Heirs within age of such Tenants but this extended not to the Tenures of the Subjects by Knights Service as it appeareth by Bracton Dicitur Regale seâ—vitium quia spectat ad dominum Regem non alium secundum quod in Conquestis fuit adinventum c. Whereupon Sir E. C. notes in the Margent the Tenure as before it appeareth was not then invented but the fruits of this Tenure of the K. viz. Wardship and Marriage which was Bracton's meaning so as the Conqueror provided for himself but other Lords at the first by special reservation since the Conquest provided upon gifts of Lands for themselves Regis ad exemplum totuâ— componitur orbis wherein that which we had from the Conqueror we freely confess F. I shall not dispute his matter since it is doubtful whether this custom of Wardship was Norman or whether it was derived from the Saxons who possibly might have some respect to Orphans in such cases to train them up for the publick Service in point of War especially being possessors of a known right of Relief as well as Alfred the Saxon King did undertake the work for the training of some particular persons in learning for the service of the publick in time of Peace and Civil Government and tho' Sir H. Spelman is of opinion in his Title de Wardiâ— that Wardship of the Heir came in with the Conqueror yet Sir Iohn his son who was also a learned Antiquary in his Epilogue to his second book of K. Alfred's Life Printed at Oxford speaking of Military Fees granted to the Kings Thanes has this passage Haec etiam Fioda baeredibus sub Hereoti siâ—e relevaminis cujus piam quod haeres in terrae redemptionem Regi solvere tenebatur conditione plerumque transibat si haeres minor natu à Patre moriente relinquebatur Regi educatio â—jus utpoâ—â— Regis Hominis committebatur in utilitatem etiam commodum ipsius Regis But whether the Wardship of the Body of the Heir was in use in K. William's time or before is uncertain for the land is in the Charter of Henry the first in Mat. Paris granted either to the Widdow or next heir But let these customs be derived from whence you please it is a plain case it could be no badge of Conquest upon the People of this Nation and that by the Doctors own shewing for were it a Norman custom never so much if your Conqueror first of all imposed it upon those he brought over along with him it could never be a badge of Slavery upon the English Nation but rather upon the Normans upon whom it was chiefly imposed and if they afterwards granted Lands to the English upon the same terms they held them themselves they were no more Slaves to whom they were granted than they were under whom they held them but indeed this was so far from being looked upon as my badge of servitude that if the Dr. himself is to be believed these were the only Freemen and their services Bracton says were so notoriously free that in Writs of Right it was never mentioned because so well known Notandum in servitio Militari non dicitur per Liberum servitium ideo quod Constat Quia tale Servitium Liberum est And hower Rigorous the Feudal Law might be at the beginning it was when your Conqueror came in so far mitigated as to the rigour of it that the Tenants by Knight Service were not only free by K. William's Law from all Arbitrary Taxes and Tallies but also obtained a setled Inheritance to them and their Heirs as appears by that clause in K. William's Charter and therefore in the Reign of Henry the Third when William of Warren Earl of Surrey was questioned after the Statute of Quo Warranto by the Kings Justices by what Warrant he held his Lands pulling out an old Sword he answered to this Effect behold my Lords here is my warranty my Ancestors came into this Land with William the Bastard and obtained those Lands by the Sword and I am resolved with this Sword to defend them against any whosoever shall go about to dispossess me for the K. did not himself alone Conquer the Land but our Progenitors were sharers with him and assistants therein As for what you say That the Laws in the Customary of Normandy are the same with the Laws of England It is no more than what divers French Writers have taken notice of but do not attribute their agreement to their being borrowed from the Normans but quite contrary for in the first place most of the Learned Men say That the first establishing of the Customary of Normandy was in Henry the first 's time and afterwards again about the beginning of Edward the seconds time when Normandy was not under the King of England and Sâ—querius a French Author relates that K. Henry I established the English Laws in Normandy and with him do also agree Gulielmus Brito Rutilarius and other French Writers who mention also that the Laws in the Customary of Normandy are the same with the Laws collected by our English K. Edward the Confessor who was before the Conqueror an additional Testimony hereof is out of William de Reville de Alenson who in his Latin Comment upon the Customary proves and demonstrates that the Laws and Customs of Normandy came from the English Laws and Nation either not long before or after Edward the Confessor's time In the Customary there is a Chapter of Nampes or Distresses and it is there decreed that one should not bring his action upon any seisure but from the time of the Coronation of K. Richard and this must be our K. Richard the first because no K. of France was ever of that name and the words Nampes and Withernams were Saxon words taken out of the English Laws signifying a Pawn or Distress and in the same sense are used in the Customary But if you have nothing more to object against what I have now said pray proceed to your last head and let me see how you will prove that the English lost all their antient Liberties and Priviledges which they enjoyed under the English Saxon Kings M. I never heard so much before concerning the Original use of the French Tongue in our Reports and Law Books but yet this much I think you will not deny first that the Norman French was never used in our Courts of Justice till after the Conquerors entrance Secondly That he did his endeavour totally to root out the English Tongue by ordering of Children to learn the first rudiments of their Grammer in French and as for what you have said concerning the Customary of Normandy being especially as to Tenures derived from the English Laws and Customs I do not deny but that it may be the opinion of some French Writers that it was so but I shall believe it when they can prove that the Wardships and Marriage of the Heir of the
the sole Will of the first Princes in which the People had no hand for in the most Antient Monarchies there was a time when the People of all Countreys were Governed by the Sole Wills of their Princes which by degrees came to be so well known in several instances that inferior Magistrates needed not resort to them in those cases and the People being for a considerable time accustomed to such Usages they grew easie and Familiar to them and so were retained tho the Memory of those Princes who first introduced them was lost and after Kings finding it better to continue what was so received than to run the hazard and trouble of changing them were for their own ease and the good of their Subjects contented they should be still from Age to Age so continued Which custom may hold as well in Laws about Succession as other things And therefore we find that even in those Monarchies where the People have nothing to do in making Laws Women are excluded which could proceed at first from nothing else but the declared Will or Law of the first Monarchs So likewise the Original of the Salique Law is wholly ascribed to Pharamond the first French King and Mariana whom you lately cited tells us that Alphonso King of Arragon made a Law that where Heirs Male were wanting the Sons of a Daughter should be preferred before the Aunt which Law is wholly attributed to the King for he adds presently after Sic saepe ad Regum arbitrium jura regnandi commutantur F. Granting all this true that you have said you cannot but confess that the Laws of God and Nature have established nothing in this matter or else it could not be in the Power of Kings to make or alter Laws concerning the succession as your last Quotation intimates they may yet even in the most absolute Monarchies the Laws about the Succession of the Crown must wholly depend upon the Consent of the People who are to see them observed or else every Monarch might alter these Laws of Succession at his pleasure and the Great Turk or King of France now the Assembly of Estates is lost might leave the Crown to a Daughter if either of them pleased and disinherit the next Heir Male. But as for the Original of this â—alique Law in France you 'l find your self much mistaken if you suppose that that Law was made by the Sole Authority of Pharamond for the Antient French Histories tell us that the Body of Salique Laws which are now extant were made by the Common Consent of the whole Nation of the Francs who committed the drawing of them up to three Judges or Commissioners and which Laws Pharamond did only confirm and any one that will but consult those Histories may see that Kings were so far from having the Sole Legislative Power in their own hand that they were frequently Elected by the Estates nor is it truer that you suppose from Mariana that the Kings of Arragon had Power alone to make Laws it appears quite contrary from the Constitutions of that Kingdom where the King could do nothing of this kind without the Consent of the Estates and was not admitted to the Crown without taking an Oath to the Chief Justice in the name of the People that he would observe the Laws and Constitutions of the Kingdom otherwise that they would not be obliged to obey him But at once to let you see that about the Succession of the Sons or Descendants by Daughters the Cases are much more nice and intricate and that when such Cases happen in limited Monarchies where there is an Assembly of Estates they are the Sole Iudges of such differences may appear by two famous examples in modern History The first is in Scotland about four hundred years ago when after the Death of King Alexander III who died without Issue when two or three several competitors claim'd a Right to the Crown as descended from several Daughters of David Earl of Huntington great Uncle to the last King the Chief of which being Iohn Bayliol and Robert Bâ—uâ—â— the Estates of the Kingdom not being able to decide it they agreed to refer it to Edward I. King of England who adjudged the Crown to Bayliol yet did not this put an end to this great controversie for not long after Bayliol being deposed Bruce revived his Title and the States of Scotland declared him King whose Posterity enjoy it at this day A like Case happened in the last Age in Portugal after the Death of Henry surnamed the Cardinal without Issue when no less than four Eminent Competitors put in their Claim some claiming from the Daughters of Don Durate youngest Brother to the last King Henry But the King of Spain and other Princes as Sons to the Sisters of the said King Henry dying without Issue left ten Governours over the Kingdom to decide together with the Estates the Differences about the Succession who quarrelling among themselves as also with the Estates before it was decided Philip the second King of Spain raised an Army and soon conquered Portugal And yet we have seen in his Grand son's time that the Estates of Portugal declared this Title void and the Crown was settled in the Posterity of the Duke of Braganza who still enjoy it And how much even Kings themselves have attributed to the Authority of the Estates in this matter appears by the League made between Philip the Long King of France and David King of Scots wherein this condition was exprest That if there should happen any Difference about the Succession in either of these Realms he of the two Kings which remained alive should not suffer any to place himself on the Throne but him who should have the Judgment of the Estates on his side and then he should with all his Power oppose him who would after this contest the Crown To conclude I cannot see any means how if such Differences as these had arisen in the first Generation after Adam I say how they could ever have been decided without a Civil War or else leaving the Judgment thereof to the Heads or Fathers of Families that were then in being Which how much it would have differed from the Judgment or Declaration of the States of a Kingdom at this day I leave it to your self to judge M. I shall not trouble my self to determine how far Princes may tye up their own hands in this matter of the Succession and leave it to the States of the Kingdom to limit or determine of it but from the beginning it was not so and therefore give me leave to trace this Paternal Government a little farther For tho' I grant that when Iacob and his twelve Sons went into Egypt together with their Families they exercised a Supreme Patriarchal Jurisdiction which was intermitted because they were in Subjection to a stronger Prince Yet after the return of these Israelites out of Bondage God from a special
and in all the Statutes of Praemunire made by Edward the Third the King's Soveraignty independent from the See of Rome is expresly Asserted and the Statute of the 16th of Richard the Second expresly declares That the Crown of England hath ever bin so free that it is under no Earthly Subjection but immediately subject to God in all things touching the Regality of the Crown and to no other And the Statutes of the 24th and 25th of Henry the Eighth expresly declare That this Realm of England is an Empire Governed by one Supream Head and King and the Crown or Royal Authority is also thereby declared Imperial and the Kings of England are therein Stiâ—ed Kings or Emperors of this Realm So that I think no Man needs to doubt where the Supream or Soveraign Power of this Kingdom resides F. I will not deny any of those Authorities you have now made use of Since Titles alone are no proofs of Power for it is very well known that the Germane Emperor yet notwithstanding that great Title is not therefore Vnaccountable or Irresistible Since the Colledge of the Princes Electors may Depose him for Male-administration or for Violating any of the Fundamental Constitutions of the Empire And Mr. Selden hath very well observed in his Titles of Honour that this Supremacy or Freedom from all Subjection is not only challenged by our English Soveraigns but also by the Kings of Denmark Sweden and Poland The former of which yet was so far from being an absolute Monarch that before the Reign of this King's Father he might have bin Deposed for Tyranny for Misgovernment by the Estates of the Kingdom as the King of Poland may at this Day And therefore these Titles may indeed prove a Freedom from all Foreign Jurisdiction but doth not prove that the King is Endued with an Absolute Soveraign Power within the Kingdom as you may see in these Examples I have now given you M. If you are not Satisfied with these Proofs I doubt not but to give you other Authorities both out of Antient and Modern Lawyers as also Acts of Parliament which sufficiently declare where the Supream or Soveraign Power Resides In the first place I suppose you will not deny but that it hath bin the Prerogative of the Kings of England time out of mind to Coâ—â— Money Dispose of all Offices and Create new Dignities as he should think fit as also to make War and Peace to make Laws and in short to do all things whatsoever that are Essential to a Monarch and that he alone is the Sole Soveraign Power in this Kingdom Exclusive of all others Our Ancient Lawyers Glaâ—vil and Fortescue plainly declare The former of which says thus Rex nullum â—abâ—re potest parem multò minùs Superiorem The same thing is also repeated by Bracton and a very good Reason given for it in these words Omnis quidem sub eo ipse sub nullo nisi tantum Sub Deo parem non habet in Regno Suo quia Sic amitteret praeceptum cum par in parem non â—abeâ— Imperium Item nâ—c multò fortius Superiorem nec Potentiorem habere debeâ— quia sic esset inferior sibi Subjectis inferiores pares esse non possunt potentioribus F. But pray read what immediately follows Ipse autem Rex non debet esse Sub bomine Sed Sub Deo Sub Lâ—ge quia Lex facit Regem attribuat igitur Rex Legi quod Lex attribuit ei viz. Dominatiorem Potestatem non est enim Rex ubi dominatur Voluntas â—on Lex And though I grant the King is Subject or Inferior to no particular private Man Yet that he hath a Superior or Master within the Kingdom besides God and the Law and so is not the Sole Supream Power appears by a Passage out of the same Author in the Second Book Rex habet Superiorem Deum item legem per quam factus est Rex item Curiam Suam viz. Comites Barones quia Comites dicuntur quasi Sociè Regis qui habet Socium habet Magistrum ideo si Rex fuerit sinâ— froena i. e. Lego debent ei froenum ponere From which words it seems apparent to me that this Author thought the King was not only Inferior to the Law but was also to his Court of Parliament called here Curia Baronâ—â— who might Bridle or Restrain him if he Transgres't the Laws which are here called the King's Briale Nor can I conceive how this could be done without some kind of Force or Constraint if he refuse to receive this Bridle they would lay upon him M. I do not desire at this time to enter upon this Question concerning that Power which I know some Parliaments have pretended too of Câ—â—bing and Resisting the King by force if they supposed He Invaded the Fundamental Rights and Lâ—bâ—râ—ies as they call them of the Nation and that foâ— two Reasons First because it is not pertinent to our present purpose of proving that the King is not the Sole Supream Power as also because you very well know that both Houses did in 13 Car. 2. by an Act of Parliament concerning the Militia Solemnly Renounce all Coercive Power over the King or any Right in either or both of the Two Houses of making Offensive or Defensive War against him But if you have a mind hereafter to course further on this Subject I doubt not but to prove to you from divers other Passages out of Bracton and that old Treatise called Fleta that it was no Political Superiority in the Curia Baronum but only a Directive Power or moral Superiority which they had of Advertizing the King of any Arbitrary Proceeding or Injustice he should happen to do and by Complaint Admonition and Entreating to impose upon him to amend the same according to his Oath but not by Coaction or Constraint And in this Sense they may be said in a Moral way to put the Bridle of the Law upon him which may be called Civil Resistance but as for Military Resistance against an Unjust King it is as Inconsistent with our English Government as with any other Monarchy in the World But you very much mistake if you suppose that the King of England is not Supream because he is Limited by Laws which realy is no Objection Because a Soveraign without any Diminution to his Soveraignty may be limited in the Exercise of his Soveraign Power either by his own Acts or Condescensions or else by those of his Predecessors under whom he claims This is so certain that there is no Supream Power in Heaven or in Earth which is not limited and confined in the exercise thereof Thus the Omnipotent Power of God himself is limited by his own Wisdom Goodness and Justice which are himself So likewise the Powers of all Absolute unlimited Monarchs are only so comparatively with respect to positive Laws but as for the Laws of God and Nature which
Subjects there laid down into eight Discourses Since being obliged to vindicate the Antient Constitution of Parliaments from the Cavils of some late writers there was a necessity of considering what Dr. Brady had with so great industry heaped together against the House of Commons being antiently a constituent part of our Parliaments before the 49th of Henry the III. in the doing of which if I have proved too prolix I can only say I could not avoid it without baulking those Arguments the Doctor has made use of to support his opinion But having already treated in the third and fourth Dialogues upon the Questions of Passive Obedience and Non-Resistance as a Moralist and a Divine I come now to handle the same Question as a Lawyer and to examine whether by the ancient Laws and Constitutions of our English Government and by the late Statutes of the thirteenth and fourteenth of King Charles the II. all taking up of Arms against the King or those Commissioned by him be absolutely forbidden and declared Treasonable in the doing of which I can assure you I have not failed impartially to set down whatever I have either heard or read materially urged for one or the other opinion and I have also consulted some of the wisest and most Iudicious Members of the long Parliament of King Charles the II. to learn what was then the sense of both Houses of Parliament concerning the words of that Oath but whether I have any ways mistaken the sense of those August Assemblies I humbly submit it to the judgment of this present Parliament For cujus est condere ejus est interpretari and I hope for the like ingenuity from those who give a different and stricter interpretation to the words of those Statutes and the Oath therein contained which tho' it be now no longer enjoin'd yet since it may still be thought to bind such as have taken it it was very necessary to inquire what was the true intent of those that imposed it that is indeed what is the legal sense of the words of that Oath But as to the inconveniencies and mischiefs that may arise from the Peoples judging what Commissions of the Kings are Legal or Illegal and either resisting them or yielding obedience to them as they shall see cause I have only this to say that I desire those of the contrary opinion seriously to consider all the inconveniencies and mischiefs that may happen on the other side if the King is invested with an absolute irresistible power not only to issue what commissions but to whom and to what ends he pleases tho' never so illegal and arbitrary and that the whole Nation must yield an active obedience or at least a passive submission to them without the least resistance no not so much as to assist any Foreign Prince who should come in to their assistance as his Present Majesty when Prince of Orange generously did And when any man has without prejudice and passion considered consequences I shall freely leave it to him to embrace which side he pleases since I hope it is neither Heresie nor Treason to be of either and therefore I only desire the Reader to peruse this discourse without passion or prejudice and then it is indifferent to me what party he takes since I think men may be honest and conscientious who believe either way and I do not expect nor desire any man to be of this or that opinion farther than his reason shall guide him in which if he be mistaken he has no body to blame but himself since he is not sit to judge who is to be trusted with arguments only for that which he already believes to be the right side I have no more to mind you of at present but to suppose these Papers to be written before their present Majesties were declared King and Queen and in a time when every body not only thought but spoke freely THE Ninth Dialogue BETWEEN Mr. FREEMAN a Gentleman AND Mr. MEANWELL a Civilian F. SIR I am glad to see you again so soon for I was just now looking over some of our Old Historians that lie here upon the Table to rub up my Memory for sufficient Instances and Authorities that it hath been always the received and constant Custom and Practice of the Clergy Nobility and People of this Nation to defend the Ancient Government of this Kingdom by general Councils or Parliaments as also their just Liberties and Properties not only by Remonstrances and Petitions to but by Force too against the Kingâ— and those commissioned by him in case they found them evidently and violently invaded beyond what any fair or gentle means and intercession were able to redress And for proof of this I shall go as high as the Times of the Kings of the West Saxons from whom all the Kings of England before the Conquest were descended after the Kingdom of the West Saxons had prevailed over all the rest I shall therefore begin with the Reign of Sigehert King of the West Saxons who as I told you in your Sixth Conversation breaking the Laws and Constitutions of the Kingdom and Tyrannizing over all form of People was in a general Council of the whole Kingdom deposed and expelled into the Forrest of Audredswald where he was afterwards slain by a Hogheard As the Saxons Annals under the Year 755. as also Huntingdon and Malâ—sbury relate I shall not mention the Deposition of King Edwin by the Mercians and Northumbrians and their chusing his Brother Edgar in his stead because not done by the Common Council of the whole Kingdom and that also for slight and insufficient grounds Therefore since the Times before the Conquest do afford us no more examples of this kind among the Kings of the West Saxon Race to which I only confine my self since those Kings being for the most part at Wars with the Danes to the Time of Edward the Confessor had somewhat else to think on than the making themselves Absolute or Tyrannizing over their Subjects but indeed there is scarce to be found in History a Succession of more mild just and valiant Princes than Egbert the First King of all England and his Descendants M. Pray Sir tell me to what purpose you cite these Instances of the Nobility and People of England deposing and casting off their Kings in the Times before the Conquest is it that you would justifie that Common-wealth Principle that the Parliament hath the like Power to depose the King at this day in case of any Infringement of the Fundamental Laws of the Kingdom or breach of the Original Contract as those of your Party now term it if you do pray speak plain and then I shall know what Answer to give you F. Tho'l assert it as undeniable in matter of fact that the English Saxons did often exercise that Power they had reserved to themselves of Electing and Deposing their Kings when they became insupportable for Tyranny or Misgovernment as appears not only in
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
disobeying of the Parliament out of his hands much less will I justifie the Murder of this King or of any others above-mentioned as being no necessary consequences of that Resistance I only allow for lawful viz. that of the whole or major part of the Nation nor were Edw. the Second or Richard the Second put to death by any Act or Order of Parliament but were murdered In Prison and the Murderers of Edward the Second were afterwards attainted by Act of Parliament and Executed as they deserved But as for the Murder of King Charles the First it is not to be taken into this account it being not done by the Authority of the Lords and Commons in Parliament but by a Factious Rump or Fag-End of the House of Commons who fate by the power of the Army after far the major part of the Members who were for the King were shut out of doors and the Lords Voted useless and dangerous M. I confess you have made as good an Apology for these Actions as the matter will bear but that neither of the Two Houses can at this day have any Coercive Power over the King or to call him to an account for any thing he has done appears by the express Declaration of both Houses in the Statute of the 12th of Charles the Second as also in those but now cited in which they utterly disclaim all making War whether offensive or defensive against His Majesty much less can he be subject to any other Coercive or Vindictive Power or ought any ways to be resisted by private persons therefore supposing I should grant as I do not that the Parliaments had formerly a power of Deposing of their Kings or that the Clergy Nobility and People had formerly a right of taking up Arms against the King in case of notorious Tyranny and Misgovernment yet is all such Resistance expresly renounced and declared unlawful by the Oath and Declarations now cited so that tho' in the dark Times of Popery such Resistance might be counted lawful not only by Laity but also by the Bishops and Clergy who ought to have taught the people better Doctrine yet I think it had been much better for the Nation to have endur'd the worst that could have happen'd from the Tyranny of Kings than to have transgrest the Rules of the Gospel and the constant Doctrine of the Primitive Church by Resistance and Rebellion against the Supreme Power of the Nation F. I shall not now maintain that the Two Houses of Parliament have any Authority at this day to Depose the King or maintain a War against him upon any account yet that they have still a power to judge of the King's Actions whether consonant to Law or not and whether he has not broke the Fundamental Constitutions of the Kingdom is no where given up as I know of But that Resistance in some cases is not contrary to the Doctrine of the Gospel I have already proved and that it was not directly contrary to the Laws of the Land before these Statutes you do partly grant But since the main strength of your Cause lies in this Oath appointed by these Acts of Parliament therefore if I can give a satisfactory Account of the true meaning and sense of these Acts to be otherwise than you suppose I hope you will grant that Resistance may still be lawfully made by the whole body of the people in the Cases I have now put against any persons who under colour and pretence of the King's Commission should violently assault their persons in the free exercise of their Religion as it is by Law Established or should go about to Invadeâ— their Just Liberties and Properties which the Fundamental Laws of England have conferr'd upon every Free-born Subject of it And in order to the clearer proof of this I shall make use of this Method I shall first explain the Terms of this Declaration and then I shall proceed to shew you that in a legal sense all Defensive Arms or Resistance of the King's Person in some cases or of those Commissioned by him is not forbidden nor intended to be forbid by these Statutes and Declarations First then By taking Arms against the King is certainly meant no more than making War against the King according to the Statute of the 25th of Edward the Third which declares making War against the King to be Treason and this is unlawful upon any pretence whatsoever Secondly The Clause by his Authority against his Person is only to be understood of the King 's Legal Authority and by his Person is meant his Natural and Politick Person when acting together for the same ends as I shall shew you by and by So that both these Statutes are but declaratory of the Ancient Common Law of England against taking up Arms and making War against the King and do not introduce any new Law concerning this matter so that whatever was Treason by the Statute of the 25th of Edward the Third is Treason by these Statutes and no more viz. all taking up Arms or actual making War against the King in order to kill depose or imprison him c. as Sir Edward Coke shews us in his third Institut in his Notes upon this Statute yet notwithstanding after this Statute of the 25th of Edward the third the Clergy Nobility and People of England assembled in Parliament did suppose it still lawful to take up Arms against those illegally Commissioned by the King in case of notorious Misgovernment and breach of the Fundamental Laws of the Nation as appears by that general Resistance made by reason of the evil Government of the Duke of Ireland and those concerned with him in the 11th of Richard the Second which as I have already proved was allowed for lawful by Act of Parliament and consequently by the King 's own consent without which it could never have been so declared The like I may say for that Resistance which was made in King Henry the Sixth's Reign by Richard Duke of York and the Earls and Barons of his Party agaist the Evil Government of the Queen and the Duke of Sommerset who governed all Affairs in an Arbitrary and yet unsuccessful manner by reason of the easiness and weakness of King Henry But tho' this Resistance was also approved of in the next Parliament of the 33d Year of this King yet I shall not so much insist upon it because I know you will alledge that this was made by the lawful Heir of the Crown against an Usurper since the Crown was not long after adjudged to be his right tho' King Henry was allowed to wear it during his life yet however it shews the Opinion of the Clergy Nobility and People of England at that time concerning the lawfulness of such Resistance before this Declaration of the Estates of the Kingdom concerning the Legality of the Duke of York's Title was made in the Parliament above-mentioned Thirdly That the Parliament by these Statutes of the
King ought to yield the like Dominion and Power to the Law as the Law had given him before or else how could Bracton call the Law in the place I have already cited the Kings Superiour And if the Kings Title to the Crown were not by Law How came it to pass that the Stewards for Example had a better Tittle to the Crown of Scotland than the Bayliols but only that the Laws of Scotland that is the Consent of the States of that Kingdom made them so for otherwise any man that looks upon the Pedegree of both those Families will see that Bayliol according to our rules of Descent was the nearer of Blood to the last King David than Bruce and was so ajudged upon a solemn hearing by our King Edward 1. ih Parliament And as for William whom you call the Conquerour under whom all our present King 's do claim at this day he could have no just Right or Title to the Crown of England by Conquest but by the Election or Submission of the People declared by them at his Coronation And therefore that Law by which he was made King must be precedent or at least concurrent with his being so and upon whatever terms or Conditions he then accepted it his Successours are bound both by the Laws of God and Man to observe them And therefore whatever you have built upon or would infer from these Principles is of no force And If the King be the Sole Soveraign Power that makes the Laws repeals them and dispenses with them when he pleases I would be glad to know upon what grounds so many of the Bishops and Clergy refused to read the King's Declaration of Indulgence Since certainly if he alone made the Laws he also could dispense with them But I shall say no more of these Points now because they are not directly to the matter in hand M. As for what you say concerning the King 's not being the sole Supreme Legislative Power I confess you and I have discoursed long upon that point and if I were thoroughly satisfied of it I could much easier assent to what you have said as also if you could prove to me that the King received his Power from the People and not from God the matter would be yet plainer for then it would evidently appear that the People might have reserved to themselves such a Right of Resistance as you now maintain but that they never could have such a power in England from the Constitution of this Monarchy I need go no farther than your own Instance of William the Conqueror who owed all his Right to this Kingdom to the power of the Sword and not to any Hereditary Right much less Election or Confirmation of the People as I think Doctor Brady has proved beyond dispute in his Learned Answer to Argumentum Antinor manleum so that since we owe all the Rights and Liberties we enjoy to the gracious Concessions of our Kings of this Norman Race we ought not in reason or gratitude to resist them if they should sometimes encroach upon what we take to be part of those Liberties so granted no not if the King who derives an Indefeasible Right to the Crown from the Title of the first Conqueror should go about to take away all those Liberties nay our very Religion and Property too from us But I have not time to pursue this Argument further now and therefore shall leave it to another opportunity F. As for what you have now said concerning William the First 's having no Right to the Crown of this Kingdom but what he owed to his Sword is false in matter of fact it being more than that Prince himself ever asserted or pretended to and in the next place as for your Dr's proving him an Absolute Conqueror over the English Nations supposing he had done it which yet I positively deny yet will not this serve to do the business for which the Doctor urges it viz. to set up an Arbitrary Irresistible Power in that King and all his Successours but may be urged against him to a quite contrary purpose as I shall shew you more at large whenever you please to discourse farther upon that Subject And as for all those things we call Legal our Rights and Priviledges which you say were wholly granted us by the Charters of his Successours I have already proved that to be false in matter of fact at our fifth Meeting where I shewed you that the English Nation had the same Liberties as to their Persons and Properties in their Estates before your pretended Conquest as they enjoyed afterwards and that Magna Charta was but the recital and confirmation of our Ancient English Laws as Mat. Paris affirms in the place I here formerly cited but admitting these Liberties and Priviledges you mention had been owing to the favour and bounty of former Kings yet can I see no Rebellion or ingratitude the People of this Nation are guilty of if they keep and defend them now they have them but would rather betray a servile base spirit if we part with them For since it is a Maxim in Law concerning all Grants as well from the Crown as private persons that they ought so to enure ut Res magis valeat quem pereat i. e. that the Parties to whom the Grant is is made may not lose the benefit of it when ever the Grantor pleases Therefore it is also a rule in such Grants that they are still to be interpreted in favour of the Grantee against the Grantor and also that the Grantee shall not be left without some means or remedy of keeping and defending his right against the Grantor whenever he goes about to take it away nor do I know any exception there is for the Kings Grants more than those of private Subjects since both Bracton and Flita tell us non debet esse Rege major in Exhibitione Iuris minimus autem esse debet in judicio suscipiendo si pecatur which I take to be the true reading of that place and not peccat parcat or petat as divers copies have it That is as the King is the greatest in distributing of right or Law to his Subjects so ought he to be no more than the least of them in submiting to right judgment if he be Petitioned to and that it be required of him either of which senses this word will well bear but if he absolutely refuses to do this but will take away their Rights and Liberties by force and will deny them the benefit of the Laws what other remedy is there left them but a general resistance since otherwise the King may alter the Government and take away all our Legal Rights and Liberties whenever he pleases M. I confess this dispute concerning the Resistance of those commissioned by the King and the Kings being the Sole Legislator and Original of all the Civil Liberties and Priviledges we now enjoy hath carryed us from the main points in this
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
to private Churches and if his Nobles or Followers had unjustly dissieâ—ed any Bishop or Abbot of their Estates the King caused them to be restored again as appears by many Presidents of this kind which are to be found in Ingulphus and Eadmerus this being premised let us see in the next place what proportion the Lands belonging to the Church did in those days bear to the rest of the Lands in England now we find in Sprot's Chronicle as also from the old Legierbook cited by Mr. Selden in his Titles of Honour and particularly from that Secretum Abbotis formerly belonging to the Abby of Glassenbury and now in the Library of the University of Oxon that there were not long after your Conquest 60215 Knights fees in England of which the Bishops Abbots and other Church-men then enjoyed 28015. When it is supposed this account was taken then it will follow that in the Reign of your Conqueror there were above 28000 Knights Fees which belonged to the Church and in these we do not any where find that K. William dispossessed their Tenants of their Estates most of which were held in Fee under them and those Tenants were great and powerful men in their Countries and hence we read in the ancient Records and Legier Books of the Barons and Knights that held of divers Bishops and great Abbots several examples which you will find in Sir Henry Spellman Title Baro now it is certain that King William could not turn all these men out of their Estates and give them to his followers without committing sacriledge and invading the Rights of the Church which that King durst not commonly do so that the utmost that you can suppose he could do was to take the forfeitures of all such Tenants of the Church who had taken part with King Harold or had any ways committed Treason against himself which were far from the whole number of them so that here goes off at once almost a half of all the Lands held by Knights service which the King did never dispossess the ancient owners of to these may be also added all Tenants in ancient Demesne all Tenants in Socage as also all Tenants in Gavel kind which in those days made at least two thirds of the Lands of Kent which by the way was never conquer'd but surrender'd upon Terms to â—are their ancient Customs and Tenures as Mr. Cambden himself acknowledges in his description of this County besides what was held in other Counties by the same Tenure as you will find in Mr. Taylor 's History of Gavel kind all which being not Tenures in chief by Knights Service are not Register'd in Domesday book nor does it appear that the owners were ever dispossessed of them to which may also be added the Lands of those smaller Thanes or Officers of King Edward whose names are found in Domesday book who held their Lands ratione officii To all these we may also add all such Norman Noblemen and Gentlemen who having come into England in Edward the Confessors time and having Honours and Lands given them by him had continued here ever since and these were so numerous that it was thought worth while by King William to make a particular Law concerning them that they should partake of all the Customs the Rights and Priviledges of Native Englishmen and pay Scot and Lot as they did of these was the Earl of Moâ—ton besides many others whose names appear in Doomesday book and not only these men but also divers Cities and Towns held Lands of King William by the same Rents and Services as they had formerly paid in the time of King Edward the Confessor as Oxford for example But to give an answer to some of your instances as when you say that King William gave away whole Counties as all Cheshire to Hugh Lupus and the greatest part of Shropshire to Roger de Montgomery c. It is a great error to suppose that these Earls had all the Lands mentioned in these Counties to dispose of at their Pleasure and that they turned out all the Old Propâ—ietors which it is certain they did not as I could prove to you by several instances of Antient English Families who have held their Lands and enjoyed the same seats they had in the Conquerors time so that you see there is a great deal of difference between a grant of all the Land of a County and that of the whole County what is meant by the former is plain but as for the latter it generally implies not any thing more than the Government of that County Thus whereas your Dr. would have it that the greatest part of Shropshire was given to Roger de Montgomery Doomesday says only that he had the City of Shrewsbury totum Comitatum and the whole County But that is soon explained by what follows totum Dominum quod Rex ipse tenebat where it is plain that by Dominium is meant no more than that power to govern it which King Edward had for otherwise the Grant of totum Comitatum had been sufficient M. I confess this is more than I ever heard or considered before concerning this matter but you do not give me any positive proof that at the time when Doomes day Book was made there were any Englishmen who held Earldoms or Baronies or other great Estates of the King or any of his great Men so that what you have said hitherto tho' it carry a great shew of probability yet is no positive proof against the Doctors assertion F. I shall not go about to deny what William of Malmesbury and Henry of Huntington so positively affirm that for sometime before the end of King William's Reign there was no Englishman a Bishop Abbot or Earl in England yet does it not therefore follow that it was thus thorough his whole Reign or if it were so that it will therefore follows that there were few Englishmen who when Domesday Book was made possessed any Lands in England but that in part of King William's Reign there were many English Earls and Barons appears by above a dozen Charters cited by Sir William Dugdale in the Saxon and Latin Tongues in his Monast. Anglic. which are either directed by K. William to all his Earls and Thains or else in Latin Omnibus Baronibus Francigenis Anglis or else Omnibus Baronibus Fidelibus suis Francis Anglis salutem the like Charters also appear of Henry J. and the Empress Maud his Daughter so that if Francigena and Francus signifie a Frenchman and Anglus and Englishman and if Fidelis does as your Dr. would have it signifie a Tenant in Capite then I think nothing is plainer than that there were for great part of King William's Reign both Earls Barons and Tenants in Capite of English Extraction But to come to particular persons it will appear by the Saxon or English names in Doomesday book as also by several recitals therein that there were divers English
Legitimi Barones who as Ordericus tells us came in with his Father and setled themselves here after the Conquest But as for your Quotations out of William of Malmesbury and Ordericus Vitalis â—â—ncerning the English assisting King William Rufus against his Brother Robert by using the common bait of Liberty viz. promising that he would alleviate the Rigid Laws of his Father and give free Liberty of Hunting in his Forests 't is true he thereupon raised an indifferent Army consisting chiefly of English who as Mathew Paris tells us were no better than Mercenary or Stipendary Souldiâ—â—â— and who had either no Estates or else had been turned out of them before so that this does not prove that they were men of any Fortunes who thus assisted William Rufus F. As for what you have now said against the citations of the names out of Doomesday book is not material since if English names were then common to the Normans and them then the Norman names might be as well common to the English and then many of those in England whom by their names we suppose to have been Normans might be Native Englishmen and as for what you urge against the express words of the Charters I have now cited I think it is a downright wresting of the words Francis and Anglis since no Author that I know of but your Dr. and is of that opinion For that the word Franci or Franâ—igenae does signifie such Frenchmen who held Baronies in England is granted on all hands but how Angli must also signifie Frenchmen seems a Paradox to me for how could these Frenchmen or Normans be termed Englishmen only because they held Estates here and not in Normandy for if the having such and such Estates in England would have turned Frenchmen into Englishmen there needed no such distinction to have been made between French and English Barons in these Charters since according to your Doctors Notion the French Barons could be no other ways mentioned here but as they had Estates here and therefore could be only writ to in that capacity since as meer Frenchmen they had nothing to do here so that if this Epithete was so in respect of the Tenure of their Lands they would have been stiled English Barons as well as the other nor is your other evasion more to the purpose that by the Angli might be meant in the Charters of Henry the I. such Norman or French Barons who because they were born in England might therefore be called English for who can believe that in so small a time as from the beginning of the Reign of King William the I. to that of King Henry the I. which was but a little above 30 years so many of the Norman Nobility were dead as should make it necessary to use this distinction of French and English Barons since by their Tenures they were both alike English and thus to make Angli signifie Normans is to confound and make all words tho' never so plain uncertain and equivocal but that a residue of the English And as for what Ordericus says of the old Norman Barons it would have signified if you could have proved he had called them Englishmen as he does not But if you carry it further to the time of the Empress Maud and King Stephen when all the Old Race of Normans were certainly dead then there was much less need of this distinction when all that were born in England were English alike and therefore the word French could only extend to those few Barons who being born in Normandy had Estates here But since you are forced to confess that for the first four or five years of King William the I. Reign there were both English Earls and Barons till the King had by degrees rooted them out there cannot be a better argument against your pretended right of Conquest since it is plain King William could never pretend to take away their Honours and Estates as a Conqueror since by his Coronation Oath he was sworn to restrain all Rapines and unjust Judgments and that he would behave himself modestly toward his Subjects and Treat both the English and French with equal right so that if he afterwards took away the estates of English Nobility or Gentry it was either because they deserved it by Rebelling against him then it was justly done or else it was done without any cause at all but only to oppress and root out the English Proprietors and if so such actions being contrary to his own claim from Edward the Confessor as also to his Coronation Oath could no more give him any such right to Rob or Spoil Men of their Estates without any just cause then it could give him a right to Rob the Churches and Monasteries of all the Plate Money and Jewels which he found in them even to the very Chalaws and Shrines as Matthew Paris and other Authors tell us he did in the fourth year of his Reign when likewise according as you your self set forth he began to shew himself a Conqueror or rather a Tyrant in the taking away the Estates of the English without any just cause But however the Authors of that time do not make so great a Tyrant of your Conqueror as the Doctor for William of Poictou expresly tells us who was Chaplain to this King concerning his taking away the Estates of the English and giving them to the Normans that nulli tamen Gallo datum est quod Anglo cuiquam injustè fuerit ablatum And Ordoricus Vitalis speaking of his dealing with the English it the beginning of his Reign says expresly neminem nisi quèm non damnare iniquum foret damnavit and therefore Sir Henry Spelman shews us in his Glossary out of an Ancient Manuscript belonging to the Family of Shurnborn in Norfolk That Edwin of Sharborn and several others that were ejected out of their Estates and Possessions went to the Conqueror and told him that never either before or in or after the Conquest they were against him the said King either by their Advice or any other aid but kept themselves peaceably and quietâ—y And this they were ready to make out which way soever the King pleased to appoint whereupon the said King ordered an Inquisition to be made throughout all England whether it were so or no which was plainly proved therefore he presently commanded that all those who so kept themselves peaceably in manner aforesaid as these had done should be repossessed of all their Estates and Inheritances as fully amply and quietly as ever they had or held them before this Conquest This is so plain an Authority that it needs no Comment I shall now conclude with a reply to what you have said to evade the Authorities of those Ancient Authors I have brought to prove that in the beginning of the Reign of King William the Second there were many English Gentlemen left of considerable Estates which you and your Doctor would â—ain make
tho' they themselves remained free men but your Dr. from whom you borrow this is very much out in his application of those passages he cites for neither of those Authors do affirm this of all owners of Lands whatsoever but only there to give us the Original of Soccage Tennants on the Kings Demeasnes as appears by Bracton's Title to that Chapter from whence the Dr. cites this passage which is de diversis conditionibus personarum tenentium in dominicis Domini Regis and the first words of this chapter make it yet plainer beginning thus in Dominico Domini Regis plura sunt genera hominum sunt enim ibi servi sive Nativi ante Conquestum in Conquestu post Conquestum and under these last ranges the persons you mentioned but Fleta is more exact in his Chapter de Sokemannis where he tells us that these men were Tenants of the Kings Ancient Mannors in Demeasne quia hujusmodi cultores Regis dignoscuntur provisa fuit quies nâ— sectas facerent ad Comitatum vel hundredum tamen pro terra quorum congregationem tune socam appellarunt hinc est quod Sokemanni hodie dicuntur esse So that tho' King William might permit his Ancient Tenants to be thus outed of their Estates they held in his own Demeasnes yet does it not therefore follow that he took away the Estates of the Ancient Owners all over England of whatsoever Tenure they were or of whomsoever held But as for your quotation out of Mat. Paris it proves no more than what I readily grant that King William after his return out of Normandy liberally rewarded his Followers with the Estates of the English which might he only of such as fought against him at the Battle of Hastings and as for that little which was left them which he says was put under the Yoak of a perpetual servitude he means no more by this expression than that new Tenure of Knights service which King William imposed upon them as this Author in the very next leaf speaking of the Lands of the Bishopricks and Abbies which were held before free from all secular servitude sub servitute statuit Militari and therefore you seem to contradict your self when contrary to your own Author Sir William Dugdale you deny the truth of any part of the Story because that in Doomesday book the name of Edwin of Sharnborn is not to be found and that William de Albeni is not named amongst the owners of that Mannor which is not material since this William might obtain a share therein after this Survey was made and as for Sharnborn himself his not being there mentioned is no argument that he had no Lands within that Mannor or the other that is mentioned in that Narrative since oftentimes the chief Lords of the Fee are only mentioned in Doomesday book tho' all the Proprietors under them are not particularly named but it is in vain to discourse any longer with you upon the Subject of your Conquerors taking away the Lands of English owners I have given you my opinion and the reasons against it and if you are not of my mind I cannot help it therefore pray go on to your next head and shew me by sufficient Authorities that King William as a Conqueror altered all the Laws and Customs of this Kingdom M. I will not undertake to prove that he altered all the Laws of England and brought in quite new ones yet that he did so in great part and that by his sole Authority I think I can prove by sufficient Testimonies and therefore I shall begin with that of Eadmer a Monk of Canterbury a companion of Archbishop Lanfranc's who tells us in his History that William designing to establish in England those Usages and Laws which his Ancestors and he observed in Normandy made such persons Bishops Abbots and other Principal men through the whole Nation who could not be thought so unworthy as to be guilty of any reluctancy and disobedience to them knowing by whom and to what they were raised all Divine and Humane things he ordered at his pleasure And after the Historian hath recounted in what things he disallowed the Authority of the Pope and Archbishop he concludes thus But what he did in secular matters I forbear to write because it is not my purpose and because also any one may from what hath been delivered guess what he did in seculars From which I think nothing is plainer than that K. William did not only design to alter many things in the Laws and Customs of England but did also actually do it since to that end he made the Bishops Abbots and other Principal men who were to be Judges in all Courts such as he could wholly confide in now that K. William govern'd the Nation as Conqueror and did so live and repute himself so to be and as such brought in and imposed new Laws upon the People of this Nation is as clear as I shall prove from these particulars first The Justiciaries or cheif Justices the Chancellors the Lawyers the Ministerial Officers and under Judges Earls Sheriffs Bailiffs Hundre duties were all Normans from his first coming until above a hundred years after as I can make it out by particular instances and undeniable Reasons were not the Catalogues too long to be here inserted If therefore the Justiciaries Chancellors Earls Sheriffs Lords of Mannors such as heard Causes and gave Judgment were Normans if the Lawyers and Pleaders were also Normans the Pleadings and Judgments in their several Courts musts of necessity have been in that Language and the Law also I mean the Norman Law otherwise they had said and done they knew not what and Judged they knew not how especially when the controversies were to be determined by Military Men as Earls Sheriffs Lords of Mannors c. that understood not the English Tongue or Law or when the cheif Justiciary himself was a Military Man as it often happen'd and understood only the Norman Language and 't is hardly to be believed these Men would give themselves the trouble of learning and understanding the English Law and Language Secondly Tho' we have many Laws and Customs from the Northern People and North parts of Germany from whence both Saxons and Normans came yet after the Conquest the Bulk and Main of our Laws were brought hither from Normandy by the Conqueror from whence we received the Tenures and the manner of holding our Estates in every respect from whence also have we received the Customs incident to those Estates And likewise the Quality of them being most of them feudal and enjoyed under several Military Conditions and services so that of necessary consequence from thence we must receive the Laws also by which these Tenures and the Customs incident to them were regulated and by which every mans right in such Estates was secured according to the Nature of them from Normandy and brought in by the Conqueror we received most if not all
English and if it were so in this cause it will follow for the same reason in all other Counties all over England Lastly That these Gentlemen were well skilled in the Antient Laws and Customs of England which had been in vain if they had been altered as you suppose M. I will not deny but that in the beginning of the Conquerors Reign many Englishmen might have Estates left them which might not be taken away till some years after and Mr. Selden in his Titles of honour places this Tryal between Earl Odo and Arch-bishop Lanfranc about the first year of K. William and I suppose that it happened before the fifth year of his Reign when Matthew Paris tells us that the Earls Eadwin Morcar and Siward together with Egelwin Bishop of Durham as also many thousands of Clerks and Laicks not being able to bear the severity of K. William fled into Woody and Desart places and from thence got into the Isle of Ely where they fortified themselves and whither K. William followed them and taking the Island made them submit to mercy and then this Author tells us that the K. put the Bishop of Durham in Prison and as for the rest some of them he killed some he put to ransom and others he commited to perpetual imprisonment so that I reckon from this time the King took away most of the Englishmens Estates as not trusting them any more F. If this had all happened as you have put it yet would it not prove what you have maintained for if those Englishmem who had not been engaged with Harold or else had been pardoned for it still held their Estates and as you say they forfeited them afterwards for Rebellion then it is certain K. William did not proceed against the English as a Conqueror since if he had he would have taken away their Estates Iure belli which since as you your self confess he did not whatever Estates he took away afterwards was either for Treason committed by the English or else wrongfully if the former he did it as a lawful King if wrongfully then as a Tyrant and as such could obtain no just right against the English Nation by his unjust proceedings But indeed after all you are quite out in your account concerning this matter for as to the great Tryal you now mentioned it could not be in the first or second year of King William's Reign nor could happen sooner than the sixth or seventh of his Reign for Arch-bishop Stigand was not deposed till the year 1070. which was the Fourth year of K. William and in the next year being 1071. the Annals of Mailros as also the Chronicle of Thomas Wiks place Archbishop Lanfranc's Coâ—secration and fetching of his Pall from Rome so that it could not be until the year after this Rebellion at the soonest when Lanfranc was setled in his Bishoprick that this suit was commenced by him against Earl Odo and therefore a great many of the English Nobility and Gentry had still Estates let them after this Rebellion And that they continued to have so some years after this time appears by those Writs of K. William which Mr. Atwood hath given us in his Ianus Aâ—glorum c. concerning the restitution of the Lands belonging to the Church of Ely which are also transcribed and allowed by your Dr. in his answer to it and I desire you particularly to consider that writ of K. William's directed to Arch-bishop Lanfranc Roger E. of Morton and Ieoffery Bishop of Constance commanding them to cause to be assembled all those shires who were present at the Plea had concerning the Lands of the Church of Ely before the Queen went last into Normandy the rest being most material to the cause in hand I shall give you in Latin Cum quibus â—tiam sinc de Baronibus mâ—is qui competenter adesse potâ—â—unt praedicto placito intersuerunt qui terâ—â—s ejusdem Ecclesiae tenent Quibus in â—num congragatis eligantur plures de illis Angliâ— quisciunt quo modo terrae jacebant praefatae Ecclesiae die qua Rex Edwardus obiit quod inde dixerint ibidem jurando testentur From whence we may also gather that this Tryal concerning the Lands which is here ordered was to be in like maâ—ner and by a Jury of the same sort of Englishmen who tryed the cause between Earl Odâ— and Arch bishop Lanfranc that is they were English Gentlemen of sufficient Estates or Tenants in Capite if you please Now. let us look into the time when this happened since the Writ doth not tell us when it was only that it refers to a Plea held concerning the Church of ELy before the Queens last going into Normandy so that this tryal here mentioned could not happen till after the fourteenth year of K. William's Reign which I prove thus this Queen did not come over into England till the year 1068. when the King returned with his Queen out of Normandy after his Coronation at which she was not present after which K. William went not into Normandy till the seventh year of his Reign when he went over and took Mans and then whether he carried the Queen with him is uncertain but the Annals of Waverly tells us he went over again the next year and then he might carry the Queen with him which might be the first time she returned into Normandy but it appears by the same Annals that the King went over the year after and staying but a little while returned into Normandy to fight against his Rebellious Son Prince Robert where staying not long he returned as soon as he had driven his Son out of Normandy nor do we find he went over again till the 14 year of his Reign being the year 1080. and then I suppose since he stayed there for some time he carried the Queen with him and to this last going over I suppose this Writ we have cited refers for tho' the Queen went over again after this yet she returned no more because she died in Normandy in the year 1083. as Iogulph who was then alive relates the use I make of these particulars is this that long after the time you suppose the English to have lost all their Estates we here find a great Jury of Englishmen summoned out of several shires in England to try this great Cause concerning the Lands which the Church of Ely had been unjustly Disseised of so that here you see after the fourteenth year of this King the English still continued to keep their Estates and to serve upon Juries and consequently the Pleadings before them as well as their Verdict must have been in English M. I shall not insist upon this point any farther yet this much you cannot deny but that all the Pleadings and Proceedings at Wâ—stminster as also the old Law books were all in French as appears by the Mirror of Justices Britton not to mention those of latter days as Littleton's Tenures and others and so were
also the ancient year Books or Reports of cases all written in Norman French even in our own age so that since this proceeded from that great alteration which the Conqueror made in our Laws it is also a badge of that yoak which he imposed upon the Nation by his Conquest and to make this yet more plain that very Copy of K. Edward the Confessors Laws is in old Norman French which together with K. William's Additions to them Ingulph tells us he brought down with him to his Monastery and which he has inserted into his History as you may find them in the last Edition Printed at Oxford and were before published by Mr. Seldâ—n in his Notes upon Eadmerus F. I cannot deny but that some part of the matter of fact to be as you have here laid down yet it will not follow that this common use of the French Tongue in our Reports and Laws did proceed from the Norman Conquest or is any badge of Conquest for first the most Ancient Laws of K. William which we find in Spelman and Lambert's Collections are in Latine as they were before the pretended Conquest I grant indeed those you mention in Ingulph are in French but they being most of them criminal or penal laws or else concerning Tenures it is no wonder that they were publisht in the Language of his Country that the Normans and other Frenchmen he brought over with him might understand them and tho' they were written in French yet they were proclaimed in the English Tongue that the English as well as Normans might take notice of them but after these Laws you will not find any ancient Charter or Statute in French till the Statute of West I. which was above 200 years after your pretended Conquest for all the Charters of this K. William are in Latine or Saxon as that particularly granted by him to the City of London so likewise were all the Ancient Charters and Laws of the other succeeding Kings as those of K. William Rufus Henry I. Henry II. King Stephen Richard I. are all in Latine or Saxon and none of them in French as appears by several of them still to be seen in the Arch-bishops Library at Lambeth and in Sir Robert Cotton's and also Magna Charta and all other Statutes and Charters of K. Iohn and Henry the third till the Statute of West I. above mentioned and therefore it is not likely that this custom should have taken its original from Normandy for if it had it would have been begun immediately after your Conquest and as for our Law Books tho' I grant those you mentioned to be written in French yet is it not the Norman French since it differs very much from the Language in which K. Edward's Laws are written which are in Ingulph the French of which is so obsolete and obscure that he that understands our Law French very well can scarcely make any sense of them but our first Writers concerning the Laws of England writ in Latine and not in French as you may see by Glanvil Bracton and Fletâ— who writ before Horn's Mirrour of Justices or Britton's Treatise of the Laws of England As for your Books and Reports I grant they are in French but that this custom was not derived from Normandy is also as certain since the first Reports we have begin with the first year of Edward the second except some few Memorandums of cases aâ—judged in the Exchequer in the Reign of his Father above 200 years after K Wâ—lliam's coming in as I but now noted nor could they be writ in the Norman dialect since we had then nothing to do in that Dutchy which had been Conquered by the French in the beginning of K. Iohn's Reign above eighty years before any Report or Law book was writ in French at all and therefore we must ascribe the original of this custom to some other cause than the meer will and pleasure of your Conqueror and for this we must go as high as the Reign of K. Edward the Confessor who as Ingulph tells us having lived long in Normandy and bringing over divers Normans with him the whole Nation began under this K. to forsake the English customs and to imitate the French manners in many things so that all great men looked upon it as a piece of good breeding to speak French in their Houses and to make their Deeds and Charters after the French manner so that it was very easie for K. William after his coming in who as Ingulph also tells us abhorred the English Tongue to make the Laws of the Land to be pleaded in the French Tongue and to make the Boys to learn at School the first rudiments of their Grammer in French and also the Saxon or English hand to be altered and the French hand to come in use in all Books and Writings and tho' I confess most of the chief Justices and Judges were Frenchmen or Normans during the three or four first Kings of that Race yet that alone could not have caused this Tongue to be so generally used not only in the Kings Court but also in all the Courts at Westminster after Englishmen began again to sit there had it not been for the Tacite consent not only of the King and People of Quality but also of the Lawyers themselves for the Law Terms being for the most part French they did not only thereby make the Law the greater mystery to the Vulgar but they also supposed that these Terms being French could not be rendered into any other Language but for all that it had been impossible for this Tongue which was spoke by so small a number of Persons in respect of the whole Nation to have prevailed so long among the better sort of People had not our Kings for many Ages enjoyed large Territories in France which occasioning their frequent going over thither about affairs of War or Peace as also the French Gentry and Nobilities frequent coming over hither it is no wonder if that Tongue being the Language of the Court was generally understood and spoken by all Noblemen Gentlemen and Lawyers so that I have heard it from a very good hand a person who is very well versed in Antiquity that a Gentleman being returned on a Jâ—ry in the Reign of Edward II. was excepted against because he did not understand French and hence it is that not only the Terms of our Law but also those of Heraldry Hawking and Hunting are almost all French to this day and tho' by the Statute of Edward the third which you but now mentioned all Pleas should be in English and not in French yet I desire you to take notice that this did no way extend to any matters of Process upon which suits are founded but that the Writs Declarations and all other matters of Record were always entered and enrolled in Latine from before the Conquest to this very day so that there was never any alteration as to that point these
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
to have been upon the Death of King Henry the II. Now your only argument to prove this is that King Richard tho' his Eldest Son alive was only call'd Duke of Normandy and never King of England till after his Coronation but whoever will but consider the circumstances of this matter will find that he was indeed own'd for King of England before his pretended Election or Coronation for before his coming into England to be Crown'd Rocer Hoveden tells us That every Freeman of the whole Kingdom by the Command of his Mother Queen Elianor swore quod fideni portabit Regi Angliae Richardo Regis Hen. filio which plainly shews that he was then by common intendment looked upon as King before his Coronation and though I confess that this very Author also relates that all the Estates of the Kingdom being assembl'd at London by whose Council and Assent the said Duke was Consecrated and Crown'd King of England and though Ralph de Diceto then Dean of St. Paul's who in the Vacancy of that Church then supplied the Office of the Bishop at King Richard's Coronation hath this passage Comes itaque Pictavorum Richardus hereditario jure praemovendus in Regem post tam cleri quam populi solemnem debitam electionem involutas est triplici Sacramento c. Now what can this solemn and due election here signifie Or what can it mean farther than that Richard being King by Hereditary Right was so owned and recognized by the Clergy and Laity F. I desire I may reply to this before you proceed farther I confess what you say about the Empress Maud's surrender of her Right to her Son Duke Henry would be considerable if you had any Authorities from our Antient Historians to support it but since you have not I look upon it as no better than a meer surmise of those of your opinion that the Crown was then enjoy'd by an Hereditary Right without any consent or election of the people and so likewise is your other fancy that because Women were then looked upon as uncapable to Govern therefore the Bishops and great men of the Kingdom suppos'd they had sufficiently perform'd their Oath of Allegiance to her by acknowledging her Son Duke Henry for the right Heir of the Crown now if this had been so pray tell me to what purpose King Henry I. Father to the Empress should have made all the Estates of England swear fealty to his Daughter if a Woman had been then lookt upon as uncapable to Govern or to what purpose should the Clergy in the Council at Winchester chuse this Empress as the King's Daughter Lady both of England and Normandy as William of Malmesbury tells us expresly that they did and that he was present at it or how could the great Council of the Kingdom believe that they had sufficiently satisfied their Oath to the Daughter in conferring the Allegiance that was due to her upon her Son I am sure no Heiress of the Crown would look upon that as a good performance of their Oath at this day when you can answer me these queries I shall be of your opinion in this point but till then I beg your pardon But as to what you say against the Vacancy of the Throne upon the Death of King Henry the II. till King Richard was Elected and Crown'd I desire no better Authority to the contrary than those very Authors you have now cited for your opinion for first Hoveden in the very place you have quoted him says That the Duke was to be Crown'd King by the Council and Asâ—â—nt of all the Parties there present now if I understand any thing of Grammar or Sence he was not King before and therefore needed their Assent to make him so likewise in the next quotation from Ralph De Diceto the Duke is said Hereditario jure promovendus in Regem which words being in the Future Tense shew he was not then but was to be promoted to that dignity now if his Hereditary Right alone could have done it then to what purpose are all these words aforegoing so that though this Right gave him the fair pretence to succeed to the Crown yet it is plain from both the Authors you have quoted that he was not so till after the due Consent and Election of the Clergy and People so that after all your questions what can this solemn and due Election signifie or what can it mean farther than that Richard being King by an Hereditary Right was so own'd and recognized by the Clergy and Laity will receive a very easie answer from what has been already said till you can shew me out of any Dictionary that Consilium and Assensus which are the words of Hoveden and the words Solemnis debita electio ever signified an owning or recognition of an Hereditary Right I confess the only colour you have for your interpretation of those words in Hoveden which you have now cited of Queen Elianors making every Freeman of the Kingdom swear Fealty to Richard King of England as to their Liege Lord from whence you would infer that by common intendment of Law he was looked upon King of England before he was Crown'd and consequently there could be no Vacancy of the Throne now admit that he was commonly call'd King before he was Crown'd or that the Queen his Mother would make the People swear to him as such yet that could not make him so since the same Historians also tell us that Hubert Archbishop of Canterbury and William Earl Mareschal made the people of England take a like Oath to Earl Iohn as their Lord not King immediately after the death of King Richard his Brother and yet I suppose you will not affirm that their swearing Fealty to him as their Superiour Lord made him King or gave him a just Title to the Crown and I desire you or any indifferent man to tell me which was Hoveden's opinion whether this swearing Fealty was a sufficient Declaration of his â—eing King or else all those other expressions which signifie the contrary when immediately before his Coronation he only calls it ducem Richarâ—m qui Coronandus erat in Regem which I think is as plain a distinction of his being a Duke before he was Crown'd and a King afterwards as words can make M. I see it is in vain to urge this point any longer and therefore I shall proceed to your next instance of the Vacancy of the Throne after the death of King Richard until King Iohn was placed therein now though it is certain that this Prince was an Usurper upon his Nephew Duke Arthur yet whether he was ever Elected in a Common Council of the Bishops Earls and Barons of the Kingdom is very doubtful But suppose he were it was done wrongfully and to the prejudice of Arthur Duke of Britain the right Heir to the Crown who being young and a stranger it is no wonder if he were put by and his Uncle who
was a man and better acquainted with England and having the Interest of the Arch-bishop of Canterbury and most of the great men were of his party and yet for all that Hoveden who was alive at this time speaks not a word of his being Elected but only that upon his coming into England he was received by the Nobility and Crown'd by Hubert Arch-bishop of Canterbury so that there is not one word there of any Election by but only a submission from the Lords Spiritual and Temporal to King Iohn and a recognition that he was their King nor indeed could he need it if it be true what the same Author tells us That when King Richard despar'd of Life he devised to Iohn his Brother the Kingdom of England and all his other Lands and caus'd all those that were present to do him Fealty and this is related by Hoveden in all probability an Eye Witness of these transactions So that the first Author we find to mention any thing of the particulars of this pretended Election is Mâ—tthew Paris who has given us the Speech which the Arch-bishop made at this supposed Election and also reciting the Arch-bishops Bishops Earls and Barons and all others who ought to be at his Coronation the Arch-bishop standing in the middle of them said thus Hear all of you your Discretion shall know that no man hath right to succeed in this Kingdom unless after seeking God he be unanimously chosen by the University of the Kingdom that is those that are here said to meet at London the rest of the Speech needs no repeating only he lays it down for Law which I think was never heard of before That if any of the Progeny of the dead King did excel others they ought more readily to consent to the Election of him and so upon this Speech made in behalf of Earl Iohn and full of a great deal of fulsom slattery he was declar'd King But to let you see what a sort of Man this Arch bishop Hubert was here see what the same Author tells us in the same place that being asked afterward why he said these things answer'd That he guested and was thought ascertained by certain Prophecies that Iohn would bring the Kingdom and Crown into great Confusion and therefore lest he he might have too much liberty in doing he affirmed he ought to come in by Election and not by Hereditary Succession Now though this Learned Doctrine of the Arch bishop asserts a right of Election in the Convention of Bishops Earls Barons c. yet by his own answer when he was asked why he said these things it clearly discovers it to be only a design and artifice in the Archbishop to cause them to set up and make Iohn King and in which also he denies any such right of Election but since Hoveden nor any other of our antient historians make mention of this Election but only of his Coronation and the Bishops Earls and Barons assisting at it not giving their consents to it it may very well be that that story of an Election and this Speech of Arch bishop Hubert might be only an invention of Matthew Paris or rather of Roger of Wendover from whom he took most of his History but that this doctrine of the Arch-bishop concerning the Election of our Kings if meant according to the modern understanding of it was then new Gervase a Monk of Canterbury in the year 1122. who also speaking of the Coronation of Henry the First says it was manifest and known almost to all men that the King 's of England were only obliged and bound to God for the possession of the Kingdom and to the Church of Canterbury for their Coronation manifestum est autem omnibus fire notum Reges Angliae soli Deo obligari teneri ex ipsius regni adeptione Ecclesiae Cantuariensi ex Coronatione But that King Iohn was looked upon as an Usurper is very certain since besides some of the honest English Nobility that took Duke Arthurs part the King of France did also make War upon King Iohn upon his Nephews account because he looked upon him as true Heir to the Crown and therefore when K. Iohn had privately made away his said Nephew in prison the K. of France summon'd him as Duke of Normandy and Peer of France to answer for the Murther in an Assembly of the Peers of France at Paris where for his refusing to appear he was condemn'd to death and his Dukedom of Normandy declar'd forâ—eited to the King of France F. I confess you have said as much as can be to prove that King Iohn had no Hereditary Right to the Crown nor was so solemnly Elected to it as Matthew Paris relates but yet for all this I think I may very justly oppose all that you have now said upon this Head for in the first place it was then very much disputed as it hath been also since that time if an Elder Brother died and left a Son a Mâ—nor whether his Younger Brother or the Son should succeed for though the People of Anjou and those of Guienne own'd Duke Arthur for their Prince yet the States of Normandy were of another mind and as well by vertue of King Richard's Testament he was immediately after his Death invested with that Dukedom nor was he then at all opposed in it by the King of France though Supreaâ— Lord of the Fee and as for England besides his Brothers Testament whereby he left him Heir of all his Territories it was also then generally held in England as most consonant to the Antient English Saxon Law of Succession that the Uncle should succeed to the Crown before the Nephew therefore it is no wonder if Duke Arthur found so small a party here not any Bishop Earl or Baron as I read of owning his Title and as for the King of France it is also as certain that he did at first own King Iohn for lawful King of England and Duke of Normandy and entred into a Treaty of Peace and made a League with him as such though it is true that afterwards when he had a mind to pick a quarrel with that King he then set up Duke Arthur's Title And though this Duke was made away in the beginning of King Iohn's Reign yet did not the King or Peers of France ever take any notice of it till about twelve or thirteen years after when he had now unjustly Conquered all Normandy and almost all that Kings other Territories in France and then wanting a Title to keep them he began this Prosecution you mention against him and upon his non appearance he was condemned unheard but that the King of France himself and all the great men of that Kingdom did look upon him to have been lawful King of England appears by that Speech which Matthew Paris relates to have been made after King Iohn's Deposition by the Barons of England by a Knight whom Prince Lewis
permit his Son to Reign in his stead which though with some reluctance he at last agreed to and thereupon Prince Edward took the Crown not by Election as you set forth but by the cession and resignation of his said Father as appears by the account which this King gave of it to the Sheriffs of all the Counties of England within a few days after his taking upon him the Crown which Writ or Letter is still to be seen among the Roll's in the Tower and is also published in Walsingham as a Proclamation which because it will give very great light in this matter I pray now read it at length Rex vicecom Ebor. Salutem quia Dominus Edwardus nuper Rex Angliae pater noster de communi confilio assensu praelatorum Com. Baron Alior Magnat necnon Communitat totius Regni praedict spontanea voluntate se amovit a Regimine dicti Regni volens concedens quod nos tanquam ipsius primogenitus haeres Regni gubernationem regimen assumamus nosque ipsius patris nostri bene placito in hac parte de consitio avisamento Praelator Com. Baron Magnat Communitat predict onnuenâ—es pubernacula suscepimus dicti Regni fidelitates Homagia ipsorum Praelitor Magnat recepimuâ— ut est moris teste Rege apud Westmonast 29. Ian. So that you here see this King takes no notice of the deposition of his Father or the Election of himself but only that by the Common Council and Assent of the Prelates Earls Barons c. The King his Father had by his own free Will removed himself from the Government of the Kingdom and that therefore he had by the good Will of his said Father and by Council and Advice of the said Prelates Earls c. taken the Government of the said Kingdom upon him But King Edward the 3 d. being dead his Grandson Richard the 2 d succeeded him having been before recognized by Act of Parliament as Heir Apparent to the Crown in his Grandfather's Life Time immediately upon the Death of his Father Edward the black Prince so that he succeeded to the Crown though an Infant and having great and powerful Uncles then alive and though by his ruling too Arbitrarily and being too much govern'd by Flatterers be became hated of his Subjects and thereupon gave occasion to Henry Duke of Lancaster whom he had before banished to come over and take the Kingdom from him without striking a stroak and having taken the King Prisoner call'd a Parliament in his name who took upon them most unjustly to Depose King Richard tho' 't is true he also made a solemn resignation of it by his own seeming consent but it is certain it was forced from him for fear of worse usage if he refused it F. Pray give me leave to answer what you have now said before you proceed farther in this History of the Succession In the first place I shall not deny but that from the Reign of King Edward I. the Crown has been always claim'd tho' not constantly enjoy'd by right of Blood yet that the custom was otherwise before I think the Instances I have given from the time of your Conquest are more than sufficient it is likewise as certain that this Succession by right of Blood was never setled by any positive Law and therefore must be purely derived from that Tacit consent of the People called Custom Secondly That the two Houses of Parliament have often notwithstanding this claim placed or fixed the Crown upon the Heads of those Princes whom they very well knew could have no Hereditary Right to it Thirdly That such Princes have been always obeyed and taken for lawful Kings all their Laws standing good as this day without any confirmation by their Successors tho' they pretended to a better Title Now if I prove every one of these three propositions I think the case will be very plain that though the Crown has been claim'd and often enjoy'd by right of blood yet hath it been held near as often otherwise since that time so that the Succession to it hath been still declar'd under the direction and limitation of the Present King and Parliament This being premis'd I shall proceed in the next place to answer what you have said concerning King Edward the first 's being only Recogniz'd and not Elected King by the Parliament it is plain from this History that the Great Council still maintain'd their anâ—ient right of assembling upon the death of the King and of Judging who should be his Successor and that without any summons from him which will serve to justifie as do all the other instances aforegoing that the late Convention meeting and setling the Crown without any Writs or Authority derived from King Iames was no new thing but that they have therein done no more than what hath been antiently practised in like cases and tho' 't is true the words in Walsingham is recognoverunt yet there is also other words which seem to intimate that it was then in the power of the Great Council whom to declare for lawful Successor the words are Paternique Successorem honoris ordinaverunt that is they ordain'd or decreed him Successor of his Fathers Dignity which sure is somewhat more than a bare Declaration of an undoubted precedent Right and what power the Great Council was then looked upon to have in the ordering of this Kingdom appears by that Writ of Dedimus for all mens taking the Oaths of Allegiance in the Country which is still to be seen in the close Rolls and begins thus Quia defuncto jam celebris memoriae Domino Henrico patre nostro ad nos Regni Gubernaculum successione Haereditaria Procerum Regni voluntate fidelitate nobis praestita sit devolutum c. where besides the Hereditary Succession the good Will and Fidelity of the Great Men is reckon'd as one of the means by which the Kingdom came to him and that this course was also observed upon the accession of his Son Edward the 2 d. to the Crown seems likewise as evident from the same Author who tells us in the beginning of the Life of this Prince that he succeeded his Father King Edward non tam jure Hereditario quam unanimi consensu Procerum Magnatum which observation had been altogether needless had an unalterable Hereditary Right to the Crown been the setled But as to what you say of King Edward the 3 ds Right whilst his Father was Living to have been wholly due to his resignation tho' the place I cited out of Walsingham be express in this point yet against this you urge a Writ or Declaration as also a Proclamation of this Kings wherein he thus sets forth his Title viz. That by the Voluntary resignation of King Edward his Father and by the Council and Advice of the Prelats Earls and Barons c. he had taken upon him the Government of the Kingdom and consequently that
Rebellion for the Duke of Lancaster to take up Arms against King Richard the 2 d and to Depose him I cannot see why according to your own Principles it should not be the same crime in the Duke of York to take up Arms against King Henry the 6 th to whom he had more than once sworn Faith and Allegiance and having taken him Prisoner to call a Parliament whereby himself was declared Protector of the Kingdom and the Son of King Henry disinherited after a quiet possession in three descents during the space of above sixty years which if it will not give a thorough settlement after two Acts of Parliament to confirm it I know not what can M. I confess you have given me a more exact account of this transaction than ever I had yet and I should very much incline to be of your opinion were it not that I am satisfied that our Kings have a Right to the Crown by Gods Law as well as mans as also by the Law of Nature and that more than one Parliament have been of my opinion in this matter I shall shew you from several Statutes and Declarations of Parliament which though not Printed are yet to be seen at this day upon the Parliament Rolls for after that Henry the 6 th or rather his queen for him had broken the aforesaid solemn agreement made between this King and Duke in Parliament whereby it was accorded that if King Henry made War again upon the Duke of York he should then forfeit his present Right to the Kingdom during his Life whereupon Queen Margaret and her Son Prince Edward who would not submit to this agreement renewed the War and fighting another Battle at Wakefield the said Duke was slain but though he did not live to enjoy his right yet his Son Edward Earl of March again recovered it and having in the second Battle of St. Albans taken K. Henry Prisoner triumphantly Marching to London he there declar'd himself King and having immediately call'd a Parliament it was therein declar'd that all the proceedings against K. Richard the ad are repeal'd and the taking him Prisoner by Henry Earl of Darby was declared against his Faith and Allegiance and that with violence he had usurped upon the Royal Power and Dignity c. and that he had by cruel Tyranny Murther'd and Destroy'd the said King Richard his Liege and Soveraign Lord against Gods Law and his own Oath of Allegiance And then they proceed further to declare in these words That the Commons being of this present Parliament having sufficient and evident knowledge of the said unrightwise Usurpation and intrusion by the said Henry late Earl of Derby upon the said Crown of England knowing also certainly without doubt and ambiguity the Right and Title of our said Sovereign Lord viz. King Edward the 4 th thereunto true and that by Gods Law Mans Law and the Law of Nature he and none other is and ought to be their True Rightwise and Natural Leige and Sovereign Lord and that he was in Right from the death of the said noble and famous Prince his Father very just King of the said Realm of England and will for ever take accept and repute the said King Edward the â—ourth their Sovereign and Liege Lord and him and his Heirs to be Kings of England and none other according to the said Right and Title And that the same Henry unrightwisely against Law Conscience and the Customs of the said Realm of England Usurped upon the said Crown and that he and also Henry late call'd K. Henry the 5 th his Son and Henry Late called Henry the 6 th his Son occupy'd the Realm of England and Lordship of Ireland and exercised the Governance thereof by Unrightwise Intrusion Usurpation and no otherwise that the â—motion of Henry late called King Henry the 6 th from the Exercise Occupation Usurpation Intrusion Reign and Governance of the said Realm and Lordship done by our Sovereign Lord King Edward the 4 th was and is rightwise Lawful according to the Laws and Customs of the said Realm and so ought to be taken holden reputed and â—ccupied I have been the larger on this point because it is a full and free Declaration of the whole Parliament nor only against all past as well as future Parliaments having any thing to do in the disposal of the Crown but is also as express a Declaration as words can make against any Vacancy of the Throne upon the Death of the Predecessor and therefore I hope you will pardon me if I have been a little too tedious in reciting these Records F. I cannot blame you for being very exact in this point because the whole strength of your Cause depends upon it but yet I doubt not but to shew you that this Parliament was as much awed by King Edward's Power being now Conqueror as ever those Parliaments were that Depos'd Edward and Richard the 2 d for you your self have sufficiently set forth the manner of it that it was not till after a great Victory obtain'd against King Henry the 6 th and I never found in all my reading that a Victorious Prince ever wanted power enough to get a Parliament call'd to settle himself in the Throne and declare his Competitor an Usurper as I shall shew you more fully by and by but that this Act of Parliament which thus posiâ—ively declares Edward the 4 th to be their Sovereign Lord by God's Law Man's Law and the Law of Nature I think can no ways consist either with Scripture Reason or Matter of Fact for in first place I think I have sufficiently proved that there is no Divine Right of Succession for the Heirs of Crowns any more than of other Inheritances either by the Law of God or that of Nature and as for Man's Law I think I have here also proved that the Succession to the Crown by right of Blood alone was never establisht by any positive Law nor yet setled by any constant or interrupted Custom when this Declaration was made for the Crown had then never descended from Father to Son for above two Descents without a deposition or possessed by those who claim'd by Right of Blood without any other Title for as for the three Kings of the House of Lancaster I have already proved and your self must also own it that they could have no Title to the Crown but from the Acts of Entail of the 7 th and 8 th of Henry the 4 th above mention'd so that according to Man's Law that is Custom and also the Statute Law of this Kingdom the House of Lancaster had all that time the better Title But to shew you what uncertain things Parliaments are when King Edward the 4 th had Reign'd ten years he was driven out of the Kingdom by the Earl of Warwick's turning suddenly against him and in his absence he replaced King Henry the 6 th upon the Throne who had been all this while kept
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
other Now this was done some time before he Married with the Princess Elizabeth for as soon as this Act was made the Commons requested the King to marry Elizabeth the Daughter of King Edward the fourth that by God's Grace there might be Issue of the stock of their Kings as their own words were and that this was rather to preserve the Blood Royal than to give any new confirmation to his Title appears from hence that there was never any other Act after the Marriage to declare the right of the Crown to be in the King and Queen or so much as to entail it on the issue of their Bodies so that it is plain he enjoy'd it not in his Wives but in his own right since he held it after her death by vertue of this Statute which plainly shows that in the judgement of that Parliament the House of Lancaster was lookt upon to have the better Title And though it is true that the King procured the Pope's Bull now in the Cotton Library to strengthen his Title threatning all those with Excommunication that should offer to rebell against him yet even that Bull tho' his right by Inheritance and Conquest be first mentioned concludes with his Title by the Election of the Prelates Nobility and People of England and the Decree or Statute of the three Estates in their Convention call'd the Parliament as this Bull it self expresses it M. I must confess you have told me more of these matters than ever I heard of before for I always thought that there had been no Act of Settlement upon King Henry the VII th until after his Marriage with the Princess Elizabeth for till then I look upon him as an Usurper upon her right as he was also after her death upon his Sons successively so that if you will have my Opinion I conceive that this Statute being made before he had a lawfull right to the Crown is wholly void as is also that of the repeal of the attainder of King Henry the VI ths for the same reason But let his Title be what it will it is ceâ—â—ain his Son King Henry the VIII th Succeeded to the Crown as Heir rather to his Mother than his Father and so was in by remitter but as for King Edward the VI th he was undoubted Heir by right of blood as being the only Heir Male to his Father and though it is true that King Henry made divers Statutes whereby he alter'd the Succession of the Crown as to his two Daughters Mary and Elizabeth sometimes declaring them both illegitimate and then again giving them a right to Succeed by Act of Parliament yet these Acts of Succession were obtained purely by the King's Sollicitation and Command and tho' at last he got himself impower'd to make a Will whereby he might settle and entail the Crown on whom he pleas'd yet all these Acts of Parliament as also this will signifie just nothing after his death for tho' his said Daughters Queen Mary and Elizabeth did one after another succeed his Son King Edward the VI th yet was it not by vertue of any of these Acts of Parliament or by the aforesaid Will but by pure right of inheritance or colour of it at least and therefore in the first of Queen Mary there is an Act declaring the Queens Highness to have been born in most just and faithful Matrimony and also repealing all Acts of Parliament and Sentence of Divorce made or had to contrary Now certainly the intention of this Act was to declare her Succession to be Inheritance by right of blood so likewise in the first of Elizabeth the Lords Spiritual and Temporal and Commons do declare and confess that Queen Elizabeth is in very deed and of meer right by the Laws of God and by the Laws and Statutes of this Realm their most rightfull and lawfull Sovereign Queen and that she was rightly lineally and lawfully descended and come of the Blood-Royal of this Realm of England all which whether it were true or not in her yet the lineal and lawful descent of Queen Elizabeth was the ground upon which she was declar'd to be their Rightfull and Lawfull Queen And though I grant that King Henry the VIIIth had by his Last Will and Testament post poned all the Issue of his Sister Margaret Queen of Scots and preferred the Children of his younger Sister the Queen Dowager of France which she had by Charles Duke of Suffolke before them Yet was this Will afterward cancelled and torn off from the Rolls in Chancery where it was Recorded and that by order of Queen Mary as is supposed So that Iames the VIth King of Scotland was by Right of Blood Declared and Proclaimed King of England immediately upon the Death of Queen Elizabeth as right Heir of the Crown And in the first Parliament after his Coronation his Title is by them particularly recognized in the words which I desire you to read with me Where after setting forth his Pedigree as lineally descended from the Lady Margaret eldest Daughter of King Henry the VII th and Queen Elizabeth his Wiâ—e Daughter of King Edward the IV th they farther acknowledge King Iames their Lawful and rightful Leige Lord and Sovereign and farther say as being bound thereunto both by the Laws of God and Man that they do recognize and acknowledge that immediately upon the dissolution and decease of Elizabeth late Queen of England the Imperial Crown of the Realm of England and all Kingdoms Dominions belonging to the same did by inherent Birth-right and lawfull and undoubted Succession descend and come to his Most Excellent Majesty being lineally lawfully and justly next and sole Heir of the Blood Royal of this Realm and thereunto they do most humbly and faithfully submit and oblige themselves their Heirs and Posterities for ever until the last drop of their bloods be spent I have been the more particular in the recital of this Act because it stands not only as a perpetual Declaration of the sense of the Representatives of the whole Nation for an hereditary Succession of the Crown without any vacancie or election but also because it contains their solemn engagement for themselves and their posterities for ever to King Iames and his issue and consequently to his right Heirs for ever so that nothing can be more directly contrary than this Act to the late proceedings of the Convention first in declaring the Throne vacant and then placing the Prince and Princess of Orange therein F. I will not deny but that King Henry the VIII th and Edward the VI th both succeeded by right of inheritance but whether the former claim'd it as Heir to his Mother or his Father is much to be doubted since being Heir to both of them he never declar'd by what Title he held the Crown But as for his two Daughters Queen Mary and Queen Elizabeth it is certain their best Titles were from these Acts of
the power of the two Houses of Parliament I am very well satisfied that such a Declaration must be void in it self since I have sufficiently proved that there was no such Law of Succession ever setled by any general Custom or Common Law since it hath been near as often broken as observed and as for any positive or Statute-Law enacting any hereditary right of Succession you do not so much as pretend to show it so that I think I have sufficiently proved the three Propositions I laid down viz. That ever since the time of Edward the First though the Crown has been claim'd by right of blood yet has it not been very often enjoy'd by Princes who had no just pretence to that Title Secondly that the two Houses of Parliament have often notwithstanding that claim placed or at least fixed the Crown upon the heads of those Princes who they very well knew could have no hereditary right to it Thirdly That such Princes have been always taken for lawful Kings all their Laws standing good at this day without any Confirmation by their Successours M. I did not think that you who were so great an admirer of the two Houses of Parliament should now be so much against their power in joyning with the King to declare what the true right of Succession to the Crown is and hath ever been from time beyond memory But I see Acts or Declarations of Parliament signifie nothing with you if they are against your Hypothesis or else you would never go about thus to expose those Acts of Parliament of King Edward the IVth and King Iames the Ist. Whereby they are declared both by the Law of God and Man undoubted Heirs of the Crown And the last Act I cited viz. That of King Iames the Ist. doth sufficiently confute your Notion of a Vacancy of the Throne Where it is expresly declared That immediately upon the decease of Queen Elizabeth the Crown of England with all the Dominions belonging to the same did by Inherent Birth-right and Lawful and Undoubted Succession descend and come to his Majesty King Iames. So that if there then were no Vacancy of the Throne I cannot see how there could be any such thing now the next Heir to the Crown be He who they will being certainly not so far removed from King Iames the Ist. as himself was from King Henry the VIIth under whom he claimed F. I must still confess my self to have a great veneration for the solemn Declarations of King and Parliament made by any Statute yet not so as to Idolize them or to look upon all their Declarations as infallible I grant indeed that whosoever is by them Declared and Recognized for King or Queen of England is to be acknowledged and obeyed as such by all the Subjects of this Kingdom without farther questioning his Title But if not content with this they will also take upon them to declare that such Kings or Queens have an undoubted Hereditary Right by the Laws of God and Nature When I plainly find from the Holy Scriptures as well as the History of matter of Fact and the knowledge of our Laws that they have no other Tiâ—le than what the Laws of the Land have conferred upon them and therefore you your self cannot deny but that it was gross flattery in the two Houses of Parliament to declare that Richard the IIId for-example had a true and undoubted Right to the Crown by the Laws of God and Nature and also by the Laws and Customs of this Realm when you know he was a notorious Usurper upon the Rights of his Brother King Edward's Children now how can I be assur'd that the like Declaration made to Kâ—ng Iames the I. was not lâ—kewise a piece of Courtship of the Representative of the Kingdom to this King then newly setled in his Throne since we find the People of this Nation when they are in a kind fit never think they can say or do too much for their Princes and therefore I must freely tell you that it is not the bare Declaration of a Parliament that this or that has been always the Law or Custom of this Realm when we can find from History that it has never been so held for above four hundred years at least and therefore not beyond the memory of Man as you suppose since that must be before the Reign of Richard the First as I have already proved to you at our Eighth Meeting But to answer your Objection against the vacancy of the Throne I do freely grant that aâ— often â—s the Crown descends by lineal Succession there can be no vacancy of the Throne as it did in the Case of King Iames the First yet doth it not therefore follow that there can never be any such Vacancy in any Case whatsoever since certainly it may so happen that all the Heirs Male of the Blood-Royal may fail as it happen'd in the Case of Scotland when Iohn Balioll and Robert Bruce contended for the Crown which not being to be decided by the Estates of the Kingdom they were forced to referr it to our King Edward the First and as also happen'd in France when Philip of Valois and our Edward the III d both claim'd the Crown which was decided by a great Assembly of the Estates of France in the favour of the former who claim'd as Heir of the Male Line against King Edward who was descended by a Woman and if King Iames's Abdication or Forfeiture call it which you will is good pray give me a sufficient Reason why the Convention of the Estates of England should not have as much Authority as those of France or Scotland this being as much or more a limited Kingdom thau either of the other ever were M. I do not deny that but pray shew me any sufficient Reason why the Convention should now Vote a Vacancy of the Throne since there was certainly an Heir Apparent not long since in England and I hope is now safe in France who ought to fill it or at least there should have been some sufficient cause alledged against him to prove that he was not true Son either of the King or Queen and till this was done they could not with any Right or good Conscience place any other Relation of his in the Throne since every Person ought to be esteem'd the Son of that Father and Mother that publickly own him for such for it is a Maxim in our as well as your Law Filiatio non potest probari F. How this could be performed without first declaring the Throne vacant I cannot apprehend for you your self must grant that there have been great doubts and suspitions of the Realty of this Prince of Wales and therefore that being one great reason of the Prince of Orange's coming over The truth of this Child whether he was really born of the of the body of the Q. is first to be examin'd and determin'd before he can be declar'd K. of England in the
spend our dearest blood in the defence of our Sovereigns Person and the preservation of his Crown and Dignity For it is to be observed that by the Law this Allegiance is due to the Kings Person so the same Author says it was then resolved by all the Judges that that Ligeance was due to the natural person of the King which is ever accompanied with the politick capacity and the politick capacity as it were appropriated to the natural and not due to the politick capacity only To conclude if my former Oath of Allegiance to King Iames doth still continue as I am satisfied in my Conscience it doth I cannot take a new Oath of Allegiance to King William and Queen Mary since I should thereby be obliged by the force of these words in the Oath viz. I will be faithful and bear true Allegiance to yield it as much to those that are not my Lawful Sovereigns as I am to those that are so which will be contrary to my first engagement for though I grant that there is no express Declaration of the Right of the present Possessors of the Throne and that I have heard that the word rightfull which was at first inserted into this Oath was struck out because as many as could be might be drawn in to take it yet as long as the words that remain import the very same thing it is all one as if the word rightfull were there for though the deliberate omission of the word rightfull does necessarily infer that we are not obliged in this Oath to a recognition of their right to the Crown yet it does not infer that we are not obliged to pay as high a degree of Allegiance as to any rightful King whatsoever that omission indeed is an Argument that the word King in the Oath does not necessarily signifie a King de jure but it is no argument that true allegiance does not signifie true Allegiance that is an obligation to adhere to the King against all his Enemies for there was no debate that we know of about the sense of the word Allegiance neither is there the least intimation given that they design'd to restrain it to a lower signification though it was plainly necessary to do it if they intended to alter the commonly received meaning of it wherefore as the striking out of the word rightfull would not have proved that they did not intend to oblige us to an active assistance of King William against all men living if those words had been expresly inserted in the Oath so neither will it prove that the same duty is not now required of us if the word Allegiance do as I have proved in terminis import it and that as fully as if it had been in express words requir'd in it And that this word Allegiance implies something more than a bare passive submission or neutrality from all Subjects as well as Magistrates and Officers appears by that passage in the Statute of the 11th of Henry the VIIth which you have now cited where 't is plainly and expresly declared that every Subject by the duty of his Allegiance is bound to serve and assist his Prince and Sovereign Lord at all seasons when need shall require this is so express and authentick a Declaration of the true duty of Allegiance that no Art or Sophistry can possibly evade it F. I confess you have argued this point of taking this new Oath of Allegiance not only like a Civilian but a common Lawyer also and I cannot deny the force of what you have said that this Oath must extend to an active obedience and defence of their present Majesties in their right to the Throne and not only to a bare sluggish submission or a luke-warm Neutrality And therefore I cannot say but you are justly scrupulous in not taking this new Oath untill you are satisfied of their Majesties Right as well as present Power but if you will please to observe the purport of this Act of the 11th of Henry the VIIth which you now mention'd you will there find it as good as expresly declar'd that Allegiance is due to him who is lawful Sovereign and the King for the time being is still to be looked upon as such for the words in the Statute are that no Man shall suffe for assisting the King for the time being without specifying by what Title he holds the Crown whether by an hereditary Right or by Conquest Election or the solemn recognition of his Title by all the Estates in Parliament so that by this Act all that Allegiance that was once due to the former King de Iure becomes thereby wholly transfer'd to the King de facto M. I grant what you now say would go a great way to satisfie me could you once prove that this Statute is now in force and is not now either abrogated or expired or else which I rather incline to believe is not absolutely void in it self In the first place therefore I hope to shew you that this was not Law before this Statute was made and therefore not declaratory of what was Law but endeavours to make that to be Law which was not so before so that the King for the time being there mention'd must be a King de jure or at least one that was presumed such because at that time the Constitution knew no other for that Possession was not a sufficient Title before the 11th of Henry the VIIth will evidently appear from these following Remarks First that all the Kings of the House of Lancaster are declared in the Statute of the first of Edward the IVth to be Kings in Deed but not of Right and pretended Kings and particularly Henry the VIth is said to be rightfully amoved from the Government and his Reign affirmed to be Intrusion and Usurpation and himself Attainted for being in Arms against Edward the IVth Secondly all Patents of Honour Charters and Priviledges which were granted by the House of Lancaster all Acts of Royal Authority which the Kings of England have a right to execute by vertue of their sole Prerogative nay Acts of Parliament themselves particularly those relating to Shrewsbury and some others which by parity of Reason supposes the rest in the same Condition all Acts of this nature were confirmed by the first of Edward the IVth which is a good Argument that this Parliament believed the Authority by which they were performed to be defective and illegal for we never find any such general confirmation as these pass upon the grants of the King de jure Thirdly in the first year of Henry the VIIth Richard the IIId was Attainted of High Treason in Parliament under the the name of Duke of Gloucester from whence 't is plain that as there was no Statute so neither was there any Common Law to support the Title of a King de facto for Treason is an attempt against the Kings Person his Crown and Dignity but no Man can commit Treason
against himself therefore if Richard the IIId had been a King in the sence of this Law we may be sure he would not have had such an infamous censure past upon him after his death Bradshaw and his High Court of Justice were the first that were so hardy as to pronounce a King of England guilty of Treason Fourthly If this notion of a King de facto had been allowed in the 11th of Henry the VIIth the Principal Assistants of Richard the IIId could not have been attainted for Richard being actually in the Throne he was according to your Modern way of arguing Rightful King and consequently the People ought to own him as such and defend him against all opposers and if so certainly they ought not to be condemned as Traytors for doing their duty as we find many of those were who fought for King Richard Fifthly at the end of this Parliament Henry the VIIth granted a General Pardon to the common people who had appeared against him in the behalf of Richard the IIId now Pardon supposes a fault and the breach of a Law which they could not have been charged with if the plea of a King de facto had been warranted by the Constitution F. I must freely tell you that you do not argue so much like a Lawyer in this Argument as you did in your former and you have in that forgot to what end those Statutes you mention were made and what is the purport of them or else some body hath misinformed you for though I grant that all those hard expressions you mention are given of the Kings of the Lancastrian Line in those Statutes of the 1 st of Edward the IVth yet do none of these expressions prove that they were not true and legal Kings in the eye of the Law all the while they Reign'd since divers Persons were attainted for High Treason against them whose attainders were never reversed but stand good to this day as in particular the attainder of the Earls of Kent Salisbury and of Huntingdon who were all attainted by Act of Parliament in the second of Henry the IVth and also the Earl of Northumberland and his Son the Lord Piercy attainted in the 5th of this King all which attainders were never reversed So likewise Richard Earl of Cambridge was found guilty of Treason by his Peers and his Attainder confirmed by Act of Parliament in the second of Henry the Vth and though it is true this Attainder was afterwards reversed in the first of Edward the IVth because the said Richard was not only his Grandfather but was also Condemned for endeavouring to make Edmund Earl of March his Brother-in-law King of England from whose Sister King Edward the IVth claimed the Crown yet the very reversing this Attainder by Act of Parliament declares it to have been good untill that Repeal since it was not declared void all which are plain and evident proofs that Treason may be committed against the King de facto and consequently that Allegiance is also due to him and not to the King de jure I have likewise also proved that all those Statutes which were made by those Kings and are not repealed stand good at this day without any confirmation by King Edward the IVth and this you have no way to answer but by instancing in Patents of Honour or Charters of Priviledges granted by those Kings and confirmed by Edward the IV th from whence you would inferr that some other Acts of like nature were in the same condition which let me tell you in no good argument against them for if you please to read that Statute of Edward the IVth you mention and you will there plainly see that the Grants Patents and other things there confirmed or either judicial Proceedings in the Courts of Justice or else such Charters or Patents which being thought to the prejudice of the Crown were ex abundanti cautela thought necessary to be confirmed by those particular Persons Religious Houses and Corporations who thought themselves concerned nor were all others of like nature who were not so confirmed thereby void since they hold good at this day and if you understand any thing of our Law you cannot but know that no Grants of the King can be made void by implication and to shew you farther that the Letters Patents made by Henry the VIth were looked upon as good in the Reign of Edward the IVth appears good from Bagot's Case in the Year-Book of the ninth of that King where a Patent of Naturalization granted by Henry the VIth though it were not confirmed by that Statute of Edward the IVth was by the greatest part of the Judges held to be good and the reasons there given for it are very remarkable since it was urged by the Council in behalf of the Plaintiff that King Henry was then King in Possession and it behoves that the Realm should have a King and that the Laws should be kept and maintain'd and therefore though he was in only by Usurpation nevertheless every judicial Act done by him concerning Royal Jurisdiction shall hold good and bind the King de jure when he returns c. So likewise a Charter of Pardon of Felony and Licenses of Mortmain shall be good and also the King that now is shall have the advantage of every forfeiture made to the said King Henry c. and mark this farther it is there also held that a Man shall be Arraigned for Treason done against the said King Henry in compassing his death and the reason is very remarkable because the said King indeed was not meerly a Usurper for the Crown was intail'd upon him by Parliament and this being not at all contradicted by the Court is still taken for Law and upon this report and not only upon the Statute of the 11th of Henry the VIIth did my Lord Coke found his Opinion I now mention'd that a King de facto was within the Statute of the 25th of Edward III. and though now it is true that the farther arguing of this Case of Bagots adjourned to a farther day when the Justices did not argue but the Serjeants and Apprentices at Law that is the Baristers as we now call them yet it seems to have been allowed by the whole Court that if King Edward who was then King had made his Charter before he was declared so it should be void at that time for every one who shall make a Charter of Pardon ought to be King in Deed at the time of the making thereof M. Pray Sir give me leave to reply to what you have now said against my first two Arguments before you go on to answer the rest for I confess the Authorities you bring seem so express against me that if I cannot take them off there will be no further need for your answering the rest I will not therefore deny but that all publick Acts and Proceedings at Law which are for the publick good and safety of the
8. p. 580 581. W. All Burroughs that sent Members antiently held in Capite of the King D. 8. p. 557 578. W. They sent such Members by an inherent Right or at the Discretion of the Sheriffs Ib. p. 593. 604. C Cain W. he forfeited his Birth-right by the Murther of his Brother D. 2. p. 67. W. His Eldest Son was a Prince over his Brethren Ib. Canons of 1640. their validity discussed D. 4. p. 284. to 286. King Charles the Firsts pretended Commission to Sir Philim O Neal considered D. 9. p. 636 637. Great Charter of King Iohnâ— W. it was the sole Act of that King or else made by the advice and consent of all the Freemen of England D. 5. p. 324. D. 7. p. 455 456. Great Charter of Hen. the Third W. all the Copies we have now of it were his or else Edward I. his Charters Ib. 461. Children how far and how long bound to be subject to their Parents D. 1. p. 45. to 52. Christians W. as much obliged to suffer for Religion now as in the Primitive Times D. 4â— p. 230. to 234. Chester its County W. the Earl thereof could charge all his Tenants in Parliament without their consent D. 7. p. 501. Church of England W. Passive Obedience be its distinguishing Doctrine from other Churches D. 4. p. 292 293. Cities and Burroughs more numerous in the Saxon times than now D. 6. p. 379. to 400. W. They had any Representatives in Parliament before the 49th of Henry the IIId D. 5. p. 565 572. Whether Cities and Burroughs had not always had Representatives in the Parliaments of Scotland D. 7. p. 505. Clerici terras habentes quae ad Ecclesias non pertinent who they were D. 7. p. 450.451 Clergy a part of the Great Council of the Kingdom in the Saxon Times and long after D. 8. p. 544 to 550. W. None of the Clergy but such as held in Capite appeared at such Councils Ibid. W. The Inferiour Clergy had their Representatives in Parliament different from the Convocation Ib. 546 to 558. Commandment Vth in what sence Princes are comprehended under it D. 2. p. 106. to 109 111. Communitas Regni W. that Phrase in ancient Records and Acts of Parliament does not often signifie the Commons as well before the 49th of Henry the Third as afterwards D. 7. p. 412 to 415. W. That Phrase does not also signifie the whole body of the Kingdom consisting of Peers and Commons D. 6. p. 416. The Drs. proofs to the contrary considered 417 to 423. W. It does also often signifie the Commons alone D. 8. p. 572. to 574. Their Declaration to the Pope in the 48th of Edward the Third D. 8. p. 581 to 582. Their Petition to Henry the Fifth Their Protestation in Parliament in Richard the Seconds time 584. Commons of Cities and great Towns had their Representatives in the Assemblies of Estates of all the Kingdoms in Europe founded by the ancient Germans and Gothes Ibid 607 to 612. Commons their request and consent when first mentioned in Old Statutes D. 5. p. 329. W. Ever summoned to Parliament from the 49th of Hen. the Third to the 18th of Edw. the First D. 7. p. 522. Commons W. part of the Great Council before the Conquest D. 5. p. 369 372. The words Commune de Commune les communes do frequently signifie the Commons before the 49th of Henry the Third D. 6. 423. D. 7. 423 to 484. Common-Council of the whole Kingdom W. different from the Common-Council of Tenants in Capite D. 7. p. 437. to 474. Communitas Scotiae W. it always signified none but Tenants in Capite Ibid. p. 505. to 508. Conquest alone W. it confers a right to a Crown D. 2. p. 128 129. W. It it gives a King a right to all the Lands and Estates of the Conquer'd Kingom D. 3. 168. to 170. W. Any Conquest of this Kingdom was made by King William the First D. 10. p. 715. to the end Constitutions of Clarendon their Title explained D. 6. p. 430 431. Contract Originel W. there were ever any such thing D. 10 p. 695 to 709. D. 12. p. 809 8â—3 Convention W. its voting King James to have abdicaâ—ed the Government be justifiable D. 11. p. 809 to 834. W. Its Declaration of King James's violations of our fundamental Rights be well grounded Ibid. p. 816 832. W. It s voting the Throne vacant can be justified from the ancient constitution of the Government D. 12. p. 839 to 883. W. Whether its placing K. W. and Q. M. on the Throne may be also justified by the said Constitution Ibid. p. 883 to 894. W. It s making an Act excluding all Roman Catholick Princes was legal Ibid. p. 894 to the end Convocation Book drawn up by Bishop Overal its validity examined D. 1. p. 6 8. Copy Holders why they to have no Votes at Elections to Parliament D. 5. p. 513. Great Councils or Convention the only Iudges of Princes Titles upon any dispute about the succession or vacancy of the Throne D. 12. p. 895. D. 13. p. 917. to 919 924. Council of the King in Parliament what it was anciently D. 5. p. 334. Great Council or general Convention of the Estates of the Kingdom W. legal without the Kings Summons D. 5. p. 353. D. 12. p. 894. to 898. Curia Regis what iâ— anciently was and W. it consisted of none but Tenants in Capite Ibid. 368. Crown W. it can by Law be ever forfeited D. 12. p. 833 834. D Defence of a Mans self in what case justifiable D. 3. p. 148 149. Declaration of the Convention setting forth King James's violation of the fundamental rights of the Nation W. justifiable or not D. 11. p. 816. to the end Private Divines their Opiâ—nions about Passive Obedience and Resistance of what Authority D. 4. p. 291 294. W. Many of them have not quitted the ancient Doctrine of the Church of England declaring the Pope to be Antichrist vid. Append. Dispencing Power W. justifiable by Law D. 12. p. 119 to 828. Dissolution of all Government W. it necessarily follows from the Conventions declaration of the vacancy of the Throne D. 12. p. 890 891. Durham W. its Bishop could lay Taxes in Parliament on the whole County Palatine without their consents D. 7. p. 501 502. E Earls of Counties their ancient Office and Institution D. 5 p. 363 to 370. King Edward the Second being deposed W. any vacancy of the Throne followed thereupon D. 12. p. 158 to 861. Queen Elizabeth W. she had any Title to the Crown but by Act of Parliament Ibid. p 872 873. England when first so called D. 5. p. 362. English-Men W. they lost all their Liberties and Estates by the Norman Conquest D. 10. p. 753. to the end English Bishops Earls and Barons W. then all deprived of their Honours and Estates Ib. 756 to 762. English Saxon Laws W. confirmed or abrogated by K. William D. 10. p. 760. Estates of the Kingdom
p. 539.540 King how far Gods Lieutenant D. 9. p. 663. W. His Authority is different from his Personal Will and Commands Ib. p. 645. to 648. His Person how far Sacred and Inviolable Ibid. p. 638.651 to 657. Kings Commission how far and in what cases resistible notwithstanding the Declarations of of the two first Parliaments of King Charles the Second Ib. p. 636. to 655. W. He hath any Authority to act against Law Ib. p. 644 to 649. Kings Commissions how far good in Law Ib. p. 640. Kings since the Conquest W. endued with the sole Legislative Power D. 5. p. 338 to 345. D. 9. p. 650 651. hath no Peer or Equal in the Kingdom D. 5. p. 354. His presence W. it will authorize all illegal actions so as to render them irresistible D. 9. p. 653 654. His Officers in what case resistible Ib. The Kings being irresistible how far different from being unaccountable D. 9. p. 644 645. Kings of England W. absolute and unaccountable or W. limited by Law D. 10. p. 693 to 698. Most High in their State-Royal when they appear in their Great Councils or Parliament D. 9. p. 643. The first Eight Kings after the Conquest never were so stiled till after their Coronations D. 12. p. 840. to 858.895 King though he have no Peer yet he had anciently Comites or Companions D. 5. p. 364 365. W. He can at this day abdicate or forfeit his Crown by the wilful violation of our fundamental Laws D. 10. p. 694 to 709. D. 11. p. 832 833. Kingly Power the end of its Institution in this Kingdom D. 5. p. 349. King de facto or for the time being W. within the Statute of the 25th of Edward the Third and whether Allegiance be due to him by the Statute of the Eleventh of Henry the Seventh D. 13. p. 905. to 940. What constitutes a legal King in England D. 12. p. 889 890. Kingdoms of Judah and Israel W. when given by Gods appointment it gave the issue of that King a like Divine Right to succeed D. 2. p. 99 100. Kingdoms Patrimonial and Hereditary their difference Ib. 84 85. Knights of Shires frequently stiled Magnates and Grantz in Ancient Records D. 6. p. 424. vid. Append. W. They were anciently chosen out of the Tenants in Capite and none others p. 425. Knights Citizens and Burgesses W. the first Writs of Summons of them that can be found is the 49th of Henry the Third D. 7. p. 519. W. This was the first time that they were summoned Ibid. p. 525 to 530. W. They were summoned no more till the Eighteenth of Edward the First Ibid. p. 522. to the end D. 8. p. 559. to 563. p. 571 to 576. L Lancaster W. that Families pretended Title to the Crown claim'd by Inheritance D. 12. p. 861 862. Laws how far they oblige Princes according to Sir R. F's Principles D. 2. p. 120 121. Laws Imperial of all Goâ—vernments W. they require a Passive Obedience or Non-Resistance in all cases whatsoever D. 3. p. 149.154 Law of Nations W. it differs from the Law of Nature D. 1. p. 26 to 31. Laws of English Saxon Councils the Titles to most of them D. 5. p. 314. to 319. Laws of Normandy W. the same in most things with those of England D. 10. p. 752.753 Laws fundamental of the Kingdom W. there are any such things and where to be found D. 9. p. 666. to 669. D. 10. p. 704. D. 11. p. 810. to 814. Law of Edward the Confessour concerning the Kings ceasing to be so if he prove a Tyrant and W. it be genuine or not D. 10. p. 705. to 712. Private League with France what Reasons there are for and against its reality D. 11. p. 800. to 802. Liberi Homines and Liberi Tenentes mentioned in Ancient Statutes and Records who they were anciently D. 6. p. 419.426 to 431. W. They were only Tenants in Capite or chose by Military service to them D. 7. p. 449. to 453.514 M Magna Charta W. obtained by Rebellion D. 3. p. 186. Magnates W. the Commons were not sometimes comprehended under that Title D. 6. p. 372.396 397. Queen Mary W. she had any Title save by the Statute of Henry the Eighth D. 12. p. 872. Our present Queen Mary W. she hath a right to succeed upon her Fathers abdication Ib. p. 853. 884. Maud the Empress why she never stiled her self Queen of England notwithstanding fealty had been sworn to her D. 12. p. 846. Several Maxims in the Civil Law considered and explained D. 1. p. 17 18 21.30 The ancient Members of the German Diets or Great Councils D. 6. p. 375. The Milites mentioned in ancient Statutes and Records who they were D. 6. p. 431 432. W. They were only Tenants in Capite or any other Tenants by Military or Socage service D. 7. p. 481.489 490. Mischiefs that may befall a People from their resistance of the Supream Power considered D. 3. p. 184. to 189. Monarchy W. of Divine Right from any Precepts or Examples in the Old or New Testament D. 2. p. 130 131. Or from Adams Patriarchical Power D. 1. p. 19. to 26. Monarchies or Commonwealths which are most Tyrannical D. 2. p. 110.111 Mixt Monarchy W. it be a Contradiction D. 5. p. 345. to 348. Sim. Montfort W. he first called the Knights Citizens and Burgesses to Parliament in the 49th of Henry the Third D. 8. p. 596.597 Moses and Joshua W. Monarchs over the Children of Israel and Successors to the Patriarchical Power D. 2. p. 92. to 100. Multitudo Cleri Populi the signification of those words in our ancient Histories D. 8. p. 569. to 571. N W. A whole Nation may resist the Supream Power in some Cases of extremity but not particular Persons D. 3. p. 146. to 150.161 162. D. 4. p. 236. to 239.272 to 275. Negative voice W. the two Houses of Parliament have it not in some Cases as well as the King D. 5. p. 341. Noah W. he was sole Proprietor of the Earth or else was Tenant in common with his own Children D. 1. p. 74 75. W. His Grandsons were all alike Princes over their several Families Ib. p. 75. to 81. W. from Noahs Seven Precepts may be deduced the Law of Nature D. 1. p. 36 37. Nobilis Nobilitas the several significations of those Titles D. 6. p. 374 388.410 W. Meer Commoners were not often comprehended under the Title of Nobiles Ib. 396 397. Non Obstantes the Clause when first inserted in our Kings Charters D. 11. p. 820. Non Resistance W. the Doctrine tend to make Princes better or else more Tyrannical to their Subjects D. 2. p. 116 117. Normandy W. its Dukes were absolute or limited Princes D. 10. p. 727. O Oath of the King at his Coronation how far obliged according to Sir F's Principles D. 2. p. 122.123 It s ancient form according to the Mirour D. 5.364 W. The taking the Coronation Oath renders the Crown forfeitable if it
the mentioning of them since I grant that about the End of the Fourth Century when these things happen'd not only the common People but also the Clergy began to grow very corrupt in their Manners And therefore I cannot much value any Precedents that you can bring in that time to justifie Resistance in Christians unless you could have shewn me any before the time of Constantine which I am sure you are not able to do much less any Authority from any of the Primitive Fathers which justifieth Resistance of the Supream Powers upon any account whatsoever F. 'T is a very hard matter to satisfie you by Quotations for before the time of Constantine it is evident the Christians were not only weak dispersed and disarmed but had also the Laws of the Empire against them And I have already granted That Self-defence against Persecution upon account of Religion was unlawful but when in the time of Constantine's Son and Successor the People having the Law on their side stood upon their defence against those that would have taken away their Lives as in the Examples I have brought of the Inhabitants of Paphlagonia then the Instances come too late and the Age is grown so corrupt that they are no longer Primitive Christians than they observe your Doctrines But as for express Precepts or Testimonies out of the Scriptures and Fathers to justifie Resistance I think it is very needless to bring any for the great Mr. Hooker shews us very well that it is the intent of the Scripture to deliver us all the Credenda and Agenda necessary to Salvation but in other Matters within the compass of our Reason it is enough if we have evident Reason for them Scripturâ non contradicente and if the Scripture doth not forbid such Resistance for Self-defence as I hope I have now proved to be Lawful I do not value whether there be any Express Authority to be quoted out of the Fathers for it or not For whatever the Scripture leaves free I think the Fathers have no Power to forbid M. I see it is to no purpose to argue longer with you from Primitive Examples or Testimonies And therefore I come now to the last thing I proposed which is to shew you that the Doctrine of our Church of England as it is contained in the 39 Articles Canons and Book of Homilies is as expresly for passive Obedience and against All Resistance of the Supream Powâ—rs as the Primitive Church it self And therefore I shall begin with the Infancy of the Reformation under Henry the VIII For there I begin the Restoration of Religion to its Purity in this Kingdom F. I pray Sir give me leave to interrupt you for I must tell you I will not be concluded by any thing that the King or Church in those times did publish concerning matters of Faith or Practice since unless it were in that one Political rather than Religioâ—s Article concerning the Pope's Supremacy the Church in all other Speculative and Practical Doctrines was as much infected with Popâ—ry as it was before And therefore if you will have me to be converted by your Authorities I pray begin with the Purer Times of Edward the VI. and Queen Elizabeth M. I shall comply with your desires since you will have it so And therefore I shall begin with the 39 Articles of the Church of England where in the 37 Article as they were past under Queen Elizabeth Anno 1562 you may find it runs thus The Queen's Majesty hath the Chief Power in this Realm of England and other her Dominions unto whom the Chief Government of all the Estates of this Realm whether they be Ecclesiastical or Civil in all Causes doth appertain and is not nor ought to be subject to any foreign Iurisdiction It is true this Doctrine is not limited to the particular Case of Subjects taking up Arms but it seems to me by two necessary Consequences to be deduced from it First Because if the Pope who pretended by a Divine Right had no Power over Kings much less have the People any such Power who pretend to an Inferiour Right that of Compact Secondly Because the Article makes no distinction but excludes all other Power as well as that of the Pope And in truth the Plea is the same on either side the Pope says as long as the Prince Governs according to the Laws of God and the Church of which He is the Interpreter so long the Censures of the Church do not reach him and say the People as long as the Prince governs according to the Laws of the Land and of the meaning of those Laws they themselves will be the Interpreters so long are they bound to be obedient but as soon as the King doth any thing that may contradict the Pope then he is deservedly say the Romanists excommunicated deposed and murdered and when he usurâ—s upon the Peoples Liberties then he ought to be deposed by the People The Arguments on either side are the same and for the most part the Authorities F. I must confess this is the first time that ever I knew any Man go about to prove Passive Obedience and Non-Resistance out of the 39 Articles and indeed I should have thought you might have deduced any thing else from these Articles as well as that But let us see how what I have saiâ— in this Discourse can come within the Contents of this Article which only says that the King or Queen of England is Supream Governour over all Persons as also in all Causes whether Ecclesiastical or Civil and is not subject to any foreign Iurisdiction from whence you raise this Argument that if the Pope who claims by a Divine Right hath no Power over our Kings much less have the People who can pretend to no such Right as he does but only that by Compact Now pray tell me whether this be conclusive I assert that the People have by the Law of God and Nature a Right to defend themselves against the Supream Powers in case they are violently Assaulted in their Lives Liberties or Estates Now I would very fain have you prove to me how Resistance for Self-defence doth subjâ—ct a Prince to any Iurisdiction either Foreign or Domestick and whether the People can have no Right to Resist such Violence unless they have also an Authoritative Power over them M. It is not worth while to dispute this any longer with you to so little purpose And therefore I shall come to the Canons of the Church and in particular those of the year 1640 which I look upon as a full Explanation of the Belief of our Church in this Point where you may see in the first Canon these two plain Propositions among others First That the most Sacred Order of Kings is of Divine Right being the Ordinance of God himself founded in the Prime Laws of Nature and clearly Established by express Texts both of the Old and New Testaments Secondly For Subjects to bear
the Aldermen or Burgesses of Towns Represent those which we now call the Commons And supposing that then there were no Knights of Shires yet these being then the only Proprietors of any considerable Estates of Land in the Nation might very well represent all their Vâ—ssals or Vnder-Tenents as Tenents for years and at Will are at this day by the Knights of Shires tho they have no Votes at their Elâ—ction To conclude tho I grant that the King 's of England are the Fountain of that Honour which we call Peerage Yet it is only in Pursuance of that Ancient Constitution which their Ancestors brought out of Old Saxony and Normandy along with them as the firmest defence of Kingly Power against the Insolency and Encroachments of the Common or Meaner sort of People as well as Tyranny in their Princes And therefore in all Monarchies where there is no Hereditary Nobility the Prince hath no surer â—ay to maintain his Power than by Standing Armies to whose Humours and Pactions he is more Subject and is also more liable to be Murdered or Deposed by them when discontented with him than ever any limited Prince yet was or can be by his Nobility or People As I could shew you from a multitude of Examples not only from the Roman but Moorish Arabick and Turkish Histories and therefore to constitute a lasting stable limited Monarchy as ours is it must be according to the Model I have here Proposed M. I shall not contradict the latter part of your Discourse but I must freely tell you that if as you your self grant there were no Knights of Shires in the Saxon times I cannot see how those we call the vulgar or Commons of England had then any Representatives in the Great Council since those Thanes or Lords of Mannors whom you suppose to have Represented their Tenants or Vassals were never chosen by them and consequently could not properly be their Representatives But I think it will be easy enough to prove that none of your Inferior or middle Thanes but only the Chiâ—f or Superior had places in those Assemblies So that these Feudal Thanes or such as held of the King in Chief by Military Service were of the sam Kind with them that were after the Norman times Honorary or Parliamentary Barons and their Thainlands alone were the Honorary Thainlands and such as were afterwards Parliamentary Baronies Nor can I find any Footsteps in our Ancient English Histories of Cities and Buroughs sending any Representatives to those Great Councils So that admit I should own at present that the Bishops and some Great Abbots had from the first Setling of Christianity in this Island an Indisputable place in the Great Councils and likewise that the Earls Aldermen or Great Nobility had also Votes in those Assemblies and that the Chief Thanes or less Nobles had also their places there by reason of the Tenure of their Estates yet certainly the House of Commons was of a much later Date and owed its being either to the Grace and Favour of our Kings of the Norman Race or else to those that had Vsurp't their Power And this I think Dr. Brady hath very well proved against Mr. Petyt and I think I could convince you also of the Truth of it by his as well as other Arguments were it not now too late to enter upon so long a Subject F. Therefore pray let us defer any further Discourse of this Question till the next time we meet wherein I hope I may shew you that if you owe that Opinion to the Doctors Arguments he hath led you into a very gross mistake And I shall only at present take my leave of you and bid you good night M. I wish you the like ADVERTISEMENT A Brief Discourse of the Law of Nature according to the Principles and Method laid down in the Reverend Dr. Cumberland's now Lord Bishop of Peterborough's Latin Treatise on that Subject As also his Confutations of Mr. Hobb's Principles put into another Method With the Right Reverend Author's Approbation FINIS Bibliotheca Politica Or A DISCOURSE By way of DIALOGUE WHETHER The Commons of England represented by Knights Citizens and Burgesses in Parliament were one of the Three Estates in Parliament before the 49th of Henry III. or 18th of Edw. I. Collected out of the most Approved Authors both Ancient and Modern Dialogue the Sixth LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford-Arms where also may be had the First Second Third Fourth and Fifth Dialogues 1693. Authors made use of and how denoted 1. Mr. Pettit's Ancient Right of the Commons of England Asserted P.R.C. 2. Dr. Brady's Answer thereunto Edit in Folio B. A. P. 3. The said Doctor 's Glossary at the end of it B. G. 4. Anamadversions upon Treatise Ianii Anglorum forces novo B. A. I. 5. The Author of Ianus c. his Confutation of the said Doctor entituled Ianus Anglorum ab Antique I. A. A. 6. Dr. Brady's Preface to his History B. P. H. 7. Dr. Iohnston's Excellency of Monarchical Government I. E. M. G. THE PREFACE TO THE READER HAving in my last Discourse treated of the Legislative Power of this Kingdom as also the Ancient Constitution of our English Government by great Councils or Parliaments the former of which questions I should scarce have dwelt so long upon had I then known of a Learned Treatise now 〈◊〉 to be publisht on that Subject I am at last arrived at the hardest and most important though perhaps in the Iudgment of some the driest and most unpleasant part of my Task viz. Who were anciently the constituent Parts or Orders of Men who made up thâ—se Assemblies That the Bishops Abbots Priors Earls and Chief Thanes or Barons were Principal Members is granted by all Parties but whether there were from the very Original of these Great Councils nay till long after the coming in of the Normans any Representatives for the Commons as we now call them in distinction from the Lords Spiritual and Temporal is a doubt which as it was for ought I can find first raised by an Italian who writ the History of England in the last Age so hath it been continued by some Antiquaries of our present Age though the first that ever appeared to prove the contrary was a Treatise published by James Howel in the Cottoni Posthuma under the Name of Sir Robert Cotton about 1654. but whether it was his or no I know not only it was supposed to be so by Mr. Pryn in his Preface to the Collection of Records which he published under the Name of the same Author in 1657. and after him this Notion of the Bishops Lords and other Tenants in Capite being the Sole Representative for the whole Nation in those Councils was next printed in the Second part of Sir Henry Spelman's Glossary Tit. Parliamentum where King John's Charter is made use of at the main Argument to prove that Assertion The next who appear'd in Prâ—nt on
whole Nation in Parliament and I am of this opinion because in many of the old Statutes before the time of Robert the 2 d. we find the Communitas totius Regni coming immediately after the Earls and Barons as in our own ancient Statutes and Records but after those Reigns we find no more mention of this Communitas but only of the Dukes Earls Barons Liberi Tenentibus Burgensibus qui de Rege tenent in Capite as in the Titles to those Statutes of K. Robert the 3 d and Iames the 5 th you have now cited And yet that Liber Tenens was not anciently taken for a Tenant in Capite only pray see the 14 th Chap. of the Laws of K. Alexander the 2 d. made Anno Dom. 1214. with your Doctors comment upon them Statutum est quod nec Episcopi nec Abbates nec Comites nec aliqui liberi Tenentes tenebunt curias suas nisi Vicecomes Regis vel servientes Vicecomitis ibidem fuerant upon which words the Doctor in his answer to Mr. P. hath this remark viz. this again shews us that the Freeholders were Lords of Mannors at least So that unless you will suppose that none but Tenants in Capite were Lords of Mannors or held Courts as certainly very many of the Mesne Tenants did this word Liber Tenens must extend to any other great Freeholder or Lord of a Mannor of whatsoever Lord he held it and as such might anciently have had a Vote in that Parliament so that if I have as I think sufficiently proved that the word Communitas coming after the Earls and Barons in our ancient Statutes and Records did certainly signifie another order of men distinct from the Tenants in Capite I I have the same reason to believe it was so in Scotland too not only because these general words Communitas totius Regni must needs be more comprehensive than to express the Tenants in Capite only who could never Represent all the great Freeholders in Scotland any more than they did in England but also because it is acknowledged by the Scotch Lawyers that the Fundamental Laws and Constitutions are the same in both Kingdomâ— for Sir Iohn Skene in his Epistle to K. Iames before his Scottish Laws says thus Intelligo tuas tuorumque Majorum leges cum legibus Regni tui Angliae magna ex parte consentiunt which is also acknowledged by the King himself in the Speech he made in Parliament concerning the Union of both Kingdoms To conclude I cannot but admire your Doctors strange partiality who does allow the Commons of Scotland to have even been a third Estate when he expressly grants that the Commons of Scotland were and are at this day the Kings Tenents in Capite and that the Kings Royal Burroughs were such as ever did and do at this day in Scotland only send Burgesses to Parliament Now why the Cities and Burroughs in England should not have always had the like Priviledge as well as in Scotland I wish you could give me any sufficient reason M. Since you own that the Tenants Capite or else Commissioners in their stead have been the sole Representatives for the whole Kingdom of Scotland for above 200 years I doubt not but they were so long before that time since you confess you cannot shew any Law by which this ancient Custom came to be changed though I grant that the Statutes before K. David and Robert the 2 d are said to be made by the Communitas totius Regni yet you must not suppose that Constitution of the Kingdom altered when the Clerks altered their phrases in penning their Statutes and Records so that this Communitas was the Community of the Tenants in Capite only and not of the Freeholders or of the Citizens and Burgesses of the whole Kingdom since as for the former you cannot say that all the People in Scotland had ever a right to chuse the Commissioners for the Shires for then 't is most likely they would have kept to this day whereas we see that none but Tenants in Coplie have Votes at such Elections And as for Cities and Burroughs I cannot find nor do I believe you can shew me any instance of a City or Burrough-Town in Scotland that ever sent Deputies to Parliament but what held in Capite of the King For though there are at I said already besides the Royal Burghs two other sorts viz. Burroughs of Regality and Burroughs of Barony who hold of the King but not in Capite or else of some Bishop or Temporal Lord and though divers of these are considerable for Trade and Riches yet none of them send any Burgesses to Parliament so that though I confess there are three Estates in the Scotch Parliament called in the Statutes of K. David and Robert the 2 d the Treâ— Communitates Regni yet did these always consist of the Tenants in Capite only who therefore sit together and make but one Assembly Now that we may apply what hath been said to England I desire you to take notice that the Doctor and we that are of his opinion do not positively affirm that that the Commons of England were not at all represented before 49 Hen. 4. but that they were not represented in Parliament by Knights Citizens and Burgesses of their own choice but by the greater and lesser Tenants in Capite the greatest part of which I grant were not Lords and admit that I should grant you that some Cities and Burroughs sent Members to Parliament before the 49 th of Henry the Third yet were they only such as held in Capite and no other as the Doctor has very well observ'd in his Answer to Mr. P's argument from the Petition of the Town of St. Albans so that upon the whole matter there will be no more gain'd by you in this Controversie than that perhaps some Citizens and Burgesses appear'd in Parliament and constituted a third sort of men which you may call the Commons if you please though I cannot find they were so called till after the time of Edward the First but supposing this to be so it is very far from your Republican levelling opinion who do suppose that all the Freeholders of England had an ancient indisputable right of appearing in Parliament by reason of their propriety in Lands or other Estates whereas by our Hypothesis we suppose the great Council or Parliament to have anciently been the Kings Court-Baron consisting of his immediate Tenants call'd thither by him their Supreme Lord to advertise him of the Grievances of the Nation and to propose what new Laws were necessary for the publick good of the Commonweal and together with him to raise such publick Taxes both upon themselves and their Tenants as the necessities of the State requir'd yet notwithstanding there is a vast difference between your notion and mine concerning the Rights which such Tenants in Capite might claim of coming to Parliament since before King Iohn's Charter whereby
the sparing their Pains and Expences to have a Colloquy and Treatise with some of the same Members and therefore names the very Persons whom he commands should appear before him at Winchester to inâ—orm him and his Council of the best manner and form whereby the said Tax might be soonest and most conveniently levyed according to the intent of the said Grant So that nothing is more plain from the Writ it self than that this Assembly was no Parliament the proper Business of which is always to make Laws give Money or reâ—ress Grievances none of which â—ut it is apparent were the cause of this meeting To which these that were Summoned did not appear as Knights of the Shires their power being expired at the Dissolution of the Parliament but only 〈◊〉 so many particular private men who by reason of their Interest in the Country the King supposed could best inform him in the business above mentioned But that in the Reign of this King there were several Councils of this kind which tho no Parliaments as having but one Knight one Citizen and one Burgess and only making Temporary Constitutions concerning Trade and other things of less moment which were to be put in practice for a time till they could be confirmed by the next Parlâ—ament appears by the Ordinance or Statute of the Staple above mentioned And of these Mr. Pryn in the first part of his Parliamentary Register of Writs gives us divers Precedents which he rightly So that I hope I have now fairly run through and examined all the Precedents which you or your Doctor have been able to urge in this great Question and I think if you are aâ— candid and ingenuous as I take you to be you will not assert that any of them do amount to a proof either that the Commons were never Summoned from the â—9th of Henry III. to the 18th of Edward I. or that the Writs of Summons he there produces was to a Parliament and not to a great Council or that the King ever took upon him to appoint what number of Knights Citizens and Burgesses should come to Parliament or could nominate who they should be or could discharge whom he pleased from serving as Members therein All which your Doctor I think with greater confidence than right understanding of the true meaning of the ancient Writs and Records of Parliament hath undertaken to assert I beg your pardon for troubling you so long on these Heads since the length as well as diversity of Records you have now cited could not be answered in less compass M. I must confess you have given pretty plausible answers to most of the Authorities and Records I have now cited yet I cannot assent so far as to come over to your Opinion without a longer consideration of the strength of the answers you have now given me to the Doctors Authorities But in the mean time you would oblige me if you could give me the rest of your Arguments whereby you would undertake to prove that the Commons have been always an essential part of the Parliament ever since the Conquest for it seems to me by what I have read out of our ancient Historians that there is no express mention made of them by Name in any Historian or Record till the Reign of Edward I. and as for those Arguments Mr. P. hath given us to the contrary methinks the Doctor hath given satisfactory answers to them F. I think I have made it clear enough that the Commons of England were a constituent part of the Wittena Gâ—â—ote or Common Council of the Nation before your pretended Conquest and if it doth not appear that they were deprived of that right by the Normans entrance which you have not yet proved I think we may very well conclude that things continued in the same State as to the Fundamental Constitution of the Government as well after your Conquest as they did before Nor have you as I see proved any thing to the contrary since you confess that as much a Conquerour as King William was yet he altered nothing in those Fundamental Constitutions the most that you pretend he did being only in an alteration of the Persons who were the Legislators from English to French Men or Normans so that upon the whole matter I think there is no need of any new Arguments to confirm this truth since the Commons of England claiming a right by Prescription of having their Representatives in Parliament if you nor your Doctor nor none of those whom he follows can prove by sufficient Authorities when this began then I am sure you ought if you were of the Jury in thâ—s matter to find for the Tenants in Possession since that together with a constant usage time out of mind is as well by your Civil as our Common Law a sufficient Title to any Estate yet I doubt not but to shew you the next time we meet that the Doctor has noâ— given such satisâ—aâ—â—ory answers as you imagine to most of Mr. P's best Arguments proving this right of Prescription to have been the constant Opinion of an succeeding Ages to which I shall also add divers new Authorities as well from ancient Historians as Parliamentary Records and Statutes but since it is grown now very late I beg your pardon till another opportunity M. I thank you Sir for the pains you have taken to satisfie me in this greâ—t Question but pray come again within a Night or two that we may make an end of this weighty Controversie and then we may proceed to whaâ— we at first intended viz. whether the King can ever lawfully be resisted or whether by any Act he may Commit he can ever 〈◊〉 to be King F. I accept of your Proposal and shall wait of you again as you appoint but in the mean time pray consider well of the Authorities I have now urged and the Answers I have given to your Argument and then I hope there will be the less need of new ones M. I shall not fall to do it but in the mean time am your humble Servant F. And I am yours ADVERTISEMENT THE Publisher begs your Pardon for letting a Term pass without giving you this Dialogue which has so close a dependance on the Former but it has been his own unhappyness and not his faulâ— In the next place he hopes you will not take it ill of him that he has â—welled this to a bigger bulk than the other since the Author by reason of the weightiness as well as multiplicity of the Arguments could not make it 〈◊〉 wâ—thout doing a considerable injury to this Important Subject And to let you seâ— that I do not dissemble the Author was forced to reserâ—â— two or three Sheets more of the same Argument because he would not â—ver tire you for the next Discourse And the Author also desires the Learned Doctor Brady's pardon if through his own hast or the Inadvertency of the Compositor there have been some Omissions
translates the Clergy and Commons together with the Nobility being summoned And in 1 of Richard I. R. Hoveden also tells us of a great Council held at Pipewel Abby in Northamptonshire where the Archbishop of Canterbury produced a Charter of King William I. Coram Rege Vniversis Episcopis Clero Populo And an ancient Charter of primo of King Iohn now in the Archbishop of Canterbury's Library entituled Charta Moderationis seod magni sigilli recites the said King to have been Crowned Mediante tam Cleri quam Populi unanimi consensu savore and tho the rest of his Reign was Turbulent yet the Author of the Manuscript Eulogium quoted by Mr. Selden in his Titles of Honour mentions a great Council at London in the 16 th Year of King Iohn where the Archbishop of Canterbury was present Cum toto Clero tota secta Laicali i. e. says Dr. Heylin in the same place The Clergy of both Ranks and Orders with all the Laity called here Secta Laicalis and the Lords and Commons had then their places in Parliament and the Dr. proceeds thus and in possession of this Right the Clergy stood when Magna Charta was set forth by King Henry the 3 d. Wherein the Freedom Rights and Priviledges of the Church of England of which this evidently was one was Confirmed to them i. e. the whole Clergy in general I have here shewed you what Dr. Heylins sense was to let you see that a Person of great Learning and a high Churchman thought it no Heresie to be of our Opinion and to maintain as he does all along in that Chapter that the Inferior Clergy and the Commons were a Constituent Part of the Common Council or Parliament long before the 49 th of Henry 3 d and that the Inferior Clergy continued to be so till the Reign of Henry the 4 th at least But that their Consents was also anciently asked in the making of Laws we need go no farther than the Authority I have now given you from the Continuation of Florence of Worcester And farther that they were once a part of this great Council or Parliament besides the Testimony of the Modus tenendi Parliamentum who tho he be exploded as an ancient Author yet certainly is a good Witness for his own time viz. that of Edward the third where the Procuratores Cleri are reckoned among the Constituent Members or States of Parliament which is also confirmed by the two first Writs of Summons we have left us on the Rolls viz. the 23 d of Edward I. where in this Clause of Praemunâ—entes Clerum is particularly exprest which pray read from your Drs. Answer to Mr. P. Praemunientes Priorem Capitulum Ecclesiae vestrae Archidiaconos totumque Clerum vestrae Diocaesis facientes quod iidem Prior Archidiac in propriis Personis suis dictum Capitulum per duos Procuratores idoneos plenam sufficientem potestatem ab ipsis Capitulis Clero habentes una vobiscum intersint modis omnibus tunc ibidem ad tractandum ordinandum faciendum nobiscum cum coeteris Praelatis Proceribus aliis Incolis Regni nostri qualiter sit hujusae modi periculis obviandum viz. The dangers in the Writ mentioned to be threatned from France and that this was not the first time this Clause of Praemunientes was inserted in the Writs of Summons to Bishops might be easily proved had we all the Writs of Summons before the 23 d of Edward I. as well as since But we may hence observe that the Inferior Clergy are not onely summoned to treat with the Prelates but are as well as they here authorised to Treat Ordain and Act with them and the Lords and Knights Citizens and Burgesses for so your Dr. himself here in the Margin translates Aliis Incolis Regni and how they could thus Consult and Act with them if they had not beeâ— then as well as the Prelates a part of the same Body of the great Council or Parliament of the Kingdom I confess surpasses my Capacity to understand nor is this Clause found in this Writ alone but is also in most other Writs of the Bishops Summons to Parliament as low as our own times and that these Writs were not to Convocation but Parliament appears in Pryns Parliament Register plainly by the Letters of Procuration made by the Prior and Chapter of Bath to William Swynham and Iohn de Merston appointing them to appear and Act for them as their Lawful Procurators in the Parliament summoned Ann. Dom. 1299. being the 27 th of Edward I. which is of a different form from another Letter of Procuration of the same Prior and Chapter Ann. Dom. 1295. 231. Edward I. to their Procurators therein named to act for them in the Convocation then summoned at Westminster the same difference is also observed in all the Writs of Summons to Convocation different from those whereby the same Persons are summoned to Parliament the former being directed onely to the two Archbishops or their Vicar Generals to Summon all the Bishops Abbots Priors and Clergy of their respective Provinces without any particular Writs issued to any other Bishops Abbots Priors or Clergy-men as in Summons to great Councils or Parliaments wherein there are commonly particular Orders to the Bishop to warn all the Inferior Clergy in the manner but now mentioned as Mr. Pryn very well observes in his first part of his said Parliamentary Register where you may see there is a Writ of Summons to Parliament of the 31 st Edward 3 d to the Archbishop of Canterbury reciting that he intended a Parliament for divers arduous and urgent Businesses concerning Himself and Crown and the necessary Defence of the Kingdom and Church of England And then proceeds thus Et quia Negotia praedicta perquam Ardua sine Maxima deliberatione tam Praelatorum Cleri quam Magnatum Communitatis ejusdem Regni c. and therefore it behoved him to Summon the said Clergy Great Men and Commons and then requires him to summon all the Bishops Abbots and Deans and Priors and Arch-deacons to appear personally and the rest of the Clergy by two Procurators with full Power ad tractandum consulendum super praemissis una vobiscum ad consentiendum Illis quae tunc ibidem super dictis negotiis divina savente Clementia contigerit ordinari M. But what can you say to their being omitted to be summoâ—ed in divers Writs to Parliament as appears in Pryns Register you now cited and from whence himself has there made this Observation That there is no Clause of Praemunientes c. in any Writs of Summons to Councils of State but onely to Parliaments and that not always but at the Kings Pleasure Which shews plainly that tho they were sometimes summoned as a part yet were certainly no Essential Constituent part of this general Council since they were omitted in so many of them
became less necessary we must have recourse to the Bull of Popâ— Boniface the 8 th in the 24 th of Edward I. by which he forbad all the Clergy of the Western Church as well Superior as Inferior to give any more Taxes of Subsidies to Temporal Princes without his Holinesses Licence whereupon the King summoned the Bishops and Clergy to Parliament at St. Edmunds-Bury in the 24 th of â—is Reign where when they then reâ—used to grant him any supplies he then as all the Historians tell us held his Parliaments at Westminister Cum Baronibus suis excluso Clero without either Bishops Abbots or Inferior Clergy which was the first Precedent of this kind that we ever read of in this Parliament the King with the consent of the Lay Lords and Commons seized all the Temporalities of the Clergy as well Bishops as others and put them out of his Protection untill they were forced to redeem themselves by paying a 5 th part of their Moveables for doing of which they were afterward forced to procure the Popes Absolutions some of which Mr. Pryn has given us in this said Register and yet for all this the Pope maintain'd this Power over the Clergy for the future so that they could not be taxed without his express License which since it could not always be obtained no wonder if our Kings did more frequently omit summoning any more than the Bishops and Abbots who were bound to appear in Parliament by their Tenures and so left out all the Inferior Clergy as useless the main business and cause of their summoning to Parliament viz. giving of Money being now taken away by the Popes usurped Power tho whenever his Licence was obtain'd yet that their own express Consents in Parliaments or Convocation was necessary appears by that Passage in the Annals of Burton in Anno 1255. already cited when the Inferior Clergy being extravagantly opprest between the Pope and King they sent express Messengers when they met in Parliament who were to set forth their greivances to his Holiness I have given you as good an account as I am able how the Inferior Clergy which as well as the Superior did once make a Constituent part of our great Councils before the Conquest nay for above 200 Years after did at last cease to be so partly by the prevailing Power of the Bishops partly by the Usurpation of the Pope tho chiefly by their own silence and consent not complaining of their want of Summons to Parliament as long as they could 'scape scot free and all the rest of the Kingdom pay Taxes notwithstanding which the clause of their Acting and Consulting with all the rest of the Estates in Parliament still remaining in the Writs of Summons is a sufficient Monument to Posterity to prove their ancient Right And the Clergy of the lower House of Convocation was so sensible of this that among certain Petitions by them made to Dr. Cranmer then Archbishop of Canterbury and the rest of the Prelates in the higher House of Convocation in the Reign of King Edward the 6th the 2 d Article of which runs thus Also that according to the ancient Custom of the Realm and the Tenor of the Kings Writ for summoning of the Parliament which now and ever have been directed to the Bishop of every Diocess the Clergy of the lower House of Convocation may be adjoyned and associate with the lower House of Parliament or else that all such Statutes and Ordinances as shall be made concerning all matters of Religion and causes Ecclesiastical may not pass without the sight and assent of the Clergy and there is in the same place a second Petition as also a Paper of Reasons offered to Queen Elizabeth and after to King Iames to the same effect And lastly to shew you that the Government of the Church and State of Scotland was anciently all one and the same in respect of their Clergy as well as Laity with that of England in their great Councils or Parliaments appears by the Agreement between King Edward the â— and the States of Scotland concerning the Marriage of his Son Prince Edward with the Princess of Norway then Heiress of Scotland which is publisht at large in Mr. Pryns 1 st Vol. of the Popes Usurpation where you will find this Agreement to have been made between the said King Edward ex una parte venerabiles Patres custodes scil Scotiae Episcopos Abbates totum Clerum nobiles viros Comites Barones totamque communitatem Regni Scotiae ex altera de matrimonio contrabendo c. From whence you may observe that as the same stile was observed there in the Titles of their general Councils or Parliaments as with us and as the Inferior Clergy there put after the Bishops and Abbots did not hold in Capite but frank Abnoign in that Kingdom So likewise by the same Analogy between the lowest Temporal State with the Spiritual the Commonalty of Scotland here stiled Communitas Scotiae could not then consist onely of Tenants in Capite as your Dr. and those of this Opinion suppose it did M. I must confess you have shewn me more for the Inferior Clergies being once a Constituent part of the Parliament than ever I knew before I will take time farther to consider them but that the word Populus must needs then take in any more than the Tenants in Capite I much doubt since the other word Plebs which you so much insist upon from the old Book of Ely signifies no more than Populus which as the Dr. shews us in his Glossary In it self signifies neither Great nor little People but only Laity and therefore as it is used and restrained signifies either the Lay Plebs or the Lay Magnates as I can shew you by several Examples as particularly out of Mat. Westminster Ann. Dom. 1295. 23 d Edward I. where speaking how the Popes Legates were received in England who came to make up the differences between England and France He thus relates their Reception Quos in Regnâ— Angliae applicatos excepit Plebs debito honore accita per Regem apud Westmonasterium Primatum Optimatum suorum Caterva Here the Plebs were the Kings Great or Chief Men that is the Earls and Barons which he had called to Westminster who so honourably received these two Cardinals So likewise the same Author Ann. Dom. 1297. 25. Edward I. The King and Barons being at some difference about the Observation of Magna Charta and the Charter of Forrest speaking how the King declared that he intended to observe those Charters after this he relateâ— that the King thereupon required to be given him by the Incolae or Inhabitants the eighth Penny and says thus Articulos in praedictis Chartis Contentos innovari insuper observari Rex Mandavit exigendo pro hac Concessione ab Incolis Octavum denarium sibi dari qui mox Concessus est a Plebe in sua
find them And for the truth of this Appeal to Mr. Petyt who assures me he found the Returns of the Knights Citizens and Burgesses to Parliament of the 23d of Ed. I. in an old Chest in the Exchequer among other things of a quite different nature which Mr. Prin never saw or else certainly he would have given in the Returns to this Parliament as well as he does the Writs of Summons to it and yet that even these were not always entred upon the Clause-Rolls but lay scattered up and down the Chappel of the White-Tower Mr. Prin himself confesses in his Introduction to his third part of his Parliamentary Register that he found no less than ninety five loose Original Writs for Elections and Returns of Knights Citizens and Burgesses to Parliaments and great Councils in the Reign of Ed. 3. which were never entred on the Clause-Rolls and lay there until he found them buried in dust and rubbish as well as oblivion in a confus'd Chaos scattered from each other and intermixed with many hundred thousands of other Writs and Records of various kinds Now what if these Writs and Returns had never been found so that by his own shewing it is no ways certain that there were never any such Writs issued or Returns made for the Counties Cities and Burroughs than those he had before sound and published and he himself also here confesses that by reason of the negligence of Record-keepers there are more Writs and Returns of Elections extant from some Counties than for others tho' all had the like Writs sent them And if this was so as to the Counties it was likewise so as to the Cities and Burroughs the returns of which are commonly endorsed on the back of the Precepts and where they were not so endorsed were much more likely to be lost and farther that the Clause Rolls are no exact Rule for the Summons of Knights or Barons of the Cinque Ports and Burgesses appears by Mr. Prins own shewing viz. That there are no Writs of Summons to the Cinque Ports entred on the Clause Rolls for most part of the Years of Edward 1 2 and 3d. in the List he has here given us of those Years now if so many considerable Burroughs as the Cinque Burroughs could be thus omitted what can we expect for most of the smaller and most inconsiderable Burroughs in England To conclude this Head if by Mr. Prins own Consession the Entries of Elections and Returns upon the Clause Rolls are so very imperfect and that the loose Bundles of Summons Precepts and Returns are far more imperfect so many of them being lost pray tell me how can Mr. Prin or any one else can frame any Argument from these that remain that there were never no more Precepts and Returns from any Burroughs than those he has published us But to come to his third Rank of Burroughs viz. such as for whom their appear no Precepts nor Returns till the Reigns of Edward the 2d Edward the 3d. and other succeeding Kings all which Burroughs he therefore supposes to have been all newly made in those Kings Reigns because there are no Precepts or Returns from them sooner it must there follow that the Sheriffs made all these Burroughs at their Pleasure but Mr. Prin has done well here to adde that they never elected or returned any before for ought he can find to the contrary since it might appear to the contrary for ought he could tell if the returns of the Sheriffs in the Reigns of the former Kings had not been so many of them lost since he here confesses there are no Original Writs and Returns for the Cinque Ports to be found before the Reign of Edward the 3d who yet sent Members to all Parliaments in former King Reigns or how can he tell but divers of these Towns might have been created Burroughs by the Kings special Writs or Charters tho now lost or perhaps unknown to this Author who could not be supposed to understand the Original of all the Burroughs in England their sending Members to Parliament but that he is certainly mistaken in making several Burroughs to have been but new because no Returns are to be found from them before the Reign of Edward the 2d may appear by these for Example First Litchfield which was long before that time a Bishops See and sure then if not a City yet an ancient and considerable Burrough Secondly Old Sarum which was in the Reign of Henry the 3d a Bishops See till it was removed and so consequently by your Rule New Sarum ought to pass for a City and if not was certainly a very ancient Burrough and as such sends Burgesses by Prescription to this day tho the Town be quite destroyed the like I may say of Gatton in Surrey which tho Mr. Prin will have but to be a new Burrough because no Returns appears to have been made for it by the Sheriffs till the Reigns of Henry the 6th yet this is no certain Rule since it was a very old Burrough and had anciently been so Considerable as that we find several great Councils held at it in the Saxon Times tho it be certainly now reduced to a small Hamlet of half a score Houses now I will leave it to your self to judge whether the Sheriff would have pitcht upon so small and inconsiderable a place as this to make a Burrough of had it never sent any Burgesses to Parliament before that Time And I doubt not but those Gentlemen that know the rest of the Towns he has there mentioned with Gatton could say as much for the Antiquity as Burroughs if you please to inquire about them But I have held you too long upon this Head and therefore shall proceed to those two that remains viz. The Ambition of Neighbouring Gentlemen to make as many Burroughs as they could that they might be chosen at them and the desire of such Towns to be made Burroughs to receive the advantages of the Money spent among them at such Elections the first of these in the Times we are now speaking of could be no cause of their sending Members to Parliament since it is certain that before the Reign of Henry the 8th none were Elected for any City or Town but Persons free of or actually Resident in such Cities and Burroughs as appears by the Statute of 1 Henry the 5th which does but recite and confirm this ancient Custom so that this Trick of chusing Members for Beeâ— and Ale has been introduced but of late Ages viz. Since the time of Henry the 8th when Gentlemen began first to be chosen for Cities and Burroughs and if that is so the last cause falls off it self viz. the desire of such small Towns to Elect since if they could get nothing but rather loose by their sending Burgesses to Parliament and paying them their Wages as they must do as long as they chose from among themselves it is unreasonable to believe
that Charter being lost they desire a Confirmation of it from the King whereupon He by this Commission directs a Writ of Enquiry to several Gentlemen and others therein mentioned to enquire if the said Burgesses had enjoyed all those Liberties so granted by the said Charter of King Athelstan or not which would have been ridiculous if the King and Council had been satisfied that no Cities and Burroughâ— sent any Members to Parliament under the Saxon Kings and not before the 49th of Henry the Third and this Authority is the more remarkable because Barâ—staple is one of Mr. Prin's Modern Burroughs for which he can find no Precepts or Returns earlier than the 26th of Edward the Third tho' no doubt as appears by this their Petition in the 17th of this King it had sent Burgesses to Parliament many Ages before tho' the Precepts and Returns upon them be all lost And that not only the Cities and Burroughs do thus claim by prescription but that the Knights of Shires have always claimed the same Priviledge may appear by another Petition of the Commons House extant on the Parliament-Rolls of the 51th of Edward the Third which I shall contract and put into English out of French reciting thus because of Common Right in the Roll de Commune dâ—oit of the Realm there are and shall be Elected two from every County of England to come to Parliament for the Commune of the said Counties And also the Prelates Dukes Barons Counts Barons and such as hold by Barony which are and shall be summoned by Writs to come to Parliament except the Cities and Burroughs who ought to Elect from among themselves such as ought to answer for them Whence we may conclude that the Commons then claimed to come to Parliament of Common Right that is by Common Law or general Custom of the Realm time out of mind as much as the Bishops Abbots and great Lords 2. That neither the Bishops Lords nor Tenants in Capite had any Authority to impose Taxes or make Laws for the Commons of the Counties or these for the Cities and Burroughs without their consents because they had each of them Representatives of their own Order to answer for them in Parliament M. I must confess this would have been absolutely convincing could we have seen this Charter of K. Athelstans but since the Towns-men of Barnstaple do only in their Petition among others set forth this priviledge of sending Burgesses to Parliament now who can tell whether there was any such thing in their Charter or not since they confess they had lost it Or granting it was as they set forth yet is will sufficiently evince that the right of Cities and Burroughs to send their Representatives to Parliaments was not as you suppose as ancient as the Government but had its Original from the Grants and Charters of former Kings F. As to these Objections we can have but all the proof that this Subject is capable of at such a distance of time but if I were a Jury-man in this matter I should rather believe that the Town of Barnstaple had such Charter not long before they made this Petition to King Edward the Third and that there was such Clause therein as they here set forth than that these Towns-men should be so impudent as to desire a new Charter of Confirmation from him of all their priviledges of which this of Electing Burgesses was one if there had never been any such Clause in it at all But as for the other Objection that if it were so then it appears that all the right of Cities and Burroughs sending Members to Parliament is derived from the Grants and Charters of former Kings it is very fallacious as you will find if you consider and compare the Ancient right of the Bishops and Abbots as also of all the Temporal Nobility to come to the great Council of the Kingdom which as to the first of them I proved to be as Ancient as Christianity it self among the English Saxons And as for the Priesthood and Nobility in general to have been as old as the Institution of the Government it self Now tho' you grant that long before the Conquest our Kings had the nomination of Bishops and Abbots and also the making of Aldermen Earls and Thanes who made the Temporal Nobility in those great Councils will it therefore follow that because our Kings were thus entrusted by the people with this prerogative of naming and investing Bishops and Abbots per Annulum Baculum and also of creating those great Men now mentioned that therefore all the right either Order had to appear at those Councils not only proceeded from but depended wholly on the King's good will and pleasure and that he could have chosen whether he would have named any Bishops or Abbots to vacant Sees and Abbeys or made any Aldermen Earls and Thanes or not but have changed the whole frame of the Government into an Absolute Despotick Monarchy by destroying the great Council of the Kingdom whether you believe the Clergy Nobility and People would have suffered any of those Kings to have made such an Innovation Apply this to the right of the most of Ancient Cities and Burroughs in England and see if it do not exactly agree with this parallel Case of the Bishops Abbots and Temporal Nobility since as there were Priests and Nobles who from the very first Institution of our great Councils did not owe their Original to the King but brought it with them out of Germany and to whose Suffrages the first Saxon Kings owed their Elections so no doubâ— were there divers Cities and Towns in England so considerable from the time of the Expulsion of the Britains that it was thought â—it to pitch upon them as most able to send Representatives to the great Councils of the Nation that so they might imitate their old Government in their own Countrey in which the great Cities and Towns had always a considerable share as they have in the German Diets to this day tho' the King might then as he is now be entrusted with the Prerogative of making new Cities and Burroughs with like priviledge with the old ones tho' this was but rarely practised till the Reign of King Iames I. The two Vniversities being some of the first Corporations on which he conferred this priviledge by Charter of Electing and sending two Burgesses to Parliament which power has I confess been exercised even to a grievance in the Reigns of his Son and Grand-sons so that it were to be wisht that there was a Law passed that no New City or Burrough should be made for the future without an express Act of Parliament Now I would very gladly hear what you can further say to so many weighty Authorities which I have now given you for evident it is that if they are compared and considered in series of time that neither Edw. 2d or 3d nor their Judges or Learned Council no nor the Parliaments
The King willeth that Right be done according to the Statuteâ— and Customs of the Realm c. Which not satisfying as too doubtful and general the King at last gave this full and clear answer in legal â—orm Soit Droit fait commâ— il est desirè The Second point in relation to our Civil Properties is this That no Tax Taillage or Aid shall be laid or levy'd by the King without the consent of the Arch-Bishops Bishops Earls Barons Knights Burgesses and whole Commonalty of the Realm in Parliament this was first of all granted by the 56th Law of William the First which I have already cited as also more particularly forbid by the Statute de Tallagio non concedendo in the 34th of Edward the First which was but a revival or explanation of the former Law of William the First and also by the 25th of Edward the Third whereby it is Enacted That no person should be compelled to make any Loans to the King against his will because they are against Reason and the Franchise of the Land and it is also provided that none should be charged by any Charge or Imposition called a Benevolence nor by such like Charge which is also more fully set forth in the said Petition of Right to have been lately executed by certain Commissioners as also that divers other Charges have been layed and levyed by Lords-Lieutenants Deputy-Lieutenants c. contrary to the Laws and free Customs of the Realm The Third Point declared against in this Petition of Right is against Quartering of Soldiers tho' they pay for their Quartors contrary to the Will of the Owners and Inhabitants much more when they did take free Quarter in time of Peace as hath been too much practised of late So that by the Common Law of England not only Private-houses but Inns and Ale-houses are not compellable to Quarter Soldiers unless they will so much was this Nation anciently a Stranger to standing Armies and Quartering of Soldiers in time of Peace that there was no Provision made for it either at Common-Law or by any Statute that I know of 4thly That no new Law can be made without an express Act of Parliament or the joynt-consent of the King Lords and Commons and therefore that Parliaments ought to be duely summon'd and held for the good and safety of the Kingdom by Common as well as Statute Law once every year and according to more modern Statutes once in three years at least or whenever there is a just and necessary occasion for it And for proof of this I need go no farther than the old English Saxon Law which ordains that the great Council or Mycel Synod should be held twice in the year as the ancient Mirrour of Justices recites and the constant Custome long after the Conquest in which there never passed a year without a general Council of the whole Kingdom and when this came by degrees to be discontinued then were those Statutes of Edward the Third and Richard the Second made whereby it was enacted that a Parliament should be held every year and oftner if there were occasion 5thly Since the Legislative Power of Parliaments is the very Soul and Essence of the Government the Election of Knights Citizens and Burgesses to sit and serve in Parliament ought to be free and all the Members of Parliament who have places there either by Patents or Writs of Summons as the Lords or else by Election or Writs as the Bishops ought to be present and there to have freedom of Speech and Votes without any Guards to over-awe or terrifie them and none to be forced threatned bribed or tamper'd with to give their Votes contrary to their Consciences either by the King or any of his Ministers This is ordain'd by the Stat. of Westm. 1 Chap. 5. whereby it is expresly provided that all Elections ought to be free which Sir Edward Cook in his Notes upon this Statute extends to Elections of Knights of Shires as well as other Elections since I have sufficiently proved that the Commons elected Members to Parliament when this Statute was made and that this was the ancient Law of England you may see in the Rolls of Parliament 1 Hen. 4. wherein it is alledged as by the Parliament as one of the Articles against Richard the Second in these words Item licet de stato consuttudine Regni sui in Convocatione enjuslibet Parliamenti Populus suus in singulis Comitatibus Regni debeat esse liber ad eligendum deputandum Milites pro hujusmodi Comitatibus ad inter â—ssendum Parliamentis ad exponendum corum gravamina ad prosequendum pro remediis superinde prout videntur expedire Tamen praefatus Rex ut in Parliamentis suis liberius consequi valeat suae temerariae voluntatis effectum direxit mandata sua frequentius Vicecomitibus ejus ut certas Personas per ipsum Regem nominatas ut milites Câ—mitatuum venirâ— saciant ad Parliamenta sua quos quidem Milites eidem Regi faventes inducâ—re poterat prout frequentius fecit quandoque pro minas varias terrores quandoque per munera ad consentiendum illis quâ—a Regno praedicto prâ—ejudicialia fuerant Populo quam plurimum onerosa c. So that you here may see that it was then judged by the whole Parliament to be a brench of one of the Fundamental Liberties of the Nation for the King to make false returns to be made of Parliament-Men as also to corrupt or over-awe their Votes either by Promises or Threatâ—ings But to conclude that we have such things as Fundamental Laws and Priviledges I shall go no farther than King Iames I. his Speech confirmed by an Act of Parliament of the First year of his Reign wherein it is recited That the King hath vouchsafed to express many ways how far it is and ever shall be from his royal and sincere care and affection to the Subjects of England to alter or innovate the Fundamental Laws Priviledges and good Customs of this Kingdom whereby not only his royal Authority but the Peoples Security of Lands Livings and Priviledges both in general and particular are preserved and maintained and by the abolishing or alteration of which it is impossible but that present Confusion will fall upon the whole State and â—rame of this Realm So that if this Judgment of the King and both Houses of Parliament was true sure we may justly suppose that things of such vast concernment deserve our contending for by all means possible and lawful to preserve them for what the Nobles of the Land upon occasion once said with one Voice in full Parliament every Free-born Subject of England may as well say at this day Nolumus Leges Angliae mutari which is a Maxim that ought to be imprinted upon the Hearts of all true Englishmen who as my Lord Bacon very well observes take themselves to have as good Title to their Laws as to the
dare not insist upon it so that I do not now wonder that the Gentlemen of your Principles are so violent for this right of Resistance since it is only in order to introduce your Darling Doctrine of the Peoples Power of deposing or laying aside their Kings as you term it whenever they shall judge they turn Tyrants and have thereby forfeited their Crowns which is a most dangerous Doctrine and if it should take effect the Princes of the World had need look about them since the People may make up such a pretence for ought I know even against the very best of them that are now Regnant in Europe But sure absolute Monarchs ought not to be outted of their Crowns by strained consequences or forced interpretations of Laws therefore pray shew me this original Contract you so much insist upon and those conditions on which you suppose our limited Monarchs hold their Crowns I confess if you could shew me any clause in our Laws or ancient forms of the Coronation of our Kings as there was at the Coronation of the Kings of Arragon wherein the chief Justice on the behalf of the People plainly told him that they made him King upon this Condition that they would have more Power than himself or that in the conferring of the Regal Power it was expresly reserved in what cases it should be lawful for them to resist the King or to absolve his Subjects from their Allegiance as Bodin tells us it was expresly inserted in the Coronation Oath of Henry II. Duke of Anjou afterwards King of France when he was made King of Poland that if he broke his Oath and violated the Laws and Priviledges of the Clergy and Nobility of Poland then the People of that Kingdom should not be obliged to render him any obedience I grant then that the Liberties of such a People might be preserved but the King that took upon him the Regal Power upon such conditions would not be properly a Monarch but liable to the Judgment of his People whenever he really did or that they imagined he had thus violated their Laws since the Supream Authority would still reside in them But indeed the Case God be thanked is much otherwise with our Monarchs who are Kings by right of Inheritance whether ever they take any Coronation Oath or not as K. Edward the first was whilst he was in the Holy Land almost two years before he could come over to be Crown'd and K. Henry the sixth was not Crowned till the eighth year of his Reign as well as of his Age. But that our Kings are so by Inheritance and by the Laws of God and Man previous to any Coronation Oath or consent of the People is expresly declared by the Act of recognition of K. Iames I. and that Treason could be commited against him before he was Crowned Sir Edward Cooke tells us in Calvin's Case was the opinion of all the Judges of England in the Plot wherein Watson and Clerk the Priests were Executed and Sir Walter Rawleigh condemned So that what you have now urged from Reason or Authority of our Antient Lawyers is either quite mistaken or else does not reach the matter in hand that it cannot be made out from reason is plain since your whole Argument is built upon this false foundation that it is lawful in some cases to resist the King in case of a notorious breach of the fundamental Laws and therefore it is necessary also to declare him to have forfeited his Crown if he persist in this violation whereas I deny your Assumption for I hold it utterly unlawful to resist on any pretence or for any cause whatsoever and therefore it is impossible for the King who as I said but now is an absolute unconditioned Monarch to forfeit his Crown for any such violation of your Original Contracts or Fundamental Laws of Government so that let me tell you that the citations you have brought out of History as also Bracton and Fleta do not prove either the one or the other of these for first as to the clause in King Iohn's Charter concerning resistance and the Barons having a Power thereby to constrain the King to amend his violations of it by making War upon him and that they should not return to their former Allegiance till all was redressed make the most of it it could be no more than a particular concession for himself alone and was not intended to reach his Successours who are not at all mentioned in this Clause and that it was never intended to reach them may further appear because that this clause of resistance is omitted out of all the subsequent great Charters that were granted by Henry the III. or his Son Edward the I. and instead of this it was thought a sufficient security upon the last confirmation of these Charters in the 37 year of King Henry III. for the King Bishops Earls and Barons to agree that the Arch-bishop of Canterbury and all the rest of the Bishops should declare all those that wilfully transgressed or infringed the great Charters in any point excommunicated ipso facto not excepting the King himself according to the form of it which you will find in Mat. Paris and other Writers of this Transaction But for the places you have cited out of Bracton there is none of them reach the point in question for as to the first non est Rex ubi dominatur voluntas non Rex the meaning of it is not that he is no King but that he does not act as a King but a Tyrant when he thus governs by his meer Will and not by Law and to the same effect is the next passage Rex est dum bene regit Tyrannus dum Populum fibi tradi um violenta opprimit dominatione all which we readily grant yet since he is still an absolute Monarch all Writers hold that his governing without or against Law cannot give the subjects a power to resist him much less can it be construed as a renunciation or forfeiture of his imperial Power and therefore tho' it is true that as Bracton and Fleta tell us whilst he thus acts he does not act as God's Lieutenant but the Devils Minister yet does it not follow that we may therefore resist him with carnal Weapons or force since we cannot so resist the Devil himself and tho' he may in this matter of breach of the Laws which he has sworn to observe act as the Devils Minister yet notwithstanding in all other points of Government as in the Punishment of Robbers and other notorious offenders and in the due Administration of Justice between Man and Man he still acts as Gods Lieutenant and it is much better that we should have some civil Government tho' mixt with Tyranny and oppression than that we should fall into all the mischiefs and confusions of a Civil War nay that Anarchy too which has been often produced by it and tho' I confess the last place you
of this necessity as certainly he is in the intervals of Parliament it can never be supposed that the first Prince or his Successors that first parted with these Priviledges to the People ever intended to be so straitly tied to them as that in no case whatever tho' never so pressing they should not depart from them much less that he should forfeit his Crown if he should wholly break them nay should persist so to do and resolve to turn this limited into an absolute despotick Monarchy since the observation of these Laws being but concessions of his own or his Predecessors can never be looked upon as conditions of his holding the Crown nor of the Subjects Allegiance to it there being as you your self confess no such clause exprest in either part neither in the Kings Coronation Oath nor yet in their Allegiance to him as you your self cannot but acknowledge and tho' it is true the King swears at his Coronation to keep and maintain the Laws yet Grotius tells us Lib. 1. cap. 3. that an Empire does not cease to be Absolute altho' he who is to rule promise some things to God or to his Subjects even such which may appertain to the manner of the Empire and that not only concerning the observation of the natural or divine Law but of certain Rules to which without a promise he were not obliged So that in all Promises of this kind the manner of the obligation is not reciprocal or of the same sort on both sides as for example it is only moral in respect of the King and it is lefâ— wholly to God to judge between the King and his Subjects and to punish him when he breaks his part but to the King as God's Lieutenant on Earth it belongs not only to judge of his Subjects breach of their Oath and Contract but also to punish them for so doing and compel them to the performance of it and of this Judgment are all the Modern Civilians as for Bodin I have given you his opinion in the chapter I last cited concerning this matter and he as well as Grotius is clearly of opinion that Absolute Monarchs such as he reckons the King of England to be are not to be called in question or destroyed let their breach of Laws and Tyranny be never so notorious much less can they forfeit their Royal Dignity for such male-administration and tho' Grotius is of opinion that in cases of great and evident danger of Life Subjects may have a right of resistance against absolute Princes and those commissioned by them what is this to the case in hand viz. a resistance against an Absolute Monarch for violation of those Priviledges and Liberties that were granted by himself or his Ancestors and without which Subjects may very well live and subsist as we see they do under the most Absolute Despotick Monarchies where they enjoy no such thing tho' perhaps they do not live so well and freely as we do nay Pufendorf the Author you so much make use of in his seventh Book will not allow Subjects to take up Arms or resist Absolute Princes nor for too great cruelty in punishment nor for imposing too immoderate Taxes since the presumption of Justice and necessity for the doing of these things is always on the Princes side nay if his Promises are not kept or priviledges formerly granted are taken away if the Prince be Absolute and will pretend any fault necessity or remarkable benefit thereby to the common-wealth he shall be deemed to have acted by a right of which the faculty of judging is wholly wanting to the Subjects since all Priviledges have this exception unless the welfare or necessity of the Common weal forbid them to be observed F. Since your last Discourse consists of two parts matter of Fact and matter of right deducible from that fact I shall speak to each of them in order first as to the matter of Fact it is a great mistake in you and Dr. Brady to maintain that K. William I. was really a Conqueror and by his Sword without any other Title obtain'd such an entire Victory over K. Harold and the whole English Nation as gave him an Hereditary Right for himself and his Heirs to the Absolute Allegiance of the whole English Nation without any reserve or conditions whatever so that all our Ancient Liberties and Priviledges being thereby lost and forfeited this Nation can claim nothing of that kind but from the grants and concessions of that King or his Successors every one of which Propositions contain so many notorious mistakes in matter of Fact for in the first place King William never claim'd the Crown by Conquest but by the adoption and Testament of King Edward the Confessor and I desie you to shew me any Ancient Law or Charter either of his own or any of his immediate descendants wherein he is stiled Conqueror 't is true in his Charter to the Abby of Westminster he says in one that by the Edge of the Sword he obtain'd the Kingdom by the Conquest of Harold and his accomplices yet does not found his Right in that Victory alone but on the donation of King Edward his Cozen the words are remarkable in ore gladii adeptus sum Regnum Anglorum devicto Haraldo Rege cum suis complicibus qui mihi Regnum divinâ providentiâ destinatum beneficio concessionis Domini Cognati mei gloriosi Regis Edwardi concessum conati sunt auferre And this donation he calls an Hereditary Right in divers other Charters as particularly in one also recorded by inspeximinus beginning thus In nomine Patris Filii spiritus sancti Amâ—n Ego Willielâ—us Rex Anglorum haereditatio Iure factus So likewise his Son K. Henry I. in his Charter to the Abbot of Ely creating him a Bishop calls himself the Son of William the Great not the Conqueror Qui Edwardo Regi Haereditario jure successit in Regnum And in vertue of this Donation he was after his Victory against Harold by publick and full consent of the whole Nation or People of England as also of the Normans he brought with him Elected and Crowned King and at his Coronation took the same Oath at the High-Altar at Westminster which his Predecessors the Saxon Kings had taken before him with this one Clause farther which was very necessary to be done at that time viz. quod aquo Iure Anglos Francos tractaâ—t so that let his Title by Conquest have been what it would it was either by a just right of War to recover his due or by none at all if the former he could only succeed to such Rights as K. Edward the Confessor before exercised and enjoyed since he came hither only to take the Crown that was so bequeathed to him and to hold it under that Title but if he had no Title at all but his Sword he then could obtain no just right to the Crown of England either for himself or
our ancient Tenures and manner of holding and enjoying our Lands and Estates as will appear by comparing our Antient Tenures with theirs F. I shall not deny but that a great part of the matter of Fact is true as you have now put it yet tho' I grant that the Bishop Abbots Chancellors Chief Justices and other great Officers of the Crown were all or the greatest part of them Normans during the Reigns of the two first Kings of the Norman Race it doâ—s not therefore follow that these Men must have made a change in the very substance of our Laws tho' in matters of form of pleading or judicial proceedings they might have introduced great alterations for as to the Civil or Municipal Laws of this Kingdom concerning the Descent and Conveyance of Estates they continued the same after the coming in of the Normans and Lands held by Knights Service descended to the Eldest Son and Lands in free Soccage and Gavel-kind to all the Sons alike so likewise there were Estates In tail and Fee simple as now and there were also the like Customs of the Courtesie of England Burrough English c. as there are also at this day as I can prove to you by several passages out of our English Saxon Laws so likewise for Conveyance of Estates those of the better sort of People called Bookland were conveyed by Deeds with Livery and Seisin either with or without warranty as they are now but that which was called Folâ—land held by the meaner sort were only by Livery and Seisin without any Writing And tho' I grant that the custom of sealing of Deeds is derived from the Normans yet that is an alteration only in matter of forn and as for Goods and Money they were bequeathable by a Man's last Will as well after as before your Conquest And if you can have the opportunity to peruse a Manuscript Treatise of Sir Roger Owen's upon this Subject you will find it there sufficiently proved That Livery of Seisin Licenses or Fines for Alienation Daughters to Inherit Trials by Juries Abjurations Utlaries Coroners disposing of Lands by Will Escheats Gaols Writs Wrecks Warranties Felons Goods and many other parts of our Law were here in being long before the time of King William this being so as to the common Law let us see what alterations there were in the Criminal or Crown part of the Law first as to Treason and wilful Murther they were punished with Death in the Saxon times as well as after as were also Robery and Burglary in the night time but as for lesser ofâ—ences such as Batteries Maims Robberies and other breaches of the Peace they were punished by Fine as well before the Conquest as after but as for the Law of Englisherie which was that if a Man were found Murthered it should be presumed he was an Alien or Frenchman and the Town thereupon where the Body was found was to be fined unless Englisherie was proved i. e. that the person was an Englishman this Custom tho' it lasted to the Reign of Edward the Third when it was taken away by a Statute made on purpose tho it may seem a badge of the Norman Conquest yet was it indeed a Law introduced by King Knute in behalf of his Danes who being often found killed and none could tell by whom he obtained this Law to be made to prevent it as you will see at large in Bracton and the Mirrour of Justices But as for trial of all offences it was either by Juries Fire or Water ordinal by Dewel or Battle or else by Witnesses or Compurgators upon Oath as well before as after King William's entrance so that I can find nothing material as to the alterations of the Laws either in matters Criminal or Civil from what they were in the Saxons time and this being so it is easily answered how the Judges and Officers might be Normans and yet the Laws continue English still for first it is certain that for four or five years in the beginning of K. William's Reign he made no great alteration in the Judges and other great Officers of the Kingdom and by that time those whom he was afterwards pleased to imploy in the Rooms of such as either died or were turned out might very well come to understand the Laws of England as far as they distered from those of Normandy which was not in many particulars since as your self very well observed the Saxons and Normans being both Northern People had many of the same Laws and Customs common to both and the same persons might in three or four years time have very well learned English enough to have under stood the Evidence that the Witnesses gave before them without any Interpreter But say you all the Pleadings and Judgments were in French and therefore the Lawyers and Pleaders must be Frenchmen which is likewise a false consequence for Pray tell me why might not the English Lawyers have learnt French enough to Plead in three or four years time which must necessarily be required before so great an alteration could be made or Lawyers enough he brought out of Normandy and sufficiently instructed in our Laws and Customs could be fitted for their employments again supposing all Pleadings and other Proceedings to have been in French it does not follow that this practice could have obtained in all the Courts of England for tho' I grant that in the Kings Court at Westminster where the Judges as you say were for the most part Frenchmen or Normans yet this could only have some effect either in that great Court or Curia Regis where the King often sat in person together with his Chief Justiciary and other Justices or else in the Court of Common Pleas which followed the Kings Court till it was ordained otherwise by Magna Charta or else the Court of Exchequer where in those days only matters concerning the Kings Debts Lands and Revenues were chiefly heard and dispatched but as for the Court of Chancery it was not then used as a Court of Equity nor long after till the Reign of Henry the IV V and VI. when it arose by degrees as you will find in Sir William Dugdale's Origines Iuridiciales So that granting all the proceedings in these Supream Courts to have been in French because the King himself who sat there with the chief Justice and the rest of the Judges were either Normans or Frenchmen yet was this of no great importance in comparison of the Suits and Causes which were first begun and try'd in the Inferiour Courts in the Country before ever they could be brought up to London by Writ of Errour or Appeal which could only be in Causes of great Moment or between the Kings Tenants in Capite So that now to let you see that what say I say is true we will Survey all the inferiour Courâ—s of that time beginning with the lowest and going up to the highest of them The first Court we find of this kind
Tenants by Knights service as also those aids they were to pay the King or any other Lord they held of towards making his eldest Son a Knight and Marrying his eldest Daughter were in use in England before the Conqueror came over But to observe your commands I shall now proceed to shew that by the Conquest the English for a time lost all their ancient Rights and Priviledges till they again obtained them either by their mixing with the Normans so that all distinction between them and the English were taken away or else they were restored by the Charters of K. Henry the first K. Iohn and K. Henry the third I shall therefore divide the priviledges of Englishmen into these three heads first Either such as concerned their Offices or Dignities Or secondly Such as concerned their Estates Or lastly Such as concerned the Tryal for their lives in every one of which if I can prove the English Natives as well of the Clergy and Nobility suffered confideracie lesses and abridgments of their ancient 〈…〉 liberties which they formerly enjoyed I think I shall sufficiently prove the point in hand As to the first head Ingâ—ph telâ—s us that the English were so hated by the Normans in his time that how well soever they deserved they were driven from their Dignities and strangers tho' much less fit of any Nation under Heaven were taken in their places and Malmesbury who lived and writ in the time of Henry the first says that England was then become the habitation of foreigners and the Rule and Government of strangers and that there was at that day no Englishman an Earl Bishop or Abbot but that strangers devoured the Riches and gnawed the Bowels of England neither is there any hope of ending this misery So that it is plain they were now totally deprived of all Offices and Dignities in the Common Weal and consequently could have then no place in the great Council the Parliament of the Nation both for the raising of Taxes and the making of Laws and tho' I grant Mr. Petyt and your self suppose you found a clause in the Conquerors Magna Charta whereby you would prove that all the Freemen of this Kingdom should hold their Lands and Possessions Well and in Peace free from all unjust Exactions and Taillage so as nothing be exacted or taken unless their Free-services which of right they ought and are bound to perform to us and as it was appointed to them and given and granted to them by us as a perpetual right of Inheritance by the Common Council of the whole Kingdom This Common Council will not help you for without doubt here were no Englishmen in it for certainly they would not grant away their own Lands to strangers These were the Saxon Lands which William had given in Fee to his Soldiers to hold them under such services as he had appointed them and that by right of Succession or Inheritance We will now come to the second point viz. the Priviledges the Englishmen lost as to their Estates for whereas before the Conquest you affirm the K. could nor make Laws nor raise Taxes without the Common Coâ—ncil of the Kingdom it is certain K. William and his immediate Successors did by their sole Authority exercise both these Prerogatives as for his Legislative power it appears from the words of his Coronation Oath as you your self have repeated it out of Florence of Worcester and Roger Hoveden the conclusion of which Oath is se velle reâ—â—am legem statuere tenere Rapinas Injustaque Iudicia penitus interdicire Now the Legislative power was then lodged in him why else did he swear to appoint right Laws For if the constitution had been setled as it is at present the Parliament could have hindered him from making any other and that he could do so appears by that yoak of servitude which Matthew Paris as well as other Authors tells us K. William by his own Authority imposed upon the Bishopricks and Abbies in England which held Baronies which they had hitherto enjoyed free from all secular servitude he now says he put under Military service sessing all those Bishopricks and Abbies according to his pleasure how many Knights or Souldiers each of them should find to the King and his Successors and putting the Rolls of this Ecclesiastical Service in his Treasury he caused to fly out of the Kingdom many Ecclesiasticks who opposed this wicked constitution now if he could do this upon so powerful a Body as the Bishops and Abbots were at this time he might certainly as well raise what Taxes he pleased upon all the People of England and therefore Henry of Huntington tells us that K. William upon his return out of Normandy into England Anglis importabile tributum imposuit Lib. 3. p. 278. And that his Son William Rufus imposed what Taxes he would upon the People without consent of the Parliament appears by that passage of William of Malmesbury which he relates in the Reign of this K. as also in his third book de Gestis Pontificâ—m concerning Ranulâ— whom from a very mean Clerk he made Bishop of Duâ—ham and Lord Treasurer the rest I will give you in Latine Isle siquando edictum regium processisset ut nominatum tributum Anglia penderet duplum adjiciâ—bat subinde idente Rege ac dicente solum esse hominem qui sciret sic agitare ingenium nec aliorum curares odium dummodo complaceret dominum So that you may here see that the Kings Edict or Proclamation did not only impose the Tax at his pleasure but his Treasurer could double it when he had a mind to it without consent of the great Council or Parliament as we now call it and this Prerogative was exercised by divers of his Successors till the Statute de Tallagiâ— non concedendo was made But to come to the last head concerning the alteration of Tryals for mens Lives and Estates by the Conqueror from what they were before it is certain that whereas before the Conquest there were no other Tryals for mens lives but by Juries or else by Fire or Water Ordeal which was brought in by the Danes the Conqueror tho' he did not take way these yet also added the law then in use in Normandy of Trying not only Criminal but Civil Causes by Duel or Combat all the difference was that in criminal cases where there was no other Proof the accuser and accused fought with their Swords and the party vanquished was to lose his Eyes and Stones but in civil causes they only fought with Basâ—oons headed with Horn and Bucklers and he or his Champion who was overcome lost the Land that was contended for from whence you may take notice also of a great alteration in the Law not only concerning Tryals but capital Punishments so that whereas before the Conquest all crimes even Man slaughter it self were either â—ineable according to the Quality of the Person and the Rates set upon
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
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