over the King in the State of Nature than it doth for a Creditor in the like State to compel by force his Debtor to pay him a Sum of Money which he owed him in case there were no Civil Iurisdiction for him to Appeal to And let us farther suppose a Council or Parliament appointed who may Remonstrate to the King his Transgressions or Violations of the Law Yet this may be without any Coercive Power over his Person or of making War upon him since the King may if he please remedy all these Disorders by Redressing their Grievances and punishing the Authors of them So if he will wilfully persist in such Violations as strike at the Fundamental Constitution of the Government and do also go about to execute them upon the People by force this being in effect a making War upon them I suppose they have then a just Right to defend themselves against his Tyranny So that if these Rights or Priviledges we now enjoy were not the meer Concessions of the King's Grace and favour as you affirm but reserved as part of their Birth-Right at the Original Constitution of the Government as I shall prove all our Fundamental Laws were the People have then as much Right to defend them their Allegiance to him being upon that Condition either express or imply'd as any other Nation hath to defend their Lives Liberties and Properties against the Violence of the Supream Powers or any Commissioned by them as I hope I have already proved to you So that notwithstanding all that you have said to the Contrary I think the Notion of a mixt or limited Monarchy in the very institution may be agreeable to Reason and practicable too either in this or any other Kingdom And when you can prove the contrary by History or Matter of Fact as you promise I will give up the Cause M. You have Broached a parcel of Special Common-Wealth Notions in which you are every way out As first in making the King's Authority derived either from or by the Peoples Consent Whereas all our Ancient Lawyers call him God's Vicar or Lieutenant on Earth and not the People's and in the next place in supposing he may be Resisted by Force of Arms whenever the People shall think themselves Opprest or their Fundamental Rights and Liberties as you call them invaded it is contrary to the Express Declaration of the Parliament by two serveral Statutes in the 2d Year of the late King Charles And though you disclaim all Coercive Power of the two Houses over the King yet it is only to place this Right of Resistance in a more fallible and ungovernable Body viz. the whole People in their Natural Capacities which as it is more consistent with your Principles so it is more dangerous to all Supream Powers as well Common-Wealths as Monarchies as I have partly shewed you already and I hope may farther convince you before I have done But since I have not now time to shew you the falsity and absurdity of these Notions and to urge the Statute at large against Resistance in any Case Whatsoever I pray go on in the Method you have proposed and let me see how you can make out that even our Parliaments do not derive that Priviledge they now enjoy of giving their consent to Laws as also their very being to the Gracious Concessions of our former Monarchs F. That I shall do with all my Heart But first let me tell you that though I own the King to be God's Lieutenant in these his Dominions Yet I must likewise aver that it was only by the Consent and Voluntary Submission of the People of this Nation that the first Monarch begin where you will could obtain that Title And as for those Statutes you mention against all Resistance in any Case Whatsoever I doubt not but to shew you that it was never the intent of that Parliament to debar us from all necessary Resistance and Self-defence in cases of illegal Violence and intollerable Oppression unless you can suppose they were resolved to alter the Government and to put it into the King's Power to destroy all our Laws and Liberties and instead of a Lawful King to Set up for a Lawless Tyrant when ever he pleased But to come to the matter in Hand I shall shew you that it is not at all impossible or improbable that without any hinderance of that Power which is necessary to the King as Supream that he might for all that have bin limited as to the Legislative at the first Institution of the Government which I shall thus make out I do therefore in the first place suppose that the English Saxons being a free People after their Conquest of this Island as well Nobles as Commons did agree by their free consents and publick Compacts to set over themselves a Prince or Soveraign and to Resign up themselves to him to be governed by such and such Fundamental Laws Here is a Supremacy of Power set up though limited as to the manner of its Exercise 2. Then because in all Governments after Cases will arise requiring an Addition of Laws suppose them Covenanting with their Sâ—veraign that if there be any Cause to Constitute any New Laws he shall not by his Sole Power perform that Work but that they will reserve in themselves a Concurrent or Co-operative Power So that they will be bound by no Laws but what they joyn with him in the making of 3. I suppose that though the Nobles may personally convenâ— Yet since the Commons being so Numerous cannot meet together in Person therefore for the doing of this Work it be agreed that every City of Considerable Town should have Power to Depute one or more to Act for the whole Body in the Legislature That the Nobles by themselves in Person and the Commons by their Deputies Assembling there may be Representatively the whole Body of the Kingdom with Power to execute that Authority reserved for establishing new Laws 4. Since the Occasion and need of making such Laws and Expounding the Old Ones could not be constant and perpetual therefore we may farther suppose for the avoiding of the inconvenience of three standing Co-ordinate Powers they did not Establish these Estates to be constantly existent but occasionally as the Causes for which they were ordained should require 5. Because a Monarchy was intended and therefore a Supremacy of Power as far as was necessary must be reserved in One it was concluded that these Estates should be still Assâ—mblies of his Subjects and Swearing Allegiance to him and that all New Laws which by agreement of these Powers should be Enacted should run in his Name and be called his Laws and they all bound to obey him in them when thus Establisht And Lastly it being supposed that He who thus was to govern by Law and for the furtherance of whose Government such New Laws were to be made should best understand when there was need of them and that the Convening and
Dissolving of the Assembly of the Estates was a Power of Great Trust it was put into the Prince's Hands by Writ to Convocate as also to Prorogue or Dissolve such meetings But in Process of time some Princes not caring much to have their Government lookt into or to have any Power in Being but their own taking Advantage of this Power of Assembling these Estates did more seldom then need Required make use of it Whereupon provision was made and a time set by New Statutes within which an Assembly of Parliament was to be held Now when you have made these true Suppositions in your Mind you have the very Model and History of this Monarchy and we shall easily find what to answer to the Arguments before produced on either side For first it is his Parliament because an Assembly of his Subjects Convocated by his Writ to be his Council and to assist him in making Laws for him to govern by Yet not his as other Courts are as deriving their whole Authority from the King So likewise his Power of Assembling and Dissolving them proves him thus far above them because though as to the time of their meeting it depends on him Yet their Power and Authority quoad Specificationem i. e. the Being Kind and Exercise of it is from the Original Constitution For as to that they expect no Commission and Authority from him but only for their meeting to proceed to Act but when met they Acts according to the Original Rights of their Constitution and those Acts proceed from their Conjunct Authority with not from their Subordination to the King in the Legislative as also in laying of Taxes c. on the People The Oath of Allegiance indeed binds them as his Subjects to obey him governing according to Establisht Laws But yet it supposes them to be built upon the Foundations of his Legal Government and must not be interpreted to Vndermine and Destroy it He is hereby acknowledged to be Supream so far as to Rule them by Laws already made or to be made but not without them So that this is no Derogation to the Legislative Power of Parliament And I believe of these things no unprejudic'd Man can make any Question And herein consists the accurate Judgment of the Contrivers of this Form that they have given so much into the Hands of the Soveraign as to make him truly a Monarch Yet have reserved so much in the hands of the People as to enable them to preserve their Laws and Liberties M. I confess you have given a long and plausible account of the Original and Form of our Government though if it come to be examined I doubt it will prove a meer Romance and not at all agreeable to true History or Matter of Fact Since if we look to the Eldest times either after the Saxon or Norman Conquests We shall find the Power of our Kings to have bin still more Absolute then they are now And I think I could easily trace the Steps by which the People have attained to all the Power and Priviledges they now enjoy which as I do not grudge the Nobility and People of this Nation Yet they ought to exercise it with a due respect and Subordination to that Power from which they were all at first derived least if they should ascribe them to themselves the King should be tempted to destroy those Great Priviledges and taking away the very Being of Parliaments to make Laws without them But to shew you farther that this Notion of an independent Power in the two Houses by the Original Constitution of the Government is altogether inconsistent with the King's Prerogative appears from clear Matter of Fact even as you your self have put it For when Kings thought fit not to have their Power Controuled you acknowledge they called Parliaments less frequently than usual and that thereupon there were divers Laws made appointing certain times for their meeting from whence it appears that before this the times of their meeting were wholy left to his Discretion Nay farther that the King's Prerogative of Assembling them or omitting it when he pleases cannot be limited by any Act himself can make appears from hence that notwithstanding all those Laws that have bin made for Annual and Triennual Parliaments our Kings have never thought themselves obliged to call Parliaments ofâ—ner than they saw their own occasions or the necessities of the People which they themselves were Sole Iudges of required Nor did any Parliaments ever find fault with this till that Rebellious one in 1641. which had the confidence to present to the King a Bill to be past whereby it was not only Enacted that there should be a Parliament every third Year but that upon the King 's omitting to issue forth Writs of Summons the Sheriffs nay Constables might Summon the Free-holders and proceed to Election and that the Lords might also meet without any Writs from the King which was quite contrary to the Original Constitution by which as you your self grant there could be no Parliaments without his Summons he being Principium Capus finis Parliament And if so it seems wholy improbable nay impossible to me that your Two Houses should have by the Original Constitution any Power of meeting or doing any thing without his Majesties Consent and Allowance and we know that at this day the Spâ—aker in the Name of the House of Commons desires of the King Liberty of Spâ—ech And King Henry 8th and Queen Elizabeth did sometimes Rebuke the House of Commons and sent to them to Desist when they were about to pass any Bill they did not approve of or to meddle with those things which did not belong to them Which plainly declares that contrary to your Affection neither of the Two Houses have any Power to proceed upon any Business or to pass any Bill which the King disapproves of And though I grant that they do not ask the Kings leave for the bringing in or Passing of all Bills whatsoever in either House or that the King can command them to give him what Money or pass what Bills he pleases Yet this Priviledge must needs proceed from his Grant or Concession to the contrary Whereby though he hath discharged them from an Active Obedience to such Commands Yet hath he not thereby divested himself of any of the Essential Rights of Soveraignty or at all discharged them from a Passive Obedience or Submission to his Power supposing the worst that can happen that he should take away what share he pleased of the Subjects Estates without their Consent or make his own Edicts and Proclamations to be observed for Laws Since the King's Authority is prior to all others and that as the Statutes of Edward the 6th and Queen Elizabeth which I have already quoted expresly declare All Power Authority and Iurisdiction Spiritual and Temporal is derived wholy from the King so that unless your Legislative Power of Parliament be somewhat that is neither an Authority
Praesentibus Clero Populo cum Magnatibus Regionis which pray let us put into English and see if it will not prove what I say viz. the Clergy and People being present with the Great Men of the Kingdom Now if the Word Magnates as you affirm did then comprehend all the Barons and Tenants in capite to what purpose is the Word People put here as a distinct Member of this Parliament But to shew you father that this Word Populus is not always to be understood for the whole Body of the Laicks but Lords and Knights of Shires 〈◊〉 shall shew you out of Walsingham Anno 1297. 24th Edw. I. where he mentions a Parliament held at St. Edmundsbury In quo a Civitatibus Burgis concessa est Regâ— Octava a Populo vero reliquo duodecima pars Bonorum Where by Populus 〈◊〉 not only meant the Peers but Knights of Shires or Grands des 〈◊〉 also M. I am not prepared at present to answer all the Queries and Difficulties that you can make or raise against the Dr.'s Arguments yet I think I am able to give you a very satisfactory answer why all Tenants in Soccage should be bounâ— by the Acts of those of whom they held their Estates For since as I have a ready proved all the Land in England except what belong to Religious Houses was granted out by King William the Conqueror to be held in capite by Knights Service and was again granted out by these Head-Tenants to their Feudatory oâ— Mesne Tenants by the like Services there being very few Lands granted in Free Soccage at the first And tho it is true that in process of time maâ— of those Estates and Lands became Free Tenements or were holde in Soccage that is were Freeholds yet the Lords still retaiâ— the Homage which in the Times we speak of was no idle insignificant Word and by that a Dominion over the Estate whereby upon Disobedience Treachery or Injury done to the Lords the Lands were forfeited to them and theâ— neither the Lands nor the Tenants to them which were termed Freeholderâ— were subject to any base Services or servile Works yet the Lords had still great power over these Tenants by reason of their doing Homage to them 〈◊〉 â—o nominè their Lands were many ways liable to forfeiture and therefore it waâ— but reason that the Chief Lords being Tenants in capite should conclude that Tenants in Soccage also and both make Laws and give Taxes for them without their being at all privy to it But admitting I grant that before 49th 〈◊〉 there were in some sense Commons in Parliament tho not as Knights Citizen and Burgesses chosen by the Common People as their Representatives Yet 〈◊〉 it not destroy mine or the Dr.'s Assertion who in the Introduction before the Answer to Mr. P. only affirms That before the 49th aforesaid the Body of the Commons of England or Ordinary Freemen as now understood or as we now call them collectively taken c. had any share or Votes in making Laws unless as they were 〈◊〉 presented by the Tenants in capite F. Be it so But I am sure in many places of the Dr's Booâ— he absolutely denies that there were any Commons in Parliament till the Time he Assigns But as for what you alledge in answer to my Queries how Tenants in Soccage could have Laws made for them and Taxes laid upon them 〈◊〉 â—heir Lords or Tenants in capite your answer is wholly grounded upon mistakes For in the first place King VVilliam did not grant all the Lands in England to be held of him by Knight's Service since as I shall prove hereafter there were many subordinate Tenants to Bishops Abbots and other Great Lords who never forfeited their Estates at all nor were disseiz'd of them by your Conqueror â—ad who had also great numbers of considerable Freeholders under them as in 〈◊〉 at the greatest part of the Land was Gavelkind which was Soccage Teâ—re In the next place neither were all the Lands he bestowed upon his Followers granted to be held by Knight's Service since you your seâ—f own that a great deal â—land was given by him to his Inferior Servants to be held by Petit Serjeanty and besides this a great deal of other Lands was regranted by that King himself 〈◊〉 some of those old Proprietors who had been dispossessed to be held in Soccage is appears from Fleta who speaking of these sort of men says expresly In 〈◊〉 maneriis seilicet Regis erant liberi Hemines Labâ—ri Tenentes quorum quidaâ—i 〈◊〉 per Potentiores a Tenementis fuerant ejecti eadem post modum in Villenagium tenenâ—â— resempserunt quia hujusmodi Tenentes cultores Regis esse dâ—gnoscuntur provisa 〈◊〉 quiet ne sectas facerent ad Comitatum Vel hundredum c quorâ—m â—â—gregationem tunc Soccam appellarent hinc est quod Sokemanni bodie dicunâ—â— c. Where you may see that these Socmen or Soccagers were then created by a â—ew Tenure from this King Nor did all the Tenants in capite grant their Lands â—o others to be held by Knights Service since they as well as the King did at first 〈◊〉 also in process of time grant Lands to the Old English Proprietors to be held of â—â—em in Soccage nor was Homage the proper or only Badge of Soccage Tenure but â—ealty unless the Land had been held by Knights Service at first as you may see in Littleton's 2d Book Sect. 118. Nor did this Soccage Tenure give the Lord any more right over his Tenants Estate to tax him de alto bâ—sso at his Will by â—eason of the subjection he was in to the Lord in respect of Forfeiture since â—hen the King should have had for the same reason the same Rights over all his 〈◊〉 in capite to tax them likewise at his pleasure and this Right of Forfeiâ—â—â— in case of Felony or for want of Heirs continued to the Lords as well of Soccage Tenants as others long after the time you assign for the coming of the Commons to Parliament even to our own Times and yet for all that those Lords could not give taxes for such Tenants in Soccage at their pleasure But that we may proceed pray consider also the form of the Peace agreed upon between the King the Prince his Son and the whole Body of the Kingdom assembled in Parliament to compose all Differences between the King and the â—arons The Title of which in the Record is thus Haec est forma 〈◊〉 a Domino Rege Domino Edwardo filio suo Praelatis Proceriâ—â—â—â—â—â—â—ibus cum Communitate totâ Regni Angliae Communitèr Conâ—â—â—ditèr approbata Which Articles were signed by the Bishop of Lincoln the Bishop of Ely Earl of Norf. Earl of Oxon Humphry Bohun William de Monte Canisio Majore London in Parliamento London Mense Iunii Anno Domini 1264. Haec autem â—rimatio facta est London de Consensu
Men of the Kingdom had then in full Parliament on the first of Iune granted him 40 s. on every Knights Fee to Marry his Daughter and it thence also appears that tho this Tax is said to be given for themselves and the whole Community of the Kingdom yet it was by the Community of Tenants in Capite alone because it was to be raised wholly upon Knights Fees so that hitherto in this Kings Reign there appears nothing that can plainly evince either the Summoning or being of any Commons in Parliament as now understood we are at least left at great uncertainties nay in my Opinion the proof is more strong on the Negative that there were none F. I wonder you should mention this Writ any more since I have already confuted the Doctors notion about it and proved that it was a general Tax granted by the Parliament upon the whole Kingdom and not laid either by or upon the Community of the Tenants in Capite alone nor does the way of Taxing by 40s upon every Knights Fee at all prove it for if it is to be understood of Lands only held by Knights Service then this Tax could not have extended to any other Estates as certainly it did since the King could by King Iohn's Charter have forced his Tenants in Capite to grant him an Aid towards this Marriage of his Daughter and if what you say be true could also have made all the Mesne Tenants of the Tenants in Capite to have contributed to it according to the Knights Fees they held and this without calling a Parliament at aâ— therefore pray give some better Authority then this for Iâ—e assure you I am not at all satisfied with it M. I will now give you the Writ the Doctor has discovered and by which it will plainly appear that this Tax granted in the 18th of this Kings Reign was given before ever the Commons were Summoned to it and for this the Learned Doctor has found out a loose bundle of Writs of this year directed to the Sheriffs of most Counties of England and they are the ancientest Extant or perhaps that ever were for in probability the calling of Knights Citizens and Burgesses according to that Example was discontinued from the 49th of Hen. III. unto this time by which two or three Knights were directed to be chosen for each County pray read the Writ it self since I look upon it as the first Pattern of this kind that of the 49th of Henry III. seeming to have been Written in haste without those Forms that were afterwards required in Writs of this kind and particularly in this Edwardus Dei Gratiâ Rex Angliae Dominus Hiberniae Dux Aquiâ—aniae Vice-comisi Westmâ—rlandiae Salutem Cum per Comites Barones quosdam alios de Proceribus Regni Nostri nuper fuisseâ—us super quibusdam Speciâ—liter requisiti super quibus tam cum iâ—sis quam cum aliis de Comitatibus Regni illius Colloquium haâ—ere volumus Tyactatâ—m tibi praecipimus quod duos vâ—l tres de Diâ—cretioribuâ— ad laborandum potentioribus Militibus de Comitatu praedicto â—ine delatione Eligi eos ad nes usque West monasterium venire facias ita quod sint ibidem à die Sancti Iohannis Bapt. prox futur in tres Septimanes ad ultimum cum plena potestate pro se Communiâ—ate Comitat. praedicti adconsulendum consentienoum pro se Communitate illâ hiis quae Comites Barones Pro. ere 's praedicti tunc dixerine concordanda habeas ibi hâ—c Breve Teste meipso apud Westmonast 14 die Jun. Anno. Regni Nostri 18. Whereby you may see in the first place that there was yet no certain number of Knights of Shires settled who were to be Summoned to appear at this Parliament And you may in the next place remember from a before mentioned Record of the 30th Ed. I. that on the first of this Month the King had Scutage then given him in full Parliament and now Fourteen days after at the Instance of the Earls Barons and other great Men of the Kingdom upon certain matters by them moved and propounded to him He Issued His Writs of Summons to the Sheriffâ— of the several Counties to cause to be chosen two or three Knights of each Counties to come to him at Westminster three Weeks after St. Iohn Baptist at farthest We may also further observe from this Writ that it is most probable though it is not here absolutely said so that the King was moved by the Earls Barons and great Men of the Kingdom to call these Knights to this Parliament and that as this Writ is the first to be found after that of the 49th of Henry III. so it really was the first Writ of Summons after that time for the Election of Knights to represent the several Counties In the next place that there could â—e no Citizens nor Burgesses chosen or sent to this Parliament by Vertue of this Writ as they were afterwards by directions contained in the Writs sent to the Sheriffs for Electing Knights of the Shires Lastly that by this Writ the Knights were to come to the King at Westminster three Weeks after St. Iohn Baptist at furthest which was the 15th of Iuly also that in the same year between the time of the date of the Writ and the time appointed for Meeting of the Knights The Statute of Westminster the third was made as may appear by this Clause at the beginning Dominus Rex in Parliamento suo apud West monasterium post Pascha-Aâ—o Regni sui Decimo octavo videlicet in Quindena Sancti Iohannis Baptist. that is the 8th of Iuly ad Instantiam Magnatum Regni sui Concessiâ— Providit Statuit Quod de caetero liceat unicuique libero homini c. So that this was the same full Parliament which gave the King Scutage on the first of Iune and then the King and Barons without the Commons made this Statute or the Knights had another Summons after the Date of this Writ for before that they were not in Parliament or the Knights came a Week before they had need to have done but neither of the latter are probable seeing the Knights then were great Husbands of their time and Expences and were not very forward to undertake this Service as being constantly bound with or engaged by Sureties or Manucaptors for the performance of it and their appearance in Parliament and therefore it seems reasonable to conclude that this Law was made without them and before their coming to Parliament So much of this Writ from which as well as divers following Writs and other Records it is evident that it was from this Kings Authority and at this very time that the House of Commons came to be fixed and establish'd in the present constant Form it is now and hath been in for many Kings Reigns and than the King in this Age was not altogether confin'd to any Number of Knights
downright Treason to resist them And if this be so the last difficulty will be easily answered viz. By what Authority or Commission the People may make this general resistance To this I say That in the first place all Commissions granted to persons uncapable by Law to take them or for illegal purposes are to be supposed to be issued contrary to the Kings will and knowledge and therefore are to be look'd upon as void in Law and consequently the Persons not to be commissioned at all and so may be resisted by the Kings legal Officers all over England as I have already proved but if once the King should Countenance and Abett such Robbers by his own personal presence this resistance may then be made and justified by the whole nation not by the King's Authority against his Person but by another higher and precedent right viz. The Right of Self-defence and the Common-safety of the whole Nation which the People must have reserved to themselves at the first Institution of the Government or else all Monarchies would be alike and there would be no difference at all between absolute and limited Kingdoms M. I shall not trouble my self about other Kingdoms but this much I firmly believe that our Kings are absolute Monarchs notwithstanding they have limited themselves by Law to the manner of their administration of these grand essentials of Government the making of Laws and raising of money so that since the supremacy of the Government is still in themselves as Gods Vicegerents here on Earth and not as the Peoples Deputies I cannot but still understand this Oath in the strict litteral sence in which I am confident this Parliament meant it and therefore since they have expresly declared the Law to be so I will not be wiser than the Law especially since it is most agreeable to the Scriptures and the known doctrine of the Church of England that the Kings Person is not only unaccountable but irresistable too upon any pretence whatsoever and I think I am able to shew you that it is much better for this Nation or any other of a like constitution to suffer the worst that may happen from the ill Government nay Tyranny of our Kings than to involve themselves in blood and confusion by Rebellion and Civil Wars as often as the People shall judge though never so falsly that their fundamental Rights and Priviledges are forceably invaded by the King F. I think I have very expresly proved at our 5th meeting and that from undoubted Testimonies from our ancient Histories and Writers of the Laws of England as also from the whole constant Tenour of the Statute Law of this Nation that the Kings of England are not limited by their own concessions in the manner of the Administration of their Soveraign Power but from the first constitution of the Government and if the King be not the sole supreme Legislative power I care not what some Divines have writ to the contrary and since it is a Law question the supreme Authority alone ought to decide it And therefore it is no matter in this case what the Scriptures say nor yet the Church of England the former hath not and the latter cannot determine what is the Legal constitution of the Government in this Nation and where the supreme power resides and therefore suppose it to have been the intent of this Parliament never so much to bar all resistance of the Kings Person in any case whatsoever yet I am sure it was not in their power to do things absolutely inconsistent and contradictory in themselves as they must have done had they made the Persons of all Officers however commissioned by the King absolutely irresistible and much more if they had induced the Kings Presence with an absolute power for them to commit the most violent and illegal action and yet have supposed they had thereby altered nothing in the constitution of the Government though they had rendred it instead of a Limitted an Absolute Despotick Monarchy which as I am not yet convinced it was in their will so neither was it in their powers to grant if they would And therefore as I do not desire to be wiser than the Law so I cannot allow this to be any Law at all in the sense you would put upon it so that make the most of it this was but the unwary declaration of a Parliament of very young Men not long after the King 's coming in who thorough the great Abhorrence they had of the late Civil War raised by the Parliament under colour of the King's Authority were drawn in before they were aware to be a little too free in their Expressions not considering the consequences that might follow But when this sond Fit was over and that a standing Army had been raised in England under pretence of the Dutch War and that the King had by his Declaration of Indulgence made some approaches to an Arbitrary Power and in order thereunto would in that very Parliament in 1675. have imposed this very Oath or Test not only upon those who were to take it before but upon all Peers and Parliament Men before ever they sate in the Two Houses as also upon all Officers in Church and State to the very Justices of Peace so that the Disguise being now seen thorough it made divers of the Peers even those of greatest Loyalty and Wisdom stiffly to oppose the laying this Test upon all the Clergy Nobility and Gentry of the whole Nation as it was then the design of the Bishops and Court-Party to have done Which vigorous Opposition tho' in the smaller number yet met with such good success that the Bishops and Lords of the contrary Opinion could not then carry it and the Eyes of the whole Nation were afterwards so much opened that the King durst never offer this Test any more to either of the Two Houses So that if you will but consider this matter of Fact how this Test was first obtain'd and how afterwards when it was thought to be intended to set up Arbitrary Power was also as vigorously opposed by them and their being sensible that the Parliament had gone too far already in doing what they had done I think none can take this Oath in your sense except those Clergymen who will allow none to be of their Church but those who are for this Passive Obedience according to their prejudicate Notions of Loyalty or else some few mercenary Lawyers who in hopes of Preferment which they can never otherwise obtain would interpret this Oath in such a sense as should make us all Papists and Slaves too whenever the King has a mind to it Now which of these extreams are worst that the people should judge for themselves tho' perhaps erroneously when the King or those acting by his illegal Commissions shall violently assault them in their Religion Lives Liberties and Estates that thereupon they make Resistance with one consent when they find themselves brought to this
during his confinement there sent a Lady I could name on a message to two reverend Prelates of our Church together with an Emrauld Ring from his Finger as a Testimony of the Truth of her Commission to this effect That his Majesty being sensible of the sad condition the Church of England as well as he himself was in and that there was no way so likely for him to get out of it as by granting his Subjects and particularly the Church of England such securities for the enjoyment of their just Rights and Liberties as they could in reason demand therefore he wholly left it to the discretion of those Bishops to make to the Peers and Bishops that were then to meet suddenly whatever proposals they should think reasonable on his behalf for the satisfaction of the Church and safety of the Nation and that he would be ready to grant and ratifie them whensoever he should be required F. This is indeed more than ever I heard before and can scarce believe but did the Lady go and deliver her message And pray what answer did those Bishop give to this fair proposal M. Yes the Lady did deliver her message and these Bishops answer'd both to the same effect that they had a real duty and affection for his Majesty and a great desire to serve him but that considering the great Power of the Prince of Orange and his present aversion to any agreement with his Majesty they very much feared that the Peers would not venture to give the Prince any such advice or to interpose with him on his Majesties behalf which in my opinion was very meanly and cowardly done of them who considering their duty to him as King and also those particular obligations they owed him as their Benefactor and who had been the greatest means of their being raised to those dignities in his Brothers Reign now I desire to know if this message had received its intended effect what greater demonstration his Majesty could have given to satisfie the World that he really intended to set all things right again had he been permitted to do it F. I will not farther question the Truth of this Relation though perhaps I might have sufficient reason for it since you say you had it from a person of good credit and who was privy to this transaction nor yet will I be so inquisitive as to know the names either of the Bishops or of the Lady since you make it a secret but yet notwithstanding I do still very much question whether the King did ever really design to do what he then offer'd and did not intend to put a sham upon their Lordships to serve his present occasion and to see if he could divide the Bishops and Peers of the Church of England from the Prince of Oranges Interest and so by making them offer such Proposals as the Prince should not think fit to agree to might make them declare against his proceedings which would have created great divisions and heart-burnings between those of the high Church of England party and the Prince and thereby have involved us again in fresh disturbances of which no doubt the King and the Popish Faction were like to receive the greatest advantage for you know the old saying divide impera But to let you see that I do not speak without just grounds for my opinion let us examine every circumstance of this matter first if the King had meant really is it likely that he would have trusted a business of that high moment to a Woman When he had then the Lords of Alesbury and Arron besides other Protestant Gentlemen then waiting on him and they were much fitter to be trusted than this Lady let her be whom she will Or can any one believe if the King had meant really that he would not have sent his Proposals in Writing since he very well knew from the Princes Declaration as well as the Bishops Petition and Addresses to him what the whole Nation and the Church of England in particular required at his hands But that he must send a loose and uncertain Message which it was in his power to disown whenever he pleased by saying the foolish Woman mistook his meaning and she also might be so much his Creature as to take the fault wholly upon her self whenever it should serve the Kings turn so to do and therefore I think it was very wisely and honestly done of those reverend Prelets to refuse medling in such a ticklish affair since it is plain by his not making any such proposals to the Prince of Orange himself or the Lords about him that he was not to be made privy to it but rather it should be carried on whether he would or no and without giving him any satisfaction in his particular concern as to the Prince of Wales and lastly I desire you farther to consider whether the King might not hereafter when ever he had power have made void whatever agreements or concessions he should have then granted either to the Church of England or to the Nation by pleading afterwards that they were obtained by decrees whilst he was not sui juris but under the Power of the Prince of Orange I have but one thing more to add which I before omitted which is to make some reply to what you said concerning the mischief that the Mob has done upon Houses Forests and Praks since his Majesty's first departure and therefore granting the matter of Fact that much mischief and spoil has been committed yet I deny that it is more than has been done by the most Arbitrary Kings since the Conquest to this day as you are pleased to affirm for I believe you forget the Thirty Parish Churches and Towns which our Historian tell us your William the Conquerour and his Son Ruâ—us destroyed when they inlarged new Forrests and therein acted contrary to their Oaths like true despotick Tyrants you likewise forget the miserable spoil and waste which King Iohn and Henry the III. made upon the Houses Castles and Estates of the Barons and Gentry of England who opposed them in their unjust and illegal violations of Magna Charta besides other Tyrannical actions of the same kind committed by King Edward and Richard the II. too long here to relate but if these mischiefs were done you speak of who have we to thank for it but the King who stealing away on the sudden without leaving any orders for the Government of the Kingdom all persons in Commission either Civil or Military doubted whether their Commissions were noâ— at an end by the Kings deserting the Government as he did besides you very well know that the Common People were so enraged against the Popish Faction for so many insolent actions they had committed in King Iames's Reign and so many apparent breaches and contempts of all the Laws made against them that you cannot wonder if when they were rid of the fear of the Irish and of King Iames's Army they kept
Statutes of Provisors and Praemunire and I could shew you from divers Records of Parliament in the Reign of Richard II. Henry IV. and Henry V. that they never intruâ—ed the Crown with an absolute power of Dispensing with those Statutes but only for a time as till the next Parliament or longer as they thought fit But since I have not now so much time to give you so many Presidents at length I shall only tell you that as to the main instance you relye upon viz. the Kings Dispensing with the Statute of Sheriffs that at first it was not taken for Law appears by several Acts of Parliament as in 28. of Henry the VI. whereby those Sheriffs that had held their Offices for more than a year are pardon'd likewise in the Act of Edw. IV. there is a like Statute pardoning those Sheriffs Who by reason of the late troubles in the Realm had held for above a year yet nevertheless confirms all former acts concerning Sheriffs for the time to come and this held as far as the sixth of Henry VIII which is long after the Judgment you mention in the Exchequer Chamber of all the Justices in England to the contrary for there was then an Act made which reciting all the former Statutes about Sheriffs as then in full force it Enacts that the Sheriffs and under Sheriffs of the City of Bristol may continue to occupy their Offices in like manner as the under Sheriffs and other Sheriffs Officers in London do without any Penalty or Forfeiture for the same the said Acts or any other Acts to the contrary notwithstanding From all which Statutes I think it sufficiently appears that neither the Sheriffs of those times nor the City of Bristol nor the whole Parliament when that Act was made did believe the King had Power to Dispense with the Act of the 25 of Henry the VI. concerning Sheriffs for if they had certainly it had been much easier and cheaper for them to have obtain'd the Kings Dispensation than to have got an Act of Parliament for it M. I believe you may have cited these Statutes right enough but yet I think they are not sufficient proof against so solemn an Opinion as that of all the Judges in the Exchequer Chamber 2 d of Henry the 7 th and whatever the Parliament might have declared in the Case of this or that Particular Statute I confess carries some Authority with it yet ought it not to be counterval'd by so solemn a Judgment as that of all the Judges and Lawyers of England together with the King 's constant Exercise of this Prerogative not only since but before that time and that without any question or dispute with the Parliament about it as in the Case I have already put of the Statute that forbids any Welchman being an Officer in Wales to which I may add divers other Cases of like nature such as the Statute against a Judges going the Circuit in his own Country as also those Statutes that prohibit the King from granting Pardons to Persons convict nay condemned for Murther with several other Penal Statutes I could name were though the King's hands are tied up by particular Clauses of Non-obstante yet has His Majesty and his Predecessors at all times exercised their Prerogative of dispensing in all those Cases notwithstanding those Acts of Parliament with Non-obstantes to the contrary And though I grant you have given me several Presidents of the Parliaments sometimes restraining the King in this Exercise of the Dispensing Power yet they are all or the greatest part of them before the beginning of Henry the VII th's Reign when I grant the Law first began to be setled in this matter and since the Judgment of all the Judges in the Exchequer Chamber is the only Rule of Law we can have in the Intervals of Parliament and that this case of Dispensations being by them adjudged and ever since setled and own'd for Law without the least dispute I can see no reason we have to question it now But as for the Statute of the 6 th of Henry the VIII which you urge as a President to the contrary since the Reign of Henry the VII I think it will not reach the Point in question for the Act you now cited seems to me no more than a private Act for the Sheriffs of Brestol alone who being it seems afraid to rely upon the King's Dispensations because they thought them too chargeable to be taken out as often as they should have need of them did think it a great deal less charge and trouble to pass an Act of Parliament to indemnify themselves which I grant put that matter beyond all dispute But since this Act of Henry the VIII I find no contest between the Parliament and the King about his Power of dispensing with Penal Laws till the Reign of King Charles the II. when I grant the House of Commons did address to His Majesty That Penal Statutes in matters Ecclesiastical cannot be suspended but by Act of Parliament as also the last Address of the House of Commons in 1685. against the King's dispensing with the Officers of the Army their holding Employments without taking the Oaths and Test according to the Act whereby they were appointed But these being only against the King's Power of dispensing with Laws Ecclesiastical as concerning Liberty of Conscience can no ways be extended to their excepting against the King's Power of dispensing with divers other Penal Laws I will not say all which have Non obstantes in them F. Since I see not only your Opinion but also that of most of the Judges and Lawyers of England concerning this matter of the King's Dispensations with Penal Laws has been chiefly if not only founded upon that Opinion of all the Judges in King Henry VII i me give me leave to examine the validity of that Judgment for if that can be proved not to have been according to Law or elâ—e never given at all I suppose you must grant that my Lord Coke and all others who have founded their Opinions upon this adjudged Cause of Hen. the VII were mistaken Now pray give me leave to argue a little with you in point of Reason If a Non obstante from the King be good when by Act of Parliament a Non-obstante is declar'd void what doth an Act of Parliament signifie in such a case must we say it is a void Clause But then to what purpose was it put in Did the Lords and Commons who drew this Act of the 23 d of Henry the VI. as also those Acts concerning Sheriffs understand this Clause of Non-obstante to be void when they put it in If it were so and contrary to the King's Prerogative why did the King pass this Act without any refusal or protestation against it certainly it was then thought otherwise and if so we have the Authority of the two Houses of Parliament against the Opinion of the Judges But if it were not a
make them the first breachers of it whereas you may find that it was the opinion of the whole Convocation for many years before ever those Divines or that Gentleman began to Preach or write upon this subject Nor were these the only men who maintained these Principles but Archbishop Usher and Bishop Sanderson whom I suppose you will not reckon among your flattering Court Bishops have as learnedly and fully asserted those Doctrines you so much condemn as any of that party you find fault with and have very well proved all resistance of the Supream Powers to be unlawful not only in absolute but limited Monarchies Of the Truth of which you may sufficiently satisfie your self if you will but take the Pains to read the Learned and Elaborate Treatises written by those good Bishops viz. The Lord Primate Usher's Power of the Prince and Obedience of the Subject and the Bishop of Lincoln's Preface before it as also the said Bishop's Treatise de Iura nouto written whilst he was Doctor of the Chair in Oxford F. I must beg your pardon Sir if I have never yet seen or heard of that Convocation Book you mention much less of the opinions therein contained since there is no mention made of their proceedings in any History or Record of those times either Ecclesiastical or Civil as I know of But this much I am certain of That these Determinations or Decrees you mention call them which you please never received the Royal Assent much less the confirmation of the King and Parliament one of which if not both is certainly requisite to make any opinion either in Doctrine or Discipline to be received by us Lay-men for the Doctrine of the Church of England otherwise the Canons made in 1640 would oblige us in Conscience tho' they stand at this day condemned by Act of Parliament so that however even according to your own Principles you cannot urge this Book as the Authoritative Doctrine of the Church of England unless their Determinations had received the Royal Assent which you your self do not affirm they had for you very well know that as in Civil Laws no Bill is any more than waste Parchment if once the King hath refused to give his Royal Assent to it so likewise in Spiritual or Ecclesiastical matters I think no Decrees or Determinations of Convocations are to be received as binding either in points of Faith or Manners by us Lay-men till they have received the confirmation of the King and the two Houses of Parliament or otherwise the consequence would be that if the King who hath the nomination of all the Bishopricks and Deaneries as also of most of the great Prebendaries in England of which the Convocation chiefly consists should nominate such men into those places which would agree with him to alter the present establisht Reformed Religion â—n Governmenâ— and to bring in Popery or Arbitrary Power the whole Kingdom would be obliged in Conscience to embrace it or at least to submit without any contraditioâ— to those Canons the King and Convocation should thus agree to make which of how fatal a consequence it might prove to the Reformed Religion in this Kingdom this Kings choice of Bishops and Deans such as he thought most fit for his turn would have taught â—s when it had been too late M. You very must mistake me Sir if you believe that I urge the Authority of this Book to you as containing any Ecclesiastical Canons which I grant must have the Royal Assent but whether that of the two Houses of Parliament I very much question since the King without the Parliament is Head of the Church and diverse Canons made under Queen Elizabeth and King Iames are good in Law at this day tho' they were never confirmed by Parliament But I only urge the Authority of this Book to you to let you see that these Doctrines are more Antient than the time you prescribe and also that the Major part of the Bishops and â—lergy of the Church of England held these Doctrines which you so much condemn long before those Court Bishops or Divines you mention medled with this controversie and I suppose we may as well quote such a Convocation Book as a Testimony of their sense upon these subjects as we do the French Helvetian or any other Protestant Churches Confessions of Faith drawn up and passed in Synod of their Divines tho' without any confirmation of the Civil Power F. If you urge this Convocation Book only as a Testimony and not Authority I shall not contend any further about it but then let me tell you that if the Canons or Decrees of a Convocation though never so much confirmed by King and Parliament do no further oblige in Conscience than as they are agreable to the Doctrine of the Holy Scriptures sure their determinations without any such Authority can only be look'd upon as the Opinions of so many particular private Men. And tho' I have a very great Reuerence for the Judgments of so many Learned Men yet granting those Doctrines you mention to be contained in this Book I think notwithstanding that we may justly examine them according to the Rules of Reason and express Testimonies of Scripture by either of which when I see you can convince me of the falshood of my Tenets I shall count my self happy to be beâ—â—er informed But as for those Treatises of Bishop Usâ—er and Bishop â—anderson which you now mentioned I must needs confess they are learnedly and elaborately writen and tho' I am against Rebellion as much as any man and do believe that subjects may too often be guilty of it yet am I not therefore convinced that it is absolutely unlawful in all cases whatsoever even in the most Absolute and Arbitrary sort of Civil Government for the People when violently and intolerably opprest to take up Arms and resist such unjust violence or to join with any Foraign Prince who will be so generous as to take upon him their deliverance So that though I freely acknowledge that those good Bishops you mention were very Pious and Learned men â—im â—hat I bear great reverence to their memories yet doth it not therefore follow that I must oâ—â— them to be Infallible or as great Polititians as they were Learned Divines or that they understood the Laws of England as well as they did the Scriptures or Fathers and perhaps there may be a great deal more said on their behalfe than can be for divers others who have since Wâ—â—een and Prâ—â— so much upon those subjects for if you please to consider the times of their writing those Treatises you will find them written about the beginning or middle of the late Civil Wars which they supposed to be begâ—n and carried on contrary to all Law and Justice under the pretenced Authority of the two Houses of Parliament against King Charles the First and therefore it is no wonder if they thought themselves obliged to Write very high for the Prerogatives
care of them chose Moses and Ioshuah successively to Govern as Princes in the Place and â—â—ead of the Supreme Fathers And after them likewise for a time he raised up Judges to defend his People in time of Peril Yet that all these were endued with Regal Authority may appear in that Moses is called in Deuteronomy a King in Ieshurun that is over Israel And when Moses saw that he was to die he besought God to set a Man over the Congregation that the Congregation of the Lord be not as Sheep which have no Shepherd And as for the Judges it is apparent from the Book that bears their Name that they had Power of making Peace and War and of Judging in all Cases of Appeal insomuch that whosoever would not hearken to the Priest or to the Iudge even that Man should die But when God gave the Israelites Kings F. I pray give me leave to interrupt you a little for I have a great â—eal to say against your Notion of the Government of the Israelites before they had Kings actually nominated by God for notwithstanding all you have said it doth not appear to me that either Moses Ioshuah or the Judges were any more than figuratively or in a larger sense to be stiled Kings For as for Moses his being called King in Ieshurun he only calls himself so Poetically in that excellent Hymn of Blessing which he bestoweth upon the Twelve Tribes For certainly God did not suppose him to have been a King when in Deut. 17.14 he speaks of the Children of Israel setting a King over them as a thing that was to happen many years after and there lays down Rules how he should Govern himself which had been needless if they had had a King already And that Moses was not a King Iosephus himself shews us in his Antiquities Lib. 4. where he makes Moses to have instructed the Children of Israel at the time of his Death to this purpose Aristocracy is the best Form of Government and the life that is led under it the most happy and therefore let not the desire of any other sort of Government take Possession of you owning no other Master than the Laws and doing every thing according to it For God is your King and that is sufficient for you and if Moses was no King then certainly Ioshua was none neither M. Pray give me leave to answer what you have now said against the Kingly Power of Moses and Ioshua for if you will please to remember that tho' the Sanhedrim had been constituted before this time yet Moses esteemed them as Sheep without a Shepherd if a Man was not set over them which might go out before them and which might lead them out and bring them in and God approved his desires and appointed Ioshua to succeed him and the People received him accordingly and told him All that thou commandest us we will do and whithersoever thou sendest us we will go according as we hearkened unto Moses in all things so will we hearken unto thee If this were not Kingly Power then is there no such thing So that this Discourse which Iosephus puts into Moses his Mouth seems directly contrary to Moses his Thoughts and Practice And whereas he makes Moses to have opposed Obedience to the Laws to Kingly Government it is a pure Greek Notion For whilst the Grecians lived under Kings they had â—ew or no Laws but when they set up Common-Wealths they then found the necessity of having Laws and then the Dominion of Laws was opposed to the Government of Princes But this was contrary to the Practice of Israel for they were to live according to their Laws as well under Kings as without them in all Estates and Conditions and their Kings were bound to Govern them by the Law and not by their Wills contrary to the Law So that in this Iosephus clearly made the Antient Customs of his Country to comply with a Greek Notion that had no being for some hundreds of years after Moses was dead And as for the time of the Judges even in the Intervals between them when every one did that which was right in his own Eyes even then the Israelites were under the Kingly Government of the Fathers of the particular Families over whom the Prince or Head of it had likewise a Supreme Power F. But pray give me leave to speak a little farther Let me ask you what is an Aristocracâ— if this be not viz. an Assembly of the Elders or Chief Fathers of Families of each Tribe meeting consulting and resolving of the Publick Affairs of the Common-Wealth under their Head or President the Chief of the Tribe and this is the Government for which Iosephus makes Samuel so much afflicted when the People would quit it for a Monarchy M. I think you are much mistaken in this Point for it is no where declared that these Fathers of Families Governed their own Families independently for then there would have been no Publick Government at all Nor yet is it said that these Fathers Governed by Majority of Voices chosen out of themselves for then I grant it would have been a Democracy nor yet doth it appear that a few of the better sort of Fathers of every Tribe Governed it by a Counsel and Magistrates or that there was such Counsel of the several Tribes but on the contrary every Tribe was Governed by the Prince or Head of it and these Princes Moses calls the Heads of the House of their Fathers in Numb 7.2 and who were over those that were numbered and made their Offerings And Moses tells us particularly what every Man's Name was as Nashon the Son of Aminadab of the Tribe of Judah and Nathaniel the Son of Zuar Prince of Issachar c. Now if there was in those days any Government at all in Israel then were these Princes the Governours of the several Tribes and so every Tribe was under a Monarch tho' the whole State of Israel was not under any one Person or constant standing Council and consequently was a System of little Monarchies F. I am not at all better satisfied with your last Reply For in the first place I have Iosephus on my side who must needs know what the Government of his Country had been better than you or I and he expresly calls it an Aristocracy in which the Judge when there was one was only in the nature of a General or Statholder to whom the last Appeal was to be made in all Causes and it is also as plain that neither Moses Ioshua nor the Judges had Monarchical Authority Fâ—r tho' it be true the two first could make War and Peace yet this was also with the Consent of the Princes of the Congregation as plainly appears by the Story of the Peace made with the Gibeonites which the Princes of the Congregation confirmed by an Oath Neither could they raise Taxes upon the People or take any thing from them
prolix already which the abuse your Dr. hath put upon these words would not permit me to avoid But now we have cleared most of the Terms in dispute between us I hope we may proceed with greater Certainty M. Though your Discourse hath been long yet since it is so essentially necessâ—ry to the right understanding the matter in hand I am well satisfied and I shall more fully consider the account you give of these words another time but a present give me leave to tell you That suppose I should admit that those words on which you have now given Interpretation of divers Authors may sometimes be taken in the sense you have now put upon them and that consequently the Commons might be represented under some of those general Names Yet am I not satisfied how the Aldermen and Magistrates of Cities and Boroughs could be included under this word VVites since in the Auctuary to the 35 Law of Edw. the Confessor 't is said Erant aliae potestates dignitates per Provincias Patrias universas per singulos Comitatus totius Regni constitutae qui Heretoches apud Anglos vocabantur Scilicet Barones Nobiles insignes Sapientes c. And Gregory of Tours Rodovicus and many of the foreign ancient Historians mention Sapientes only as Lawyers Counsellors Judges and among the modern foreign Lawyers Hottomon and Calvin say expresly they were such But perhaps not of the Inferior Ranâ— no more than the Saxons Sapientes were of which their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 only consisted And we have at this day the Iudges and King's Council and other great Lawyers that sit in the Lord's House and are assistant to the Parliament when there is occasion Nor have you yet brought any proof that the Cities or Towns then sent their Representatives to the great Councils in the Saxon times by this or any other Title But as for the Knights of Shires though I grant the Treatise called Modus tenendi Parliamentum mentions such Persons to have been present in Parliament in the time of K. Ethelred yet by that word Parliament so often used by the Author of that Treatise and divers other Circumstances it may be easily perceived that the Author lived but about the time of Edw. 3. or Rich. 2. as Mr. Selden in his Titles of Honour and Mr. Pryn in his Animadversions to Sir E. Cook 's 4th Institutes have very fully proved so that admitting that your Thanes or Lords of Towns did then appear in those Councils for themselves and their Tenants yet could they not be properly said to be their Representatives because as I told you before they were never chosen by them whereas now the ordinary Freeholders of forty Shillings a Year and the Freemen and Inhabitants in Cities and Towns have the grâ—â—test share in the Election of Knights Citizens and Burgesses And as for those Thanes you mention they or those under whom they claimed owed their Estates wholly to the Grants of former Kings and held their Possessions from them by some Tenure or other And by virtue of this Tenure it was that all the Lands of England were liable even those that belonged to the Church to those three Services anciently called Trinoda Necessitas viz. Expediâ—â—â— Castelli Pontis extructio that is Military Service against a Foreign Enemy and the Repair of Castles and Bridges and subject to the common Services of the Kingdom And that the Earls and Chief Thanes did hold their Lands by Knights or Military Service appears by the reliefs of the Earls and Thanes exâ—â—rest in the Laws of King Cnut in Sir H. Spelman's Councils So that if all the persons who held those Lands owed them wholly to the King's bounty it seems plain to me that they must likewise owe their places in the great Council to the same Original F. I think what you have now farther urged will be of no great moment against my Opinion for as to the Authority you bring from the Addition to that Law of Edw. the Confessor it is plain by the word Barones that it was added long since that time that word not being commonly in use till some time after the Norman Conquest But letting that pass it is plain by the rest of the Law if you would have been pleased to have read it out that these Heretoches here called Barons were no other than ordinary Gentlemen or Thanes which then answered the word Barones And these as this Law it self expresly tells us were chosen by all the Freemen in the Folemote or County-Court And therefore tho I grant they might be men of Estates yet there was no necessity of their being Lords or Noble by Birth nor is it likely that the people would have chosen their Earls or any other of the like Order to command them when they had sufficient choice of Thanes or Gentlemen in their own Countrey to command the Military Forces of it And tho it is true these Gentlemen are called Nobles and remarkable Wise Men yet this according to your own shewing doth not exclude others and those of a far different Profession viz. Counsellors Lawyers and Iudges all which you suppose had then Places in the Great Council as they have now in the Lordâ— House And if this Word might comprehend both Sword-men and Lawyers I cannot see why it may not also take in the better and richer sort of Citizens and Magistrates who in that Age as was notorious were elected by their respective Corporations And I have already proved that these were called Sapientes in other Countries and I see no reason why they â—ny not have been called so here too But that the King's Judges and Counsellors could have no Votes in the Saxon Great Councils I have already given a sufficient Reason to the contrary But I shall now farther shew you That the Cities and Boroughs in the Saxon times being so much more numerous and considerable than they are now must needs have had according to the custom of those Times a considerable share in those Great Councils since in them consisted a great part of the Strength and Riches of the Kingdom and were many more than they are at this day for Bede 〈◊〉 in the beginning of his History That there were in England long before his time 28 Famous Cities besides innumerable Castles and walled Towns of note many of which tho now extremely decayed or quite mined were then very considerable the greatest and richest part of the Nation inhabiting in those times for the most part in Cities or great Towns for their greater benefit or security and the greater part of the Lands of England in the Saxon times and long after â—y incultivated and over run with Forâ—sts and Bogâ— so that the Inhabitants of those Cities and Boroughs being them so considerable for Estates in Lands as well as other Richâ—â— could not â—e excluded from having Places both in the Brittish or Saxon Great Councils what man of Sense can
that they should have timely notice that they might give their advice in it as also that they might either come or stay away according to the greatness or urgency of the occasion and might also give their Under-Tenants notice to provide themselves with Horses and Arms and all things necessary in case a War should be agreed on which I think are sufficient reasons for thus expressing the Causes of their Meeting in the Writs of Summons M. Admit this were so which I shall yet take further time to consider of pray tell me in the next place if all your inferiour Barons Vavasors or Lords of Manours c. supposing them either to have appeared in Person or else as chosen for Knights of Shires or else as Citizens and Burgesses who were the Members of the great Council of the Nation I pray tell me why there should not have been the same care taken that they might be also Summoned as well as the Tenants in Capite certainly they came not to them by instinct nor is it scarce probable that they would leave their Country busineâ—s to Travel from one remote part of England to another to these great Councils which seldom continued above three or four days if they had had a Right so to do F. I shall answer you in few words because it was not at all necessary to express that Clause you mention for them all Since it was sufficient therein to follow the old Course of Summoning the Common Council of the Kingdom for doing which it had always been the Custom to give sufficient Notice by Writs of Summons of their Meetings whereas in this Council of Tenants in Capite Since there was by this Charter some alteration in the manner of their Summoning so there was also for expressing the cause of their Meeting For whereas before that as the Dr. himself allows all the Lesser Tenants in Capite had particular Letters or Writs of Summons expressing the Cause of their Meeting they were for the future to be Summoned by general Writs directed to the Sheriffs and therefore it was but reason that there should be a particular Clause reserved for their general Summoning which there was no need of in those Writs that were Issued for the summoning therest of the People or Commons to the great Council or Parliament as I doubt not but it would appear in case we had those Writs to produce in which likewise there was anciently often exprest the particular cause of their Meeting as there was for instance in those famous Writs to the Lords and Commons of the 49. Hen. III. which the Dr. hath given us in his answer to Mr. P. M. But I have still a greater objection behind than either of the former You cannot deny but that by the first clause of King Iohn's Charter which I have made use of all Aids and Escuages were to be imposed by the Common Council of the Kingdom and Littleton himself tells us in the second Book of his Tenures That Escuage is always to be Assâ—ssed by Parliament upon those that failed to do their Services after the Expedition was ended Now if this had not been a Right Inherent to the Great or Common Council of the Kingdom but that the Tenants in Capite alone assessed it in King Iohn's time how came they to lose that Priviledge and the great Council of the Kingdom or Parliament to get it if the former had not been the only great Council at the first F. I hope to give you as satisfactory an answer to this as I have to the rest of your Demands This alteration might have fallen out two ways either according to Camdens old Manuscript Author cited in his Introdâ—ction to his Britania the Summ of which is that when King Henry III. after his great Wars with Sim. Momford and the Barons had Ruined many of them he out of so great a Multitude which was before Seditious and Turbulent called the best and chiefest of them only by Writ to Parliament who after that time became Barons by Writ and not by Tenure as they were before And as for the lâ—sser sort of them called â—â—ones Minores they might be wholly resolv'd into the Body of the Commons or ordinary sort of â—ree-holders and the King being fearful of any farther encrease of Power in these Barons and Tenants in Capite might no more desire their Company at the usual Feasts of the Year whither before they used to come ex more and so their Power fell of course to the Council or Parliament of which before they only made a part Or else it might happen from the negligence of the Tenants in Capite themselves who growing weary of their Attendance might neglect to come to those Councils because of the great trouble and charge of those Journeys and the King being as willing to dispense with their Presence this Court was lost by Non-usage and so the judicial part of it remained in the House of Peers and that of Assessing Escuage and advising and giving Aids in matters of War fell wholly to the great Council of the Kingdom of which these Tenants in Capite by their being capable of being Elected Knights of Shires soon became the Principal Members But admit I should take this Council for Assessing Escuages for the Comâ—on Council of the Kingdom pray give me leave to ask you one or two Questions likewise in my turn Pray tell me therefore if this Council had been such as you would have it to what purpose is there a full Stop in all the old Coppies at the end of this Clause ad babendum Commune Concilium legâ—l de Scutagiis assidendis aliâ—er quam in tribus Casibus praelictis and why â—ould the next Clause begin with de Scutagiis assidendis submoneri faciâ—â—us 〈◊〉 if they had been both one and the same Councils Since it had been easier to put it all under one Clause If the matters therâ— Treated of had been the 〈◊〉 In the next place pray tell me if this were the great Council of the Kingdom or Parliament as it is now called why are there no other Rights or Priviledges reserved to this Council but this of Assesing Escuage Were not the Powers of granting other Taxes which could not be included under the word Escuages and also of giving their Assent to Laws things of as great say greater moment than this of Assessing Escuage M. I shall give you as short and satisfactory an answer as I can to those Queries In the first place I will not deny but that both the Clauses you mention might have been contracted into one supposing them to be read without any full stop between them as Sir H. Spellman in his Glossary supposes them to be But what is this to the purpose Must these therefore be two distinct Councils because the Charter it self words them a little more loosely than it needed to have done And as for your next Query there was no
of Coventry where by Proceres Populus are to be understood the same orders of Men as by Magnates Populus in Mat. Paris so that it was with the smaller Tenants in Capite and the inferior Clergy with whom the King had this larger or more diffusive Treaty as this Author words it F. I confess you have now put a very fair gloss upon these Places I have now made use of but 't is an hundred pitties that such a fine Hypothesis should have no better proofs than your bare Surmises to support it for that is all the Authority that I can see you bring for your sense of this word Populus for the smaller Tenants in Capite and not for the rest of the People but I see no good Authority as yet brought by you to prove it except that clause in King John's Charter which if as I have lately shewed you it will beat a quite different Interpretation all that you have said upon that head will signifie nothing therefore as for the main Argument you raise from the words infinita multitudo nobiâ—ium in Mat. Paris that they could not be the Knights of Shires together with the Citizens and Burgesses because they could not be such an infinite Multitude as this Author here mentions to have me at London as also because of the shortness of the time of the Summons If these are material Objections against our Opinion so it will be likewise against yours for how could this be a great Council according to King John's Charter which expresly provides for Forty days Summons for the Tenants in Capite to come to this Assembly and if so be this usage was broken at this time upon some urgent occasion in respect of them it might be so also as to all the rest of the Kingdom for the Knights of Shires might be chosen at the next Country-court and their Names returned immediately before or together with their meeting at London and as to the Citizens and Burgesses it was yet more easie for them to be chosen and returned in three Weeks time since every body knows the Cities might have called Common Councils and the Towns and Burroughs by the notice of their proper Officers to whom the Writs were delivered might have assembled at their common Halls or town-Town-houses immediately upon the receipt of the Writs and these together with the Knights Citizens and Burgesses joyn with the great Lords and Tenants in Capite made up the infinita Nobilium multitudo mentioned by Mat. Paria But your main Objection I confess is behind how these Representatives of the Commons here called infinita Nobilium multitudo could be the Knights Citizens and Burgesses whose number could not be at that time above 500 Persons As for this pray consider if the difficulty will not bear as hard upon you for if your Tenants in Capite made such a vaft multitude all those difficulties will arise that you press me with upon my Hypothesis of the meeting of all the chief Free-holders or Lords of Manors in England in Parliament before Knights of Shires were introduced in the room of them viz. How it was possible for so great a multitude to debate vote or do any business and what Room or Church was able to hold so many and the like so that granting all your smaller Tenants in Capite who had but one Knights Fee apiece to have met there these might have made a body of 5 or 5000 Men which how they could have been managed any better then 20000 or 30000 which would have more then taken in all their Feudatary Tenants too I desire you would resolve me if you can so that at last upon your own Hypothesis this Populus consisting of the Tenants in Capite were as much Commoners as the Knights oâ— Shires at this day for as for the word Nobilium I have already proved and you must needs here grant it that it takes in the inferior Nobility or Gentry under the degree of Lords as well as the Superior and if so why not all the considerable measu Tenants of those Tenants so that you have hitherto brought no proof but your bare Assertion that under this infinita multitudo Nobilium Populus must be understood only the great Lords and Tenants in Capite since either this Author speaks Hyperbolically or else all the chief Gentry of England of whatsoever Tenure might have appear'd at this great and extraordinary Assembly So that you are under this Dilemma either this Curia which you confess met ex more was the great Council of the Kingdom or it was not if it was not then there was some other greater Council besides that but if it was then it will plainly follow though you do all you can to mince the matter that this great Council of the Kingdom or Parliament met of course by ancient custom three times in the year without any Summons at all from the King which if I should have affirmed you would have called it a Common-wealth Notion since nothing can be a greater proof that this Assembly of the whole Nation in Parliament did not upon your Hypothesis immediately depend on the Kings Writs of Summons for their Assembling and Acting when met M. Well since you can bring no direct proof that these were any other besides the Tenants in Capite who met at this great Council I have still more reason to suppose them to have been so then you can do for the conorary Opinion therefore pray give me if you can some clearer and later proofs for this difference between the two Councils F. I shall comply with your desires and in order to it shall conclude with two or three of those very Authorities the Doctor has given us in his Answer to Mr. P. where he gives us this passage out of Mat. Paris in the 2â—â—th of Hen. 3. which plainly proves the Tenants in Capite not to have been the common University or sole Rep. esentative of the whole Kingdom â— pray read it Eâ—â—â— in Anno convenerunt regis summonitione convocati Londinum Magnates totius Regni Arciâ—pisâ—ori Episcopi Abbates Priores Comites Barones in quo Concilio portis Rex oâ—e proprio in presentia magnatum i. e. of all the parties above mentioned in Refectorio Westmonasteriensi Axilium sieri pecuniare cui fuit responsum quâ—d super â—oc tractarent â—recedentesque Magnates de Râ—fectorio convenerunt Archiepiscopi â—â— Episcopi Abbates Priores seorsim per se superque hoc diligenter tractaturi â—andâ—m requisiti fuerunt ex parte eorum Comites Barones si vellent illis unanimiter conâ—entire in responsione previsione super hiâ— facienda qui responderunt scâ—licet Comites Barones quod sine communi universitate nihil facerent ture de communi dissâ—nsu electi fuerunt ex parie cleri Electus Cant. c. Now I think here is as manifest a distinction as need to be between the Lords and Commons as Members
that they ever should desire this as a Priviledge and therefore it is onely since the neglect of this good old Law for Wages that so many Burroughs which Mr. Prin here mentions to have had Precepts again sent them of late Years to Elect Members after some Ages Intermission desired to have this Priviledge renewed to them as was done in the Case of those Burroughs he here mentions which yet certainly had been very gross and contrary to all common Right if the House of Commons had not then believed those Burroughs to have a had higher Right by Prescription than the Sheriffs Precepts gave them as for the last Rank viz. those Burroughs created by the Writs or Charters of our Kings I need say but little since this Author here grants such Creations to have been good before the Statute of 5th of Richard the 2d but not since tho I cannot see any Reason for it why he should give the Sheriffs such Power of making new Burroughs after this Statute in the time of Henry 6th as he does in the Case of Gatton and those other Burroughs he there mentions with it and yet deny this King the like Prerogative But yet for all this as I will not say there were none so are there but very few Examples of Charters that conferr upon any City or Burrough a Power to send Members to Parliament who had it not before by Prescription tho I grant that Priviledge may be mention'd in the Charter and so put it in the Power of the Major and Aldermen to Elect for the future when it was the whole Populace or all the Inhabitants of that Town that were to Elect before But to shew you from the very Statutes themselves that Mr. Prin has here cited that the Right of the Cities and Burroughs to appear in Parliament was not anciently looked upon to have had no other Original then the Favour of the Sheriffs Pray read these Clauses of the Statutes he has here quoted the first is that memorable Statute of the 5th of Richard 2d 2d Parl. c. 5. now mentioned and which I have already cited which expresly Enacts That all and singular Persons and Commonalties which from henceforth shall for time to come have Summons of Parliament shall come from henceforth as before to Parliaments in the manner as they be bound to do and hath been accustomed within the Realm of England of old time and whatever Person of the said Realm which from henceforth shall have the said Summons be he Archbishop Bishop Abbot Prior Duke Earl Baron Banneret Knight of Shire Citizen of City Burgess of Burgh or other singular Person or Commonalty do absent himself and come not at the said Summons except he may reasonably and lawfully excuse himself to our Soveraign Lord the King he shall be amerced and otherwise punished according as of old times hath been used to be done within the said Realm in the said Case and if any Sheriff of the Realm be henceforth negligent in making his returns of the Writs of the Parliaments or that he shall leave out of the said Returns any Cities or Burroughs which be bound and of old Times were wont to come to Parliament he shall be punished in the manner as was accustomed to be done in the said Case of Old Time in the French d' Anciente From which Statute we may draw these Conclusions First That the Knights Citizens and Burgesses are as supposed by this Statute to have a like Right to have Summons to Parliaments as hath been accustomed of Old Time as well as the Lords Spiritual and Temporal here mentioned Secondly That by these Words have been accustâ—med of Old Time or d' Anciente we are to understand a general Custom of the Realm Time out of Mind that is by Prescription so that if the Bishops Abbott and Temporal Lords are here acknowledged to have had a Right to sit in Parliament by Prescription so have the Commons likewise by the same Words equally applyed to all the Orders here mentioned Lastly That if the Sheriffs shall neglect in making Return to any such Cities and Burroughs which were thus bound to come to the Parliament of Old Time he shall be punished as hath been accustomed to be done in all time past or d' Anciente now pray tell with what colour of Justice the Sheriffs could be thus punisht if there had been no certain rule to know what Câ—ties and Burrough were bound to come to Parliament of Old Time but it had been wholy left at the Sheriffs Discretion which they should Summons and which they would omit let us next compare this with the Statute of 23d of Henry 6th c. 15. which Mr. Prin has here also given us reciting That divers Sheriffs of Counties have sometimes returned none of the Knights Citizens and Burgesses lawfully chosen to come to the Parliaments but such Knights Citizens and Burgesses have been returned which were never duely chosen and other Citizens and Burgesses than those which by the Mayors and Bailiffs were to the said Sheriffs returned and moreover by no Precepts to the Mayors and Bailifts or to the Bailiff or Bailiâ—â—i where no Mayor is for the Electing of Citizens and Burgesses to come to the Parliament and then appoints the Penalties for the said abuses and neglects Now pray let me ask you whether this bare Abuse of the Sheriffs and neglect of the duty of their Office here condemned by this Statute and for which the former Statute of Richard II. declares them punishable at Common law as this Act makes them liable to it by Statute Law could give them such an Arbitrary Power as this Author fancies much less can serve to corroborate his Opinion as he here supposes it does concerning the true original continuance discontinuance reviving and antiquating Parliamentary Cities and Burroughs not by Charters and Patents from the King or Prescription time out of mind but by the Sheriffs Arbitrary Power and Returns by the forecited general Clauses in the Writs But since I confess I have dwelt too long on my Answer to Mr. Prin's Arguments I shall conclude with only giving you one Record which I hope will sufficiently satisfie you that not only St. Albans but several other Antient Burroughs claimed to send Burgesses to Parliament by Prescription which appears by a Writ or Commission reciting a Peâ—ition of the Town of Barnstaple to King Edward the Third and his Council in Parliament which is to be found in the Patent-Rolls of the 17th of this King seting forth that the said Town had been a Free Burrough à tempore câ—jus contrarii memoria non exisâ—it and as such enjoyed divers Liberties and Free Customs by a Charter of King Athelstan and this among others ac quod ad singula Parliamenta nâ—stra dictorum Antecessorum nostrorum among which the said King Athelstan must certainly be reckoned for one duos Burgenses pro Communitate ejusdem Burgi mittere solebant and therefore
The King willeth that Right be done according to the Statuteâ— and Customs of the Realm c. Which not satisfying as too doubtful and general the King at last gave this full and clear answer in legal â—orm Soit Droit fait commâ— il est desirè The Second point in relation to our Civil Properties is this That no Tax Taillage or Aid shall be laid or levy'd by the King without the consent of the Arch-Bishops Bishops Earls Barons Knights Burgesses and whole Commonalty of the Realm in Parliament this was first of all granted by the 56th Law of William the First which I have already cited as also more particularly forbid by the Statute de Tallagio non concedendo in the 34th of Edward the First which was but a revival or explanation of the former Law of William the First and also by the 25th of Edward the Third whereby it is Enacted That no person should be compelled to make any Loans to the King against his will because they are against Reason and the Franchise of the Land and it is also provided that none should be charged by any Charge or Imposition called a Benevolence nor by such like Charge which is also more fully set forth in the said Petition of Right to have been lately executed by certain Commissioners as also that divers other Charges have been layed and levyed by Lords-Lieutenants Deputy-Lieutenants c. contrary to the Laws and free Customs of the Realm The Third Point declared against in this Petition of Right is against Quartering of Soldiers tho' they pay for their Quartors contrary to the Will of the Owners and Inhabitants much more when they did take free Quarter in time of Peace as hath been too much practised of late So that by the Common Law of England not only private-Private-houses but Inns and Ale-houses are not compellable to Quarter Soldiers unless they will so much was this Nation anciently a Stranger to standing Armies and Quartering of Soldiers in time of Peace that there was no Provision made for it either at Common-Law or by any Statute that I know of 4thly That no new Law can be made without an express Act of Parliament or the joynt-consent of the King Lords and Commons and therefore that Parliaments ought to be duely summon'd and held for the good and safety of the Kingdom by Common as well as Statute Law once every year and according to more modern Statutes once in three years at least or whenever there is a just and necessary occasion for it And for proof of this I need go no farther than the old English Saxon Law which ordains that the great Council or Mycel Synod should be held twice in the year as the ancient Mirrour of Justices recites and the constant Custome long after the Conquest in which there never passed a year without a general Council of the whole Kingdom and when this came by degrees to be discontinued then were those Statutes of Edward the Third and Richard the Second made whereby it was enacted that a Parliament should be held every year and oftner if there were occasion 5thly Since the Legislative Power of Parliaments is the very Soul and Essence of the Government the Election of Knights Citizens and Burgesses to sit and serve in Parliament ought to be free and all the Members of Parliament who have places there either by Patents or Writs of Summons as the Lords or else by Election or Writs as the Bishops ought to be present and there to have freedom of Speech and Votes without any Guards to over-awe or terrifie them and none to be forced threatned bribed or tamper'd with to give their Votes contrary to their Consciences either by the King or any of his Ministers This is ordain'd by the Stat. of Westm. 1 Chap. 5. whereby it is expresly provided that all Elections ought to be free which Sir Edward Cook in his Notes upon this Statute extends to Elections of Knights of Shires as well as other Elections since I have sufficiently proved that the Commons elected Members to Parliament when this Statute was made and that this was the ancient Law of England you may see in the Rolls of Parliament 1 Hen. 4. wherein it is alledged as by the Parliament as one of the Articles against Richard the Second in these words Item licet de stato consuttudine Regni sui in Convocatione enjuslibet Parliamenti Populus suus in singulis Comitatibus Regni debeat esse liber ad eligendum deputandum Milites pro hujusmodi Comitatibus ad inter â—ssendum Parliamentis ad exponendum corum gravamina ad prosequendum pro remediis superinde prout videntur expedire Tamen praefatus Rex ut in Parliamentis suis liberius consequi valeat suae temerariae voluntatis effectum direxit mandata sua frequentius Vicecomitibus ejus ut certas Personas per ipsum Regem nominatas ut milites Câ—mitatuum venirâ— saciant ad Parliamenta sua quos quidem Milites eidem Regi faventes inducâ—re poterat prout frequentius fecit quandoque pro minas varias terrores quandoque per munera ad consentiendum illis quâ—a Regno praedicto prâ—ejudicialia fuerant Populo quam plurimum onerosa c. So that you here may see that it was then judged by the whole Parliament to be a brench of one of the Fundamental Liberties of the Nation for the King to make false returns to be made of Parliament-Men as also to corrupt or over-awe their Votes either by Promises or Threatâ—ings But to conclude that we have such things as Fundamental Laws and Priviledges I shall go no farther than King Iames I. his Speech confirmed by an Act of Parliament of the First year of his Reign wherein it is recited That the King hath vouchsafed to express many ways how far it is and ever shall be from his royal and sincere care and affection to the Subjects of England to alter or innovate the Fundamental Laws Priviledges and good Customs of this Kingdom whereby not only his royal Authority but the Peoples Security of Lands Livings and Priviledges both in general and particular are preserved and maintained and by the abolishing or alteration of which it is impossible but that present Confusion will fall upon the whole State and â—rame of this Realm So that if this Judgment of the King and both Houses of Parliament was true sure we may justly suppose that things of such vast concernment deserve our contending for by all means possible and lawful to preserve them for what the Nobles of the Land upon occasion once said with one Voice in full Parliament every Free-born Subject of England may as well say at this day Nolumus Leges Angliae mutari which is a Maxim that ought to be imprinted upon the Hearts of all true Englishmen who as my Lord Bacon very well observes take themselves to have as good Title to their Laws as to the
by his Majesty and those of the Popish â—unto that advised him to issue out the late Declaration so expresly contrary to Law and the sense of both Houses of Parliament and which gave the Archbishop of Canterbury and the rest of his Brethren a sufficient ground of petitioning against it and this was so evident that a Jury in which the greatest part were high Prerogative Men could not upon a fair trial but acquit them M. I shall not further dispute this point since you have dwelt so long upon it though I must still tell you I do not look upon this as a sufficient cause for the Nations taking up arms for a reason I shall shew you by and by and therefore I shall now proceed to the next head complain'd of in the Princes late Declaration viz. the late Commission for erecting a new Court for Causes Ecclesiastical but as I will not enter upon the question of the Legality of it so on the other side it was also done by colour of Law and the King as supream head of the Church was told by his Ministers that he had power to erect what new Court Ecclesiastical he pleased provided it was not of the same kind with the High Commission Court which had been abrogated by the Stat. of the 17th of King Charles the I. as likewise particularly excepted in the Proviso in the Stat. of the XIIth of King Charles the II. for restoring Ecclesiastical Jurisdiction to the Bishops Courts so that admitting that Court was not legal yet the Persons who advised the King to erect it and the Commissioners who sate in it were only answerable for it in the next Parliament and though the Bishop of London was suspended and the President and Fellows of Magdalen Colledge were unjustly expelled by this Court yet sure none of these miscarriages could give the Subjects of this Kingdom any just pretences to take up Arms to redress them being done as I said before by colour of Law without any force or violence and was also submitted to by the Parties against which these Decrees were given and was at the most but a matter of particular concern and reacht no farther than the said Bishop and Colledge and did not touch the Religion and Civil Liberties of the whole Kingdom and consequently was not of that general importance as to be any just cause of the whole Kingdoms taking Arms much less for the Kings Officers and Souldiers to run over to the Prince of Orange as they lately have done F. To answer what you have now said concerning the Ecclesiastical Commission that I must also tell you was issued forth without so much as any colour of Law for it and though the late Chancellor and some of the worst and most Mercenary Judges countenanced it by appearing for and acting in it yet it is very well known that it was never proposed to all the Judges to be argued in the Exchequer Chamber as it ought to have been before a thing of that great importance to the whole Nation had pass'd the Seals as to what you say that the Kings Ministers told him it was according to Law and that they alone ought to answer for it in the next Parliament and that no publick disturbance ought to have been made about it because the things that that pretended Court did were but of a particular concern and only reacht the Bishop of London and one single Colledge that is but a fallacy which you put upon your self for sure if you had better consider'd of it you would find that what these Commissioners have already done is of a little more publick concernment than you are aware of for pray tell me why by the same Law by which the Bishop of London was suspended for his refusal to silence Dr. Sharp all the Bishops in England might not have been suspended one after another by that pretended Court if they had refused to obey or execute any Letters or Orders from the King tho' never so illegal or unreasonable since what command could be more illegal than the King 's positive order to the Bishop to suspend a Clergyman from his Diocess without first hearing him or giving him leave to answer for himself So likewise for the case of Magdalen Colledge by the same Law by which these Ecclesiastical Commissioners took upon them to turn out the President and Fellows for disobeying the Kings Mandamus by the same Law the King might put upon any other Colledge in either University Popish Heads and Popish Fellows till instead of Nurseries for the education of our youth in the Protestant Religion they may become as absolute Popish Seminaries as the Colledges of Doway or St. Omers and though I grant that the persons concerned in these unjust Decrees might have patiently submitted to them without any protestations against the jurisdiction of that pretended Court since they might for some prudential reasons have thought fit to submit to them without making any such protestation and yet for all that not allow their Authority but indeed the matter of fact was far otherwise for when a part of these Commissioners sate at Magdalen Colledge to expel the said President and Fellows from their places contrary to Law and the express Statutes of the Colledge they did all severally protest against their whole proceedings and appealed to the Kings Courts at Westminster And it is a plain proof how willingly Dr. H. the President of this Colledge submitted to this Sentence by his locking the Doors of his Lodgings and leaving the Commissioners to break them open before they could get in and put in his pretended Successour by force But as to what you say that the King was told he might as supream Head of the Church set up what new Court he pleased for the execution of his Ecclesiastical Jurisdiction it is certainly a great mistake for I utterly deny that the King has power to erect any new Courts either Ecclesiastical or Civil unless by Authority of Parliament the Kings power to make a Vicar general being only confirmed by the Statute of King Henry the Eighth as was also the Authority of the high Commission by the Statute of the first of Queen Elizabeth and if either of those high spirited Princes hadâ— believed themselves to have been invested with such an unbounded Prerogative they would certainly have exercised it without being beholding to the Parliament but indeed it is but a subterfuge to alledge that this Court was not of the same Nature with that of the high Commission because it did not take upon it to â—â—ne or commit Men to Prison nor to administer the Oath ex Officio to those that were convened before them since it is not the different name or some small difference in the manner of the judicial proceedings but the Causes or Matters that a Court pretends to take Cognizance of that can make it a Court of a quite different nature now it is notoriously known that this late Ecclesiastical
their Arms in their hands and took that opportunity of revenging themselves upon those that they looked upon as the Authors of all this confusion so that except the rifling of the House and Chappel of the Spanish Ambassador which I grant was contrary to the Law of Nations there were very few Popish Houses plunder'd or spoiled but such as had before rendered themselves some ways or other obnoxious to the Laws by their Apostacy and accepting of Commissions which they were utterly disabled by Law to take and though to my knowledge the Deputy Lieutenants and Justices of the Peace did their utmost in most Counties of England to quell those Riots and Disorders yet the Mobbile were too much enraged and too numerous to be commanded when like a vicious Horse whose Rider is cast off they run away with the Bridle in their Teeth M. I confess you have made the best Apology for the Mob that the matter will bear and I cannot deny in comparison of what has been done in other Nations on the like occasions it was a very civil Mob but yet this may serve to let us see the danger of your doctrine of Resistance since by the same Law by which they then pulled down and plunder'd the Popish Chappels and Roman Catholick Houses by the like right they might have done the same violences upon any other Noblemans or Gentlemans House in England whether a Papist or Protestant that they had a spleen to since it was but their crying out that he was a Papist or at least a favourer of them and then it had been enough to make them suffer as if they really had been so as I could tell you of my own knowledge of a very honest Gentleman of my acquaintance who because he was a true Son of the Church and had been always a Loyal Subject to his Majesty and a great Enemy to the Whig Faction in the Countrey and had also put the Laws severely in execution against the Dissenters was like to have had his House plunder'd by the Phanatick Mob of a certain Town from which this Gentlemans House was not far distant F. If you please to consider it this is a very unjust inference from our Doctrine for these actions were not any resistance of the Supream Powers of the Nation but certain violent actions or revenges which the Rabble thought they might take upon those whom they looked upon as publick Enemies when there was no civil or military Power in being that was of sufficient strength to keep them in order but if you please to call to mind my positions I do by no means allow the Rabble or Mob of any Nation to take Arms against a Civil Government but only the whole Community of the People of all Degrees and Orders commanded by the Nobility and Gentry thereof and though I grant the People may be sometimes mistaken in the exercise of this Right as what is there though never so lawful that may not be abused yet I think you will grant that the bare abuse of a lawful thing is no sufficient ground for the taking away the liberty of exercising it and I think I have sufficiently proved that the total denial of this Liberty would be of far worse consequence to whole Nations and Kingdoms nay to all mankind than the allowing of it as those of my opinion do only in cases of Extream necessity and when no other remedy will serve M. I will not renew this old dispute again about Resistance we sufficiently know one anothers minds about it and are not as I can see like to bring over either of us to the others opinion but since I know you have studied the Common Laws and Histories of this Kingdom better than I I cannot forbear making divers just reflections upon the late proceedings of the Convention for tho' indeed they had no Legal Authority to assemble upon the circular Letters of a Foreign Prince yet since this was the greatest if not the only liberty we had left us I will not quarrel or dispute the legality of their meeting but then they must use it only for lawful ends and such as in their private capacities they were obliged to pursue if they were able therefore when they assembled if they would have maintain'd the due Rights of Monarchy and Succession in this Kingdom sure they ought in the first place to have inquired what was become of the King where he was and who forced him to go away and when they had known that they ought then to have joyn'd in Addressing to the Prince that since he had declared that he came not to Conquer this Nation but only to free it from Arbitrary Government and restore it to its just Laws that there could be no sure enjoyment of these without the King therefore he would join with them in sending to him to desire him to return to the Government of these Kingdoms and to Govern them according to Law but instead of this they not only neglected taking any notice of the King as if he were not at all in Being but have also refused to receive those gracious Letters he sent them in which he promised To amend all former Errours and to Govern according to Law which certainly deserved to be taken notice of since coming from their Lawful Prince they ought at least to have proposed some terms to him before they had proceeded to that rash and unparallell'd Vote which I desire I may read to you word for word because I intend to examine every clause of it Resolved That King James the II. having endeavoured to Subvere the Constitution of this Kingdom by breaking the Original Contract between King and People and by the Advice of Iesuits and other wicked persons having violated the Fundamental Laws and having withdrawn himself out of this Kingdom hath Abdicated the Government and that the Throne is thereby vacant I shall make bold to consider each of these Clauses one alter another and therefore first pray take notice that this Vote of the two Houses cost above a weeks Debate in the House of Lords which past in the House of Commons in two or three days because divers of the Lords as well Temporal as Spiritual did with great Honour Reason and Resolution oppose and protested against it to the last and it was carried at last by a very small Majority but that we may examine each Clause in this Vote first it is here only said That King James II. endeavoured to Subvert the Constitution of this Kingdom not that he really did it which is as much lower than you are pleas'd to put it as endeavouring a thing falls short of actually doing it and therefore it is very hard to Declare a Prince to have forfeited or Abdicated his Kingdom for bare Designing and Indeavouring since those things that you bring to prove it may bear a much more favourable Interpretation especially with Subjects who are no fit Judges of the private Designs of Princes
Act of Parliament and therefore I must still tell you that you go upon a wrong ground when you suppose that there can be now any dispute who is rightful King of England since I have often told you that he can neither abdicate or forfeit his Right to the Crown and that no Parliament whatever much less a Convention could have any power to declare he had abdicated the Government and that thereby the Throne was become vacant for though I grant the judgement of the Estates of the Kingdom when legally assembled ought to be received with great submission and respect yet must it be only in such matters which they have a legal cognizance of and which they are impower'd by the Laws and Constitutions of the Kingdom to determine but since their Voting him whom you your self cannot deny to have been their lawful King to have abdicated the Throne when indeed he had not and then not only to declare the Throne vacant but also to place those therein whom you your self dare not affirm to be the next Heirs by blood are things quite out of their Element and beyond the Sphere of their Authority and though I grant that they may sometimes judge concerning the Succession of the Crown and who is next heir to it yet is this only to be understood as far as they judge according to the Common Laws of the Succession already laid down at our last Meeting and not when they go quite contrary to them and therefore though I own the Parliament might justly declare Henry the VIth to be an Usurper and consequently might be deposed yet doth it not therefore follow that they had a like right to declare Edward the IVth an Usurper and to pass an Act of Attainder against him as I confess they did after that Prince had held the Crown for ten years together since that was beyond their power to enact or declare by the fundamental constitution of the Government F. I am sorry your answer can afford nothing new but only the repetitions of the same false Principles and Arguments that have been already so often answered in our former Conversations for in the first place I have sufficiently proved that neither the Laws of God nor Nature have ordain'd any such thing as a lineal Succession of Kings or any irresistible or unforfeitable power in them which they can never fall from let them act never so tyrannically for I think I have sufficiently prov'd that not only in absolute Monarchies but also in limited Kingdoms where the King has not the sole Supream power a King may not only be resisted but may be also declar'd to have abdicated or forfeited his right to Govern in case of any apparent obstinate violations of the fundamental Constitution in those great points that make that Government to differ from a despotick Monarchy and that if they had not this right all their liberties will signifie nothing and their Lives Liberties and Estates would lie wholly at the Kings mercy to be invaded and taken away when ever he pleas'd I am forced to repeat this to remind you of the Reasons upon which those Principles are founded and therefore you do but fall into your old mistake when you affirm that by the fundamental constitution of the Government the Great Council of the Nation which was but the same with our late Convention had no power to declare the King to have broken the Original Contract between him and his People Therefore what you say concerning the want of Authority in this Great Council to declare the Throne vacant is altogether precarious unless you could also prove that it is against the fundamental constitution so to do whereas I have so far proved the contrary that the Throne has been declared vacant no less than eight times since the Conquest which makes up almost a third part of the Successions of all the Kings and Queens that have Reigned since that time so that if the custom and practice of Great Councils or Conventions and those not condemn'd by any subsequent Statutes can be the only Rule or Guide for the Consciences of all the Subjects of this Nation we have certainly had that as solemnly declar'd now as in any other Great Council or Convention that has been ever held in this Kingdom but as to what you say concerning the want of power in those Councils to declare or recognize who are the right Heirs to the Crown but not to make them so is very pleasant since that were all one as if two Men who contended for an Estate should bring the matter before the House of Peers and when that was done and the Case solemnly heard by Council on both sides that party who had lost the Cause should declare that this Court tho' the highest in the Kingdom had no power to judge in prejudice of himself who had an undoubted right to the Estate which were only to give the Lords power to give judgment only for one side and why the other Party if the judgment had been given against him should not have made the like Plea I cannot understand So that such a Judgement would be altogether in vain Therefore to apply this to our purpose though the Parliament being prevail'd upon by the strength and faction of the Duke of York did as I granted at our last Meeting declare that his Title could in no wise be defeated yet Henry the VIth being then in the Throne they might have certainly given a contrary judgement if they had pleased and then I suppose the Title of the House of York might have been so defeated as that the Nation had never been troubled with it again and so also when by the power of Edward the IVth a Parliament met and declared him to be lawful King from the time of his Fathers death yet when the said King was driven out of the Kingdom by the Earl of Warwick and King Henry the VIth restored to the Throne a Parliament was summon'd in the 49th of this King wherein Edward the IVth was declared an Usurper and himself attainted and to which Parliament the Duke of Clarence Brother to King Edward the IVth is first Summoned as well as the Arch-Bishop of Canterbury with all the other Bishops Temporal Lords and Judges of whom Littleton the Authour of the Book of Tenures was one so likewise upon King Edwards recovery of the Crown the year following King Henry was again deposed and a Parliament called wherein all the Dukes Earls and Barons with the Arch-Bishops of Canterbury and York and most of the rest of the Bishops Swore to Prince Edward after called Edward the Vth as Right Heir of the Crown Now I desire to know what other Law or Rule there was then for the Subjects Allegiance but the solemn judgement or declaration of the Estates of the Kingdom assembled in Parliament since their Acts and Judgements were in this dispute directly contradictory to each other so that it is evident