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
this Letter I now mentioned was writ to the Pope which transaction I shall give you almost verbatim out of Mat. of Westminster and Henry de Keyghton in Anno 1297. being the 26th of Edward the First when the King having extorted a great sum of Money from the Clergy and People contrary to Law and being then going into Flanders he called a Parliament at Westminster where most of the Earls and Barons refused to appear until such time as their Petitions for the ease of their Countrey were heard and that the King would again confirm Magna Charta Yet nevertheless the King upon his confession of his Male Administration which he made before all the People with Tears in his Eyes and promise of amendment then obtained of the Commons an Aid of the Eighth Penny of their Goods But as soon as the King was gone over the Constable and Earl Mareschal with other Earls and Barons went to the Exchequer and there forbad the Judges to levy the said Tax upon the People by the Sheriffs because it was done without their knowledge without whose consent no Tax ought to be exacted or imposed so that the said Earls and Barons being thus gathered together and the greater part of the People joyning with them at last Prince Edw. then Lieutenant of the Kingdom was forced to call a Parliament to which the Earls and Barons came attended with great multitudes both of Horse and Foot but would not enter the City of London till the Prince had in his Fathers name confirmed the great Charters and had passed the Statute de Tallagio non concedendo both which were afterwards again confirmed by the King his Father some time after his Return And this will serve to explain the last Article in this Statute which comprehends the King's Pardon or Remission to Humphrey Earl of Herâ—ford and Essâ—x then Constable and Roger Bigot Earl of Norfolk Mareschal of England the two principal Leaders in the late Resistance with all other Earls Barons Knights and Esquires of their Party all Leagues and Confederacies as also all Rancour and Ill-will with all other Transgressions against them And pray see Sir Edward Coke's Comment on these words you compare our English Histories with this Act of Parliament the Old saying shall be verified That Records of Parliamentâ— the truest Histories The King had conceived a deep displeasure against the Constable Mareschal and others of the Nobility Gentry and Commons of the Realm for denying that which he so much desired yet for that they stood in defence of their Laws Liberties and Free Customs c. I suppose he refers to the Resistance but now mentioned whereupon he did not only restore the same to them as aforesaid but granted special Pardon to those against whom he had conceived so heavy a displeasure c. and such a one as you will scarce read the like and after a short gloss upon the words Rancour and Ill-will he thus comments on these words etiam transgressiones si qâ—as fecâ—inâ— here the words si quaâ— sicâ—iâ—t were added lest by acceptance of a pardon they should confess they had transgressed So careful were the Lords and Commons to preserve their Ancient Laws Liberties and Customs of their Countrey so that it is plain that Sir Edward Coke then thought the Lords and Commons had not transgressed in thus standing up tho' with force of Arms for their just Rights and Liberties and which sufficiently proves that this Author did not conceive such a Resistance to be making War against the King and so Treason at that time at Common Law and consequently not to be afterwards Treason by the Statute of 25th of Edward the Third as you would have it since that Statute dâ—es not make any other Overt-acts to be Treason but what had been so by Common Law before this Statute was made But in the Reign of this King's Son Edward the Second there were much more pregnant and fatal proofs of the exercise of this Right of Resistance by the Earls Barons and People of England against Peirce Gaveston whom having been before for his Mis-government of the King banisht the Realm by Act of Parliament and coming over with the King's License but without any reverse of the said Act Thomas Earl of Lancaster the King's Uncle with the rest of the Earls Barons and Commons of the Land took up Arms against him And tho' he raised some Forces by the King's Commission yet they fought with him and took him Prisoner and beheaded him near Warwick Some years after which the said Thomas Earl of Lancaster with Humphrey de Bohun Earl of Hereford together with divers other Earls and Barons took Arms and spoiling the Lands of the two Spencers Father and Son came up to London where the King had called a Parliament in which the King was forced to banish the said Spencers out of the Kingdom tho' they quickly returned again against whom when the said Earls above mentioned and divers other Barons and Knights again took Arms but being fail'd by some of their Consederates were over-power'd by the King's Party and the Earl being taken Prisoner was attainted and beheaded at Portfract yet was the this Judgment against the Earl and those of his Party afterwards reversed in Parliament in 1 mo Edward the Third and their Heirs restored in blood as also to the Lands of their Fathers as besides the Act it still to be seen upon the Rolls appears more plainly by a Writ of this King 's reciting that whereas at a Parliament at Westminster among other things it was agreed by the King the Prelates Earls Barons and Commons of the Kingdom that all those who were in the Quarrel with Thomas E. of Lancaster against the Spencers should have their Lands and Goods restored because the said Quarrel was found and adjudged by the King and the whole Parliament to be good and just and that the Judgments given against them were null and void and therefore commands restitution of the Lands and Tenements now in the Crown to the Executors of the said Earl and the like Writs are found for the other Lords and Gentlemen that had been of his Party And further that not only this Resistance made by this Earl and the rest of his followers but also that which this King himself made together with Queen Isabel his Mother against the Mis-government of the King his Father through the evil Counsel of the two Spencers appears by the Act of Indemnity passed in the first Year of this King in the preamble of which there is recited a short History of the wicked Government and Banishment of the Spencers Father and Son and also how Thomas late Earl of Lancaster was by their procurement pursued taken executed disinherited and how the said Spencers and Robert Baldock and Edmund Earl of Arundel by the Royal Power they had usurped had caused the King that now is and the Queen his Mother to be utterly forsaken of the King
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
in Prison and the first Act this King did after his Restoration was to call a Parliament which revoked all the former Statutes and Declarations of the 39 th of Henry the 6 th and 1 st of Edward the 4 th and then entail'd the Crown anew upon the issue of King Henry the remainder to the Duke of Clarence who then took part with King Henry against his own Brother 'T is true indeed that King Edward the 4 th returning again not long after into England and regaining the Crown from King Henry the 6 th the said King was not only murther'd together with his Son Prince Henry but in the next Parliament was also attainted of Treason with all others of his Party and yet lot let you see that this very Act is now null and void against King Henry the 6 th and his Son Prince Edward see an Act of Parliament of the first of Henry the 7 th not Printed which because it is not commonly known I will read it almost verbatim The King our Sovereign remembring how against all rightwiseness honour nature and duty an inordinate seditious and slaunderous Act was made against the most famous Prince of blessed memory King Henry the sixth his Uncle at the Parliament holden at Westminstey the fourth day of November the first year of the Reign of Edward the 4 th Late King of England whereby his said Uncle contrary to the due Allegiance and all due order was attainted of High Treason wherefore our same Sovereign Lord by the Advice and Assent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled and by Authorities of the same ordaineth enacteth and establisheth that the same Act and all Acts of Attainder Forfailure or Disablement made or had in the said Parliament or else in any other Parliament of the said Late King Edward against the said most blessed Prince King Henry or against the right famous Princess Margaret Late Queen of England his Wife or the right Victorious Prince Edward Late Prince of Wales Son of the same blessed Prince K. Henry and Margaret c. are void annulled and repealed and of no force nor effect so that by vertue of this Act the Title of the House of Lancaster was again declared to be good But to conclude I cannot but take notice of one mistake you have fallen into by saying that all proceedings against King Richard the 2 d. are repeal'd by that Parliament of the first of Edward the 4 th which is not so for though I grant that the dealings of Henry Earl of Darby as he is there call'd in imprisoning the said King and Usurping the Royal Power is there expresly condemned and his Murthering of him said to be against Gods Law and his own Oath of Allegiance as certainly it was yet the Deposition of the said King Richard by Parliament is no ways repeal'd by this Act for then all the Records thereof would have been quite Cancell'd and taken off the Rolls whereas they still remain to be seen at this day and you see by this Act I now recited That the attainder of King Henry the 6 th is declar'd contrary to due Allegiance and all due order and all forfeitures and disablements of the said King and Prince are quite annull'd and made void M. I must confess you have so stagger'd me with this Act that I know not what to say to it but that it was made in the first Parliament of King Henry the 7 th and before he had married the Princess Elizabeth and consequently had no good Title to the Crown himself therefore till then I look upon him as an Usurper but I shall now proceed to shâ—w you that that very King nay even Richard the 3 d. himself chiefly relied not upon any Parliamentary Election but upon their own pretended Titles of being right Heirs by Blood for after the death of Edward the 4 th his Son Edward the 5 th was proclaim'd King and might have quietly enjoy'd it if his ambitious Uncle Richard Duke of Gloucester had not plotted to defeat him of it and knowing very well that he had no way to bring it about but by inciting a corrupt party of the Bishops and Lords together with the Lord Mayor of London and some of his Party in the City to set forth by way of Petition to the Duke then Protector of the King and Realm That all the Children of K. Edward the 4 th were Bastards supposing that King to have been Contracted with a certain Woman called Eleanor Boteler before he Married Queen Elizabeth moreover that the Blood of his Elder Brother George Duke of Clarence deceased was attainted so that none of the Lineal Blood of Richard Duke of York could be found uncorrupted but in himself and there was at the conclusion of that Roll an Address to him from the Lords and Commons of the Kingdom that he would take the Government upon himself this fine artifice assisted on one side with his feigned excuses which induced the less thinking sort of People to believe he desir'd not the Royalty and prompted on the other side with the fear of his power procured his accession to the Throne so that at last he and his Wife Anne were solemnly Crowned King and Queen at Westminster and by these steps did that inhumane Prince who had no Title to the Crown either by descent or by merit ascend the English Throne see you that not by Election but by pretence of blood and by bastardising and attainting his Nephews he set himself up for the only true Heir of the Crown and therefore in the Parliament he call'd immediately after his Coronation when they had declar'd almost the very same things as were before in the said Petition they proceed further To declare that the Right Title and Estate which King Richard the III d had to and in the Crown and Royal Dignity of the Realm of England with all things thereunto within the said Realm and without it annexed and appertaining was just and lawfull as grounded upon the Laws of God and Nature and also upon the antient Laws and laudable Customs of this said Realm as also taken and reputed by all such Persons as were learned in the above-said Laws and Customs and proceeds farther thus therefore at the request and by the assent of the three Estates of this Realm that is to say the Lords Spiritual and Temporal and Commons of this Land Assembled in this present Parliament and by the Authority of the same it is pronounced decreed and declared that our said Soveraign Lord the King was and is the very undoubted King of this Realm of England with all things thereunto belonging within the said Realm and without it united annexed and appertaining as well by right of Consanguinity and Inheritance as by lawfull Election Consecration and Coronation So that you see tho' they put in his Election as also his Coronation as means of obtaining the
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
must needs signifie Tenants in Capite and no other But that it did not signifie only so after that time I shall join issue with you by and by I shall now proceed to my next Authority which is from Ailrid Abbot of Rievallis who lived not long after the Conquest who in his Life of Edward the Confessor relating the manner of that King's Election in his Mothers VVomb tells us How Ethelred his Father called a Great Council about appointing a Successor that hereupon says thus Fit Magnus coram Rege Episcoporum Procerumque Conventus Magnus Plebis Pâ—lgique Consensus VVhere you see apparently that the Abbots made a distinction between the Assembly of the Bishops and Great Lords and that of the Plebs Vulgus or Common People M. Pray give me leave to interrupt you a little before you proceed to any fresh Authorities I grant it is true that the Abbot in the place you mention tells such an idle Tale that this Edward was chosen King whilst in his Mothers VVomb and so his Father made the Nobility swear Fealty to him before he was born He is the only Author of this Legend that I know of and sure you your self must own that it is a little too gross to be believ'd and therefore I wonder that you should urge that to me for a sufficient Authority for the People or Commons having any place in the Great Council in those times F. Pray Sir observe to what purpose I make use of this Authority it is not to make good the Election of Edward the Confessor in his Mothers VVomb but only to prove who were then supposed when this Abbot writ to make up the constituent parts of the Wittena-Gemot or Parliament in the Saxon times which was then believed by all men to consist of the Clergy Higher Nobility and Comâ—â—â— unless you can suppose that the Abbot should mention the Commons by Prophecy And granting that it was only according to the custom of his own time which the Author of the Preface to the Decem Scriptores makes to be about the middle of King Henry II. Reign it will sufficiently prove the antiquity of the Commons in Parliament to be near a hundred years older than the earliest time you assign for it viz the 49th of Hen. III. But I shall now conclude with the conclusion to King Edward the Confessor's third Charter to the Abby of VVestminster in a great Council held in the last year of his Reign as you will find it thus recited in Sir H. Spelman's Councils in these Words Hanc igitur Chartâ—â— meae donationis Libertatis in die dedicationis praedictae Ecclae recitari jussi coram Episcopis Abbatibus Comitibus omnibus Optimatibus Angliae omnique Populo audiente vidente where by the Optimates Angliae I think can be understood no other than the Thanes or Freeholders of all sorts as well the Kings as others as also the Deputies of great Cities and Burroughs the Words being Optimates Angliae non Regis and tho it is not likely that the Populus who are here mention'd to be present should be the Mob or Common People only admitted to stare and harken at such a great Assembly yet since the Words are in respect of them only audiente vidente I shall not insist upon the Word Populus here as a part of this Common Council of the Kingdom But yet that the Word Populus does oftentimes refer to the Representatives of the Commons I shall conclude with the Answer of K. Harold the last Saxon King to the Message of VVilliam Duke of Normandy demanding the Kingdom of England and that Harold according to his Promise should marry his Daughter The Words are remarkable and therefore pray read them out of Will of Malmesbury who lived near that time Contra 〈◊〉 scil Heraldus quae dixi de Puellae nuptiis referens de Regno addebas praesumtuosum fuisse quod absque generali Senatus Populi Convenâ—â— Edicto alienam illi hereditatem Iuraverit now that by the Word Senatûs is to be understood the higher Nobility such as the Bishops Abbots Earls c. and by Populus the Representatives of the People we have Mr. Selden's Authority on our side who in his Dissertations on Fleta speaking of the great Question that arose in Parliament in K. Edward III. Reign concerning King Iohn's Donation of his Kingdom to the Pope gives their conclusion to this debate in these Words Ordine universi â—am generis Hieratici quam Proceres Senatus Populus sâ—lâ—â—niquâ— in it a deliberatione in Comiciis illis responderunt unanimes irritam plane fuissi 〈◊〉 Donationem illam ut pote tam sine ordinum assensu quam Iuran ento inaâ—guâ—aâ—i adversâ—n but of this great Authority I shall speak more hereafter when I come to it in order of Time Since therefore it is apparent that the Commons had a share in the Great Councils before the Conquest as you call it I desire that you would be pleased to shew me how they came to lose it after the coming in of the Normans and to be so long without it as until the 49th of Henry III. or 18th of Edward I. If your Authors are to be credited M. I must confess the Authorities you have brought out of the Saxon Councils would seem to be of some weight were I not sensible that the Monks who were the only Recorders of these Councils are very short and careless in giving a true account of them and if we go to the Councils themselves we might be sufficiently convinced that all those that are said to be present at them could not have any Places or Votes in those Assemblies as Members of them for in some of them as in this Example we find the Queen to have been there and to have given her consent to the King's Charters and yet I suppose you will not allow the Queen to have been there as an Estate by her self much less to have been a Member of any of the Three Estates The like we may say for those Abbesses we find mentioned to have been present in divers of those Councils and particularly in that of Winchester you so much insist upon wherein Tythes were granted and these are said to have approved of the Royal Charter as well as any of the rest and sure you do not make Women to have had Voices in our great Councils in the Saxon Times So that it appears plain enough to me that persons being mentioned as present in these Assemblies or being Witnesses to Charters there granted do not make them to have been constituent Members thereof And therefore since the Saxon times are so dark and obscure and so little to be collected of certainty from what we find in the old Monkish Histories and those Fragments of Laws and Charters they have left us I think it is time that we pass over this to the next Period after the Conquest wherein I doubt not
but to shew you that for above an hundred years after that time none but the Bishops Abbots Earls Barons or Tenants in Capite were summoned by the Great Council or Parliament till the time I have so often mentioned F. I see you do all you can to perplex very plain and evident Proofs For as to the Queens being often present at the Great Councils of those times it is no more than what was usual in these Elder times and that in France as well as here as any man that will but peruse the Charters of some of the Kings of France of the second Race as they are in Father Mabilion de Rediplomatica may easily satisfie themselves and as for the Abbesses whom we find sometimes mentioned to have been there before the Conquest they might also according to the Custom of those times have appeared in Person in the Great Councils in the Right of their Monasteries and of those great Possessions they held or else they might have been often represented by their Oecomi or Stewards who transacted all business for them and your own Civil Law doth always suppose that what any Persons perform by their Lawful Proxies it is said to be done by themselves and that the Abbesses and Prioresses did together with the other Spiritual Tenants in Capite joyn to grant Scrutage upon the Knights Fees they held I shall shew you before we have finished this Discourse But since I think I have sufficiently proved the Commons being in possession of this Right by a long Prescription I shall now leave it to you to prove that they did not enjoy it after the Conquest and that not until the time you suppose M. Since you are pleased to impose this Task upon me I shall willingly submit to it and therefore before I proceed farther pray let us see how far we are agreed In the first place I think you will grant that till about the latter end of Edward I. Reign there is no express mention made in our Records or Historians of any Representatives for the Commons either by Knights of Shires Citizens or Burgesses of Towns much less the word Commons mentioned by them in the sense it is now taken For if we peruse Ingulph or Eadmerus or any other Ancient Historian of William the Conqueror or his Sons time when they have occasion to mention the Great Councils of that Age we can find none mentioned besides the Bishops but Principes Proceres Primates or Optimates Regni or else in the following Age under the Titles of Optimates or Magnates Regni by Matt. Paris and Matt. of Westminster who are often comprehended under the more particular Titles of Comites Barones or Baronagium Regni or else by the more general of Nobilitas Universitas or Communitas Regni that is the whole University Community or Body of the Kingdom represented in Parliament by the Bishops Abbots Earls and Barons thereof As for most of these words I have given you my sense of them already in the Times before the Conquest and tho I grant there may be other Persons sometimes mentioned after the Barons as Milites Liberi Homines or Tenentes yet I think Dr. B. very plainly proves by those Authorities he produces in his Answer to Mr. P. as also in his Glossary at the end of it that by all the Words before-mentioned which are used in our Ancient Historians can only be understood either the Greater Barons or else the Less who were Tenents in capite and were a part of the Baronage or Nobility of those Times and whose Votes did then conclude all their Subfeudotaries or Mesne Tenents who held of them and these together with the Bishops and Abbots c. did represent all degrees of Men in the Kingdom and being often comprehended under the General Titles of Clerus and Populus or else Plebâ— or Valgus or else under these Titles as yet more generally expressed by Regnum and Sacerdotium i. e. the Clergy and Laity of the Kingdom the Words Populus and Plebs or Vulgus signifying no more in those days in our Historians when they treat of Parliamentary Affairs than the Lay-Earls and Barons with the other Less Tenants in capite So that the Vulgar or Common People neither by themselves nor their Representatives had then any Place in our Great Councils And therefore I think I may boldly affirm with Dr. B. first That the Commons represented by Knights Citizens and Burgesses in Parliament were not introduced nor were one of the Three Estates in Parliament before the 49th of Henry the Third Secondly That before that time the Body of the Commons of England or Freemen as now understood or as we now frequently call them collectively taken had not any Share or Votes in making of Laws for the Government of the Kingdom nor had any Communication in Affairs of State unless as they were represented by the Tenents in capite And these two Propositions I think I shall be able to prove by undeniable Evidence drawn from our Ancient Historians the Laws and Charters of our Kings as also from those Parliament Rolls Records and Acts of Parliament we have yet left us F. I confess you have made a very bold challenge and if you can make it out I grant you will carry the day and I shall then willingly submit to your Opinion But since I find the greatest part of our Arguments do consist in the equivocal use of those words by which I confess the Commons in Parliament are generally expressed in our Ancient Historians I shall in the first place shew you to avoid all unnecessary dispute about words that by every one of these Expressions you have mentioned the Commons might very well be comprehended as well after the Conquest as before And therefore to take the words in the same order as you have recited them I shall begin with the word Principes which I have already proved signified before the Conquest no more than Chief or Principal Men and that it means no more after the Conquest I shall shew you by several Authorities and though I grant that word is most commonly used by Eadmerus yet could it not be meant in the sense it is now understood there being then never a Prince nor so much as a Duke in England but what was understood by this Expression in after-times we must appeal to Historians Mat. of Westminster in his Flores Histor. Anno Dom. 1280. being the 7th Year of Edward the First which was but 15 years after the 49 Hen. 3. thus reckons up the constituent parts of that Parliament Rex Pontifices Principes Anglicani convenerunt in unum c. Yet in Rot. Claus. 7. Edward 1. It is called a Parliament and at which the Statute of Mortmain was Enacted And that the Commons were there as well as they are now I shall prove when I come to those times But as for the word Proceres in the ancient Manuscript Chronicle
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
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
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
make so light of this Testamentary Doâ—â—tion of Edward the Confessor which the greatest part of the Writers nearest that time do suppose to have been really made on the behalf of Duke William and that notwithstanding this bequest Harold unjustly and contrary to his own Oath did by force set the Crown upon his own Head without any precedent Election of the Clergy Nobility and People as was required at that time since it was impossible for them to meet in so short a time for King Edward dying on the Eve of Epiphany was buried on Twelfth day and on the same day Harold took upon himself the Crown by the consent of some of the Bishops and Nobility of his Faction then at London so that he was certainly no better than an Usurper and therefore by the Conquest of Harold and his party your Conqueror could acquire no right upon the free People of England since they never gave their consents to place Harold on the Throne and consequently K. William could have no just cause of making a conquest upon the whole Nation since neither did he ever in all his Reign as I can find call a common Council of the Kingdom to recognize or confirm his Title and tho' it is true Harold proving a Valiant and Popular Prince got the good will of the common People by divers Acts of Grace which he had lost by his violent taking the Crown while Edgar Atheling the only remaining Male Heir of the Saxon Race was in being and found very many who were willing to fight for him not only against the King of Norway who had a little before Invaded the Kingdom but also against Duke William yet all those in his Army could amount to nothing near the whole Kingdom who never contributed to the War by any publick Vote or Tax and therefore did not countenance it by giving Money or raising of Men as you suppose so that D. William could not pretend a right of making War against any body but only Harold and his Accomplices but as for the Testamentary Donation of Edward the Confessor tho' you make so light of it yet Ingulph says expresly that Edward the Confessor some time before his Death sent Robert Archbishop of Canterbury as his Ambassador to D. William to let him know That he had designed him his Successor not only by Right of Kindred but by the merit of his Vertue and that after this Harold coming into Normandy promised upon Oath to assist him in it and Will. Malmesbury says also that Edward the Father of Edgar Atheling dying almost as soon as he came into England K. Edward his Cozen being dead gave the Succession of this Kingdom to William Duke of Normandy with whom also agree Florence of Worcester and William of Poiâ—tou and all the rest of the Historians of that Age as well English as Normans nor do I know any of them except Simeon of Durham and Roger Hoveden who make Harold to have been appointed Successor by K. Edward or to have been so much as solemnly Crowned by the Archbishop of York But I confess your main objection is still to be answered viz. what precedent Right Duke Wâ—lliam could have to the Crown of England by this Testament of King Edward since it was then either an Elective or else an Hereditary Kingdom and so this Donation could confer no right on this Duke in Prejudice of the Peoples right to Elect or else of the next Heir to succeed In answer to which I must tell you that which perhaps you may have never considered that the Crown was then neither properly Elective nor Successive but a mixture of both M. That seems a kind of a Paradox and what I never heard before pray explain your self for I do not understand how it could be F. Why then I will tell you the Crown of England in those times was very like what the Crowns of Denmark and Sweden were not long since and as the Empire is at this day in which tho' the Estates or Diet might chuse whom they pleased for King or Emperor yet they still kept to the same Family or Line as long as there were any Males left of iâ— fit to succeed which custom often gave the King in Being a power which by degrees came to be looked upon as a kind of Right either upon his Death Bed or else at any time before to nominate one of his Sons or near Kinsmen to be his Successors by his last Will or Testament especially if he had no Sons of his own as happen'd in the case of King Edward the Confessor now this nomination tho' it did not alone confer a right to the Crown yet it made the person so named the fairest candidate for it and was such a recommendation to the Estateâ— or great Council of the Kingdom as they never passed by or denied as I can ever find by the best inquiry I have made and for proof of this I shall appeal to the Testament of K. Alfred as you will find it Printed from an Ancient Manuscript in the second Appendix to his Life in Latine publisht at Oxford Which begins thus Ego Alfredus Divino munere labore ac Studio Athelredi Archiepiscopi nec non totius Westsaxoniae Nobilitatis consensu pariter assensu occidentalium Saxonum Rex quos in Testimonium meae ultimae voluntatis complementi ut sint advocati in disponendis pro salute animae meae regali electione confirmo tam de haereditate quam Deus at Principes cum senioribus Populi misericorditer ac benigne dederunt quam de haereditate quam Pater meus Aethelwulfus Rex nobis tribus fratribus delegavit viz. Aethelbaldo Aethelredo mihi ita quod qui nostrum diutius foret superstes ille totius Regni dominio congauderet c. From whence you may collect first that tho' this King in the very beginning of his Testament ascribes his obtaining the Crown not to any Hereditary Right but the consent and assent of the Nobility of West-Saxony yet he also here mentions the entail of the Crown by his Fathers Will upon his two Elder Brothers and himself successively before any of his Elder Brother's Sons who were living at the time of the making of this Testament of K. Alfred's as appears by the Will it self in which they are expresly mentioned now how could this be that he was King as well by the consent or election of the West-Saxon Nobility as by his Father's Will unless both these had been required to make him so Also Will. of Malmesbury tells us of K. Athelstan the Grandson of K. Alfred that Iussu Patris in Testamento Aethelstanus in Regem est acclamatus but in the beginning of this chapter he also tells us that Aethelstanus electus apud Regiam aulam quae vocatur Kingston Coronatus est quamvis quidem Alfredus cum factiosis suis obviare tentasset upon that pretence that Athelstan was a Bastard so that you may
appears by the Title to the Latin Customs of Normandy which are at the End of the Old French Edition of the Constumiers de Normandy Printed at Râ—aâ— 1515. The Title of which is thuâ— Iura Consuetudines Ducatus Noâ—maniae The Prologue to which begins thus Quoniam Leges Instituta quae Normanorum Principes non sint magna provisionis Industria Praelatorum Comitum Baronum nec non Caeterorum virorum prudentum consilio Assensu ad salutem humani foederis Statuerunt Whereby it is apparent that the Antient Laws of Normandy were made by the Advice and Consent of the Estates for the Preservation of that humane Covenant they had formerly made with their first Duke Rollo when he had that Dutchy granted him by the King of France and whoever will consult the antient Histories and Laws of that Dutchy will find theâ—â— Dukes of Normandy no more absolute Monarchs there than the Kings of Norway from whence they came so that if their Duke should have gone about to take away their Estates or inslave the Persons of the Norman Nobility and People he might justly have been resisted by them and therefore their taking Lands from K. William after his pretended Conquest here must either have conferred an Estate upon them according to the Laws of England or Normandy not according to the former for you assert that Tenures in Capite and Knight's service were generally introduced by his coming so that if they were by the Normans Law as you suppose they were then no farther subjects to their Duke by that Tenure when made King of England than they were whilst he was Duke of Normandy viz. only according to the Laws and Customs by which they held these Estates so that if their Duke was not irresistible by them in case of Tyranny in his own Country so he was also here by the same reason since whatever he did in respect of the English he could acquire no new right over them And that an Oath of Homage alone doth not make the Person to whom it is taken irresistible if he makes an unjust War upon his Vassals appears by the Dukes of Normandy themselves who tho' they held that Dutchy by Homage to the King of France and took the same Oath to him upon every Kings Accession to the Crown of being his Liegeman and to be True and Faithful to his Lord the King of France for the said Dutchy of Normandy yet might the Dukes of Normandy without any Imputation of Rebellion have resisted the King of France in case he made an unjust War upon them nor were ever the Dukes of Normandy accused of Rebellion for so doing in all the Wars that they had with the Kings of France And therefore the holding of an Estate by Homage doth not suppose that the Lord of whom it is held was irresistible nor doth the word of Allegiance signifie any more than that duty which the Liegemen by the Old Norman Law owed to their Supream Lord of whom they held their Lands and therefore when the King or Supream Lord of the Fee did not perform his part of the Contract but went about to turn them out of their Estates or to invade any of their just rights by force it was usual for the Tenants to defie the Lords and renounce their Homage to them for which they used the Barbarous Latin word diffidare in French to defie that is to renounce that Faith and Allegiance which before they owed them and the supream Lords also oftentimes defied their Tenants thus Mat. Paris tells in Anno 1233. that K. Henry the Third by the Counsel of the Bishop of Winchester defied Richard the Earl Mareschal and the year following we find the Earl justifying himself in this manner being then in Ireland First I answer that I never acted Treasonably against the King for he has unjustly spoil'd me of my Office of Mareschal without the Judgment of my Peers and has Proclaim'd me banisht thorough all England he has burnt my Houses destroyed my Lands c. he has more than once defied me when I was always ready to stand to the Judgment of my Peers from which time said he I ceased to be the Kings Liegeman and was absolved from his Homage not by my self but by him and whereas you say that tho' the King or Supream Lord cannot forfeit his Right tho' he breaks his part of the Compact because of the inequality which there is between a King and a Subject then this Prerogative of Non-resistance doth not belong to the King as he is Supream Lord of the Land but as he is King and giveth Law to the Subjects which may have some colour of Truth in Absolute Monarchies but was of no Force either in the Government of Normandy or England where the Duke or King without the consent of his Estates never could alone make Laws but as I will not deny our Government to be a Monarchy so it is as certain that it is limited in the very constitution either by the Saxons or Normans begin where you please and therefore my conclusion still holds good that if the English have now succeeded to those very Lands and Priviledges which the Normans anciently enjoyed then whatsoever Right or Liberty the English Proprietors of Estates do at this day enjoy they do not only hold them as the Successors and Descendants of those Normans and Frenchmen but are also restored to them Iure postliminii as you Civilians Term it since they never submitted themselves or took an Oath of Allegiance to King William and his heirs but only to himself Personally there being no such clause in any Oath of Allegiance till it was so ordained many ages after in the Reign of K. Henry the fourth nor was this Oath ever taken by our English Ancestors to K. William as to a Conqueror but the lawful Successor of K. Edward the Confessor and K. Williams actual taking away the Estates of a great many of the English Nobility and Gentry contrary to his own Oath and without any just oâ—use could no more give him a right so to do than if Henry the fourth or Henry the seventh both which came to the Crown by the assistance of a Foreign force should upon a pretence of being Conquerors have govern'd by an Army and so have taken away whose Estate they pleased and given them to their followers that came over with them M. I shall not dispute this matter with you any further therefore pray proceed to the other Point you took upon you to prove that King William did not take away so great a share of the Lands of England as the Dr. and those of our Opinion affirm F. I shall observe your commands and therefore in the first place I desire you to take notice that according to the Doctors own shewing your Conqueror never took away the Lands of all the Bishops and Abbots of England much less those that belonged to Deans and Chapters or
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
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
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
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
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
by you from the Parliament Roll yet for all that it doth not follow that the Parliament allowed this Kings seigned and false claim to be good by their not contradicting it For though the Record says That upon the hearing of this Challenge or Claim all the Estates of the Kingdom being then asked their Judgments severally they declared that the same States without any difficulty or delay unanimously agree'd that the said Duke should Reign over them For considering the Dukes great Power it was not safe telling him to his face that he had no true Right by Inheritance therefore they only declared in general words without expresly denying or affirming his said Claim That he should Reign over them Which words do rather amount to an Election of him to be King without declaring what Title he had to be so And this they thought they might very well justifie not only for his having delivered them from the Tyranny of King Richard but also because they then looked upon it as their Right not only to Depose the King in case of an apparent violation of the Fundamental Laws of the Kingdom but also to place in his stead any of the Blood-royal tho' not next Heir by Blood according to the Message the whole Parliament had formerly sent to K. Richard in the beginning of his Reign by the Arch-Bishop of Canterbury and his Uncle the D. of Gloucester which I gave you at our ninth Meeting as I remember And pray take notice the words were Et propinqai rem aliquem de stirpe Regia loco ejus in Regnisolio sublimare Where observe that the words were not the next of Blood but some near Kinsman of the Blood Royl And though it is true that both King Henry the Vth. and VIth might both seem to succeed to the Crown by Right of Blood yet I do rather attribute their right of Succession to an Act of Parliament made in the seventh and confirmed in the eighth year of Henry the IVth whereby the Crown was entailed upon all his Sons by Name and the Right Heirs of their Bodies By vertue of which settlement both Henry the Vth. and VIth Succeded thereunto For if he had thought his own feigned Hereditary Title to have been sufficient he would never have troubled himself to have procured the Crown to be setled upon himself and his Children by Act of Parliament M. All this signifies nothing for I have already sufficiently proved that in the 39th year of Henry the VIth upon a solemn hearing before the Paliament of the Claim of Richard Duke of York to the Crown the said Act was set aside And it was there expresly declared that the said Dukes Title could no ways be defeated And this agreement is still on Record between Henry the then possessor of the Crown and the said Duke whose Right it was and the Judgment of the Parliament was then given in the behalf of proximity of Blood as to have always been the foundation and ground of Succession to the Crown of England and of taking it from the Son of Henry the VIth and restoring it to the Duke of York and his Issue as right Heirs thereof As appears by the Title and Pedegree of the said Duke set down at large in the first Article of this Agreement confirmed by Parliament that is by King Henry the VIth himself who was then King de Facto tho' not de Iure F. I will not deny the matter of fact to be as you have set forth yet if you will but please to consider the time when this Declaration and Agreement was obtained and the manner how it was done you will quickly find that it was rather got by force and constraint upon that poor Prince Henry the VIth than by any real Right the Duke of York had to the Crown after its being setled for three Descents in the House of Lancaster For the proof of which I desire you in the first place to take notice that at this time the whole Kingdom was under general discontent noâ— only for the loss of all our Conquests in France but also for the great mismanagement of Affairs at home by reason of the exorbitant power of the Queen and her two favourites the Dukes of Somerset and Suffolk who made the King a meer Cypher and had without his consent made away Humphrey Duke of Gloucester the Kings only Uncle then living contrary to Law so that affairs being in this ill posture it was very easie for the Duke of York and the Earl of Warwick to procure a sufficient Interest in the Nobility and Great men of the Kingdom to raise an Army upon pretence at first only of reforming the grievances of the Kingdom and bringing the said Dukes of Justice the issue of which War was that the Duke not being strong enough at first to oppose the Kings Forces was forced to surrender himself and to obtain his Pardon took a Solemn Oath never to Rebel against the King again but being afterwards Attainted at a Parliament held at Coventry for new Conspiracies he then again Rebelled together with the Earl of Warwick and then that King Henry being carried to head his Army was by the Duke of York taken Prisoner in the Battle near Northampton and being thence by him brought up to London a Parliament was call'd in the Kings name though without his consent wherein the Duke of York had the confidence to seat himself in the Royal Throne and to make that challenge of the Crown you have recited and under how great a terror all the Friends and Servants of this poor Prince was at that time appears plainly from this that neither the Kings Attorney nor any of his Council durst undertake to plead his Cause before the Parliament nor yet would the Judges give their opinions in a matter of such great moment but they all answer'd That this Matter passed the Learning of the Justices and also that they durst not enter into any Communication in that matter and besought all the Lords to have them excused for giving any Advice or Council therein but the Lords would not excuse them and therefore by their Advice and Assistance it was concluded by all the Lords that the Articles following should be objected against the Claim and Title of the Duke So that you see from the Record it self that the Judges were with much ado prevail'd with to object any thing against the Dukes Title Therefore considering the great contempt the Kings Person was then under by reason of his weakness and the great hatred and weariness the Nation had then of the evil Government of the Queen and her Favourites it was no more difficult for the Duke of York to procure this Judgment in Parliament in savour of his Title than that Henry the 4 th should after he had put Richard the 2 d in Prison get him Depos'd and make his own Title to be allow'd for good and certainly if it were
should be so for it is not meerly a legal Title by descent but a legal investitute and recognition by Parliament that makes a legal King or a King in Law as it makes a legal Magistrate and then all Kings de facto who are placed in the Throne by a Legal Authority and with all Legal and acustomed Ceremonies are legal Kings and as such may require a legal Allegiance so that all those hard words in the Statute of the first of Edward the IVth that call those Kings of the House of Lancaster Kings in Deed and not of Right or pretended Kings mean no more than this that they were Kings for the time being and according to the Laws which had made them so though not according to that hereditary Right of Succession which those Statutes require If you have any thing to reply to this tell me or else I will proceed to answer your two other Arguments M. I will not at present say more to this than I have done and therefore you may proceed if you please F. Your two next Arguments are from the attainders of Richard the IIId and his principle Assistants which were by Act of Parliament as to that Prince himself as also his adherents the attainders of Kings de facto and their Assistants in after Parliaments do not prove that Subjects cannot be guilty of Treason against a King in possession nor does the Statute of Treason relate to a King de jure only for that Statute was not made to secure Princes Titles but the quiet of their Government whilst they sate upon the Throne for though a King if he be an Usurper when ever the Rightful King regains the Possession of his Throne if he were a Subject before may be attainted of Treason for his Usurpation as was Richard the IIId for Treason against his own Nephew King Edward the Vth yet this does no way prove that Richard the IIId was no true King during his Usurpation but only shews the Parliaments abhorrence of his Treason and to deterr others from falling into the like attainted him and several of his Accomplices who had assisted him in his said Usurpation for that they were not barely attainted for defending King Richard's Title appears from this that the Earl of Surrey Son to the Duke of Norfolk and divers other Noblemen and Gentlemen who fought for King Richard at Bosworth-Field were never attainted at all But as for the Pardon that you say passed in that Parliament of the 1 st of Henry the VIIth you are very much mistaken in the purport of it for if you please to look upon it again you will find that it was not a General Pardon for the Common People who had fought on the behalf of Richard the Third but of all those who had come over with Henry the VIIth himself or who were with him in the Field against Richard the Third for all manner of Murthers Spoils and Trespasses committed by them in taking part with King Henry against his Enemies so that you see the assisting of a King de facto was not only justifiable but those that had fought against him thought themselves not safe till they had their Pardons Nay farther that Attainders passed in Parliament are no proof that the Princes against whom they were passed were not lawful Kings appears from hence that when Edward the Fourth was driven out of the Kingdom and dispossessed of the Throne the next Parliament under Henry the Sixth passed an Act of Attainder against him and his Adherents But as for the Attainder of Henry the Sixth you are very much mistaken to suppose that it was for any Treason committed against Edward the Fourth but it was for breach of the agreement made with his Father the Duke of York and in making War again upon him for had he not done this he had continued lawful King during his life by the Duke of Yorks own consent for in the Parliament Roll you your self have already cited it is thus expressed That considering the possession of the said King Henry the Sixth and that he had before this time been named taken and reputed King of England and France and Lord of Ireland the said Duke is content agreeth and consenteth that he be had reputed and taken for King of England and of France with the Royal Estate Dignity and Preheminence belonging thereto and Lord of Ireland during his life natural and for that time the said Duke without hurt or prejudice of his said Right and Title shall take worship and honour him for his Sovereign Lord So that you see that by the Judgement of the Parliament and by the express consent of the Right Heir of the Crown a King de facto was to be own'd by this Right Heir for his true and lawful Sovereign and therefore could not be attainted for detaining the Crown from him or his Son M. I will not dispute this point any further but yet methinks though Treason might be comitted against the King de facto whilst he continues King yet this is not for any Allegiance due to him but because such Treason being against the due order of Government and the common peace of the Nation such actions are therefore Treason from the presumed or tacit consent of the King de jure F. I grant indeed that such Acts are against the Order of Government and very destructive to it which is the only reason why they are made Treason by Law and this is as good a reason why the Law should make them Treason against a King de facto as against a King de jure for they ere equally against the order of Government and destructive to it whoever is King and that is the only reason why they made it Treason at all Now this presumed or tacit consent of the King de jure is a very pretty notion and serves you for a great many good turns it makes Laws and it makes Treason and gives Authority to the unauthoritative Acts of a King de facto that is to say or you say nothing that the presumed consent of a King de jure invests the King de facto at the time with his Authority for if he have no Authority of his own unless what the presumed consent of the King de jure give him that cannot make any Treasonable Act done against him to be Treason for it cannot alter the nature of things nor make a Man guilty of Treason against any person to whom he ows no duty of Allegiance And if the presumed consent of the King de jure can invest the King de facto with his Authority it must transfer the Allegiance of the Subjects too and then Subjects are as safe in Conscience as if the King de jure were on the Throne for it seems there is his Authority and tacit consent though not his person But indeed this is all meer trifling the King de facto has Authority or else none of his Acts
from the constant practice of those times that the King de facto was always own'd as Lawful Sovereign and had Allegiance still paid him by all the People of this Kingdom except those who being the heads of one or the other Party were either attainted or else forced to â—lye the Kingdom But as for all others though different and contrary Oaths of Allegiance were impos'd upon the People sometimes by the one and sometimes by the other of those Kings according as they got possession of the Throne yet I can no where find that ever any body suffer'd for barely swearing Allegiance to the King then in Being for it was always taken for Law that Allegiance was due to the King de facto since ordinary Subjects are not suppos'd to understand the legal right or justice of the Kings Title M. I must still say that there was some colour for the Peoples thus acting as you say they did during the contest for the Crown between the two Families of Yorke and Lancaster when I grant it was somewhat a difficult matter to judge which of the two had the best right to the Crown by reason that the House of Lancaster had held it for three descents as also from the speciousness of their Title since it was founded upon a pretended claim by right of blood upon supposing that Edmund Sirnamed Cronch-back who was one of the Ancestors of this House of Lancaster was the Eldest Son to Henry the Third which had it been true would have given Henry the Fourth a good right to the Crown not only against Richard the Second but his own Grandfather Edward the Third likewise had he been then alive and this descent falling out long before the memory of any man then living who could confute the falsity of this pretended Pedigree The People of England might very well be excus'd for owning an Usurper and paying Allegiance to him since they did not know but his claim might have been right especially since it was approv'd of in full Parliament without any contradiction as I have already shewn you at our last Meeting But what is all this to the matter now in debate between us when the Lineal Succession of the Crown has been so often declared to be the only means of acquiring a just Title to it and every one knows very well who was own'd for lawful King of England within these three Months and also who was pray'd for in all our Churches as his Son and Heir apparent and therefore I must still tell you that your parallel between those Kings de facto of the House of Lancaster and those Princes whom the Convention have now voted to fill the Throne does not at all agree since every Subject of this Kingdom who has but sence enough to go to Market can very well tell if they will deal sincerely to whom their Allegiance is due F. As to what you have now said it is no more than a repetition of what you have already urged to evade the force of these clear Authorities but indeed it was all one when a Prince had been once recognized for Lawful King by Act of Parliament whether the People knew his Title not to be good by right of blood or not And this I have plainly proved to you from the instance of Richard the Third who though both his Elder Brothers Children were then alive and the Eldest of them had been Proclaim'd King and also own'd for such by himself and whose Title he had also sworn to maintain in his Brother King Edwards life time as appears by the Clause Roll of the 11th of Edward the Fourth yet when he had once depos'd him and had call'd a Parliament which recognized his Title his Acts and Judicial Proceedings stand good at this day and though he himself was attained and declar'd a Tyrant and an Usurper yet all the Subjects who acted under his Authority and had taken an Oath of Allegiance to him never needed an Act of Indemnity for so doing whereas those that came over with Henry the VIIth were sain to have an Act of Pardon past to Indemnifie them for fighting against Richard the Third as I have now show'd you And though this Parliament of the first of Henry the Seventh agreed to repeal divers Acts which the King found fault with yet as for all other Statutes made in the Reign of King Richard the Third which have not been since repealed they are still in force without any confirmation likewise when Henry the Seventh had prevail'd over Richard the Third and that he was slain in the Field though all the Nation very well knew that Henry the Seventh could not be Heir of the House of Lancaster because his Mother was then alive and had never formally given up her right if she had any as certainly she could have none as being descended from Iohn Earl of Somerset who was base Son to Iohn of Gaunt Duke of Lancaster by Catherine Swinford whilst his Wife was alive and though I grant after his Marriage with the said Catherine the Children born of that Bed were made legitimate by Act of Parliament in the 20th of Richard the Second yet that legitimation only respects such private Priviledges and Inheritances which they might enjoy or succeed to as Subjects and not in respect of the Crown the Succession of which they were expresly declared uncapable of by that very Act of Legitimation still to be seen upon the Parliament Roll. But for all this when Henry the Seventh had called a Parliament and was therein recogniz'd for their Lawful Sovereign and that the Crown was setled by Statute on the King and Heirs of his Body without any mention of the Princess Elizabeth who ought to have been Queen by right of blood yet none of the Subjects of this Kingdom as I can find ever scrupled to swear Allegiance to him before ever he married that Princess though they as well knew that he could have no right by blood as you can suppose that the People at this day can know whether King Iames has abdicated or forfeited the Crown or not or whether your Prince of Wales be his true and lawful Son for since they are both nice and difficult Points and having been determined by the Convention the Supream Judges in this Case in favour of their present Majesties and that they also recognized their Title after they became a Parliament I can see no manner of reason why all the Subjects of this Kingdom may not as well justifie their taking this new Oath of Allegiance to them notwithstanding their former Oath of Allegiance to King Iames and his Right Heirs as well as the People of England could justifie their taking an Oath of Allegiance to Henry the Seventh notwithstanding their former Oath to Edward the Fourth and his Right Heirs before ever Henry the Seventh had Married the Princess Elizabeth the Heiress of the Crown especially since this Act of the 11th of Henry the
an Act of Parliament which is made indefinitely without fixing it to any time or person the words in the Act are the King for the time being which must certainly extend to any other King as well as Henry the VIIth for I suppose that an Act of Parliament and a Deed agreed in this that an unnecessary Clause can by no means render the whole void But as for what you say in relation to this Acts being a security for the Title of the Queen and her Children whom you suppose to be the right Heirs of the Crown this rather serves to strengthen the Act than otherwise for if this King had a good Title in her right then it may be also very well suppos'd that she gave her assent to this Act in the person of her Husband and that not for the benefit but to the prejudice of her own Issue since if after her death which happen'd some years before his her Son Henry Prince of Wales had set up his present Title to the Crown in the right of his Mother and so would have dethron'd his Father as an Usurper I suppose no reasonable Man will deny but that this Act would have indemnified all those who had taken up Arms in defence of King Henry the VIIth against his Son though in your sence King de jure and if it would justifie the Subjects then I cannot see why it may not do the same thing now in their swearing Allegiance nay fighting for the King in possession against him whom we will for the present suppose to be King de jure M. Well however I think I can prove that this Act was no more than temporary from the judgement of the Judges in the Case of Iohn Duke of Northumberland who when he was Tryed for Treason for leading an Army against Queen Mary to settle the Lady Iane Gray in the Throne desired to be informed by the Judges whether a man acting by the Authority of the Great Seal and the Order of the Privy Council or Princes Council as Stow and Heylin word it could become thereby guilty of Treason to which all the Judges answer'd that the Great Seal of one that was not lawful Queen could give no Authority or Indemnity to those that acted by such a Warrant upon which the Duke submitted though without question he did not want Lawyers to inforce his Plea with this Statute likewise if his cause would have born it from whence I infer against Sir Edward Coke that Treason lies against a King de jure tho' out of possession for it 's plain by all our Historians that Queen Mary was so far from being possessed of the Crown when the Duke of Northumberland acted against her that the Lady Iane was not only Proclaimed Queen in London and most of all the Cities and Great Towns in England but the Tower of London with all the Forts and Naval Forces were under her Command and she had also Allegiance sworn to her by the Privy-Council and by the Lord Mayor and Aldermen and she had also the Seals in her power by which all Patents and Commissions were granted and issued in her Name and if all this be not sufficient to constitute her Queen de facto according to this Statute of Henry the VIIth I know not what was F. Yet I can tell you what was yet wanting which because she had not she was certainly neither Queen de jure nor de facto and that was a solemn Coronation and Recognition of her Right by Parliament which legal investiture since she never had she was not the Queen for the time being and consequently not intended within this Statute of the 11th of Henry the VIIth for though it is true she was appointed Successour of the Crown-by the Letters Patents of King Edward the VIth yet since she could not claim by right of blood there being so many before her all the Kingdom looked upon it as an Usurpation and an artifice of the Duke of Northumberland whose Son she had Married to get the Government of the Kingdom into his sole power so that it was no wonder if the greater part of the People were so averse to her Title and that those of the Nobility who took her part so quickly revolted from her when once the fear they were in of the Duke of Northumberland's power was removed for had this Bequest of the Crown to the Lady Iane held good this Kingdom instead of being Hereditary would have become wholly Testamentary and disposable by the last Will or Letters Patents of the King or Queen for the time being without the consent of the Great Council of the Nation which is contrary not only to the then receiv'd Laws of Succession but also to the antient constitution of the Kingdom as well before as after the Conquest But notwithstanding all this I doubt not but that if the Lady Iane had so far prevail'd against Queen Mary as to have been able to call a Parliament and to have had her Title own'd and recogniz'd therein as it was in the Case of Richard the Third and Henry the Seventh but that she would have been true and lawful Queen according to the intent of the Statute we are now discoursing of and then the Duke of Northumberland must likewise if he had fair play have been indemnified for taking up Arms in her defence against Queen Mary since Queen Iane would have been then within the letter of this Statute as much as King Henry the Seventh himself M. You must pardon me if I cannot be of your opinion in this matter since if the bare Coronation and recognition by Parliament could confer a legal right to the Crown upon one who had no hereditary right to it before the consequence of it would be that the Crown would be so far from being Elective as you suppose it to have antiently been that it would be in the power of every bold Usurper or Rebell who had but the confidence to call himself King to gain a legal Title to be so according to your Principles and then if Oliver Cromwell could have found a Party strong enough in the Army to have declar'd him King and had call'd a Parliament in his own name who had recogniz'd him for their Lawful Sovereign he would then have had as much right to our Allegiance as King Charles the IId which certainly was not only contrary to the settlement of the Crown upon Henry the VIIth and the Heirs of his body but also to that solemn recognition of King Iames the Firsts Title as lineally descended as right Heir to the said King Henry which I insisted on at our last Meeting And therefore if you will have my sence of this Act it is either expir'd for the reasons I have already given or else was void ab initio since it is not only contrary to the setled course of Succession of the Crown according to the Laws of lineal descent for divers hundred years last past but
also to those of justice and right reason for an Usurper not only to seize the Throne by force but if he can once get himself solemnly Crown'd and then recogniz'd by an Act of Parliament of his own calling which your self cannot deny but to have been ever too obsequious to the will and power of Usurpers as appears by those instances you have given me in Henry the IVth Henry the VIth and Richard the IIId the consequence will then be that the whole Nation would not be only bound to swear Allegiance to him but would be also oblig'd by this Act to desend him in his Tyranny and Usurpation to the utmost of their power and it would also indemnifie them for so doing which would be to establish iniquity by a Law and would destroy all the setled foundations of right and wrong which I affirm God himself is not able to alter without departing from those great attributes of immutability and Justice so essential to his Divine Nature F. It will not be very difficult to reply to these Arguments since they are grounded on such false Principles as are already answer'd As first that this Kingdom is by the fundamental constitution of it an Hereditary Monarchy and that consequently none but he who has a right by inheritance can require our Allegiance but pray tell me where you can find this fundamental constitution for I think I have sufficiently prov'd that there never was any such thing known in England till between four and five hundred years since that King Edward the First succeeded to his Father Henry the Third without any Bequest of the Crown by his Testament and before any Election or Coronation since he was then in the Holy-Land But suppose it now to be an Hereditary Monarchy it doth not therefore follow that the Monarchy should continue always in such a Family for that may sail or may be changed by Conquest or Usurpation as has often been and the constitution continue So that the most that can be said is that when any particular Family by the Providence of God and the consent and submission of the People is placed in the Throne of right the Crown ought to descend to the Heir of that Family but suppose it does not must we pay Allegiance to no other person though pâ—ssessed of the Throne Pray Sir shew me that fundamental constiâ—ution for its being an Hereditary Monarchy does not prove it and according to the Judgement of the best Lawyers the Laws of the Land require the contrary viz. that we must pay our Allegiance to him who is actually King not to him who ought to have been King but is not and to think to confute this by pretending this fundamental constitution of an Hereditary Monarchy is to take that for granted which is still to be proved And therefore I am not at all frighted at the dreadful consequences which you suppose must follow if this Statute of Henry the VIIth should be Law viz. that it would be in the power of every Rebell and Usurper who could get himself Crown'd and then own'd to be King by a Parliament of his own calling to have a legal right to our Allegiance and that Cromwell if he could have got himself once Crown'd and recogniz'd might have been defended in his unjust Usurpation against King Charles the Second But admit this to have been so yet it is still to be understood that at this Coronation he had taken the Oath anciently taken by our Kings and that the Parliament he had summon'd to recognize his Title had consisted of the antient Lords and Commons consisting of Knights Citizens and Burgesses which never was observ'd in any of those Mock-Parliaments which Cromwell call'd had all these Conditions been observ'd I believe he would have been as legal a King within this Statute of Henry the VIIth as he himself ever was before he Married with the Princess Elizabeth which was not till near half a year after he had the Crown setled upon him by Act of Parliament So that though upon every translation of the Crown from one Family to another the first Prince of that Family could have no Hereditary Right to it yet we find such Princes to this day taken for Lawful Kings thus your William the Conquerour King Henry the IVth and King Henry the VIIth are each of them looked upon as true and lawful Kings according to our constitution as if they had been right Heirs of the Crown by lineal descent and though you may say that as to William I. he had a good right by Conquest that is only gratis dictum since I have already prov'd that he could be really no Conquerour And if the English Saxon Monarchy was hereditary before the Conquest as the Gentlemen of your opinion suppose he could be no other than an Usurper upon Edgar Athling the right Heir of the Crown by blood and as for Henry the IVth and Henry the VIIth though they both pretended a feigned Title to the Crown as Heirs by blood yet it is plain by the very Acts of Recognition I have cited that they durst not insist upon that Title since I have already prov'd there is no such thing mention'd in that Act of Parliament wherein the Estates of the Kingdom unanimously agreed that Henry Duke of Lancaster should Reign over them nor yet in the subsequent Act whereby the Crown was intail'd upon himself and his four Sons successively so likewise the Statute of the first of Henry the Seventh it is only drawn in general terms declaring that the Inheritance of the Crown of England c. shall rest remain and abide in the Person of King Henry the VIIth and the Heirs of his Body lawfully coming c. Nor is there indeed any breach made upon this Statute as you suppose nor yet upon the Act of Recognition of King Iames which you so much insist upon since the Crown is certainly setled upon two Princes who are not only lineally descended from them but who are also to be looked upon as right Heirs unto them since the Great Council of the Nation who are the Supream Judges have declar'd them to be so But as for the rest of your Speech whereby you would prove that this Act must needs be void because contrary to the Laws of Justice and right Reason this also depends upon your former errour in supposing that Princes have a Divine or Natural Right to their Crowns antecedent to the municipal Laws of their respective Kingdoms which is already sufficiently confuted so that tho' I grant it is not in the power of God himself to alter the natural foundations of right and wrong just and unjust yet it is likewise as certain that the Civil Rights of Princes as well as those of Subjects can no ways be accounted for according to those Natural Laws since all Civil property as well in Crowns as other Possessions must depend upon the particular Laws and Constitutions of each Kingdom and
secure in what he enjoys but by it nor can he have a right in a Countrey that is already possess'd to property but by owning the Government of that Countrey and when by enjoying the Rights and Priviledges of the Subjects of that Common-wealth he has own'd himself a member of it and a Subject to its Government he is then bound to maintain this Government and also the King that administers it from a double obligation the one particular in respect of himself and that protection he receives from him the other more universal proceeding from that duty which is incumbent upon every particular Subject to maintain the peace and happiness of the Common-wealth as long as he continues a Member thereof So that he is bound never to disturb it as long as the main ends of Government can be had and enjoy'd therein and this is the only means that I know of by which any man except by express Oaths and Promises can consent to become Subject to any single person or Government Now this tacit consent of particular persons being separately and singly given unthinking people take no notice of it and suppose they are as naturally Subjects as men and consequently that they have no more right to free themselves from their Subjection than from their Humane Nature nay must suffer themselves to be destroyed rather than endeavour it let the Government oppress them never so unmercifully which is indeed to reduce men to the condition of brute Beasts who belong to this or that Owner because he either bought them with his Money or else because they happen'd to drop from their Damâ— upon his ground From what has been here spoken I think we may deduce this general Conclusion that every ordinary Subject who enjoys the common benefits and protection of any Government iâ— bound in gratitude not only to obey it but also to be true and faithful to it during the time he lives under it and is bound likewise not to conspire against it and therefore that Oaths do not alter the nature of Allegiance or make it due where it was not before or any ways extend it but only add a new tye to pay that Allegiance which is due upon the account of protection He that lives under a Government though he has not sworn to it owâ— it the same Allegiance as he that has and if he should deny his Allegiance to it would be equally guilty of Treason though not of Perâ—ury It is evident by the universal practice of Mankind that no Subjects ever thought themselves obliged by those Oaths of Fidelity which all Governments have constantly imposed on them when they could not be protected by them and that this failure of Protection did not proceed from any fault in the whole Nation or People themselves And this may be prov'd by the common and constant practice of all the Subjects of Europe for who does not know that the Subjects of the King of France's last Conquests in Flanders have been forced to swear Allegiance to him though they were satisfied that his Title was unjust and that their Natural Sovereign the King of Spain to whom they had formerly sworn Allegiance is still living We have had also a late Example of the Subjects of the Duke of Hâ—lsâ—ein Goâ—torp who having both his person taken Prisoner and his Territories unjustly seiz'd upon by the King of Denmark in time of Peace the Subjects of the said Duke were forced to swear Allegiance to the King notwithstanding their former Oath to their Master nor do our Modern Casuists as I know of blame them for so doing And why the People of England should be tied to harder terms than all the rest of Europe I wish you could give me a sufficient reason since the Legislative Power of England wherein it is certain the People have a share are presum'd to recede as little as possible from natural equity and therefore design by imposing such Oaths only the good and preservation of the Civil Society whose interest it is that they who have the publick Administration of Affairs should not be disturbed but it is not at all material to that end whether this or that Man hath this power provided they are well managed nor can it without the greatest absurdity be suppos'd that such numbers of Men as Societies are compos'd of who are by nature equal should oblige themselves by the most solemn ties to become most miserable by living without protection nay to lose even their lives rather than own the Government that can and does protect them for no other reason but such an extraordinary fondness to this or that Person or Family as to fancy to be inseparable from him not to the necessaries or real conveniencies of life but only an Office for Government is no other which is but an imaginary happiness I grant therefore that People should be true to those that have the present administration of Civil Affairs is all that all Oaths of Fidelity require and it is evident from the intent of it that the late Oath of Allegiance required no more and to extend it farther than the King in Being is not reconcilable with the reason end and design of paying obedience which is the peace and happiness of the Civil Society which can never be maintain'd if people may for the sake of a single person disturb him that has the administration of their common Affairs and it would require impossibilities because private persons are incapable of paying Allegiance to a King when out of possession of the Government M. Notwithstanding what you have said I think I am able to convince you of divers great mistakes you have now committed in this Discourse of Natural Allegiance as also in the obligation we are under by the Oath of Allegiance to King Iames. For first as to Natural Allegiance you are very â—old to suppose there is no such thing when all your Law-Books hold so expresly that there is I am sure this is to be guilty of the fault for which you have already reprov'd me of being wiser than the Laws you are also much mistaken to suppose that this Natural Allegiance meerly springs from hence that the persons oblig'd by it are only such as are born within the Kings Dominions for persons born without the Realm may be also his natural Subjects as are the Children of Embassadors born beyond Sea and the Children of Aliens born within the Kingdom are not therefore Natural Subjects of the King so that the meer circumstance of Birth does not alone entitle any one to the priviledges of a Natural Subject nor consequently bind him to all the duties of Natural Allegiance But it is therefore called natural in our Laws because as the best Lawyers have affirm'd it is â—ounded upon the Law of Nature which gives the Sovereign power a right to the Allegiance of every one who is Born under the Jurisdiction of it As every Son is born a Subject to his Parents
and is by the law of Nature oblig'd to Honour Obey Assist and Support So also is he born a Member of the body Politick and by consequence a Subject to the Sovereign of it and accordingly by the same eternal Law is bound to pay all faithful Service and Obedience to him when he in a capacity to perform them But your next Mistake is yet worse when you confound that common Obligation of a Foreigner or meer Denison to be true and faithful to the Common Wealth wherein he lives with this Natural Allegiance of every English Subject for though I grant the taking the Oath of Allegiance does not inforce any new Obligation upon him that takes it more than he was subject to before yet for all that I think you will not deny but that there is a great deal of difference between that common Obedience or Submission which such a Foreigner pays to the King and his Laws in a Country where he Sojourns and that more perfect Allegiance arising either by Birth or from such a strangers being naturalized and by taking the Oath of Allegiance becoming as true and perfect a Subject as a natural English Man and hence it is that in all Wars declar'd between Neighbouring Princes whatever Subjects of theirs shall presume to stay and reside in each others Dominions after once they are recall'd home may be justly Executed as Traytors when ever they shall be taken and therefore though I grant that every Person now living in England and of ripe Age is oblig'd to obey your King and Queen de facto in all ordinary and lawful things which tend to the publick Benefit and Defence of the Civil Society or Common-weal and which being for the benefit of the King de jure and his leige People it is to be morally suppos'd they have his Tacit consent for what they do as long as it tends only to this end yet does it not therefore follow that the bare protection of this usurpt Government and the enjoyment of the common priviledges of a Subject should give such a King de facto or Government a right of exacting an Oath of Allegiance to them since I have already prov'd from the true signification of being true and faithful as also from the legal signification of the word Allegiance that no true Subject can lawfully take it without renouncing his Allegiance to his natural Prince since not only a bare Neutrality or Obedience in not transgressing the Laws is thereby required of them but also an Active Obedience and Duty in performing the King de Facto's commands and the deâ—ending him when ever there is occasion in his ill-gotten power But since the only difficulty is how a strict observation of this Oath can consist with the quiet and happiness of the Subjects when ever a new Oath of Allegiance comes to be impos'd by the King de facto since the Subjects may be all ruin'd that do not take it if it be once offer'd to them This difficulty might be easily remov'd if the whole Nation would â—lick firmly to the Duty required by their former Oath of Allegiance and resolve never to take a new one for then the numbers of the refusers would be so great as that they would be more than could be made to suffer for their refusing it I speak of such Subjects as are in our case and who are not forced by a Prince who either has the Right or Power of a Conqueror to compel them by force and therefore your instances of the Subjects of the King of Spain or of the Duke of Holstein who were conquer'd or else as good as conquer'd by the power of France and Denmark whereas we are only over-aw'd by an inconsiderable number of Dutch and Germans and might set our selves free if we would give but a vigorous Effort towards it For that King William is a Conqueror over the whole Nation I think you dare not affirm And without he were so he could challenge no right to our Allegiance as such and therefore I must still believe that the Oath of Allegiance I have taken to King Iames and his Heirs is perpetual unless you could show me that their Right is determin'd which you have not done by any thing you have yet said and therefore I cannot be of your Opinion that the bare protection of an usurpt Power can justifie our Swearing Allegiance to it either in Law or Conscience for then all Men had been oblig'd to pay as firm an Allegiance to the Rump Parliament and also to Oliver Cromwell as to King William and Queen Mary since both the former protected the People as much in their Religion Civil Liberties and Properties as the latter I fear will ever do And that the bare protection of a Government does not give it no absolute right to the Allegiance of all those that enjoy their protection I think may be sufficiently prov'd from the instance of a Frenchman or any other Foreigner who though by his living here and enjoying the common protection of the Government I grant he is oblig'd to be obedient to its Laws and is not to Act or Conspire against it yet this does not discharge him from his natural Allegiance which he still owes to his former Prince so as to do any thing which may prejudice that Allegience he owes to him either by Conspiring or Fighting against him And this was solemnly declard to be Law by the Judges of the Kings-Bench in the case of Dr. Story in the 13 th Year of Queen Elizabeth He being a violent Papist fled over into Flanders to the Duke of Alva and there conspiring with him to invade this Kingdom and being afterwards taken and brought over Prisoner was Tryed as a Subject of England though he refused to plead as such because he said he had Sworn Allegiance to the King of Spain notwithstanding which Plea he was Executed as a Traytor as you will find at large in my Lord Chief Justice Dyers's Reports which Judgment is also confirm'd by the Lord Chief Justice Coke in Calvins's Case where he expresly Asserts That a Person born under the Dominion of the King of England owes him perpetual Faith and Allegiance and this by vertue of the Law of Nature because Iura naturalia sunt immutabilia from whence will also appear the falsity of your Conclusion that Oaths of Allegience extend no further then to the King in Possession or to that Government to which we do at present owe our common Protection and therefore that our Law has a much higher consideration of this inherent Allegiâ—nce that belongs to a King de Iure as to his particular Person and his Heirs so that it cannot be indifferently paid to any body else who can by seizing of the Government force us to owe our Protection to them Which appears by what my Lord Coke hath also laid down to have been agreed by all the Judges upon this Oath of Allegiance in Calvins's Case as I
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
he was made King nor can I see how their taking of Lands from Him could make him become an Absolute and Irresistible Monarch over them and their Descendants so that if upon your supposition all the owners of Lands in England at this day hold their Estates either by descent or purchase from those Antient Normans or French Proprietors they must also succeed to the same Liberties and Priviledges as those under whom they claim did formerly enjoy But before I conclude I cannot but take notice of what you have said against my proofs of the formal election of King William for if the keeping of a guard about the place where the King is Elected and Crowned should void the freedom of the Election I doubt whether the election of any elective Kings or Monarchs no not of the German Emperor himself would hold goods as for the other reason that they could not chuse but â—lect him that is yet mâ—re trivial for there being no more than one thaâ— stood to be chosen they could indeed chuse no other but if not having a Liberty to refuse must void the Right of Election pray consider as I told you before whether there be any Canonical Election of Bishops in the Church of England at this day therefore I doubt not but that King William I. was as lawfully and freely elected as K. Edward the Confessor his Predecessor whom all Authors agree to have had no other Title and Williâ—lmus Gemeticensis in the place I now cited tells us he was Elected King as well of the Norman as English Nobles and if the custom had not â—â—en â—â—cen to Elâ—â—â— the King before he was Crowned it is not likely thaâ— your Conqueror would have introduced a new custom to the prejudice of his pretended right by Conquest but indeed there is not only more cogent argument to prove that the Crown was formerly elective than â—he constant usage as you your self confess ever since your preâ—ended Conquest to this day of asking the People whether they are content to have such a one for their King As for your Doctors quotation out of William of â—oictoâ— pray take notice that he places your Conquerors Hereditary bequest together with the Oaths of the English as his best Title and the right of War last by which this Author did not understand a Conquest of the People of England but his prevailing against Harold M. I do own with the learned Dr. B. that the Descendants of those ancient Norman and Freâ—â—h Earls and Baâ—ons than came in with the Conquerour and their Posterity afterwards seeing the Yoke of feudâ—l Tenures and other prerogatives this King and His Descendants exercised over them to press as hard upon them as the Antient English were those that made such a disturbance for their Right and Liberties in the Reigns of H. Iohn and Henry the third and tho' I grant their Ancestors were never conquered and consequently could not be obliged to him as to a Conqueror 〈◊〉 may for all this maintain that they and their Posterity were as much bound to an Absolute Subiection without any resistance aâ— the English whom they conquer'd for they were either his own Subjects in Aâ—â—mandâ— before his coming oâ—eâ— hither or else were such Volunteers who followed him but of hopes of Estates and Brâ—ferment was for all those of the former 〈◊〉 and 〈◊〉 were his subjects before they were tied not only by their 〈◊〉 Oaths of a Regiance which they had taken in Normandy but were also bound by the same obligation of Non resistance as all other subjects must always be both in that and all other Governments to all which was added another Obligation in respect of those who were not his subjects before his entrance since this whole Kingdom was by Conquest the Conqueâ—ors as appears in that he bestowed the 〈◊〉 part of 〈◊〉 his Followeâ—â— whose blood runs at this day in the Veins of most of our English Genâ—ry and Nobility as a reward for their Service and Assistance tho' he might have some part to the English Natives and their Heirs yet so aâ— that he altered the Tenure and made it descend with such burdens as he pleased to lay upon them so that as well â—his own Countrymen Normans as those of all other Nations who thus became Subjects and Feudataries to him for all the Lands they possessed in England since he was the only Directus Dominus or Lord Paramount of the whole Kingdom were also his Vassals and Subjects for in case of Treason and Rebellion or Death without Heir those Lands were to return to him again and to be aâ— his dispossal so that all subjects as well Normans as other Foreigners who had Lands granted to them by the Conqueror thus became his homines Ligei Liegemen and did owe Faith and true Allegiance to him as their Supream and Liege Lord as the King is called in several Statutes and the definition of Liegeancy is set down to the grand Customary of Normandy Ligeantia est ex quâ domino tementur vasalli sui c that is Liegeancy is an obligation upon all subjects to take part with their Liege Lord against all men living to aid and assist him with their Bodies and Goods and with their advice and power 〈◊〉 to lift up their hands against him nor to support in any wise those who oppose him and tho' I grant that the Supream or Liege Lord is likewise bound to govern and defend his Liege People according to the Rights Customs and Laws of the Countrey yet is he not liable to resistance much less forfeiture if he neglect it For tho' if Subjects break their Covenants and prove disloyal all their Lands and other Rights are forfeited to the King yea if the King or Supream Lord break his Oaâ—â—â— notwithstanding his sailing therein neither his Crown nor any Rights belonging to his Royal Dignity are thereby â—orfeiâ—ed the reason of this inequality is because the King gave Laws to the â—eople but the People did not give Laws to him so that it is plain that however you 〈◊〉 the Conquerors entrance whether by the Sword or to avoid the Envy of the Title of a Conqueror by a voluntary submission of the English Nation to him as to their Sovereign the conclusion cannot vary because the duty of Non-resistance arises from their own Act they taking an Oath of Allegiance to be his True and Loyal Subjects with which Oath Resistance can by no means consist F. I must beg your pardon if I cannot take what you have now said for a satisfactory answer since I doubt it will do you little service whether you make use of it either in respect of the Normans or other Foreigners for as to the soâ—mâ—r it appears from the Antient Constitution of Normandy that the Duke was no absolute Monarch there but Feudaâ—ary to the King of France and farther could make no Laws nor impose Taxes in Normandy without the consent of the Estates of that Dutchy as
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
Act of Parliament and therefore I must still tell you that you go upon a wrong ground when you suppose that there can be now any dispute who is rightful King of England since I have often told you that he can neither abdicate or forfeit his Right to the Crown and that no Parliament whatever much less a Convention could have any power to declare he had abdicated the Government and that thereby the Throne was become vacant for though I grant the judgement of the Estates of the Kingdom when legally assembled ought to be received with great submission and respect yet must it be only in such matters which they have a legal cognizance of and which they are impower'd by the Laws and Constitutions of the Kingdom to determine but since their Voting him whom you your self cannot deny to have been their lawful King to have abdicated the Throne when indeed he had not and then not only to declare the Throne vacant but also to place those therein whom you your self dare not affirm to be the next Heirs by blood are things quite out of their Element and beyond the Sphere of their Authority and though I grant that they may sometimes judge concerning the Succession of the Crown and who is next heir to it yet is this only to be understood as far as they judge according to the Common Laws of the Succession already laid down at our last Meeting and not when they go quite contrary to them and therefore though I own the Parliament might justly declare Henry the VIth to be an Usurper and consequently might be deposed yet doth it not therefore follow that they had a like right to declare Edward the IVth an Usurper and to pass an Act of Attainder against him as I confess they did after that Prince had held the Crown for ten years together since that was beyond their power to enact or declare by the fundamental constitution of the Government F. I am sorry your answer can afford nothing new but only the repetitions of the same false Principles and Arguments that have been already so often answered in our former Conversations for in the first place I have sufficiently proved that neither the Laws of God nor Nature have ordain'd any such thing as a lineal Succession of Kings or any irresistible or unforfeitable power in them which they can never fall from let them act never so tyrannically for I think I have sufficiently prov'd that not only in absolute Monarchies but also in limited Kingdoms where the King has not the sole Supream power a King may not only be resisted but may be also declar'd to have abdicated or forfeited his right to Govern in case of any apparent obstinate violations of the fundamental Constitution in those great points that make that Government to differ from a despotick Monarchy and that if they had not this right all their liberties will signifie nothing and their Lives Liberties and Estates would lie wholly at the Kings mercy to be invaded and taken away when ever he pleas'd I am forced to repeat this to remind you of the Reasons upon which those Principles are founded and therefore you do but fall into your old mistake when you affirm that by the fundamental constitution of the Government the Great Council of the Nation which was but the same with our late Convention had no power to declare the King to have broken the Original Contract between him and his People Therefore what you say concerning the want of Authority in this Great Council to declare the Throne vacant is altogether precarious unless you could also prove that it is against the fundamental constitution so to do whereas I have so far proved the contrary that the Throne has been declared vacant no less than eight times since the Conquest which makes up almost a third part of the Successions of all the Kings and Queens that have Reigned since that time so that if the custom and practice of Great Councils or Conventions and those not condemn'd by any subsequent Statutes can be the only Rule or Guide for the Consciences of all the Subjects of this Nation we have certainly had that as solemnly declar'd now as in any other Great Council or Convention that has been ever held in this Kingdom but as to what you say concerning the want of power in those Councils to declare or recognize who are the right Heirs to the Crown but not to make them so is very pleasant since that were all one as if two Men who contended for an Estate should bring the matter before the House of Peers and when that was done and the Case solemnly heard by Council on both sides that party who had lost the Cause should declare that this Court tho' the highest in the Kingdom had no power to judge in prejudice of himself who had an undoubted right to the Estate which were only to give the Lords power to give judgment only for one side and why the other Party if the judgment had been given against him should not have made the like Plea I cannot understand So that such a Judgement would be altogether in vain Therefore to apply this to our purpose though the Parliament being prevail'd upon by the strength and faction of the Duke of York did as I granted at our last Meeting declare that his Title could in no wise be defeated yet Henry the VIth being then in the Throne they might have certainly given a contrary judgement if they had pleased and then I suppose the Title of the House of York might have been so defeated as that the Nation had never been troubled with it again and so also when by the power of Edward the IVth a Parliament met and declared him to be lawful King from the time of his Fathers death yet when the said King was driven out of the Kingdom by the Earl of Warwick and King Henry the VIth restored to the Throne a Parliament was summon'd in the 49th of this King wherein Edward the IVth was declared an Usurper and himself attainted and to which Parliament the Duke of Clarence Brother to King Edward the IVth is first Summoned as well as the Arch-Bishop of Canterbury with all the other Bishops Temporal Lords and Judges of whom Littleton the Authour of the Book of Tenures was one so likewise upon King Edwards recovery of the Crown the year following King Henry was again deposed and a Parliament called wherein all the Dukes Earls and Barons with the Arch-Bishops of Canterbury and York and most of the rest of the Bishops Swore to Prince Edward after called Edward the Vth as Right Heir of the Crown Now I desire to know what other Law or Rule there was then for the Subjects Allegiance but the solemn judgement or declaration of the Estates of the Kingdom assembled in Parliament since their Acts and Judgements were in this dispute directly contradictory to each other so that it is evident