say that whatever out of the strength of his wit He alledges on the other side yet this Charter is no more valid in his judgment than in other folks And I do not mean that 't is become now invalid by the force of Prescription for this he has sufficiently declared but that it was originally and always invalid Truly I am mistaken if this may not be concluded from what he says elsewhere when dis-engaged from the desire of making good his Argument he frankly discovers his true sentiments Pag. 239. considering an observation made in a former Letter on the particular Fact of the Emperour Frederick he replies That whether supreme Princes may put it into a Forreigners power to compel them to cession by a direct deprivation of their Right of Government is a case which he thinks none will easily grant to be either Just or Secure for the Common-wealth for which they were concern'd I conceive that when K. John resign'd his Kingdom and receiv'd it again to hold of the Pope as principal Lord to whom he became a Vassal He put it into the power of a Forreigner to compel him not only by Ecclesiastical Censures but by a direct deprivation of his Right of Government And this he declares to be Unjust and Unsafe for the Commonwealth King John then even in his own opinion did unjustly and against the good of the Commonwealth that is had not Right to do what he did and his Act was invalid from the beginning I suppose therefore He will acknowledg on second thoughts that there are other ways to bound the actions of supreme Princes besides Compacts and Concessions and that Justice and the Safety of the Commonwealth are two of those ways in which other Princes were obliged to walk as well as K. John and if they did not their Actions are not to be drawn into example I will hope the Question is resolved to satisfaction For I know no fairer nor surer way to end a difference than to put it to Judgment And since 't is judged on my side by an Authority from which there lyes no appeal and by those who one would expect should be most partial on the other Those who contriv'd the Deed and Him who urges it Of the Popes Temporal Monarchy I should think there is no more to be desir'd If any mans curiosity reach further he may find wherewith to satisfie it in those who have already handled this Subject particularly the learned Crakanthrop But to touch briefly what is more largely treated elsewhere the Charter contradicts and destroys it self reserving in one place what it grants in another There is in it an express saving of the Rights given away by this clause Salvis nobis Haeredibus nostris Justitiis Libertatibus Regalibus nostris Nothing can be more manifest than that the Independency of the Crown belongs to the Regalia and again that subjection is opposite to Liberty And yet the Regalia and Liberty are expresly reserv'd at the same time when the Crown is made Dependent and Subject This is just I give you a hundred pound which hundred pound I keep to my self Which is an unvalid and self-destructive Act and passes nothing and is in truth a piece of Non-sence not a Gift Again that the Regalia Imperii are Inalienabilia without consent of the Subjects is a point setled by a consent so unanimous of all Nations that there is no Maxim more known 'T is very troublesome and more idle to fill paper with Quotations for a point better known than the Author to be quoted This too is a receiv'd Maxim that Metus cadens in virum constantem nuls the Act extorted by fear of which besides a hundred examples in all nations some even of Popes themselves who upon that ground have voided their own Acts the Pope to whom this Grant was made has left a very pregnant instance in the case of this very King The Barons a little after obtained the Magna Charta from him confirmed by all the security they could devise The Pope solemnly declares all proceedings void because extorted by fear But it is most evident that K. John had no greater cause of fear when he past the Magna Charta than he had when he signed the Charter to the Pope Pandulph brought him to it by exaggerating his imminent danger the French with a vast Army ready to land backt with the Ecclesiastical power of the Clergy and Arms of the Laity whereof many of the principal were said to have oblig'd themselves by authentick Charters to assist the French The King yielded confusus valde mente nimis perturbatus videns undique sibi periculum imminere in the words of M. Paris Could there be more fear from the Barons alone than from the same Barons and French and Pope too Or could his fear in one case make his Act void and signify nothing in the other So that there is this very good reason to believe that the Pope himself to whom the Kingdom was granted judged the Grant nul because he declared an Act of the same King nul by a less fear than that which extorted his Grant This too was understood by those who drew the Charter and inserted this other clause Non vi inducti nec Timore coacti sed nostra bona spontaneaque voluntate By which it is apparent that there was more than one clause contrary to Truth and that more was requisite to the validity of the Act even in the judgment of the Contrivers than could be had Which is that the Act was invalid as wanting what themselves thought necessary to make it valid By this and much more alledged by divers the Nullity of that Grant of K. John appears I think very undeniably supposing in him all the Right which can be supposed in any King of England But by our Authors favour what he takes for granted that K. John had undoubted Kight to the Crown at the passing of this act is very far from undoubted A Sister of Arthur's was then living and long after in whom the Right of Arthur could not but be When K. John by his success at Mirabel got Arthur into his hands he made use of the opportunity of his victory to seize likewise upon his Sister Elianor whom he brought into England and confin'd to Bristol Castle There was another and I think an elder Sister but what became of her I know not In likelyhood she died before these times But this Lady surviv'd her Uncle The Pope mentions her among those who had right to the Crown to the Embassadors of Lewis M. Paris ad an 1216. who sought to justify their Masters title to England and the French objected against her what if it have any force in their Law has none in ours For it is a plain case that the elder line takes place of the younger in the inheritance of the Crown and no act or forfeiture of K. John could bar the right of
Violent but having to do with a Prince both Resolute and Prudent he found but bad success The Pope perswades the King to an expedition into the Holy Land to promote vvhich business He exacts the Tithes of Church Livings in France and reserves the Collation of all Benefices there to himself The King excuses the one and plainly denies the other The hot Pope sends the Bishop of Apamea to threaten him with Censures and Deposition unless he yielded to him The King calls the States and upon Consultation with them resolves the Legat deserv'd to be imprisoned but for reverence to the See Apostolic banishes him and for his Threats contemns them The Legat not content to scape scot-free falls a new to Threats which the King resenting commits him to custody to the Metropolitan The Pope complains of the breach of Ecclesiastical Immunity and commands his Legat should be immediately return'd These Letters being read in an Assembly of the States the Count of Arras as hot every jot as the Pope throws them into the fire This put the Pope quite out of patience Wherefore he Cites both King and Bishops to Rome where he had appointed a Synod and in the mean time declares the Kingdom of France for Contumacy Felony and Violating the Law of Nations devolved to the Apostolic See writing thus peremptorily to the King We would have you to know that you are subject to us both in Spirituals and Temporals and who thinks otherwise we repute Heretics The King upon the receipt of these Letters calls the States again and by their Advice frames an Answer every jot as smart and something more homely We would have your foolishness know we are subject to none in Temporals and who thinks otherwise we take for mad men And withal appeals to a future General Councel and objects several Crimes to the Pope to be made good when the Councel should sit and in the mean time forbids all intercourse vvith Rome This Answer being brought to Rome by three Bishops deputed for that purpose the Pope began to be startled and at last confesses That to usurp the Kings Jurisdiction belonged not to him nevertheless that in respect of Sin the King could not deny but he was subject to the Pope This put them to examine how far and in what manner he was subject to him and one of the Cardinals in a Consistory in which the French Embassadours were present resolves the case in this manner That Supream Dominion belong'd properly to the Pope but the Administration to Kings and therefore all Christian Kings vvere subject to the judgment of the Pope even in Temporals in regard of his Supream Dominion But this satisfi'd not the Embassadours at Rome and the States in France resuming the Debate declar'd positively the King in Temporals vvas subject to God alone and ow'd his Crown and Power only to him Nevertheless this Subjection on the account of Sin seems to be the ground of the distinction betwixt Direct and Indirect Power though I conceive it borrowed from Innocent the IVth some time before upon occasion of a Contest betwixt John King of England and Philip Augustus of France vvho prosecuting the King of England for default of Homage for some Dukedoms in France c. King John appeals to the Pope Philip maintained that being a Temporal business he had nothing to do vvith it The Pope was vvilling to favour the English and therefore assumes cognisance of the Cause upon pretence that there was an Oath in the case the violation of vvhich being Sin belong'd properly to his Tribunal And this Resolution having been put into a Decree and that Decree into the Canon-Law seems the principal foundation of Indirect Power I must confess I do not well understand how either this Canon which is in the Decretals C. Novit Ille de Judiciis or the other C. per Venerabilem Qui filii sint legitimi which are the two usually cited both of Innocent III. make to the purpose The former was made upon the occasion now mentioned and in it the Pope speaks thus We intend not to Judge of the Fee whereof the cognisance belongs to him the King but to decree of the Sin whereof the Censure without doubt pertains to us which we may and ought to exercise on every one None of sound Judgment is ignorant that it belongs to our Office to correct every Christian for any mortal Sin and if he despise Correction to constrain him by Ecclesiastical punishment c. Where the Pope saies Correct the Gloss adds Indirectly which single word and that not explicated is the main Authority for the distinction of Direct and Indirect Power now in question The other Canon per Venerabilem was made upon this occasion Philip Augustus of France had put away his Wife and taken as I remember the Countess of Anjou and had Children by her These Children at his request the Pope Legitimates while the suit yet depended of the validity of his former Marriage For the King alledged it was invalid But as the Example of Kings is apt to be follow'd Some body leaves his Wife too and has Children by another Woman and then sollicites the Pope to Legitimate them as he had done the King's The Pope refuses to yield his Request but withal owns a Power to have granted it if he had found it reasonable and proves it by several Arguments and amongst other passages has these words We exercise temporal Jurisdiction not only in the Patrimony of the Church where we have full power in Temporals but in other Countries also casually upon inspection of certain Causes These certain Causes the Gloss interprets to be when He is required Now both these Cases seem to me far enough from the inferring the Deposing Power which was not at all in question but Legitimation in the one and Cognisance of a Temporal business in the other And though the Pope assume both yet he is very sollicitous to prove they are within his Sphere as both may be and yet nothing follow in behalf of his Indirect disposing For he may Legitimate Children in order to Spiritual capacities and leave them in the same condition in which they were before as to Inheritance and other Temporal concerns Again He may Judge of Sin and punish it in his own Court with Spiritual punishments and let Temporal punishments alone to whom they belong the Temporal Magistrate And since he expresly limits himself to Ecclesiastical punishments methinks it is to strain Logic a little to far to infer out of them a right to Punish by Deposition However in my opinion this difference in the manner of Explicating this Power sometimes Casualiter sometimes Indirecte sometimes Ratione peccati which differ sufficiently though they Cite the Authorities indifferently as if they were all one is a sign they were at first not very cleer in this business in Explicating which they hit it no better Notwithstanding the Indirect Power has at last got the Vogue and most
there was exactness enough to take notice of single pence the Crown sure could not pass by unregarded If any man fancy want of fidelity in our Historians might possibly suppress so ungrateful a Truth let him produce those more faithful Forreigners who have recorded it But considering the Zeal of those times and mighty opinion they had of Rome when the greatest Kings frequently became Pilgrims and sometimes left their Kingdoms wholly and became Monks there the suspicion lyes on the other side it being more rational to fancy an amplification than suppression of things to their advantage However such an Alms as a Kingdom could not but make a noise loud enough to reach even our ears and had the Romescot charity been extended to the Regalities we must have heard of it as well as of private houses By the way I am not ignorant what Comments have been made on that Alms but I think it not convenient to lose time in confuting them 'T is to give them more credit than they deserve for he enhances the value of Trifles who treats them like things of moment The memory of passages since the Heptarchy is too fresh and too minute to leave place for suspicion that a matter of such moment should scape unobserved And besides there is among the Works of Lanfranc a Letter of William the Conquerour to Pope Gregory VII which puts the matter out of doubt That Pope had the confidence to demand of that King an acknowledgment of subjection Fidelitatem or Fealty as the phrase runs I know not upon what ground For though I have read somewhere that the Conquerour to gain the Pope to his side when he attempted the enterprize promis'd in case of success to hold the Kingdom of the Pope Ep. Lanfranc VII yet it appears by the Kings answer that he was mistaken who said so Fidelitatem facere nolui nec volo says the King quia nec ego promisi nec Antecessores meos Antecessoribus tuis id fecisse comperio So that till the Conquest England was free and that it became subject since sure no body will imagin The first Kings of the Norman race were men of too great spirits and contested with the Pope about matters of less importance too warmly to be suspected of giving away their Kingdoms He that reflects what bustles there were about Investitures in the dayes of Henry I. and Immunities of the Church in the dayes of Henry II. will find it neither likely nor possible the greatest rights of the Crown should be thrown away while Princes were so tenacious of the less It is true that both these Kings yielded at last to the Pope but with a condescendence so far from any sign of subjection that there was more of appearance than substance in the first case and a great deal of caution in the second no subjection nor shew of any in either The Contrast between Henry I. and the Pope was about Investitures the King desirous to continue the custom of ratifying the election of Bishops and Abbots by delivering a Ring and Staff to the Elect and the Pope resolv'd to break it The conclusion was that the Ceremony should no more be used but so that the King should chuse or cause to be chosen the person and receive homage from him that was chosen Investituram Annuli Baculi indulsit in perpetuum retento tamen electionis regalium privilegio says Will. Malmsbury Upon the same terms In Hen. 1. lib. 5. a few years after the same difference was compounded with the Emperour in which if I understand any thing the same expedient was then used which is generally observed since To preserve reputation and Appearance to the Pope and substance to Princes For while They had the chief influence in elections and none could be promoted but by their interposition the rest was a Ceremony which might without any great prejudice be left off Again when the persons Elect were by homage to acknowledg themselves Subjects to their Princes they had as much as they desir'd Indeed till this point was yielded by the Pope for it was a while stifly stood upon no agreement could be made But after Peace soon followed The quarrel of Henry II. was about the Customs of Clarendon in which the chief point was that of Appeals This point the Pope gain'd of the King yet with this caution that the Appellant should give security to attempt nothing to the prejudice of King or Kingdom It was now a time if ever for the Popes supreme Lordship to appear He was in the humour of asserting at least all that belong'd to him The World was incens'd against the King for the foulness of the late murther and ready to take the Popes part The King found it necessary to buy his peace even at the rate of pretensions very dear to him and for which he had long and earnestly contended Had the Pope been supreme Lord he would hardly have scaped so good cheap Murther and Sacriledge might have cost him the whole Kingdom For feudatory Lands are forfeited by great crimes However this supreme Dominion must needs have appeared in the transaction The King was not in case to refuse any thing due to the Pope who yielded up what till then he thought not due and besides the tenor of the agreement must have been quite different and drawn in terms us'd betwixt Vassals and Lords But instead of an acknowledgment of this nature all the disadvantage the King had in treating could not prevail with him to acknowledg the Pope so much as Pope longer than the Pope should acknowledg and treat him as King So that by the favour of the Cardinals Acts this King left the Crown as free as he found it nor can the King be yet found out on whom the suspicion should fall of having made it subject If I am not much mistaken the Popes in those daies were of a judgment very different from that which Baronius has taken up in ours For how can the conceit of a Vassalage in the time of this King consist with what hapned a little after in the reign of K. John Neither could K. John make England tributary if it were so before neither could the Pope desire he should Besides disobedience in a Vassal and what is more stubborn contrasting with a supream Lord especially when that supream Lord is the Pope would sure have been thought as great a crime as refusing an Archbishop made without his privity and against his will Why was not this laid to the Kings charge and called Rebellion When the severity of the proceedings against him perhaps needed all the colour which could be laid on Without all doubt the Pope when he had the King at his mercy would never have been contented with the bare acknowledgment of subjection if he had known subjection was due before He had prosecuted the King to the utmost extremity Interdicted the Kingdom excommunicated his Person and at last deposed and
unfitly is not what the world means by Right Right to do ill sounds very like Right to do wrong and is in this case neither better nor worse For if arbitrary placing of Governors be against the good of the Commonwealth and Right or Just signify as much as Fit or Good and that as at present it must with respect to the Commonwealth there is a Right in the Commonwealth which requires their Princes should not be set over them arbitrarily and those arbitrary dispositions of the Crown were manifestly against Right And yet perhaps it is enough that they were unreasonable and unfit For unreasonable Actions are no more to be drawn into consequence than unjust ones and peradventure bind no more where collateral considerations do not give them a strength which they have not of themselves I have alledged these considerations more to hint what may be said than because I think nothing else can For after all it may with truth be maintained that the power of the first Norman Princes and of the Conqueror himself as well as the rest was actually confined and in the manner our Author would have it by voluntary Concessions long before Magna Charta and the establishment of those liberties to the subject which he supposes confine it now They all took Oaths at their Coronation and bound themselves to the observation of Justice If an Oath do not bind a Prince an Oath deliberately and solemnly made in the face of God and Man in a matter too mainly concerning the good of the Commonwealth for whose security he gives that Oath and which she accepts as full security there is no talking of Confinement upon him of security to a Commonwealth of Laws and Obligations and Compacts but all must be left to the arbitrary unconfin'd pleasure of one man a Position which is the Freedom of this part of the world I suppose will not find much entertainment However it is the strength even of Magna Charta it self which cannot confine a Prince if his Oath do not first confine him to observe it Now who swears to render Justice undoubtedly swears to render Justice to the Kingdom in the first place For the concern of the whole is the concern of all particulars every one being as much and perhaps more interested in the Rights of the Kingdom than in his private pretensions If any man doubt of this I suppose no Englishman at least will doubt but that he is to acquiesce to the Judgment of Parliament And it is positively declared by Parliament 40 Ed. 3 that the Fact of K. John was contrary to his Coronation Oath in which nevertheless for ought I can find there is nothing more than general expressions of rendring Justice However it be since it is a judged case that K. John broke his Oath in his arbitrary disposition of the Kingdom it is a judged case that his Power was confined in that particular and this independently of Magna Charta and all subsequent Compacts And if his then sure of all the rest for they all swear as much as He. But if any man will continue stiff in this opinion and believe nothing able to confine the arbitrary power of Conquerors but their own Concessions I would entreat him to direct me to that Concession which has confin'd their power in this point besides their Coronation Oath I do not find either in Mag. Charta or any where else any Article concerning the disposition of the Crown Learneder men may know more but my Ignorance perswades me that if the Norman Princes had such a Right and that Right can only be restrained by voluntary Concessions and those direct to the point their Successors have it still And 't is not easie to be perswaded otherwise till the Concession appear But this no Englishman can either say or think nothing being more notorious than that it cannot be done now Whoever will take the pains to examin how it comes to pass that this original power is now restrained will not easily be satisfi'd if nothing else will satisfie him but a direct Concession I believe he will be forc'd to confess at last that such a Concession is neither extant nor needful and acknowledg that Power is bounded as truly and as strongly by Nature as Grants Upon the whole I conceive there may in the first Norman Princes be considered the Power of Conquerors and Right of Kings That their Power was unconfin'd enough but ought not be drawn into Precedent although it be against all Reason and Justice to question now those effects of their Power which remain among us even to this day For these have strength not from their Power but from what is able to turn Unjust into Just as Titles originally bad become good in process of Time That even their Right was confined the very notion of Right implying limitation For right signifies proportion of the Action to the subject so that an unconfined Right is not Right That their Right was confined in this particular by the good of the Kingdom as has been discours'd before and though it had not Right to what they did is very far from inferring Right to what K. John did the two remarkable precedents mentioned by our Author being so remarkably different from this case that they can be no Precedents nor warrant for it William Rufus reigned after his Father and excluded his Brother in truth by the favour of the Kingdom yet claiming by his Fathers Testament That claim may be allow'd without allowing King Johns resignation For in the Conquerors fact there was no more then of two sons both fit both equal to the Kingdom to prefer whom he thought fittest The Laws and Liberties and condition of the Kingdom was the same under either so that apprehending in likelyhood no greater interest in the business than whether their King should be called William or Robert They approved the Fathers choice and willingly obey'd whom he appointed But King John's Fact was quite of another strain A Stranger and such an one who could never become a denizen one taken up with other cares and dwelling too far off to be ever able to act as was fitting for the good of England was made the supream Lord and which was worse the Tenure of the Kingdom altered and of free turn'd into subject The Kingdom was sensible of their Interest in the business and disclaim'd the fact both then and ever since I am mistaken if Reception of Laws be not generally held a very material consideration to their validity But the cases are otherwise so apparently different that a Right in the Conqueror to dispose of the Crown as he did may safely be granted without any necessity or colour of allowing in consequence a Right to King John to dispose of it as he did If Henry 1. succeeded in vertue of the same Testament his case is the same with the former But this Gentlemans information was better than mine if he had other Title than
which often consideration as it happens in other cases diminishes nothing of the surprize The more I consider the more I wonder and as wondring people do gaze and stare and hardly know what to say I have a great mind bluntly to deny the thing as I would an incredible story related without proof Nothing that ever I heard not the inchantment of O Brazile sounds more incredibly But M. Paris and the rest who record it have never been taxed of feigning and Baronius says he found it in the Vatican 'T is not for me to oppose my perswasion to their credit though all their credit cannot hinder it from sounding still incredibly There are many Islands nearer Rome Cyprus and Candia Sicily Sardignia and the rest If the Pope have a claim as I think he has to some of these surely it is not purely because they are Islands For to some I do not know that he ever pretended The Coast of America has many very considerable Hispaniola Cuba and our Jamaica to say nothing of the rest and nearer at hand the Canaries as little as they are are yet worth having It is as incredible a thing as any can be that Ireland alone should be claimed by a pretence common to innumerable others there being no continent which has not many and no claim made to any of the rest England at least Britain is an Island too How came it to scape and all this bustle made with King John to gain a litigious and unmaintainable pretence to what was clearly the Popes before Again why has this pretence never been set a foot before nor since in no case by no body Were it not for this Bull it could not be known there ever was such a conceit in the world and notwithstanding the Bull it never entred for ought I can learn Eccles E B. Apost Petri Pauli pro continuatione Luminariorum pâ—ssessionum praedâ—a contulimusâ— tam in oriente quam in occidente vel diversis Insulis c. Privileg Constan dist 96. into the head of any other man But whence should this subjection of Islands come From their receiving Christianity If this were so I percieve no difference betwixt Islands and Continents that Christianity should not work the same effects in both For certainly what Christianity does it does every where But that Christianity has no such effect that non eripit mortalia qui regna dat coelestia is known and confest and has been discourst enough formerly If such a thing were once admitted of Islands such another Bull might turn the whole world into one great Island and all were the Popes without more ado Or may the famous Donation of Constantin because it has the word Islands ground this pretence The word indeed is used once but nothing more is said of them than that some revenues are granted out of some of them as well as other places towards maintaining lights at Rome Besides the Donation it self signifies nothing and if it did cannot be stretcht to Ireland which never was in the power of Constantin to dispose of A claim to all Christian Islands can never have its origin from Constantin who was not possess 't of nor so much as acquainted with the hundredth part of them and yet before the end of the world we hope The sun of Justice will shine upon them all Truly I am utterly at a loss and which way soever I turn me can make nothing of it unless the Right of which this Bull speaks be understood of a Spiritual Right Such an one the Pope may claim and that in vertue of their receiving Christianity and if he spoke only of Islands I would think the reason was because the question being only of Ireland it was not to his purpose to speak of Continents So that I would understand the Bull in this manner You desire my favour and counsel in your design upon Ireland which you mean to undertake for the good of the Country in general and the Church in particular Islands belonging to my care as well as the rest of the world I am glad all the good be done there which can and so approve your design and wish you to go on I know not whether I shall not pass for too bold an interpreter but I will hope at least that this is the sence if it be not I should be beholding to him who could instruct me what is But be it what it will I am sure a single line inserted in an old writing no body knows why or upon what ground and never insisted on before nor since no not by the most partial Abetters of the Popes Prerogatives is a sorry evidence by which to claim a Kingdom The Kings of England have held that Country above 500 years and all that time been acknowledged absolute Lords of it by all the world and Popes as well as the rest No Homage no Tribute no Investiture no sign of subjection to the Pope has all this while appeared save in the resignation of King John nothing perform'd on our side nothing so much as demanded on the other The world would run into a fine confusion if such a Title should be questioned because some words are found in a writing 500 years ago which no body can understand Popes have not been careless in their Rights England in some of the intermediate times has been even scrupulously affected to them and a great deal more ready to add to than detract from their due It is not possible but if this Title had been any thing worth we should have heard of it at some time or other elsewhere than in the Bull. At least in the transactions with King John it must of necessity have appeared That King was not in terms to refuse any thing the Pope should demand Had he known of any right to Ireland it had been but saying so for it was upon the matter Ask and Have any pretence in that conjuncture would have served turn And this Bull was not then so old that it could be worn out of memory But it is plain that England and Ireland are both on the same terms in the grant of King John and no right pretended to either but in vertue of that grant Neither indeed can such a pretence consist with the words of it Instead of Offerimus libere concedimus it must have been said we restore or acknowledge or something equivalent by which there might have appear'd not creation of a new Right but recognition of an old For that cannot be granted which is the Grantee's before the Grant nor does a supream Lord receive a Fee from a Vassal by way of gift but obliges the Vassal to acknowledge by Homage and customary duties that it is so or if disuse have withheld his duties and weakned his Title to restore things again to their old condition This instead of granting King John should and the Pope would have made him have done had there been any knowledge of a
Election at least till his Brother consented as he soon did the same title which K. Stephen and after him K. John had to the Crown I should think their Examples a very good Reason that the proceedings of those times are not to be drawn into consequence For if they may it will follow that the Kingdom of England perhaps is at least has been Elective Which I suppose no Englishman will admit if they may not I know not to what purpose they are alledged For these reasons I am perswaded nothing can be drawn from the proceedings of the first Norman Princes to justify the Resignation of King John which is so far from being binding to our times that it never had any validity at all But not to leave the matter disputable betwixt my No and the Yea of who will maintain the contrary I will fairly put it to Judgment and say whatever was done and by whatever right about the times of the Conquest that K. John in particular could not validly do what he did and that this has already been decided and in such manner that there is nothing so firmly setled in the world which may not admit of question as well as this In the reign of Ed. III. the Pope demanded the long unpaid one thousand marks granted by K. John and threatned by legal process to recover this rent A Parliament was called chiefly for this business and it was unanimously resolv'd Rot. Parl. 40 Ed. 3. That neither K. John nor any other could bring Himself his Kingdom or People into such subjection without their consent and against his Coronation Oath And that in case the Pope should by process or otherwise attempt to constrain the King or his Subjects to perform the premisses They would become Parties and resist him with all their Power This is plain and peremptory and directly to the point I cannot but muse to observe them speak doubtingly of the matter of Fact Supplication of Souls and the more because Sr. Tho. More very positively denies the Church of Rome could in his or any time produce such an Evidence When I consider He was a learned man and no Enemy to the Pope had great means of being well acquainted with Records and passages of former times unknown to others and speaks as if he had good ground for what he said I hardly know what to think of it I wish he had inform'd us what his grounds were peradventure there is more to be said than we are aware of But since he has not and the Parliament does not directly deny the Fact I for my part must be contented to take things at the worst and not deny what I cannot disprove I have this for my comfort that if the Fact were true it was in Sr. Tho. More 's words right naught worth and the Authority of Parliament to bear me out By the way our Author in alledging the consent of the Barons at that time the only representative of the Kingdom speaks against a solemn Declaration of Parliament and this undeniable proof may be joyned to what I produc'd before to make good my denial of their consent However the Question is positively decided and by an Authority irrefragable to Englishmen But lest we should be suspected of partiality in our own case let us put it to the Judgment of Forreigners When the differences betwixt this King and the Barons became irreconcileable they sought protection from France The Pope sent a Legat to disswade the French King and his Son from medling with a Kingdom the Dominion whereof belonged now to the Church The word was hardly out of the Legats mouth when the King of France reply'd suddenly M. Paris ad an 1216. That England never had been nor then was nor ever should be the Patrimony of Peter And this besides what he else alledged because no King could give away his Kingdom without consent of his Barons an error which if the Pope would maintain He would give a most pernicious example to all Kingdoms The Nobility present with great heat justify'd this speech of their King and declared they would stand for that point to death viz. that it was not in the power of any King to transfer his Kingdom or make it tributary at pleasure You see I spoke not altogether out of my own head when I refus'd to yield an arbitrary right of disposing Kingdoms even to Conquerors and that I shall not want who will take my part But to let that pass it cannot be attributed to the partiality of our either Country or Times that we hold this Deed of K. John null when it was condemned for such by those who were contemporaries to it and as much abroad as at home Who desires more security is in my opinion a very scrupulous man Notwithstanding let us put it to the Judgment of the very Contrivers of the Deed. I am much mistaken if Themselves had not the same sentiments with the rest of the world If They did not understand well enough that the consent of the Barons was necessary to the validity of the Deed why did they insert that clause Communi Consilio Baronum nostrorum A thing of this consequence undoubtedly was not carelesly hudled up Great deliberation was without question us'd and they would never have put in what they themselves and every body else knew was false but that they were sensible All was to no purpose without it So that in the hard choice of framing a Draught either without Truth or without validity They had an eye to the latter and let the first shift as it could The truth is They had reason it being obvious enough that if they could carry things out at present the Charter it self as all Records are would be a strong Presumption for the truth of what it contains to Posterity But since it is as evident as that there was a Charter that this Clause was untrue it is likewise evident that Those who put it in thought it necessary Wherefore even in their Judgments the Grant was invalid as wanting what themselves thought absolutely requisite You now perceive of what importance this point is of the Consent of the Barons of which I forbore to speak while I was examining whether they consented or no. Neither do I mean to dilate upon it now it being enough to observe that the want of it absolutely invalidates the Grant and this in the Judgment not only of the Framers and of the King and Kingdom of France but of Parliament For you see They positively declare that neither K. John nor any other could bring the Kingdom into subjection without consent of the People who at that time had none but the Barons to consent for them So that not to acquiesce in this point is to refuse the highest Authority of the Nation and who does so is not fit to live in the Nation But shall I venture to joyn our Author himself to the rest of this good company and
Laws the Grant of K. John is void and has been positively declared so by the highest Tribunal among us and from which there lyes no appeal After this to put our selves upon the trial of Prescription seems a kind of submission to forreign Laws a kind of confessing the point and acknowledgment of a superiour Power Again the Law of Prescription is as other Laws made for avoiding confusion in the Commonwealth and securing the properties of members belonging to it That Commonwealths themselves are alwayes subject to the same Laws with their members I cannot easily understand The case of John a Nokes and John a Stiles is different from the supreme Lord of John a Nokes and John a Stiles It is true that generally Crowns are inherited by the same Rules with private Estates But sometimes it happens otherwise and 't is the Interest of the Commonwealth that what is not allow'd in one case should be in another The Crown of England has a priviledge above all Estates which hold of it For it takes away all defects and this whatever be in other places is Law with us I know not how idle time can be spent more idly than in unridling what is subtly proposed by the Sphinxes of Laws with which we have nothing to do while we have Laws of our own whose meaning we know and to whose authority we must and ought submit Notwithstanding if Issue were joyn'd upon this point I think there is no reason to doubt of the sentence The Conditions required to a valid Prescription by those Laws are Possession continu'd all the time determined by Law a Title probably presumed and a prudent Perswasion that the thing in question belongs to the possessor or at least to no body else which they call Bona Fides Now that the Crown of England has been in the possession of those who have worn it neither is nor can be doubted out of Bedlam That this possession has lasted much longer than any time required to Prescription is as plain as the former A hundred years is the longest time allow'd in any case and bars the claim even of the Church of Rome Lessins de Just Jure â—â—l 2. cap. 6. Dub. 12. And which peradventure is more properly the case forty prescribes against a supreme Prince if there be a Title but Time out of mind whether there be or no. Farther that the Title of our Princes is something more than probably presum'd and consequently that their possession has alwayes been accompani'd with bona Fides is as undeniable as all the rest So that I think our Author has reason to believe Prescription a very sufficient Plea against the Pope though I am not of his mind that 't is our only one But this by the by and to shew we need not fear fighting in this quarrel at any weapon Otherwise to my apprehension it is as rational to talk of the Laws of China or Japan as of Emperours and Popes with relation to England Local Laws concern only those who live where they are in force betwixt Nation and Nation there is no other Law but that of Nations and Nature And peradventure if we look better into it Prescription may it self be a Law of Nations For though it be generally taken in the notion of Civil and Canon Lawyers and go attended with the train of conditions plac't about it by them yet it may as properly signifie the same with immemorial Possession So I think our Law understands it without any notice of Title or bona Fides or any thing else but quiet Possession And so it may be this learned Gentleman himself understood it which if he did it is undoubtedly not only a sufficient but the best and strongest Plea that can be It is that whereon the firmness of most perhaps all Commonwealths in the world depends and in which the consent of Nations acknowledges an unquestionable force and which for that reason must needs be grounded on Nature Because Authors commonly take Prescription in the other sence I thought it most convenient to go along with the cry and speak in their language So taken I refuse it for a Judg not that I fear it should give sentence against me but because I think it not qualifi'd to give sentence our case belonging not to the cognisance of that Court But taken in the other sence as I cannot refuse to stand to that on which the security of the world is establish't so it is plainly of my side It being not more known that we are a Nation than that we are independent of forreign subjection and have time out of mind continued in the possession of such independency and in the sight and with the acknowledgment of all the world about us I know not how my pen runs on beyond my design and without necessity for much I think might be spared To make an end since this Fact of K. John was evidently giving away what he had no power to give no not though his right to the Crown had been undoubted which 't is plain it was not since this want of power in him was acknowledged by the very Contrivers of the Charter who were forc't to supply the Defects of which they were sensible by Clauses of Form but evidently against Truth since the Case is already a judg'd Case both at home and abroad since the judgment given at home is peremptorily conclusive and unappealable and has besides been confirm'd by a Possession which to question is to subvert the foundations of Government and render all Common-wealths unsecure and tottering I think no man of sense can be mov'd by any thing which can be said on the Popes behalf in this point But if so much scruple and so little reason may be suspected in our Nation of all men in it the suspicion should not fall on those of our Communion We have given very good evidence of our sence in this point by publickly declaring it For they were of our Communion who made the Act of Parliament mention'd before and solemnly resolv'd this Fact in particular to be void and null And they were of our Communion who in another occasion declared the Independency of the English Crown and its freedom from all earthly subjection and this with relation particularly to the Pope If any one be found scrupulous enough and mad enough against all reason and the judgment of his Ancestors of his own Communion to refuse to give you all imaginable security in this point I consent with all my heart you treat him as a man degenerated from the loyalty of his Ancestors and no company for good Subjects It is now time to make a step into Ireland in which though the novelty of strange places be usually full of wonder yet I do not think to find any thing more wonderful than this Bull of Pope Adrian which you mention That all Islands which have receiv'd Christianity should eo ipso belong to the Church of Rome is a thing in
set the power of France upon him It is not possible he should take for sufficient satisfaction for faults which in his judgment deserved all this rigor a confession that his own was his own and a gift of what was his before But the Kings resignation made amends for all and cleared scores so fully that the Pope ever after was fast to him and heartily took his part in all his necessities Then and not before Popes assumed the liberty to term the Kings of England their Vassals which is a plain acknowledgment that they understood this submission and nothing else authoriz'd them so to do Agreeable to this were the outcries remembred by M. Paris Heu Anglia Ad an 1216. Anglia hactenus Princeps Provinciarum facta es sub tributo ut Terra tua ab antiquo libera ancillaret excogitasti factus de Rege liberrimo Tributarius firmarius Vassallus servitutis c. 'T is evident the novelty of the Kings submission put these complaints into the Peoples mouths and that no such thing had formerly been heard of To conclude commend me to this fiction of Baronius for an example of zeal not according to knowledge To speak without proof in a matter of this consequence is pretty well of it self But to want proof where the nature of the thing must needs afford a thousand to fancy the Tenure of a Kingdome could lie conceal'd I know not how long and at last be discovered by his either pains or luck to be quite contrary to what was apprehended by the rest of the world which could no more be ignorant of the Tenure than of the Kingdom to imagine England subject when no person can be imagined who should subject it nor time in which it should become subject to say nothing of the manifold inconsistency of his story and contradiction to palpable evidence These are strains which as I admire in him so I hope not often to find elsewhere And for Blesensis either he knew not what he said or which is more likely those two periods have by chance or fraud crept into his writings without his privity In fine he is no good Englishman who does not acknowledge that the Kingdom of England is and at all times has been free and subject to none but God A Declaration made both with particular reference to the Pope and by those who acknowledged his Authority in spirituals And so we are come at last to the point of greatest difficulty both of its own nature and by the smartness with which 't is prest the Fact of K. John Our Author not to leave the wound he makes without cure assigns us Prescription for a remedy You have not an entire confidence in this plaister and I must confess I cannot blame you not that I think it bad but I like better to be sound and need none Most points of Law and this of Prescription as well as the rest are full of learned Quibbles and I do not love to trust our security to a moot case The rights of Kingdoms are of too great consequence to depend on the Triccum de Lege For what if some fiction of Law be pretended against our Prescription What if the Pope by some Act or other of which we never had intelligence have continued a Legal or Civil possession all the time of our Natural possession and so interrupted or voided our Prescription It is not safe in my opinion to venture our whole stock in a bottom which possibly may prove leaky Wherefore though Prescription may do well enough yet while we have in my judgment a better game to play I think it best as you say to play surer Of the Considerations propos'd in this matter with great sharpness by our Author I take these to be the most material That K. John past this grant when he had undoubted right to the Crown without any Competitor his Nephew Arthur being dead before That this right of his was then unconfin'd Magna Charta not being yet framed nor any power communicated to Barons or People or Parliaments for intermedling in the succession And that however the Deed was confirmed by his Barons who were they alone that then had any thing to do in the greater affairs of State On these because they will decide the Question I shall insist more largely and endeavour to shew He is mistaken in all three First for the consent of the Barons although this clause Communi Consilio Baronum nostrorum be inserted in the Charter yet nothing can be more apparent than that in truth there was no such thing It was so far from this that there was an express dissent Cui etiam manifeste contradictum fuit ex parte universitatis Regni reclamatum quid talia nullo modo facere potuisset per os venerabilis Stephani Can. Archiepiscopi quo non erat tunc major in Regno c. M. Westm ad an 1245. M. Paris ad an 1245. For Stephen Langton Archbishop of Canterbury protested solemnly against it and this publickly at the high Altar before all the company and in the name of the whole Kingdom This protestation of his was averred to the Popes face and that in full Council by Will. Povick or Powevick one of the Embassadors at the Council of Lyons whither he was sent to complain in behalf of the Kingdom I think it will not be denied but the Clergy in those dayes had at least as much influence on publick affairs as the rest of the Nobility and that there could be no common consent where the Head of the Clergy publickly dissented Especially considering that this protestation was not made for himself only or his Order but in the name of the whole Kingdom For it can hardly be that he should arrogate to himself to act in the name of the Kingdom without the privity of the rest and consent of so many at least as might keep his Act from appearing ridiculous But that the rest of the Nobility were as far from consenting as the Clergy is not left to guess Their sense is manifest in the next words of Povick In quod tributum nunquam Patres nostri consenserunt nec aliquo tempore consentient as Mat. Westm relates them or according to Mat. Paris In quod nunquam Patres nobilium Regni vel ipsi consenserunt nec consentiunt neque in futurum consentient c. This was said in circumstances uncapable of the suspition of falsity The man who spoke was an Embassador commissionated to speak for the Kingdom He spoke to the Pope himself in a full Council and while the memory of things was yet fresh and if he had not said true might have been convinc'd by every body perhaps in the company But neither the Pope himself who certainly knew the truth and was most concern'd in it nor any body else had anything to say against it Besides even in the daies of K. John the K. of France and his Son Lewis when Walo
the Popes Legat would have diverted them from their design on England by representing that the Kingdom held now of the Pope maintained both to his face M. Paris ad an 1216. that K. Johns grant was void and this among other things because there was no consent of the Barons It is not possible they should so confidently avouch this to one who could not but know the truth unless it had been notorious and undeniable even by Walo himself Wherefore it is manifest that the clause above mentioned was inserted for forms sake without truth it being not more known that there was a Charter than that it was made without the consent of the Nobility What the consequence of this is will fall into consideration by and by when we have discours'd of what remains The next point is that K. John had an undoubted right to the Crown when He past this Deed. Suppose he had what then Right to wear the Crown and Right to give it away are very different things and very far from inferring one another He urges that the Regal power in disposing of the Crown was the same then as at the conquest That the Conqueror both receiv'd the Crown by gift from K. Edward and dispos'd of it by Testament That although K. Edwards gift should pass for invalid yet the very title of Conquest was sufficient for an Arbitrary power of disposing it the very grant of Magna Charta from the Prince to the People being a plain Argument that at least the power of our Norman Princes was originally arbitrary and unconfined till themselves were pleas'd to restrain it by voluntary compacts and concessions which hapned not till after the fact in question Thus does our Author discourse with a Tide of smartness threaten Shipwrack to our liberties which way soever we steer To deny an arbitrary right in the Conqueror seems to question the right of his successors To grant it seems to confirm the Deed in question and expose us to the mercy of the Pope Before I answer particularly I take leave to suppose not because it cannot be prov'd but because no body will require proof of what every body acknowledges That rights questionable in their origin become unquestionable in tract of time The Goths and Vandals broke into the Roman Empire and mastered a great part of it with a known violence but unknown Justice Should ear be given to the exceptions which might be made against their Title and the right of their posterity and all who hold under them questioned till the right of the first occupants were clearly made out the world would be embroyled in inextricable confusion and suffer little less from our disputes than their Arms. Few either Princes or private men would enjoy their Estates with a safe Conscience The bonds of Obedience would be broken the security of Life and Fortunes taken away and the Ligaments of human society dissolv'd These things are so evidently contrary to the good of mankind that speculations which would infer them are evidently contrary to reason Speculate what you will of Justice it is most certain that to ruin the world is a most unjust thing or if you will criticize upon the notion at least irrational and wicked and intollerable Wherefore whatever were the origin of establish't Powers when they are establish't and by long continuance become necessary to the quiet and security of mankind they are most certainly just and to question them is madness in all and Treason in Subjects To examin by what means this comes to pass how true Right is acquired in Time and even bad Titles become good at last I conceive an Argument too high for me and besides see it needless to meddle with it For while the thing is universally acknowledged and cannot be deni'd without extream mischief to the world the labour of enquiring more particularly into it may be dispenc'd with Two things I take to my present purpose which I suppose none will deny me 1. That the Right of succeeding Kings cannot be questioned on pretence of doubt nay if you will defect of right in the proceedings of such as have reign'd so long since as the Conquest 2. That Power and Right being manifestly two very different things it follows not that because things were then done which ought not be questioned now I mean with prejudice to Posterity that they were therefore well done and according to Right To speak now particularly to what is alledged It is true that the Conqueror had or pretended a Gift from K. Edward I suppose to have something to say But 't is apparent that not K. Edward's gift but his own sword gain'd him England The Ratio ultima Regum was his only unanswerable Argument and had Harold got the Victory and preserv'd the Kingdom he would have preserved Right enough to it notwithstanding the Gift of K. Edward and as much right been acknowledg'd in his Successors as now in those of the Conqueror It is true also that the Conqueror did dispose of the Kingdom to the prejudice of his eldest Son but 't is likewise true that Duke Robert did claim and put for the Crown notwithstanding his Fathers Testament and had he prevailed had transmitted a Right to his Posterity which by this time had been unquestionable These are matters purely of Fact of which kind there are innumerable in History but from which according to the maxim that Fact does not infer Right no Argument can be drawn What the Conqueror did He did by the power which his Conquest gave him success and length of time has establish't what depends on his actions into a firmness which admits of no dispute But this concludes not that all he did was just even in him and much less that the same Actions are justifiable in his Successors As for what is next urged That Conquest sufficed for an arbitrary Power it is undoubtedly true for he did arbitrarily dispose of things as he pleased But that his Conquest gave him Right so to do or transmitted such a Right to his Posterity is not to be admitted without very good proof It is universally agreed that Conquest gives right only where the War is just which I think signifies that his Conquest gave him none at all For the War is not just unless he have a good Title who makes it and if he have Conquest only puts him into possession of what was wrongfully with-held but his Right is antecedent to and independent of his Conquest Indeed where the revenge of some collateral wrong or other cause put just Arms into the hands of any Prince there what he gains is thought justly his own by vertue of his Conquest But this is not our case The only cause of this War was because Harold with-held the Crown to which if the Conqueror had a just Title that which made it so gave him his Right if he had not the War was not just and Conquest could give him none Whether his Title were