laid upon the Kingdom but by the Common-Council of the Kingdom unless it be to redeem the King's Person or to make his eldest Son a Knight or to marry his eldest Daughter once and for these a reasonable Aid shall be given That it be in like manner with respect to Tallages and Aids from the City of London and other Cities that have Priviledges therein And that the City of London may fully enjoy her ancient Liberties and free Customs as well by Water as by Land. That it shall be lawful for any Man to go out of the Kingdom and to return saving his Allegiance to the King unless it be in time of War for a short time for the common profit of the Realm If any borrow Money of a Jew be it more or less and die before the Debt be paid no Interest shall be paid for the same so long as the Heir is under age of whomsoever he hold And if the Debt become due to the King the King shall take no more than what is contain'd in the Charter If any Man die and owe Money to the Jews his Wife shall have her Dower and if he left Children Necessaries shall be provided them according to the quantity of the Freehold and the residue shall go to pay off the Debt saving the Services due to the Lords The like shall be observed in case of other Debts and when the Heir comes of age his Guardian shall restore him his Land as well stockt as he could reasonably afford out of the Profits of the Land coming in by the Plough and the Cart. If any Man hold of any Escheat as of the Honour of Wallingford and Nottingham Bonon and Lancaster or of other Escheats which are in the King's Hand and are Baronies and die his Heir shall pay no other Relief nor perform any other Service then he should have paid and perform'd to the Baron and that the King shall hold such Escheats as the Barons held them That Fines made for Dowers Marriages Inheritances and Amercements wrongfully and contrary to the Law of the Land be freely remitted or ordered by the Judgment of the Five and twenty Barons or of the major part of them together with the Archbishop and such as he shall call to him Provided that if one or more of the Five and twenty have themselves any like complaint that then he or they shall be removed and others put in their rooms by the residue of the Five and twenty That the Hostages and Deeds be restored which were deliver'd to the King for his Security That they that live out of the Forest be not obliged to come before the Justices of the Forest by common Summons unless they be Parties or Pledges And that the Evil Customs of the Forests and Foresters Warrens and Sheriffs and Ponds be redress'd by twelve Knights of each County who shall be chosen by the Good Men of the County That the King remove wholly from their Bayliff-wick the Kindred and whole Dependance of Gerard de Aties that hereafter they have no Bayliffwick to wit Engeland Andr ' Peter ' Gigo de Cances Gigo de Cygon Matthew de Martino and his Brethren and Gelfrid his Nephew and Phillip de Mark. And that the King put away the Foreign Soldiers Stipendaries Slingers and Troopers and their Servants who came with Horses and Arms to the Nusance of the Realm That the King make Justitiars Constables Sheriffs and Bayliffs of Men that know the Law of the Land and will cause it to be well observed That Barons who have founded Abbies for which they have Charters of Kings or ancient Tenure shall have the Custody of them when they are vacant If the King have disseiz'd the Welsh men or esloyn'd them from Lands or Liberties or of other things in England or in Wales let them presently be restored to them without Plea and if they have been disseiz'd or esloin'd from their English Tenements by the King's Father or his Brother without Judgment of their Peers the King shall without delay do them Justice as he does Justice to Englishmen of their English Tenements according to the Law of England and of Welsh Tenements according to the Law of Wales and of Tenements in the Marches according to the Law of the Marches In like manner the Welshman shall do to the King and his Subjects That the King restore Lewelin's Son and all the Welsh Hostages and the Deeds that were delivered to him for security of the Peace That the King do Right to the King of Scotland concerning restoring of Hostages and his Liberties and Right according to the Form of the Agreement with his Barons of England unless it ought to be otherwise by vertue of some Deeds which the King has by the Judgment of the Archbishop and others whom he shall think fit to call to him That all Forests that have been afforested by the King in his own time be disafforested and so of Banks which by the King himself have been put in defence All these Customs and Liberties which the King has granted to the Kingdom to hold and keep for his own part towards his Men all Clerks and Lay-men of the Kingdom shall observe and keep for their parts towards their Men. This is the Form of the security for keeping Peace and the Liberties betwixt the King and the Kingdom The Barons shall chuse Five and twenty Barons of the Realm whom they will themselves upon whom it shall be encumbent that with all their might they observe and keep and cause to be observ'd and kept the Peace and Liberties which the King has granted to them and confirm'd by his Charter to wit That if the King or his Justices or Bayliffs or any of his Ministers offend any Person contrary to any of the said Articles or transgress any Article of this Peace and Security And that such offence be made known to four of the said Five and Twenty Barons those four Barons shall go to the King or to his Justitiar if the King be out of the Realm declaring to him that such an abuse is committed and shall desire him to cause it speedily to be redressed And if the King or if he be out of the Realm his Justitiar do not redress it those four Barons shall within a reasonable time to be limited in the Charter refer the matter to the residue of the Five and twenty Barons And those Five and twenty with the Commonalty of all the Land shall distress the King all the ways they can to wit by seizing his Castles his Lands and Possessions and by what other means they can till it be redrest according to their good likeing saving the Person of our Lord the King and of the Queen and of their Children And when it is redrest they shall be subject to the King as before And whoever will may swear to put these things in Execution viz. To obey the Commands of the said Five and twenty Barons and to distress the King
shall be present or before Stephen Archbishop of Canterbury if he can be there and those that he shall call to him and if he cannot be present Matters shall proceed notwithstanding without him so always that if one or more of the said Five and twenty Barons be concern'd in any such Complaint they shall not give Judgement thereupon but others chosen and sworn shall be put in their room to act in their stead by the residue of the said Five and twenty Barons If we have disseiz'd or esloin'd any Welshmen of Land Franchises or of other things without lawful judgment of their Peers in England or in Wales they shall forthwith be restored unto them and if Suits arise thereupon right shall be done them in the Marches by the Judgment of their Peers of English Tenements according to the Law of England and of Tenements in Wales according to the Law of Wales and Tenements in the Marches according to the Law of the Marches And in like manner shall the Welsh do to us and our Subjects As for all such things whereof any Welshmen have been disseiz'd or esloyn'd without Lawful Judgment of their Peers by King Henry our Father or by King Richard our Brother which we have in our hands or which any others have to whom we are bound to warrant the same we will have respit till the common Term be expir'd of all that crost themselves for the Holy Land those things excepted whereupon Suits were Commenced or Enquests taken by our Order before we took upon us the Cross and when we shall return from our Pilgrimage or if peradventure we forbear going we will presently cause full Right to be done therein according to the Laws of Wales and before the said Parties We will forthwith restore the Son of Lewellyn and all the Hostages of Wales and the Deeds that have been delivered to us for security of the Peace We will deal with Alexander King of Scotland as to the restoring him his Suitors and his Hostages his Franchises and Rights as we do with our other Barons of England unless it ought to be otherwise by vertue of the Charters which we have of his Father William late King of Scotland and this to be by the Judgment of his Peers in our Court. All these Customs and Franchises aforesaid which we have granted to be kept in our Kingdom so far forth as we are concerned towards our Men all Persons of the Kingdom Clerks and Lay must observe for their Parts towards their Men. And whereas we have granted all these things for God's sake and for the amendment of our Government and for the better compremising the discord arisen betwixt us and our Barons We willing that the same be firmly held and established for ever do make and grant to our Barons the scurity underwritten to wit That the Barons shall chuse Five and twenty Barons of the Realm whom they List who shall to their utmost Power keep and hold and cause to be kept the Peace and the Liberties which we have Granted and Confirmed by this our present Charter insomuch that if we or our Justice or our Bayliff or any of our Ministers act contrary to the same in any thing against any Persons or offend against any Article of this Peace and Security and such our Miscarriage be shown to four Barons of the said Five and twenty those four Barons shall come to us or to our Justice if we be out of the Realm and show us our Miscarriage and require us to amend the same without delay and if we do not amend it or if we be out of the Realm our Justice do not amend it within Forty days after the same is shown to us or to our Justice if we be out of the Realm then the said Four Barons shall report the same to the residue of the said Five and twenty Barons and then those Five and twenty Barons with the Commonalty of all England may distress us by all the ways they can to wit by seizing on our Castles Lands and Possessions and by what other means they can till it be amended as they shall adjudge saving our own Person the Person of our Queen and the Persons of our children and when it is amended they shall be subject to us as before And whoever of the Realm will may swear that for the Performance of these things he will obey the Commands of the said Five and twenty Barons and that together with them he will distress us to his Power And we give Publick and free leave to swear to all that will swear and will never hinder any one And for all Persons of the Realm that of their own accord will swear to the said Five and twenty Barons to distress us we will issue our Precept Commanding them to swear as aforesaid And if any of the said Five and twenty Barons die or go out of the Realm or be any way hindred from acting as aforesaid the residue of the said Five and twenty Barons shall chuse another in his room according to their discretion who shall swear as the others do And as to all things which the said Five and twenty Barons are to do if peradventure they be not all present or cannot agree or in case any of those that are Summon'd cannot or will not come whatever shall be determined by the greater number of them that are present shall be good and valid as if all had been present And the said five and twenty Barons shall swear that they will faithfully observe all the matters aforesaid and cause them to be observed to their power And we will not obtain of any one for our selves or for any other any thing whereby any of these Concessions or of these Liberties may be revoked or annihilated and if any such thing be obtained it shall be null and void nor shall ever be made use of by our selves or any other And all ill will disdain and rancour which has been betwixt Us and our Subjects of the Clergy and Laity since the said discord began we do fully release and pardon to them all And moreover all Trespasses that have been committed by occasion of the said discord since Easter in the sixteenth year of our Reign to the restoring of the Peace we have fully released to all Clerks and Lay-men and so far as in us lies we have fully pardoned them And further we have caused Letters Patents to be made to them in testimony hereof witnessed by Stephen Archbishop of Canterbury Henry Archbishop of Dublin and by the aforesaid Bishops and by Mr. Pandulphus upon this Security and these Concessions Whereby we will and strictly Command that the Church of England be free and enjoy all the said Liberties and Rights and Grants well and in Peace freely and quietly fully and entirely to them and their Heirs in all things in all places and for ever as aforesaid And we and our Barons have sworn that all things above written shall be kept on our parts in good Faith without ill design The Witnesses are the Persons above-named and many others This Charter was given at the Meadow called Running-Mead betwixt Windsor and Stanes the 15th day of June in the Seventeenth Year of our Reign JOHN by the Grace of God King of England to the Sheriff of Hampshire and to the Twelve that are chosen in that County to enquire of and put away the evil customs of Sheriffs and of their Ministers of Forests and Foresters of Warrens and Warrenners of Rivers and of guarding them Greeting We command you that without delay you seize into our Hand the Lands and Tenements and the Goods of all those of the County of Southampton that will not swear to the said Five and twenty Barons according to the form exprest in our Charter of Liberties or to such as they shall have thereunto appointed and if they will not swear presently at the end of Fifteen days after their Lands and Tenements and Chattels are seized into our Hands that ye sell all their Goods and keep safely the Money that ye shall receive for the same to be employed for the Relief of the Holy Land of Jerusalem and that yeâ— keep their Lands and Tenements in our Hands till they have sworn or that Stephen Archbishop of Canterbury and the Barons of our Kingdom have given Judgment thereupon In witness whereof we direct unto you these our Letters Patents Witness our Self At Odibaam the Seven and twentieth Day of June in the Seventeenth Year of our Reign FINIS Books lately Printed for Richard Chiswell THE Case of Allegiance in our present Circumstances considered in a Letter from a Minister in the City to a Minister in the Country 4o. A Breviate of the State of Scotland in its Government Supreme Courts Officers of State Inferiour Officers Offices and Inferiour Courts Districts Jurisdictions Burroughs Royal and Free Corporations Fol. Some Considerations touching Succession and Allegiance 4o. Reflections upon the late Great Revolution Written by a Lay-hand in the Country for the satisfaction of some Neighbours The History of the Desertion or an Account of all the Publick Affairs in England from the beginning of September 1688. to the Twelfth of February following With an Answer to a Piece called The Desertion discussed in a Letter to a Country Gentleman By a Person of Quality K. William and K. Lewis wherein is set forth the inevitable necessity these Nations lie under of submitting wholly to one or other of these Kings And that the matter in Controversie is not now between K. William and K. James but between K. William and K. Lewis of France for the Government of these Nations An Examination of the Scruples of those who refuse to take the Oath of Allegiance by a Divine of the Church of England A Dialogue betwixt two Friends a Jacobite and a Williamite occasioned by the late Revolution of Affairs and the Oath of Allegiance The Case of Oaths stated 4o. A Letter from a French Lawyer to an English Gentleman upon the Present Revolution 4o. The Advantages of the Present Settlement and the great danger of a Relapse The Interest of England in the Preservation of Ireland
〈◊〉 〈◊〉 Kings or Emperors believing that the Name of Kings left them in some dependence upon the Empire of the East this obliged the Emperors of the West to take upon them the Title of Emperor to intimate their independency upon the Princes of the East Which Title the Emperors of the West having afterwards made use of as a pretence to raise themselves above the rest of the Princes of Europe the Western Kings did the same which the Emperors of the West had done before to assert their Independency For not only the Kings of England but some other Western Kings have taken upon them the Title of Emperors Alphonsus VI King of Spain took upon him this Title by a Concession from Pope Vrban II because he had suppressed the Mosorabick-Office Alphonsus VII and VIII assum'd the same Titles and Alphonsus VIII was Crowned in that quality by Raymond Arch-Bishop of Toledo in the Church of Lions with the consent of Pope Innocent II as is reported by Garibay lib. 8. hist cap. 4. We find that Peter de Clugny writes to this Alphonsus as Emperor of Spain Epist 8. And long time before these Princes it is certain that the Kings of the Goths since Richaredus had taken to themselves the Title of Flavians in imitation of the Roman Emperors as may be seen in the Councils of Toledo Yet Philip II having demanded this Title in 1564 of Pope Pius IV it was refused him The Kings of Lombardy had assum'd the Title of Flavians even since Autlaric according to the Account given us by Paul Diacon lib. 3. cap. 8 which they did to shew that they were Emperors in their own Lands and Territories and that they acknowledged no Soveraign or Superior And it seems that in Process of Time some Western Kings affected that Title for the same reason and were the rather perswaded so to do because some Canonists and Lawyers have impudently maintained That the Kings of Spain France and England were Subjects of the Emperors of the West Glossa in cap. Venerabil de Elect. in verbo transtulit in caput Venerabil qui filii sint legitimi Bartolus in caput hostes ff de captivis Alciat lib. 2 disjunct c. 22. Baldus in cap. 1 de Pace juramento fervando in usibus Feudorum Tho he contradict himself by asserting elsewhere That the King of France is not subject to the Emperor And thus much for the first Illusion some make use of to perswade us that the Kings of England possess the same Rights as the Emperors A second which seems to have some more Ground is this They say that as the Emperors that were after Vespasian had the Right to divide the Empire and to settle it by their Wills on their Heirs the Kings of England having done the like it appears thereby they were in Possession of the same Right the Emperors had to this purpose they alledge the last Will of William the Conqueror in favor of his Son William Rufus But nothing can be more vain than this Objection 1. We cannot deny but that the Election of Kings took Place during the Reign of the Saxons not that they did it with that Freeness as to prefer the Uncle before his Nephew that was under Age ' tho the Kings Son and the youngest Brother before the Eldest 2ly It is true that William the Conqueror did act in an extraordinary manner in disposing of his Kingdom in Favor of William Rufus in the same way as one disposeth of a Conquest and this in prejudice to Robert his Eldest Son as was also done by William Rufus But these two Princes dying without Heirs Henry who had Married the Daughter of King Alexander of Scotland who had the Rights of the Saxon Kings and who in Consideration of that Marriage renounced the Rights he might pretend to England as heir Presumptive of the Saxon Kings having obtain'd the Government by the Right of his Wife the Laws recovered their Strength and Things returned to their antient Channel as they were in the time of the Saxons So that it appears that it is Folly for any one to imagine that the Kings of England may alienate their Estates as a private Person can alienate his Inheritance This was evident in the case of King John who was opposed by the whole State for pretending to subject the Crown of England to Pope Innocent III. And indeed if we consider the Thing in it self and according to the unanimous Opinion of all Lawyers these last Wills can really be of no Force without the consent of the States to authorize them as we find that the same did intervene in both the fore-mentioned Cases The reason whereof is invincible forasmuch as all States do not consider their Kings as Proprietors of their Kingdoms but only as publick Ministers who are intrusted with a Jurisdiction and Administration for the Good of the publick And this is the Title by which even Conquerors themselves are at last obliged to hold their Authority They tell us in the 3d place that the Kings of England entitling themselves Kings by the Grace of God it appears that their Power being come from God cannot be limited by their Subjects over whom God has set them A wonderful way of arguing and never known till these our Times at least it is evident that he who has defended Nicholas de Lyra against Burgensis hath made a very different use of these words Dei Gratia by the Grace of God wherewith the Kings of the North prefac◠their Titles from what some now a days make of it For he maintains that it is the Character of a limited and temper'd Government see how he expresseth himself upon the 8. ch of the 1 Book of Kings Titulus Imperatoris modo regendi vitiato that is to say illimitato as he expresses himself before contradicit nam titulus ejus est N. Dei gratia Romanorum Rex semper Augustus hoc est Reipublicae non privatae accommodus Ita aliorum Regum Protestationes sunt sub Dei gratia quae vitiatum Principatum non admittit The very Title of the Emperor saith he is a Contradiction to an Arbitrary and Unlimited kind of Government for his Title is N. by the Grace of God King of the Romans always Augustus that is enlarger of the Empire which implies that his Government is accommodate to the Common good and not his Private Interest So likewise we find that the Protestations of other Kings are under Dei Gratia the Grace of God which doth not admit of Arbitrary Government There remain but two difficulties more the first is this Several Members of the Church of England having perswaded the People that a necessity was laid upon them to suffer all from the Hands of their Kings The Kings of England have accordingly usurped those Rights and were actually in possession of them when the same began to oppose themselves to King James this is that they call a right of Prescription They consider the
Reflections upon the Opinions OF Some Modern Divines CONCERNING The Nature of Government Licens'd June 29. 1689. J. FRASER THE CONTENTS CHAP. I. COncerning the Original of Sovereign Power Page 1 CHAP. II. The different Opinions of Philosophers and Divines concerning this matter Page 7 CHAP. III. That Sovereigns do not receive their Power immediately from God Page 10 CHAP. IV. An Examination of the Arguments which are alledged for the Proof of this Opinion Page 13 CHAP. V. Whether the Power of Sovereigns be absolute and unlimited Page 19 CHAP. V. Concerning the Extent of the Power of Sovereigns Page 24 CHAP. VI. Concerning Non-resistance Page 28 CHAP. VII That the Scripture doth not assert the point of Non-resistance Page 31 CHAP. VIII Whether the States can deprive Sovereigns of their Authority when they abuse it Page 34 CHAP. IX Concerning Regal Dignity and the Rights belonging to it among the Jews Page 38 CHAP. X. Concerning the Royal Law in favour of the Roman Emperors Page 50 CHAP. XI That the States of the West and of the North never knew this Royal Law Page 56 CHAP. XII That the Power of the Emperors of the West is a limited Power Page 63 CHAP. XIII That the Power of the Kings of Poland is limited Page 66 CHAP. XIV That the Monarchy of France is not an absolute Empire but a limited Royalty Page 68 CHAP. XV. That the Royalty of England never had any other form than the rest of the Northern and Western States Page 79 CHAP. XVI An Answer to some Difficulties moved against this Truth Page 85 CHAP. XVII An Answer to the last Objection Page 91 CHAP. XVIII A Reflection on some Remarks made out in this Treatise Page 97 APPENDIX CONCILII TOLETANI IV. Canon LXXV Pag. 103 The 75. Canon of the Fourth Council of Toledo ibid. Capitula super quibus facta est Magna Charta Regis Johannis ex MS. Arch. Cantuar. Fol. 14. Quae etiam authenticè cum Sigillo extant in manibus Episc Salisburiensis 113 Diploma Regium sive Ordinationes JOHANNIS Regis Angliae queis statuit quid Nobiles quid Plebeii observare debeant ad pacem tranquillitatem Regni stabiliendam 121 THE PREFACE 'T IS a strange and almost incomprehensible thing that at this time there should be found so many discontented Persons among us when but a little while since the whole Body of Protestants appeared so unanimous viz. at the beginning of the miraculous Revolution Though it hath already retrieved the State from Ruine and will without doubt prove its Happiness it might easily be guess'd that those who had contributed to the overthrow of the Laws apprehending the Reward they had so justly deserved would make up a Body of Malecontents and that their Numbers would be considerable 'T is notorious also that in all times those who think they are not considered or treated according to the Justice of their Merit are ready to murmur against the Government and the Ambition that possesses them renders them every where a Race of discontented Persons But whatever difference of Principles there might be among Protestants the fear of their common danger having reunited them and made their Interests the same with those of the State and Religion which they saw equally expos'd to inevitable Ruine there seem'd but small ground to apprehend that as soon as the Fright was over there should still be found a Generation of Men whom their old Animosities and habitual Prejudices would engage in disaffection and murmuring against the Government And yet it is but too true that scarce did the State and Religion begin to breath again but immediately there appeared a Party who made it appear by their snarling that what fill'd the generality of Men with Joy and made them give Thanks to God afforded them very small Satisfaction I pretend not to tax the whole Body of the English Church It is well enough known that as their Settlement was furiously struck at by Popery triumphant and observing no kind of measures her principal Members as well as the generality of those that resort under her have and still do witness their Zeal for the Government which God has been pleased to establish among us I speak only of some certain Members of this Church whom the Court has long employed in overthrowing by their Maxims the Foundations of the Publick Liberty in order to a sure Establishment of Popery Those Disciples of L'Estrange the Pensioner and Drudge of a Popish Court no sooner perceived that what was like to happen upon James the Second's Desertion would extremely expose them as Men that had betrayed the Interests of their Religion and the Government by Maxims which they had maintained with so much boldness every where began to publisb their discontent and still endeavour to inspire the same into the People as founded upon pure Tenderness of Conscience It cannot be denied but that hitherto the Government has shewed an extraordinary lenity in reducing them to Reason whom Danger seemed to have made wiser The method and careful management which has been made use of to obviate whatsoever might afford them the least Jealousie or give them the least trouble is an evident Mark hereof But in fine since they continue in their Mistakes notwithstanding all this care and tenderness and that nothing will satisfie them what can be more prudently undertaken than to prevent the pernicious Effects which their Example and the Maxims wherewith they are leavened might produce in the minds of the People We have thi◠Satisfaction already that the Publick is well aware they know not themselves what they would be at for how free soever they may be to disperse their Murmurs and Disaffection yet probably there is scarce one among them that would have James II. recalled neither indeed would it be so difficult a thing for them to find him out in case their Consciences link'd them so closely to him as they would make us believe But we may have also another satisfaction in this Point which is That in examining their Maxims in good earnest we may make it appear That they know not themselves what they affirm and that the Opinions they have so long maintained concerning the Nature of Government in general and that of England in particular are properly and truly a Heresie in Matters of State. Let no Man wonder that I call this Opinion of some of the Clergy of England a Political or State-Heresie Their Opinions respect a Political Question truly such but these Gentlemen have been pleased to mould it into an Article of Faith forsooth of the Church of England and their aim was to make that pass for an Article of the Law which indeed was no better than a dangerous Error in Policy And truly all the Characters of Heresie so fitly suit these their Sentiments that it is a hard thing to resist the Temptation of giving them that Title These Assertions are a perfect Novelty in Policy as well as Divinity Some late
the same Limitations of the Regal Power in Denmark as Pontanus observes in his 8th Book and it was for endeavouring to break through these Bounds that Christiern the II. was deposed as may be seen in Petersen in Chron. Holsat Where he hath set down the Acts and Reasons of the State of Denmark about that Proceeding That the Power of the Kings of Hungary was a Power limited by the Fundamental Laws of the State is a Matter so notorious that Chalcondilas has made it his Observation in the second Book of his History where he compares the Royalty of Hungary in that respect to the Kingly Power in England And which may be farther made out by the Fundamental Laws of Hungary set down by Bonfinius Decad. 4. lib. 9. Where we also find the Oath taken by those Kings at their Coronation being the most expresly conditional that can be imagined Chalcondile saith the same Thing of the Kingdoms of Arragon and Navarre Lib. 5. where he observes that the Kings did not create the Magistrates that they could not make any Garrison without the Consent of the People and that they could not require any thing of them contrary to their Customs that is to say contrary to their Laws Accordingly we find that the Kings of Spain have no Power to lay any new Impositions upon their Subjects without their consent They are obliged to swear they will observe the Laws And in Arragon the People declare to the King at his Coronation that if they do not perform their Oath and Promise their Subjects are thereby set free from their Oath of Allegiance We find the same Thing in the History of the Kingdom of Portugal but especially in that part of it which gives an Account of the Reign of Alphonsus III. The Fundamental Laws of which Kingdom we find in the 17th Title of the Ordinances of Portugal Lib. 2. § 2 3. seq So true is it that all those Kingdoms never in the least supposed that their King had an Absolute Power over them And it is as certain that almost all those States have always maintained That the Power of their Soveraigns was so limited 1. That they could make no Laws without the States General of the Kingdom 2. That they could not levy any Mony on their Subjects without their Consents 3. That they could not break the Laws according to their Will and Pleasure 4. That in case of their violating the Fundamental Laws of the State they were liable to be deprived of a Power which they abused 5. That the States were free to chuse such a Form of Government and such a Person for to govern them as they thought most expedient for them This is that which I intend to prove more particularly by Examples taken from the Empire and the Kingdoms of Poland France Scotland and England to which I shall add some Remarks upon those Titles which deceive some who consider Things of this Nature with too little attention CHAP. XII That the Power of the Emperors of the West is a Limited Power THis is a Matter that may be easily gathered from these following Instances 1. Because Charles the Great who was the first that took upon him the Title of Roman Emperor reigned according to the Customs of the Princes of Germany of whose Opinion concerning an Absolute and Despotical Government Tacitus has given us some Account who represents them as having the greatest abhorrence for it 2. Because Lewis the Good did himself acknowledg that the Soveraign Power was shared between him and the chief Members of the Empire Capitular Lib. 2. Tit. 3. Sed quanquam summa hujus ministerii in nostra persona consistere videatur tamen Divinâ Authoritate humanâ ordinatione ita per partes divisum esse cognoscitur ut unusquisque vestrûm in suo loco ordine partem nostri Ministerii habere cognoscatur But though the whole of this Ministry seem to consist in our Person yet it is known to be so shared and divided as well by Divine Authority as Humane Ordination that every one of you in his respective Place and Order is known to partake of this Ministry Thus was he pleased to express himself in the Assembly of the States General whose Authority he owned to be as much of Divine Right as his own which made Charles du Moulin the most famous of all French Lawyers say Ergo solum Caput non omnia potest imo persona Principis non est Caput nisi Organicum sed verum Caput est Principatus ipse cum membris integrantibus eum Wherefore the Head alone cannot do all yea the Person of the Prince is only the Organical Head but the true Head is the Principality it self with its integral constituting Members Which are his express words in his Commentaries upon the Stile of Parliament dedicated to the first President of Paris and printed with Priviledg 3. Because though the Western Empire did seem to be so Hereditary that the Emperors had divided it amongst their Children yet in process of time it became Elective which began to take place in the Eleventh Century in the Person of Rudolphus 4. In that they always excluded Females from the Succession to the Empire though they had respect in their choice to the Imperial Blood. With respect to the Rights of Soveraignty we find that tho the Empire be a Monarchical Government yet we see it is mixed with Aristocracy for the Emperor cannot enjoy it but with the Consent of the States of the Empire without making himself liable to be contradicted and deposed also He has not the Right of making Laws without the Consent and Authority of the States of the Empire He has no right to declare War without the foregoing consent of the States He has no right of levying any Imposition on the States without the Consent of the Diets Whenever he begins to usurp the Rights that do not belong unto him and to infringe the Rules of Government he has sworn to observe the States have a Right to oppose his Enterprizes to repel Force with Force and finally to deprive him of the Empire in case he continue in the Design of changing the Form of Government For though there be no Laws which bound and regulate the Article of the Deposing of Emperors when they abuse their Power for the overturning of the State or for invading the Rights of the Princes of the Empire and Imperial Cities yet the Germans have always held and still do hold it for a certain Truth that it is a Right inherent in the Empire to deprive an Emperor of the Imperial Power and Dignity and to confer the same on another This is the common Opinion of the German Lawyers represented to us by Lampadius Arnizaeus Diderick Conringe and many others And indeed we may say that there is nothing more certain if we consider the Examples of Emperors that have been deposed since these 7 or 800 Years Examples that are neither rare
Truth We need only to lay open the nature and antient Power of the States General with the manner of their Behaviour towards those Kings who abused the Power committed to them to make it evident that the French Monarchy is limited in its Constitution Under the first and second Race of the Kings of France there was no mention of any Assembly of the States General but only of the Franks that is to say the Nobles and Prelats who were used to meet together on the first of May in the open Field where they deliberated with the King concerning matters of Peace and War and took Resolutions of what was to be done all the Year after After the breaking up of this Assembly the Court of the Royal Palace otherwise called the Court of France composed of the Prelats and Great Barons that is to say the immediate Vassals of the Crown met together five or six times a Year to take care of the Execution of what had been resolv'd upon in the General Assembly to deliberate about publick Affairs that offer'd themselves and to determine as Judges the most important matters of private Persons Under the declination of the 2d Race the Governours of Cities and Provinces having made themselves Hereditary Lords of the places of their respective Governments under the Title of Counties and Dutchies cut themselves large Portions out of the Soveraign's Lands by which means the Court of France was no more frequented by the Lords except only when they were obliged to do Hommage and take the Oath of Fidelity or when an Enemy invaded France for then they presented themselves before the King to advise about the present necessity This Disorder continued until the Reign of Philip Augustus who having conquer'd Normandy and the Counties of Tourain Anjou Maine from John without Land King of England and the Country of Vermandois from the Earl of Flanders restored in some manner the Royal Authority and forced the Barons to frequent his Court and to be present at the Assemblies he called for the Affairs and Necessities of State. Nevertheless those Assemblies consisted only of the Prelats and Barons and this till the Reign of King John some Authors say of St. Lewis who being taken at the Battle of Poictiers and carried to England they were forc'd to raise a great Sum of Money for his Ransom and to this End they appli'd themselves to the Merchants and other Inhabitants of Cities who were then the richest Men of the Kingdom who agreed to pay the King's Ransom upon condition that they might be received into the Charges and Offices as well of Peace as of War and be allowed to have a Place and deliberative Voice in the States-General which was accordingly granted to them The Power and Prerogative of the States-General was such that the Kings of France could not make any new Levies of Mony without them Which continued so till the Reign of Charles VII as is acknowledged by Philip de Commines Lib. 6 c. 7. Neither could they make any new Ordinances nor repeal or suppress the old without the consent of the said States as is owned by Davila lib. 2 de li Guerri Civili Under the First and second Race of the French Kings the Ordinances were likewise made in the Assembly of the Prelats and Barons which constituted the Soveraign Court of France 't was there the Treaties of Peace were made between the Kings of France and Foreign Princes and Nations the Portions of the Children of France were there regulated there they treated of their Marriages and generally of all that concern'd the Affairs of State of the King's Houshold and the Children of France The Ordinances that were made in the said Assemblies in the Name of the Kings of France were conceived in these Terms Nos de consilio consensu Procerum nostrorum statuimus c. We with the Advice and Consent of our Lords do ordain And from hence is derived the Custome observed at this Day of verifying the Royal Edicts in the Parliament of Paris which in some sort represents the Assembly of the Prelats and Barons who composed as we have said the Soveraign Court of France In the Treasury of the French Kings at Chartres are found several Treaties between King Philip Augustus and Richard and John without Land Kings of England at the bottom of which are the Seals of the Prelats and Barons by whose Consent and Approbation the said Treaties had been made And Pope Innocent VI having sent to entreat St. Lewis that he would be pleas'd to permit him to retire into France to secure himself from the attempts of Frederick II. the said King answered the Popes Nuncio that he would communicate the Matter to his Parliament without whose Consent the Kings of France could do nothing of Importance This is related by Matthew Paris in the Life of Henry the III. King of England ad Annum 1244. We find also the manner how the States determined all Affairs respecting the Crown and Succession as for Example the Process which was between Philip de Valois and King Edward In this Assembly of the States saith the Chancellor de l' Hospital was Tried and Debated the most Noble Cause that ever was viz. To whom the Crown of France did belong after the Death of Charles the Fair to Philip of Valois his Cousin or to Edward King of England King Philip not presiding in that Assembly because he was not yet King and besides was a Party It appears clearly from the Power of the States General That the Power of the King of France is bounded by Law indeed this is a Truth whereof we cannot make the least doubt forasmuch as we find it acknowledged by Lewis XI the most unbridled Monarch that ever was See what he writes in the Rosary of War composed by him a little before his Death for the use of Charles VIII his Son. When Kings or Princes saith he have no respect to the Law they take from the People what they ought to leave them possest of and do not give them what they ought to have and in so doing they make their People Slaves and thereby lose the name of a King. For no body can be called a King but he that rules and has Dominion over Free-men This thing was so notorious even to Strangers themselves that Machiavel maintained that the Stability of the Monarchy of France was owing to this because the Kings there were obliged to a great number of Laws which proved the Security and Safe-guard of all their Subjects Lib. 1 di Discorsi c. 16. Messire Claudius de Seissel in his Treatise of the French Monarchy part 2. chap. 12. dedicated to Francis I. maintains upon this account That the Monarchy of France does partake of Aristocrasy which makes it both more perfect and durable Yea he asserts that it was also in part Democratical and expresly maintains that an absolute Monarchy is no other than true Tyranny when it is made use of
Aristocrasy and Democrasy That the Kings can do nothing without the States General which are the very same things with our Parliaments That the Judges are the Peoples Officers That the words so much abused Such is our Pleasure signify only This is the Decree of our Courts of Judicature That they have no Right to levy any Impositions without the Consent of the States and many other Articles of that Nature CHAP. XV. That the Royalty of England never had any other form than the rest of the Northern and Western States I Have insisted the longer to shew how the Royalty was limited in France because the most part of our Modern Writers seem to have had in their aims to reduce our Monarchy to the Form of that Kingdom as supposing that it would have been a most glorious and advantageous Thing for our late Kings to transform them into so many Lewis's XIV that is to say to change us into Slaves and our Princes into Tyrants I shall say nothing of the Royalty in Scotland nor of the Bounds have been always set it by the Fundamental Laws of the State. There has been lately so much writ concerning this Matter to justify the Proceedings of the Convention of that Kingdom that it would be of no use to repeat it here And for the same reason I shall excuse my self of the trouble of treating what concerns the Limitation of the Royalty in England so largely as the Subject seems to deserve however what I shall say will be sufficient to make it appear that Royalty has been always on the same foot in that Kingdom as it is still in the other Western Kingdoms If we consider the most remote times that History gives us any account of we shall find that the Saxons as to the Power of their Kings followed the Example of the Ancient Germans whose Authority if we may believe Caesar and Tacitus was altogether limited and restrain'd We find in the Mirror of Justices cap. 1 2. that the first Saxons created their Kings that they made them take an Oath and that they put them in mind that they were liable to be judged as well as their meanest Subjects After that the Right of Succession was received in England yet it never deprived the English People of the Right of choosing their Kings This is evident from the Form of the Coronation published by Hugh Menard at the end of the Book of Sacraments of St. Gregory p. 278. which Form was as follows After they had made the King promise to preserve the Laws and the Rights of the Church we read these words Deinde alloquantur duo Episcopi populum in Ecclesia inquirentes eorum voluntatem si concordes fuerint agant gratias Deo Omnipotenti decantantes Te Deum laudamus Then let two Bishops speak to the People in the Church and demand their Will and Pleasure and in case they do agree let them give thanks to Almighty God singing We praise thee O Lord. And pag. 269 270 We pray thee most humbly to multiply the gifts of thy Blessings upon this thy Servant whom we chuse to be our King viz. of all Albion and of the Franks That the Kings of England are as well bound by their Oath as their Subjects appears by the confession of Henry III upon occasion of one of his Councellors of State pretending that he was not obliged to preserve the Liberties of the Nation as being extorted from him expressing himself in these terms recorded by Mat. Paris under the Year 1223. Omnes libertates illas juravimus omnes adstricti sumus ut quod juravimus observemus pag. 219. All these Liberties we have sworn to and we are all bound to observe and make good what we have sworn English Men were always so well perswaded of this Truth that in their deposing of Richard II they thought they had done enough to prove That the King had forsworn himself by the Oath he had taken having broken several of the Articles he had promised to his Subjects by Oath to observe as we may see in the Acts of his Deposal recorded in the Chronicle of Knighton James the First was convinced of this when he told the Parliament of 1609. the 21st of March That the King is bound by a double Oath tacitly as being King and so bound to protect his People and the Laws and expresly by his Coronation Oath so as every just King is bound to preserve that Paction made with his People by his Laws framing the Government thereunto and a King leaves to be a King and degenerates into a Tyrant as soon as he leaves off to govern by Law. For what concerns the Laws we find that the Kings alone had not the Authority of making them King Edwin published his Laws Habito cum Sapientibus Senioribus Consilio with Advice of the Wise Men and Elders Ina King of the West Saxons did the like The Laws of Alfrede were made after the same manner Ex consilio prudentissimorum atque iis omnibus placuit edici eorum omnium Observationes As for the Government of the State we find that the Parliaments met and that their Meetings were fix'd once a Year by Alfred which was renewed by Edward II by two Laws Moreover the King was obliged to assist at them in case he was not sick and nothing but his Sickness could dispense with his Attendance That English-men never believed that the King of England could violate the Laws and overturn the State at his Pleasure without making himself thereby liable to punishment clearly appears from the Laws of St. Edward and by the manner of holding Parliaments confirmed by William the Conqueror and printed by the care of Dom. Luc. D'achery in the 12 To me of his Spicilege Sure it is that we clearly find these three things 1st That by the Agreement and Consent of King John upon the Complaints made against him by the whole State there were chosen 25 Barons with Power to represent to the King his unjust Oppression of the Nation and to oblige him by force of Arms to redress them which he himself published by his Letters Patents in the Year 1215. which piece was published by Dom. Luc. D'achery in the old Norman Tongue Spicil Tom. XII p. 583 584 585. as it is to be read in Matthew Paris ad An. 1215. Secondly We find that the opinion of the English Nation of old was That they could not only resist their Prince which abused his Authority but wholly deprive him of it by driving him and his wicked Councellors out of the Kingdom as we see in Matth. Paris in the Year 1233 where he relates that Henry III having call'd a Parliament upon the Complaints that came in from all Parts against his Ministers and the Strangers whose Service he made use of in the management of the Affairs of the Kingdom the Members of the said Parliament perceiving that they could not with safety meet together refused to come up
Denunciantes Regi per nuncios solennes quatenus omni dilatione remota ejiceret by solemn Messengers requiring the King that without any delay he should turn out those Strangers 3ly They judged that if the Sword of St. Edward called Curtana signified that the King reserved to himself the Right of exercising Justice against Delinquents yet he was liable to the same Penalties with private Persons whenever he transgress'd the Laws of the State whereof he was the Keeper and Defender as the same Matth. Paris explains it in the Life of Henry III. much after the same manner as Aurelius Victor reports in the Life of Trajan That that Emperor understood the Ceremony of delivering the Sword to the Prefect of the Pretorium Surely if we consider our History we shall find 1. That the Kings alone never had the Power of making Laws 2. That they had no Power to lay Taxes on the People 3. That they had not always the Power of making Magistrates 4. That they had not the Right of waging War without the Advice of Parliament as is observed by Philip de Commines Lib. 4. cap. 1. 5. That as they were chosen by the People they had also Power to depose them Nennius the most ancient English Historian after Gildas tells us That Vortigerne was deposed by St. Germain and the Council of the Britains because he had married his own Daughter who placed his Son Vortimer upon the Throne Edward II. Richard II. 6. That the States have cut off the Succession may be seen by Henry VII Indeed we find that our Ancient Lawyers our Ministers of State and our Kings who of all Men ought well to understand the Form and Constitution of our Kingdom were so far from believing that the Royalty in England was an Absolute and Unlimited Government that they have expresly declared that it is a Government bounded by Fundamental and Essential Laws and composed of a mixture of Monarchy Aristocracy and Democracy See how Bracton expresseth himself to this purpose Lib. 2. c. 16. Fleta l. 1. c. 17. In populo regendo Rex habet Superiores Legem per quam factus est Rex Curiam suam viz. Comites Barones Comites dicuntur quasi Socii Regis qui habet Socium habet Magistrum ideo si Rex fuerit sine fraeno id est sine Lege debent ei fraenum ponere In Ruling the People the King has above him the Law by which he is made King and his High Court viz. the Earls and Barons Earls are so called as being the King's Companions and he who has a Companion has a Master and therefore if the King be without Bridle that is without Law they must bridle him Chancellor Fortescue saith That the King cannot alter the Laws of his Kingdom for he governs his People not only by a Regal but a Political Power when it is said the Prince's Will has the Force of a Law this saith he is to be understood of a Regal or Absolute Power from which a political Power much differs for such can neither change the Law nor charge the People with new Impositions against their Wills. This is a thing so notorious that Philip de Commines has taken notice of it in his Memoires Lib. 4. cap. 1. and elsewhere as also Polydore lib. 11. Neither have those only who have expresly treated of the Government of England as Secretary Smith consider'd our Monarchy as a Government mix'd and bounded but Charles I himself spake of it in these terms There being three kinds of Government absolute Monarchy Aristocracy and Democracy and all having particular Conveniences and Inconveniences the experience and Wisdom of our Ancestors hath so moulded this out of a mixture of those as to give this Kingdom the Conveniences of all three without the Inconveniences of any one as long as the ballance hangs even between the three Estates and they run jointly in their proper Channels The ill of absolute Monarchy is Tyranny of Aristocracy Faction and Division of Democracy Tumults Violence and Licentiousness The Good of Monarchy is uniting a Nation under one Head the good of Aristocracy is the conjunction of Counsel in the ablest Persons for the Publick Good the good of Democracy is Liberty and the Courage and Industry which Liberty begets The Lords being trusted with Judicatory power are an Excellent Skreen and Bank between the Prince and the People by just Judgment to preserve the Law wherefore the Power of punishing is already in your hands according to Law. Let any one judg after all this whether our Ancestors ever entertain'd any of those pernicious Maxims maintain'd by some of our Modern Divines Maxims that have been the fruitful Mother of Tyrants viz. That Princes can dispose of the Goods Body and Lives of their Subjects at their pleasure That they are not subject to Laws or to give any Accompt That their Succession to the Throne is by Nature and Generation and not at all by the Authority or Approbation of the States That neither their Merits or Demerits can be brought into consideration to alter any thing about the Right of their Succession which is unalterable That without precipitating our selves into eternal Condemnation we may not oppose their Designs though directly and openly level'd at the Ruin of the State and the Change of Religion In a word that they may commit all manner of Injustice and Violence they please and that safely and securely because none but God alone can punish them CHAP. XVI An Answer to some Difficulties moved against this Truth AFter having set this Matter in so clear and evident a Light it is not without some Shame and Reluctancy that I make a stop to answer some insignificant Difficulties which those who defend the unlimited Power of the Kings of England oppose to the proofs I have alledged However such as they are I am willing to consider them that I may rid the Makers of them from the least pretext of continuing any longer in so gross and dangerous an Error They alledge in the first place the Title of Imperial given to the Crown of England which in their Judgments seems to equalize our Kings with the Roman Emperors and to attribute an absolute Empire or Dominion to them concerning which I have already shewed that tho this Title were well grounded yet the consequence they draw from thence would be null whether we consider the antient Roman Empire or whether we consider the Empire as it is now in Germany I add here for a further clearing of this Matter that the same thing happened to the Kings of the West with regard to the Emperor of the West as befell the other Kings who rose after the Destruction of the Roman Empire and to the Emperor of Germany with respect to the Emperors of the East The Emperors of the East as appears from the Embassy of Luitprand at Constantinople could not endure that other Princes should take upon them the Title of 〈◊〉 〈◊〉 〈◊〉
State as having lost its Liberty since their consenting to the Establishment of Tyranny and consequently having no right to attempt any thing towards the Recovery of it But I desire those who fain would obtrude this Delusion upon others as they have upon themselves to consider 1. That known Maxime of Right Possessor malae fidei non praescribit An unjust Possessor makes no Praescription Indeed if this be true That a Man needs only usurp the Goods and Rights of another to make himself the lawful Master of them Robbers Usurers and those who by abusing of the Law deprive others of their Rights will be found to be of the best and most thriving Trades in the World. If this be so the Church of Rome and the Pope by the Possession they have been in for so many Ages must carry it by Prescription to hang burn and massacre neither can any one oppose himself against their just Title 2. They ought to consider that if Kings be accounted Minors or under Age because they cannot alienate their Dominions as being only granted them for the good of the State the People are so on a much better Title and Prescription can never prejudice them I know it is a Maxime in Law Praetor cum injustè judicat jus dicit that a Judg though he judges unjustly his Judgment stands good in Law and accordingly must be obey'd from whence some might conclude That the most unjust Kings cannot be contradicted and that it is unlawful for any to oppose themselves to their Decisions But those who should make this Objection probably would not take notice of the Consequence of it It is for the Interest of the Society that the Judgments pronounced by the ordinary Judges should be valid though some of their Judgments may be unjust but no body ever believed that this Maxime authorizeth the Magistrate either Subaltern or Soveraign to tread under-feet the Laws and to make publick Profession to judg all things according to their fancy 2ly 'T is a constant truth That Kings could never justly touch the Peoples Rights they being commissionated neither by God nor Man to judg what be the Rights of the People and having no more right to deprive them thereof than a party at Law has right to deprive his party of the Right that justly belongs to him CHAP. XVII An Answer to the last Objection AFter all that hath been said I cannot suspect that any should make an Objection that has so little Appearance of any Probability as is that which is the 2d of those that remain to be examined by me some suppose their conceit to be of some weight who urge the Acts of Parliament under King Charles II as destructive of this form of the English Government The Words are these That it is not lawful on any Pretence whatsoever to take up Arms against the King c. Indeed it cannot be denied but that these Words seem to suppose that those who swear to them cannot believe it is lawful to take up Arms against the Kings of England howsoever they may behave themselves nor by any opposition to hinder the overturning of the Laws and Government We may well acknowledg that Power to be unbounded which it is not lawful to oppose by force of Arms now these Acts of Parliament declare that it is not lawful to resist the King wherefore the King of England must be supposed an unlimited and absolute Monarch and by Consequence we must conclude that the Government of England is wholly changed and destroyed so that whatsoever we have alledged in the foregoing Discourse can only be made use of as a History of what is past but not as a Rule or Precedent for what is to come This conceit is so unreasonable that it seems scarce worth the pains to stop at it however I shall endeavour in few Words to satisfy those who seem unwarily to be taken in the Snare which the Malice of a Popish Court had laid for them 1st They must know that the Fundamental Laws of any State are of the Nature of Contracts Pactions and Capitulations which according to the common opinion of Lawyers are irrevocable Buxtorf in Bull. aurea cap. 1. § 7. whence it follows That all Oaths that are taken against Capitulations of this nature may be Sins to those who take them but cannot oblige them as being unlawful Oaths 2ly They cannot suppose that the Parliaments of Charles II did ever think of repealing these Fundamental Laws without accusing the Members that composed them of having been prevaricators and betrayers of the Interest of their Country by changing the limited Monarchy into a true Tyranny 3ly They cannot do this Injury to these illustrious Assemblies without casting the same Blemish upon the Bishops in the House of Lords during those Sessions of Parliament and making them altogether odious either for their Stupidity or for their Malice for their Stupidity if imprudently they gave their consent to Laws made on purpose to change the Kingly Government into Tyranny or for their Malice if they wilfully betrayed the Interest of the State though they knew well enough what must be the end and aim of these Regulations I desire these Gentlemen to make some Reflection on this truth Is it possible they should have no Consideration at all either for the Reputation or Conscience of their Ancestors They have shewed themselves so jealous of a change in the form of the Government by making of a successive State an Elective one and yet they suppose that the Parliament and the Bishops that sat in them have in sport changed the form of the Government by making it of a limited Royalty to become an absolute and unbounded Monarchy 4ly They must needs accuse these Parliaments of a strange Folly for these Gentlemen suppose that the Disorders which then ruled in the State obliged the Parliament to restore Charles II. They suppose that the Anarchy and various Sects which had the upper hand before his recall making wise Men not without cause to apprehend the Ruine of the Protestant Religion as well as the Overthrow of the State they thought themselves obliged to employ all their strength for restoring of Charles II. as supposing him a good Protestant and a King whom his Adversities had made wise in hopes of being governed by him according to the ancient Laws of the Kingdom And yet after this they will perswade us That the Parliament thought it fit and reasonable to destroy the Nature of the Royalty in England by making it Mistress of the Laws and authorizing it to destroy the Protestant Religion whenever the Popish Faction should think fit to have it done 5ly They must accuse these Parliaments of the commission of a horrid piece of Imprudence in attempting upon the Liberty of the People For if this were indeed their Design were they not obliged at the same time to repeal all the other Laws which restrain the Power of the Kings of England For we know that
a Law cannot be valid nor derogate from other Laws except in the said Law express mention be made of the said Derogation with a Notwithstanding to the Reglements set down in other Laws that are in Authority on that Subject De Decimis c. nuper Ought not they also in like manner to have declared and that very precisely too that they dispensed Charles II from keeping his Coronation-Oath and to have set down in very distinct terms that in case the King should think fit to call in an Army of French Dragoons to ravish their Wives and Daughters and to force all his Subjects to change their Religion they do not think it lawful to take up Arms against him or them for to repel their Violence 6ly They are to take notice that Charles II did never conceive that those Acts had changed the Government of the State. Do we not know that he offered to the Parliaments of Westminster and Oxford to impose such Conditions on the D. of York as the Parliament should judg necessary provided only the Succession might be assured to him now could any thing be more ridiculous and extravagant than this Proposition of the King had he believed that the Acts already past in his Favour had given him and his Successors a Right to overturn all without being able to be challenged or opposed by any one for so doing They themselves did suppose the same thing and went upon that Ground what else could be their meaning in Crowning James II if they supposed that he was in full and rightful Possession of the Government by virtue of the Succession without being obliged to take the Oaths by which the Kings of England oblige themselves to keep the Laws of the State. 7ly They ought to take notice that they themselves supposed that the Fundamental Laws of the State were not abolished I don't speak here of those loud Murmurs that were heard every where when James II by an Act of his Council of his own Authority raised the same Sums which had been granted to Charles II which he could not do without the Authority of Parliament nor of the Complaints that were generally made when he turned out my Lord Clarendon from being Lord Deputy of Ireland banish'd several Protestant Lords out of his Council and put Papists into all Offices whether Civil or Military I only take notice here of the Petition presented in the Name of the Clergy by the seven Bishops upon occasion of reading the Declaration for Liberty of Conscience for had they been of another opinion with what pretence of reason could they have complained of James II governing with an Arbitrary Power and his dispensing with the Laws Why in their Petition did they alledg those Acts of Parliament which had condemn'd that Power in 1673 when Charles II published his Proclamation for Liberty of Conscience These Acts of theirs upon this Supposal could not be accounted of otherwise than as Acts of Rebellion nor could they be made use of with a good Conscience after they had been convinc'd that the Fundamental Laws being repealed and abolished they were now subject to an arbitrary and unbounded Government Indeed we cannot enough commend the Constancy of the Clergy and those worthy Prelates who refused to read the Declaration of James II for Liberty of Conscience that Declaration being grounded upon the Power he attributed to himself of dispensing with the Laws But on the other Hand neither can we imagine any more convincing Proof to make out that at that Time they did not conceive any more than the whole State who so generally applauded them that they themselves as well as the whole State had cast themselves headlong into Slavery by their Oaths because the Power of the Kings of England was become unbounded and Arbitrary In a Word how ample an extent soever these Gentlemen may give to the Oath they have taken in pursuance of an Act of Parliament in the 13 Year of Charles II they must remember one Thing which is always supposed which is the natural Condition of all Oaths rebus sic stantibus c. ad naturam Things continuing in the same State for indeed as soon as things have changed their Nature or that Circumstances are altered there remains no more Obligation in Cases where exceptions are naturally supposed I am bound to Obey my Father in all Things this being what the Scripture expresly teacheth me but I am not bound to Obey him any farther than he Acts like a Father neither am I oblig'd to keep this Command of obeying him in all Things but only so far as the Things enjoyned by him are just and lawful I am bound to obey the King according to the Laws neither may I lawfully resist Him in his executing of the Laws or upon any pretext whatsoever take up Arms against him but if in stead of governing according to Law he useth his utmost Endeavours to overthrow the Society by destroying the Laws which are the Band of it then all the Oaths I have taken are no longer of any Force 't is my Right to Endeavour to preserve the Society which he goes about to overthrow and to oppose his Violence by taking up Arms against him and to put a stop to the unjust Proceedings of a Prince who declares himself an Enemy to the State by the ways which providence affords me for my Security But if after all these Considerations these Gentlemen will still maintain that they have taken these Oaths in so strait a Sense that nothing is capable of satisfying their Consciences we have great Reason to be Astonished how it was possible that Men of so Tender and Delicate a Conscience could take such Oaths which taken in their Sense do visibly overturn both the State and Religion Indeed there is no need of any ones being a Prophet to make him conceive that they were rather obliged in Conscience to refuse the taking of such Oaths and to fly to the End of the World rather than take them than they are bound to keep them with the hazard of the utter Ruin of their Native Country and their Religion or see them Perish without having any Power to Defend them as they are obliged by the Laws of nature and by all the Duties of the Society and Religion It has already been made out by several Writings that God seeming to spare and wink at the weakness of those who believ'd themselves thus fast bound and tied by their Oaths and destin'd to become Victimes to Popery and Tyranny has been pleas'd happily to deliver them from the trouble wherein they had involed themselves in sending them a Deliverer whose Rights in a War which James II. unjustly wageth against him are above all those Difficulties which seem to be matter of Scruple to them so that it is not needful for me to insist any longer on this Matter CHAP. XVIII A Reflection on some Remarks made out in this Treatise I Am perswaded that every equal Reader cannot but
promulgamus ut si quis ex eis contra reverentiam legum superba dominatione fastu regio in flagitiis facinore sive cupiditate crudelissimam potestatem in populis exercuerit anathematis sententia à Christo domino condemnetur habeat a Deo separationem atque judicium propter quod praesumpserit prava agere in perniciem regnum ††deducere convertere De se Suintilane vero qui scelera propria metuens seipsum regno privavit potestatis fascibus exuit id cum gentis consultu decrevimus ut neque eundem vel uxorem ejus propter mala quae commiserunt neque filios eorum unitati nostrae unquam consociemus nec eos ad honores à quibus ob iniquitatem dejecti sunt aliquando ‖ ‖ provehamus promoveamus quique etiam sicut à fastigio regni habentur extranei ita à possessione rerum quas de miserorum sumptibus ††auxerant hauser ant maneant alieni praeter id quod pietate piissimi principis nostri fuerint consecuti Non aliter * * Geilanem Gelanem memorati ††Suintilanae Suintilani sanguine scelere fratrem qui neque in germanitatis * * fide foedere stabilis extitit nec fidem gloriosissimo nostro domino pollicito conservavit hunc igitur cum conjuge sua sicut ††antefactum est antefatos à societate gentis atque consortio nostro placuit separari nec in amissis facultatibus in quibus per iniquitatem creverant reduces fieri * * praeter in id praeter id quod consecuti fuerint pietate clementissimi principis nostri cujus gratia bonos donorum praemiis ditat malos à beneficentia sua ††congruè non separat non separat Gloria autem honor omnipotenti Deo nostro in cujus nomine congregati sumus Post haec salus pax diuturnitas piissimo amatori Christi domino Sisenando regi cujus devotio nos ad hoc decretum salutiferum convocavit Corroboret Christi gloria regnum illius * * gentesque gentisque Gothorum in fide Catholica annis meritis protegat illum usque ad ultimam senectutem summa Dei gratia post praesentis regni gloriam ad aeternum regnum transeat ††ut sine fine regnet qui * * in saeculo intra Saeculum feliciter imperat ipso praestante qui est Rex regum Dominus dominantium cum Patre Spiritu Sancto in Saecula Saeculorum Amen Definitis itaque iis quae superius comprehensa sunt annuente religiosissimo principe placuit deinde nulla re impediente à quolibet nostrum ea quae constituta sunt temerari sed cuncta salubri consilio ††conservari conservare quae quia profectibus Ecclesiae animae nostrae conveniunt etiam propriâ subscriptione ut permaneant roboramus * * subscripserunt omnes AN ADVERTISEMENT Concerning the ARTICLES OF MAGNA CHARTA of King JOHN As also concerning The MAGNA CHARTA now printed in this APPENDIX THESE Articles or Capitula were found in the Study of Bishop Warner late Bishop of Rochester They were communicated by a Gentleman of that Family to Mr. Geddis and by him to the present Bishop of Salisbury There can be no reasonable scruple raised against the Authentickness or Truth of the Writing For first 1. It is in a Hand very ancient They that are competent judges of such Antiquities say It well pretendeth to the Time of which it treateth 2. It hath yet appendant the Seal of King John without any suspicion of being lately affixed 3. In the famous Library of Sir John Cotton there are now to be seen many private Charters of King John which exactly agree with this both in respect of the Writing and also of the Seal 4. In the Books of the Archbishoprick of Canterbury amongst many things there entred of the time of King John these Articles are Recorded and were thence transcribed many Years before the Original of them came into the Hand of the Bishop of Salisbury 5. This Instrument is the same which Matth. Paris mentioneth Page 254. by the name of SCHEDVLA Archiepiscopus Schedulam illam c. The Arch-Bishop with others bringing that Schedule to the King recited before the King all the Capitula c. Which tho' the King then rejected yet shortly after upon better Advice He granted as may be gathered from the next Page of Matth. Paris These Arguments may satisfie those who since the late mentioning of these Articles in the Pastoral Letter of the Bishop of Salisbury have had the Civility to doubt of the Truth of the whole matter 1. As to the substance of these Articles It is to be observed that they contain some part of the Rights of the Barons due to them by the Unwritten or Common Law of the Land which Rights for more certainty were in several Reigns drawn into Writing And for more obligatoriness into Charters after the entrance of the Normans In the time of the Confessor they were contained in the Laws of that King. William the Conqueror confirmed to the old and new Barons of his Investiture according to Custom of England the Laws of the Confessor as appeareth by the Record in Ingulf and other Testimonies 2. These Articles or the Laws of the Confessor were recognized and by Oath re-confirm'd by William Rufus no doubt at His Coronation or not long after The old English Chronicle writeth thus William Rufus by his Letters Summon'd the Bishops Earls and Barons to St. Pauls and there he Sware and made to them Surety by Writing to sustain and maintain the Right 3. King Henry I. ratified these Rights In his Charter we find in general Lagam Edwardi Regis vobis reddo cum its emendationibus quibus Pater meus eam emendavit c. I restore to you the Law of King Edward as it was mended or enlarged by my Father with the Advice of his Barons 4. It is evident that King John to omit others both by His Coronation Oath and at other times confirmed these Articles or Explanations of the Old Law. Matth. Paris pag. 239. The King John strictly commanded that the Laws of His Grandfather King Henry should be observed by the whole Kingdom But what this Law of King Edward or Emendations contained the same Matth. Paris setteth down in short pag. 252. The Charter of King Henry the First contained certain Liberties and Laws of King Edward granted to the Church of England and the great Men as also some Liberties superadded by King Hen. I. And pag. 254. Capitula quoque legum libertatum c. The Heads or Articles of the Laws and Liberties which the Great Men desired to be confirmed are already entred partly above in the Charter
of Henry I. and partly were gathered out of the Old Laws of King Edward The Historian speaketh of these very Articles here Printed 5. 'T is observable That in these Articles there is no care taken for the Liberties of the Church The reason of which I conceive to be this The Church-men mostly then held with the King. And the Hand of the King was most heavy upon the Laity who framed these Articles without the Clergy 6. These Articles provide nothing concerning the Summons and holding of the Common Council of the Realm The reason whereof probably was this The Barons of that time had introduced a Practice of themselves to appoint the Time and Place of the Meeting of the Common Council of the Nation At the granting of these very Articles King John sent to the Barons Vt diem locum providerent congruum ad haec omnia prosequenda That they the Barons would appoint Time and Place for the concluding that matter In the time of Henry III. in whose Charter the Article de communi concilio habendo was omitted and in whose time the Barons begun again to War we find that the Lords came unto the King and said He must ordain and see for the Welfare of the Realm and then set the King a Day to meet at Oxenford and there to hold a Parliament So the English Chronicle However this grand Affair as also that of the Church were provided for in the Magna Charta of King John. Whereby it further appears That these Articles were but the Rudiments of that Charter after further enlarged upon further deliberation I COME now in the second place to say a few things concerning the Perfect and Compleat Magna Charta of King John here printed in French. 1. It was the Custom of old Times to make three several Copies of Publick Acts and Charters Of the Magna Charta we have one in Latin in Matthew Paris This in French or old Norman Language was kept in the Records of France and thence Published some years past by Luke Dachery in his Spicilegium That in English was sent into all Counties but as yet no Copy in this Language appeareth Thus also the Laws of Canute and the Provisions of Oxford to mention no more made in the time of Hen. III. were Publisht in three Languages 2. The very same Charter Publisht in Latin by Matthew Paris is also extant in the History of Rad. Niger almost word for word and also in two several Manuscripts in the Cottonian Library where also about twenty years past the very Original was to be seen 3. The Magna Charta of King John is not extant in any Record in the Tower or elsewhere as several affirm nor the Magna Charta of H. III. but only by Inspeximus in the time of Edw. I. A thing much to be wondered at Rudburne writeth of the Charters of Hen. I. Sublatae sunt omnes variis fallaciis exceptis tribus All but three were embezel'd 4. The Magna Charta of King John and that of Hen. III. are said to be the very same where as they do exceedingly differ as Mr. Selden in his Epinomis hath partly observed and may further appear to any that will compare them Matthew Paris pag. 323. The Tenor of these Charters is fully set down above where our History treateth of King John So as the Charters of King John and Hen. III. are not found to differ in any thing These words are not the words of Matthew Paris but of Roger VVendover whom Matthew Paris often transcribeth very hastily in whose History the Charter entred as King John's is exactly the same with that Charter of Henry the Third 5. As to that remarkable Article Et ad habendum commune concilium Regni And to the holding the Commune Council of the Realm c. I shall briefly say 1. That it hath been left out of all the Charters after King John's time but is found in several Copys very Authentick and particularly in the French Copy now here printed 2. That this Article doth not as some have written give the Original to our Parliaments for such Parliaments or communia concilia were held before this time King Richard the First after his return from the Holy VVar summon'd a Common Council or Parliament at London of the Clergy and Laity where he demanded Council about his making War upon the King of France Earl Roger answered for the whole Parliament The Earls Barons and Knights will aid you O King with their Swords the Archbishops Bishops Citizens Burgesses and Ecclesiastick Persons will aid you with Money Abbates Priors and such others will aid you with their Prayers So the English Chron. And to omit others an Instance of such a Parliament is found in the Annales of Burton pag. 263. compared with page 265. King John call'd to Northampton all the Earls and Barons of England it followeth Pandulfus spake at the same time to the Earls Barons and Knights O that you c. The Clergy indeed are not here mentioned but were certainly present because the occasion of that Council was to restore Peace to the Church and Kingdom as Matthew Paris or as the Annalist of Waverly wordeth it betwixt the King and the Archbishop 3. I conceive the chief end of adding this Article was to prevent the taking of Aids commonly called Talliage or Escuage by surprize or by the consent only of a few which King John had lately done For the summoning of the Commune concilium here is plainly limited to the Sessing of Aids and Escuage But the Mirror giveth another account of the meeting of Parliaments worthy of Consideration page 225. where the Author refers us to higher times There is yet one Article more in this Charter of King John which deserveth our regards the rather because it being lately alledged in the Pastoral Letter hath much scandalized some with its suprising Novelty The words are Barones cum communia totius terrae gravabunt nos The Barons with the Community of the Land shall aggrieve or distress us c. But why should this sound uncouth to any who have with Reflection perused the Histories of this or the Neighbouring Kingdoms wherein the same Practice is frequently found Andrew King of Hungary allowed the same Liberty to his People as may be seen at large in the Decrees of the Kings of Hungary in the end of Bonfinius Like Examples occur in the French Annales and in the Annales of Waverly in the time of Hen. the Third pag. 217. If any will yet suspect that Matthew Paris in this Point hath not writ fairly or that the Articles produced by the Bishop of Salisbury are not to be relied on and some such dissatisfied People there are then let them if they can be believed desirous of satisfaction repair to the Red Book of Exchequer where fol. 234. they may find the very same VVords and Liberty granted as before Which Record cannot well be suspected of being corrupted because it
paying Relief or making fine The Guardian of an Heirs Land shall take the reasonable Issues Customs and Services without destruction or waste of his Men or Goods And if such Guardian make destruction and waste he shall lose the Wardship and the Guardian shall keep in repair the Houses Parks Ponds Pools Mills and other Appurtenances to the Estate out of the Profits of the Land. And shall take care that the Heirs be married without disparagement and by the Advice of their near Kindred That a Widow shall give nothing for her Dower or Marriage after the death of her Husband but shall be suffered to dwell in her Husband's House Ninety days after his death within which time her Dower shall be assigned her and she shall immediately have her Marriage and her Inheritance The King nor his Bayliff shall not seize any Land for debt if the Debtors Goods be sufficient nor shall the Debtors Sureties be distrain'd upon when the Debtor himself is able to pay the Debt But if the Debtor fail of payment the Sureties if they will may have the Debtors Lands till the Debt be fully satisfied unless the Principal Debtor can shew that he is quit against his Sureties The King shall not allow any Baron to take Aide of his free Tenants but for the Redemption of his Person for the making his Eldest Son a Knight and towards the Marriage of his Eldest Daughter once and hereunto he shall have but a Reasonable Aid That none shall do more Service for a Knights Fee than is due for the same That Common Pleas shall not follow the King's Court but shall be holden in some certain Place And that Recognitions be taken in their proper Counties and after this manner viz. That the King shall send two Justices four times a year who together with four Knights of the same Shire chosen by the Shire shall take Assizes of Novel disseisin Mordancester and Darrein presentment nor shall any be summoned hereunto but the Jurors and the two Parties That a Freeman shall be amerced for a small fault after the manner of the fault and for a great fault according to the Greatness of the fault saving his Contenement A Villain also shall be amerced saving his Wainage and in like manner a Merchant saving his Merchandise by the Oath of good Men of the Vicinage That a Clerk shall be amerced according to his Lay-see in manner aforesaid and not according to his Ecclesiastical Benefice That no Town be amerced for not making Bridges nor Banks but where they have been of old time and of Right ought to be That the measure of Wine of Corn and the breadth of Cloth and the like be rectified and so of Weights That Assizes of Novel Disseizin and Mordancester be abbreviated and so of other Assizes That no Sheriff shall entermeddle with Pleas of the Crown without the Coroners and that Counties and Hundreds shall be at the ancient Farms without any Encrease except the King 's own Demesn Mannors If any Tenant of the King die the Sheriff or other the Kings Bayliff may seize and enroll his Goods and Chattels by the view of lawful Men but yet so as that nothing thereof be taken away till it be fully known whether he owe any clear debt to the King and then the Kings Debt shall be paid and the Residue shall remain to the Executors to perform the Testament of the Dead And if nothing be owing to the King all the Goods shall go to the use of the dead If any Free-man dye Intestate his Goods shall be distributed by his nearest Kindred and Friends and by the view of the Church Widows shall not be distrain'd to marry if they are minded to live unmarried provided they find Sureties that they will not marry without the King's Assent if they hold of the King or without the Consent of their Lords of whom they hold No Constable or other Bayliff shall take any Man's Corn or other Chattels but he shall forthwith pay for the same unless he may have respit by consent of the Seller That no Constable shall distrain any Knight to give Money for the keeping of his Castle if he himself will do it in his own proper Person or by another sufficient man if he may not do it himself for a reasonable Cause And if the King lead him in his Army he shall be discharged of Castleward for the time No Sheriff or Bayliff of the King nor any other person shall take the Horses or Carts of any Free-man to make carriage without his leave The King nor his Bayliffs shall not take any Man's Wood for Castles or other Occasions but by License of him whose the Wood is That the King do not hold the Lands of them that be convicted of Felony longer then a year and a day after which they shall be delivered to the Lord of the Fee. That all Wears from henceforth be utterly put down in Thames and Medway and throughout all England That the Writ called Precipe be not from henceforth granted to any person of any Freehold whereby a Freeman may lose his Court. If any be disseiz'd or delay'd by the King without Judgment of Lands Liberties or other his Right he shall forthwith have restitution and if any Dispute arise upon it it shall be determin'd by the Judgment of the Five and twenty Barons And such as have been disseiz'd by the King's Father or his Brother shall have Right immediately by the Judgment of their Peers in the King's Court. And if the King must have the Term of others that had taken upon them the Cross for the Holy Land the Archbishop and Bishops shall give Judgment therein at a certain day to be prefixt without Appeal That nothing be given for a Writ of Inquisition of Life or Member but that it be freely granted without price and be not denyed If any hold of the King by Fee-farm by Socage or Burgage and of any other by Knight's Service the King shall not have the Custody of the Heir nor of his Lands that are holden of the Fee of another by reason of such Burgage Socage or Fee-farm Nor ought the King to have the Custody of such Burgage Socage or Fee-farm and no Freeman shall lose his Degree of Knighthood by reason of petty Serjeanties as when a Man holds Lands rendring therefore a Knife an Arrow or the like No Bayliff shall put any man to his Law upon his own bare saying without faithful Witnesses That the Body of a Free-man be not taken nor imprisoned nor that he be disseiz'd nor Out-law'd nor Exil'd nor any way destroyed Nor that the King pass upon him or imprison him by force but only by the Judgment of his Peers or by the Law of the Land. That Right be not sold nor delay'd nor denyed That Merchants have liberty to go and come safely to buy and sell without any manner of Evil Tolls by the Old and Lawful Customs That no Escuage or Aid be
to the utmost of his Power with them And the King shall give publick and free Liberty for any man to swear that will and shall never pohibit any to swear And all those of the Nation who will voluntarily of their own accord swear to the Five and twenty Barons to distress the King with them the King himself shall issue his Praecept Commanding them to swear as aforesaid Item If any of the said Five and Twenty Barons dye or go out of the Realm or be any other way hindred from performing these things the residue of the Five and twenty shall chuse another whom they think best in his place who shall be sworn as the rest are And in all matters referred to those Five and twenty Barons if they happen to be all present and differ amongst themselves or if any of them being thereto appointed will not or cannot come what the major part of them shall agree upon and enjoyn shall be valid as if all the Five and twenty had agreed in it And the said Five and twenty shall swear that they will faithfully observe and keep the Articles aforesaid and with all theit might cause them to be observed Moreover the King shall give them the Securities of the Archbishop and Bishops and Master Pandulphus that he will not obtain any thing from the Pope whereby any of these Articles of Agreement may be revoked or diminished And if any such thing be obtain'd that it be reputed void and of none effect nor shall ever be made use of THE GREAT CHARTER OF KING JOHN A True Copy from the Original French. JOHN by the Grace of God King of England to the Archbishops Bishops Abbots Earls Barons Justices Foresters Sheriffs Prevosts Ministers and all his Bayliffs and his Lieges Greeting Know ye that We by the Grace of God and for the saving of our Soul and the Souls of all our Ancestors and of our Heirs and for the Honour of God and the safety of Holy Church and for the amendment of our Government By the Advice of Our Honoured Fathers Stephen Archbishop of Canterbury Primate of All England and Cardinal of Rome Henry Archbishop of Dublin William Bishop of London Peter Bishop of Winchester Jocelin Bishop of Bath Hugh Bishop of Lincoln Walter Bishop of Worcester William Bishop of Chester Benedict Bishop of Rochester and Master Pandulph Sub-deacon of our Lord the Apostle and of our Friend and Brother Anner Master of the Order of Knights Templers in England And by the Advice of our Barons William Earl Marshal Earl of Pembroke William Earl of Salisbury William Earl of Warren William Earl of Arundel Alan of Galloway Constable of Scotland Warin Fitz-Gerard Peter Fitz-Herbert Hubert de Burgh Steward of Poictou Hugh Nevill Matthew Fitz-Herbert Thomas Basset Alan Basset Phillip d' Aubenie Robert de Ropelee John Marshall and John Fitz-Hugh and by the Advice of other our Lieges Have in the first place granted to God and confirmed by this our present Charter for us and for our Heirs for ever That the Churches of England shall be free and shall enjoy their Rights and Franchises entirely and fully And this our Purpose is that it be observed as may appear by our having granted of our meer and free Will that Elections should be free which is reputed to be a very great and very necessary Priviledgeâ— of the Churches of England before the difference arose betwixt Us and our Barons and by our having confirm'd the same by our Charter and by our having procur'd it moreover to be confirmed by our Lord the Apostle Innocent the third Which Priviledge We will maintain And our Will is that the same be faithfully maintain'd by our Heirs for ever We have also granted to all the Free-men of our Kingdom for us and our Heirs for ever all the Liberties hereafter mentioned to have and to hold to them and their Heirs of Us and our Heirs If any of our Earls our Barons or others that hold of us in Chief by Knight-Service die and at the time of his death his Heir be of full age and Relief be due he shall have his Inheritance by the ancient Relief to wit the Heir or Heirs of an Earl for an entire Earldom C pounds the Heir or Heirs of a Baron for an entire Barony C Marks the Heir or Heirs of a Knight for a whole Knights Fee C Shillings at most and where less is due less shall be paid according to the ancient Customs of the several Tenures If the Heirs of any such be within Age and in Ward they shall have their Inheritance when they come of Age without Relief and without Fine The Guardians of the Land of such Heirs being within age shall take nothing out of the Land of the Heirs but only the reasonable Profits reasonable Customs and reasonable Services and that without making destruction or wast of Men or Goods And if we shall have committed the Custody of the Land of any such Heir to a Sheriff or any other who is to account to us for the Profits of the Land and that such Committee make destruction or wast We will take of him amends and the Land shall be committed to two lawful and good Men of that Fee who shall account for the Profits to us or to such as we shall appoint And if we shall give or sell to any Person the custody of the Lands of any such Heir and such Donee or Vendee make destruction or wast he shall lose the Custody and it shall be committed to two Lawful Sage and Good Men who shall account to Us for the same as aforesaid And the Guardian whilst he has the Custody of the Heirs Land shall maintain the Houses Ponds Parks Pools Mills and other Appurtenances to the Land out of the Profits of the Land it self and shall restore to the Heir when he shall be of full age his Land well stockt with Ploughs Barns and the like as it was when he receiv'd it and as the Profits will reasonably afford Heirs shall be married without disparagement insomuch that before the Marriage be contracted the Persons that are next of Kin to the Heir shall be made acquainted with it A Widow after the death of her Husband shall presently and without oppression have her Marriage and her Inheritance nor shall give any thing for her Marriage nor for her Dower nor for her Inheritance which she and her Husband were seiz'd of the day of her Husband's death and she shall remain in her Husband's House Forty Days after his death within which time her Dower shall be assign'd her No Widow shall be compelled to marry if she be desirous to live single provided she give Security not to marry without our leave if she hold of us or without the Lord's leave of whom she holds if she hold of any other We nor our Bayliffs will not seize the Lands or Rents of a Debtor for any Debt so long as his Goods are sufficient to pay the
to none out of any Tenement whereby a Free-man may lose his Court. One Measure of Wine shall be used throughout our Kingdom and one Measure of Ale and one Measure of Corn to wit the London Quart. And there shall be one breadth of dyed Cloth Russets and Haubergets to wit two Ells within the Lists And concerning Weights it shall be in like manner as of Measures Nothing shall be given or taken henceforth for a Writ of Enquisition of Life or Member but it shall be granted freely and shall not be denyed If any hold of us by Fee-farm or by Socage and hold likewise Land of others by Knight-Service we will not have the Custody of the Heir nor of the Land which is of the Fee of another by reason of such Fee-farm Socage or Burgage unless such Fee-farm owe Knight-Service We will not have the Wardship of the Heir nor of the Land of any Person which he holds of another by Knight-Service by reason of any Petit Serjeanty by which he holds of us as by the Service of giving us Arrows Knives or such like No Bayliff for the time to come shall put any Man to his Law upon his bare word without good Witnesses produced No free man shall be taken nor imprisoned nor disseised nor outlawed nor exil'd nor destroy'd in any manner nor we will not pass upon him nor condemn him but by the Lawful Judgment of his Peers or by the Law of the Land. We will sell to none we will deny nor delay to none Right and Justice All Merchants may with safety and security go out of England and come into England and stay and pass through England by Land and Water to buy and sell without any Evil Tolls paying the Ancient and Rightful Duties except in time of War and then they that are of the Country with whom we are at War and are found here at the begining of the War shall be attach't but without injury to their Bodies or Goods till it be known to us or to our Chief-Justice how our Merchants are entreated which are found in our Enemies Country and if ours be safe there they shall be safe in our Land. It shall be Lawful for all men in time to come to go out of our Kingdom and to return safely and securely by Land and by Water saving their Faith due to us except it be in time of War for some short time for the profit of the Realm But out of this Article are excepted Persons in Prison Persons out-law'd according to the Law of the Land and Persons of the Country with whom we are at War concerning Merchants what is abovesaid shall hold as to them If any hold of any Escheat as of the Honour of Wallingford Nottingham Boloin Lancaster or of other Escheats which are in our hand and are Baronies and dye his Heirs shall owe us no other relief nor do us any other Service then was due to the Baron of such Barony when it was in his hand and we will hold the same in like manner as the Baron held it Men that dwell out of the Forest shall not appear before our Justices of the Forest by common Summons unless they be in suit themselves or Bail for others who are attach't for the Forest We will not make Sheriffs Justices nor Bayliffs but of such as know the Law of the Land and will keep it All that have founded Abbies whereof they have Charters from Kings of England or ancient Tenure shall have the custody thereof whilst they are vacant as they ought to have All the Forests that have been Afforested in our time shall instantly be Disafforested in like manner be it of Rivers that in our time and by us have been put in defence All evil Customs of Forests and Warens and of Foresters and Warenners of Sheriffs and their Ministers of Rivers and of Guarding them shall forthwith be enquired of in every County by twelve Knights sworn of the same County who must be chosen by good Men of the same County And within forty days after they have made such Inquisition the said evil Customs shall be utterly abolished by those same Knights so as never to be revived provided they be first made known to us or to our Chief Justice if we be out of the Realm We will forthwith restore all the Hostages and all the Deeds which have been delivered to us by the English for surety of the Peace or of faithful Service We will wholly put out of Bayliffwicks the Kindred of Gerard de Aties so that from henceforth they shall not have a Bayliffwick in England and Engeland de Cygoigni Peron Guyon Andrew de Chanceas Gyon de Cygoigni Geffry de Martigni and his Brothers Philip Mark and his Brothers Geffray his Nephew and all their Train And presently after the Peace shall be reform'd we will put out of the Realm all Knights Foreigners Slingers Serjeants and Soldiers who came with Horse or Arms to the nusance of the Realm If any be disseiz'd or esloyn'd by us without Lawful Judgement of his Peers of Lands Chattels Franchises or of any Right we will forthwith restore the same and if any difference arise upon it it shall be determined by the Judgement of the Five and twenty Barons of whom mention is made hereafter in the security for the Peace As to all things whereof any have been disseiz'd or esloyn'd without Lawful Judgement of their Peers by King Henry our Father or by King Richard our Brother which we have in our hands or which any other has to whom we are bound to warrant the same we will have respit to the common Term of them that are crost for the Holy Land except such things for which Suits were commenced or Enquest taken by our Order before we took upon us the Cross And if we return from the Pilgrimage or perhaps forbear going we will do full Right therein The same Respit we will have and the same Right we will do in manner aforesaid as to the Disafforesting of Forests or letting them remain Forests which the Kings Henry our Father or Richard our Brother have Afforested and and as to Custodies of Lands which are of the Fee of other Persons which we have held till now by reason of other Men's Fees who held of us by Knight-Service and of Abbies that are founded in other Men's Fees in which the Lords of the Fees claim a Right And when we shall be returned from our Pilgrimage or if we forbear going we will immediately do full Right to all that shall complain None shall be taken nor imprisoned upon the Appeal of a Woman for the death of any other than her Husband All the Fines and all the Amercements that are imposed for our use wrongfully and contrary to the Law of the Land shall be Pardoned or else they shall be determined by the Judgment of the Five and twenty Barons of whom hereafter or by the Judgement of the greater number of them that