it would be left in her Power not only to govern her self but by marrying to chuse a King for her Subjects whom they do not approve of And therefore we read that in diverse of the Antient Kingdoms of the World Women were excluded from the Succession Nor are these the only questions that either might then or else have in latter Ages been started concerning Succession in Kingdoms and Principalities and have been the cause of great disputes between Pretenders to Crowns where a King Dies without Lawful Issue as whether a Grandson by a Younger Daughter shall inherit before a Grand-daughter by an Elder Daughter Whether the Elder Son by a Concubine before the Younger Son by a Wife From whence also will arise many Questions concerning Legitimation and what by the Laws of Nature is the difference betwixt a Wife and a Concubine All which can no ways be decided but by the Municipal or Positive Laws of those Kingdoms or Principalities It may further be enquired whether the eldest Son being a Fool or Madman shall inherit this Paternal Power before the Younger a Wise Man And what degree of â—olly or madness it must be that shall exclude him and who shall be the Judges of it Also whether the Son of a Fool so excluded for his Folly shall succeed before the Son of his Wiser Brother who last Reigned Who shall have the regal Power whilst a Widdow Queen is with Child by the Deceased King until she be brought to Bed These and many more such difficulties might be proposed about the Title of Succession and the Right of Inheritance to Kingdoms and that not as idle speculations but such as in History we shall frequently find examples of not only in our own but likewise other Kingdoms From all which we may gather that if the Laws of God or Nature had prescribed any set rules of Succession they would have gone farther than one or two cases as concerning the Succession of Elder Sons or Brothers where an Elder Son dies without Issue and would also have given certain infallible rules in all other Cases of Succession besides these and not have left it to the Will or particular Laws of diverse Nations to have established the succession so many several ways as I am able to shew have been practised in the World M. I must confess you have taken a great deal of pains to perplex the Succession to Adam which seems designed for nothing else but to make me believe that if Adam or any of his Sons were Kings or Princes it must have been by the Consent or Election of their Children or Descendants which is all one as to say that those Antient Princes derived their Titles from the Iudgment or Consent of the People the contrary to which is evident as well out of Sacred as Civil History F. Since you appeal to History to History you shall go and to let you see that I have not invented these doubts about Succession of my own Head and that there might have very well been a real dispute about the Succession to Adam in the Cases I have put may appear by the many disputes and quarrels that have been in several Nations concerning the Right of Succession between the Uncle and the Nephew of which Grotius is so sensible that he confesses in the latter end of the Chapter last cited that where it could not be decided by the Peoples Iudgment it was fain to be so by Civil Wars as well as private Combats and therefore he is forced ingenuously to confess that this hath been practised divers ways according to the different Laws and Customs of Nations and he gives us here a distinction between a direct Lineal Succession and a transversed and acknowledges that amongst the Germans as also the Goths and Vandales Nephews were not admitted to the Succession of the Crown before their Uncles the like may be said of the Saxons and Normans and therefore we find in our Antient English History that before the Conquest the Uncle if he were Older always enjoyed the Crown before the Nephew which I can more particularly shew you if you think fit to question it The like manner of succession was also amongst the Irish-Scotch for above 200 years after â—â—rgus their first King The like Custom was also observed among the Irish as long as they had any Kings amongst them and is called the Law of Tanistry The same was also observed in the Kingdom of â—astile where after the death of Alphonso the fifth the States of that Kingdom admitted his Younger Son Sancho to be King putting by Ferdinand de la Cerda the Grand-Son to the late King by his Eldest Son tho' he had the Crown left him by his Grand-Father's Will So likewise in Sicily upon the Death of Charles the Second who left a Grand Son behind him by his Eldest Son as also a Younger Son named Robert between whom a difference arising concerning the Succession it being referred to Pope Clement V. He gave Judgment for Robert the Younger Son of Charles who was thereupon Crowned King of Sicily and for this reason it was that Earl Iohn Brother to King Richard the second was declared King of England by the Estates before Arthur Earl of Brittain Son of Ieoffrey the Elder Brother and Glanvil who was Lord Chief Justice under Henry the second in that little Treatise we have of his makes it a great question who should be preferred to an Inheritance the Uncle or Nephew But as for Daughters whether they shall inherit at all or not or at least be preferred before their Uncles is much more doubtfull since not only France but most of the Kingdoms of the East at this day from Turkey to Iapan do exclude Women from the Throne And it was likewise as much against the Grain of the Antient Northern Nations and hence it is that we find no mention of any Queen to have reigned amongst the Antient Germans or Irish-Scots and never but two among the English-Saxons and those by Murder or Usurpation and not by Election as they ought to have done And upon this Ground it was that the Nobility and People of England put by Maud the Emperess and preferred Stephen Earl of Blois to the Crown before her for tho' he derived his affinity to the Crown by a Woman yet as being a Man he thought himself to be preferred before her So likewise in the Kingdom of Aragon Mariana in his History tells us that Antiently the Brother of the King was to inherit before the Daughter examples may also be given of divers of the other instances but these may suffice M. I Pray give me leave to interrupt you a little for by these examples you would seem to infer that these Laws about setling the succession of Crowns in several Kingdoms depended upon the Will of the People whereas I may with better reason suppose that if such Laws and Alterations have been in such successions they were made by
the sole Will of the first Princes in which the People had no hand for in the most Antient Monarchies there was a time when the People of all Countreys were Governed by the Sole Wills of their Princes which by degrees came to be so well known in several instances that inferior Magistrates needed not resort to them in those cases and the People being for a considerable time accustomed to such Usages they grew easie and Familiar to them and so were retained tho the Memory of those Princes who first introduced them was lost and after Kings finding it better to continue what was so received than to run the hazard and trouble of changing them were for their own ease and the good of their Subjects contented they should be still from Age to Age so continued Which custom may hold as well in Laws about Succession as other things And therefore we find that even in those Monarchies where the People have nothing to do in making Laws Women are excluded which could proceed at first from nothing else but the declared Will or Law of the first Monarchs So likewise the Original of the Salique Law is wholly ascribed to Pharamond the first French King and Mariana whom you lately cited tells us that Alphonso King of Arragon made a Law that where Heirs Male were wanting the Sons of a Daughter should be preferred before the Aunt which Law is wholly attributed to the King for he adds presently after Sic saepe ad Regum arbitrium jura regnandi commutantur F. Granting all this true that you have said you cannot but confess that the Laws of God and Nature have established nothing in this matter or else it could not be in the Power of Kings to make or alter Laws concerning the succession as your last Quotation intimates they may yet even in the most absolute Monarchies the Laws about the Succession of the Crown must wholly depend upon the Consent of the People who are to see them observed or else every Monarch might alter these Laws of Succession at his pleasure and the Great Turk or King of France now the Assembly of Estates is lost might leave the Crown to a Daughter if either of them pleased and disinherit the next Heir Male. But as for the Original of this â—alique Law in France you 'l find your self much mistaken if you suppose that that Law was made by the Sole Authority of Pharamond for the Antient French Histories tell us that the Body of Salique Laws which are now extant were made by the Common Consent of the whole Nation of the Francs who committed the drawing of them up to three Judges or Commissioners and which Laws Pharamond did only confirm and any one that will but consult those Histories may see that Kings were so far from having the Sole Legislative Power in their own hand that they were frequently Elected by the Estates nor is it truer that you suppose from Mariana that the Kings of Arragon had Power alone to make Laws it appears quite contrary from the Constitutions of that Kingdom where the King could do nothing of this kind without the Consent of the Estates and was not admitted to the Crown without taking an Oath to the Chief Justice in the name of the People that he would observe the Laws and Constitutions of the Kingdom otherwise that they would not be obliged to obey him But at once to let you see that about the Succession of the Sons or Descendants by Daughters the Cases are much more nice and intricate and that when such Cases happen in limited Monarchies where there is an Assembly of Estates they are the Sole Iudges of such differences may appear by two famous examples in modern History The first is in Scotland about four hundred years ago when after the Death of King Alexander III who died without Issue when two or three several competitors claim'd a Right to the Crown as descended from several Daughters of David Earl of Huntington great Uncle to the last King the Chief of which being Iohn Bayliol and Robert Bâ—uâ—â— the Estates of the Kingdom not being able to decide it they agreed to refer it to Edward I. King of England who adjudged the Crown to Bayliol yet did not this put an end to this great controversie for not long after Bayliol being deposed Bruce revived his Title and the States of Scotland declared him King whose Posterity enjoy it at this day A like Case happened in the last Age in Portugal after the Death of Henry surnamed the Cardinal without Issue when no less than four Eminent Competitors put in their Claim some claiming from the Daughters of Don Durate youngest Brother to the last King Henry But the King of Spain and other Princes as Sons to the Sisters of the said King Henry dying without Issue left ten Governours over the Kingdom to decide together with the Estates the Differences about the Succession who quarrelling among themselves as also with the Estates before it was decided Philip the second King of Spain raised an Army and soon conquered Portugal And yet we have seen in his Grand son's time that the Estates of Portugal declared this Title void and the Crown was settled in the Posterity of the Duke of Braganza who still enjoy it And how much even Kings themselves have attributed to the Authority of the Estates in this matter appears by the League made between Philip the Long King of France and David King of Scots wherein this condition was exprest That if there should happen any Difference about the Succession in either of these Realms he of the two Kings which remained alive should not suffer any to place himself on the Throne but him who should have the Judgment of the Estates on his side and then he should with all his Power oppose him who would after this contest the Crown To conclude I cannot see any means how if such Differences as these had arisen in the first Generation after Adam I say how they could ever have been decided without a Civil War or else leaving the Judgment thereof to the Heads or Fathers of Families that were then in being Which how much it would have differed from the Judgment or Declaration of the States of a Kingdom at this day I leave it to your self to judge M. I shall not trouble my self to determine how far Princes may tye up their own hands in this matter of the Succession and leave it to the States of the Kingdom to limit or determine of it but from the beginning it was not so and therefore give me leave to trace this Paternal Government a little farther For tho' I grant that when Iacob and his twelve Sons went into Egypt together with their Families they exercised a Supreme Patriarchal Jurisdiction which was intermitted because they were in Subjection to a stronger Prince Yet after the return of these Israelites out of Bondage God from a special
Lords or Peers of Parliament and that the rest being the lesser or lower Tenants in capite sometimes stiled Barones minores were for some time before this summoned by general Writs directed to the Sheriffs or Bayliffs as appears by King Iohn's Magna Charta Now whether these men were ever really Peers or not I have reason to doubt since I do not find but it was they alone who for some years after the Conquest served upon Juries in County Courts and dispatched all the publick business of the Country which was then as at this day a drudgery beneath the Peers to perform and therefore I shall not insist upon it But thus much I think is certain That they were a sort of persons much above any other Lay-men of the Kingdom since they held their Estates immediately from the King and were so considerable as that by the Constitutions of Clarendon they were not to be Excommunicated without the King's leave and so were then in some sort of the same Order ratione Tenurae with the great Barons or Peers being commonly stiled Barones and made up but one Estate or Order of Lay-men in Parliament And from thence I suppose proceeds that common Error of Sir Ed. Coke that the Lords and Commons did anciently sit together and made but one House Now if you have any thing to object against this Notion pray let me hear it F. I think you and I are come pretty near an issue in this question for you confess that these lesser Tenents in capite and whom you comprise under the word Barones were not truly and properly Barons and so far you are in the Right but yet you will have them to be somewhat more than mere Commoners as if there had been some Degree or Order of men in England in those times who were neither Lords nor Commons but an Amphibious Race between both But to prove that they were indeed no more than Commoners and not Lords nor Peeâ—s at all nor equal with them we need go no farther than their way of Trial in cases of Treason or Felony which was by mere Commoners who were not Tenants in capite as well as those that were so that a person who was no Tenant in Capite and might serve upon a Jury of Life and Death upon them and as well as the Dr. in his Answer to Mr. P. as you asserted that they only served in the Country upon all Iuries and that before the time of King Iohn So after all this noise of none but Lords and Tenants in capite appearing for the whole Commons of England we find by your own showing that three parts in four of the Lay Members of that Council were as meer Commoners as our Knights of Shires and Barons of the Five Ports at this day nor can I see any reason why these latter might not be as well comprehended under the Word Barones as the former who were meer Commoners likewise if we consider that it was neither Nobility nor Birth nor the King's Writs of Summons but only the meer Tenure of their Lands that gave them a particular right to a Place in that Assembly in those Ages or if a meer Citizen could get Money enough to purchase such an Estate in capite he was as good a Member of Parllament as the best of them all So that the Question then amounts to no more than this Whether the Commons of England were then represented by Tenants in Capite or by Knights of Shires and others as they are now But since you will have none Commoners but Tenants in capite to have had places therein pray tell me whether you allow that Priviledge to all who held in capite or not M. Yes I allow it to all who held in capite by Knights Service and who also enjoyed a whole Knight's Fee or so much as was sufficient to render them able to sustain the Dignity of that Place not but that the King had also a prerogative of summoning or omitting whom of them he pleased to his Great Council or Parliament till the Less Tenants in capite thinking it a wrong to them it was provided by King Iohn's Charter that all of them should be summoned by one General Writ of Summons directed to the Sheriff But I exclude from this Concil all Tenants by Petit Serjeanty who tho 't is true held of the King in capite yet was it not by Knights Service So likewise I exclude all Cities and Towns tho the Citizens or Burgesses of divers of them held their Lands and Tenements by that Tenure since being neither noble by Blood nor having Estates sufficient to maintain the Port of a Gentleman or Knight they had no Right to appear there in Person among the other Tenants who were owners of one or more Knights Fees Yet do I not affirm that the Commons were not after some sort represented in Parliament by their Superior Lords tho not as Commoners since the Bishops Abbots and other Barons did then make Laws and give Taxes not only for themselves but their Feudatory Tenents also tho of never so great Estates and Tenure in capite was then looked upon as the only true Freehold of the Kingdom and the Tenents by it as the only true Freeholders F. I shall shew you by and by the falsity of this Notion but in the mean time pray tell me when a Great Council or Parliament was called who represented those Persons who you say did not appear there and made General Laws and granted General Taxes for themselves and the whole Kingdom when there was occasion For I see you shut out the greater part even of these your true Freeholders from this Assembly M. As for the Tenents in Petit Serjeanty I at present conceive tho I am not sure of it that many of them might hold Lands and perhaps divers Knights Fees by Grand Serjeanty or Knights Service also since those Estates which were given by the Conqueror to his Servants to be held of him by such and such Petit Services might in process of time fall by Purchase or Descent into the hands of such Great Tenents in capite as had sufficient Estates to maintain that Dignity and as for the rest they might for ought as I know before the Statute de Tallagio non concedendo have been taxed by the Kings Writs according to the proportion of the Knights Fees or parts of Knights Fees which they then held and according to the Rate of the Sums imposed in Parliament either by way of Aids upon every Knights Fee or else by way of Subsidy by so much a yard or Plow Land throughout all England which has been the only way of taxing ever since that of Knights Fees hath been disused F. Then I find after all you have said that scarce half your Tenents in capite had any Votes in Prrliament either by themselves or their Representatives and so having Laws made for them and being taxed at the King's Will were as
errant Slaves and Vassals notwithstanding their Tenure in capite as the meanest person of the Kingdom who was taxed as you would have it at the Will of his Superior Lord which whether so great and powerful a Body of men would ever have sufferd I leave to any indifferent person to judge M. I grant this may now appear somewhat hard yet since it was the receiv'd Law and Custom of the Kingdom it was not then look'd upon as a grievance and it was then no more unjust than it is now that persons under forty Shillings a year tho of never so good Estates in Money or Stock or that Tenants for years or for the Life of another should at this day have no Votes at the Election of Knights of Shires and consequently be without any Representatives in Parliament of their own Choice and yet be subject to all Laws and Taxes tho never so great when made and imposed by the King in Parliament And I am able to give you divers good Authorities to prove that even London it self and all other Cities and Towns which held of the King in capite and were called his Demesnes were often taxed by the King and his Council out of Parliament before the Statute De Tallagio non concedendo And I think Dr. B. hath proved this beyond exception in his Animadversions upon Mr. A's Iani Anglorum facies noâ—e and he there gives us the Record it self of 39 Hen. III. now in the keeping of the King's Remembrancer of the Exchequer That the King did that year as he had divers times before Talliate or Tax all his Demesne Lands in England and then likewise demanded of the City of London the sum of 3000 Marks in name of the Talliage or Tax so laid And the Mayor and Citizens at last yielded after a great Contest It appearing upon search of the Rolls in the Ezchequer that the Citizens of London had been several times before so taxed in the Reigns of King Iohn and the King himself and so they payed at last the Sum which the King demanded By which you see that the greatest and richest Cities and Towns in England were taxed at the King's Will nay I think I am able to prove were it now necessary that the whole Kingdom was often taxed by the King and his Council only before the granting of King Iohn's Magna Charta and the Statute de Tallagio non concedendo above mentioned But to return to the Matter from which you forced me to digress I think nothing is more plain than that our Ancient Parliaments were only the King's Court Baron for the dispatch of the Publick Affairs of the Kingdom and in which as in the Lesser Courts Baroa or Courts of Mannor the Suitors or Tenents were together with the Lord or his Stewards the sole Judges So that at first after the Conquest it belong'd to the King alone as the Supreme Lord of the Kingdom to appoint or call which or what sort of those Tenants be pleased to attend him with their Aid and Advice at his Common Councils or Parliaments And I think nothing is more evident as I shall prove more at large from our Ancient Histories Records and Statutes then that before the 49th Hen. III. and some years also after that time none but the Bishops Abbots Earls and Greater Barons and some of the Less called in King Iohn's Charter the other Tenents in capite then constituted the whole Body of the Parliament under â—he Titles of Baronagium Angliae or Communitas or Universitas Baronagii Angliae And for this I can give you so good Authorities that nothing but more cogent and evident Proofs can bring me from this Opinion And therefore I must tell you I do not value those loose and inconsiderate Expressions of Historians either before or after that time F. I see the Testimonies of Historians are of no credit if they make against your Hypothesis but I shall show you your Mistakes about the King's Taxing anon but the main force of your Argument lies in the signification of those Latin Words you have last mentioned and which I must needs tell you I think you take in too strict a sense For first as to the Word Baro I grant it was not much in use before William I. obtained the English Diadem Baro says Camden Britanni pro suo non agnoscum in Anglo-Saxonicis legibus nusquam comparet nec in Aâ—frici Glossario Saxonico inter dignitatum vocabula habetur For the English Saxons called those in their own Language Aealdermen which in Latin were named Comites and by the Danes Earls but it was of so extensive an import in its signification that we read of Aldermani Regis Aldermani Comitatus c. as I have already shewed you So that according to the strict Sense of this Word we had whole Regiments of Earls whose Titles seldom if at all descended Hereditary till the Confessors Time and after William I. the Saxon Words Aealderman and Thegnes began to be changed and in the room of Aldermanni Thani we find Comites Barones as in all our Ancient Laws and Histories Nor was the Word Barones only taken in those days for Great Barons and Tenents in capite but also for the Inferior Barons or Free Tenents which held great Estates of other Mesne Lords as well as of the King by certain Services and to whom the Great Lords or Earls as Sir H. Spelman shews us in his Glossary Title Baro often directed their Charters Barombus Fidelibus nostris tam Francis quam Anglis and we there also read some Quotations from the old Book of Ramsey Abby wherein the Barons of the Church of Ramsey as also the Milites and Liberi homines thereof are particularly mentioned all which as this Learned Author tells us non de Magnatibus sunt intelligenda sid de Vassallis feodalibus note Scil melioris And the same Author says a little lower that Barons are often taken pro liberè Tenentibus in genere hoc est tam in Soccagio quam per servitium Militare M. What then do you suppose that all the Freeholders in England by whatsoever Tenure they held appeared in Person in Parliament before the time Sir H. Spelman in his Glossary and Dr. B. Assign for the summoning of the Commons to Parliament At this rate every Yeoman or Petty Freeholder was a Baron so that this Assembly might then consist of above 50 or 60 Thousand Persons Since Spot in his Chronicle tells us that William the Conqueror reserved to himself the service of about 60000 Knights Fees which by the time I suppose might have been divided into many more lesser ones by Co-heirship or by sale and otherwise parcelled out by the King's License into Half-Knighs-Fees Third Part of Fees Fourth Part of Fees Eight Parts Sixteen Twenty Thirty and Forty Parts of Fees and so have been increased into as many more And these besides the Tenants in
and the other Less Barons or Tenants in capite ever since the 17th of King Iohn were summoned by one Common Writ directed to the Sheriff of the County since which time if not some time before I grant these Tenants in capite were not look'd upon as Barons or Peers of the Kingdom properly so called Yet did their Votes in Parliament still conclude and charge their Tenants in the making and imposing of Taxes or Laws which they alone together with the Bishops and greater Barons still performed until the Times I assign F. I see you are in a Wood and do not know well under what Class to rank your Tenants in capite for if they were at first all Lords or Peers how could they serve upon Juries in Hundred or County Courts If they were meer Commoners then there were Commons in Parliament before the 49th of Henry III. and why might not others as considerable Commoners have Places in the Great Council as well as they whether they were the Kings Barons or Tenents in capite or not But in answer to this you tell me that we never had any Barons held by mean Tenure here in England this is plainly equivocal for if you mean it of Baronies in capite it is true if of other Baronies it is false by your own Confession And Sir H. Spâ—lman tells us in the Title last quoted that the Barons of Burford pleaded to hold of the King per Baroniam and yet he was never any Baron of the Kingdom Now I desire you to shew me if he and such like Barons as himself had no place in Parliament who it was represented them there And therefore in answer to your Dilemma I grant that every Baron by Tenure was a Tenant in capite but every Tenant in capite was not a Baron and this I think is so plain that you your self cannot deny it But in answer to your next Question I can answer it without asking the Gentleman from whom you suppose I borrow the Notion that there might be other Barons or Lords of Mannors who by reason of their Estates might have Places in Parliament supposing Knights of Shires were not introduced till after Henry the II. or King Iohn's Time when such Freeholders became too numerous all to appear in person and yet these might not be Barons by Tenure And therefore all your Questions conclude nothing For you suppose that which is still to be proved That because all the Barons of England properly so called held of the King in capite and were consequently his Barons that therefore none but Bâ—rons and Tenants in capite had any place in our Great Councils which is the thing you only suppose and I as positively deny M. Well Sir since you put it to that issue I hope I shall fully convince you that none but the Persons I have mentioned were the constituent Members of the Common Council or Parliament before 49th Hen. III or 18th Edw. I and who done gave assent to all Laws that were made and all Taxes that were to be imposed on themselves and their Under-Tenants who were then concluded by the Acts of their Superior Lords But not to wrangle with you any longer about the signification of the Word Barones I grant there were Nominal or Titular Barons very many such as I have mentioned nay that there were several other Great Subjects who had Tenants that held 5 6 7 8 〈◊〉 nay more Knights Fees under them and who had the Name and Title of Barons But what is this to the purpose I desire you would prove to me by any direct proof that these sort of men had any Voices either by themselves or their Representatives in our Great Councils till after the time we allow them and this besides the Proofs I have already brought I think is sufficient Since it is plain that the Barones Regni or Terra and the Milites and Homines sui are all one and the same Persons that is they were the King 's Great Barons or Tenents in capite who alone constituted the Baronage or University of the Baronage of England or of the Kingdom in our Great Councils or Parliaments And for the farther proof of this I need go no farther than those very Arguments your own Author Mr. P. hath made use of in his Right of the Commons asserted wherein he would prove from certain Letters that were sent from the Baronage or University of the Baronage of England to the Pope against the Church of Rome's Exactions here in England And therefore I shall not bring only Fragments Phrases or single Words out of the Records or Histories which seem to countenance my Opinion contrary to the true meaning of those Records and the sense of the Historians as some of your men do but shall give you the Quotations out of those Authors whole and entire and shall make such reasonable Deductions from them as I think you will have no reason to deny to be fairly raised from the Words themselves And also as Matt. Paris relates in the 29th Hen. III. the Earls and Barons sent Letters to the Pope then at the Council of Lions to complain of the Pope's Exactions which Letters are said by this Author to be directed A Magnatibus Universitate Regni Angliae And tho it is also true that in the same Year there were other Letters sent thither from the same Parties to the Cardinals there assembled which are recited by the Old Manuscript to have sent Messengers to the Cardinals and the Old Manuscript in the Cottonian Library that they sent to the Cardinals assembled at the Council of Lyons Letâ—ers a Baronibus Militibus universis Baronagii Regni Angliae per procuratores 〈◊〉 Rogeram Bigod Comitem Norff. Willielmum de Cantelupo Iohannem silium Galfriâ—â—â— Radulphum filium Nicholas Philippum Basset Barones Procuratores Baronagii Angâ—â—â— tunc temporis Innocentio Papa Quarto celebrante Concilium ibi generale Anno Gratia 1245. And the Letters are thus directed Venerabilibus in Christo Fratribus uniâ—â—sis Singulis Dei Gratia Salutem Barones Milites Universitas Baronagii Regis Angliae And that Matt. of Westminster does likewise agree in this Relation only stiles the Persons last named Milites whom Matt. Paris calls Viri Nobiles discreti But this will make no difference as I shall shew you by and by And to these Matt. of Westminster adds Mr. William Powic Clark who seems to have been their Secretary But notwithstanding it will appear that all these Persons so sent named Barones Milites universitas Baronagii did not represent the Commons of England at all but only the Great Earls Barons and Tenants in Capite For first it appears from Sir W. Dugdale's Baronage of England that every one of the Persons here named was either an Earl Baron or Great Tenant in capite and nâ—â— Common Persons as your Author would have them And tho it true the Cottonian Manuscript
will not affirm But least I tire you as well as my self in dwelling so long upon things so plain and obvious were not they by too much industry rendred obscure I come at last to the conclusion of your discourse which is no more then a repetition of what you had said at first that because all the Kingdom could not be Summoned to appear in Parliament and that Villains and Servants c. never paid to this Tax that therefore the words omnes de Regno are not to be understood literally a doughty discovery and therefore you have found an expedient to help this contradiction by your Tenants in Capite and Thy Knights Citizens and Burgesses for the Laity and by the Procuratores Cleri for the Inferiour Clergy whose Interpretation is most agreeable to truth I durst leave to any indifferent Judge for I must needs tell you once again I cannot see any manner of reason either from Authorities or from the Nature of the thing that your Tenants in Capite could be the omnes de Regno in a legal sense and as such did represent all the Freemen of Estates in the whole Kingdom therefore if you can prove this it may go far to convince me otherwise not M. Since you will not rest satisfied with those Authorities I have already produced to prove it pray let me discourse with you a little more particularly of the nature of Tenures by Knights Service I therefore suppose that the Dr. hath very well prove by several Records as also the two Writs of 19th Hen. III. to the Sheriffs of Somerset and Sussex that the King anciently by his Prerogative and his original Power and Right reserved upon Knights Fee did Tax the Military Tenants of his Tenants in Capite and their other ordinary Free Tenants and by his Writs caused them to pay both â—cutage Tax and Scutage Service and other reasonable Aids as often as necessity required F. I grant indeed the matter of fact to have been sometimes as you say since there is no averring against express Records but I say likewise that as for those Writs the Dr. has given us concerning the Kings Ordering the Sheriffs to distrain the Mesne Tenants of the Tenants in Capite for Scutage Service as to Marry their Daughters or for the finding of Men in any Warlike Expedition it was no more then those Mesne Tenants were bound to do by the Tenures of their Estates if they had failed to serve their Lords in Person or by sufficient Deputies and therefore the King might legally grant them Scutage upon such Tenants and perhaps might also change their Service in Person into a pecuniary Aid as appears by some of those Writs the Dr. has given us and this not by his Prerogative but by Law so likewise tho your Tenants in Capite could Tax themselves in their distinct Council or else in the Common Council of the whole Kingdom at what rate they pleased for the Knights Fees they held of the King and tho the King might sometimes undertake by this pretence to I evy a Scutage of two Marks on their Under-Tenants also yet does it not appear by either of those Records you have now cited that they gave for more then themselves alone the words in the Writs being only that they had given the King Esseâ—ax Auxilium of two Marks upon every Knights Fee as well Wards as others who held of him in Capite without any mention of their Mesne Tenants so that if the Sheriff was afterwards ordered to distrain these Mesne Tenants also for two Marks for each Knights Fee they held of their Lords this was straining a point of Prerogative and was expresly against Law for at this rate the King might by the lâ—ke Prerogative have Taxed all the Bishops Abbots great Lords and all other Tenants in Capite without their consents as well as their Mesne Tenants tho it was contrary to the express words of the Charters of King William I. and King Iohn which you your self cited at our former Meeting so that granting the matter of fact to have been practised sometimes as your Records make out this is no proof that this was a constant Law or settled Custom much less that the King had a right so to do M. I do not doubt but that I can prove to you that what this King then did in charging these mesne Tenants was according to his ancient Prerogative and what himself and his Predecessors had frequently done both before and after the Clause in King Iohn's Charter of Nullum Scutâ—gium vel Auxilium ponam in Regno meo â— was granted nay after it was granted Hen. 3. and Edw. 1. taxed their Demeasns through England tho not the whole Kingdom by the advice of their Privy Council until the Statute de Tallagio non concedendo was made in 34 Eâ—w 1. and both Rich. 1. and K. Iohn had taxed the whole Kingdom without common assent before the Grant of Magna Charta as also in the Reign of Rich. 1. as you may find in Hoveden who lived at that time the passage is long and therefore I shall only give you the beginning of it viz. that this King Anno 1198 Regno 9. accepit de unaquaque Carucata terrae totius Angliae V. solidos de Auxilio c. and then goes on to shew us the manner how it was raised and collected and 't is observable that he uses these words Auxilium and Tallagium for the same Tax so we find in Mat. Paris that King Iohn took a seventh part of all Moveables without common Assent and another time a Thirtieth the great Men and Clergy grumbling at it K. Hen. 3. also taxed all his Demeasn in the 33 d year of his Reign as appears by a Writ in the close Roll of this year whereby he also commands the Sheriff of Buâ—ks that he make Philip Basseâ— a Ratiâ—nabilâ— Tallagium de hominibus suis de eo tenentilus in Mannerio de Wycumb quod aliquando suit Dominicum Praedecâ—ssorum Râ—gis c. In the 39 th year this King as the Doctor shews us at large by a Recoâ—d in the keeping of the Remembrancer of the Exchequer he taxed all his Demeasn and among the rest the City of London at 3000 Marks which tho with some contest mentioned in this Record they were at last forced to pay because it was found upon Record that this King and his Father had several times â—alliated or Taxed the saiâ— City in like manner at the sums therein mentioned so that at last the Mayor and Citizens were fain to acknowledg themselves thâ—s Talliable by the King So in the 52. year of his Reign he Taxed all his Demeasn Lands beyond Trenâ— by his Escheators and this Right was acknowledged by all the Bishops Earls and Barons in the 33 d year of Edw. I. as appâ—aâ—s by their Petition to him in Parliament in these words Al Pâ—tiâ—ionem Arcâ—iepiscoporum Episporum
I grant all the lesser Barons or Tenants in Capite were to be Summonld by the Sheriff to come to the Common Council of the Kingdom the King might have only call'd some of the greatest and wisest of them and such as he thought most fit to advise him in making Laws and imposing Taxes upon the Nation And the like Prerogative his Son Henry the Third resumed during the greater part of his Reign as I shall shew you from divers old Statutes by and by And that our Kings did often take upon them to call whom they pleased and omit whom they pleased of these Tenants in Capite may appear by those who were called Pares Baronum or alios Magnates who are put after the Barons and of these there are many instances of their being called to Parliament and again omitted in several Kings Reigns after the Commons were a third Estate as represented as at this day F. I must beg your pardon if I cannot come over to your opinion notwithstanding what you now have said since I do not find your reason to come up to what you intend therein for you only suppose but without any proof that the words Populus and Communitas must signifie only Tenants in Capite in the ancient Scotish Charters and Statutes All the Argument you bring to the contrary is that I cannot shew you any Law by which it was altered to what it is now and therefore that the Constitution has been always the same as at this day Now pray consider whether this will not press altogether as hard upon you in relation to England for you cannot shew me any Law whereby the Tenants in Capite were excluded here and Knights of Shires introduced in their fleads and therefore by the same Rule let the Scottish Parliaments have been of what they will yet ours have been still the same they are now But if you say that this contrary usage hath been introduced either by the Kings Prerogative or by the silent consent of the People or by some Law that is now lost are not all the same Arguments to be made use of in the case of the Scotish Parliaments which I may upon as good Grounds suppose to have deviated from their original Constitution as you do that our English Parliaments have done it So that if those Arguments are of any weight they will serve for England as well as Scotland but if they are not it is in vain to make use of them at all The like I may say as to Burroughs in Scotland since it is as easie to suppose that divers Burroughs in Scotland might voluntarily desist from sending their Deputies to Parliament that did not hold of the King in Capite as it is that divers Burroughs in England did Petition to be exempted from sending Burgesses to Parliament by reason of their inability to pay the Expences of their Burgesses as I could shew you by divers Precedents some of which are in Print had I now time As for the rest of your Discourse I cannot imagin to what it tends for if the Tenants in Capite had any place in or right to come to Parliament how came they to have it but by reason of the great Freehold Estates they held of the King and if so I can see no reason why those that had as good or better Freehold Estates than they should be all excluded Or why a small Tenant in Capite of but one Knights Fee held of the King in Capite should give him a right to a place in Parliament and get that a Mesne Tenant or Vavasour as he was then called who held ten Knights Fees of some Bishop or Abbot who perhaps did not hold in Capite at all should have no right of appearing there nor of choosing any Representative for him since notwithstanding all you have now said the Doctor either contradicts himself or you when he tells us expressly in his Answer to Mr. P. That the Tenants in Capite who were no Barons represented only themselves and not the Commons but how this will agree with what he says in his Introduction that the Body of the Commons had no share in making Laws c. before 49 th of Henry the Third unless they were represented by thd Tenants in Capite and if so must then certainly represent those that he here calls the Body of the Commons of England Collectively taken But as for your notion of the Parliament's being the King's Court Baron tho you have borrowed it of a Learned Scotch Lawyer Sir George Meâ—â—ensy yet let me tell you it was never true for it is well known that the Great or Common Councils both in England and Scotland are much more ancient than the Tennres of Lands by Knights Service or then the very Institution of Mannors in this Kingdom which the Doctor tells us are of no higher an original than the Norman Conquest But admit I should allow your notion of the Parliaments being anciently the Kings Court Baron then certainly all the Tenants in Capite had a right to appear there and to be not only Suitoâ—s but Judges of all differences arising among the Tenants in the Lords Court where neither the Lord himself nor his Steward were Judges and that of right and not by savour whereas you suppose such a Court-Baron as was never heard of where the Lord could admit or exclude whom of his Tenants he pleased to which if they had a right ratione Tenurae certainly he could never do So that instead of a Court-Baron and a Common Council according to King Iohn's Charter whereby all the Tenants in Capite were to be Summoned to this Council or pretended Court Baron you suppose the King still retained a Prerogative of calling or omitting whom he pleased which instead of confirming the validity of the Charter and that it was to be a Rule how such Councils should be called for the future you make to signifie just nothing and that no Common Council was ever called according to that Model But pray shew me a Court-Baron wherein the Tenants ever took upon themselves a Power of giving Taxes out of their Estates that did not hold of the mannour though they were resident within it But indeed you are out in the whole matter for the Doctor himself grants in his answer to Mr. P. when he gives us King Iohn's Letters of Summons to a Council directed to the Barons and Knights and as he translates Eidelibus Feudatories or Vassals of all England wherein he lets them know that he had sent his Letters to every one of them if it might have been done Now what reason had he to write thus if these Gentlemen had no right to be consulted or that the King might have called or left out whom of them he pleased But the Barons and Tenants in Capite were in another mind when in the 37th of King Hen. III. as Mar. Paris tells us they refused to Act or Proceed upon any thing
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
during his confinement there sent a Lady I could name on a message to two reverend Prelates of our Church together with an Emrauld Ring from his Finger as a Testimony of the Truth of her Commission to this effect That his Majesty being sensible of the sad condition the Church of England as well as he himself was in and that there was no way so likely for him to get out of it as by granting his Subjects and particularly the Church of England such securities for the enjoyment of their just Rights and Liberties as they could in reason demand therefore he wholly left it to the discretion of those Bishops to make to the Peers and Bishops that were then to meet suddenly whatever proposals they should think reasonable on his behalf for the satisfaction of the Church and safety of the Nation and that he would be ready to grant and ratifie them whensoever he should be required F. This is indeed more than ever I heard before and can scarce believe but did the Lady go and deliver her message And pray what answer did those Bishop give to this fair proposal M. Yes the Lady did deliver her message and these Bishops answer'd both to the same effect that they had a real duty and affection for his Majesty and a great desire to serve him but that considering the great Power of the Prince of Orange and his present aversion to any agreement with his Majesty they very much feared that the Peers would not venture to give the Prince any such advice or to interpose with him on his Majesties behalf which in my opinion was very meanly and cowardly done of them who considering their duty to him as King and also those particular obligations they owed him as their Benefactor and who had been the greatest means of their being raised to those dignities in his Brothers Reign now I desire to know if this message had received its intended effect what greater demonstration his Majesty could have given to satisfie the World that he really intended to set all things right again had he been permitted to do it F. I will not farther question the Truth of this Relation though perhaps I might have sufficient reason for it since you say you had it from a person of good credit and who was privy to this transaction nor yet will I be so inquisitive as to know the names either of the Bishops or of the Lady since you make it a secret but yet notwithstanding I do still very much question whether the King did ever really design to do what he then offer'd and did not intend to put a sham upon their Lordships to serve his present occasion and to see if he could divide the Bishops and Peers of the Church of England from the Prince of Oranges Interest and so by making them offer such Proposals as the Prince should not think fit to agree to might make them declare against his proceedings which would have created great divisions and heart-burnings between those of the high Church of England party and the Prince and thereby have involved us again in fresh disturbances of which no doubt the King and the Popish Faction were like to receive the greatest advantage for you know the old saying divide impera But to let you see that I do not speak without just grounds for my opinion let us examine every circumstance of this matter first if the King had meant really is it likely that he would have trusted a business of that high moment to a Woman When he had then the Lords of Alesbury and Arron besides other Protestant Gentlemen then waiting on him and they were much fitter to be trusted than this Lady let her be whom she will Or can any one believe if the King had meant really that he would not have sent his Proposals in Writing since he very well knew from the Princes Declaration as well as the Bishops Petition and Addresses to him what the whole Nation and the Church of England in particular required at his hands But that he must send a loose and uncertain Message which it was in his power to disown whenever he pleased by saying the foolish Woman mistook his meaning and she also might be so much his Creature as to take the fault wholly upon her self whenever it should serve the Kings turn so to do and therefore I think it was very wisely and honestly done of those reverend Prelets to refuse medling in such a ticklish affair since it is plain by his not making any such proposals to the Prince of Orange himself or the Lords about him that he was not to be made privy to it but rather it should be carried on whether he would or no and without giving him any satisfaction in his particular concern as to the Prince of Wales and lastly I desire you farther to consider whether the King might not hereafter when ever he had power have made void whatever agreements or concessions he should have then granted either to the Church of England or to the Nation by pleading afterwards that they were obtained by decrees whilst he was not sui juris but under the Power of the Prince of Orange I have but one thing more to add which I before omitted which is to make some reply to what you said concerning the mischief that the Mob has done upon Houses Forests and Praks since his Majesty's first departure and therefore granting the matter of Fact that much mischief and spoil has been committed yet I deny that it is more than has been done by the most Arbitrary Kings since the Conquest to this day as you are pleased to affirm for I believe you forget the Thirty Parish Churches and Towns which our Historian tell us your William the Conquerour and his Son Ruâ—us destroyed when they inlarged new Forrests and therein acted contrary to their Oaths like true despotick Tyrants you likewise forget the miserable spoil and waste which King Iohn and Henry the III. made upon the Houses Castles and Estates of the Barons and Gentry of England who opposed them in their unjust and illegal violations of Magna Charta besides other Tyrannical actions of the same kind committed by King Edward and Richard the II. too long here to relate but if these mischiefs were done you speak of who have we to thank for it but the King who stealing away on the sudden without leaving any orders for the Government of the Kingdom all persons in Commission either Civil or Military doubted whether their Commissions were noâ— at an end by the Kings deserting the Government as he did besides you very well know that the Common People were so enraged against the Popish Faction for so many insolent actions they had committed in King Iames's Reign and so many apparent breaches and contempts of all the Laws made against them that you cannot wonder if when they were rid of the fear of the Irish and of King Iames's Army they kept
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
of France had made his Procurator to treat with the Popes Legat about his coming over hither where when he had recited that King Iohn had been condemn'd by his Peers for the Death of his Nephew Arthur and that he had been also for his great cruelties and other wickedness Deposed by the Barons of England and farther reciting that the said King without the assent of his Nobility had resign'd his Kingdom to the Pope to hold it of him at an Annual Tribute of a thousand marks the rest I will give you in Latine because you your self shall translate it etsi Coronam Angliae sine Baronibus alicui dare non potuit potuit tamen dimittere tam quam statim cum resignaverit Rex esse desiit Regnum sine Rege vacavit vacans itaque Regnum sine Baronibus ordinari non debuit c. so that you may see that by the order of Prince Lewis and the allowance of the King of France himself every one of our opinions are maintain'd for good first That King Iohn was before the resignation of his Crown to the Pope true and lawful King Secondly That by that resignation to the Pope he did dismiss or abdicate his Right to it for so I suppose the word demittere Regnum is here to be render'd Thirdly That upon this dismission of the Crown the Throne became Vacant Fourthly That upon this Vacancy the Kingdom could not be conferr'd without the consent of the Barons that is the great Council of the Kingdom But let King Iohn's Right to the Crown have been what it would it is certain that he could not take it upon him until such time as this Great Council had both heard and allow'd his Title and that this was in the nature of an Election notwithstanding his Brothers Will appears by that account which Roger Wendover and Matthew Paris have given us of it which though Hoveden and other Writers have omitted yet doth it not therefore follow that this was all the pure invention of Roger of Wendover or Matthew Pariâ— since the former he living near that time might write from the relation of â—oâ—e that were then present and as for the latter I look upon him though a Monk as a man of too great integrity to invent any thing of his own Head and though I confess the account that Arch-bishop Hubert gives why he put King Iohn's Title rather upon Election than Succession looks very suspicious since the Arch-bishop must thereby have made himself a Knave and a Hypocrite and seems also to contradict what Matthew Paris had before said viz. That all those that heard his Speech dares not so much as doubt of these things knowing that the Arch-bishop had not thâ—s judged of this matter without cause and therefore I grant that this part of the relation concerning the Arch-bishops vindicating of himself for thus giving his Judgment might be a Story commonly taken up and being told to this Authour was by him inserted in his History at a time when I grant the Crown of England began to be thought successive by reason that King Henry the III. had succeeded as the eldest Son of his Father though he was noâ— for all that admitted without Election as I shall prove by and by but that King Iohn was made King by Election though he claim'd it from his Brother by successiâ—n likewise appears from his own Charter still to be seen at this day in the Arch-bishops Archives at Lambeth wherein he recites that he came to the Crown Iure hereditario mediante tam Cleri quam populi unanimi consensu favore where you see plainly that he derives his Title from the consent and favour of the Clergy and People as well as his own Hereditary Right M. Notwithstanding what you have now said I cannot agree with you that by these words you have now cited from this Charter is to be understood any formal Election of the Clergy and People but that this unanimous consent mention'd in it was rather their acknowledgment of his Title and submission to him than any thing else for according to Hoveden's relation of his coming to the Crown which I think the most exact extant the whole Nation submitted and swore Fealty to him against all men before he came over into England But as for his Son Henry the III. it is much more plain that he succeeded by Succession and not by Election as being the Eldest Son of the Late King his Father as appears by the relation of his Coronation in Matthew Westminster who tells us thus Henricus Iohannis primogenitus in Regem inunctus solemniter Coronatus est and tho from the Speech which was made to the Clergy and Nobility that was then at Gloucester by the Earl Mareshall 't is pretended that Henry was Elected yet I dare say if any one do but impartially consider the tenour of it he will find that the design of it was rather to persuade all those then present to return to their duty and acknowledge Him for their King whom God and Nature had designed for that great charge for the Earl begins his discourse to 'em thus as it is in Knighton Ecce Rex Vester which certainly could not then be true if an Election was necessary to make him such but amongst the rest of his Arguments he urges this Hunc igitur libeat regem dicere cui ipsum Regnum debetur you ought to chuse him to whom the Kingdom is due which surely it can be to none if it be not Hereditary and what puts all out of doubt that the Kingdom was not then and if not then I am sure never since Elective is the answer of Hubert de Burgh to Lewis when he summon'd him to deliver up Dover Castle to him since his Master for whose use and service he held it was dead but see his answer If my old Master say's he he dead he has left behind him Sons and Daughters to succeed him A thing he never would have asserted had he not thought there had been a Divine Right somewhere else than in the People F. Before I speak any thing to King Henry the III ds Election give me leave to reply to what you have said against the express words of King Iohns Charter for if Favor and Consensus does not signifie somewhat more than a bare acknowledgement and submission I understand neither English nor Latine Nor is this any answer to the express testimony of Roger of Wendover and Mat. Paris to the contrary And as for Roger Hoveden he does not say he was not Elected but only omits the manner of it as divers other Historians do So that at the best this is but a negative Argument And yet that Hoveden himself did not look upon him as King even after the whole Nation had sworn Fealty to him before his Coronation may appear from this passage a little before his coming over Wâ—â—ielmus Rex Scotorum misit
ordered and disposed of all publick Affairs conferr'd Offices and Bishopricks as if they were lawful Kings before your pretended Election or the ceremony of their Coronation and also had Ambassadors sent to them from Foreign Princes as appears from your own Quotation out of Hoveden Of those that were sent by the King of Scots to King Iohn before he was crowned though it is true he there stiles him no more than Duke of Normandy And this also may further appear by that passage I have cited out of the same Author that King Richard had Fealty Sworn to him as King of England by all the Freemen of England before he was Crown'd and you your self acknowledge the same Oath to be taken by the same persons to King Iohn before he came over to take the Crown And Lastly To make it yet plainer that there was no Vacancy or Inter-regnum in all these Successions you have mention'd consult what Chronologer you please or look into the most ancient Tables of the Succession of our Kings of England or into our old Printed Statutes or Law Books and you will still find the Reign of the Suceeding Prince to commence from the Death of his next Predecessor without any Vacancy or Inter-regnum between And these I think to be a great deal surer marks of their succeeding to their Royal Dignity by a pretence at least of a right of Inheritance from their Father or Brother rather thau this fancy of yours that you lay so much stress upon That because of their not being stiled Kings by our Historians till their pretended Election and Coronation was over they were not so indeed And I hope this may serve to satisfie this mighty Objection F. I must beg your pardon if I still declare my self not satisfied with your answers for though I grant that if this Argument of the Historians not stiling them Kings had stood single without any thing else to support it that your answers might have signified something But if you please better to consider it you will find that of these Princes taking in William your Conqueror claimed as your self must acknowledge not by any Hereditary right but by the Testament of the deceased Predecessor and if so where was your setled right of Succession by right of Blood Secondly It is likewise as plain that these four were never admitted or acted in England as lawful Kings till those Testaments were confirmed by the Election of the Great Council before whom they declar'd their Rights And till this was done how the Throne could be otherwise than Vacant I cannot for my Life conceive But as for two of them whom you call downright Usurpers viz. Henry the I and King Stephen it is certain they could have no colour of a Title till their Elections and if not till then and that neither your next Heir of the Crown nor yet they themselves took upon them the Title of Kings Was not this a Vacancy of the Throne in the mean time Suppose that time to have been but for the space of three or four days as it was after the death of King William Rufus In the next place pray consider that upon the death of every one of these Princes we do not find the Great Council of the Kingdom which still assembled to Elect the Successor was ever call'd in their names but met by their own Inherent Authority for how could they be summon'd by the King before he took that Title upon him which as your self are forced to acknowledge he never did till after his Coronation Lastly Pray remember farther that whoever was thus Elected and Confirm'd by the Great Council whether he was next Heir by Blood or not was always looked upon as Lawful King and has always passed for such in all our Chronicles and Laws and not those that claimed as the right Heirs by Blood and if this be not sufficient to prove that these Princes had no true and compleat right to the Crown till this Election was past I desire you would shew me my mistake These things premis'd I think it will be very easie to reply to every one of those answers you pretend to have made to my Query Therefore as to your First That they were really Kings before their Election or Coronation because they order'd and dispos'd of all publick affairs I do not deny but that some of them who Succeeded either as Heirs by Testament or by right of Blood might do many publick Acts by reason that they looked upon themselves as Heirs Apparent to the Kingdom and whom the Great Council I grant could not without high Injustice set aside and upon this account they might also receive Ambassadors from Foreign Princes in Affairs relating to Peace or War that they might know how to deal with them or what to expect from them after they were setled in the Throne yet that they sent not to them by the Title of Kings appears by that passage I cited out of Hoveden but I defie you to shew me any one instance that any of these Princes above mention'd ever took upon them to exercise any of those Prerogatives of Sovereign Power such as making War or Peace Enacting Laws Coining of Money before their Election and Coronation which though in some of them was done both at once yet in others it appears plainly to have been at different times and not upon the same day as it happen'd in the case of Henry I. whose Election was at Winchester upon Saturday and his Coronation was not till the next day as also that of Henry the 3 d. whose Election was upon St. Simon and Iude's Day but his Coronation not till the day after But as for your next reply which I grant to have been the strongest you have made that King Richard I. and King Iohn had both of them Homage and Fealty sworn to them as Kings by all the Freemen of England before they were Crowned this were a material argument if it were made out as I think it cannot for in the first place the bare swearing of Homage and Fealty to a Prince doth not make him immediately King though I grant it might give him in that Age a right to be looked upon as Heir Apparent to the Crown thus Henry the I. made all the Lords and Great Men of England to swear Homage and Fealty to Prince William his Son and so after his being drown'd to the Empress Maud his Daughter which was the true reason why she looked upon her self afterwards as Heiress to the Crown so likewise King Stephen a little before his Death at the great Council I have mention'd caus'd all the great men of the Kingdom to Swear Homage and Fealty to Henry Duke of Anjou as his immediate Successour so that you see this swearing of Fealty was in those days often perform'd â—efore the persons that received it were Kings indeed and so I believe it was done in both those instances you now give me for though I
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
of the great Council and the common University of the whole Kingdom for it is obvious that when all the Lay Lords Earls and Barons to whom you may also add your Tenants in Capite if you please being met together were asked by the Bishops Abbots and Priors then present whether they would agree with them or not the Eaâ—ls and Barons answered for themselves that they would do nothing without the Common Vniversity which could not possibly be only the Lords Spiritual and Temporal and Tenants in Capite since it is plain they were now all here and referred themselves to another distinct order of Men different from themselves who were not there present as also from the Bishops Abbots and Priors who demanded there Consents to what they had agreed upon Now if the Temporal Lords and Tenants in Capite had concurred here had been the consent of the Common Vniversity of Lords and Tenants in Capite but besides the consent of all these there was notwistanding it seems required the Consent of another body of Men called here the Communis Vniversitas by which must be meant the Commons or no body since otherwise they might have all agreed together without any more ado M. I confess this Story out of Mat. Paris looks somewhat plausible at the first on your side but I doubt not if it be better considered it will do you little Service for what if by this Common Vniversity is to be understood the whole body of lesser Tenants in Capite who not â—itting with the Lords at that time they would do nothing without their Consents till it was proposes to them but that they did afterwards all agree pray read the rest of this Narration and it will make it clear enough that this Common Vniversity of Tenants in Capite did also agree with the Lords Bishops and Abbots the words immediately following in Mat. Paris are these Tunc de communi assensu electi fuerunt ex parte cleri Blectus Cantuariensis Wintoniensis Lincolniensis Wigoriensis Episcopi ex parte Laicorum Richardus Comes Frater Domini Regâ—â— Comes Bigod Comes Legr S. de Monteforti Comes Maresâ—ballus ex parte vero Baronum Richardus de Montfiâ—hes Iohannes de Baliol de Sancto Edmundo Rameseit Abbates ut quod isli duodecim providerâ—nt in communi recitaretur nec aliqua forma Domino Regi ostenderetur Authoritate duodecim nisi omnium communis assensus interveniret from which last passage it appears plain to me that in this Parliament the several Orders of men that were the constituent parts of it were only the Bishops Abbots Priors Earls and Barons and that all these put together were termed the Common Vniversity which is more comprehensive then University simply taken now if the Commons as at this day represented had been there we must have had some mention of them one way or other as well as of the Committees of the other Orders which made up the general Committee of Twelve so that it is plain beyond doubt that the Commons were not part of the Common Vniversity F. Then pray tell me who they were for the Historian tells that when all these Bishops Abbots Priors had now met together with the Earls and Barons yet these last â—ell them that without the Common University they could do nothing which had been nonsense if as your Doctor supposes the whole University or Community of the Kingdom had been all present M. I must confess this is a material Objection but what if to help him out I should tell you that by the Common University here mentioned is to be understood the body of the inferior Tenants in Capite under the degree of Barons and this Common University of Tenants in Capite might not have been present and sat with the Earls and Barons at that time when the Bishops and Abbots made this Proposal therefore the Lords might very well answer that till they had consulted the Common Universty or Body of Tenants in Capite they could do nothâ—ng and though this Body of Tenants in Capite did not then actually sit with the Earls and Barons yet doth it not follow that they made a distinct Estate by themselves different from that of the Lords or greater Tenants in Capite for then the Arch-bishops Bishops Abbots c. who are here expresly said to have consulted by themselves must have done so likewise therefore though our Author is not so particular as he might have been yet certainly this Common University were thereupon consulted and gave their Assents to the choice of this Committee of Twelve who were to draw up their answer to the King for the words are tunc ex communi assensu electi fuerunt which seem to refer to the Common University or Body of Tenants in Capite or else the Lords Excuse as well as the Election of these Persons by the Bishops Earls c. had been very insignificant F. This seems to me to be a precarious assertion and without any due proof for tho the words are Tunc ex Communi Assensu yet I very much doubt whether these words do refer to the Common Vniversity of the whole Kingdom or not for your self confess that Mat. Paris is short in this point and that it was not so seems most likely to me by this material circumstance that not one Person of the Twelve but was either a Bishop Earl or great Baron For that Richard de Monâ—sichet and Iohn de Baliot were so Sir William Dugdale hath proved in his Baronage of England Whereas if the University or Body of the Tenants in Capite had joyned in this Election it is not likely but they would have chosen some of their own Body to represent them in this Committee who were not Earls or Barons Since your self must confess that they then were a great Body of Men who were not Lords nor did at this time Sit or Act Joyntly with the Lords or greater Barons in this Assembly and likewise it farther seems highly probable that this Common Vniversity of Tenants in Capite take it in your sense did not give any Resolution in this matter since we do not find any Mony given in answer to the King's Request but only Complaints of and orders about Redressing of Grievances which was in those days often done in a great Council of the Bishops Lords and Tenants in Capite But I shall shew you now by some other Records which the Dr. himself hath made use of that there often was a distinct Assembly or Council of the Lords and Tenants in Capite different from that of the Commons or Commonalty of the whole Kingdom The first Record is to be found among the Patent Rolls of the 42. Hen. III. beginning thus Rex omnibus c. cum negotiis nostris arduis nos Râ—gnum nostrum contingentibus Proceres Fideles Regni nostri ad nos London in Quindena Paschae proximae praeterita faceremus convocari
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
to their present Majesties could be lawfully deprived of their Bishopricks Collected out of the Best Authors as well Antient as Modern The Thirteenth and last Dialogue LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford-Arms where also may be had the First Second Third Fourth Fifth Sixth Seventh Eighth Ninth Tenth Eleventh Twelvth and Thirteenth Dialogues 1694. Authors most commonly used in this Discourse and how denoted in the Margin A Discourse concerning the signification of the word Allegiance as it is made use of in this New Oath of Allegiance D. A. Animadversions on the Modern Explanation of the Statute of the 11th of Henry the Seventh Chap. 1. A. 11th H. 7th An Enquiry into the Nature of Legal Rights c. E. L. R. The Case of Allegiance c. C. A. An Essay concerning Obedience to the present Powers Having not the Treatise called the Title of a King in Possession by me at the Writing of this Discourse I could not quote it yet all the chief Arguments in it being either the same that are made use of by the Authors of the two first Treatises above mentioned are answered in this Discourse either by my self or the Reverend Author of the Case of Allegiance ADVERTISEMENT BY the first Day of March next will be published a General Title-Page with a large Alphabetical Index to the whole Work THE PREFACE TO THE READER HAving in the two last Discourses considered the Lawfulness and justice of King Jame's Abdication as as also of the late Conventions place King William and Queen Mary in the Throne it might have seem'd needless to add any thing farther on this Subject had it not been for the satisfaction of so many of the Clergy as well as Laity who not being satisfied with the rightfulness of their Majesties Title nor with the Declaration of the said Convention whereby they are Recognized to be of Right and by the Laws of this Realm King and Queen of England c. have taken an Oath of Allegiance to them only as King and Queen de facto or for the time being For the justification of which it was necessary to consider all that can reasonably be said upon this Question according to those several Heads set down in the Title Page of this Discourse for the performance of which I shall only tell you that it is a Collection out of the best Treatises that have been written on this Subject and from the best Reasons that I could gather by discoursing with divers Learned Men who have refused this Oath who if they have done it out of Conscience as we ought charitably to believe they have are infinitely to be preferred in the Opinions of all honest men before divers others who I doubt have taken the Oath with dissastisfied Consciences for meer gain or the consideration of worldly advantages and with a design to return to their former Allegiance to King James as soon as with safety they may and who though they have taken this Oath themselves yet do more highly applaud and favour the refusers than those that have taken it with truly satisfied Consciences and intend to keep it when they have done But though I confess I have here urged all the cogent Reasons I could Collect either from the Law of the Land or that of Nature for the taking this Oath to their present Majesties I must also acknowledge that though I have taken some answers out of a Learned Drs. Case of Allegiance yet I must confess I absolutely waved entering into the defence of that Hypothesis upon which that Treatise is built since it would not only be tedious but unnecessary tedious because it would be too long for such a short Discourse as this to repeat all the Arguments he has made use of together with all the answers that have been made to it in so many Treatises that have been written against it unnecessary not only because I take a different Method from his and have ran into all those dark Labyrinths of Law and History which he sedulously avoids but also because his Hypothesis of making Allegiance due to the meer possession of Power as to the Ordinance of God let the Possessor come by it which way he will and that without any Election or Recognition of the People is that which satisfies no party of Men concerned in the present Dispute not the Jacobite for he cries out that it is but the same Argument new vamp'd which John Goodwyn and Ascham set up for Obedience to Oliver and the Rump and that upon this ground the Great Turk should he once Conquer England would have as much right to our Alegiance as King James himself whilst those who have acted out of a Principle on the behalf of their present Majesties say that by his thus setting them up with an absolute irresistible Power we do but change hands and it is no thanks to his Hypothesis if we fall not into the same Arbitrary Government which by King James's Abdication we have so wonderfully escaped I have therefore confined my self in this Discourse only to such Arguments as can be deduced from Reason History or the Law of the Land since I must freely confess that the Arguments that Reverend Author has made us of from Scripture for the support of his Opinion seem to me a much darker Labyrinth than what he endeavours to shun But as to point of time I have resolved to look no farther than the first six Weeks of their Majesties Reign to avoid either the arraigning or defending any thing that has happen'd since that time And tho' I have taken no notice of this present Parliaments Recognition of their Majesties Title as being done after the time to which I limit this Discourse though what was done by the former Parliament may be sufficiently defended upon the grounds I have laid down in this and the former Discourse yet do I not deny but that the solemn Recognition of a free Parliament summon'd in their Majesties Name has taken away those Obejections which were made against the Conventions declaring them to be rightful King and Queen and then Voting themselves a Parliament when they were not Summoned by Writs issued in the Name of the King or Queen according to the usual form Only I must confess I have made bold in one Point to look beyond the time prefixt and that is in relation to the late Schism began by some of our Clergy and carried on by some of the Laity who refused the present Oaths but since I have made use of some Reasons against it which have not as I know of been yet hit upon by any former Writers on this Subject I wish they may prove for their satisfaction but if not since I write only to discover truth I desire that any of the present new Dissenters will shew me my mistakes and I shall take it kindly not only for my own sake but that of others who may otherwise be misled by my Arguments I have only