'd in the Printed Pamphlets yet since however they may incline a Man to doubt they cannot make a Child Illegitimate whom his Father and Mother have hitherto bred up and owned for theirs and therefore I have rather chosen to suppose him at present to be the Lawful Son of King James and Queen Mary and yet that what the late Convention have done in passing him by without taking any notice of his Title was all that they could or were obliged to do his present Circumstances considered But if it be here made out that King William and Queen Mary are Lawful and Rightful King and Queen of this Realm no Man can doubt whether Allegiance may be sworn too them or not and perhaps there was no need of writing any thing farther yet since I find a great many of the Clergy as well as Laity of this Nation could not go higher than their swearing Allegiance to them as King and Queen de facto and that even this has been violently opposed by the sâ—iff Asserters of K. James's Right I have thought fit to add in the next Discourse which I promise shall be the last on this Subject all that hath been said Pro and 〈◊〉 upon that Question and to make it of the same Bulk with the rest I have for the satisfaction of those of the Church of England as well as Royal Interest endeavour'd to shew the great difference between this late Revolution and that fatal Civil War that ended with the Deposition and Murder of King Charles the First These two Questions together with an Index to all the Dialogues being dispatch'd as I hope they will be shortly shall be the last I shall trouble the World with upon these Subjects since I know nothing more that can be well added to what I shall there set down THE Twelfth Dialogue BETWEEN Mr. MEANWELL a Civilian AND Mr. FREEMAN a Gentleman M. I Am glad Sir you are come for I was wishing for you pray sit down and let us begin where we left off you may remember you promised me when we last parted that the next time I saw you you would make out to me from undeniable proofs and precedents from our Antient Histories and Laws that the present Convention had done nothing in Voting the Throne vacant and then placing the Prince and Princess of Orange therein but what may be justified by the Fundamental Laws and Constitutions of the Kingdom for I must still believe till I am better instructed that there can be no Inter Regnum in England but that it hath been from the first Institution of the Government an Hereditary Monarchy where the next Heir by Right of Blood unless in some manifest Usurpations has always succeeded to the last Predecessor as also our best Lawyers with one consent maintain in their Books of Reports and the Learned Finch in his description of the Common Law lays it down as an undoubted Maxim That the King never dies and therefore it seems altogether new and unheard of before for the Convention thus to declare the Throne vacant for admitting that King Iames had never so justly Forfeited or Abdicated the Kingdom term it which you please yet certainly there could be no Vacancy of the Throne since the next Heir by Blood ought immediately to have been declared King or Queen and so placed therein whereas we heard in the Countrey that there was almost ten days time before the Lords and Commons could agree whether the Crown should be declar'd vacant or not and when it was so declar'd it took up almost a weeks time more before they could agree who should be placed therein whereas it was a difficulty only of their own making for sure the Prince of
Wales though it is true he is carried out of England ought to have been immediately declar'd King as was done in the Case of Edward the 3 d. who was so declar'd upon the Deposition or Resignation of King Edward the 2 d. F. Though I grant ever since the Crown has been claim'd by Descent the Law has gone as you have cited it and that Finches Law lays it down for a Maxim I shall not deny but that from the beginning or original of Kingly Government whether we look before or after you Conquest it will appear that the Throne was often vacant till such time as the Common Council of the Kingdom had agreed who should fill it and to shew you I do not speak without good Authority pray tell me if this Maxim had then obtain'd why after the Death of William the First his Eldest Son Robert Duke of Normandy did not immediately take upon him the Title of King of England or at least had done it after the Death of William Rufus who you know was placed on the Throne â—not by Right of Inheritance but by his Fathers Testament confirm'd and approv'd of according to the Antient English-Saxon Custom of Succession by the common Consent of the great Council of the whole Kingdom and yet notwithstanding after the Death of this William Henry his younger Brother succeeded him by the free Election and Consent of the same Common Council and yet that Duke Robert should never in all his Life-time take upon him the Title of King Pray tell me likewise if this Maxim had been then known why Maud the Empress immediately upon the Death of her Father King Henry the First did not take nor yet her Husband the Duke of Anjou in her Right the Title of King and Queen of England though she had had Homage paid her and Fealty sworn to her in the Life-time of her Father as the immediate Successor to the Crown and yet notwithstanding the utmost Title she could assume was that of Domina Anglorum Lady or Mistress not Queen of the English whilst Stephen who had no other Title but the Election of the great Council of the Nation held both the Crown and Title of King as long as he lived As also why Arthur Duke of Britain who according to the now received Rules of Succession was the next Heir to the Crown upon the Death of King Richard the First never took upon him the Title of King unless it were that he very well knew that his Uncle King Iohn had been placed in the Throne by the Common Consent and Election of the great Council of the Kingdom So likewise after the Death of King Iohn why Henry his Son was not immediately proclaim'd King till such time as the great Council of the Clergy Nobility and People had met and agreed to send back Prince Lewis whom they had chosen for their King though not being Crowned he never took upon himself that Title and so chose Henry the Third then an Infant for their King Lastly Why all these Princes viz. Henry the Second Richard the First and Henry the Third who according to your notions were undoubted Heirs of the Crown never took upon them the Title of Kings of England nor are so stiled by any of our Historians till after their Elections and Coronations if it had not been then received for Law that it was the Election of the People and Coronation subsequent thereunto that made them Kings and till this was performed though they might look upon themselves as never so lawful Successors the Throne was notwithstanding esteem'd in Law vacant Therefore as for your Iâ—stance of King Edward the Third 's immediately succeeding upon the Resignation of his Father if you please better to consider of it that makes against you for it is plain from Th. Walsingham and H. de Knyghton that Prince Edward succeeded not to the Crown by Succession but the Election of the great Council or Parliament the words are express Huic Electioni universus Populus consensit and this was also owned by Edward the Second himself who when the Commissioners of all the Estates of Parliament came in all their Names to renounce their Homage to him yet in the midst of all his sorrow he gave them thanks quod Filium suum Edwardum post se Regnaturum eligissent which plainly shews that the Parliament had then such a Notion of a Forfeiture proceeding from his Deposition for violating the Fundamental Laws of the Kingdom that the Eldest Son and Successor could pretend no other Right to it even in the Judgment of the late King himself but what proceeded from their Election M. I cannot deny but what you have now urged from matter of fact may appear very plausible to your self and those of your Notions yet if it be looked closer into I doubt not but the known Laws then receiv'd and the Notions the people had then of a Lineal Succession by Right Inheriâ—ance will prove directly contrary to the matter of fact For you know very well à facto ad Ius non valte consequentia but that all the Princes you mention'd except the three last were really Usurpers and not Lawful Kings I shall let you see by evident Authorities from the Historians of those Times For in the first place though I grant William Rufus succeeded to the Crown by his Fathers last Will which was certainly unlawful as being contrary to the receiv'd Laws of Succession in Normandy as well as England yet was it not by Election of the people as you suppose but by the kindness of Arch-Bishop Lanfranc his God-father and the favour of the greater part of the Norman Barons who came over with his Father as well as out of hatred to Duke Robert his Elder Brother that he was thus made King so that William Rufus claimed as a Testamentary Heir and by reason of that Claim was advanced to the Throne by the Assistance of Lanfranc's and the Bishop's Faction who then swayed the people but yet never owned any Election from them so that if you rightly consider this Story you cannot call it an Election but a Designation or Nomination by his Father William the Conqueror and consented to by the major part of the Bishops and Lords of the Kingdom but not by their Election or Decree as a Common Council as you suppose But that for all this Duke Robert his Brother being assisted by Odo Bishop of Bayenx and Earl of Kent his Uncle as also divers other Norman Lords who being satisfied of his Right raised a War in England against William and great mischief was done on both sides till at last a Peace was made between them upon these conditions among others as Matthew Westminster relates it that because of the manifest Right Duke Robert had to the Crown he should have a Yearly Pension of three thousand Marks out of the Revenue of England and he of the two Brothers that surviv'd the other if he died
carried on with great vigour and though I grant that after divers changes of fortune the Empress was at last forced to quit the Kingdom yet her Son Duke Henry did not fail to continue his claim to the Crown in right of his Mother and coming over into England renewed the War against King Stephen which was at last compos'd by an agreement between them which as Matthew Paris and Mat. Westminster relate it was thus That King Stephen acknowledged in an Assembly of Bishops and other great men of the Kingdom that Duke Henry had an Hereditary right to the Crown and the Duke thereupon as kindly granted that King Stephen should peaceably possess it during his Life so that it is certain till this agreement even by his own acknowledgment he had no right to it and though I grant that the Empress Maud for some reasons we are not able to give a true account of never took upon her the Title of Queen yet it is very certain that she acted as such during all the time she was in England receiving Homage and Fealty from those Lords and others who came over to her side and also granting Charters and conferring Honours by the Title of Anglorum Domina which shews she look'd upon her self to be the Supream Governess of the Kingdom though not under the Title of Queen so that I think you can find nothing in this transaction that can support your Notion of Vacancy F. Pray give me leave to answer what you have now said before you proceed farther first I cannot excuse neither King Stephen for taking the Crown nor the Bishops and Great men that set it on his Head from perjury and injustice since the Emperess Maud had been before in a Common-Council of the whole Kingdom declared the Lawful Successor and that Fealty had been sworn to her as such All that I insist upon in this affair is this that Quod furi non debâ—t factum valet And though this ought not to have been done yet when once done did stand good and therefore if whilst the Throne was vacant King Stephen by the Election and Consent of the Bishops and Great Men of England was placed therein he was there looked upon as true and legal King as long as he lived And this was the reason why the Emperess never took upon her the Title of Queen of England no not when she had taken King Stephen prisoner and one would have thought might have justly done it as a Conqueress But yet she forbore it because that Title was not then to be taken without the consent of the Great Council of the Kingdom which I cannot find she ever held her party being not great enough to make one And though I cannot deny but that she might in some particulars exercise some prerogatives of Royal Power yet this was only upon a pretence of her being Elected and Stiled by this Title of Lady of the English in a Synod of the Clergy at Winchester by the procurement of Henry the then Bishop of that See and the Popes Legat who was now turned against his brother King Stephen For she was never generally received nor own'd as Queen nor did she ever exercise those great prerogatives of Sovereign Power viz. Calling of Great Councils making of Laws raising of Taxes or Coining Mony But whereas you represent King Stephen to have been Elected but by a very small party of the Bishops and Noblemen of England yet it is very much to be doubted whether William of Malmesbury who Dedicated his History to Robert Earl of Gloucester King Stephens greatest Enemy being no friend to his Title is to be altogether credited in this matter For Henry of Huntington who lived not long after tells us expresly that Omnes qui Sacramentum juraverant tam Praesules quam Consules Principes assensum Stephano praebutrunt hominium fecerunt And it is also as certain that the Earls of Gloucester and Chester the two greatest men of England did then likewise swear Allegiance to him and own his Title though they afterwards revolted from him again Yet could they do nothing considerable against him till his own Brother the Bishop of Winchester revolted also from him upon pretence that the King had violated the Rights of the Church And though it is true that after the Empresses departure out of England Duke Henry her Son came over and prosecuted the War against King Stephen yet could it not be in his own but his Mothers Right who was then alive Nor could the agreement you mention be made between the King and the Duke as having then a right to the Crown in his own Person since we read of no concession the Empress his Mother had made to him of it And therefore whatever Title Henry could claim thereunto Upon the death of King Stephen it was wholly due to this Kings adopting him for his Son and declaring him his Successor upon condition that he himself should enjoy the Crown during his life which agreement was solemnly confirmed and ratified and that by Oath in a full Assembly of all the Bishops Lords and great men of the Kingdom For Ordericus Vitalis in his Annals p. 989. Is very express in the manner of this great Transaction in these words Sic tamen in praesentiarum ipse Rex Caeteri Potentes Sacramento â—irmarent quod Dux post mortem Regis si tempore eum superviveret pacifice aâ—â—que contâ—adâ—ctione Regnum haberet therefore as long as the Empress Maud lived who died after her Son King Henry's coming to the Crown ' â—is plain he could have no Hereditary Right to it notwithstanding what Matthew Paris and Matthew Westminster who lived long after these Transactions have said to the contrary and therein are to be looked upon as Authors that speak their own sense rather than that of the Writers of those times M. I confess what you have urged in this matter concerning Duke Henry's being admitted as Heir of the Kingdom during the Life of his Mother the Empress Maud seems to the purpose and there could be nothing said against it but that this was done by the Concession of the Empress her self who surrender'd all her pretentions to her Son tho' we have no particular account of it or else which is more likely in my opinion that the Government of Women being then unknown in England and Normandy and consequently odious to the English and Norman Nobility and for which reason chiefly they had before set this Empress aside they thought they did in effect perform their Oath to her when they acknowledged her Title in her Son Duke Henry who is said by the Historians of those times to have succeeded Stephen Iure Haereditario which could not at all agree with your notion of his receiving his Title from the Consent or Election of the great Council But I shall pass over this and come to your next instance of the Vacancy of the Throne which you pretend
to have been upon the Death of King Henry the II. Now your only argument to prove this is that King Richard tho' his Eldest Son alive was only call'd Duke of Normandy and never King of England till after his Coronation but whoever will but consider the circumstances of this matter will find that he was indeed own'd for King of England before his pretended Election or Coronation for before his coming into England to be Crown'd Rocer Hoveden tells us That every Freeman of the whole Kingdom by the Command of his Mother Queen Elianor swore quod fideni portabit Regi Angliae Richardo Regis Hen. filio which plainly shews that he was then by common intendment looked upon as King before his Coronation and though I confess that this very Author also relates that all the Estates of the Kingdom being assembl'd at London by whose Council and Assent the said Duke was Consecrated and Crown'd King of England and though Ralph de Diceto then Dean of St. Paul's who in the Vacancy of that Church then supplied the Office of the Bishop at King Richard's Coronation hath this passage Comes itaque Pictavorum Richardus hereditario jure praemovendus in Regem post tam cleri quam populi solemnem debitam electionem involutas est triplici Sacramento c. Now what can this solemn and due election here signifie Or what can it mean farther than that Richard being King by Hereditary Right was so owned and recognized by the Clergy and Laity F. I desire I may reply to this before you proceed farther I confess what you say about the Empress Maud's surrender of her Right to her Son Duke Henry would be considerable if you had any Authorities from our Antient Historians to support it but since you have not I look upon it as no better than a meer surmise of those of your opinion that the Crown was then enjoy'd by an Hereditary Right without any consent or election of the people and so likewise is your other fancy that because Women were then looked upon as uncapable to Govern therefore the Bishops and great men of the Kingdom suppos'd they had sufficiently perform'd their Oath of Allegiance to her by acknowledging her Son Duke Henry for the right Heir of the Crown now if this had been so pray tell me to what purpose King Henry I. Father to the Empress should have made all the Estates of England swear fealty to his Daughter if a Woman had been then lookt upon as uncapable to Govern or to what purpose should the Clergy in the Council at Winchester chuse this Empress as the King's Daughter Lady both of England and Normandy as William of Malmesbury tells us expresly that they did and that he was present at it or how could the great Council of the Kingdom believe that they had sufficiently satisfied their Oath to the Daughter in conferring the Allegiance that was due to her upon her Son I am sure no Heiress of the Crown would look upon that as a good performance of their Oath at this day when you can answer me these queries I shall be of your opinion in this point but till then I beg your pardon But as to what you say against the Vacancy of the Throne upon the Death of King Henry the II. till King Richard was Elected and Crown'd I desire no better Authority to the contrary than those very Authors you have now cited for your opinion for first Hoveden in the very place you have quoted him says That the Duke was to be Crown'd King by the Council and Asâ—â—nt of all the Parties there present now if I understand any thing of Grammar or Sence he was not King before and therefore needed their Assent to make him so likewise in the next quotation from Ralph De Diceto the Duke is said Hereditario jure promovendus in Regem which words being in the Future Tense shew he was not then but was to be promoted to that dignity now if his Hereditary Right alone could have done it then to what purpose are all these words aforegoing so that though this Right gave him the fair pretence to succeed to the Crown yet it is plain from both the Authors you have quoted that he was not so till after the due Consent and Election of the Clergy and People so that after all your questions what can this solemn and due Election signifie or what can it mean farther than that Richard being King by an Hereditary Right was so own'd and recognized by the Clergy and Laity will receive a very easie answer from what has been already said till you can shew me out of any Dictionary that Consilium and Assensus which are the words of Hoveden and the words Solemnis debita electio ever signified an owning or recognition of an Hereditary Right I confess the only colour you have for your interpretation of those words in Hoveden which you have now cited of Queen Elianors making every Freeman of the Kingdom swear Fealty to Richard King of England as to their Liege Lord from whence you would infer that by common intendment of Law he was looked upon King of England before he was Crown'd and consequently there could be no Vacancy of the Throne now admit that he was commonly call'd King before he was Crown'd or that the Queen his Mother would make the People swear to him as such yet that could not make him so since the same Historians also tell us that Hubert Archbishop of Canterbury and William Earl Mareschal made the people of England take a like Oath to Earl Iohn as their Lord not King immediately after the death of King Richard his Brother and yet I suppose you will not affirm that their swearing Fealty to him as their Superiour Lord made him King or gave him a just Title to the Crown and I desire you or any indifferent man to tell me which was Hoveden's opinion whether this swearing Fealty was a sufficient Declaration of his â—eing King or else all those other expressions which signifie the contrary when immediately before his Coronation he only calls it ducem Richarâ—m qui Coronandus erat in Regem which I think is as plain a distinction of his being a Duke before he was Crown'd and a King afterwards as words can make M. I see it is in vain to urge this point any longer and therefore I shall proceed to your next instance of the Vacancy of the Throne after the death of King Richard until King Iohn was placed therein now though it is certain that this Prince was an Usurper upon his Nephew Duke Arthur yet whether he was ever Elected in a Common Council of the Bishops Earls and Barons of the Kingdom is very doubtful But suppose he were it was done wrongfully and to the prejudice of Arthur Duke of Britain the right Heir to the Crown who being young and a stranger it is no wonder if he were put by and his Uncle who
was a man and better acquainted with England and having the Interest of the Arch-bishop of Canterbury and most of the great men were of his party and yet for all that Hoveden who was alive at this time speaks not a word of his being Elected but only that upon his coming into England he was received by the Nobility and Crown'd by Hubert Arch-bishop of Canterbury so that there is not one word there of any Election by but only a submission from the Lords Spiritual and Temporal to King Iohn and a recognition that he was their King nor indeed could he need it if it be true what the same Author tells us That when King Richard despar'd of Life he devised to Iohn his Brother the Kingdom of England and all his other Lands and caus'd all those that were present to do him Fealty and this is related by Hoveden in all probability an Eye Witness of these transactions So that the first Author we find to mention any thing of the particulars of this pretended Election is Mâ—tthew Paris who has given us the Speech which the Arch-bishop made at this supposed Election and also reciting the Arch-bishops Bishops Earls and Barons and all others who ought to be at his Coronation the Arch-bishop standing in the middle of them said thus Hear all of you your Discretion shall know that no man hath right to succeed in this Kingdom unless after seeking God he be unanimously chosen by the University of the Kingdom that is those that are here said to meet at London the rest of the Speech needs no repeating only he lays it down for Law which I think was never heard of before That if any of the Progeny of the dead King did excel others they ought more readily to consent to the Election of him and so upon this Speech made in behalf of Earl Iohn and full of a great deal of fulsom slattery he was declar'd King But to let you see what a sort of Man this Arch bishop Hubert was here see what the same Author tells us in the same place that being asked afterward why he said these things answer'd That he guested and was thought ascertained by certain Prophecies that Iohn would bring the Kingdom and Crown into great Confusion and therefore lest he he might have too much liberty in doing he affirmed he ought to come in by Election and not by Hereditary Succession Now though this Learned Doctrine of the Arch bishop asserts a right of Election in the Convention of Bishops Earls Barons c. yet by his own answer when he was asked why he said these things it clearly discovers it to be only a design and artifice in the Archbishop to cause them to set up and make Iohn King and in which also he denies any such right of Election but since Hoveden nor any other of our antient historians make mention of this Election but only of his Coronation and the Bishops Earls and Barons assisting at it not giving their consents to it it may very well be that that story of an Election and this Speech of Arch bishop Hubert might be only an invention of Matthew Paris or rather of Roger of Wendover from whom he took most of his History but that this doctrine of the Arch-bishop concerning the Election of our Kings if meant according to the modern understanding of it was then new Gervase a Monk of Canterbury in the year 1122. who also speaking of the Coronation of Henry the First says it was manifest and known almost to all men that the King 's of England were only obliged and bound to God for the possession of the Kingdom and to the Church of Canterbury for their Coronation manifestum est autem omnibus fire notum Reges Angliae soli Deo obligari teneri ex ipsius regni adeptione Ecclesiae Cantuariensi ex Coronatione But that King Iohn was looked upon as an Usurper is very certain since besides some of the honest English Nobility that took Duke Arthurs part the King of France did also make War upon King Iohn upon his Nephews account because he looked upon him as true Heir to the Crown and therefore when K. Iohn had privately made away his said Nephew in prison the K. of France summon'd him as Duke of Normandy and Peer of France to answer for the Murther in an Assembly of the Peers of France at Paris where for his refusing to appear he was condemn'd to death and his Dukedom of Normandy declar'd forâ—eited to the King of France F. I confess you have said as much as can be to prove that King Iohn had no Hereditary Right to the Crown nor was so solemnly Elected to it as Matthew Paris relates but yet for all this I think I may very justly oppose all that you have now said upon this Head for in the first place it was then very much disputed as it hath been also since that time if an Elder Brother died and left a Son a Mâ—nor whether his Younger Brother or the Son should succeed for though the People of Anjou and those of Guienne own'd Duke Arthur for their Prince yet the States of Normandy were of another mind and as well by vertue of King Richard's Testament he was immediately after his Death invested with that Dukedom nor was he then at all opposed in it by the King of France though Supreaâ— Lord of the Fee and as for England besides his Brothers Testament whereby he left him Heir of all his Territories it was also then generally held in England as most consonant to the Antient English Saxon Law of Succession that the Uncle should succeed to the Crown before the Nephew therefore it is no wonder if Duke Arthur found so small a party here not any Bishop Earl or Baron as I read of owning his Title and as for the King of France it is also as certain that he did at first own King Iohn for lawful King of England and Duke of Normandy and entred into a Treaty of Peace and made a League with him as such though it is true that afterwards when he had a mind to pick a quarrel with that King he then set up Duke Arthur's Title And though this Duke was made away in the beginning of King Iohn's Reign yet did not the King or Peers of France ever take any notice of it till about twelve or thirteen years after when he had now unjustly Conquered all Normandy and almost all that Kings other Territories in France and then wanting a Title to keep them he began this Prosecution you mention against him and upon his non appearance he was condemned unheard but that the King of France himself and all the great men of that Kingdom did look upon him to have been lawful King of England appears by that Speech which Matthew Paris relates to have been made after King Iohn's Deposition by the Barons of England by a Knight whom Prince Lewis
grant that Hoveden as you cite him relates that Homage to be made and Fealty sworn to Richard the I. by the Title of King yet is it very much to be doubted whether this was not only by a Prolepsis or perhaps a slip of the Pen in this Author since he writ this History long aâ—ter King Richard's Death and therefore without we had the very words of this Oath there is no certain conclusion to be drawn from thence and I think we may as well credit the Chronicle of Abbot Brompton who likewise lived about the same time and recites all this affair almost in the same words with those in Hoveden but there the Oath does not run exactly in the same words as in this Author but thus quod unusquesque liberorum hominum totius regni Iuraret quod sidem portaret Domino Richardo Domino Angliae filio Domini Regis Henrici c. ficut legio Domino suo contra omnes mortales where you see the Oath is not made to King Richard as King but only as Lord of England and that there is a great deal of difference between those two Titles not only in name but in Substance I have already prov'd when I spoke of the Empress Maud's stiling her self Domina and not Regina Anglorum tho' she had Homage rendred and Fealty sworn to her not only in her Fathers Life time but also after her coming over again into England in the Reign of King Stephen by all that own'd her Title and that Hoveden himself meant no more than this appears by that passage I have already taken notice of viz. that Hubert Arch-bishop of Canterbury and William the Earl Marshal being sent over to keep the Peace made all the men of the Kingdom as well of Cities as Burroughs with the Earls Barons and Free-holders Iurare fidelitatem pacem Iohanni Normanorum duci filio Henrici regis filii Matildis Imperatricis contra omnes homines where you see the Oath is taken to him only as Duke of Normandy and not as King at all and therefore you are mistaken to say that Hoveden mentions the like Oath to be taken to Duke Iohn as it was before to King Richard But I come now to answer your last argument whereby you would prove that there was no Vacancy or inter-regnum in this Age which is because that our Chronicles and Tables of Successions do still begin the Reigns of each King from the day of the Decease of his Predecessors without any Vacancy or Inter-regnum between them to which I reply That none of our antient Chronicles or Historians reckon thus as I know of but rather acknowledge a Vacancy of the Throne to have been between each Succession and as for the Tables of the Succession of our Kings when you can shew me one more antient than the time from which I grant the Crown of England began to be looked upon as a Successive and not an Elective Kingdom I shall be of your opinion but admit it were so since the Succession to the Crown has been for the most part mixt partly Elective and partly Hereditary our Kings might to maintain the honour of their Title still reckon their coming to the Crown immediately from the death of the last Predecessor tho' there has been oftentimes some days and weeks between the one and the other as I have now proved and shall prove farther by and by which being but small fractions of time are not taken notice of in the whole account which may be notwithstanding very agreeable to Law for both my Lords Dyer and Anderson in their Reports do agree That the King who is Heir or Successor may Write and begin his Reign the same day that his Progenitor or Predecessor dies M. It will be to no purpose to dispute this point with you any longer since I must confess that there were so many Usurpations in the Succession of most of those first Kings after the Conquest that it is a difficult matter to prove any setled rule of Succession to have been then observed in England and therefore I only desire you to take notice that though it is true King Henry the 3 d was an Usurper for the first Twenty five years of his Reign yet for all the rest of it which was near Thirty more he was a true and lawful Prince for Elianor his Cousin being dead in Prison without issue and there being no more of that Line left her Right wholly devolved upon King Henry and he and his Children are to be from henceforth reckon'd to have a true Hereditary Right to the Crown without any Competitors And that this was so will plainly appear from the Testament of King Henry the 3 d. a Copy of which I have by me where tho' he Bequeaths a great many of his Jewels to the Queen and a great deal of Money to charitable uses yet for this Kingdom and other Territories in France and Ireland he makes no Bequest of them at all either to Prince Edward his Eldest or to Edmund his youngest Son tho' his Father King Iohn had bequeathed the Kingdom to him by his Will as you have already shewed and what could be the reason of this But that there being now no Title left to contest with his Son there was no need of it and therefore tho' Prince Edward was absent in the Holy Land when his Father Died yet a great Council being call'd in his Name at London he was there only recognized and acknowledged to be their natural Leige Lord and Lawful Successor to his Fathers Throne pray read the words as they are in Walsingham's Life of this King Edwardum absentem Dominum suum Leigium recognoverunt paternique successorem honoris ordinaverunt we meet not here with any thing like Election which no doubt we should not fail to do if there had been any such thing practised So likewise upon this King's death his Son King Edward the 2 d. by the like Right succeeded as Heir to his Father and tho' this Prince by suffering himself to be too much guided by his Minions fell at length into such Arbitrary and Irregular courses as procured him the hatred and ill will of his Subjects to that Degree that by the Disloyal and Ambitious practices of his Lascivious Queen he being made Prisoner a Parliament was call'd in his name who took upon them to Depose him for his misgovernment contrary to all Law and Right and though his Son Prince Edward had hitherto join'd with his Mother against his Father yet is he herein so far to be commended that tho' the Crown was offered him by Election of the Great Council yet the same Author tells us he swore that without his Father's consent he would never accept it whereupon divers Messengers or Delegates being dispatched from the Parliament to the King then Prisoner at Kenel-worth Castle who told him what had been done and concluded of at London required him to resign his Crown and
permit his Son to Reign in his stead which though with some reluctance he at last agreed to and thereupon Prince Edward took the Crown not by Election as you set forth but by the cession and resignation of his said Father as appears by the account which this King gave of it to the Sheriffs of all the Counties of England within a few days after his taking upon him the Crown which Writ or Letter is still to be seen among the Roll's in the Tower and is also published in Walsingham as a Proclamation which because it will give very great light in this matter I pray now read it at length Rex vicecom Ebor. Salutem quia Dominus Edwardus nuper Rex Angliae pater noster de communi confilio assensu praelatorum Com. Baron Alior Magnat necnon Communitat totius Regni praedict spontanea voluntate se amovit a Regimine dicti Regni volens concedens quod nos tanquam ipsius primogenitus haeres Regni gubernationem regimen assumamus nosque ipsius patris nostri bene placito in hac parte de consitio avisamento Praelator Com. Baron Magnat Communitat predict onnuenâ—es pubernacula suscepimus dicti Regni fidelitates Homagia ipsorum Praelitor Magnat recepimuâ— ut est moris teste Rege apud Westmonast 29. Ian. So that you here see this King takes no notice of the deposition of his Father or the Election of himself but only that by the Common Council and Assent of the Prelates Earls Barons c. The King his Father had by his own free Will removed himself from the Government of the Kingdom and that therefore he had by the good Will of his said Father and by Council and Advice of the said Prelates Earls c. taken the Government of the said Kingdom upon him But King Edward the 3 d. being dead his Grandson Richard the 2 d succeeded him having been before recognized by Act of Parliament as Heir Apparent to the Crown in his Grandfather's Life Time immediately upon the Death of his Father Edward the black Prince so that he succeeded to the Crown though an Infant and having great and powerful Uncles then alive and though by his ruling too Arbitrarily and being too much govern'd by Flatterers be became hated of his Subjects and thereupon gave occasion to Henry Duke of Lancaster whom he had before banished to come over and take the Kingdom from him without striking a stroak and having taken the King Prisoner call'd a Parliament in his name who took upon them most unjustly to Depose King Richard tho' 't is true he also made a solemn resignation of it by his own seeming consent but it is certain it was forced from him for fear of worse usage if he refused it F. Pray give me leave to answer what you have now said before you proceed farther in this History of the Succession In the first place I shall not deny but that from the Reign of King Edward I. the Crown has been always claim'd tho' not constantly enjoy'd by right of Blood yet that the custom was otherwise before I think the Instances I have given from the time of your Conquest are more than sufficient it is likewise as certain that this Succession by right of Blood was never setled by any positive Law and therefore must be purely derived from that Tacit consent of the People called Custom Secondly That the two Houses of Parliament have often notwithstanding this claim placed or fixed the Crown upon the Heads of those Princes whom they very well knew could have no Hereditary Right to it Thirdly That such Princes have been always obeyed and taken for lawful Kings all their Laws standing good as this day without any confirmation by their Successors tho' they pretended to a better Title Now if I prove every one of these three propositions I think the case will be very plain that though the Crown has been claim'd and often enjoy'd by right of blood yet hath it been held near as often otherwise since that time so that the Succession to it hath been still declar'd under the direction and limitation of the Present King and Parliament This being premis'd I shall proceed in the next place to answer what you have said concerning King Edward the first 's being only Recogniz'd and not Elected King by the Parliament it is plain from this History that the Great Council still maintain'd their anâ—ient right of assembling upon the death of the King and of Judging who should be his Successor and that without any summons from him which will serve to justifie as do all the other instances aforegoing that the late Convention meeting and setling the Crown without any Writs or Authority derived from King Iames was no new thing but that they have therein done no more than what hath been antiently practised in like cases and tho' 't is true the words in Walsingham is recognoverunt yet there is also other words which seem to intimate that it was then in the power of the Great Council whom to declare for lawful Successor the words are Paternique Successorem honoris ordinaverunt that is they ordain'd or decreed him Successor of his Fathers Dignity which sure is somewhat more than a bare Declaration of an undoubted precedent Right and what power the Great Council was then looked upon to have in the ordering of this Kingdom appears by that Writ of Dedimus for all mens taking the Oaths of Allegiance in the Country which is still to be seen in the close Rolls and begins thus Quia defuncto jam celebris memoriae Domino Henrico patre nostro ad nos Regni Gubernaculum successione Haereditaria Procerum Regni voluntate fidelitate nobis praestita sit devolutum c. where besides the Hereditary Succession the good Will and Fidelity of the Great Men is reckon'd as one of the means by which the Kingdom came to him and that this course was also observed upon the accession of his Son Edward the 2 d. to the Crown seems likewise as evident from the same Author who tells us in the beginning of the Life of this Prince that he succeeded his Father King Edward non tam jure Hereditario quam unanimi consensu Procerum Magnatum which observation had been altogether needless had an unalterable Hereditary Right to the Crown been the setled But as to what you say of King Edward the 3 ds Right whilst his Father was Living to have been wholly due to his resignation tho' the place I cited out of Walsingham be express in this point yet against this you urge a Writ or Declaration as also a Proclamation of this Kings wherein he thus sets forth his Title viz. That by the Voluntary resignation of King Edward his Father and by the Council and Advice of the Prelats Earls and Barons c. he had taken upon him the Government of the Kingdom and consequently that
Man hath in an Estate which is his Right let him be what he will or let him mannage it how he will Whereas in the Right to a Kingdom I take it to be a true Maxim That the Representatives of a Nation as the Convention was ought to have more regard to the happiness and safety of the whole People or Common-wealth than to the Dignity or Authority of any particular Person whosoever or howsoever nearly related to the Crown when it is evident that the advancement of such a Person to the Throne will prove destructive to our Religion Civil Liberties and Properties Now give me leave to apply what I have said to the Point now in question Let us therefore at the present suppose that your Prince of Wales is true and lawful Son to King Iames and Queen Mary and let me also farther suppose that in his late passage over Sea he was taken by the Pyrates of Argiers or Tunis and by them been carried to one of those places and been bred up in the Mahometan Religion and after he had been Circumcised and fully grounded in that abominable Superstition the Grand Seignior together with the Kings of Argier and Tunis should send this Nation word that if they would not admit him quietly for their King and allow him all those Priests he should bring with him a free exercise of their Religion in England they would then make War upon this Nation with all the Forces they could raise I ask you what we ought to do in this case whether we should receive him for our King or keep him out M. I must confess it is a nice Question and since it is a thing that never did yet nor I hope will ever come to pass I think I may freely Answer you That supposing this Prince could be proved to be the very same who was carried away so many years ago we ought notwithstanding his false Belief to receive him especially if he would solemnly Swear only to worship God in private after his own way and that he would Swear not to violate our Religion or invade our Liberties and Properties and this being done I think we ought then to admit him for our lawful Sovereign since as you your self have already acknowledged at our third Meeting the Supreme Powers are not to be resisted because they are of a different Religion from that of the People or Nation they Govern F. Very well But let me tell you In this you are much more kind to Mahometan and Heretical Princes than the Church of Rome who have decreed That no Prince ought to be received as right Heir to a Crown who is a Pagan Turk or Heretick and upon this ground it was that the States of France during the time of the League by the Pope's Decree refus'd to own Henry King of Navarre for their Sovereign and also that the Papists of the Nuntio Party in Ireland during the late Rebellion refused to own the late Duke of Ormond for Lord Lieutenant of that Kingdom because the King was a Protestant But pray answer me a Question or two further Suppose this Prince refus'd to promise these or such things or else if he did promise and Swear them pray tell me how could we be assured that according to the Principles of that Religion he had been bred under and those Arbitrary Notions he had learned concerning the Absolute Power of Kings in Barbary and which he would believe due to himself as being as Absolute a Monarch as any of them I say how such a Prince ever could be trusted Since if he had the whole Power of the Militia in his hands he might bring in what number of Turkish or Moorish Guards he should think fit who might easily set up that Religion and Government too in this Nation since according to your Principles of Passive Obedience and Non-resistance no Man ought to lift up so much as a Finger against him though he went about to make us all Turks and Slaves M. Well supposing all this as long as it is his Right he ought to have it let the consequence be what it will F. You have said enough I desire no more but I hope every true Protestant and English man will be of another mind if ever such a case should happen but indeed it appears very strange to me that a natural Disability such as Ideocy or Lunacy should be esteem'd sufficient in all Kingdoms to debarr the next Heir from the Government and yet that a Moral or a Religious Disability should not have the same effect and though I grant that a King ought not to be Rebelled against or resisted meerly because he is of a different Religion from that of his Subjects for I was never for resisting King Iames meerly upon that score yet it is another thing when a Prince is not actually possessed of the Throne but is to be admitted to it upon such Conditions as may appear safe for the Religion and Civil constitution of a Kingdom In this case if a Prince be certainly infected with such pernicious Principles either in relation to Religion or Civil Government it is much otherwise as for Example That no Faith is to be kept with Hereticks That his own Religion is to be propagated by Arms Blood or Persecution That no Government can be safe for the Prince or in which he can appear Great or Glorious but as an absolute Monarch let such a Prince be either a Christian or a Mahometan I think it would be a certain ruine to a Kingdom to be obliged to receive such a Prince when they were morally sure that he would not only subvert their Religion but destroy the very professors of it and not only those but alter the Civil constitution too by turning it from a limited Kingdom into an absolute despotick Tyranny To conclude I shall only desire you to consider into what a Country your Prince of Wales is carry'd and what Instructors he is like to have and what Principles he will receive from them and then pray tell me if he continues there till he is a Man what difference there will be between this young Prince bred up in such a Religion and such Principles and the same if he had been carried away by Pyrates to Argier as I at first suppos'd M. This is a very invidious Comparison for though I do not approve of the Roman-Catholick Religion yet sure there is a great deal of difference between that which professes all the Articles of our Creed and in which we of our Church own Salvation may be obtained and the Mahometan Superstition which denies that fundamental Article of our Creed viz. That Jesus Christ is the Son of God and as for Civil or Political Principles I hope the King his Father will take care to have him instructed by some of those English Noblemen or Gentlemen who are now with him in the Customs and Constitutions of the English Government and wherein it differs from the French
as we read Chancellor Fortescue did Prince Henry Son to Henry the VIth and I hope he will come over again to practise them in his own Country before he comes to be infected with the Arbitrary Principles of the French Government but as for those of not keeping Faith with Hereticks and a propagating his Religion by Persecution I doubt not but the King his Father will take care not to commit his Education to any of those who are infected with such Principles and I am the more inclin'd to believe it because it is very well known that his Majesty's tenderness and moderation in matters of Religion and not persecuting any body for the belief or bare profession of it as it was the greatest cause of his late Declaration of Indulgence so it was the main original of all his late Misfortunes nor can I see any reason why a King by being a Roman Catholick must necessarily be a Tyrant and a Persecutor since you cannot deny but that we have had many good and just Kings of that Religion and it is from those Princes that professed it that we derive our Magna Charta and most of the priviledges we now enjoy F. Though I would not be thought to affirm that the Romish Religion is every way worse than the Mahometan yet this much I may safely affirm that there is no Doctrine in all that Superstition so absurd and contrary to Sence and Reason as that of Transubstantiation held by the Church of Rome in which the far greatest part are certainly Idolators which can never be objectâ—d against the Turks and therefore though I will not deny but that a Man may be saved in the Communion of the Romish Church yet it is not for being a Papist but only as far as he practises Christ's Precepts and trusts in his Merits that he can ever obtain that favour from God But as for those evil Principles both in Religion and Civil Government which you cannot deny but are now commonly believed and practiced in France and which you hope King Iames will take care that the Prince his Son shall be bred to avoid I wish it may prove as you say but if you will consider the Men that are like to be his Tutors and Instructors in matters of Religion viz. his Fathers and Mothers Confessors the Jesuits and for Civil Government those Popish Lords and Gentlemen of notorious Arbitrary Principles and Practises who are gone over to King Iames you will have small reason to believe that there is ever a Fortescus now to be found among the English-men in France or who is likely to instill into him those true English Principles you mention And though I do not affirm that every Popish Prince must needs be a Persecutor yet since that wholly depends upon those Priests that have the management of their Consciences shew me a Prince in Europe who has a Jesuit for his Confessor and tell me if he hath not deserved that Character But though I am so much of your Opinion that King Iames ownes the greatest part of his Misfortunes to his Declaration for Liberty of Conscience yet was it not so much to the thing it self as to his Arbitrary manner of doing it by assuming a Dispensing Power contrary to Law and you may be very well assured by the little opposition which the late Acts met with for taking off the Penalties against Conventicles and not coming to Church in respect of all Dissenters except the Papists that King Iames might have as easily obtain'd a like Act to pass in respect of those also as to the free profession of their Religion and having Mass in their Houses which is more than the Papists will allow the Protestants in any Country in Europe And therefore I must beg your pardon if I still find great reason to doubt whether K. Iames his tenderness towards those that differ'd from him in matters of Religion and the Indulgence he gave them were purely out of consideration of tender Consciences and not rather thereby to destroy the Church of England Established by Law since the Dispute began between King Iames and his Parliament was not about Liberty of Conscience but those Offices and Commands which the King was resolved to bestow upon the Papists whether the Parliament would or not And certainly there is a great deal of difference between a Liberty for a Man to enjoy the free profession of his own Religion and the power and benefit of having all the chief Imployments of Honour and Profit in the Common-wealth But that the Indulgence of Popish Princes towards those that dissent from them in matters of Religion may not always proceed from pure Tenderness and Compassion appears from a Manuscript Treatise of F. Parsons that great Jesuit in Queen Elizabeth's time which I have been told was found in King Iames's Closet after his departure This if you can see it will shew you that the subtil Jesuite doth there direct his Popish Successor in order to the more quiet introducing the Romish-Catholick Religion to grant a general Toleration of all Religions out of a like design Thus did Iulian the Apostare long ago tolerate all the Sects and Heresies in the Christian Religion because he thereby hoped utterly to confound and destroy it But as to what you alledge concerning Magna Charta's being granted by Popish Princes and that there has been many good Kings of that persuasion As I will not deny either the one or the other so I desire you to remember with what struglling and great difficulties this Charter was at first obtain'd and afterwards preserved though it was no more than a Declaration of most of those Antient Rights and Liberties which the Nation had always enjoy'd And you may also remember that they were Popish Princes who more than once obtain'd the Pope's Dispensation to be discharged from those solemn Oaths they had taken to observe those Charters and though there hath been divers good Princes before the Reformation yet even the very best of them made the severest Laws against Protestants and were the most cruel in their Persecutions witness King Henry the IVth Henry the Vth and Queen Mary And indeed it is dangerous to rely upon the Faith of a Prince who looks upon it as a piece of Merit to destroy all Religions but his own and when he finds it cannot be done by Law will not stick to use any Arbitrary means to bring it about To conclude pray consider whether the strict observing or violation of Magna Charta and his Coronation Oath hath been the cause of King Iames's Abdication Pardon this long Discourse which your Vindication of the Opinion and Practises of Popish Princes hath drawn from me M. Pray Sir let us quit these invidious Subjects which can do no good since Princes must be own'd and submitted to let their Principles and Practice be never so Tyrannical and let us return again to the matter in hand I will therefore at present suppose
the Prince of Wales to have been either dead or justly laid aside now make it out to me how you can justifie the placing the Prince and Princess of Orange in the Throne when the Crown is really her right after the Prince of Wales and not her Husbands as also the putting the Government solely into his hands since this can no ways agree with the Act of Recognition to King Iames the First which you your self cannot deny but ought to be observed when it may be done without any apparent hazard or prejudice to the Protestant Religion and the Constitution of our Government which I think might have been as well if not better secured by letting it have gone in the right Line that by placing the Crown upon the Head of a Prince who though it is true is of the Blood-Royal by his Mother yet being a Foreigner is a meer Stranger to our Government and Laws and has been bred up in Calvinistical Principles and upon that score is not like to have any good intentions towards the Government and Ceremonies of the Church of England as appears by his late agreeing to abolish Episcopacy in Scotland upon his accepting that Crown from the Presbyterian Convention F. If these be all the objections you have to make against placing King William and Queen Mary in the Throne I hope they will not be of any great moment to your self or any other considerate man for if that upon the Abdication of King Iames and the impossibity of determining your Prince of Wales's Title if it be one a Regency was impracticable and unsafe for the Nation at this conjuncture of time when we want a King to hold a Parliament as well to raise Money to defend us against the Power of France as also to make new Laws for the ease and reformation of the Kingdom all which a Regents acting without Royal Authority could never do by the constitution of this Kingdom so that if there was now a necessity of placing some body in the Throne for the Common Good and Safety of the whole Common-Wealth I think you your self cannot but acknowledge that the Princess of Orange had an Hereditary right to the Crown and if her Highness had the Prince her Husband also ought to Govern the Kingdom in her Right during her life and those who deny King Henry the VIIth to be Lawful King before his Marriage with the Princess Elizabeth will yet grant he was so in her Right after his Marriage and this has not been only the Custom in England but also in other Kingdoms of Europe as I can give you several Instances For upon this ground it was that Ferdinand King of Arragon by Marrying with Isabella Queen of Castile Governed that Kingdom during his Life so also Anthony Duke of Bourbon marrying with Iane Queen of Navarre did in her Right administer the Government of that part of it which was left unconquer'd by the Spaniards and here at home Philip Prince of Spain by his Marriage with Queen Mary had certainly in her Right Govern'd this Kingdom and had enjoyed something more than the bare Title of King had he not by the Articles of Marriage confirm'd by Act of Parliament been expresly debar'd from it M. Admit all this to be true yet this was only the enjoyment of a bare Matrimonial Crown and held no longer than during the Lives or Marriage with those Queens you mention But pray tell me how can the Convention according to the antient constitution of this Kingdom justifie the settlement of the Crown not only on King William during the Queens Life But for his own Life also to the prejudice not only of his own Issue if ever he have any by the Princess but also of the Princess of Denmark and her Heirs F. I doubt not but to shew you that this may be easily justified by the constitution of the Kingdom and former Precedents of what hath been done in the like cases First as to the Constitution I have already proved that upon the deposition of a King which is all one with a Forfeiture of the Crown the Great Council or Parliament hath taken upon them to Elect or Admit either the next Heir by Blood or some Prince tho' more remote of the Royal Family to the Crown thus King Henry the IVth upon the Deposition or Resignation of King Richard the Ild. was placed in the Throne by the Arch-Bishop of Canterbury after the two Houses had Voted and consented he should Reign over them though I grant that by right of Blood Edmund Earl of March ought to have succeeded to it but he being then a Child was passed by unmention'd Duke Henry being then powerful and having deliver'd the Kingdom from the Tyranny and Evil Government of Richard the â—Id I shall pass by Richard the IIId because I own his Government to have begun by Unsurpation and to have been established by the Murther of his Nephews But as for Henry the VIIth I have already shew'd you that the Parliament before his Marriage with the Princess Elizabeth setled the Crown upon him and the Heirs of his Body by vertue of which he held it all his Reign whereas there is no such thing done in the present case of King William since he hath only the Crown setled upon him during his own Life with the remainder after his decease without Issue by the Queen to her and not his Right Heirs and as for such Children as he may have by her it is agreeable to reason that he should hold the Crown by that which we call the Courtesie of England during his Life and not from a King to become a Subject to his own Children in case he should desire to live here after her Majesties decease which I hope God will prevent M. I confess you have drest up a pretty plausible Title for King William but yet all that you have said amounts to no more than this that because other Kings have been Usurpers he may be so too for as to all the instances you have brought they have been only from depositions or manifest usurpations both which our Laws have condemned as absolutely unlawful as I have shew'd you hath been declar'd by two Acts of Parliament against the Title of Henry the IVth and his Descendents but since you will not insist upon the right of Richard the IIId I pass to that Act of Henry the VIIth which as I told you before so I must repeat it again that it was done upon his supposed Right by Blood as Heir to the House of Lancaster and upon that pretence he claimed the Crown as his Right in his Speech to the first Parliament he called besides the Princess Elizabeth the Queen de Iure made no claim to the Crown and so did tacitly resign it which seemed to make him de Iure as well as de Facto King and if it were done otherwise I look upon that whole Act as void in it self because made by him
before his Marriage with that Princess and whilest he was and Usurper upon her Right so that certainly it is no argument that since Parliaments have acted illegally therefore your Convention may do so too for it is a known Maxime in our Civil Law a facto ad Ius non valet consequentia therefore whatever they have done toward creating a good Title to King William in respect of the Queen his Wife and his Issue by her yet this doth no way excuse the wrong done to the Princess of Denmark and her Issue in case they survive your King F. 'T is very wonderful to me to see how ingenious some Men are in finding faults with the present settlement of things though never so much for the best if not done exactly according to suit with their Humour or Hypothesis when indeed there can no fault be justly found with it for you agree that if the Queen hath a Right King William hath so also during his Life and whether the Princess of Denmark and her issue may survive the King is yet uncertain but if either she or they should happen to survive his Majesty yet since she hath made no claim or protestation in the Convention against the Kings holding the Crown after the Decease of the Queen I cannot see why this should not pass for a tacit Resignation oâ—â—er Right as well as in the case of the Princess Elizabeth you but now mentioned But admit his present Majesty according to the late received rules of Succession hath not a Title by Descent yet according to those principles I have already laid down he certainly has not only a Right to the Crown from that inherent power which I suppose doth still remain in the Eslates of the Kingdom as Representatives of the whole Nation to bestow the Crown on every Abdication or Forfeiture thereof on such Prince of the Blood Royal as they shall think best to deserve it and upon this account I conceive there is none of the Blood that can stand in competition with his Present Majesty for Prudence Valour Moderation and all other Royal Vertues and therefore it is not at all to be wonder'd at if the Convention hath in this case exercised that Original Power which the People reserved to it self at the first institution of Kingly Government in this Island especially if we consider his present Majesty not only as a Conquerour over King Iames but as our Deliverer from his Oppression and that Arbitrary Government that we were so lately under and which was like to be much worse had his reign continued a little longer Therefore I cannot but here take occasion to vindicate his Present Majesty from those exceptions you have made against his Country and Civil as well as Religious Principles First As to his Country 't is true he is a Foreigner yet that can he no exception against his admission to the Throne since it was none against his great Grand-father King Iames and I doubt not but his Majesty may understand as much of the English Constitution and Government as his said Grand father did when he first came to the Crown But as for his principles in Religion I cannot see any reason to suspect him more inclinable to the Church Government of Holland then that of England since he was bred up under a Mother who was always firm to the Religion and Discipline of our Church and ever since he was Married to the Princess he hath always shew'd a very great respect to its Liturgy and Ceremonies by his so constant frequenting his Princesses Chappel so that besides his Majesties Interest to maintain Episcopacy as most agreeable to the Monarchy and Antient Constitution of this Kingdom it is likewise if he were able not in his power to destroy the Church of England since the main body of the Clergy Nobility and Gentry of this Nation is to zealous for its preservation that if he had any such inclinations it would not be easie for him to effect it and he is too wise a Prince to let others persuade him so visibly against his own interest and having so late an example before his Eyes that it was King Iames's ruine to attempt it As for what you say of Scotland 't is true Presbitery is for the present set up there but it is uncharitable to impute this to the Kings inclinations for it is notorious that of them which call themselves Episcopal in that Kingdom a very great number did either out of prejudice to the Princes Cause or in contempt of his Power refuse to be chosen Members of the Convention or else after they were chosen did so far adhere to King Iames's interest as to desert it as did my Lord Dundee and many others and by that means gave the Presbyterian Party an advantage to carry all things as they pleas'd and this Party finding the King not well settled here and the Irish in Ireland in Arms against him took hold of that opportunity to put the abolishing of Episcopacy into the very instrument of Government and to press it upon him at a time when an unavoidable necessity and the obstinacy of too many of the Episcopal Party forced him to consent to it wherefore this no way shews his Majesties inclinations to set up Presbytery even in Scotland much less doth it prove he would set it up here where the Circumstances are quite different for here the main body of the People hate that Government and will be so far from desiring it that they will never endure it so that as to this your fears of King William are as vain as your hopes of King Iames. I shall conclude with a few words in answer to your reply against those examples wherein I have shewn you that the Crown hath always been under such a disposition as the two Mouses of Parliament should appoint to which you have nothing else to object but that their admission of Henry the IV th to the Crown was condemned as unlawful by two Acts of Parliament which I have already answer'd by showing you that those Acts were obtain'd by Richard Duke of York and Edward the IV th his Son by actual Rebellion and by as great a force upon King Henry the VI th as ever was used against King Richard the II d by Henry the IV th and as for the Statute of the first of Henry the VII th you have found out a very easie way of answering it by affirming that it was done whilst he was an Usurper and before his Marriage or that he had any right to be King But by this way of arguing no Act he ever passed would be good since It is certain he did never take upon him to Govern in right of his Queen as all those that have writ his Life do acknowledge and therefore if the Parliament would then settle the Crown upon him and his right Heirs without any respect to his Queen or her Issue or Sisters in case she should die
the Nation from his Oppression though the Prince was pleas'd to accept it upon those terms expressed in the late Declaration of the Convention and upon his free promise to preserve preserve our Religion Laws and Liberties which he has since also confirm'd by his Coronation Oath But as to what you say that the Prince made the Kings Army desert him and wrought the People into hatred of his Person by lying Stories and mean Arts is altogether untrue since I know of no Reports he made of the King or his Government but what are in his first Declaration and that is certainly true in every part of it and as has been justified by the express Declaration of the Convention in every particular except that concerning the Prince of Wales which I confess is left still undecided because as I have already proved it is impossible to give any certain judgement in it unless the Witnesses as well as the Infant himself could be brought over hither nor doth the Prince in his said Declaration say any more concerning that business than that there are violent suspicions that the pretended Prince of Wales was not Born of the Queen but for the report of the Secret League with France for the extirpation of the Protestant Religion as there is no such thing in his Highnesses Declaration so the spreading of it cannot be laid to his charge since he never gave it out as I know of yet there are certainly great presumptions and too much cause of suspicion that it may be so as I proved at our last Meeting But though you will not allow the Prince the Title of our Deliverer yet I am sure the greatest part both of the Clergy and Laity of the Church of England were once of Opinion that King Iames's violations both upon our Religion and Laws were so great that nothing could preserve the Kingdom from a total Subversion in its Establisht Religion and Civil Constitution but his Highnesses coming over and most of the Bishops were of that Opinion who now the Government is setled refused to take the Oath of Allegiance to their present Majesties But to answer what you say that the manner of Henry the IV ths and Henry the VII ths coming to the Crown doth not at all agree with this Case of King William because they claimed by right of blood which you say King William cannot do that is not so in respect of the Queen who has certainly a right to succeed her Father by right of blood in case the Prince off Wales be not the true Son of the Queen and untill he can be proved so we must at present look upon him as if he were not so at all so that the Convention hath done no more in setling the Crown upon the King during his Life than what the Great Council of the Kingdom have frequently done before upon other vacancies of the Throne as I have proved from the Examples of William Rufus and Henry the First King Stephen King Iohn and Henry the Third And it is very hard to suppose the whole Nation to have been guilty of Perjury and Treason upâ—n their Swearing to and Fighting for those Princes after they were so Solemnlâ— Elected Crowned and Invested with the Royal Power But as for Edward III. his first and best Title was from the election of the Great Council of the Kingdom who I doubt not but if they had found him unworthy of the Royal Dignity by reason of folly or madness or Tyrannical Principles would have set him aside and have made his youngâ—â— Brother King a Protector to govern in the King's Name with Royal Power having never been known in England till the Reign of Henry the VI th but as for Henry the IV th notwithstanding his claim by right of Blood I have already proved that the Paâ—liament by their placing him in the Throne did not at all allow it nor is any such Right recited in the Act of the 7 th of Henry the IV th which by the Crown is entail'd upon that King and his four successive Sons And though it is true Henry the Seventh also claim'd the Crown by right of Inheritance in his Speech in Parliament yet they were so far from allowing it that they do not so much as mention it in that Act of Setlement which as I have recited they made of it upon that and the Heirs of his Body And therefore I think I may still maintain that the Convention hath done nothing in the present Setlement of the Crown but what hath been formerly done upon every vacancy of the Throne either by deposition or resignation of the King or Abdication or Forfeiture of the Crown as in the case of King Iames in which the Convention have done no more than exercised that Power which has always been suppos'd to reside in the great Council of the Kingdom of setling the Crown upon such a Prince of the Blood-Royal as they shall think best to deserve it Thus much I have said to preserve the Antient Right of the Great Council of the Nation But to put all this out of dispute I have been credibly inform'd that the Princess of Denmark her self did by some of her Servants in both Houses as well of the Lords as Commons declare upon a great Debate that arose about securing her Highnesses Right to the Crown immediately after her Sister the Queen that her Highness had desired them to assure the Convention that she was willing to acquiesce in whatever they should determine concerning the Succession of the Crown since it might tend to the present setlement and safety of the Nation which I think is a better Cession of her Right to his present Majesty than any you can prove that the Empress Mawd made to her Son Henry the Second or than the Countess of Richmond ever made to her Son Henry the Seventh M. You have often talked of this forfeiture and extravagant Power of your Convention by whom you suppose they are not obliged to place the Crown upon the head of the next Heir by Blood which I shall prove to be a vain Notion for if there be an absolute forfeiture of the Crown the Government would have been absolutely Dissolved for since there is no Legal Government without a King if the Throne were really vacant and that the People might place whom they pleas'd in it yet the Convention can have no Power to do it as their Representatives since upon your suppos'd dissolution of the Original Contract between the King and the People there was an end of all Conventions and Parliaments too And therefore if a King could have been chosen at all it ought to have been by the Votes of the whole body of the Clergy Nobility and Commons in their own single Persons and not by any Council or Convention to represent them since the Laws for restraining the Election of Parliament-men only to Freeholders are upon this suppos'd Dissolution of the Government altogether void and
if you say such a way of Election is now impossible I shall do so too but however it plainly shews the absurdity of supposing a King could ever now be fairly Elected were all the Blood-Royal totally extinct As for what you say concerning that Cession which the Princess of Denmark made of her Right to the Crown I never heard any thing of it before but admit it were so this could only serve in relation to her self and she could not give up the Right of her Brother the Prince of Wales no nor that of her own Children if God shall give her any F. This Objection concerning the total Dissolution of the Government proceeds from a wanâ— of your consideration of what the antient Government of England was not only before but a good while after your pretended Conquest which was not a setled Hereditary Monarchy but a Testamentary or Elective Kingdom where the Kings being often recommended by the Testament of the precedent King were chosen out of the Royal Family though not according to the Ruler of Succession now in use and therefore in all such Governments it is very well known that there was at the first institution of Kingly Government among them a great Council or Assembly of Estates of the whole Kingdom appointed who upon the death of the last King and vacancy of the Throne were still to meet of course to appoint a Successor which was commonly one of the Sons of the last King or at least some other Prince of the Royal Blood Thus it was till of late years in Denmark and Sweâ—den and so it was antiently in France during the Succession of the first Race as also in Spain during the Government of the Vandals and so it likewise was in England during the whole Succession of our English Saxon Kings and so I have also proved it continued till Edward the First And though since his time that the Crown hath been claim'd by right of Inheritance yet in all times precedent it is apparent that the great Council of the Kingdom upon the deaâ—h of every King Assembled by their own inherent Authority to consider whom they should place in the Throne which they then looked upon as vacant And therefore though I grant in the case of Edward the First the Parliament did not only ordain him Successor to his Father but also recogniz'd his â—ight by Blood yet for all this they still remain'd their anâ—ient Power of meeting without Summons from the King he being in the Holy Land and they not knowing whether he was alive or dead so that it is a false assertion to affirm that there can be no Government without a King since in all those vacancies of the Throne it is plain the Government devolved of course upon the geat Council of the Nation And though it is true there can be now no Parliament without a King according to the present notion and acceptation of that Term yet before that word was ever in use which is no older than about the middle of the Reign of Henry the Third it is plain that our great Councils often met by their own inherent Authority without any King and preserved the Peâ—ce of the Kingdom till a new King was either chosen or declared And though 't is true the Crown hath been long enjoy'd by those who have claim'd by Inheritance yet there is no reason for all that if the like cases should fall out as have done in former times why the Government should devolve to the mix'd Multitude now any more than it did then since it may be as well suppos'd that the same tacit Contract still continues of maintaining the Original constitution of great Councils which I have proved to be as Antient as Kingly Government it self And though perhaps the Form of chusing or sending thâ—se Representatives of the Nation may have been alter'd in divers particulars by for â—er Laws or received Customs yet this is nothing to the purpose as long as the thing it self remains the same in Substance as it was before for it can never be thought to have been the intent of the People who Established this form of Government that upon the extinction of the Royal Family the Government should be so quite dissolved as that it should be left to the confused Multitude to chuse what form of Government they should think fit Therefore to conclude I wish you would be perswaded to own this Government as it is now Established and to take 〈◊〉 Oath of Allegiance which is enjoyn'd by the Declaration of the Convention who are the only proper and legal Judges we can now have of conferring the Rights of those to whom our Allegiance is due And if in case a Dispute about the right Heir of the Crown the People of this Nation were not all bound to the decision of this Assembly we must necessarily fall together by the ears and fight it out as they do in the East-Indies where upon the death or deposition of a King he has still the Right who can Conquer his Competitors in Battel M. Well I wish there were not something very like it practised here of late for I think you will grant that if the Prince of Orange's Party had not prevail'd over the King 's the Convention would never have placed the Crown upon his head But I must beg your pardon if I cannot agree to your Proposals of taking the New Oath of Allegiance to King William and Queen Mary since I have already taken the Oaths of Supremacy and Allegiance to King Iames and I do not believe that any Power on earth can disengage me from that Oath as long as he and his Son the Prince of Wales are alive For as to your Doctrine of Abdication or Forfeiture they are too hard for my Reason to understand or for my Conscience to comply with and therefore it is all one to me whom your Convention places on the Throne since I am very well satisfied that none but the King can have a Right to it F. I wish I could see some better reasons for this opinion of yours than those you have already given for if you could convince that me the Nation hath done any thing in this Revolution which cannot well be justified by the Antient Customs and Constitution of the Kingdom I should come over to your opinion But if King Iames has truly Abdicated or Forfeited the Crown as I hope I have sufficiently made out and that your suppos'd Prince of Wales either is not really or else cannot now be proved to be the true Son of the Queen by reason of those Obstacles and Impediments I have shewn you I cannot see any thing to the contrary why you should not be wholly free and discharged from your former Oath of Allegiance to King Iames so that King William and Queen Mary being now placed on the Throne your Allegiance to King Iames and the suppos'd Prince of Wales is lawfully determined pray tell me therefore
or for the time being may not be legally defended in the Throne for as for that part of the Oath which was taken to King Iames himself it can hold no longer than whilst he continued King If therefore the Estates of the Kingdom have adjudged him to have forfeited or abdicated the Crown the whole Nation ought to take this as to have been legally done since it was done by the judgment of the highest Authority in the Nation when King Iames had deserted the Throne the like I may also say for the other part of the Oath of Allegiance whereby we are obliged to his Heirs and Lawful Successors for since there has been a dispute concerning the succession of the Crown between the Princess of Orange and your Prince of Wales if the Convention who are the sole proper Judges in this Case have thought fit for the reasons I have already given you at our last Meeting to declare King William and Queen Mary the lawful King and Queen of England all the Nation ought to accept them for such since it was done by the highest Authority at that time extant in the Nation and the only proper Judges of that right and if disputes about legal rights of which certainly that of succeeding to the Crown is of the highest importance ought to be decided by Law and not by the Sword which is not the decision of civil Authority but of force the sentence of competent Judges must end the dispute and if the Estates of the Realm be not the proper and legal Judges of such Disputes that concern the right to the Crown there can be none and if they be Subjects must acquiesce in their Judgments or it is all one as if there had been none for if Men may pretend Conscience and adhere to their own private Opinions as sole Judges the dispute must end in blows which is contrary to the reason and nature of humane Societies which were instituted to prevent Civil Wars and to end all Controversies by a legal Judgment without the Sword And to let you see farther that as to the Allegiance of the Subjects it is all one in respect of us who are Subjects whether the Convention have judged right or wrong in this case Let us suppose a Person who has only a pretence but no true right to an Estate should commence a Suit of Law for it and at last obtaine a Verdict of the Jury and also a Judgment of the Court of Kings-Bench for his Title can any Man deny but that the Sheriff is by vertue of this Verdict and Judgment oblig'd to put this Abator into possession of this Estate notwithstanding he may know of his own knowledge that the person who has obtain'd this Judgment has no true right to the Estate or will any Lawyer doubt whether all the Tenants of the Mannour are not oblig'd to swear homage and fealty to this suppos'd Lord if they are required by him so to do Now though the true Heir or owner has the legal right to the Estate yet by the supream Law of all Societies which refers the decision of all personal rights to a legal Authothority he who by a legal judgment is possessed of it has the legal right in the Estate against all other claims and legal Authority must desend him in it and all who will submit to Laws and Legal Authority must acquiesce in it And thus it must be with respect to the Rights of Princes as well as of Subjects the right to the Crown has been often disputed as we all know and to say that when such disputes happen there is no Authority in the Nation to decide them is to say that Princes have no rights to their Crowns by the Laws of that Nation for there can be no Civil Rights of which there neither are nor can be any Civil Judges for no man no not a Prince can be judge in his own Cause and if Princes have no legal rights they can lose no legal rights when they lose their Crowns and I doubt their natural rights swill affect the Consciences of very few Subjects Therefore every independent Civil Society which is not wholly governed by the Sword must from the nature of such Societies and the reason of their institution have authority within it self to decide all Controversies which may arise about the rights of every member of that Society and to preserve it self from falling into a state of War which is a dissolution of all Civil Government and if there ought to be such an Authority in every Civilized Nation when this Supream Authority has given sentence in such Disputes this must also determine all the Subjects and ought likewise to have the same effect upon the contending Princes themselves and no right or pretence of right ought to affect the Conscience after such a final Judgment unless Civil Rights can oblige Subjects to dissolve Civil Governments and to dispute Civil Rights not by the Law but by the Sword which is to overthrow all Civil Rights and put an end to the Authority of Laws I hope this may serve to shew you how much you are mistaken to suppose that there can be no King in an hereditary Monarchy but the next lineal Heir and tho' I grant no Allegiance can be due or ought to be paid to him who is no King yet will it not follow that none can be due to any Prince if he be not the next heir for that no obedience can be due to him who is no King I readily grant but yet he may be a legal King in this Kingdom who is not the next Heir by blood as almost half of the Kings of England since the Conquest were not and yet have been always own'd and obey'd as legal Kings M. I confess what you say would go a great way to satisfie me could you prove that there was no difference between the succession to Crowns and private inheritances where I grant that the judgement of the Supream Court of the Nation is to determine not only the possession but the right too in respect of the person who loses his Estate by an unjust verdict or illegal judgment whereas it is otherwise in the Title of Crowns to which Princes have a right as well by the Laws of God and Nature as also by the receiv'd setled Laws and Customs of the Kingdom concerning the Succession by descent which is call'd in the 13th of Queen Elizabeth in the Statute we have so much debated at our last Meeting the Common Laws of this Realm and it is there declared that it ought to direct the right of the Crown of England and it is there made Treason during the Queens life to affirm the contrary and this course of lineal Succession at Common Law was also declar'd by solemn judgment in Parliament in the case I have so often urg'd of the Duke of York's Title to the Crown against Henry the VIth that it could no way be defeated by
Land though in words you deny it for every hereditary right is either a continued Usurpation by force which can give no right at all or a right by Law which is by the consent of the People to entail the Crown on such a Family which certainly is to make a King by Law that is by the consent of the People But if you will suppose that it was the Authority of the first King alone who thus intail'd the Crown upon himself and his right Heirs I desire you would shew me how the Crown could be so intail'd without the consent of the People so as that his Successor may not alter it and give it by his last Will or Testament to which of his Sons or Daughters he pleases since Sir Robert Filmer himself acknowledges that a testamentary heir to a Crown in an absolute Monarchy is as much by Divine right as if he had come in by Succession as appears by the instances he gives in Seth who could have no right to succeed his Father Adam in the Government of Mankind while Cain his Elder Brother was alive by the Will of Adam his Father the like I may say of Solomon who by his Fathers Crowning him King in his life time and thereby making him his Successor gave him a right to Rule over Adonâ—jah his Elder Brother so that I may very well ask you if the present Law of the Land did not proceed from the free consent of the People testified by long Custom or express Declaration of the People by their Representatives in Parliament I desire to know why the King of England cannot as well settle the Crown by his last Will upon which of the Blood-Royal he pleases as that it should be Lawful for the English Saxon Kings to exercise this Prerogative as Dr. Brady supposes they did before the Conquest without the consent of the Great Council of the Nation So that I think I may much better ask you what that Law was and who made it which you suppose to make Kings prior to and independent from the consent of the People since if there be any such Law it is either as yet unknown to Mankind or else all those who are once possess'd of Kingdoms have an equal Title to them by Divine Right But indeed it is only some Divines who were more scrupulous than knowing in Politicks who first started this question whereas indeed there is no such great Mystery in it for that Law by which the first King of England for Example was Elected was not in being before the King was made nor yet was the King in being before that but when the first King was made so by the consent and election of the People the King and the Law that made him so began both together that is the People by chusing of him to Govern upon certain Conditions and he by accepting the Crown upon those Conditions was that Law by which he then took the Crown and by which it has been held ever since that time So that if the Crown ought to be enjoy'd according to a legal right and that there must be some Judges appointed of this right when ever any Disputes may happen about it either every pretender to the Crown must judge for himself and then he will be both Judge and Party in his own Cause or else it must be left to the conscience of every individual Subject in England to side part with what Party he pleases that may thus pretend to it and so there may be a dozen Competitors for the Crown at once and all with equal right as for ought that any body knows or lastly this right must be left to the determination of some Civil Judges to judge whose Right it is and who can these Judges be who shall thus judge what are the antient Laws of Succession and Rules of Allegiance but the Great Council of the Nation therefore if they have already declar'd and recogniz'd King William and Queen Mary to be lawful King and Queen of this Realm I think every Subject of the same may very well justifie their Swearing Allegiance to them not only by vertue of this Statute of the 11th of Henry the VIIth which requires Allegiance to be paid to the King in being but also from the equity and reasonableness of the thing it self to hinder the Nation from falling together by the ears and to entail Civil Wars from Generation to Generation if the Subjects were oblig'd by their former Oath of Allegiance to the King de jure to endeavour to restore him by force of Arms and therefore the Preamble to this Statute very well and truly sets forth that it is not reasonable but against all Law Reason and good Conscience that the Subjects going with their Sovereign Lord to the Wars any thing should lose or forfeit for doing this their true duty and service of Allegiance to the King for the time being M. But pray tell me is not this very strange and unjust and that by your own showing that a Prince should have a legal Right and Title to the Crown without a right to exercise the Authority belonging thereunto for they must now pay Allegiance to the King in being let him be never so great an Usurper so that indeed the preamble to this Act is expresly false since I think it is very unreasonable nay against all Law Reason and good Conscience to Swear Allegiance to an Usurper since by that means not only all good Subjects would be put out of a capacity of endeavouring to restore the King de jure to his Throne though never so unjustly depos'd or driven out as in duty they ought but also those who were instrumental in this Rebellion and in depriving the Lawful Prince of his just Rights may not themselves endeavour to restore him which would put them out of all possibility of making amends for the wrong they have done him and of making restitution by again restoring him to his Throne F. If this be all the difficulty that is left upon your mind I doubt not but to prove to you not only from the Law of the Land that Allegiance may be lawfully Sworn in this Case but also that it is for the common happiness and peace of the Nation which is the main end of all Government that it should be so and therefore I shall first freely grant that though it is Rebellion unjustly to deprive a King and his right Heirs of the Crown and that those who had a hand in it are bound in conscience to endeavour to restore him or them to their just rights again yet this must be done by no other methods but what are consistent with the publick peace and safety of the Common wealth for if a King de facto has once got possession of the Throne and has been Crown'd and Recogniz'd by Parliament from what has been already proved I think it is very plain that they ought to obey him not only from the
no Reason since they are only Declarative and Persuant to the late Act of the Convention whereby after the Declaration of the Rights and Liberties of the Subjects King William and Queen Mary are Declared That they were and of Right ought to be by the Laws of this Realm our Soveraign Leige Lord and Lady and King and Queen of England c. M. Well it is late and besides to no purpose to argue this Point any longer since it concerns not me nor any of my Principles what new Oaths you make and impose upon those whose Consciences will never permit us to take them What I have said was only to shew you the Folly and Weakness of such Oaths and Consequently that they can be subservient to no other end then a renewal and aggravation of the Sin of Perjury among us which God forgive this sinful Nation among the many crying Sins it now growns under Yet give me leave still to mind you that you have not given any answer to the Objection I have made concerning the Schism that is like to follow from the depriving of all such Bishops and Clergy that shall refuse to take the new Oath by such a time which Deprivation being uncanonically ordain'd by the meer lay power of the Convention without the authority of a Convocation or Synod such proceedings are sufficient cause for all of our way to break off all Church Communion with you as soon as the Arch Bishop of Canterbury and those other Bishops shall happen to be deprived and new ones put in their Places since all Church Communion wholly depends upon the lawfullness of the Bishops who are the supreme Pastors of our Church F. I forgot to say any thing of this because I said so much to answer concerning the new Oath I proposed as sit to taken by those in places of Trust but since you desire it I shall say somewhat though not so large as I could speak upon this Subject First I must tell you it is altogether a new Notion and contrary to the Doctrine of the Church of England whereby it is declared that the Kings of this Realm have the same Power with Persons in the Church as the Kings of Iudah and Israel had among the Jews therefore you must either depart from the Doctrine of this Canon or else the King and Parliament who are certainly as much the supreme Power of the Nation as the Kings of Iudah were to that of the Jews may as well deprive the Arch Bishop of Canterbury for Example for Treason or Disobedience to the Government as Solomon did Abiathar for Anointing his Brother Adonijah King and besides this I can shew you many Examples of the like power exercised by the Roman and Greek Emperours in depriving and banishing not only Bishops but Patriarchs for the matters of State without any Sentence or Judgment of a Synod or general Council of other Bishops if your Doctrine were true the poor Greek Church would be in a sad Condition and all her Members in a perpetual Schism for some Ages past that there hath been scarce any Canonical Elections or Deprivations of the Patriarchs of any of the great Seats viz. Constantinople Antioch and Alexandria but they are all nominated and put in and out at the Grand Seigniors nay Visiers Will and Pleasure as any Man who will but peâ—uâ—e Sr. Paul Rycauts account of the Greek Church may easily see But indeed you fall into this Errour for want of considering the original of Bishop-pricks in England and the true meaning of this intended Deprivation for pray take Notice that though Episcopacy was setled in England in the time of the Britains yet all the Seas and Jurisdictions of the Bishops of this Realm in respect of such and such Diocesses have been wholly oweing to the bounty of our Kings and the Authority of our Great Councils which were also confirmed by the Popes Bulls and since the Reformation to the Authority of the King and Parliament as were all the Bishop-pricks erected in Henry the VIII ths Reign so that let the Bishops meer Spiritual Power of Ordaining Excommunicating c. be derived immediately from Christ if you please yet the Exercise thereof as limited and appointed to this or that Precint or See is as meer a temporal Institution as that of Parishes which was not introduced till long after Christianity was settled in this Island So that the Exercise of this Ecclesiastical Jurisdiction within the See of Canterbury for Example being a Civil Institution it hath anciently belonged to Supream Powers not only to confer this Power as appears by their ancient Investitures of our Bishops per Baculum Annulum but also to take it away for Treason or Disobedience against the State since the King and Parliament do not pretend to deprive them of their Spiritual Character or Episcopal Orders but only of their right to exercise it within such Sees or Diocesses thus although the Arch-Bishop of York and the Bishops of London and Wichester with the rest of the Popish Bishops were deprived by Act of Parliament in 1 o th of Elizabeth for not taking the Oath of Supremacy the Queen and Parliament never took upon them to degrade those Bishops of their Episcopal Orders but only to forbid their acting as Bishops in their former respective Diocesses and therefore I doubt not but that notwithstanding this Depriviation those Bishops might if they had pleased have ordained Priests and confirmed Children and that such Ordinations and Confirmations would been good even in our Protestant Church if such Priests or Children had afterwards turned Protestants since 't is very well known that the Church of England ownes the orders of the Church of Rome to be valid which is more then we do for the ordinations of meer Presbyters coming from those Protestant Countrys where there are no Bishops at all the like I may say for their Confirmations too But pray Sir consider how upon your Principles this Schism can be so Universal as to influence and involve all England in it for if the Arch Bishop of Yorke for example will rather take this Oath then suffer Deprivation and that the rest of the Bishops of his Province should be of the mind as I am credibly informed they will pray tell me how the People of that Province being a distinct Church or body Ecclesiastical from that of Canterbury as to all Spiritual matters as having a distinct Convocation of their own can ever be involved in this Schism by the deprivation of the Arch Bishop and Bishops of the Province of Canterbury And pray also tell me in the next place how all the Members of the two Universities can ever be involv'd in this intended Schism since they owe no Canonical Obedience to the Arch-Bishops of Canterbury or York nor to any other Bishop but only to their Chancellour and the Vice-Chancellour as his Deputy who exercise all Ecclesiastical Jurisdiction within the said Universities and therefore their Church
Communion cannot depend upon the Canonical or Uncanonical deprivation of any Bishops in England I desire you to consider these things as a Canon-Lawyer and give me your answer if you can against the next time we meet and then tell me whether the causes of this threatned Schism be so just and apparent that it is like to involve so many of the Wisest and most Considerate of the Clergy and Laity into open separation from the Church as you suppose it will not but that I will grant there be many of the Clergy of this Opinion who as well out of Conscience as for their own interest will be contented to set up and encourage such a separation thereby to make themselves heads of separate Congregations when they shall be deprived of their present Benefices and Imployments upon their refusal of this Oath M. I must confess I never heard so much said upon this head before and if you could make out to me all the matters of fact you have now instanced in I know not but that I may come over to your Opinion tho' let me tell you this is the first time that ever you can shew me that any Bishops were deprived in England by the meer Lay Authority of the King and a Great Council or Convention of the Laity whilst they continued of the same Church-Communion with those Bishops for as to your instance of the Popish Bishops deprived by Parliament in the Reign of Queen Elizabeth I doubt you will find it does not come up to the Point in question since the Queen and Parliament having then newly declared themselves Protestants did not own them for true and Orthodox Bishops and consequently thought they might justly depart from their Communion and upon the same account might deprive them and the Queen might then nominate others of their own Religion in their Places F. I cannot but differ from you in the matter of fack as you now relate it for Queen Elizabeth and the Parliament were when they made this Act so far from being separated from the outward Communion of the Church of Rome that Mass was then said and the Romish Priests still continued in all the Parishes and Churches of England and yet they still maintain'd an outward Communion though their Bishops were deprived by the Civil â—ower and others ordain'd in their stead So that it is plain the Papists themselves had then no notion of this new cause of Schism by reason of their Bishops being Uncanonically deprived nor indeed can we well vindicate the Honour or Legality of our Reformation if the Protestant Bishops who succeeded in the places of those who were thus deprived by Act of Parliament could not be Canonical because their Predecessors deprived by the Lay Power were still alive But admit this was the first time that ever it had been thus practiced yet if it were then reasonable and done upon good grounds I cannot see but when the necessity of the Church and State require it and that the Clergy in Convocation are so wilfull and wedded to some old false notions as not to consult the peace and safety of the Church and Kingdom why the King and Queen who are acknowledged to be Supream over Ecclesiastical as well as Temporal Persons may not together with the two Houses of Parliament make the like Law now as was done in the first of Queen Elizabeth for a less matter for none of those Popish Bishops though they believed Queen Elizabeth to have no better than a Parliament Title to the Crown yet ever denied her to be their lawful and rightful Queen only they would not own her Supremacy in Spiritual Matters But leaving the farther discussion of this Point to those who better understand it I would gladly know of you what you intend to do and what you would have us do who are like to be made Deputy Lieutenants and Justices of Peace for if as you your self allow there be a necessity that some Civil Government be maintain'd during King Iames's absence I desire to know of you how it can be managed and who shall manage it in case all the Gentlemen of England were of your Principle and should positively refuse the Oath of Allegiance to their present Majesties for if King Iames be never so much our lawful King it is not now possible for us to be Govern'd by him since he is goâ—e and God knows whether ever he may return again since then you cannot have him if you would and that there is a necessity we should be Govern'd by some body And since it is also as certain that those who actually Govern us will exact this or the like Oaths of Allegiance from us as were due to their Predecessors and that no man must expect to enjoy or execute any Place or Office not only of profit but of burthen and charge for the necessary execution of Justice and the maintenance of Civil Government without which we cannot live or subsist without taking this new Oath of Allegiance as the only means to qualifie them for it if then the end viz. Civil Government be absolutely necessary and the taking of this Oath is the only means allow'd of to qualifie men for it this seems as evident to me that taking of this Oath is not only justifiable by Law but by Reason and good Conscience since it is done for the highest and noblest end viz. the publick good of the whole Nation or Common wealth which you grant cannot subsist without some kind of Civil Government amongst us M. I will say something in answer to what you have now alledged concerning the necessity of taking of the Oath in order to the maintenance of some Civil Government without which I grant the Kings good Subjects cannot subsist till his return since I confess this is the strongest Argument you have yet brought all I can say to it at present it that if all your Country Gentlemen and all the Lawyers in England would be so firm in their Loyalty to his Majesty as unanimously to declare that they cannot take this Oath with a safe Conscience the consequence then would be that either the present Usurped Power must be forced to give up the Government to the right owner or else they must at least desist from pressing this Oath upon you F. You know well enough this is altogether a vain supposition since you cannot but be sensible that their Majesties have not only a sufficient force both of Native Englishmen and Foreigners on their side who can force those that should make any opposition to the taking it and that there are also many Fanaticks and Common-wealths Men who not looking upon themselves as at all oblig'd by your notions of Natural Allegiance and the obligations of any former Oath of Allegiance will get into all the Offices and Imployments of the Kingdom to the great prejudice and destruction not only of the Church but the Monarchy it self which is as yet preserv'd tho the Person
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
the only Iudges of all Disputes about the Succession of the Crown D. 2. p. 891 to 892. D. 12. p. 893. D. 13. p. 917 to 919 921. Eve W. by being subject to Adam all her Posterity became so likewise D. 1. p. 14. to 25. F Fathers W. by right of generation or of education Lords over their Children in the state of Nature D. 1 p. 13 14. W. Any such power was given by Divine Grant to Adam and in him to all other Fathers Ib. p. 26 30 to 36. W. Fathers of Families have power of life and death over their Children by the Law of Nature Ib. 19. to 26. W. They may sell their Children Ib. 26. to 31. W. They may be resisted by their Children in case of any violent assaults upon their lives Ib. p. 41. W. Perpetual Masters over their Children as long as they live Ib p. 45. to 51. Fideles the signification of the word before the Conquest D. 6. p. 390 391. D. 7. p. 448. to 451. Sir R. Filmers Principles W. they do not rather encourage Tyranny than Fatherly affection in Princes towards their Subjects D. 2. p. 118. W. They do not also favour Vsurpers Ib. 125. to 128. G Common Good of Mankind the main design of all Government D. 1. p. 55. to 61. Civil Government the end of its Institution D. 1. p. 11. 19. 21. W. There had been any necessity of it if Man had never sinned Ib. p. 11. What it is and its Prerogative D. 3. p. 173. W. it can be setled without liberty and property in Estates Ib. 174. Government of Families and Kingdoms its Original and Necessity D. 1. p. 10. to 12. Supream Governours in what cases they cease to be Gods Ordinance D. 1. p. 41. Government among the ancient Germans and Saxons always by Common Councils D. 5. p. 365. to 369. Grands or Grants in Parliaments what those words signifie in ancient Statutes and Records W. The Lords alone or the Commons also D. 6. p. 369. vid. Append. Guards of the King when when first set up D. 9. p. 639. H K. Harold W. William of Normandy had a just cause of making War upon him D. 10 p. 718. What Title he had to the Crown Ib. p. 720. Haereditamentum its derivation Ib. p. 721. Hengist and all the rest of the Kings who founded the Saxon Heptarchy W. so by Election or Conquest D. 5. p. 357. to 362. King Henry the IVth W. his Title to the Crown were by right of blood or Election of the Estates in Parliament D. 12. p. 861. to 863. King Henry the VI. W. his Son were not unjustly disinherited by the Duke of York and himself unjustly deposed by Edward the IVth Ib. p. 863. to 867. King Henry the VIIth W. he had any Title to the Crown by right of Inheritance Ib. p. 868. to 870. King Henry the VIIIth W. the several alterations he made as to the the Succession were legal D. 12. p. 871 872. Homage W. it rendred the Prince or Lord irresistible D. 10. p. 727.728 Homines Liberi its signification in English Histories D. 6. p. 428. to 430. Homilies of our Church the the chief passages therein against all manner of Resistance of Governours considered D. 4. p. 287.288 W. It be Heresie or Schism to deny their Authority in any point there laid down Ib. 289.290 vid. Append. Mr. Hookers Opinion concerning the Original of Civil Government D. 12. p. 129.130 W. The two Houses of Parliament or the whole People of England have any coercive Power ove the King D. 9. p. 634. W. The Two Houses have on the behalf of the whole People renounced all right of self-defence in any case whatsoever Ib. p. 636. to 658. I King James the Firsts Speech in Parliament against Tyranny D. 3. p. 148. The Act of Recognition of K. James's Hereditary Right how far it obliges Posterity D. 12. p. 871 to 874. King James II. W. he violatid the fundamental constitution of the Government before his desertion D. 9. p. 673. to 685. Or W. he had amended all those violations before his departure p. 685. to 689. W. His setting up a standing Army and puting in Popish Officers and Souldiers were an actual making War upon the Nation Ib. p. 683.687 W. He abdicated the Government by his breach of the Original contract or else by his deserting it D. 11. p. 790. to 799. W. He might have been again safely restored to the Government upon reasonable terms Ib. p. 801. to 807. W. He really intended to redress all the violations he had made upon it p. 805. to 807. W. He resumed the Government upon his return to London from Feversham Ib. 802. to 806. Iesus Christ did not alter Civil Government neither by taking away the Prerogative of Princes nor yet by abridging the Civil Liberties of Subjects D. 4. p. 216. to 220. Jews often rebelled and sometimes killed their Kings D. 3. p. 203 to 205. Their resistance of Antiochus considered Ibid. p. 208. to the end Jewish Government before Saul W. Aristocratical or Monarchical D. p. 93. to 101. Judah and Thamar the History considered D. 1. p. 33. Iudges over Israel their Power W. Monarchical D. 2. p. 95 96. W. Some of them were not Iudges of some particular Tribes p. 96 97. Iudgements Divine W. they may be removed by humane means or force D. 4. p. 259 260. K Kings W. to be reputed Fathers of their People as the Heirs or Representatives of those who were once so D. 2. p. 65. W. They derive their Power from God or from the People and Laws D. 11. p. 773. to 780. D. 12. p. 936 to 938. Saxon Kings of England W. absolute or limited Princes D. 5. p. 349. W. They were endued with the sole Legislative Power Ib. p. 338 to 345. Kings of the English Saxons Elected and often deposed by the Great Council Ibid. p. 365. The same done also in other Kingdoms of the Gothic Model Ib. p. 365. Kings of England ever since King William I. W. they derive their Title to the Crown from Conquest or some other Title D. 10. p. 713. Their Concessions to Subjects do no ways derogate from Royal Prerogative D. 10. p. 715.716 Kings of the Roman Catholick Religion W. many of them have not observed Magna Charta and their Coronation Oath D. 12.882.888 King by Sir R. Filmer's Principles above all Laws and alone makes them D. 2. p. 123.124 In what sence he is head of the Politick Body of the Common-wealth D. 11. p. 803. to 805. W. He could have anciently by his Prerogative Taxed all the Tenants in Capite at his discretion D. 7. p. 495. to 499. W. He could call or omit to summon to Parliament what Earls Lords and Tenants he pleased Ibid. p. 505 to 511.523 W. He could also summon those Knights of Shires who served befere without any new Election Ib. 537. W. He could by his Prerogative discharge what Knights of Shires he pleased after they were chosen Ibid.
p. 539.540 King how far Gods Lieutenant D. 9. p. 663. W. His Authority is different from his Personal Will and Commands Ib. p. 645. to 648. His Person how far Sacred and Inviolable Ibid. p. 638.651 to 657. Kings Commission how far and in what cases resistible notwithstanding the Declarations of of the two first Parliaments of King Charles the Second Ib. p. 636. to 655. W. He hath any Authority to act against Law Ib. p. 644 to 649. Kings Commissions how far good in Law Ib. p. 640. Kings since the Conquest W. endued with the sole Legislative Power D. 5. p. 338 to 345. D. 9. p. 650 651. hath no Peer or Equal in the Kingdom D. 5. p. 354. His presence W. it will authorize all illegal actions so as to render them irresistible D. 9. p. 653 654. His Officers in what case resistible Ib. The Kings being irresistible how far different from being unaccountable D. 9. p. 644 645. Kings of England W. absolute and unaccountable or W. limited by Law D. 10. p. 693 to 698. Most High in their State-Royal when they appear in their Great Councils or Parliament D. 9. p. 643. The first Eight Kings after the Conquest never were so stiled till after their Coronations D. 12. p. 840. to 858.895 King though he have no Peer yet he had anciently Comites or Companions D. 5. p. 364 365. W. He can at this day abdicate or forfeit his Crown by the wilful violation of our fundamental Laws D. 10. p. 694 to 709. D. 11. p. 832 833. Kingly Power the end of its Institution in this Kingdom D. 5. p. 349. King de facto or for the time being W. within the Statute of the 25th of Edward the Third and whether Allegiance be due to him by the Statute of the Eleventh of Henry the Seventh D. 13. p. 905. to 940. What constitutes a legal King in England D. 12. p. 889 890. Kingdoms of Judah and Israel W. when given by Gods appointment it gave the issue of that King a like Divine Right to succeed D. 2. p. 99 100. Kingdoms Patrimonial and Hereditary their difference Ib. 84 85. Knights of Shires frequently stiled Magnates and Grantz in Ancient Records D. 6. p. 424. vid. Append. W. They were anciently chosen out of the Tenants in Capite and none others p. 425. Knights Citizens and Burgesses W. the first Writs of Summons of them that can be found is the 49th of Henry the Third D. 7. p. 519. W. This was the first time that they were summoned Ibid. p. 525 to 530. W. They were summoned no more till the Eighteenth of Edward the First Ibid. p. 522. to the end D. 8. p. 559. to 563. p. 571 to 576. L Lancaster W. that Families pretended Title to the Crown claim'd by Inheritance D. 12. p. 861 862. Laws how far they oblige Princes according to Sir R. F's Principles D. 2. p. 120 121. Laws Imperial of all Goâ—vernments W. they require a Passive Obedience or Non-Resistance in all cases whatsoever D. 3. p. 149.154 Law of Nations W. it differs from the Law of Nature D. 1. p. 26 to 31. Laws of English Saxon Councils the Titles to most of them D. 5. p. 314. to 319. Laws of Normandy W. the same in most things with those of England D. 10. p. 752.753 Laws fundamental of the Kingdom W. there are any such things and where to be found D. 9. p. 666. to 669. D. 10. p. 704. D. 11. p. 810. to 814. Law of Edward the Confessour concerning the Kings ceasing to be so if he prove a Tyrant and W. it be genuine or not D. 10. p. 705. to 712. Private League with France what Reasons there are for and against its reality D. 11. p. 800. to 802. Liberi Homines and Liberi Tenentes mentioned in Ancient Statutes and Records who they were anciently D. 6. p. 419.426 to 431. W. They were only Tenants in Capite or chose by Military service to them D. 7. p. 449. to 453.514 M Magna Charta W. obtained by Rebellion D. 3. p. 186. Magnates W. the Commons were not sometimes comprehended under that Title D. 6. p. 372.396 397. Queen Mary W. she had any Title save by the Statute of Henry the Eighth D. 12. p. 872. Our present Queen Mary W. she hath a right to succeed upon her Fathers abdication Ib. p. 853. 884. Maud the Empress why she never stiled her self Queen of England notwithstanding fealty had been sworn to her D. 12. p. 846. Several Maxims in the Civil Law considered and explained D. 1. p. 17 18 21.30 The ancient Members of the German Diets or Great Councils D. 6. p. 375. The Milites mentioned in ancient Statutes and Records who they were D. 6. p. 431 432. W. They were only Tenants in Capite or any other Tenants by Military or Socage service D. 7. p. 481.489 490. Mischiefs that may befall a People from their resistance of the Supream Power considered D. 3. p. 184. to 189. Monarchy W. of Divine Right from any Precepts or Examples in the Old or New Testament D. 2. p. 130 131. Or from Adams Patriarchical Power D. 1. p. 19. to 26. Monarchies or Commonwealths which are most Tyrannical D. 2. p. 110.111 Mixt Monarchy W. it be a Contradiction D. 5. p. 345. to 348. Sim. Montfort W. he first called the Knights Citizens and Burgesses to Parliament in the 49th of Henry the Third D. 8. p. 596.597 Moses and Joshua W. Monarchs over the Children of Israel and Successors to the Patriarchical Power D. 2. p. 92. to 100. Multitudo Cleri Populi the signification of those words in our ancient Histories D. 8. p. 569. to 571. N W. A whole Nation may resist the Supream Power in some Cases of extremity but not particular Persons D. 3. p. 146. to 150.161 162. D. 4. p. 236. to 239.272 to 275. Negative voice W. the two Houses of Parliament have it not in some Cases as well as the King D. 5. p. 341. Noah W. he was sole Proprietor of the Earth or else was Tenant in common with his own Children D. 1. p. 74 75. W. His Grandsons were all alike Princes over their several Families Ib. p. 75. to 81. W. from Noahs Seven Precepts may be deduced the Law of Nature D. 1. p. 36 37. Nobilis Nobilitas the several significations of those Titles D. 6. p. 374 388.410 W. Meer Commoners were not often comprehended under the Title of Nobiles Ib. 396 397. Non Obstantes the Clause when first inserted in our Kings Charters D. 11. p. 820. Non Resistance W. the Doctrine tend to make Princes better or else more Tyrannical to their Subjects D. 2. p. 116 117. Normandy W. its Dukes were absolute or limited Princes D. 10. p. 727. O Oath of the King at his Coronation how far obliged according to Sir F's Principles D. 2. p. 122.123 It s ancient form according to the Mirour D. 5.364 W. The taking the Coronation Oath renders the Crown forfeitable if it
E. I. ib. p. 554. Rot. cl 31. Ed. III. ib. p. 555. Rot. Pat. 54 H. III. ib. 573. Rot. Wal. 11. Ed. I. ib. 574.575 Rot. cl 28. E. I. Rot. Pat. 8. Ed. II. ib. 576. Rot. Pat. 52. H. III. ib. p. 578. Bundel Brev. 5. Ed. II. Rot. Pat. 40. Ed. III. ib. p. 581. Rot. Pat. 2. H. V. ib. p. 582. Placit Parl. 18. E. I. Rot. Parl. 18. Ed. III. ib. p. 584. inter Com. brev in Scac. 34. Ed. I. Prins Par Reg. p. 26.28.30 Ed. I. ib. p. 586. Parl. Reg. 8. Ed. II. 887. Rot. cl 15. E. II. Rot. cl 2. E. III. Rot. cl 50. E. III. p. 588. Rot. Pat. 42. E. III. p. 599. Rot. Pat. 17. Ed. III. Rot. Parl. 51. E. III. p. 605. A Regency W. legal or practicable in England upon King James's departure D. 12. p. 877. Religion in what Cases we are bound to suffer for it without any resistance D. 4. p. 222. to 235. The Remedies against Tyranny the People of England can have without Resistance considered D. 4. p. 262. to 664. Resistance of Fathers Husbands and Masters by their Wives Children and Servants W. ever lawful D. 1. p. 41. to 44. to 52.60 Resistance of the Supream Powers in what cases absolutely lawful D. 3. p. 146. to 149 D. 4. p. 270. In what cases absolutely unlawful D. 3. p. 176 177. All the evil Consequences of such Resistance considered D. 4. p. 261. to 264. D. 9. p. 649 659 to 666. W. All resistance be forbidden by God in the Old Testament D. 3. p. 190. to the end W. Forbidden by the word of God in the New Testament D. 4. p. 220. to 264. W. Contrary to the Doctrine of the Church of England Ib. p. 283. Resistance of the King and those in Commission by him W. absolutely â—orbid by the Statute of the seventh of Edward the First against bearing of Arms D. 8. p. 612. W. Contrary to the 25th of Edward the Third concerning Treasons Ib. to the end Resistance of Arbitrary Power in our Kings W. lawful both before and since the Conquest D. 9. p. 615 to 637. Such Resistance granted to be lawful by some of our Kings themselves D. 9. p. 617.620.622 Rights and Liberties of the Subject what they are D. 9. p. 666 to 669. Rolls Clause how many wanting in the Reigns of King John and Henry the Third D. 7. p. 517 518. S Sapientes its signification in Ancient Histories D. 6. p. 377. Late Schism upon the Deprivation of the Bishops W. justifiable D. 13. p. 963 to 966. Scotland W. it s ancient constitution were the same with England D. 7. p. 503. to 505. D. 8. p. 559. W. None but Tenants in Capite ever appeared at the Great Councils of the Kingdom Ib. to 510. Scutage Service W. different from a Scutage Tax D. 7. p. 439. to 440.479 to 481. Sermons for the Kings Absolute Power censured in Parliament D. 1. p. 5. Servants and Sons W. all one in the State of Nature D. 1. p. 54. Sheriffs Pardoned by Act of Parliament for holding above one year D. 12. p. 821. States General of the Vnited Provinces W. their making War upon King James the Second were justifiable D. 11. p. 781 782. Ancient Statutes W. the three Estates have not always given their Assent to them as well as the King D. 5. p. 330. to 348. Notwithstanding the different forms of Penning them Ibid. D. 7. p. 484 485.525.528 529. Statue of the Eleventh of Henry the Seventh Cap. 1. W. still in force D. 13. p. 909. to 933. Statute of the Thirteenth of Elizabeth Chap. 1. W. still in force D. 12. p. 894. to 898. All Statutes though made by Vsurpers W. they hold good till repeal'd D. 12. p. 909 911 912. Doctor Stories Case D. 13. p. 950. Subjects how different from Slaves D. 4. p. 251. to 261. W. Particular Subjects may resist the Supream Powers for satisfaction of their own private injuries D. 4. p. 252. Succession to Crowns no certain procepts to be found about it in Scripture or the Law of Nature D. 2. p. 89. to 90. Succession to the Crown of England W. always Hereditary since the Conquest without any vacancy of the Throne D. 12. p. 839 to 875. Sufferings of Christ how far an Example to us D. 4. p. 227. to 233. Suffering for Religion without Resistance when necessary Ib. p. 231. T Tenants in Capite W. they were all Barons D. 6. p. 399.400 W. They could anciently Tax the whole Kingdom at their pleasure as well the Lands held of them as what was not D. 7. 440.479 to 483.500 W. They or else Tenants by Knights service were anciently the only Persons who served upon Iuries D. 10. p. 741. to 746. W. They represented all their under Tenants in Parliament D. 7. p. 512. Tenants in Sâ—â—age W. they were bound by the Acts of those of whom they held their Estates D. 6. p. 420. Tenants in Demesne claimed to be discharged from the Knights Wages by prescription D. 8. p. 588 589. Tenure by Knights service W. in use before King Wil. I. D. 10. p. 750 751. A new Test Oath opposed by a great party of the Poeâ—s in the Reign of King Charles the Second D. 9. p. 659. Testaments W. valid in the meer State of Nature D. 2. p. 86 87 91. The several Texts of Scripture made use of for or against absolute Non-resistance examined viz. in the Old Testament D. 3. p. 190. to the end Texts of Scripture out of the New Testament urged for the like purpose D. 4. p. 220. to 279. Thanes the ancient signification of that Title discussed D. 6. p. 374. to 379. The divers sorts of them amongst the English Saxons D. 5. p. 370. Treason against the Kingdom anciently as well as against the King D. 5. p. 344. Trials by Combate W. in use before the Conquest D. 10. p. 758. Trust committed by the People to the Supream Powers W. unaccountable and irrevocable D. 3. p. 152.154 Insupportable Tyranny W. worse than the State of Nature Ib. 155. Tyrants W. Ordained of God D. 4. 245 246. U Vavasors or mesne Tenants W. anciently reckon'd as part of the Baronage of the Kingdom D. 6. p. 405 406. Universitas Baronagii Angliae Regni what it signified and W. the Commons were comprehended under that Title D. 6. p. 408 409 415 416. Universitas Communis the meaning of that Phrase in Matthew Paris D. 7. p. 470. W. It comprehended no more than the less Tenants in Capite Ib. 471. Primate Ushers Opinion in his Treatise of the Power of the Prince and Obedience of the Subject considered D. 4. p. 271 272. Vsurpers by Sir R. Filmers Principles to be obeyed before the Lawful Prince and his Heirs D. 2. p. 126 127. When Vsurpers may be obeyed before the Lawful Prince and his Heirs D. 4. p. 246. Usurpation W. it gives a rightful Title after three Generations D. 2. p. 128. Vulgus what that word signified in the
Indeed if the words had been Milites libere Tâ—nâ—ntes qui de Rege tenuerunt in Capite you had said somewhat but otherwise it is all meer supposition without any ground But pray go on to the last woâ—ds in this Charter omnes de Regno nostro what can they mean â—ut that all the Freemen of the Kingdom gave this Fifteenth by their Lawful Representative M. If you do not like our sense of these words Milites and Libere Terentes I cannot help it nor shall I dispute them longer with you but as for this last Clause in the Charter omnes de Regno it only means all these who were Tenants in Capite in general in the same sense as when our ancient Historians mention Regnum Sâ—cerdotium by Regnum is to be understood both the Temporal and Spiritual Barons great and small the Kings Justices or any other that exercited any share or Ministerial part of the Government as perhaps all those diâ— one way or other by coming to our great Councils or Parliaments c. all which is evident from the words of the Quadri partiâ—e History concerning Thomâ—s Becket thus Rex apud Clarendun Regnum convo aâ— universum Quò com venisâ— ut Prasules Proceres c. i. e. the whole Baronage called together by the Kings Writ or a full meeting of the Spiritual and Temporal Barons both great and small I pray also remember that passage you your self made use of but now out of Mat. Paris whereby you would prove that the Common Council of the whole Kingdom was distinct from that of the Tenants in Capite because that after the Curia held at Christmass the King immediately issued out his Writs commanding omnibus ad Regnum spectantibus to appear at London and yet you see there are no more mentioned to be Summoned than the Archbishops Bishops Abbots Priors Earls and Barons So that we may hence learn the true meaning of these words omnes de Regno at the end of this Charter for these omnes de Regno were the same with the omnes ad Regnum spectantes in Mat. Paris the Regnum or Government the Communitas Regni the totalis Regni universitas the insluita nobilium multitudo and also gives us the meaning of those words omnes alii de Regno in the close Roll of the 19 th Henry the Third to the Sheriff of Somersershie Scias quod Comites Barones omnes alii de toto Regno nostro c. Concesserunt c. Which are further explained by a Writ in the same Roll about the same business directed to the Sheriff of Sussex which you have likewise cited beginning thus Sciatis quod Arohiepiscopi Episcopi Abbates Priores Comites Barones omnes alii de Regno nostro Angliae qui de nobis tenent in Capire nobis concesserunt c. Here the omnes alii de Regno were the omnes qui de nobis tâ—nent in Capite which were then all the Regnum or Communitas Regni So likewise it may be farther proved from a Record of the 48 th of Henry the Third Rex omnibus c. cum venerabiles Patres G. E. Eborum Archiepiscopus c. alii Praelati Magnates Milites libere Tenentes omnes alii de Regno nobis nuper in Articulo necessitatiâ— servitium fecerunt sulisidium c. And I may also put you in mind of the Writ I cited but now directed Archiepiscopis Episcopis c. Comitibus Baronibus Militibus omnibus aliis de Comiâ—aru Kanciae c. for the Levving of forty Shillings upon every Knights hee in that Country Now this Writ could not be directed to all the Men in Kent but to all such as paid Scutage for not a fortieth part of them were Tenants in Capite or Military Service So that these omnes alii de Regno and Omnes alii Comitatus were the same one with the other and otherwise it could not be for by Omnes de Regno or Omnes alii de Regno the Inhabitants in general could not be understood for they never were Summoned no not the Hundredth part of them to meet in Great Councils for 't was impossible they should and perhaps not above a fourth part of the Kingdom paid to this Fifteenth if we consider how many Servants Villainâ— Bondmen and many such People there were than in the Nation that paid nothing F. You have taken a great deal of pains to perplex and darken words in themselves very clear and perspicuous for methinks it is a strange piece of confidence in your Doctor when the Charter says expresily That Omnes dâ— Regno all the Freemen of the Kingdom gave this 15th to restrain this Act only to the Tenants in Capite who were but a few in comparison to the whole Kingdom this is indeed to make words signifie any thing he fancies But to answer your Authorities which are founded all upon false suppositions without any proof As to your Authority from the Quadrilogus History of Thomas Bâ—ecket it is true that the Praesules and Prâ—ceres are there called Regnum the Kingdom but I have already proved at our last Meeting that this word Proceres was of so comprehensive signification that it took in all the Principal Men of the Kingdom as well those that were Lords as those that were not so that the chief Citizens and Magistrates of our Cities and great Towns are often stiled Proceres Magnates Civitatum in our ancient Historians and Records and certainly the great Free-holders or Knights of Shires did much more justly deserve that Title As for the other passage out of Mat. Paris where the Bishops Abbots Earls and Barons are called omnes ad Regnum spectantes this is but a general way of expression in this Author and proves nothing For either the word Barones takes in all the smaller Tenants in Capite or it does not if the latter then this Author does not exactly recite all the Orders of Men whom your self must acknowledge to have appeared there since the great Barons alone could never make this infinita Nobilium multitudo mentioned in this Author if the former then it is plain that he thereby comprehended more then those who were really Barons Since it is certain that the smaller Tenants in Capite were not so nor are so much as called so in King Iohn's Charter and then make the most of this word Barones it may in a large and common acceptation take in all the chief Free-holders or Lords of Mannors which as I have already proved were often called Barons in our ancient Historians and Laws of the first Norman Kings and Mr. Cambden tells us that under the word Baronagium omnes Regni ordines continarentur This I say supposing that by this infinita Nobilium multitudo is to be understood all the cheif Gentry or Free-holders of England called often Nobilitas Angliae as I have already made
out and which may also take in the Representatives of Cities and Towns but if we should suppose that by the Barones here mentioned are to be understood only the Tenants in Capite yet since they together with the great Lords made the chiefest Figure in the Government it was easie for him to over-flip the particular mention of others it being enough to comprehend them with the Representatives of the rest of the Kingdom under the general Phrase of Infinita Nobilium multitudo as I have already said but I always thought that the Conciseness of Historians was to be explained by our Statutes and Records and not that their express words should be interpreted by the concise Phrases and Expressions of Historians and if by omnes de Regno are to be understood all the Tenants in Capite in general how could this be without a notorious Tautology since if it be as you say that the Bishops Abbots Earls and Barons comprehended all the greater Nobility and the Milites libere Tenentes all the lesser or Tenants in Capite who made then the whole Kingdom if so what can these words omnes de Regno here signifie but so many idle words without any sense or meaning But it will be now more easie to answer your false Interpretation of these words omnes alii de Regno which you will needs have to signifie only the Tenants in Capite and it will be no hard matter to shew you the Drs. Prevarications on these words for as to the first Writ directed to the Sheriff of Somerset-shire tho I confess these words at the beginning of the Writ are omnes alii de toto Regno nostro yet the Dr. has in his Glossary concealed the words that follow which plainly restrain them to Tenants in Capite and their under Tenants by Military Service but if you please but to turn to the Writ which he has given us at large in his Appendix Numb 14. you will find first that this Writ recites that the Earls Barons and omnes alii de Regno had granted the King an Aid to two Marks on every Knights-Fee quae de nobis Tenent in Capite Secondly that at the Command of the Earls Barons and all others that held in Capite the Sheriff should distrain omnes milites libere tenentes qui de eis tenent per sâ—rvitium militare who were likewise to pay the King the like Summ of two Marks for every Knights Fee so that you may here plainly see that this could be no general Tax granted by the whole Kingdom since none but Tenants in Capite and their under Tenants by Knights Service were chargeable with it which if given with their consents must have been done in full parliament and in which they had Representatives of their own choosing and if without their consents was directly contrary to Law But you need go no farther then this Writ you have now cited to prove that the Milites libere tenentes were not at this time only Tenants in Capite as you suppose but their Feudatory Tenants also as appears by the express words of this Writ which orders the Sheriff to distrain omnes Milites libere tenetes qui de ci tenent pâ—rservitium Militare but as for the other Writ to the Sheriff of Sussâ—x which as you say truly relates to the former to the Sheriff of Somerset-shire it sufficiently interprets those general words omnes alii de Râ—gno and expresly restrains them to omnes alii qui de nobis tenent in Capite who in a Council of themselves alone granted this Tax for themselves only as I have already proved which whether it was according to Law or not we shall inquire by and by But in the mean time give me leave to answer to your next Record of the 4â—th of Hen. III. which recites an extraordinary Service and Aid done by the Prelati Magnates lib re Tenentes omnes alii de Regno Now that this was not a Service performed or an Aid given by the Tenants in Capite only for the whole Kingdom the word Subsidium may teach you which was never granted otherwise then by the whole Kingdom in Parliament But let us first consider the substance of this Record which is indeed but the Kings Declaration or a right to all his Subjects in general or the Freemen of the whole Kingdom that what they had lately performed in Articulo necâ—ssitatis praedictae non sibi cedat in prajulicium nâ—c ad posterum traâ—atur in consuerudimen vel consequentiam nec ad bujus modi serviâ—ium compellentur which being the effect of this Record now see the cause why it was granted which you may find in another Record of the same Year and on the Roll and to which this Rcord you cited relates which is a general Summons directed Archiepiscopis Episcopis Abbatibus Comitibus Baronibus Vice-comitibus Militibus liberis Hominibus Vniversae Communitati Comitatus Lincolniae commanding them all even the Citizens and Townsmen immediately to appear with such Arms as are there expressed and were proper for each Mans Estate and Condition for the common Defence of the Kingdom against strangers then ready to invade it and this Record also says eodem modo scribitur caeteris Vice-comitibus Angliae Now since it appears by this Writ of Summons by which this Service and Aid was performed that not only the Tenants in Capite but all the Subjects of the whole Kingdom were engaged in the performance of it can any body but one who will take things by halves suppose that by these omnes alii de Regno there mentioned and who must certainly be the same Parties intended in the Drs. own Record viz. all the Freemen of the Kingdom could be meant no more then the Lesser Tenants in Capite taken altogether when they had been according to our sense all particularly named before But that by these omnes de Regno cannot be here meant only the Tenants in Capite but all the Freemen of the whole Kingdom I shall prove by another Record of the 16th of Hen. III. and is the very Writ I gave you before wherein it is recited that the Villani together with the rest of the Liberi Homines had given a 30th of their Moveables in consideration of which this Writ concludes thus Concessimus etiam Archiepiscopis Episcopis Abbatibus Prioribus Comitibus Baronibus vobis omnibus aliis de Regno nostro quod tam Charta nostra de Foresla quam alia Charta nostra de Libertatibus quas eis vobis fieri fecimus de caetero in omnibus teneantur so that it plainly appears that by these words in this Record omnibus Aliis de Regno must be understood all the Freemen of the Kingdom in general unless you will allow none to have had any share in these Charters or to have received any benefit by them but the Drs. Tenants in Capite alone which sure you
without Children should be Heir to the Deceased And so far were they from thinking this Agreement stood in need of Ratification of a great Council that there was but twelve of the Principal Men on each side sworn to see it duly observed But if we come to consider the next putting by of Duke Robert from his Right to the Crown you will find it to have been done with a far less colour of Right than the former for he being then absent in the Holy Land at the time of Rufus's death Henry his Younger Brother laid hold of the opportunity and assembling divers of the great Men of the Kingdom he promised them to make a full Restitution of all their Antient Laws and Liberties and confirm them by his Charter and abrogate such severe ones as his Father had made thereupon they did unanimously consent to Crown him King Now I cannot see how this managed with so much Artifice corruption can properly be call'd an Election since that ought to be a deliberate sedate Action and at which all the persons concern'd ought to be present but this could not possibly be for King William was kill'd on the second of August and buried the next day and the day after that being Sunday this pretended Election was made and the Saxon Chronicle tells us That those great Men who were near at hand chose his Brother Henry King So that this looks more like the Combination of a Faction of Bishops Lords and great Men than the free Election of a King since it was impossible for all that were or ought to be present from all parts of the Kingdom to have notice to assemble and dispatch that great Business in two days time But to let you see that Duke Robert did not fit down contented with this Usurpation upon his Right for as soon as ever he came from the Holy Land he straight made War upon his Brother and many great Men of the Normans took his part and this War was eagerly carried on for some time and Duke Robert Landing in England with an Army K. Henry marcht against him with all his Forces but as the Saxon Chronicle also tells us some principal Men going between them brought them to an Agreement upon conditions that K. Henry should pay Duke Robert 3000 Marks Pension yearly and that he of the Brothers who surviv'd the other should be Heir of all England and Normandy unless the party deceas'd should have Children of his own so that though I grant King Henry recites in his Charter in Matthew Paris that he was Crowned King by the Common Council of the Barons of England yet his saying so could not give him a Right and he must say this or nothing for no other pretence or Title he could have and there never was any other Usurper in his circumstances but must say that or some such thing to make out a Title and therefore to answer your Question why Duke Robert took not upon himself the Title of King neither upon the death of his Father nor after that of his Elder Brother I think this may serve for an Answer that he parting with his Right to both his Brothers successively he then lookt upon it as needless to take the Title of King upon him as not looking upon himself then to be so F. I confess you have from your Dr. together with some assistance of your own made a very cunning gloss upon these two great Instances of Vacancy and Election to evade if it were possible that Right which the Common Council of the Kingdom then challeng'd to themselves and therefore I shall make bold strictly to examine what you have now said In the first place as to the Title of King William Rufus though I grant it was founded upon his Fathers Testament yet you see that this was not good alone without the consent and approbation of the Common Council of the Kingdom I think I have sufficiently prov'd at our last Meeting but one when we discourst of the Force of the like Testament made by King Edward the Confessor to King William the First which according to the English Saxon Law that â—as still observed was never valid until confirm'd by the consent of the Wittena Gemot or Great Council and he that had both these whether next Heir by Blood or not was always esteem'd as lawful King as I have also proved from the Testament of King Alfred and though you will take no notice of it yet was this Testament of King William I. then produced and read in the Common-Council of the Bishops Earls and Barons of the Kingdom as appears by all the Antient Historians who treat of this matter I shall only give you a taste of them Matthew Paris expresly relates the circumstances of it in these words Optimates frequenteâ— â—d Westmonasterium in concilium convenere ubi loci post long am consultationem Gulielmum Rusum Regem fecere and Abbot Brompton tells us that it was done in a full Council Convocatis Terrae magnatibus so that here was nothing wanting to a full Election or Confirmation at least of King William's Title and till this was done it is plain the Throne was Vacant But as for the claim that Duke Robert made to the Crown though I do not deny but he might think himself to have a just Title to it by a received custom among divers Nations by which the eldest Son is looked upon to have a right before the younger yet that this is no Law of Nature or Reason and consequently not Divine I think I have sufficiently prov'd at our second meeting But that this right of Succession of the eldest Son to be no fundamental Law of this Kingdom I think I can sufficiently prove from our English Saxon Histories as well as Laws and as for what you say concerning those Norman Lords and Bishops who joyn'd with Duke Robert after his Brother was Crown'd King it is call'd no better than Treason by all the Writers of those times for Florence of Worcester and Sim of Durham both tell us that the King thereupon call'd together the English and open'd unto them the Treason of the Normans and the Saxon Chronicleâ— who seem'd to have lived about that time compares the Treason of Bishop Odo to that of Iudas Iscariot against our Lord and though I grant King William might make such an agreement with his Brother Duke Robert as you mention yet as for the 3000 Marks Pension which you say he was to pay him I very much doubt it since no Historian but Matthew of Westminster who lived between two and three hundred years after makes mention of it and therefore I think it is to be referr'd to the following agreement betwixt this Duke and his Brother King Henry which the Saxon Chronicle expresly mentions Having now examin'd and clear'd the Title of King William Rufus I come next to justifie that of King Henry I. to the Crown
notwithstanding all you have alledg'd against it which yet is no more than what you said before that Duke Robert had an Hereditary Right and therefore he could not be put by which is to beg the Question for you cannot prove to me that he had this Right either by the Law of Nature the Law of England or the Law of Normandy not by the two former as I have already prov'd for your Conqueror himself being a Bastard had no better Title to the Dutchy of Normandy than his Father's last Will before he went to the Holy Land which was not good without the consents of the Nobility of that Dutchy as appears by the Historians of that time so that the greatest Objection you have to make against King Henry's being elected in a true Common-Council of all England is this that the time was so short between the Death of William Rufus and his Election that it was impossible for all the Parties that had Votes to be there present which is a very bold assertion for how can you or your Doctor tell that at the time when King William was kill'd he might not then have held a great Council at Winchester where he then Lay who might immediately upon his Death chuse his Brother Henry for their King for it is certain the Election was there the Day before his Coronation at London and therefore it is very rashly done to affirm that this Election was not in a Common-Council of the Kingdom when all the Historians and particularly W. Malmesbury tells us the manner of it and the Disputes there were about it viz. that Henry was elected King as soon as King William's Funerals were over Aliquantis tamen ante controversiis inter proceres agitatis c. and H. de Knyghton reciting the cause why Duke Robert was set aside viz. because he had been always contrary and unnatural to the Barons of England therefore quod plenario consensu consilio totius Communitatis Regni ipsum refutaverunt pro Rege omnino recusavâ—â—â—nt Henricum fratrem in Regem erexerunt which plainly shews that it was the opinion of all the Antient Writers out of whom Knyghton took this passage that this election was made by the free consent and in a full Council of all the whole Community of the Kingdom nor does the after claim of Duke Robert to the Crown at all alter the case for the reasons already given as also because the agreement that was made between them that he that surviv'd should succeed the other was never confirm'd or agreed to by the great Council of the Kingdom and therefore those Norman Lords that join'd with Duke Robert here in England are justly taxed by William of Malmesbury and the Saxon Chronicle with Infidelity and Rebellion and though I grant that Mat. Paris or rather Roger of Wendover whom he transcribes seems to condemn King Henry's taking the Crown as unjust and contrary to Right and that he therefore feared the Justice of God eò quod fratri suo primogenito cui jus Regni manifestè competebat temere usurpando injustè nimis abstulcrat yet this author writing about the middle of the Reign of King Henry III. who had succeeded his Father by a pretended right of Inheritance as well as Election it is no wonder if He who writ near a hundred years after this transaction should give his judgment in this matter according to the common opinion and prejudice of that age and must certainly speak by guess for how could he otherwise affirm unless he had been acquainted with that Kings thoughts as he doth in the same place that he felt conscientiam suam in obtentu Regni cauteriatam since no other Writer either of that time or after it does thus blame King Henry for taking the Crown But as for the account you give why Duke Robert never took upon him the Title of King if the Throne had not then been looked upon as vacant because of the agreement which he made with his Brothers by which he parted with his Right for a Pension during his Life is not at all satisfactory for in the first place neither of these agreements were made till above a year after his pretended Title did acrue to him by the Death of his Father and Brother and therefore he ought if he had look'd upon himself as true King to have immediately taken the Title upon him which he never did so likewise the agreement it self makes wholly against your notion of any hereditary succession to the Crown to be then setled since the main clause in both these agreements is that the survivor should be heir to him that died first unless he left Children of his own to succeed him which plainly shews that in the opinion of both those Princes and of the great men that swore on either side to see it observed they knew of no such setled Right of Succession in their Heirs which they themselves could not part with or else this Clause had been wholly in vain since both King William and King Henry's Children were to have succeeded to the Crown of England by vertue of both these agreements before the Sons of Duke Robert had his Son William who was only Earl of Flanders survived him But now if you please you may proceed with your other exceptions against the rest of the Instances I have here given you of the Vacancy of the Throne till such time as the Common Council of the Kingdom had agreed whom to place therein M. As to what you have said in defence of the Vacancy of the Throne after the death of King Henry I. carries less shew of Reason than what you urged in the former Cases since all Writers agree that this was a manifest Usurpation in Stephen who could pretend no sort of Title to the Crown himself as well as Perjury in the Bishops Lords and great Men of England who having sworn Fealty to King Henry's Daughter Maud in his life-time made Stephen Earl of Blois their King therefore William of Malmsbury and all the Writers of those Times do accuse Stephen of down-right Perjury and Usurpation and likewise relate that he was advanced to the Crown through the power of the Londoners and Citizens of Winchester but yet all these Endeavours had been in vain unless he had been assisted by his Brother Henry Bishop of that City and then the Popes Legate in England and favoured by the Arch-Bishop of Canterbury who Crowned him and yet for all this there was but a very small Faction of the Bishops and Lords who were for his Croonation for W. Malmsbury tells us Coronatus est ergo in Regem Angliae Stephanus tribus Episcopis praesentibus nullis Abbatibus paucissimis Optimatibus And many of the Nobility and great Men of England were so sensible of this that being headed by Robert Earl of Gloucester the Empresses base Brother they raised a War against Stephen which after her coming over hither was