voluntate Regis teâ—â—ere praesumptum est sed quod consilio Magistratuum suoâ—an Rege Authoritatem praesâ—aâ—â—e babâ—â—a super hoâ— deliberatâ—one So that you see in the time when this Author Writ the King could do no more by his Prerogative then the Law allowed him to do and though it is true it is his Will and Authority that gives Vigour to the Law yet this only as it is declared in Parliament and in those Acts which had before received the Consent of his Great Council here called the Kings Magistrates And therefore you have done what you can to confound the difference between the Kings Declaration or Writs Explaining and Enforcing the Common Laws of England or else Interpreting former Acts of Parliament already made which was a Prerogative often exercised by the King and his Council in Parliament which then consisted of all or most of the Iudges and Great Officers of the Kingdom of which I shall speak more at large by and by And I confess we are much in the Dark because our Ancient Parliament-Rolls are almost all lost and consequently the Statutes therein contained So that we have almost nothing left of them but such Copies or Remains as were preserved by Iudges and Lawyers in those and Succeeding times whilst they were still in Being And therefore I think I may at present boldly affirm that if that which you call the Statute of Ireland was not founded upon some former Statute not now in being it was no Act of Parliament at all but only the King 's Writ to the Chief Justiciar of Ireland Commanding and Enforcing the Common Law of England in the Case of Coparceners to be observed in Ireland The like I may say to the Explanation of the Statute of Gloucester which might be no more than the Interpretation of the King and his Iustices of the Sense of some Articles in that Statute and this for its Greater Authority Exemplified under the Great Seal and so sent to all the Courts at Westminster and often to the Sheriffs of all the Counties in England yet without altering that Statute in some Points as you would have it The like I may say of the Statute of Acon Burnel and therefore it is very rashly done to conclude that though we have not the Original Acts and Records of Parliament of that time that therefore such Statutes were made by the King alone in his Privy Council So that I must still continue of the same Opinion with the Great Selden in this Point who in his Marâ— Clausum tells us It is most certain that according to Ancient Custom no Answer is given either by the King or in the King's Name to any Parliamentary Bill before that Bill whether it be brought in first by the Lords or by the Commons hath past both Houses as is known to all that are versed in Parliamentary Affairs Which if it hath bin the Fundamental Law of this Kingdom it signifies very little in what Form the Law is express't whether in the King's Name only as giving the last Assent thereto or else as his Concession to the Lords and Common's Petition as long as you grant that their Assent was necessary For sure whosoever Petitions another to do a thing which he cannot impose upon him without his Request must give his consent to the Doing it unless you can prove that it could be done whether the Petitioner would or not And this by the way will serve to answer an Objection which though you insist much upon it is scarce worth it viz. The King's Answer to the Lords and Commons Petition of Right which was indeed no Grant or Concession of any New Rights or Priviledges from the King to the People But only a Declaration of several Ancient Rights and Liberties of the Subjects which had been very much broken and infringed of late and therefore the King's Answer was very proper soit Droict faict comme est desire The next mistake you fall into proceeds from your confounding the King 's extraordinary Council in Parliament with the King 's Special or Privy Council and in a manner making this a fourth Estate by whom as well as by the Lords and Commons Laws are often made whereas indeed neither the one nor the other is true For tho I grant that there is often made mention in our Ancient Statutes or Records of the Kings Council yet this is not to be understood of his Privy Council but of a Special Council with whom our King 's formerly sate during the time of Parliament and before whom and to whom we find by divers Records that both the Lords and Commons did often Petition as you your self do truly affirm But that this was not the King 's Privy Council but another quite different from it And to which it seems to me that Fleâ—a refers in his 2d Book Cap. 2. Habet enim Rex curiam suam in Concilio suo in Parliamentis suis praesentibus Praelatis Comit. c. And this Council consisted of all the Great Officers of the Kingdom viz. The Lord Treasurer Chancellor and Keeper of the Privy Seal Master of the Wardrobe the Judges of the King's Bench Common Pleas Barons of the Exchequâ—r Justices Itinerant and Justices of Assizes with such of the Dignified Clergy as it pleased the King to call Which that they were altogether distinct from the King 's Privy Council appears plainly by this that the later never included all the Iudges nor did the Privy Council ever exercise any Iudicial Authority in Parliament as this Council did in those days but that this Council consisted of the Parties above mentioned see the Statute of Escheators made 29 Edw. I. and in the Placita Parliamentaria of that year the Statute runs thus Per Consilium Regis concordatum est coram Domino Rege ipso consentiente c. But in the Close Roll of this year it is clearly explained who were of this Council their Names being there particularly recited viz. all the Great Officers above-mentioned together with the Iudges of the King's Courts and Justices Itinerant c. Which is likewise explained by the Parliament Roll 9. Edw. 2. Rex voluit quod Dominus Cancellarius Thesaurarius Barones Soaccarii Iustiâ—iarii alii de Consilio Domini Regis Londin existente convenirent I could give you many more Examples of this kind but I shall give you but two more to prove that this Council in Parliament could not be the King 's Ordinary Privy Council The first is in Placit Parliament 2 Edw. 3. in a Cause betwixt Thomas Fitz-Peter and Alienora Wife of Iohn de Mowbray Coram Rege The Record is long but concludes thus to the Justices Et si difficultas aliqua subfuerit quare praemissa facere non possâ—tis tunâ— placitum illâ—â—d usque in Prox. Parliamentum nostrum udjornetis ut ibidem â—unc inde fieri valeat quod de Consilio nostro fuerit faciendum By which we may very
him not to insist upon the distribution and reading of it because it was against Law tho' admit it were being no way contrary to the Law of God they ought to have obeyed it since their bare distributing of it had not rendered it the more Lawful so that it being a great misdemeanour in these Bishops to deliver this Petition their Commitment and Prosecution at Law for the same was also Legal and what the Privy Council told his Majesty he might well justifie so that if the King was too severe in this matter they were to bear the blame and not he F. I cannot deny but you have given a just account of the main Arguments made use of by the late Lord Chief Justice Merbert in defence of the Kings dispensing Power and of giving his own opinion for it but I think notwithstanding all that Gentleman has Written in defence of it that the Kings Declaration of Indulgence and his Dispensation grounded thereupon to be both of them void and contrary to Law and for proof of this I shall first give you the opinion both of those Divines and Civilians concerning this matter as first Swareâ— in his learned Book de Legibus saith That he hath the Power of Dispensing qui legem tulit quia ab ijus volontate potentia pendat but Vasques another Learned Spanish Casuist holds that no Prince whatever hath a Power to Dispence with his Laws according to his pleasure or because that they are his Laws nay he also denies such an unlawful Dispensation to be valid but to come to those of your own faculty H. Grotiuâ— saith expresly Dispensare hoc est lege solvere le solus potest qui serendae abrogandâ—â—que legis potestatem habet Pusendors affirms That none can Dispence with a Law but such as have the Power of making it and the very reason of the thing sufficiently shews it for to dispense is to take away the Obligation of the Law in respect of them to whom it is granted and whoever takes it away must have the power of laying it on and there is no difference between the dispensation of a Law and the Abrogation of it but that a dispensation is an abrogation of it to particular persons while others are under the force of it and an abrogation is a general dispensation that being no more than a relaxation of the whole Law to those persons who were bound by it before therefore if the King have not the whole legislative power of this Kingdom as I think I have already proved he has not he neither can have the sole power of dispensing with Laws But to answer your main argument that the constant practice hath been otherwise for the space of above 200 years and that confirm'd by the Judgment and Opinions of all the Judges and most considerable Lawyers in England ever since that time to answer this I say it is necessary that I give you a short History of this Dispensing Power and the Original of Dispensations with Non obstantes which are so far from being as old as your Conquest that the first news we hear of them is from Mat. Paris who expresly tells us they were first introduced by the Pope and were afterwards inserted into the Kings Patents and Protections in imitation of them by King Henry III. so they were never made use of by any of our Kings to ellude Acts of Parliament till after the Statute of Mortmain which was made in the seventh of Edward I. which first attempt must needs be Illegal because contrary to Magna Charta ch 36. which is the first Law which prohibits Alienations in Mortmain and was not only sworn to when enacted but is also confirmed by many after Acts of Parliament and ordered to be observed in all points insomuch that when the Clergy petitioned King Edward I. for a relaxation of this Statute of Mortmain his answer was that he could not do it because it was Enacted Communi Consilio Magnatum suorum sine eorum consilio non erat revocandum and I grant that such was the misguided devotion of those times that such Non-obstantes were often obtained as appears by the Patent and Charter Rolls in the Tower from the eighth of Edward the I. downwards abounding with special Licenses to purchase and hold Lands c. Statuto de terris tenementis in manum mortuum non ponendis non Obstante And yet were not these Licenses accounted Legal or the Clergy safe in purchasing such Lands Rents Advowsons c. by vertue of them till it was enacted and Ordained in Parliament in the eighth of Ed. III. to this effect That if Prelats or other Religious People have purchased Lands and the same have put to Mortmain and be Impeached upon the same before our Justices and they shew our Charter of License and Process thereupon by an Inquest of ad quod damnum or of our Grace or by Fine they shall be freely lest in peace without being further Impeached for the same purchase c. But Non-obstantes with the Statute of Mortmain having been introduced as afore-said tho' undeniably Illegal at first and gaining afterwards a countenance from this Act of Parliament have I suppose given occasion to the dispensing with other Acts of Parliament also tho' at first they were very rare and seldom occur in the old Books but are more frequent in the new and that our Judges and Courts of Justice have invented little distinctions betwixt malum in se and malum prohibitum betwixt Laws made pro bono publico and Laws of more private regard betwixt Laws in which the King's Profit and Interest is concerned only and Laws in which the Subjects have an interest and are intituled to an action as the party grieved yet the cases that have hitherto come before them judicially have been questions upon Dispensations granted to particular persons to exempt them pro hic nunc from incurring the penalty of such and such a Law but a Dispensation and Suspension of so many Laws at a lump as the late Declaration of Indulgence did take upon it to do has been so far from receiving any countenance from Courts of Justice hitherto that it has always been a fatal Objection against any particular Dispensation of it it was such as consequently eluded and frustrated the whole Law for that such a Dispensation is in effect a repeal of the Law it self And therefore in that great Case of Thomas and Sorrel in the Lord Vaughan's Reports where Dispensations with Penal Statutes are in some Cases allowed yet it was then agreed by all the Judges that the King had no power to Suspend a Law But to let you see how jealous the Parliament and in particular the House of Commons have ever been of trusting the King with an unlimited power of Dispensing with Penal Statutes with Non-obstantes appears also by several other Laws of great moment and in particular from the
it would be left in her Power not only to govern her self but by marrying to chuse a King for her Subjects whom they do not approve of And therefore we read that in diverse of the Antient Kingdoms of the World Women were excluded from the Succession Nor are these the only questions that either might then or else have in latter Ages been started concerning Succession in Kingdoms and Principalities and have been the cause of great disputes between Pretenders to Crowns where a King Dies without Lawful Issue as whether a Grandson by a Younger Daughter shall inherit before a Grand-daughter by an Elder Daughter Whether the Elder Son by a Concubine before the Younger Son by a Wife From whence also will arise many Questions concerning Legitimation and what by the Laws of Nature is the difference betwixt a Wife and a Concubine All which can no ways be decided but by the Municipal or Positive Laws of those Kingdoms or Principalities It may further be enquired whether the eldest Son being a Fool or Madman shall inherit this Paternal Power before the Younger a Wise Man And what degree of â—olly or madness it must be that shall exclude him and who shall be the Judges of it Also whether the Son of a Fool so excluded for his Folly shall succeed before the Son of his Wiser Brother who last Reigned Who shall have the regal Power whilst a Widdow Queen is with Child by the Deceased King until she be brought to Bed These and many more such difficulties might be proposed about the Title of Succession and the Right of Inheritance to Kingdoms and that not as idle speculations but such as in History we shall frequently find examples of not only in our own but likewise other Kingdoms From all which we may gather that if the Laws of God or Nature had prescribed any set rules of Succession they would have gone farther than one or two cases as concerning the Succession of Elder Sons or Brothers where an Elder Son dies without Issue and would also have given certain infallible rules in all other Cases of Succession besides these and not have left it to the Will or particular Laws of diverse Nations to have established the succession so many several ways as I am able to shew have been practised in the World M. I must confess you have taken a great deal of pains to perplex the Succession to Adam which seems designed for nothing else but to make me believe that if Adam or any of his Sons were Kings or Princes it must have been by the Consent or Election of their Children or Descendants which is all one as to say that those Antient Princes derived their Titles from the Iudgment or Consent of the People the contrary to which is evident as well out of Sacred as Civil History F. Since you appeal to History to History you shall go and to let you see that I have not invented these doubts about Succession of my own Head and that there might have very well been a real dispute about the Succession to Adam in the Cases I have put may appear by the many disputes and quarrels that have been in several Nations concerning the Right of Succession between the Uncle and the Nephew of which Grotius is so sensible that he confesses in the latter end of the Chapter last cited that where it could not be decided by the Peoples Iudgment it was fain to be so by Civil Wars as well as private Combats and therefore he is forced ingenuously to confess that this hath been practised divers ways according to the different Laws and Customs of Nations and he gives us here a distinction between a direct Lineal Succession and a transversed and acknowledges that amongst the Germans as also the Goths and Vandales Nephews were not admitted to the Succession of the Crown before their Uncles the like may be said of the Saxons and Normans and therefore we find in our Antient English History that before the Conquest the Uncle if he were Older always enjoyed the Crown before the Nephew which I can more particularly shew you if you think fit to question it The like manner of succession was also amongst the Irish-Scotch for above 200 years after â—â—rgus their first King The like Custom was also observed among the Irish as long as they had any Kings amongst them and is called the Law of Tanistry The same was also observed in the Kingdom of â—astile where after the death of Alphonso the fifth the States of that Kingdom admitted his Younger Son Sancho to be King putting by Ferdinand de la Cerda the Grand-Son to the late King by his Eldest Son tho' he had the Crown left him by his Grand-Father's Will So likewise in Sicily upon the Death of Charles the Second who left a Grand Son behind him by his Eldest Son as also a Younger Son named Robert between whom a difference arising concerning the Succession it being referred to Pope Clement V. He gave Judgment for Robert the Younger Son of Charles who was thereupon Crowned King of Sicily and for this reason it was that Earl Iohn Brother to King Richard the second was declared King of England by the Estates before Arthur Earl of Brittain Son of Ieoffrey the Elder Brother and Glanvil who was Lord Chief Justice under Henry the second in that little Treatise we have of his makes it a great question who should be preferred to an Inheritance the Uncle or Nephew But as for Daughters whether they shall inherit at all or not or at least be preferred before their Uncles is much more doubtfull since not only France but most of the Kingdoms of the East at this day from Turkey to Iapan do exclude Women from the Throne And it was likewise as much against the Grain of the Antient Northern Nations and hence it is that we find no mention of any Queen to have reigned amongst the Antient Germans or Irish-Scots and never but two among the English-Saxons and those by Murder or Usurpation and not by Election as they ought to have done And upon this Ground it was that the Nobility and People of England put by Maud the Emperess and preferred Stephen Earl of Blois to the Crown before her for tho' he derived his affinity to the Crown by a Woman yet as being a Man he thought himself to be preferred before her So likewise in the Kingdom of Aragon Mariana in his History tells us that Antiently the Brother of the King was to inherit before the Daughter examples may also be given of divers of the other instances but these may suffice M. I Pray give me leave to interrupt you a little for by these examples you would seem to infer that these Laws about setling the succession of Crowns in several Kingdoms depended upon the Will of the People whereas I may with better reason suppose that if such Laws and Alterations have been in such successions they were made by
particularly to the 55 th Law of William the First part of which I have already cited it begins thus Volumus etiam ac firmiter praecipimus concedimus ut omnes liberi homines totius Monarchiae Regni nostri praedicti habeaâ—t teneant terras suas pâ—ssessiones suas bene in pace libere ab omni exactione injusta ab omni Tallagio ita quod nihil ab ois exigatur vel capiatur nisi Servitium suum liberum quod de jure nobis facere debent facere tenentur prout statutum est eis c. So that whatsoever was done at any time contrary to this Statute was illegal and consequently ought not to be quoted as any part of the King's Prerogative But that the Nobility and People of England had divers Rights and Liberties before the time of King Iohn and of his granting that Charter appears by its conclusion in these words Salvis Archiepiscopis Abbatibus Prioribus Templariis Hospitalarâ—is Comitibus Baronibus Militibus omnibus aliis tam Ecclesiasticis Personis quam secâ—laribus libertatibus quas prius habâ—erunt And as for the rest of the Liberties granted by this Charter tho they are said to have been granted from the King 's meer good will yet that is recited only to make it more strong against himself since the Nobility and People of England claimed those Liberties as their ancient undoubted Right And the same Author as I have already hinted expresly tells us that this Charter contained Maxima ex parte leges antiquas And a little lower he relates where those Liberties were to be found Capitula quoque legum libertatum quae ibi Magnates confirmari quaerebant partim in Charta Regis Henrici superius scripta sunt partimque ex Legibus Regis Edwardi aâ—â—iquis excerpta So that they were not only the effect of the King 's meer Grace and Favour as you suppose But if you please now to descend to the Reign of Henry the Third and so downward from which time our Eldest Printed Statutes bear Date let us see if I cannot answer all those Arguments which the Gentlemen of your opinion have thence brought for the King 's Sole Legislative Power M. Tho I do not allow of your notion of the Conqueror's not being properly and really so as I shall shew you another time when I shall more particularly consider that Argument of the Right of Conquest in King William and all his Successors therefore I do at present readily assent to your Proposal and it was the very thing I was coming to And therefore I shall begin with the Magna Charta of Henry the Third which begins thus Know ye that We of our Meer and Free Will have given these Liberties The Statute de Scaccario Anno 51 Hen. 3. begins thus The King commandeth that all manner of Bayliffs c. The Statute de Districtione Scaccarii made the same year runs thus It is Provided and Ordained The King willeth The Statute of Marlbridge 52 Hen. 3. And he i. e. the King hath appointed all these Acts Ordinances and Statutes to be observed of all his Subjects If we come to the Reign of his Son Edward I. and begin with the Statute of Westminster I. it is there said in the Preamble These are the Acts of King Edward I. made at his first Parliament by his Council and by the Assent of the Archbishops Bishops c. And in the first Chapter 't is said The King hath Ordained and Established these Acts. And tho I grant that in divers Statutes of this King at in this of Westminster it is recited that the King by the advice of his Counsel or Assent of the Archbishops Bishops Earls Barons c. have Made Provided Ordained or Establisht such and such Laws yet it is plain that the Enacting or Decreeing part is wholly ascribed to the King in all those Statutes wherein such words are found as I shall make it appear more plainly by the Statute of Act on Burnel made in 13 Edw. I. where it is said The King by himself and all his Council hath Ordained and Established And in the Statute of Westminster 3.18 Edw. I. Chap. I. Our Lord the King in his Parliament at Westminster at the Instance of the Great Men of the Realm hath Granted Provided and Ordained In the Statute De iis qui ponendi sunt in Assizes 21 Edw. I. Our Lord the King in his Parliament holden c. hath Ordained that c. The Statute of Quo Warranto 18. Edw. I. runs thus Our Lord the King at his Parliament holden at Westminster of his special Grace and for the Affection he beareth unto his Prelates Earls and Barons hath granted That c. I Edw. II. begins thus Our Lord the King hath Granted The Statute of Gavelet 10 Edw. II. begins thus It is provided by our Lord the King and his Iustices The Statute of Carlisle 15 Edw. II. begins thus The King unto the Iustices of his Bâ—nch sendeth Greeting Whereas of â—ate We have Ordained c. But if we come to the Reign of his Son Edw. 3d. The Prefaces to most of the Statutes made in his Reign run thus Our Lord the King by the Assent of the Prelates Earls c. and at the Request of his People hath granted and established or else at the Request of the Commonality hath ordained c. The like Stile continued during the Reigns of Richard the 2d Henry 4th and Henry 5th with very little Alteration only it was commonly at the Request of the Prelates Dâ—kes Earls and Barons and at the Instance and Special Request of the Commons the King hath Ordained c. Whereby we see a plain difference in the Phrases of the Statutes of those times for it is the Lords that give their Assent whereas the Commons only Petitioned but it is the King alone who Ordaineth and Establishes I confess indeed that under some Princes of bad Titles as in particular under the Minority of Henry 6th there began some Alteration in the form of penning the Enacting part of most Statutes that were then made and that unto those usual words which were inserted ordinarily into the Body of the Acts from the beginning of the Reign of that King viz. by the Advice and Assent of the Lords Spiritual and Tempâ—ral and at the Special Instance and Request of the Commons there was added by the Authority of the said Parliament But it is still to be observed that though these words were added to the former Clause yet the Power of Granting and Ordaining was still acknowledged to belong to the King alone as appears by these Acts of Parliament of that King viz. the 3d. Henry 6th Ch. 2. 8th Hen. 6. Chap. 3. Where it is said our Lord the King by the Advice and Assent and at the Request aforesaid hath ordained and granted or Ordained and Established by the Authority of this Parliament And thus it generally
Constitution to have bin in all the Neighbouring Kingdoms in Europe which have bin raised according to the Gothic Model of Government upon the Ruins of the Roman Empire now let us look into Scotland and there we shall find this Institution as Ancient as any History or Record they have If we pass into France we shall find their Assembly of Estates or Great Council to have bin as Ancient as their first Kings and to have had as much Power as any where else in Europe Since they not only frequently Elected but also Deposed their Kings of the first Race and disposed of the Succession of the Crown as they thought fit If we look into Spain we shall find in the two greatest and most Considerable Kingdoms viz. Castile and Arragon the like Assemblies the Power of which was so great in the latter that they could even Depose the King himself if he Tyranniz'd over or Oppress 't them If we go more Northward we shall find in the Ancient Kingdoms of Denmark and Sweden and Norway that their Assembly of Estates or Dyets Elected their Kings and could likewise Depose them till those Kingdoms became Hereditary which was but of modern times I shall omit Poland because perhaps you may dispute whether it is a Kingdom or a Commonwealth But if we pass into Hungary which was Instituted by the Huns a Nation of Gothic Original we shall find not only the like Assembly of Estates as in the other Kingdoms but also that they had a Magistrate called the Palatine who was as it were the Conservator of the People's Liberties and who could Resist even the King himself if he invaded them and which is also very remarkable in all these Kingdoms except Denmark the Representatives of the Cities or Principal Towns which constituted the third Estate or Commons in those Kingdoms had always a place in those Great Councils So that to conclude it is almost impossible to conceive how these Kingdoms I have now mentioned could all agree to fall into the same sort of Government about the same time unless it had proceeded from the particular temper and Genius of the Germane and Gothick Nations from which they were derived Or who can believe that all these Nations and their Kings finding the like Conveniences from these Great Councils and Inconveniences by the want of them should all Conspire to set them up in each of these particular Kingdoms M. I will not deny but that the Institution of Great Councils or Assemblies of the Estates might be as Ancient as the Government it self in several of those Kingdoms you mention which were at first Elective but what is that to England where our Monarchy hath bin by Succession from the first Institution of it and not Elective as you suppose Nor do I much value the Authority of the Mirrour as to the Great Antiquity he Ascribes to this Assembly of Counts or Comites as Bracton calls them and in which by the way no Commons are mentioned And tho I grant the Iudicial Power of the House of Peers is very Ancient Yet that it wholy proceeded at first from the Indulgence of our Kings appears from hence that there was always a necessity of the King's Presence in Parliaments which is very well proved by Sir Robert Cotton in a Learned Treatise written on that Subject wherein he proves that in all Consultations of State and Decisions of private Plaints it is clear from all times the King was not only present to Advise but also to Determine And whensoever the King is present all Power of Iudging which is derived from his ceaseth the Votes of the Lords may serve for matter of Advice the Final Iudgment is only the Kings But indeed of late years Queen Mary and Queen Elizabeth by reason of their Sex being not so fit for publick Assemblies have brought it out of use by which means it is come to pass that many things which were in former times acted by Kings themselves have of late bin left to the Iudgment of the Peers who in quality of Iudges Extraordinary are permitted for the Ease of the King and in his Absence to determine such matters as were Anciently brought before the King himself sitting in Person attended by his Great Council of Prelates and Peers And the Ordinances that are made there receive their Establishment either from the King's Presence in Parliament where his Chair of State is constantly placed or at least from his Confirmation of them who in all Courts and in all Causes is Supream Iudge All Judgments are by or under him and cannot be without much less against his Approbation The King only and none but He if He were able should judge all Causes saith Bracton so that nothing seems plainer to me than that the Iurisdiction which the House of Peers have hitherto exercised for the Hearing and Determining all Causes as well Civil as Criminal by way of Appeal not only between Subjects but also in all Accusations against the Lords themselves proceeds wholy from the Kings which may appear by an Ancient Precedent mentioned by Abbot Brampton in his History It is the Case between King Edw. the Confessor and Godwin Earl of Kent whom the King accused for the Death of his Brother Prince Alfred before the House of Peers and there you will find that after the Earl had put himself upon the Iudgment of the Kings Court the King thereupon said You Noble Lords Earls and Barons i. e. Thanes of the Land who are my Liege-Men now gathered here together and have heard my Appeal and Godwin's Answer I will that in this Appeal between us ye Decree Right Iudgment and do true Iustice And upon their Judgment that the Earl should make the King sufficient Satisfaction in Gold and Silver for the Death of his Brother the King being thereof informed and not willing to contradict it the Historian there sayeth He ratified all they had judged I could give you many other Precedents of latter Date were it not too tedious But this is sufficient to shew that what the Pâ—ers acted in this matter was by the King 's Sole Will and Permission I shall only conclude with one Precedent more in Case of some what alike Nature It is that of Hen. Spencer Bishop of Norwich 7 Rich. 2d who was accused foâ— joyning with the French The Bishop complained what was done against him did not pass by the Assent and Knowledge of the Peers whereupon it was said in Parliament that the Cognisance and Punishment of his Offence did of Câ—mmon Right and Ancient Custom of the Realm of England solely and wholy belong to our Lord the King and no other From all which I infer that the Iudicial Power exercised by the House of Peers is meerly derivative from and Subservient to the Supream Power resiâ—â—ing in the King From whence it also follows that if the Peers have no Power nor Honour but what proceeds from the Prince and that the Commons
of the same Author that there is no Remedy lest against the King in case he does wrong or oppresses any man but only petition and after that the only Remedy is expectet Deum ultorem in case he refuse to do right this is to be only understood of Remedy in ordinary Courts of Justice and by ordinary means for otherwise this Author would contradict himself whereas he tells us expresly as I have already noted out of Bracton and Fleta in Populo Regendo Rex habet Superiores Legem per quam factus est Rex Curiam suam viz. comites Barones that is the highest Court of Parliament called by way of eminency the Earls and Barons who he here says debent ei sâ—â—â—num imponere in case he transgress the Law and therefore if he go on still wilfully to violate all the Fundamental Laws of the Kingdom by the same Power by which they may put this Bridle upon him by the same Power may they also declare in case of manifest and down-right Tyranny that he has forfeited his Crown and tho' they cannot depose him as his Superiours yet they may declare that he hath by violating the Original Contract between him and his People ceased to be King and that both themselves and all his Subjects are discharged of all Allegiance to him And agreeable to this Opinion the Old Mirrour of Justices tells us in the place I have formerly cited at our third Meeting that tho' the King have no Peer in the Land nevertheless if by his own wrong he offends against any of his People none of those that Judge for him i. e. none of his Justices can be both Judge and Party therefore it is agreeable to Right that the King should have Peers or Companions to hear and determine in Parliament all Writs and Complaints concerning the wrongs of the King Queen and their Children of which wrongs they could not otherwise have common Right Now can any one imagine that any private person might have Right against the King or his Queen and Children and that there should be no Remedy left for the general Oppression and Violation of the Laws and Rights of the whole Nation in general and that whether the King would or not for if it had lain in his power to have hindred it by dissolving the Parliament this Law had been wholly in vain so that this will serve to answer your other Quotation out of Bracton concerning the King's Charters or Grants for so I suppose factis is to be rendred in this place that no private persons no not the Kings Justices could in those days take upon them to dispute about or interpret their meaning but it was to be left to the King himself but how not to his private Interpretation in his Chamber or Privy Council but to his Interpretation in his Great Council in Parliament which as I proved in our fifth Meeting consisted of all the great Officers of the Crown together with the Judges who the King being present were in the nature of Counsellors or Assessors to him and there all matters not determinable in ordinary Courts were heard and determined and of this nature were the King's Charters tho' now that Power since the dissolution of that great Court is fallen partly to the Chancery and partly to the King's Bench who do both of them at this day judge of the King's Grants whether they are according to Law or not and can declare them to be void if they are not M. This is right Rumâ— Parliament Doctrine or rather worse if worse can be for whereas Bradshaw and those Mock-Judges appointed by that pretended Iuncto plainly asserted an Inherent Right in the People of England and the Parliament as their Representatives to call the King to an account and to judge and condemn him as his Superiours you to evade that Doctrine as being expresly condemned both by the first and second Parliaments of K. Charles the Second in the Statutes I have already cited do fall into a much more dangerous Errour for whereas those men supposed it was only in the Parliament and in themselves as their Commoners to judge and depose the King and to put him to death for Tyranny you take this Power out of their hands and place it in every private person which you call the diffusive Body of the People which are not only more fallible but more dangerous Judges as being more apt to errours and mistakes but if you would have better consider'd the words and meaning of that Act I have formerly cited of K. Charles the Second for attainting the Regicides you would there find these words in the Preamble to that Act expresly against you Whereby it is by both Houses of Parliament declared That by the undoubted and Fundamental Laws of this Kingdom neither the Peers of this Realm nor the Commons nor both together in Parliament nor the People collectively or representatively nor any other persons whatsoever ever had have hath or ought to have any Coercive Power over the Persons of the Kings of this Realm Where you see by this Act that all Power of Judging or Deposing the King is expresly renounced not only for the Two Houses of Parliament but for the whole People whether collectively or representatively or for any other persons whatsoever But as for what you say that the King in case of a wilful and constant Violation of the Fundamental Laws of the Kingdom is not then deposed by the People but deposes himself and thereby renounces the Government over them this is but a meer fallacy and an evasion which you and those of your Party have now found out to make the King to have forfeited his Crown without any Judgment of the Parliament or People for who can believe a King will ever depose himself or do any Act besides an evident destruction of the People or a making over his Royal Power or else an express resignation of the Crown whereby he can ever be construed to have parted with it and therefore your Notion is no better than the equivocation of the Jesuits who if they are asked whether it be lawful or not for Subjects to murder their Kings will tell you by no means but it is still with this mental reservation that Princes Excommunicated and Deposed by the Pope do thereby cease to be Kings and therefore their Subjects being thereby discharged of all their Allegiance to them they may not only be resisted but murdered by them as Tyrants and Usurpers Put the People here instead of the Pope and see if the Parallel does not hold exactly But as to your argument from a necessity of resistance to a necessity of laying the King aside because he has forfeited all Rights to the Crown upon his persisting in the violation of the Fundamental Laws and refusing to make the People satisfaction and this upon the account of I know not what original contract for as to the Coronation Oath I see you
if the King had seised all the English Estates without any Legal Tryal as for example in Essex in Barnstable hundred In Burâ de istis Hidis est una de hominibus soris sactis erga Regem and this was the way of expression in the Active Voice we find in Noâ—folk Earl Ralf held such Lands Quando se foris fecit But more particularly in Cambridgeshire in Wardune Hardwin holds of Richard's Ancestors but Ralf Waders held it Die quo deliquiâ— contra Regem all which would never have been inserted could this King have taken away mens Lives and Estates without any colour of Law or Justice and therefore you may find in all the Historians of his time that after the great Plot wherein so many Norman as well as English Lords were concerned and for which Roger Earl of Hereford and Ralph Earl of Norfolk and Suffolk both Normans had conspired with Earl Waltheof and other English Lords to call in the Danes and dispossess the King yet they were convicted by a legal Tryal of their Peers and suffered death for it So that in this he distributed equal Justice to the Normans as well as the English who thereupon forfeited all their Estates and yet notwithstanding this there were some Native Englishmen still lest who tho' they had been in Arms against the King at the beginning of his Reign yet were nevertheless reconciled to him and restored to their Estates as for example Ederic Sirnamed the Forester who as Florence of Worcester tells us was reconciled to King William and accompanied him into Scotland soon after as also Herward the Son of Leofric Lord of Brunne who having lost his Estate and being Out-lawed as Ingulph tells us Took Arms against the King William and joyned himself with those in the Isle of Ely and yet after divers great Battels as well against the King as his Commanders yet at length having obtained his Inheritance by the Kings allowance he finished his days in Peace and now here were two considerable English Barons which still enjoyed their Estates notwithstanding all King William's severity and yet I do believe it will puzzle your Dr. to shew me their names in Doomesday-book so that that Book alone is not it seems a certain Rule to discover what Englishmen were then Barons or Tenants in Capite But admit all this to be true as you your self have represented it can this Kings perjury to his Subjects and breach of all Laws after so many solemn Oaths give him a right as a Conqueror over the Lives and Estates of his English Subjects and that after he had solemnly renounced his Right of Conquest by so many solemn transactions with his Subjects with whom you suppose he still made War after he had for so many years laid down his arms at this rate I cannot tell when subjects may be safe for let Kings that come to a Crown by a mixt title partly by force and partly by right take never so many Oaths to maintain the ancient constitution of the Government together with the Rights and Priviledges of the People 't is but his saying afterwards when he hath sufficient power that they were forced upon him and that he never designed to keep them and his business is done and he may then take away his Subjects Lives and Estates by this pretended right of Conquest whenever he pleases nor does this only extend to himself alone but to all his Heirs and Successors who claim under that Title let them take never so many Coronation Oaths or make never so many Declarations to the contrary since they all claim under the same divine Title of the Sword that is as you will have it receive their Crowns immediately from God and then can never forfeit them let them tyrannise to the utmost degree imaginable for you have provided them with two easie and pleasant excuses that all promises are either broken or kept and Stultám Sacramentum est Frangendum and I cannot but smile to see what an excellent excuse you have found out for all the breach of Oaths and Covenants of those engaged in the late Civil Wars since they might very well plead they had so many Royal Presidents for so doing as sufficiently authorised it unless you will have that to be Perjury in Subjects which must be a Divine Prerogative in Kings And therefore let me tell you I am very glad for your own sake that there is no body here but you and I since all the company would have cryed out and said that this way of arguing were to make open War not only upon all the Laws and Priviledges of this Nation but also to put the King and People in a state of War against each other for if he once declares by such Overt Acts as these of King William's that he will not be tyed neither by his Coronation Oath nor by any Laws he has made I doubt their Oaths of Allegiance will not long bind them neither and they will be very ready to reply that whatever power began and is continued by force and violence may also be cast off by the like means and when a King and his People are brought once into this state it is easie to foretell what will be the event either he must turn out or they must be all Slaves and I wish it was not owing to such Jesuitical flattering Councils as this that the King first lost the Affections of his People and then his Crown since Father Peters himself with the rest of the Jesuits and Arbitrary Ministers of the Cabal could never have instilled worse Principles than these therefore I pray for the future either get better reasons or keep those to your self But God be thanked both King Iames and K. Charles the First had much better thoughts of the Laws and Liberties of the Nation since the former hath solemnly declared in a Preamble to the second Act of Parliament in the first year of his Reign That not only the Royal Prerogative but the Peoples security of their Lands Livings and Priviledges were secured and maintained by the antient fundamental Laws Priviledges and Customs of this Realm and that by the abolishing or altering of them it was impossible but that present confusion will fall upon the whole state and frame of this Kingdom And his Son was of the same opinion in his first declaration at the beginning of the late Wars The Law says he is the Inheritance of every Subject and the only security he can have for his Life or Estate and the which being neglected or disesteemed under what specious shew soever a great measure of infelicity if not irreparable confusion must without doubt fall upon them M. If I had no love at all for the Government and Liberties of my Country as I thank God I have a great affection for both yet should I not have the Impudence to contradict the sense of two Kings and a Parliament neither have I so
I think it had been much better for avoiding all Disputes between the King and Parliament as also for preventing the evil use that has been made of those Presidents to advance the King's Prerogative to what height he pleased rather to have repeal'd all those obsolete Statutes than to have suffered them still to continue But to let you see that the distinction of mala in se and mala prohibita often fails I think I can prove it to you by divers undeniable Instances for there are divers things which are neither mala in se that is neither Natural nor Moral Evils either by Common or Statute Law and yet being declar'd Common Nusances are only mala Politica introducta and are no ways mala in se which the King cannot dispense with at all only because they are prohibited Thus the King cannot dispense with the least Nusance to the High-ways as by laying Dung in them or the like tho men may very well pass through them So likewise by the Statute of the 18 th of King Charles the II. the bringing over of Irish Cattel is declared a publick Nusance and therefore the King cannot dispense with it yet no man will say it was so before that Statute was made and therefore it is very well observ'd by the late chief-Chief-Justice Vaughan in that Case of Thomas and Surrel I now mention'd that publick Nusances are not mala in se but mala Politica introducta and when a thing is said to be prohibited by the Common Law the meaning is no more but that the Ancient Record of such a Prohibition is not to be found M. I grant indeed the Author you have now cited in that Case very well restrains the Kings Prerogative as to things that concern the Right or Property of others and therefore the King cannot pardon the damage done to particular persons where the Suit is only the King 's but for the benefit and safety of a third person the King cannot dispence with the Suit but by consent and agreement of the party concerned And again Penal Laws the breach whereof are to any man's particular damage cannot be dispensed with and the chief-Chief-Justice Herbert himself owns that the King cannot dispense with Laws which vest the least right of property in any of his Subjects F. Very well then we see the Prerogative is bounded where the interest of particular persons is concerned But doth the Law take more care of them than of the publick Interest and the concernment of the whole Nation and this Act against Papists holding of Employments was certainly made pro bono publico to prevent the danger that may happen from Popish Recusants who were before prohibited by divers Statutes to hold any Offices or Employments before they had taken the Oaths of Supremacy and Allegiance Therefore I cannot see how such a Dispensation can be good the breach whereof must tend so much to the danger of the Common-wealth and if according to the Rule you have laid down but now That no Law can be dispensed withal that is for the benefit and safety of a third person or where the breach thereof are to other mens particular damage Now whatsoever is prejudicial to the publick safety of the Common wealth must be also prejudicial to the safety of every private person and the breach thereof does tend to each man's particular damage in the Nation if they are once generally dispensed with M. I grant this is the most natural Objection you have made against the King's power of dispensing in this Case but my Lord chief-Chief-Justice Vaughan in the Case already cited answers this Objection very well No offence says he against a Penal Law could be dispensed with if the reason of not dispensing were because the Offence is contra bonum publicum for all Offences against Penal Laws are such and tho such Laws are pro bono publico they are not Laws pro bono Singulorum populi which are the Laws which the King cannot dispence with but pro bono populi complicati as the King in his discretion shall think fit to order them for the good of the whole In this Nation the Estate of every Pater-â—amilius may be said to be pro bono Communi of his Family which yet is but at his discretion and management of it and they have no interest in it tho they have benefit by it And therefore it is but reasonable that as to the bonum publicum singulorum the King should not dispence because every man hath a particular interest in and they are Judges of it themselves whereas in those Acts that are pro bono populi complicati as these Acts of Sheriffs and for taking the Oaths and Tell are the King is the sole Judge in what cases they concern the publick good of the Common-wealth and where they do not F. I confess this is a subtle piece of learning but pray let us take it a little out of these Latin terms and then the meaning of it is no more than this that the King can do nothing to the prejudice of the People in their private Capacities but he can do what he will with the publick I thought indeed a Prince had been in the first place bound to regard the good of the publick and to take care of the saâ—us populi complicati as you call it that is as they are imbodied together above the private good or interest of particular men which you call bonum singulorum populi which can never be preserved but where the Laws and Statutes ordain'd for the publick benefit and security of the Common Wealth have been generally broken and violated by common and easie Dispensations and have been abused to that degree that we lately saw every Popish Lawyer that was thought any thing fit to be a Judge might sit upon the Bench upon the Lives and Estates of Protestants every Deputy Lieutenant Justice of Peace or other Officers either Civil or Military might be sure of being preferr'd if he either was a Papist or Fanatick every Minister or Parson of a Parish who would renounce the Orders of the Church of England might hold his Living without doing any of the Spiritual Functions and all this by vertue of these dispensations grounded upon the distinction of the publick good of the whole People taken together as different from that of the publick good of each particular person But it seems strange to me that our Ancestors should take such care of the Laws concerning the measures of Bread Drink and Flesh as that the King cannot dispence with them because they respect the common good of the whole People and of every particular person but yet as to the Laws which concern the publick good of the whole Nation in general they were content to leave them to the sole will and pleasure of their Prince No one that reads the History of our Ancestors and the contest they had with their
Act that it is Declaratory of the former Laws of England made in King Henry the VII th and VIII ths and other Kings Reigns whereby the Succession of the Crown had been frequently entail'd upon those who were not the next Heirs by Blood and tho' the Queen be only mentioned in it yet it certainly as much concerns her Successors as all future Parliaments as the Oath of Allegiance in which the Queen is only mentioned does all future Kings and Queens And it is not only made Treason during her Life but also there is a loss of Goods and Chattels to be inflicted on all those who shall maintain after her decease that the Queen and Parliament had not Power to Limit the Succession And if the Parliament in her Reign could do this I desire to know whence it is that the present Parliament may not have the like Power As to what you alledge concerning the Judgment against the two Spencers being revers'd in â—1 th of Richard II. because done whilst Edward II. was still alive I desire you would take notice that this Parliament of Richard the Second was wholly made and pact by King Richard after the Banishment of the Dukes of Lancaster and Norfolk and that as well the Lords as Commons were in such fear of the Arbitrary Power he then exercised that they past whatever he would And in this Parliament it was that the Proceedings against the Chief Justice Tresilian and his fellow Judges who had been Condemned and Executed by Judgment in Parliament in the 11 th of this King were reverst And no prove the Illegality of this Parliament you need but consult the Statute-Book in 1 st of Henry the IV th where you will find one of the first Statutes after his coming to the Crown is to repeal all Acts and Proceedings made in that last Parliament of Richard the II d. M. I doubt this will not do the business for we maintain that Henry the IV th also his Son and Grand-Son were Usurpers and consequently all the Acts made in their Reigns were null and void F. I will grant you for once that Henry the IV th was an Usurper and that Edward the III d. was so also during his Fathers Life-time but then it doth not follow that all the Laws and Statutes made during those Times were null and void since you must needs know the contrary for even in that Parliament of the 21 th of Richard the II d. though 't is true that Judgment against the Spencers was revers'd for the Reason you have given yet did that Repeal extend to no other Statutes but that tho' made in the same Parliament of Edward the III d. whilst his Father was yet living But they are all of them held for good at this day as are also all the Statutes of the three Henry's whom you suppose to be Usurpers which have not been repealed by any subsequent Statutes as I can assure you those of the first of Henry the IV th are not and therefore are good Laws at this day So that nothing can be a plainer proof than this that let the King's Title to the Crown have been it would yet Allegiance was due to them as long as they continued in the Throne Therefore to conclude let me tell you I think it behoves you if you mean to keep that Office you hold under the Government to take the Oath of Allegiance to their present Majesties since you owe your Protection to their Government which certainly deserves a Temporary Allegiance as long as you enjoy the benefit of it And indeed the Oath it self is so loosly worded that methinks any Man may take it without any scruple since it doth no ways declare that the present King and Queen have an Hereditary Right to the Crown but only the Person swears to bear true Allegiance to their Majesties King William and Queen Mary which I think even Strangers and Denizens are bound to take as long as they continue in the Kingdom M. I am sorry you should think me after so long an acquaintance capable of doing any thing against my Conscience for any Worldly advantage whatsoever and therefore I must freely tell you that as for the Imployment I hold I will rather part with it if it were never so great than do any thing against my Conscience and that reputation I have hitherto maintained in the World of being an Honest Man And therefore I cannot take the Oath as a meer Denizen that owes Protection to the present Government Not only because this Oath is inconsistent with that I have already taken but also there is much more required of those that owe a Natural Allegiance to their rightful King than can be required of Strangers till they become Naturaliz'd by Act of Parliament And therefore it is that when any War breaks out between Neighbouring Princes all such Denizens who do not become absolute Subjects of this Kingdom by Naturalization if they will act like Honest Men must look upon themselves as oblig'd either to quit the Kingdom in case a War be declar'd against their natural Prince or at least are oblig'd not to act any thing to his prejudice though they may still inhabit and Traffick here which is a quite different Case from those who are not only born the King's Subjects but have also taken the Oath of Allegiance to him And therefore I can by no means think it Lawful to take this New Oath to King William and Queen Mary though it were required in no higher a sense than as King and Queen de facto since it can no ways consist with that Oath which I have already taken to King Iames and his right Heirs as I shall prove to you another time since it is now very late from the true sense and meaning of those words I will be Faithful and bear true Allegiance c. which can only be sworn to such Kings and Queens who besides a bare Possession have also a Legal and Hereditary Right to the Crown F. I shall be very glad to hear you farther upon this Question for if that can be made out I fear too many of the Clergy as well as Laity by mistaking the true Sense of this Oath have been Forsworn But pray tell me when I shall wait on you and hear what you have further to say upon this Important Subject M. Pray let me see you two or three days hence and then I shall be at leisure in the mean time am your humble Servant F. And I am yours FINIS Bibliothera Politica OR A DISCOURSE By WAY of DIALOGUE On these following Questions I. Whether an Oath of Allegiance may be taken to a King or Queen de facto or for the time being II. What is the Obligation of such an Oath whether to an actual defence of their Title against all Persons whatsoever or else to a bare submission to their Power III. Whether the Bishops who refused to take the Oath of Allegiance
against himself therefore if Richard the IIId had been a King in the sence of this Law we may be sure he would not have had such an infamous censure past upon him after his death Bradshaw and his High Court of Justice were the first that were so hardy as to pronounce a King of England guilty of Treason Fourthly If this notion of a King de facto had been allowed in the 11th of Henry the VIIth the Principal Assistants of Richard the IIId could not have been attainted for Richard being actually in the Throne he was according to your Modern way of arguing Rightful King and consequently the People ought to own him as such and defend him against all opposers and if so certainly they ought not to be condemned as Traytors for doing their duty as we find many of those were who fought for King Richard Fifthly at the end of this Parliament Henry the VIIth granted a General Pardon to the common people who had appeared against him in the behalf of Richard the IIId now Pardon supposes a fault and the breach of a Law which they could not have been charged with if the plea of a King de facto had been warranted by the Constitution F. I must freely tell you that you do not argue so much like a Lawyer in this Argument as you did in your former and you have in that forgot to what end those Statutes you mention were made and what is the purport of them or else some body hath misinformed you for though I grant that all those hard expressions you mention are given of the Kings of the Lancastrian Line in those Statutes of the 1 st of Edward the IVth yet do none of these expressions prove that they were not true and legal Kings in the eye of the Law all the while they Reign'd since divers Persons were attainted for High Treason against them whose attainders were never reversed but stand good to this day as in particular the attainder of the Earls of Kent Salisbury and of Huntingdon who were all attainted by Act of Parliament in the second of Henry the IVth and also the Earl of Northumberland and his Son the Lord Piercy attainted in the 5th of this King all which attainders were never reversed So likewise Richard Earl of Cambridge was found guilty of Treason by his Peers and his Attainder confirmed by Act of Parliament in the second of Henry the Vth and though it is true this Attainder was afterwards reversed in the first of Edward the IVth because the said Richard was not only his Grandfather but was also Condemned for endeavouring to make Edmund Earl of March his Brother-in-law King of England from whose Sister King Edward the IVth claimed the Crown yet the very reversing this Attainder by Act of Parliament declares it to have been good untill that Repeal since it was not declared void all which are plain and evident proofs that Treason may be committed against the King de facto and consequently that Allegiance is also due to him and not to the King de jure I have likewise also proved that all those Statutes which were made by those Kings and are not repealed stand good at this day without any confirmation by King Edward the IVth and this you have no way to answer but by instancing in Patents of Honour or Charters of Priviledges granted by those Kings and confirmed by Edward the IV th from whence you would inferr that some other Acts of like nature were in the same condition which let me tell you in no good argument against them for if you please to read that Statute of Edward the IVth you mention and you will there plainly see that the Grants Patents and other things there confirmed or either judicial Proceedings in the Courts of Justice or else such Charters or Patents which being thought to the prejudice of the Crown were ex abundanti cautela thought necessary to be confirmed by those particular Persons Religious Houses and Corporations who thought themselves concerned nor were all others of like nature who were not so confirmed thereby void since they hold good at this day and if you understand any thing of our Law you cannot but know that no Grants of the King can be made void by implication and to shew you farther that the Letters Patents made by Henry the VIth were looked upon as good in the Reign of Edward the IVth appears good from Bagot's Case in the Year-Book of the ninth of that King where a Patent of Naturalization granted by Henry the VIth though it were not confirmed by that Statute of Edward the IVth was by the greatest part of the Judges held to be good and the reasons there given for it are very remarkable since it was urged by the Council in behalf of the Plaintiff that King Henry was then King in Possession and it behoves that the Realm should have a King and that the Laws should be kept and maintain'd and therefore though he was in only by Usurpation nevertheless every judicial Act done by him concerning Royal Jurisdiction shall hold good and bind the King de jure when he returns c. So likewise a Charter of Pardon of Felony and Licenses of Mortmain shall be good and also the King that now is shall have the advantage of every forfeiture made to the said King Henry c. and mark this farther it is there also held that a Man shall be Arraigned for Treason done against the said King Henry in compassing his death and the reason is very remarkable because the said King indeed was not meerly a Usurper for the Crown was intail'd upon him by Parliament and this being not at all contradicted by the Court is still taken for Law and upon this report and not only upon the Statute of the 11th of Henry the VIIth did my Lord Coke found his Opinion I now mention'd that a King de facto was within the Statute of the 25th of Edward III. and though now it is true that the farther arguing of this Case of Bagots adjourned to a farther day when the Justices did not argue but the Serjeants and Apprentices at Law that is the Baristers as we now call them yet it seems to have been allowed by the whole Court that if King Edward who was then King had made his Charter before he was declared so it should be void at that time for every one who shall make a Charter of Pardon ought to be King in Deed at the time of the making thereof M. Pray Sir give me leave to reply to what you have now said against my first two Arguments before you go on to answer the rest for I confess the Authorities you bring seem so express against me that if I cannot take them off there will be no further need for your answering the rest I will not therefore deny but that all publick Acts and Proceedings at Law which are for the publick good and safety of the
and is by the law of Nature oblig'd to Honour Obey Assist and Support So also is he born a Member of the body Politick and by consequence a Subject to the Sovereign of it and accordingly by the same eternal Law is bound to pay all faithful Service and Obedience to him when he in a capacity to perform them But your next Mistake is yet worse when you confound that common Obligation of a Foreigner or meer Denison to be true and faithful to the Common Wealth wherein he lives with this Natural Allegiance of every English Subject for though I grant the taking the Oath of Allegiance does not inforce any new Obligation upon him that takes it more than he was subject to before yet for all that I think you will not deny but that there is a great deal of difference between that common Obedience or Submission which such a Foreigner pays to the King and his Laws in a Country where he Sojourns and that more perfect Allegiance arising either by Birth or from such a strangers being naturalized and by taking the Oath of Allegiance becoming as true and perfect a Subject as a natural English Man and hence it is that in all Wars declar'd between Neighbouring Princes whatever Subjects of theirs shall presume to stay and reside in each others Dominions after once they are recall'd home may be justly Executed as Traytors when ever they shall be taken and therefore though I grant that every Person now living in England and of ripe Age is oblig'd to obey your King and Queen de facto in all ordinary and lawful things which tend to the publick Benefit and Defence of the Civil Society or Common-weal and which being for the benefit of the King de jure and his leige People it is to be morally suppos'd they have his Tacit consent for what they do as long as it tends only to this end yet does it not therefore follow that the bare protection of this usurpt Government and the enjoyment of the common priviledges of a Subject should give such a King de facto or Government a right of exacting an Oath of Allegiance to them since I have already prov'd from the true signification of being true and faithful as also from the legal signification of the word Allegiance that no true Subject can lawfully take it without renouncing his Allegiance to his natural Prince since not only a bare Neutrality or Obedience in not transgressing the Laws is thereby required of them but also an Active Obedience and Duty in performing the King de Facto's commands and the deâ—ending him when ever there is occasion in his ill-gotten power But since the only difficulty is how a strict observation of this Oath can consist with the quiet and happiness of the Subjects when ever a new Oath of Allegiance comes to be impos'd by the King de facto since the Subjects may be all ruin'd that do not take it if it be once offer'd to them This difficulty might be easily remov'd if the whole Nation would â—lick firmly to the Duty required by their former Oath of Allegiance and resolve never to take a new one for then the numbers of the refusers would be so great as that they would be more than could be made to suffer for their refusing it I speak of such Subjects as are in our case and who are not forced by a Prince who either has the Right or Power of a Conqueror to compel them by force and therefore your instances of the Subjects of the King of Spain or of the Duke of Holstein who were conquer'd or else as good as conquer'd by the power of France and Denmark whereas we are only over-aw'd by an inconsiderable number of Dutch and Germans and might set our selves free if we would give but a vigorous Effort towards it For that King William is a Conqueror over the whole Nation I think you dare not affirm And without he were so he could challenge no right to our Allegiance as such and therefore I must still believe that the Oath of Allegiance I have taken to King Iames and his Heirs is perpetual unless you could show me that their Right is determin'd which you have not done by any thing you have yet said and therefore I cannot be of your Opinion that the bare protection of an usurpt Power can justifie our Swearing Allegiance to it either in Law or Conscience for then all Men had been oblig'd to pay as firm an Allegiance to the Rump Parliament and also to Oliver Cromwell as to King William and Queen Mary since both the former protected the People as much in their Religion Civil Liberties and Properties as the latter I fear will ever do And that the bare protection of a Government does not give it no absolute right to the Allegiance of all those that enjoy their protection I think may be sufficiently prov'd from the instance of a Frenchman or any other Foreigner who though by his living here and enjoying the common protection of the Government I grant he is oblig'd to be obedient to its Laws and is not to Act or Conspire against it yet this does not discharge him from his natural Allegiance which he still owes to his former Prince so as to do any thing which may prejudice that Allegience he owes to him either by Conspiring or Fighting against him And this was solemnly declard to be Law by the Judges of the Kings-Bench in the case of Dr. Story in the 13 th Year of Queen Elizabeth He being a violent Papist fled over into Flanders to the Duke of Alva and there conspiring with him to invade this Kingdom and being afterwards taken and brought over Prisoner was Tryed as a Subject of England though he refused to plead as such because he said he had Sworn Allegiance to the King of Spain notwithstanding which Plea he was Executed as a Traytor as you will find at large in my Lord Chief Justice Dyers's Reports which Judgment is also confirm'd by the Lord Chief Justice Coke in Calvins's Case where he expresly Asserts That a Person born under the Dominion of the King of England owes him perpetual Faith and Allegiance and this by vertue of the Law of Nature because Iura naturalia sunt immutabilia from whence will also appear the falsity of your Conclusion that Oaths of Allegience extend no further then to the King in Possession or to that Government to which we do at present owe our common Protection and therefore that our Law has a much higher consideration of this inherent Allegiâ—nce that belongs to a King de Iure as to his particular Person and his Heirs so that it cannot be indifferently paid to any body else who can by seizing of the Government force us to owe our Protection to them Which appears by what my Lord Coke hath also laid down to have been agreed by all the Judges upon this Oath of Allegiance in Calvins's Case as I
and Rights of Princes and the absolute obedience of Subjects when they saw even the Kings just and lawful Prerogatives in danger to be taken from him by force And altho' they may perhaps stretch several of these points too far yet this may be very excuseable since it is a hard matter to Write so exactly against any error as not to fall into the contrary Extream which nevertheless may sometimes prove useful enough As those who would set a stick straight are forced to bend it to the other side and so these Doctrines which might then be seasonable whilst the People carried on their animosities against the King farther than in Justice they ought have not now the same reason and cogency when this King hath so manifestly endeavoured to pull up the very foundations both of our Religion and Government So that I am perswaded could those good Bishops have lived by the course of Nature to our times and have seen the ill and fatal use hath been made of those Doctrines by those in Power they would either absolutely have renounc'd them or at least have been very cautious how they publish't such doubtful opinions to the World M. I must beg your pardon Sir if I am not of your Opinion for I look upon the absolute subjection of the subjects to the higher or supream Powers to be a thing of such constant and eternal Obligation that no change of times or circumstances can ever dispense with us in or discharge us from it and I am so far from believing that those good Bishops would ever have recanted their opinions in this particular that had thâ—y lived until this time I think they could not without the imputation of time servers have forborn publickly to declare and maintain them for sure we must not deny or lay aside true Principles because of some inconveniences or hardships that may thereby happen to our Religion Persons or Civil Liberties since that were the ready way to give a Licence to the rankest Rebellion and the highest disobedience to the Supream Powers for so the Primitive Christians might have claimed a right to Rebel against the Heathen Emperors pretending they were not bound to submit themselves unto them because they persecuted Gods Church and put the Christians to death for no other reason than that they were such Whereas we may plainly see St. Peter and St. Paul teach us another lesson and command absolute subjection without reserve to the higher Powers which were then the Tyrannical persecuting Emperours and that the Primitive Christians who immediately followed the Apostles understood them in this sense and altho' they had sufficient strength yet thought it unlawful to resist those â—eathen Emperor 's under which they liv'd I refer you to that vast Treasure of Quotations out of the Fathers and Antient Church Historians collected with such Learning and Industry by the Lord Primate Usher in the second Treatise F. It is not my intention Sir at present to fall into a severe examination of so many Texts of Scripture and Quotations of Fathers and other Authors as are made use of by those Learned Men you lately mentioned which require more consideration than our short time will now afford therefore the best method I can propose to you for the true stating and understanding this Noble Controversie were first to look into the Natural state of Mankind after the Fall of Adam and enquire First If God has appointed any kind of Government by Divine Institution before another Secondly If he has not how far Civil power may be lookt upon as from God and in what sense as deriv'd from the people Thirdly Whether Resistance by the Subjects in some Cases be incompatible and absolutely destructive to all Civil Government whatsoever Fourthly Whether such Resistance be absolutely contrary to the Doctrine of Christ contain'd in the Scriptures and that of the Primitive Church pursuant thereunto Fifthly Whether such Resistance be contrary to the Constitution of this Government and the express Laws of the Land Sixthly Whether what has been done by the Prince of Orange and those of the Nobility Gentry c. in pursuance of these Principles has been done according to the Law of Nature the Scriptures and Ancient Constitutions of this Kingdom which material Points if we can once suttle and discover where the Truth lyes it will prove the clearest Comment and best Interpretation of all those places of Scripture and Quotations of Fathers and other Authors which are Cited by Divines or other Writers for the Doctrines of the Divine Institution of Monarchy and the Absolute Subjection of Subjects without any Resistance For when we have once discovered what the Law of Nature or right Reason dictates I think we may rest satisfy'd that that is the true Sense of the Scripture God not having given us any Precept or Command in Moral or Practical things that can be contrary to the Law of Nature or Reason or incompatible with the happiness and welfare of Mankind in this Life as the Reveal'd Will of God does chiefly regard that which is to come M. I do very well approve of your Proposal and therefore pray give me first your Opinion on those Heads that I may see how far I may agree with you and wherein I must differ from you for I do assure you my Intention is not to argue with you meerly for disputes sake but that we may correct the Errors of each others understanding and discover if it be possible where the Truth lyes therefore pray Sir begin first with the Natural state of Mankind but remember to do it like a Christian and one that believes that we are all deriv'd from one first Parents and that we did not at first spring up out of the Earth like Mushrooms or as the Men whom Ovid â—eigns to have been produc'd of the Dragons Teeth Cadmus is feigned to have sown who as soon as they sprung out of the Earth immediately fell a Fighting and Killing each other F. I thank you Sir for your honest and kind advice and shall therefore in the first place suppose that the necessity as well as being of all Civil Government proceeded from the Fall of Adam since if that had not been we had still liv'd as the Poets fancy Men did under the Golden Age without any need of Kings or Common-wealths to make Laws against Oppression Theft Adultery Murder and those other Injuries which Men are now too apt in this lapsed corrupt state to commit against each other much less would there have been any need of Judges or Executioners either to sentence or punish Offenders for if Man had continued as free from Sin as he was in Paradise there could have been no need of a Supream Coercive Power since every Man would have perform'd his Duty towards God and his Neighbour without any punishment or constraint So that all the Authority that can be suppos'd could have been then necessary for the Good and Happiness of Mankind would
with the Power of all such Masters of Families or Freemen taken together may for the sâ—me end viz. the good Government and Peace of â—heir Families and Commonwealths make Laws under no less a Penalty than Death it self against such offences as by the Law of Nature do not deserve it since without such a Power the wickedness of Man being come to this height it is no Family or Commonwealth could be long preserved in Peace or safety And therefore I suppose you will not affirm but that such a Master of a Family may very well inflict any punishment less than Death for such offences which if they find too gentle to amend those crimes they may likewise for the same reason encrease the punishments ordained for it And therefore I yield that tho Theft doth not in its own Nature deserve Death yet if the Master of such a separate Family shall find his Children or Servants to be so addicted to this vice as not to be amended by any less punishments than Death he may for the quiet of his Family make a general Law that whosoever for the future shall commit Theft shall suffer Death and I doubt not but such a Law when promulged may be Lawfully Executed since this Master of a Family is intrusted by God with the sole Power of judging not only what are crimes but also what are fit punishments for them since both are alike necessary for the happiness and preservation of the Family And I so far agree with you that such Masters of Families have as much Power over the Lives of their Children and Servants as the most absolute Monarchs have over their Subjects that is for their common good and no farther And upon the same Principles do all Kings and Common wealths inflict capital punishments for the Transgression of all such Laws as do any way entrench upon the common interest and safety of their People and upon this ground they may justly inflict no-less punishments than Death for Coyning of false Money which is but a sort of Theft from the publick Treasure of the Commonwealth And the same may be said for all capital punishments ordained against other offences of the same Nature M. If Fathers or Masters of Families are endued by God as you your self now own not only with this Power of Life and Death for enormous crimes against the Laws of Nature but also to make new Laws or ordain what punishments they please for such offences as they shall judg destructive to the quiet and happiness of their Families I see no difference notwithstanding what you have hitherto said to the contrary between Oeconomical and Civil Power For if we compare the Natural Rights of a Father or Master with those of a King or Monarch we shall find them all one without any difference at all but only in the latitude or extent of them For as the Father or Master over one Family So a King as a Father or Master over many Families extends his care to Preserve Feed Cloath instruct and Defend the whole Common-wealth his War his Peace his Courts of justice and all his Acts of Soveraignty tend only to preserve and distribute to every Subordinate and inferior Father and his Children their Rights and Priviledges Hath a Monarch Power to make new Laws and appoint what punishments he will to enforce their Observation So also hath a Father of a Family Hath an absolute Prince Power to command or dispose of the Goods and Estates of his Subjects for their common quiet and security So also hath a Father or Master of a Family So that all the Duties of a King are summed up in this Universal Fatherly care of his People and if the Soveraignty be the same I cannot see and Reason why the Rights and Prerogatives of it should not be so too And therefore if non resistance against their Authority be an unseparable Prerogative of Soveraign Power then if a Father or Master of a Family be endued with it he ought no more to be resisted than the most absolute Monarch F. I perceive your Head is very full of this Notion of the idintity of Natural and Civil Power or else you would never insist so long upon it as you do after what I have proved to the contrary And therefore since I see you look upon this as your topping Argument I shall do my endeavour to shew you more plainly the difference between them For tho I grant that such Fathers or Masters of Families as we here treat of are indued by God with divers Powers which are Analogous or perhaps the same with those of a King or Monarch that is of defending their Families as far as they are able from Forreign force and Domestick injuries and of revenging and punishing all offences that may prove prejudicial or destructive to the Peace and Happiness of their Families yet doth it not therefore follow that the Government of private Families and Kingdoms are all one since they differ very much not only in their Institution but also in their End For first the Fatherly Power by the Law of Nature is ordained only for the Generation and Education of the Children till they come to be grown up and his Authority as a Father is ordained by God only for those Ends and therefore this Relation of a Father is so inherent in him that it can never be parted with or assigned over to any other so as to make the Child or Son so Assigned to owe the same duty to him as he did to his Father There is also besides the Power of a Father that of a Master or Head of a Family over his Children and Servants whilst they continue Members or Subjects of it which Power I grant may be assigned or made over to one or more Persons when ever such Master shall think fit to institute a Kingdom or Commonwealth Yet as Dr. Sanderson very well observes this Power of a Master differs very much from that of the Civil Powers of a Kingdom or Commonwealth as well in the object as end of this Power For first the Power of a Father is only over one single Family whereas that of a Commonwealth is over divers Families united under one Civil Head Secondly in respect of the end the Power of the Master is chiefly ordained for his own interest and advantage but that of the Civil Power chiefly respects the good of the whole People or Community Lastly the Power of the Master of the Family is only for the maintaining his own Natural Property in those things which he hath acquired in the State of Nature whereas one great end of Civil Government is to introduce and establish Civil Property in things according to the Laws of the Commonwealth and also to maintain it when so constituted To conclude Fathers beget their Children and Masters acquire to themselves Slaves and Servants but it is from the consent of Fathers or Masters of seperate Families that any sort of Civil
the sole Will of the first Princes in which the People had no hand for in the most Antient Monarchies there was a time when the People of all Countreys were Governed by the Sole Wills of their Princes which by degrees came to be so well known in several instances that inferior Magistrates needed not resort to them in those cases and the People being for a considerable time accustomed to such Usages they grew easie and Familiar to them and so were retained tho the Memory of those Princes who first introduced them was lost and after Kings finding it better to continue what was so received than to run the hazard and trouble of changing them were for their own ease and the good of their Subjects contented they should be still from Age to Age so continued Which custom may hold as well in Laws about Succession as other things And therefore we find that even in those Monarchies where the People have nothing to do in making Laws Women are excluded which could proceed at first from nothing else but the declared Will or Law of the first Monarchs So likewise the Original of the Salique Law is wholly ascribed to Pharamond the first French King and Mariana whom you lately cited tells us that Alphonso King of Arragon made a Law that where Heirs Male were wanting the Sons of a Daughter should be preferred before the Aunt which Law is wholly attributed to the King for he adds presently after Sic saepe ad Regum arbitrium jura regnandi commutantur F. Granting all this true that you have said you cannot but confess that the Laws of God and Nature have established nothing in this matter or else it could not be in the Power of Kings to make or alter Laws concerning the succession as your last Quotation intimates they may yet even in the most absolute Monarchies the Laws about the Succession of the Crown must wholly depend upon the Consent of the People who are to see them observed or else every Monarch might alter these Laws of Succession at his pleasure and the Great Turk or King of France now the Assembly of Estates is lost might leave the Crown to a Daughter if either of them pleased and disinherit the next Heir Male. But as for the Original of this â—alique Law in France you 'l find your self much mistaken if you suppose that that Law was made by the Sole Authority of Pharamond for the Antient French Histories tell us that the Body of Salique Laws which are now extant were made by the Common Consent of the whole Nation of the Francs who committed the drawing of them up to three Judges or Commissioners and which Laws Pharamond did only confirm and any one that will but consult those Histories may see that Kings were so far from having the Sole Legislative Power in their own hand that they were frequently Elected by the Estates nor is it truer that you suppose from Mariana that the Kings of Arragon had Power alone to make Laws it appears quite contrary from the Constitutions of that Kingdom where the King could do nothing of this kind without the Consent of the Estates and was not admitted to the Crown without taking an Oath to the Chief Justice in the name of the People that he would observe the Laws and Constitutions of the Kingdom otherwise that they would not be obliged to obey him But at once to let you see that about the Succession of the Sons or Descendants by Daughters the Cases are much more nice and intricate and that when such Cases happen in limited Monarchies where there is an Assembly of Estates they are the Sole Iudges of such differences may appear by two famous examples in modern History The first is in Scotland about four hundred years ago when after the Death of King Alexander III who died without Issue when two or three several competitors claim'd a Right to the Crown as descended from several Daughters of David Earl of Huntington great Uncle to the last King the Chief of which being Iohn Bayliol and Robert Bâ—uâ—â— the Estates of the Kingdom not being able to decide it they agreed to refer it to Edward I. King of England who adjudged the Crown to Bayliol yet did not this put an end to this great controversie for not long after Bayliol being deposed Bruce revived his Title and the States of Scotland declared him King whose Posterity enjoy it at this day A like Case happened in the last Age in Portugal after the Death of Henry surnamed the Cardinal without Issue when no less than four Eminent Competitors put in their Claim some claiming from the Daughters of Don Durate youngest Brother to the last King Henry But the King of Spain and other Princes as Sons to the Sisters of the said King Henry dying without Issue left ten Governours over the Kingdom to decide together with the Estates the Differences about the Succession who quarrelling among themselves as also with the Estates before it was decided Philip the second King of Spain raised an Army and soon conquered Portugal And yet we have seen in his Grand son's time that the Estates of Portugal declared this Title void and the Crown was settled in the Posterity of the Duke of Braganza who still enjoy it And how much even Kings themselves have attributed to the Authority of the Estates in this matter appears by the League made between Philip the Long King of France and David King of Scots wherein this condition was exprest That if there should happen any Difference about the Succession in either of these Realms he of the two Kings which remained alive should not suffer any to place himself on the Throne but him who should have the Judgment of the Estates on his side and then he should with all his Power oppose him who would after this contest the Crown To conclude I cannot see any means how if such Differences as these had arisen in the first Generation after Adam I say how they could ever have been decided without a Civil War or else leaving the Judgment thereof to the Heads or Fathers of Families that were then in being Which how much it would have differed from the Judgment or Declaration of the States of a Kingdom at this day I leave it to your self to judge M. I shall not trouble my self to determine how far Princes may tye up their own hands in this matter of the Succession and leave it to the States of the Kingdom to limit or determine of it but from the beginning it was not so and therefore give me leave to trace this Paternal Government a little farther For tho' I grant that when Iacob and his twelve Sons went into Egypt together with their Families they exercised a Supreme Patriarchal Jurisdiction which was intermitted because they were in Subjection to a stronger Prince Yet after the return of these Israelites out of Bondage God from a special
Charta for example for the Statute de Tallagio non concedendo or any Liberty we enjoy are not necessary or contrary to the common good he is not tied to observe them And upon this Principle it was that the Judges in the Reign of King Charles the First founded the King's Prerogative for Ship money For they supposed that the King in case of necessity that is for the publick good of the Subjects might lay a Tax upon the Kingdom tho' without Consent of Parliament So that upon this pretence the King being the sole Iudge of the Necessity he might quickly have raised what Taxes and as often as he had pleased But lest our Kings should think themselves too strictly bound by their Coronation Oaths to observe the Laws pray see in the next Paragraph how this Author endeavours to help the King to creep out of that Obligation too Therefore pray read on Others there be that affirm that altho' Laws of themselves do not bind Kings yet the Oaths of Kings at their Coronations tye them to keep all the Laws of their Kingdoms How far this is true let us but examine the Oaths of the Kings of England at their Coronation the words whereof are these Art thou pleased to cause to be administred in all thy Judgments indifferent and upright Justice and to use Discretion with Mercy and Verity Art thou pleased that our upright Laws and Customs be observed and doest thou promise that those shall be protected and maintained by thee These two are the â—rticles of the King's Oath which concern the Laity or Subjects in general to which the King answers affirmatively being first demanded by the Arch-bishop of Canterbury Pleaseth it you to confirm and observe the Laws and Customs of Antient Times granted from God by just and devout Kings unto the English Nation by Oath unto the said People especially the Laws Liberties and Customs granted unto the Clergy and Laity by the Famous King Edward We may observe in these words of the Articles of the Oath that the King is required to observe not all the Laws but only the upright and that with Discretion and Mercy The word upright cannot mean all Laws because in the Oath of Richard the Second I find Evil and Unjust Laws mentioned which the King swears to abolish and in the Old Abridgment of Statutes set forth in King Henry the Eighths days the King is to swear wholy to put out Evil Laws which he cannot do if he be bound to all Laws Now what Laws are Upright and what Evil who shall judge but the King since he swears to administer Upright Iustice with Discretion and Mercy or as Bracton hath it aequitatem praecipiat Misericordiam So that in effect the King doth swear to keep no Laws but such as in his Iudgment are Upright and those not literally always but according to the Equity of his Conscience joyned with Mercy which is properly the Office of a Chancellor rather than of a Iudge And if a King did strictly swear to observe all the Laws he could not without Perjury give his Consent to the Repealing or Abrogating of any Statute by Act of Parliament which would be very mischievous to the State But let it be supposed for truth that Kings do swear to observe all the Laws of their Kingdoms yet no man can think it reason that Kings should be more bound by their voluntary Oaths than common persons are by theirs Now if a private person make a Contract either with Oath or without Oath he is no farther bound than the Equity and Iustice of the Contract tyes him for a Man may have Relief against an unreasonable and unjust Promise if either Deceit or Error Force or Fear induced him thereunto or if it be hurtfuls or grievous in the performance since the Laws in many Cases give the King a Prerogative above common persons I see no reason why he should be denied the Priviledge which the meanest of his Subjects doth enjoy I need not make any long Paraphrase upon these words it is sufficient that the King is here left sole Iudge of what Laws are Upright and what Unjust and consequently what Laws he pleases shall be observed and what not So that no Laws tho' thought never so just and necessary by the Parliament at the time of making of them shall signifie any thing if he thinks sit afterwards to judge otherwise And lest this should not be sufficient he hath found out another way whereby Princes may absolve themselves of this troublesom Obligation of Oaths and therefore he would have them no more bound up than common persons who because they may have Relief in Publick Courts of Justice against an unjust Promise if either Errour Deceit Force or Fear induced them thereunto nay more if it be hurtful or grievous in the performance Kings who have a Prerogative above common persons and who acknowledge no Tribunal above themselves may absolve themselves of their Oaths whenever they think good by saying it was extorted from them by Deceit Force or Fear or if they cannot satisfie themselves without it they might have had formerly the Pope's Dispensation for Money which we read King Iohn and Henry the Third obtained to be absolved of the Oaths they had taken to observe Magna Charta but this Author hath found out a shorter cut and hath made Kings both Judges and Parties and to absolve themselves by a Fundamental Right of Government And what hath proved the Conclusion of such Princes who have taken this Authors Liberty of breaking their Coronation Oath at their pleasure it hath only taught their Subjects to imitate their Example and to make as light of their Oath of Allegiance M. I will not deny but perhaps Sir R F. may have carried the Prerogative in this point a little too far yet that he meant honestly towards the Common weal in all this I pray see the 8th Section of this Chapter where you 'll find these words Many will be ready to say It is a slavish and dangerous Condition to be subject to the Will of any one Mâ—n who is not subject to the Laws But such Men consider not 1. That the Prerogative of a King is to be above all Laws for the good only of them who are under the Laws and to defend the Peoples Liberties as His Majesty graciously affirmed in his Speech after his last Answer to the Petition of Right howsoever some are afraid of the name of Prerogative yet they may assure themselves the Case of Subjects would be desperately miserable without it So that you see here he asserts no Prerogative in the King to be above all Laws but only for the good of the people and to defend their Liberties which I think is a sufficient restraint of Prerogative F. But read a little lower and the People will have no such great cause to thank him as you may see by these words In all Aristocracies the Nobles are above the Laws and
insupportable that it is past all question I grant that the People ought to have Patience and rather suffer many Oppressions and Hardships than put themselves into a State of War So that I think it is Morally impossible that the People can be mistaken in 〈◊〉 evident a Case Nor I believe can you scarce shew me one Example either out of Antient or Modern History of any whole Nation or People or the Major part of them that did ever rise in Arms to cast off either a Foreign or Domestick Yoke which pressed too hard upon them but when they had the most unavoidable and justest causes so to do And I believe I can shew you Ten Examples out of Histories if the Question were to be decided by them for one you can shew me to the Contrary 'T is true some private Men may sometimes make Disturbances or Rebellions but it is commonly to their own Iust Ruine and Perdition for till the Mischief be grown General and the Violence of the Rulers become Evident and their Attempts to Destroy or make Slaves of them are most sensible to all or the greatest part of the People they are commonly more a great deal disposed to Suffer than to Right themselves by Resistance well knowing the Mischiefs of War and how Destructive it will prove not only to their Lives but to the Welfare of their Families and Posterities as well as Private Concerns So that the Example of some particular Injustice Oppression nay or Absolute Ruine of here and there an Unfortunate person moves them not But if once they find their Lives Liberties and Estates Universally Assaulted and about to be taken away who is to be blamed for it The Magistrate or the People for the former might have avoided it if they had pleased either by not urging them to that Extremity at all or at least Redressing those Grievances and Oppressions before they became so General and Insupportable as not to be any longer endured So that tho' I grant the Ambition or Turbulency of private Men have sometimes caused great Disorders in Common-Wealths and Factions have been fatal to States and Kingdoms Yet whether this Mischief hath oftner begun from the People's Wantonness and desire to cast off the Lawful Authority of their Rulers or from the Rulers Insolence and Endeavours to get and Exercise a Tyrannical Arbitrary Power over their People that is whether Oppression or Disobedience gave the first Rise to the Disorder I leave it as I said to Impartial History to Determine But this I am sure of whoever either Ruler or Subject goes about by force to Invade the Rights of either Prince or People and lays a Foundation for overturning the Original Constitution and Frame of any Civil Government he is Guilty of the greatest Crime I think a Man is capable of being to Answer for all those Mischiefs Bloudshed Rapine and Desolations which the breaking to pieces of Governments does bring on a Country And he who doth it is justly to be esteemed a Common Enemy and is to be treated accordingly But as for the Instances you give of Waâ— Tyler and Massianello I grant indeed it may so happen that a Great part of the Common People or Rabble may sometimes upon sudden or false Apprehensions occasioned by some Real Grievances or Oppressions such as are great Taxes or Gabels imposed by the State take up Arms and Rebell against the Supream Powers Yet these Examples do not reach the Question in Hand these Insurections or Rebellions you mention being of a much less number than the whole People or the Major part of them and in which I still include the Nobility and Gentry and other Land-holders as the most considerable part And so those Insurrections were in no wise Iustifiable especially in such a Government as ours where no Man can be Taxed but by his own Consent included in his Representatives whereas all these Rebellions were chiefly if not altogether made by the meaner sort or Scum of the People of one or a few Countries whom I can never allow to make Disturbances since they having very little to lose ought in all Civil Governments whatsoever to be directed and Governed by those in whom the Ballance of the Government in Lands and other Riches doth reside and on whom they chiefly depend for their Protection and Subsistance and consequently ought to make no Alterations in the State without their consent and Approbation But as for your other Instance of the Wars raised in these Three Kingdoms against King Charles the First upon the Pretence of our Religion Liberties and Properties being Invaded it is not proper to be Treated of in this place Since we are now Discoursing of the Power of Princes and the Right of Subjects under Absolute and not limited Monarchies And I grant that some Resistance may be Rebellion under Absolute Monarchies which would not be so under limited ones Yet I do still suppose that it may be Lawful under such limited Monarchy for the People to take up Arms and make Resistance in defence of those Iust Liberties and Priviledges which they Lawfully enjoy either by the Original Constitution of the Government or by Acts of Grace or Concession of the Prince but this requires a more large and accurate Discourse which at another time I am ready to give you Therefore granting at present that those Wars were down Right Rebellion against the King and also that they were made under Pretence of the Principle I now assert yet doth it not at all overthrow the Iustice of that Cause which I now maintain since as I have already more than once intimated the abuse that may be sometimes made of a Natural Right by some Wicked Factious or Hypocritical Men ought not in the least to prejuâ—ice the Exercise of that Right to all the rest of Mankind who may lye under a Real Necessity of making use of it To conclude if the People may nevâ—r be trusted to Iudge when their Liberties and Properties are actually Invaded because they may happen one time or other to be mistaken and so enter into a State of War without cause to the Destruction of Mankind this Argument would serve as well against all Princes and Common-Wealths who being in the State of Nature with each other should never make War for any Cause or Provocation how great soever because being Iudges and Executioners too in their own Case they may more easily happen to be mistaken I suppose you your self will grant that one or a few Men are more apt to be in an Error than 100000 and I have already proved that where the People have never wholly given up their Liberties and Properties unto the Absolute Will of the Supream Powers they are as to that still in a State of Nature and do reserve to themselves a Right of Iudging when they are Violently and Insupportably invaded and Consequently of vindicating themselves from that Oppression And therefore granting what you have said to be true that
a Blessing proper for the Prince of Peace to give But he who instructs Princes to rule as Gods Ministers and Vicegerents and to express a Fatherly Care and Concernment for the Happiness of their Subjects and that teaches Subjects to Reverence and obey their Prince as the Image of God and quietly to submit and yield to his Authority and that inforces these Laws both on Princes and Subjects in the Name and Authority of God and from the Consideration of the future Judgment when Princes who abuse their Power shall give an account of it to their great Master and when Subjects who resist shall receive to themselves Damnation and those who patiently suffer for Gods sake shall have their Injuries redress't and their Obedience rewarded I say such a Person as this takes a more effectual Course to reform the abuses of Civil Power and to preserve good Government in the World than all your wise Politians and State-Menders who think to reform the Government of the World by some State Spells and Charms without reforming those who govern and those who are governed This our Saviour hath done and this is the best thing that could be done nay this was all that he could do in this matter He never usurpt any Civil Power and Authority and therefore could not new model the Governments of the World He never offers any External force and Compulsion to make Men obey his Laws and therefore never forces Princes to rule Well nor Subjects to Obey But he has taken the same care of the Government of the World as he has done of the other Duties of Piety and Vertue that is he has given very good Laws and threatned those who break them with Eternal Punishments and as the Laws and Religion of our Saviour prevail so will the Governments of the World mend without altering the Model and Constitution of them But I come now to those places of Scripture I have to urge against your Opinion F. I pray Sir pardon me if I interrupt you and beg leave to make some Remarks upon this Preface you have now made I will not deny but you have spoken some honest Truths in what you have now said tho' not without a mixture of divers mistakes for tho' I grant that Jesus Christ hath not interposed in new modelling the Governments of the World so he hath likewise given Princes no Authority to alter those which they find ready made and modelled to their hands in those Countries wherein God hath placed them at the helm And tho' you tell me those models of Government are not of such consequence as some men imagine yet I hope you ought to have a better opinion of this of England since it is only to this Frame of Government that you 'll own we owe all our Freedom and Happiness above divers other Nations our Neighbours Since if it were not for our Laws and Original Constitutions to the contrary I do not see why we may not be made as absolute Slaves as any in Turkey when ever the King pleases I grant indeed that it is the Fatherly Care Prudence and Justice of Governours that can make any People Happy But I desire you to shew me how many Governments there are in the World where Princes exercise this Fatherly Care as they ought without any known Laws or where Subjects express a dutiful Love and Obedience to their Governours unless Servile fear must be called so whilst they find themselves miserable Slaves and Beggars I also yield that if Princes and Subjects are good Christians they may be happy under most forms of Government and if not they can be happy under none is true in this Sense if you take Happiness for the hopes of a future Life but otherwise there have been divers Princes who have been very good Christians and yet by carelesness of their Affairs have governed their Subjects very ill and likewise I know some Subjects who have been very Loyal to their Prince and very good Christians and yet have been made very miserable as Witness the Protestants in Hungary and France But as I do not suppose that our Saviour hath given Subjects Liberty to resist Tyrannical Princes upon every slight occasion much less to depose or murder them yet will it not follow that if he hath given Liberty to Subjects to resist in some Cases it would only serve to proclaim an universal License to Seditions and Civil Wars Since I do not suppose such Wars to be lawful but when the People are in as miserable Condition as a State of War can bring them to and if our Saviour had not allowed them this Power no rational Man would think it a Blessing proper for the Prince of Peace to give or to come into the World to introduce Slavery and the Arbitrary Power of the Sword Tho' I grant he instructs Princes to rule as Gods Ministers and Vicegerents and to express a Fatherly Care and Concern for the Happiness of their Subjects and that he likewise teaches Subjects to obey their Princes Yet you know too well how seldom these Instructions have all those good effects either with the Princes or People And therefore as on the People's side besides those Obligations of Conscience you speak of there are likewise ordained temporal Punishments to keep Subjects to their Duty so likewise there is often need of something else besides meer Conscience and honour to keep Princes from Tyrannizing over their Subjects And tho' I suppose the Consideration of a future Judgment may go a great way with some Princes to make them perform that great Trust God hath given them yet pray tell me have you not read if not known some Princes in the World of late times who have either believed no such thing as Eternal Damnation or at least have found a way by Nice Distinctions or Equivocations to evade all Laws Oaths and Promises whatsoever And what satisfaction is it to me or how doth it serve to alleviate my misery When I am made a Slave and a Beggar that those that had the Rule over me will be damned for so doing But you tell me that I must quietly and patiently suffer this for God's sake and that then we shall have our injuries redress'r and Obedience rewarded I grant indeed that a single Person may be rewarded in this kind for preferring the Common Good or Quiet of the Nation before his own Private Interest But that whole Nations and Bodies of People are obliged by the like Rule I utterly deny since I do not find where our Saviour either enjoyns or requires such an absolute Subjection at their Hands and if he doth not it is no better than Will-worship to pay it and therefore it still lies upon you to prove it to me To conclude I think it may be a more effectual Course to preserve the main Ends of Government for the People sometimes to resist the insupportable Tyranny and Violence of the Supream Powers in those Cases
and to render Obedience to Governours altho' they be wicked and wrong doers and in no Case to resist and stand against them Subjects are bound to obey them i. e. Governours as Gods Ministers altho' they be evil not only for fear but also for Conscience sake and here good People let us mark diligently that it is not Lawful for Inferiours and Subjects in any Case to resist and stand against the Superiour Powers for St. Paul's words are plain that whoso withstandeth shall get to themselves Damnation Our Saviour Christ and his Apostles received many and divers Injuries of the unfaithful and wicked men in Authority yet we never read that they or any of them caused any Sedition or Rebellion against Authority we read often that they patiently suffered all Troubles Vexations Slanders Pangs Pains and Death it self obediently without Tumult or Resistance Christ taught us plainly that even the wicked Rulers have their Power and Authority from God and therefore it is not Lawful for their Subjects to withstand them altho' they abuse their Power Let us believe undoubtedly good Christian People that we may not obey Kings if they command us any thing contrary to Gods Commandments in such a Case we ought to say as the Apostle We must rather obey God than Man but nevertheless in that Case we must not in any wise withstand violently or Rebâ—l against Rulers or make any Insurrection Sedition or Tumults either by force of Arms or otherwise against the Anointed of the Lord or any of his appointed Officers but we must in such a Case patiently suffer all Wrongs and Injuries referring the Judgment of our Cause only to God And see part the third of the same Homily Ye have heard before of this Sermon of good order and Obedience manifestly proved both by Scriptures and Examples That all Subjects are bound to obey their Magistrates and for no cause to resist or withstand or rebel or make any Sedition against them yea altho' they be wicked men I could find many more such places in our Homilies but I shall trouble you but with one other Passage out of the second Book of Homilies compiled in the Reign of Queen Elizabeth in which Book the Homily against Willful Rebellion is full to this Purpose In reading the Holy Scriptures we shall find in very many and almost infinite places as well of the Old Testament as of the New that Kings and Princes as well the Evil as the Good do Reign by Gods Ordinance and that Subjects are bound to obey them The farther and farther any Earthly Prince doth swerve from the Example of the Heavenly Government the greater Plague he is of Gods Wrath and Punishment by God's Justice unto the Country and People over whom God for their Sins hath placed such a Prince and Governour What shall Subjects do then What a perillous thing were it to commit to Subject 〈◊〉 Iudgment which Prince is wise and Godly and his Govern◠〈◊〉 good and which otherwise as tho' the Foot must judge of the â—ead a◠〈◊〉 very heinous and which must needs breed Rebâ—â—â—â—â—â— and is not â—â—â—â—llion the greatest of all miscâ—iefâ— A Rebel is worse than the 〈◊〉 Princepunc and Rebellion worse than the worst Government of the worst Prince that hitherto hath been If we will have an Evil Prince when God shall send one taken away and a good one in his Place let us take away our wickedness which provoketh God to place such a one over us Shall the Subjects both by their Wickedness provoke God for their deserved Punishment to give them an undiscreet and Evil Prince and also Râ—bel against him and withal against God who for the Punishment of their Sins did give them such a Prince And this Doctrine is more strictly inforced in the second part of that Homily from the Example of King David in his Carriage towards Saul from which it will appear that they did not suppose David to have used so much as defensive Arms against him as you may see by this Passage in it That when for his most painful true and faithful Service King Saul yet rewarded him not only with great unkindness but also sought his Destruction and Death by all means possible David was fain to save his Life not by Rebellion or any Resistance but by flight and hiding himself from the Kings sight From all which Passages out of the Homilies I think we may draw these plain Conclusions 1. That as well Evil as Good Governours are to be obeyed as God's Ordinance 2. That therefore they are not to be resisted for any cause tho' they abuse their Power never so Tyrannically 3. That the People are not to judge when the Prince thus abuses this Power so as thereby to make any disturbance 4. That not only Offensive but also Defensive Arms if made use of against him are utterly unlawful and also against God's express Command F. I grant these Homilies seem to be very strictly penned against all Resistance and ought to be like all discourses of this Nature Positive and General and perhaps if I were to preach a Sermon to the Common People on this Subject it should be much to the same Purpose and yet for all that I might not believe that it was absolutely unlawful for a whole Nation to defend themselves in Case of such extream Violence or Oppression as I have already supposed for when Preachers speak to Vulgar Auditors they are not bound like Casuists to tell them all the reserved Cases in which they may be dispensed with in their Duty lest they might use this Christian Liberty for a Clos't of Maliciousnâ—ss as the Apostle tells us Thus if a good Preacher makes a Sermon against Stealing or Murder he may very justly tell the People aâ— the Authors of these Homilies do that they ought not in any wise or for any Cause to commit Theft or Murder without telling them all those Cases of meer Necessity in which it may be Lawful to make use of the Goods of another and also to commit Homicide as when a Man is forced to take Victuals tho' without the owners consent for meer Preservation of Life or to kill a Thief or any other Man that assaults him to save his own Life So tho' the Authors of these Books of Homilies do say that we may not in any wise and for no Cause withstand Violently or Resist the Supream Powâ—rs but that we must suffer patiently all Wrongs and Injuries referring the Iudgment only to God yet since they have not particularly put the Case as I have now done viz. what is to be done in Case a whole Nation or People are about to be destroyed ruined or enslaved and made Heathens or Papists by the unjust nay illegal Violence of the Supream Powâ—rs we may rationally suppose that since they were good Men and never intended to urge these things further than what the Scripture and Fathers have already done that they never really intended that a
Second He gives us in his Prologue to his Treatise of the Laws of England this Testimony Leges namque Anglicanas liceâ—â—on Scriptas Leges appellari non videtur absurdum cum boc ipsum Lex sit quod Principi placet Legis habet vigorem â—as Scilicet quas super dubljs in conâ—ilio definiendis Procerum quidem consilio Principis accadente Authoritate constat esse promulgatas So likewise Bracton in his very first Chapter speaks much to the same purpose Cum Legis vigorem habeat quicquid de Consilio de Consâ—nsu Magnatum Reipublicae commâ—ni Sponsione Authoritate Principis prâ—ceâ—â—nte justè fuerit definiâ—um approbatum And also in his third Book Chap. 2. When he speaks of the Antient manner of making Laws in England he says Quae quidem fuerint approbate concensu utentium Sacramento Râ—gum confirmaâ—ae non possunt mutari atâ— destrui fine communi consensu utentium consilio eorum quorum consilio Consensu fuerint promulgata Where you may see these Ancient Authors plainly declare that nothing hath the force of a Law in this Kingdom but what is approved of and consented to by all Orders of Men either by themselves or their Representatives And which is very Remarkable Bracton supposes the King's Authority or Royal Sanction of a Law may precede the Consent of the Great Council which quite destroys that Notion That it is the Kings giving his last Assent which gives it the Essence and Vigour of a Law And with these more Antient Sages of the Law Fortescue also agrees in his 9th Chap. Dâ— Laudibus Legum Angliae where he says Rex Angliae Populum gubernaâ— non mera potesâ—â— to Regid sed politica Populus enim ijs Legibâ— guberâ—â—tur quas ipse fert c. What follows is word for word the same with what Bracton had before in his first Chap and therefore needs not to be Repeated so likewise in the 18 Chap. speaking of the Absolute Legislative Power of Kings in some other Kingdoms he thus proceeds Sed non Sic Angliae Statuta oriri possunt dum nelum Principis voluntate sed toâ—ius Regni Assensu ipsa conduntur quo Populi laesuram nequiunt vel non eorum Commodum procurare But if they after prove inconvenient he immediately adds Concito reformari ipsa possunt sed non fine Communitatis Proterum Regni illius Assensu quali ipsa primitùs emanarunt To which I may also add an Authority out of that Learned Author St. German who in his Dialogue called the Dr. and Student written in Latin in the 10th Chap. Entituled de Sexto fundamento Legis Angliae The Student thus speaks Sexium Fundamentum Legis Angliae sâ—at in diversis Statutis per Dominum Regem Progenitores suos per Dominos spirituales Temporales per Communitatem totius Regni in Parliamentis Editis ubi Lex Rationis Lex Diviâ—a Consuetudines Maxima sive alia fundamenta Legis Anglia prià s Sufficere minimè videbantur Where you see the Legislative Power is here Attributed to the Lords and Commons joyntly with the King And therefore my Lord Coke in his Notes upon the Statute of Westminster I calls it a Compleat Parliament as consisting of all the Estates necessary thereunto for says he a Parliament concerning making or enacting Laws Consists of the King the Lords Spiritual and Temporal and Commons and 〈◊〉 is no Act of Parliament unless it be made by the King Lords and Commons M. I shall not much concern my self with what your Common Lawyers either Ancient or Modern have writ upon this matter much less what Sir Edward Coke a known Enemy to the Kings Prerogative doth maintain Since I have as good or a better Authority than he viz. that of the Year-Book of 22 Ed. 3. Wherein it is expresly declared by divers Earls and Barons and by all the Justices in the Case of one Headlow and his Wife who had a Suit with the King That the King makes the Laws by the Assent of the Lords and Commons and not the Lords and Commons and that He could have no Peer in his own Land and that the King ought not to be Judged by them So that it is I think evident that the Laws are primarily and properly made by the King and that the two Houses have a Cooperation but no Co-ordination of Power with him And though at this Day I grant that Custom hath made the Assent of the Lords and Commons necessary to the passing of all Laws yet it is still the King's word or le Royâ—le veulâ— that makes them so and I much doubt whether even this were part of the Ancient Constitution of this Kingdom or not or proceeded at first from the Gracious Favour and Permission of former Kings as I could shew by the whole Series of Councils in the Saxon times if it were not too tedious to mention them particularly therefore I shall only Select some of the most Remarkable For though I confess the English Saxon Kings performed all Great and Considerable things by the Counsel and Advice of their Bishoâ—s and Noblemen comprehended under the general names of Wits yet you will find by the Titles of almost all the Councils in Spellman Lambard and that these Kings alone made their Laws though by the Advice and Council of their Wittena Gemote which was then no other than the King 's Greater Council Since He called what Great Men and Bishops he pleased to it and omitted the rest And it is never mentioned that they were made by their Consent as necessary thereunto Nay sometimes we find that some of the Ancient Saxon Kings made Laws without the Assent of their Great Council Thus Offâ— King of the Mercians being at Rome out of his Royal Munificence gave to the Support of the People of his Kingdom that should come thither a penny to be paid Yearly for ever out of every Family by all whose Goods in the Fields exceeded the value of Thirty pence And this He made a perpetual Constitution throughout all his Dominions excepting the Lands Conferred upon the Monastery of St. Albans This Imposition and Law continued a long while in force though we find it not Confirmed by any great Councils in the time of his Successors only in the Laws of King Edgar and King Edward it is enjoyned to be paid as the King's Alms which implies it was the King's Gift and that Solely without the consent of a Great Council But to give you a more particular Proof of the Supream and Absolute Power of our Saxon Kings as well during the Heptarchy as afterwards in making ad establishing Laws I shall begin with the first we have extant which are those of Ina King of the West-Saxons who began his Reign Anno. 712. In the Preface to his Laws we find it thus express't which I shall render out of the Saxons Copy Published by
ordinationes totius Regni Angliae fuit mensura Domini Regis composita But farther to convince you that in the Opinion of the Lord Chancellour and those Learned Judges who framed the Writs that were issued out upon any of these Antient Statutes you will find that they who lived in those very times believed that those Statutes were made not by the K. alone but by him and the Common Council of the Kingdom which Writs as you may see in the Register of Writs run thus Rex Vicecom c. Salut Si A. fecerit c. tunc summonias c. B. quod sit coram Iusticiarijs c. Ostensuris quare cum de Communi Concilio Regni Nostri Angliae provisum sit c. as you may see in the Writs Granted upon the Statutes of Magna Charta Marlbridg Merton Glocester c. which have all of them this or the like Recitals cum de Statuto or juxia formam Statuti de Communi Concilio Regni nostri Ang. inde provisi The like Instance I could give you upon the Statute of Marlbridge and divers other Old Statutes in which the King by the Statute it self seems only to have Enacted it and yet you may see that our Sages of the Law were very well Convinced that those Statutes were made not by the King alone but by the whole Common Council of England So that there is no avoiding the Conclusion that the Great Council or Parliament had then a Great Share in the Legislative Power unless you can suppose the King alone to have bin the whole Common-Council of the Kingdom mentioned in these Writs But as for the rest of your Instances of Edw. 2d and Edw. 3ds times I think I can shew you that there is no General Rule to be drawn from some few Examples For though it is very true that the first of Edw. 2d begins thus Our Lord the King hath granted c. Yet it is plain by the Statute it self that it was made in and by Parliament The like I may say of the rest of the Statutes of this King's Reign though they do not all agree in Form as you may see by the Statute of Sheriffs 9th Edw. 2d Our Lord the King by the Assent of the Prelates Earls Barons and other Great Estates hath Ordained and Established And though you would fain draw some mighty Consequence from those Phrases in the Statutes of Edw. 3d. and many of his Successors by the Assent of the Lords and at the Request of the Commons as if the Consent of the latter were not as necessary as the former Yet indeed it is a meer difference in Form and proceeds only from hence that that Estate which found it self grieved always Petitioned the King for Redress and which amounted to as much as a Consent For you shall always find that the Petitioning Part still refers to that Body which was then oppressed without giving any other Assent For certainly their Requesting to have an Act made doth necessarily express their Consent And to prove what I have now said by Examples pray see the 8th of Hen. 6. c. 1. Where it is Recited in the Preamble that our Soveraign Lord the King Willing Graciously to provide for the Security and Quiet of the said Prelates and Clergy at the Supplication of the said Prelates c. and of the Assent of the Great Men and Commons aforesaid hath Ordained and Establishs't where you may see that the Assent of the Prelates is not here at all mentioned because it was needless as being made at their Request And if Praying and Requesting should destroy the Legislative Power I doubt whether Edw. 3d. did not give away his when in his 14th Year in a Statute concerning the Subsidy of Wools The Preamble runs thus nevertheless the King prayeth the Earls Barons and all the Commonalty for the Great Business which he hath in Hand c. that they would grant him some Aid upon Wools Leather c. Where upon Deliberation being bad the said Prelates Barons and Commons of the Kingdom have Granted him 40 Shillings to be taken on every Sack of Wooll But to return to the Matter to let you see that not only the Commons but also the Lords have bin oftentimes Petitioners as well as the Commons Pray see these Authorities The 1 is the Statute of Provisors 27 Edw. 3d. runs thus Our Soveraign Lord the King with the Assent and Prayers of the Great Men and the Commons of the Realm of England hath ordained c. And in the 4th of Ed. 4th i. e. It is Recited thus The King by the Assent Advice Request and Authority of his Lords Spiritual Temporal and Commons c. hath Ordain'd and Establisht in the Preamble of the Statute of 1. Edw. 6. c. 4. it is thus Wherefore the King our Soveraign Lord minding and entirely desiring at the Humble Petition and Suit of the Lords and Commons in this present Parliament Assembled doth Declare Ordain and Enact by the Assent of the Lords Spiritual and Temporal and the Commons in this present Parliament Assembled and by the Authority of the same And that the Assent of the Commons was always necessary to the making of Laws not as bare Petitioners but as Assenters too as well as the Lords appears by this Protestation or Declaration of the Commons to Edw. 3d. which is still to be found in the Parliament Rolls of 51. of that King which I shall read to you in English out of the Law-French which perhaps you are not used to Also the said Commons do Petition our Lord the King that no Statute or Ordinance may be made or Granted at the Petition of the Clergy unless it be by the Assent of the Commons Neither that the said Commons should be obliged by any Constitution which they may make for their Advantage without the Assent os the said Commons For they will not be obliged to any of your viz. the Kings Statutes or Ordinances made without their Assent M. I do not deny but that the Assent of the Commons as well as Lords hath bin allowed as necessary for a long time But whether the Consent of either at first was so is a great doubt since we find the first Ancient Statutes as I have already observed to have bin made wholy by the King alone And I think the most Ancient Laws are the best Interpreters of the Original Legislative Power And thence it appears that many Provisions Ordinances and Proclamations made heretofore out of Parliament have bin always acknowledged for Laws and Statutes We have among the Printed Statutes to this purpose one called the Statute of Ireland Dated at Westminster the 9th of February 14 Hen. 3d. Which is nothing but a Letter of the King to Gerard Fitz Maurice Justiciar of Ireland The Explanations of the Statute of Gloucester made by the King and his Iustices only were received always for Statutes and are still printed with them Also the Statute made
well gather that this was none of the King 's Ordinary or Privy Council or else to what purpose was this Cause adjourned to the meeting of the next Parliament Since if it had been to be determined by the Privy Council it might have been done forthwith I shall give you but one Instance more out of the Close Roll of the 41 of this King wherein a Cause between Elizabeth Wife of Nicholas D'Audley and Iames D'Audley in a Controversie between them touching certain Lands contained in in the Covenants of her Marriage is said to have been adjudged Devant Son Conseil c'est a scavoir Chanceller Thresorier Iustices Aâ—ires Sages assemblez en la Chambre des Etoiles i. e. Before his Council viz. the Chancellor Treasurer Justices and other wise men assembled in the Star-Chamber So that when any thing in our old Statutes is said to be Ordained by the King and his Council it is always to be understood not as if this Council were a fourth Estate whose Assâ—nt or Advice was as necessary to the making of Laws as that of the Lordi Spiritual Temporal and Commons for then they would have had the same Power still but only according to the Custom of those times when most Acts of Parliament were drawn by them and that the King past none without their advice it was then said to be done by the King and his Council viz. in Parliament and I conceive the Power of this Council continued till the beginning of the Reign of Henry the Seventh when this Court being by Act of Parliament annexed to that of the Star-Chamber where also this Council of the King used to meet before as appears by the Case I have last cited and having afterwards only to do with Criminal Causes and that as well out of as in Parliament and that King Hen. 7 th not caring to exercise his Iudicial Power in private Causes as his Predecessors had done or to make use of their advice either in the drawing or passing of Bills which now began to be drawn by Committees in either house wherein those Bills were preferred this Council came by degrees to grow quite out of use as it is at this day I hope you will pardon this long digression which I have been drawn into to rectifie a Common mistake of the Gentlemen of your opinion who when they find any thing in our ancient Statutes or Records wherein the King's Council is mentioned presently entertain strange fancies of the Antiquity and Authority of the Privy Council M. I am so far from thinking this Discourse you have now made to be at all tedious that I give you many thanks for it since it gives me a light into many things which I confess I did not know before and I shall better consider the Authorities you have now given me and if I find they will hold shall come over to your opinion in that point tho I am not as yet satisfied as to the Legistative Power of the two Houses and therefore pray proceed to answer the rest of the Presidents I have brought on that Subject F. I shall readily comply with your Commands and therefore to come to those Statutes of the 15 th and 20 th of Edw. 3. which you suppose to have been repealed by that King without the Consent of the Lords and Commonâ— I grant indeed that the Statutes you mention were intended to be repealâ—d by the King without Assent of Parliament Yet was this not done by himself and his Council alone as you suppose but by a Council of Earls Barons and Commons which the Kings of England in those days were wont to call upon emergent occasions and for the doing of that which they thought Parliaments could not so speedily perform as in this pretended repeal of the Statute you mention And tho I grant this was a great brâ—â—ch upon the fundamental Constitutions of the Kingdom yet that it was done in such a Great Council as I have now mentioned I refer you to this pretended Statute its self and to your recital of it And that the King often called such Great Councils appears by an agreement of Exchange made for the Castle of Berwick between King Hen. IV. in the fifth year of his Reign and the Earl of Northumberland where the King promiseth to deliver to the Earl Lands and Tenements to the value of the Castle by these words which I shall render out of French from the Original which remains in the Tower By the advice and â—ssent of the Estates of the Realm and of his Parliament so that the Parliamâ—nt happen before the Feast of St. Lucie otherwise by the Assent of his Great Council and other Estates of his said Realm which the King will cause to be assembled before the said Feast in case the Parliament do not happen c. And yet notwithstanding this high strain of Prerogative King Edw. III. himself was not satisfied with this repeal of those Statutes you have mentioned but in the next Parliament held in his 17 th year he procured a formal and Legal repeal of them as by the Parliament Rolls of that year remaining in the Tower doth plainly appear And which I could give you at large did I not fear to be too tedâ—ous But I think it fit to let you know this because most ordinary Readers seeing no more appear in Print in our Statute Books are apt to imagin that the Kings of England in those days did often take upon them without Authority of Parliament to make and repeal Laws But as for your next Instance of the Statute of Edw. III. it is much weaker since tho I confess that in the Preface to these Acts there is only mention of the Great Men or Grantz as it is in our old French and other wise Men of our Council yet I shall prove at another time that under this word Grantz were meant the Lords in Parliament as by the wise men of our Council are understood the Commons And therefore it seems most reasonable to interpret the sense of many ancient Statutes wherein the King alone is said to make and ordain Laws by those later or more modern ones wherein the King by the Consent of the Lords and Commons or by Authority of Parliament is said to have Ordained them Since the true Stile and Meaning of ancient Laws which were penned with the greatest brevity ought to be still Interpreted by the Modern ones and not the Modern ones by the Ancient So that I am of the Learned Mr. Lambardâ— opinion who in his Arcbâ—ion or Discourse upon the High Courts of Justice in England expressly tells us That whether the Laws are said to be made by the King and his Wise Men or by the King and his Council or his Common Council or by the King his Earls Barons and other Wise Men or after such other like Phrases whereof you meet with many in the Volumes of Parliaments It comes all to this one
Point namely That the King his Nobility and Commons did Ordain and Enact the same And which is more if you shall find any Acts of Parliament seeming to pass under the Name and Authority of the King only as there be some that have that shew indeed yet you must not by and by judge that it was established without the Assent of the other Estates As for the rest of your Insinuations rather than Arguments against the Antiquity of those Expressions Be it Enacted by Authority of Parliament or Be it Enacted by the King Lords and Commons which bear so hard upon you to prove that these last have a share in the Legislative that they were introduced in the Reigns of Henry VI. and VII two Usurpers and but in the Nonage of the former I think I shall be able to shew you that you are very much out in your account for I will shew you much ancienter Authorities wherein the same words or others equivalent have been used in our ancient Statutes And first pray call to mind the Statute of Measures already recited where it is said That by the Consent of the whole Realm of England the Measure of our Soveraign Lord the King was thus made c. which certainly must mean the Assent of all the Estates assembled in Parliament And my Lord Coâ—e tells us in his Third Institutes of an ancienter Record that he had seen of the 7 th of this King wherein it was Enacted by the King the Lords Spiritual Temporal and Commons But since I have given you Presidents enough of Statutes which are said to be made or ordained by the King with the Assent of Lords Spiritual and Temporal and Commons I will shew you one where the King is not at all mentioned and that is in Rastal's Statutes 4 Hen. 4 cap. 24. concerning Aulnage of Clothes wherein it is said to be ordained and accorded by the said Parliament without any mention at all of the King And to let you see that these fatal words you except against were in use before the Reign of Hen. 6. pray see 9 Hen. 5. cap. 4. concerning the Misprision of Clerkâ— in writing which runs thus The King hath now declared and ordained by Authority of this Present Parliament that the Iustices c. which must certainly refer to the Lords and Commons unless you can make the King alone to carry the whole Parliament in his own person But whereas that Phrase had began from Vsurpation it would have been first found in the Statutes of Henry the 4 th But to let you see that Edward the 4 th tho no Usurper yet did not think that these words did abate any thing of his Royal Prerogative pray see in the 4 th of that King Cap. 1. wherein it is recited That the King by the advice assenâ— request and authority of the Lords Spiritual and Temporall and Commons in Parliament assembled hath ordained and established But that by Assent of Parliament and by Authority of Parliament is all one and the same since the Assent of Parliament makes its Authority Pray see the express Judgment in this point of the Lord Chief Justice Crew and Justice Doderidge given in the Great case of the Earldom of Oxford reported in Judge Iokes's Reports To conclude tho I do not deny His Majesties Negative Vote to all Acts of Parliament yet this Prerogative can be concluded only from his giving his last Assent to a Law for when a Bill begins from himself the two Houses have likewise a Negative upon him which is evident in an Act of Pardon which proceeds from the King first and sent down to the Parliament this neither the Lords nor Commons can add or alter one tittlâ— to yet may they notwithstanding his prior Asent refuse the whole Bill if they please tho already past under the Great Seal And tho I likewise grant that it is the Le Roy le Veult that by yielding the highest and last Assent gives the Enacting force to the Law and thus the King may in a Logical sense be said thereby to make the Laws according to that known Maxim Quod dat formam dat esse â—ei Yet this does not hinder but in a Legal sense according to the express declaration of our old Lawyers and Acts of Parliament the Laws owe their obligation to the joint consent of King and Parliament and his giving his last assent or form to the Law no more proves his sole Legislative Power than it would do that of the Lords or Commons if either of them by the Constitution of the Government were to give their Asents last thereunto So that I think upon the whole matter no man can reasonably deny but that Legally the Two Houses of Parliament have also their share not only in framing but Enacting of all Bills that shall pass for otherwise they would signifie no more than the Committee of Estates in Scotland or the King and Council of England in relation to Ireland the former of which draws up all Bills that are to pass in the Parliament of that Kingdom and the latter must approve or reject all Bills that shall pass in the Parliament of Ireland Whereas the Authority of our Parliament consists in their consenting to and Enacting together with the King all Statutes whatsoever And this Distinction I think may very well reconcile Bracton with Fortescue the former of which says Quod leges ligant suum Lâ—torem meaning the King and the latter in the place I have already cited affirms that the People are governed by those Laws quas ipse feâ—t which they themselves make and this I think is to ascribe to the King as much Power as is requisite to a Civil Soveraign and yet to leave a sufficient share to the People to secure themselves from Tyranny M. I must beg your pardon if I cannot be satisfied with your division of the Legislative Power beiween the King and the Two Houses of Parliament since it is against the sense of our old Lawyers Glanville and Bracton who as you your self confess make the King the Sole Legislator And tho I confess Fortescue gives the People a share in it yet he is but a Modern Author in comparison of the other two and writ to support the Vsurped Title of Henry the Sixth So that I cannot comprehend how the Two Houses can have any share properly speaking in the Legislative Power without falling into that old error of making the King one of the three Estates and so co-ordinate with the other two whereas if the King be a Monarch that signifies in Greek the Government of one person whereas by giving the Two Houses a part in the Legislative you divide it into three several shares Whereas there is so close a conjunction between all the Parts of Soveraign Power that the one cannot be separated from the other but it will destroy the form of the Government and only set up an Irregular Commonwealth in its place
nor a Iurisdiction it is by this very Body acknowledged to be wholy derived from him Nor have you yet answered this Argument nor I believe can you do it F. As for your History which you promise to give me of the absolute Power of our first Saxon and Norman Kings I desire you to defer the speaking of it till another time it being now late Yet I do not doubt but to prove that what I assert concerning the limited Power of our Kings even by the Original Constitution of the Government is no Romance but true History Nor are the Reasons that you have now urged to the contrary prevalent enough with me to alter my Opinion for I think I am able to prove somewhat more than I but now Asserted viz. that the Wittena Gâ—mote or Great Council met constantly once a year or oftner when need was under the Saxon Kings without any Summons from them as when we come to the particular History of this matter I shall shew you more at large And also that for the first Hundred Years after the Coming in of the Normans the Great Council or Parliament used to meet of Course at the King's Court at two or three of the Great Feasts of the Year without any other notice by Writ or Summons The first mention we find of such Writs being in King Iohn's Magna Charta But that when these Assemblies became less frequent by reason of the King ' Discontinuing of them and because of the case the Nobility and People found in being Discharged from so constant and chargeable an Attendance they came to be so discontinued at last that as you your self confess there were fain to be Express Laws made for their more frequent Meetings and though the Power of Summoning them was I confess left wholy in the King and that he did very often Dispense with the Calling them according to the intent of those Statutes Yet doth not this prove any Legal Prerogative in him so to do but that it was a High Breach of Trust and also of his Coronation Oath when he thus omitted to call them Since our Kings were formerly Sworn to keep and observe those Laws quas vulgus elegerit which the People either have or should chuse construe it which way you will though I own in French it is in the Preterit auera èleu should have chosen And as it is an Old Maxim à Facto ad Ius non valet consequentia So it is no true way of proof to argue from an illegal Exercise or abuse of Power to a Legal Right or Prerogative And though the Parliament might not always actually question or find fault with their Kings for thus neglecting to call them because perhaps the Publick Sustained no present Damage from it and that they thereby escaped the giving the King those Taxes and Aids which he usually demanded of them at such times Yet when the long Forbearance of Omissions of Parliaments became a general Grievance by reason of those Encroachments that the King and Great Men often made upon the People's Liberties in those Intervals and that the King lookt upon it as a Piece of his Prerogative to abuse this Trust as far as He pleased I grant then and not till then there was need of a Law that there should be a Parliament every Year and that in Case of any failure of Summons on the Kings part the People might proceed to Election without it which was not so properly a New Law as the Restoration of the Old Constitution since Anciently the People met the King at these Great Councils at such Set times of the Year as I shall prove when we come to the History of matter of Fact which I am not at all affraid to be judged by and then also I shall shew you that though the King is now Principium Caput Finis Parliamenti that is the Parliament properly so called yet that the Great Council or Assembly of the Estates had from the first Institution of the Government a Power of Assembling themselves in cases of necessity such as are Doubtful or Disputed Titles to the Crown or the absence of the Successor and then they have often met by their own inherent Authority and have either Setled the Succession of the Crown as they thought good or else have Recognized an Hereditary Right in the Absence of the Heir as when King Edw. 1st was absent being in his return from the Holy Land Or else to Depose the King's Iusticiar as in the Case of William Longchamp Bishop of Ely who was left Chief Iusticiar by King Richard 1st when he went into the Holy Land And though I own that some High-Spirited and yet Well-beloved Princes might take upon them a Power of Rebuking the House of Commons when they meddled with Business they did 〈◊〉 like Yet this Submission proceeded from the Great Râ—verence they had for their Persons and confidence they placed in their Government Since we find that only these Princes that were Wise and Successful in their Government and so became the Darlings of their People Such as Queen Elizabeth and King Edward 3d. for as for Henry 8th I remember no Instance of it who durst venture to Act thus As for the desire of Freedom of Speech it is but a Compliment for how can the Grievances of the Kingdom be Redressed without speaking freely of them And if one Great End of Parliament was to Redress these Grievances it were altogether in vain for them to Attempt any thing in this Kind if the King could Brow-beat them from it when ever he pleased But Bract on doth not only tell us Rex habet Superiorem Legem Curiam suam Baronum c. in the Place I have already Cited but the Old Book called the Mirrour of Iustices also teaches us the same Lesson in his 2d â—ection where speaking of the King's Power he tells us that though the King can have no Peer in the Land yet nevertheless if by his own Wrong he offends against any of his People none of those that judge for him can be both Iudge and Party It is therefore agreeable to Right that the King should have Companions to Hear and Determine in Parliaments all Writs and Complaints concerning the Wrongs of the King Queen and their Children and of them especially of whose Wrongs they could not otherwise have Common Right These Companions are therefore called Counts after the Latin Comites c. Not can I think that any King would have Erected a Court to have Redressed the Wrongs done by himself or his Family whether he would or not But as for your main Argument from the words of the Statutes of King Edw. 6. and Queen Eliz. That all Authority and Iurisdiction as well Spiritual as Temporal is derived from the King I do own it true that is if meant of all Derivative Authority such as that of all inferior Counts as well Civil as Ecclesiastical For I suppose you your self
Indeed if the words had been Milites libere Tâ—nâ—ntes qui de Rege tenuerunt in Capite you had said somewhat but otherwise it is all meer supposition without any ground But pray go on to the last woâ—ds in this Charter omnes de Regno nostro what can they mean â—ut that all the Freemen of the Kingdom gave this Fifteenth by their Lawful Representative M. If you do not like our sense of these words Milites and Libere Terentes I cannot help it nor shall I dispute them longer with you but as for this last Clause in the Charter omnes de Regno it only means all these who were Tenants in Capite in general in the same sense as when our ancient Historians mention Regnum Sâ—cerdotium by Regnum is to be understood both the Temporal and Spiritual Barons great and small the Kings Justices or any other that exercited any share or Ministerial part of the Government as perhaps all those diâ— one way or other by coming to our great Councils or Parliaments c. all which is evident from the words of the Quadri partiâ—e History concerning Thomâ—s Becket thus Rex apud Clarendun Regnum convo aâ— universum Quò com venisâ— ut Prasules Proceres c. i. e. the whole Baronage called together by the Kings Writ or a full meeting of the Spiritual and Temporal Barons both great and small I pray also remember that passage you your self made use of but now out of Mat. Paris whereby you would prove that the Common Council of the whole Kingdom was distinct from that of the Tenants in Capite because that after the Curia held at Christmass the King immediately issued out his Writs commanding omnibus ad Regnum spectantibus to appear at London and yet you see there are no more mentioned to be Summoned than the Archbishops Bishops Abbots Priors Earls and Barons So that we may hence learn the true meaning of these words omnes de Regno at the end of this Charter for these omnes de Regno were the same with the omnes ad Regnum spectantes in Mat. Paris the Regnum or Government the Communitas Regni the totalis Regni universitas the insluita nobilium multitudo and also gives us the meaning of those words omnes alii de Regno in the close Roll of the 19 th Henry the Third to the Sheriff of Somersershie Scias quod Comites Barones omnes alii de toto Regno nostro c. Concesserunt c. Which are further explained by a Writ in the same Roll about the same business directed to the Sheriff of Sussex which you have likewise cited beginning thus Sciatis quod Arohiepiscopi Episcopi Abbates Priores Comites Barones omnes alii de Regno nostro Angliae qui de nobis tenent in Capire nobis concesserunt c. Here the omnes alii de Regno were the omnes qui de nobis tâ—nent in Capite which were then all the Regnum or Communitas Regni So likewise it may be farther proved from a Record of the 48 th of Henry the Third Rex omnibus c. cum venerabiles Patres G. E. Eborum Archiepiscopus c. alii Praelati Magnates Milites libere Tenentes omnes alii de Regno nobis nuper in Articulo necessitatiâ— servitium fecerunt sulisidium c. And I may also put you in mind of the Writ I cited but now directed Archiepiscopis Episcopis c. Comitibus Baronibus Militibus omnibus aliis de Comiâ—aru Kanciae c. for the Levving of forty Shillings upon every Knights hee in that Country Now this Writ could not be directed to all the Men in Kent but to all such as paid Scutage for not a fortieth part of them were Tenants in Capite or Military Service So that these omnes alii de Regno and Omnes alii Comitatus were the same one with the other and otherwise it could not be for by Omnes de Regno or Omnes alii de Regno the Inhabitants in general could not be understood for they never were Summoned no not the Hundredth part of them to meet in Great Councils for 't was impossible they should and perhaps not above a fourth part of the Kingdom paid to this Fifteenth if we consider how many Servants Villainâ— Bondmen and many such People there were than in the Nation that paid nothing F. You have taken a great deal of pains to perplex and darken words in themselves very clear and perspicuous for methinks it is a strange piece of confidence in your Doctor when the Charter says expresily That Omnes dâ— Regno all the Freemen of the Kingdom gave this 15th to restrain this Act only to the Tenants in Capite who were but a few in comparison to the whole Kingdom this is indeed to make words signifie any thing he fancies But to answer your Authorities which are founded all upon false suppositions without any proof As to your Authority from the Quadrilogus History of Thomas Bâ—ecket it is true that the Praesules and Prâ—ceres are there called Regnum the Kingdom but I have already proved at our last Meeting that this word Proceres was of so comprehensive signification that it took in all the Principal Men of the Kingdom as well those that were Lords as those that were not so that the chief Citizens and Magistrates of our Cities and great Towns are often stiled Proceres Magnates Civitatum in our ancient Historians and Records and certainly the great Free-holders or Knights of Shires did much more justly deserve that Title As for the other passage out of Mat. Paris where the Bishops Abbots Earls and Barons are called omnes ad Regnum spectantes this is but a general way of expression in this Author and proves nothing For either the word Barones takes in all the smaller Tenants in Capite or it does not if the latter then this Author does not exactly recite all the Orders of Men whom your self must acknowledge to have appeared there since the great Barons alone could never make this infinita Nobilium multitudo mentioned in this Author if the former then it is plain that he thereby comprehended more then those who were really Barons Since it is certain that the smaller Tenants in Capite were not so nor are so much as called so in King Iohn's Charter and then make the most of this word Barones it may in a large and common acceptation take in all the chief Free-holders or Lords of Mannors which as I have already proved were often called Barons in our ancient Historians and Laws of the first Norman Kings and Mr. Cambden tells us that under the word Baronagium omnes Regni ordines continarentur This I say supposing that by this infinita Nobilium multitudo is to be understood all the cheif Gentry or Free-holders of England called often Nobilitas Angliae as I have already made
to Parliament no otherwise but as 〈◊〉 in Capitâ— for tho' the said Petition reâ—ues that they hold the said Town of the K. in Capite yet they do not likewise say that they claim'th to appear there only by that Tenure for then they should have reâ—ired that they sicut caeteri Burgenses Tenentes in Capite and not sicut caeteri Burgenses Regni ad Parliamenti Regis venirâ— debeant And tho' it is true they set forth that they appeared there for all Services yet do they not say that their Tenure in Capitâ— was the only Cause of their appearance in Parliam since divers Towns and Burrought of the Kingdom which held not in Capite at all had the like Priviledge before of which I can give you divers Instances which I shall read to you ouâ— of this Note which a Learâ—ed Friend of mine slace deceaâ—'d hath taken out of the Rolls in the Tower tho' when he sent it me he thorough hast 〈◊〉 hath forgot to set down the number of the Roll to most of such Burroughs who never held in Capite and yet have always sent Burgesses to Parliament by Prescription as first the Burrough these of Arundel which always held of the Earls and never of the King being granted by Henry I. To Hugh Montgomery Earl of Arundel Secondly The City of Bath appears to hold of the Bishop of Bath and Wells Thirdly The City of Wells it self which always held of the Bishop and never of the King and is therefore called Villa Episcopi in all publick Writings belonging to that Church and was made a Free Burrough in the Third of King Iohn Fourthly Beverly was made a Free Burrough by Thurston Arch-Bishop of York which was confirmed by King Henry III. Hiâ—â—hly Badmin which always held of the Earls of Cornwall Sixthly Bridgwater for King Iohn granted it to William Brewer Quod Brugwater sit liber Burgus Seventhly Coventry which was always held of the Earls of Chester and pleaded in the Reign of Edw. I. to have never been taxed with the King's Demesnes but with the Body of the County Eighthly Bishop Linne for King Iohn granted to Iohn Bishop of Norwich Quod Burgus de Lenna sit Liber Burgus inperpetuum all which by the Writs we have left us sent Burgesses to Parliament as early as any that held in Capite These I give you only for a Taste but I doubt not but if I had time I could give you three times as many especially in Cornwall where the Burroughs did almost all hold of the Earl of Cornwall and not of the King But besides the Doctors errour in supposing that no ancient Cities or Burroughs had any Right of sending Members to Parliament but only as they held of the King in Capite his mistake is yet much more gross in his construing those remarkable words in the King's Answer to the Burgesses of St. Albans Et tunc fiat eis super hoc Iustitia vocatis evocandis si necesse fuerit Thus And then let them have Iustice in this matter and such as have been called may be called if there be necessity Upon which words you have also from the Dr. put this pleasant gloss Hence 't is clear the King and his Council were equally judges when it was necessary to call them and for them to come as they were of their Rights and Pretences to come But I must needs tell you â— think nothing can be more absurd and contrary to the genuine sense of this Record than the Doctor 's construction who will needs have the words evocatis evocandis only to mean a Calling or Summoning to Parliament which is quite contrary to the true sense of the King's Answer to this Petition for if that had been his meaning that those only should be summoned to Parliament whom the King pleased to call to what purpose were these words scrutentur Rotuli c. de Cancell si temporibus Progenitorum Regis Burgenses praedicti solebant venire vel non For if their coming to Parliament had been a matter of meer grace and favour and not of right so wholly left in the King's breast whether they should come or not it was in vain for him to command the Rolls of Chancery to be searched whether the said Burgesses us'd to come to Parliament or not in the times of his Progenitors or if it had not been a matter of right why should it be here said that upon search of the Rolls Tunc fiat Iustitia let Justice be done iâ— there never was such a right of Prescription by which they claimed But I much wonder that the Dr. so great a Critick in Records should ever construe them evocatis evocandis a summoning or calling to Parliament and I desire you would shew me in what Parliament Roll or Ancient Record you can find evecaâ—â— ad Parliamentum to summon to Parliament But I more admire that you who are a profest Civilian should no better understand the sense of your own Terms whereas if you would have but consulted any Civil Law Dictionary you might have found evocaâ—e Testes always signifies to summon Wiâ—nesses and I can shew you by twenty Precedents both from our Common Law Records as well as your Canon Law Forms that evocatis eâ—ocandis does always signifie the summoning such Witnesses as are to be summon'd in a Cause and in this sense it is to be understood in this Record that not only the Rolls should be search'd but also Witnesses summon'd to prove their Claim if any dispute or doubt should arise about the matter of fact M. I shall no longer contend with you about the genuine sense of these last words since perhaps you may be in the right but yet for all that it does not appear that the King and his Council did by this Answer allow this Petition of the Town of St. Albans to be true that they had sent Burgesses to Parliament in the time of his Predecessors much less that any other City of Burrough in England were then allowed such a right by Prescription F. I grant indeed that this Petition doth not absolutely allow the matter of fact as it concerns the matter in dispute between them and the Abbot to be true as it is there set forth neither yet does it condemn it for false but whether it were true or false it matters not for both the Petition and the Answer do sufficiently prove the Point for which we make use of it viz that it was then received for a general Custom or Law time out of mind that the Cities and Burroughs had sent Members to Parliament according as in the Petition is set forth otherwise it can scarce be supposed much less believed that the Burgesses of St. Albans or the Pen-man of this Petition should dare to tell the King and his Learned Council in the face of the Parliament so great and ridiculous a Novelty to be recorded to Posterity as that they and their Predecessors
you quote it yet I much doubt whether it was of any validity being no doubt drawn up by the Barons then in Arms and which the King durst not at that time refuse and so he was indeed under a kind of duresâ— when he did it And besides pray mark the conclusion of this Clause this Resistance was to be Salva Persona nostra Reginae nostrae Liberorum nostrorum cum fuerit emendatum intendent nos sicut prius fecerunt Now how this Security here reserved for the King's Person could consist with that open War the Barons made afterwards against his very Person and casting off all their Allegiance to their Natural Prince and calling in Prince Lewis Son to the King of France I cannot understand F. I think all this may very easily be solved For in the first place K. Iohn was no more compelled to agree to this Clause than he was to the Charters themselves and if those were lawful and reasonable so was this Resistance too since there was no other way or means lest to preserve them in case the King should go from his own Acts and break through all he had done so that if the ends were lawful the means to preserve it must be so too or else those Charters would have signified nothing any longer than the King pleased As for the other part of the Objection that this Resistance was still to be saving the Person of the King and Queen c. and that this did not consist with the Barons after making War against his Person and casting off all Allegiance to him It was not their faults but the King 's if they could not perform this Agreement since the King by making War upon the Clergy Nobility and People by his open and notorious breach and recalling of these Charters calling in Strangers to his assistance and declaring he would no longer govern according to Law had made it absolutely unpracticable to preserve their Allegiance to him any longer so that they never cast off their duty as Subjects till he had cast off his duty as a King and then what was there else left to be done but to provide for their own safety by calling in a Forein Prince to their Assistance as soon as they could since there was no other way left them to defend themselves against those Troops of Strangers the King had invited over and though many of them with their Captain Hugh de Boves had been cast away and drowned in a Tempest at Sea yet more were daily expected So that if Tyrants should suffer nothing for the breach of their own Charters and Oaths they would be in a better condition by their violation than the observing of them â—or by the making them they for the present quiet the Minds of their discontented Subjects and when they please may break them all again when they have got power if no body must presume to resist them or not think them as much Kings when they destroy and oppress their People as when they protect and preserve them by governing according to the Laws of the Kingdom But pray what have you to say against that general Resistance that was made by almost all the Bishops Barons and great Men of England against his Son Henry the Third about the frequent and notorious violations of the great Charters which his Father and himself had so often sworn to and confirmed and for which he had received such great Benevolences and Subsidies from the Nation M. Before I answer this Question pray take notice that I am not at all satisfied with your Arguments that when ever Subjects shall think themselves injured and oppressed by their Soveraigns that then they may cast off their Allegiance to them if they cannot have the Remedy they desire since this were to make them both Judges and Parties too in their own Cause which is altogether unjust and unreasonable between private Men much more between Kings and Subjects But passing by this at present I shall tell you my Opinion of this Resistance of Simon Montfort and the Earls and Barons his Adherents that it was down-right Rebellion and tended only to dethrone the King and make him a meer Cypher and to devolve the whole Government upon themselves as appears by the Oxford Provisions recited by so many Authors of that Age and which were afterwards condemned and consequently those violent means by which they were obtained by Lewis the Ninth King of France who in an Assembly of his Estates upon a solemn hearing of the whole difference between King Henry the Third and his Barons declared these Oxford Provisions null and void So far was this good and pious King from countenancing any Rebellion or Resistance as you term it of Subjects against their lawful Soveraign F. For all this I cannot find that the King of France did then at all condemn this defence the Earls and Barons had before made of the Liberties granted them by the great Charters for tho' he restored the King to his former Power by avoiding the Oxford Provisions yet at the same time when this was done as the Continuator of Mat. Paris tells us he expresly excepted the Ancient Charters of King Iohn Vniversâ—li seil Angliae concessae and from which per illam sententiam in nullo intendibat penâ—tus derogare and if he did not in the least intend to derogate from them he could not with any Justice condemn the only means the Barons had to maintain them after so many Trials and fresh Promises and Oaths of this fickle inconstant King all broken and laid aside so that you may as well or better alledge the Pope's shameful Absolution of this King from this Oath he had made to observe the great Charters as an Argument why they should not be any longer bound by them nor the Barons obliged to defend them as this Sentence of the King of France to render the Resistance the Barons had made in defence of the great Charters to be unlawful And that King Henry himself did afterwards allow this Resistance for good and lawful Pray see the Agreement which was not long after made in full Parliament in the 49th between the King the Prince and all the Prelates Earls and Barons of England whereby he obliged himself to observe all the Articles and Ordinances which had been before agreed upon at London in the 48th Year of his Reign And then follows this Clause in the Record which the Doctor himself has printed in his Appendix at the end of the first Volume of his Introduction to English History which I shall here translate out of French because it is very old and obscure it is thus And if our Lord the King or Monsieur Edward viz. the Prince shall go against the Peace and Ordinance aforesaid or shall grieve the Earls of Leicester or Gloucester or any of their Party by reason of any of the things aforesaid that then the great Men and Commons of the Land
his Father and to be Exiled from the Realm of England and that therefore the King that now is and the Queen his Mother being in so great Jeopardy in a strange Countrey and seeing the destructions and disinherisons which were notoriously done in England upon holy Church the Prelates Earls Barons and the Commonalty of the same by the said Spencers Robert Baldock and Edmund Earl of Arundel by the Encroachment of Royal Power to themselves and seeing they might not remedy the same unless they came into England with an Army of Men of War and have by the Grace of God with such puissance and the help of the great Men and Commons of the Realm vanquished and destroyed the said Spencers c. therefore our Soveraign Lord the King by the Common Council of the Prelates Earls Barons and other great Men and of the Commons of the Realm have provided and ordained c. as follows That no great Man nor other of what Estate Dignity or Condition soever he be that came in with the said King that now is and with the Queen in Aid of them to pursue their said Enemies and in which pursuit the King his Father was taken and put in Ward c. shall be impeached molested or grieved in person or in goods in any of the King's Courts c. for the pursuit and taking in hold the body of the said King Edward nor for the pursuit of any other persons not taking their goods nor for the death of any Man nor any other things perpetrated or committed in the said pursuit from the day of the King and Queens Arrival until the day of the Coronation of the said King This Act of Indemnity is so full a Justification of the necessity and lawfulness of the Resistance that was then made against King Edward the Second and his wicked Councellors the Spencers that it needs no Comment And tho' King Edward the Third took warning by the example of his Father and was too wise then to follow the like Arbitrary Courses yet Richard the Second his Grandson being a wilful hot headed young Prince fell into all the Errours of his great Grand-father and found the like if not greater Resistance from his Nobility and People for when he had highly mis-governed the Realm by the Advice of his favourites Alexander Arch-Bishop of York the Duke of Ireland and others a Parliament being called in the 10th Year of his Reign the Government of the Kingdom was taken out of their hands and committed to the Bishops of Canterbury and Ely with Thomas Duke of Gloucester the King's Uncle Richard Earl of Arundel and Thomas Earl of Warwick and nine or ten other Lords and Bishops but notwithstanding this the King being newly of Age refused to be governed by the said Duke and Earls but was carried about the Kingdom by the said Duke of Ireland and others to try what Forces they could raise and also to hinder the said Duke and Earls from having any Access to him But see what followed these violent and arbitrary courses as it is related by Henry de Knighton who lived and wrote in that very time and is more exact in this King's Reign than any other Historian he there tells us that when Thomas Duke of Gloucester and the other Bishops and Earls now mentioned sound they could not proceed in the Government of the King and Kingdom according to the Ordinance of the preceding Parliament through the hinderance of Mich. de la Poole Robert de Vere Duke of Ireland Nich. Brembar and Robert Tresillian Chief Justice and others who had seduced the King and made him alienate himself from the Council of the said Lords to the great damage of the Kingdom whereupon the said Duke of Gloucester and the Lords aforesaid with a great Guard of Knights Esquires and Archers came up towards London and quartered in the Villages adjacent and then the Arch-Bishop of Canterbury the Lord Lovat the Lord Cobham the Lord Eures with others went to the King in the name of the the Duke and Earls and demanded all the persons above-mentioned to be banished as Seducers and Traitors to the King and all the Lords then swore upon the Cross of the said Arch-Bishop not to desist till they had obtained what they came for the conclusion of this Meeting was that the King not being able to withstand them was forced immediately to call that remarkable Parliament of the 11th Year of his Reign in which Mich. de la Poole and the Duke of Ireland were attainted and Tresillian and divers other Judges sentenced to be hanged at Tyburn upon the Impeachment of the said Duke of Gloucester and the Earl of Arundel for delivering their Opinions contrary to Law and the Articles the King had not long before proposed to them at Nottingham I shall omit the Resistance which Henry Duke of Lancaster made after his Arrival by the Assistance of the Nobility and People of the North of England against the Arbitrary Government of this King being then in Ireland not only because it is notoriously known but because it was carried on farther than perhaps it needed to have been and ended in the Deposition of this King Only in the first Year of Henry the 4th there was the same Act of Indemnity almost word for word passed for all those that had come over with that King and had assisted him against Richard the Second and his evil Councellors as was passed before in primo of Edward the Third I shall not also insist upon the Resistance of Richard Duke of York in the Reign of King Henry the 6th who took up Arms against the Evil Government of the Queen and her Minion the Duke of Suffolk because you may say that this was justifiable by the Duke of York as right Heir of the Crown nor will I instance in the Resistance made by the Two Houses of Parliament during the late Civil Wars in the time of King Charles the First since it is disputed to this day who was in the fault and began this Civil War whether the King or the Parliament Only thus much I cannot omit to take notice of that the King in none of his Declarations ever denied but that the People had a right to Resist him in case he had made War upon them or had introduced Arbitrary Government and expresly owned in his Answer to one of the Parliaments Messages that they had a sufficient power to restrain Tyranny but denied himself to be guilty of it and still asserted that he took up Arms in defence of his just Right and Prerogative to the Command of the Militia of the Kingdom which they went about to take from him by force M. I have with the greater patience hearkened to your History of Resistance in all the Kings Reigns you have mentioned because I cannot desire any better Argument to prove the unlawfulness of such Resistance than those Acts of Pardon and Indemnity You cannot but confess have
Earl and in the like pardon to the Constable and Mareschal in the time of Edward the First which I now also quoted those Lords would not own they had transgressed but the words are only etiam transgressiones si quas fecerit So that since such Reformations could not be brought about without violence and blood-shed and some Irregularities which in times of Peace could not be justified by the strict Letter of the Law it was but reason that for the quieting of mens minds and their future security they should be indemnified for what they had done with so good an intent and for the common good of the Kingdom But that such Acts of Pardon do not relate to the Titles such Kings had to the Crown but only to their being Kings in the Eye of the Law appears by a like Act of Pardon passed in Parliament in the first of Henry the Seventh to pardon and save harmless all those that came over with the King and all that helped him to recover his just Right to the Kingdom against King Richard the Third there called that Vsurper So that you may see such Acts of Pardon do not concern the just Titles of Princes nor the Justice of the War but are to quiet mens minds under the new Government whereas those that took part with the Usurper were not pardoned but left to the Law since the present Government would not take care for their security that had obstructed its settlement So the Act of Oblivion of the second of Charles the Second tho' it pardons Treasons expresly yet it as well pardons the Treasons of them that had Commissions from King Charles the First or Second as well as those that acted by Commissions from other pretended Authorities So that you see in the Judgment of this so modern a Parliament men might be supposed to be guilty of Treason tho' they had taken part with the King and had acted by â—is Commission if the things commanded were illegal M. I confess you have taken a great deal of pains to justifie taking up Arms against nay Imprisonment of our Kings when that which you call the preservation of the Government requires it that is when there is a â—action in the Kingdom strong enough to make a disturbance for it was very well said by Tacitus in the speech he makes for Otho to the Souldiers to take up Arms and kill Galba then Emperour that it was in vain to speak more for the justification of that Action quod Laudari non potest nisi peractum Treasons if successful have never wanted a sufficient Party in the Nation to make up a Parliament to countenance them and to pardon nay justifie all those that have been Actors in them as we may see by those Acts of Indemnity you mention and therefore I am not the more convinced that such Resistance was lawful notwithstanding those specious Declarations of Parliament of their being made for the publick good and preservation of the King and Kingdom But you have done very warily to pass by without any Justification the Deposition of King Edward the Second as also that of the Resistance as you call it of Henry Duke of Lancaster against King Richard the Second as also his Deposition tho' done in Parliament since all the proceedings against this King were repeal'd in Parliament in the first of Edward the 4th as appears by the Parliament Rolls of that King's Reign wherein the taking up Arms against King Richard by Henry Earl of Derby is said to be done contrary to his Faith and Legiance and his taking the Crown called Usurpation and the killing of King Richard his Soveraign Lord termed as it justly deserved Murder and Tyranny which does tho' not directly yet by consequence condemn his Deposition too since he is after that here called King and you do as warily pass by the late Rebellious War of the Long Parliament against King Charles the First as also his horrid Murder before his own Gates because you know cry well that this Doctrine of Resistance seldom stops with a bare Reformation of what is amiss but commonly ends with the Murder or Deposition of the King or else driving him from his Throne as we now find it by woful experience in the Person of our Unfortunate King who was so lately forced to quit this Kingdom for the security of his Person and therefore to put an end to this part of the Dispute the Parliament of the 13th of King Charles the Second were so sensible of the great Mischiefs that attended this Rebellious Doctrine as having been the destruction of one of the best Princes that ever Reigned and the occasion of the loss of so many brave Men besides the ruine of so many great and Noble Families that they were resolved to do their utmost to prevent it for the future and therefore the King and Parliament in the 13th and 14th of King Charles the Second passed those remarkable Acts concerning the Settlement of the Militia in the King and his Successors to take away all dispute about it tho' they declare it to have been his Ancient Right and therefore to take away all pretence for taking up Arms either by the Two Houses of Parliament or any other person whatsoever they in preamble to both these that these Acts thus expresly declare Forasmuch as within all His Majesties Realms and Dominions the sole Supreme Government Command and Disposition of the Militia and of all Forces by Sea and Land and of all Forts and Places of Strength is and by the Law of England over was the undoubted Right of His Majesties and His Royal Predecessors King and Queens of England and that both or either Houses of Parliament cannot nor ought to pretend to the same nor can lawfully raise or â—evy War offensive or defensive against His Majesty His Heirs or Lawful Successors and yet the contrary hereof hath of late been practised almost to the ruine and destruction of this Kingdom and during the late Usurped Governments many Evil and Rebellious Principles have been distilled into the minds of the People of this Kingdom which unless prevented may break â—orth to the disturbance of the Peace and Quiet thereof c. And in pursuance of this Statute it was likewise ordained by the Authority aforesaid in the 2d Statute for the Militia in the 14th year of the same King wherein not only the same preamble is recited verbatim as before in the former Statute but it is also Enacted That no person no not a Peer of the Realm shall be capable of acting as Lieutenant Deputy Lieutenant Officer or Souldier by vertue of this Act unless after the Oaths of Allegiance and Supremacy they take this Oath following viz. I A. B. do declare and believe that it is not lawful upon any pretence whatsoever to take Arms against the King and that I do abhor that Traitors Position that Arms may be taken by his Authority against his Person or
Question pray therefore satisfie me if you can those great Objections I have made First how this Resistance can consist with with that sacredness and inviolableness which you your self suppose to be due to the Kings person for either this Resistance in case of an invasion of our Civil Rights must be made even when the King's Person is actually present to back those Illegal Commissions or it must be forborn out of that due Reverence and Care of his Royal Person which the Law enjoyns If the former the King's Person is in danger to be destroyed whenever a factions Party is strong enough to rise in Arms and oppose the King's Commissions upon pretence of their being against Law But if on the other side this Resistance is not allowable when the King's Person is present then all such Resistance will signifie nothing since as soon as ever the King in Person shall appear in the Field to back his Commissions all your Defensive Arms as you call them must be immediately laid down unless they mean to destroy the Sacred Person of the King So that take it either way all Resistance is either Illegal or else unpracticable Secondly I can as little understand as I told you before how the Two Houses of Parliament should renounce all taking up Arms as well offensive as defensive against the King for themselves and yet should leave a Power in the diffusive Body of the Nation nay in any part thereof strong enough to make a Rebellion which they thought unlawful to exercise themselves Lastly By what Legal Authority the People or any part of it can justifie the taking up even defensive Arms since you your self acknowledge that no Arms can be taken up regularly but by the King's Authority and you have also disclaimed all taking up of Arms by his Authority against his Person or against those Commissioned by vertue of such Authority tho' I confess you except the Cases of Self-defence and in maintenance of the Law yet I cannot find those Exceptions allowed of in any of our Law-Books either ancient or modern F. I hope to give you such Satisfaction to every one of these Objections you have made as may serve any indifferent person therefore as to the first concerning the Sacredness of the King's person which I allow of as well as you we must in the first place distinguish between such Commissions as the King â—ssures by colour of Law when the Judges for example had given their Opinions in the Case of Ship-money for they being the sole Interpreters of the Law in the Intervals of Parliament I do acknowledge that their Determinations are not to be opposed by force but legally reversed when the next Parliament meeâ— and they are then to answer in Parliament for their false Interpretations and Opinions as Tresillian and his Companions did in the 11th of Richard II. and as the Ten Judges did upon the two Houses Declaration against Ship-Money and their Impeachment thereupon Thus tho' Mr. Hammpden refused to pay Ship-Money when demanded of him and rather chose to lye in Prison than pay it yet it had been downright Rebellion in case any resistance had been made by him against the levying of it But had this Tax been laid by the King 's sole Power without such colour of Law I doubt not but resistance might have been made even against those that were Commissioned by Him to levy it and if any one Town or Hundred were not strong enough to seize such Officers as presumed thus to levy it against Law the Sheriffs of every County in England might have raised the Posse Comitatus and seized all such Offenders and carried them to Jayl since the King's Commissions never did nor can indemnifie the persons so Commissioned in case the thing they were about to execute was contrary to Law and for this I need go no farther than the Old Mirror of Iustices which is owned for good Law at this day which speaking of Robbery and the several Kinds thereof has this passage which I shall here render out of the old Law French Into this Offence viz. Robbery all those fall that take other Mens Goods by Commandment of the King or any great Lord without the Owners consent Where you see there is no difference at all made between those that took away other Mens Goods by the Command of the King or any other but it was Robbery in all of them alike and consequently the Actors might be alike seized and punished as Robbers The same is also allowed by the Statute of the 20th of Henry the 6th whereby the King's Purveyors are forbid to take any thing to the value of 40 s. or under without ready Payment in hand of any person 〈◊〉 that it then should be lawful for every one of the King's Liege-People to retain their Goods and Chattels and to resist such Purveyors and Buyers So likewise the last Clause in this Oath viz. In pursuance of such Military Commissions seems to restrain it to such Commissions as were granted by the King's Authority that is according to Law and no other So that you see by the old Law of England the King's Commission did not render any man irresistible unless he executed it according to Law since the Constable of each Town might raise the Inhabitants thereof to seize such Wrong-doers and if they were not strong enough the High-Constable of the Hundred might raise the whole Hundred and in case they were not sufficient the High Constable might crave Aid of the Sheriff and assemble all the several Hundreds of the County till these Malefactors were seized So that as long as there were no standing Forces kept up in the Nation as I have shown you there was not till the Reign of King Charles the Second there could never be my Clashing between the King 's Civil and Military Commissions and this is one great Reason why no King of England since the Act de Tallagio non Concedendâ— was so hardy as to issue any Commissions to levy Money without colour of Law because they knew they were void in themselves and consequently would be resisted by the whole Nation So that this would not have been taking up Arms by the King's Authority against those Commissioned by him but only in order to bring those to Justice who had not any Commissions at all to do what they did the Law taking no Cognizance at all of the King 's Personal Commissions when absolutely against Law Nor if the King had joyned his own Presence to such illegal Commissions would it have mended the matter or rendered these Robbers of other mâ—â—â— Goods any more irresistible than they were before since the King can give no mâ—n Authority to do that which he has not Power to do himself and therefore face his single Person may be resisted in case he go about to Ravish Rob or Murder People then sure his joyning himself with such Men tho' never so numerous can never make
any Legal Power all which could never have happened had not that War been not only begun but continued to the very last by a Standing Army which could give what Laws they pleased even to those that pretended to command them So that why the Abuse of this Right once in a Thousand years should be made any just Argument against the ever using it at all I can see no reason in the World for it As to the rest of your Discourse against making any War about Religion that is also as fallacious for tho' I grant that true Religion is not to be propagated yet I think it may lawfully be defended by the Sword especially where it is the received Establish'd Religion of a Nation or else the defence of Religion against Infidels would be no Argument at all to fight against a Turkish or Popish Prince that unjustly invaded us For tho' it is true that Religion cannot be taken away from any Man without his consent yet a Man may be taken from his Religion and when the Professors are destroyed either by Martyrdom or violent Persecution as bad or worse than death what will become of the Church and Religion Establisht by Law when all the Persons that constitute that Church are driven away destroyed or made to renounce it And for this we need go no farther than over the Water to our next Neighbour It is likewise as fallacious what 〈◊〉 urge of the great Corruption of Manners by Civil Wars which if it be any Argument at all is so against all Standing Armies whatever whether raised by lawful or unlawful Powers And I think there was much more debauchery in the King 's late Camp at Hounslow-heath as also in all places where they quartered than was lately at York or Nottingham among those that took up Arms in defence of their Religion or Civil Liberties unjustly invaded by the King and his Ministers nor does it always happen that Armies raised for defence of Religion and Civil Liberty must prove debaucht since we may remember that the Parliament Army to its praise be it spoken was infinitely more sober and outwardly religious than the King 's but if you will say that this proceeded from their Principles as well as good Discipline I know no reason why Men who fight in defence of their Religion and Civil Liberties may not upon Church of England Principles as to Church-Government and Common-Prayer and also by a strict Discipline be as little debaucht as any Standing Armies the most lawful Monarch can maintain who if they lye idle as ours have done all this King's Reign till now of late are more likely to fall into all the wickedness that attend a loose Discipline and want of Imployment and consequently may also corrupt the Places where they Quarter by their ill example M. I shall not longer argue this point since I see it is to no purpose But you have not yet told me what these fundamental Rights and Liberties are that you suppose the People may take up Arms to defend nor yet what number of the Nation may thus judge for themselves and take up Arms when they please for it may so happen that the whole Nation may be divided as to their opinions concerning these things And the South part of England for example may think their Religion and Liberties in great danger and that it is very necessary to take up Arms for it when the North parts are not under those apprehensions but lye still as was lately seen in the riseings for the Prince of Orange F. As to the first of these queries I think I can easily give you satisfaction and such as you can have nothing material to reply to And as for the other though I do not say I can give you such an answer as will bear no exception or reply yet I doubt not but it will be that which may very well be defended and may serve to satisfie any indifferent and unprejudiced person And which if not allowed will draw much worse consequences along with it And therefore as for the just Rights and Liberties we contend for they are only such as are contained in Magna Charta and the Petition of Right and are no more than the immemorial Rights and Liberties of this Kingdom and that first In respect of the safety of mens lives and the liberties of their persons aly The security of their Estates and Civil Properties And 3ly The enjoyment of their Religion as it is established by the common consent of the whole Nation All which I will reduce to these plain Propositions 1. That no Freeman of England ought to be imprisoned or arrested contrary to Law without specifying the cause of his commitment in the warrant or mittimus whereby he is sent to prison And he ought not to be sent out of the body of the Country or Jurisdiction where the crime was supposed to be committed unless he be removed by due course of Law neither ought he by the Law of England to be detained in Prison without Trial only for a punishment but ought to be Tried the next Assizes or Goal-delivery or within some reasonable time to be allowed of by the Court. And this was Common-Law many Ages before the Act of Habeas Corpus made in the 31st of King Charles the Second which does but ascertain that Law concerning bailing men for all manner of Crimes in case no Prosecution come in against them much less can the King or any Court below the whole Parliament banish any man the Kingdom in any case unless by some known Law already made whereby he is bound to abjure it upon a lawful Trial by his Peers and conviction by his own Confession 2. Nor can the King nor any Courts of Justice condemn a man to loss of Life or Members without due Trial by his Peers and Legal Judgment given thereupon And for proof of this I need go no farther than Magna Charta and the Petition of Right which are both but declaratory of the Common-Law of England◠see therefore Magna Charta cap. 29. Whereby it is declared and enacted that no freeman may be taken and imprisoned or be disseised of his freehold or Liberties or his free customs or be Outlawed or exiled or in any manner destroyed but by the lawful Judgment of his Peers or by the Law of the land which is also farther confirmed and explained by these Statutes viz. the 37 38 42. of Edward III. and 17. of Richard the II. all which are summed up and more particularly declared against contrary to the fundamental Laws of the land in the Petition of Right exhibited to King Charles the I. in Parliament in the thirtieth of his Reign wherein the late imprisonment of the Kings Subjects without any cause shewed and the denial of Habeas Corpus are expresly resented as also putting Souldiers and Mariners to death by Martial Law in time of peace And the King's answer to this Petition is remarkable
Court took upon it to Judge of Matrimonial Causes about Alimony and concerning â—lmoniacal contracts and all other misdemeanours both of Clergy and Layety against Religion and good Manners which were the same things the late high Commission Court took upon them to determine and if they did not meddle with Popish or Non-conformist Meetings it was because their hands were so tied up by the Late Declaration of Indulgence that they had no power to meddle either with Papists or Dissenters M. I shall make no farther reply appresent to what you now say till I come to answer once for all therefore I shall go on to the next things excepted against in the Princes Declaration viz. the erecting of publick Chappels for Mass the protecting of Priests and the making a Jesuit a Privy Councellor all which tho' I confess they are against the express Letter of divers Statutes yet since all these things depend upon the Kings dispensing power set forth in His Majesties late Declaration which as I will not assert so I will not positively deny since the said Declaration of Indulgence and all proceedings thereupon have issued out and executed under colour of Law viz. of the Kings Ecclesiastical Jurisdiction without any force or violence upon the Conscience Religion or Properties of the Kings Protestant Subjects whom the King in his said Declaration solemnly promises to protect in the free possession and enjoyment of their Religion establisht by Law and I cannot see how a liberty granted to Popish Priests to say Mass or the putting in a Jesuite into the Privy Council or making Popish Judges or putting a Papist into the Ecclesiastical Commission can be lookt upon as any Invasion of the Protestant Religion the free and publick profession of which we have God be thanked as quietly injoyed as we did in the Reign of this King or in that of his Brother F. Since you cannot directly justifie the Kings setting up publick Mass Houses in London and in most other parts of the Kingdom and his so publick protecting and countenancing Papists and Jesuits even to the making a Jesuit a Privy-Councellor tho' they are all in judgment of Law alike publick Enemies and Traytors to the King and Kingdom and that all these as you cannot deny are contrary to the express words and intent of all Statutes against Priests and Popish Assemblies so you endeavour to palliate it under the Kings dispensing power which you suppose to have had a colour of Law at least to support it but tho' the giving Liberty to Popish Assemblies and the Conventicles of the Dissenters was no direct hindrance of the free exeâ—ercise of the Protestant Religion establisht by Law yet I must utterly deny that the King has any such prerogative as to dispense with those Laws and by his sole Authority to declare those that the Law calls Enemies and Traytors to be good Subjects and you may as well tell me that the King has not only a prerogative power to pardon High-way-men but may also protect them and put them into his Guards with a Commission to rob whom they pleased as to give Papists Power to bear Arms or to protect and imploy declared Traytors as Popish Priests and Jesuites are by Law as the King had done not the like I may say for putting in Popish Judges and Justices of Peace viz. that it was all done by force of the Kings Personal Orders without his Legal Authority which is that alone we can take cognizance of or render any Obedience to and tho' 't is true I do not deny the King a Power of making whom he pleases Judges yet this prerogative is still to be exercised according to Law and therefore if the King should make an illiterate man a Judge who could neither Write nor Read the Writ or Patent would be void in its self the same I may say of a Popish Judge the Law making no difference as I know of between a natural and a legal disability but however the turning out honest and able Judges because they would not give up our Religion and Liberties to the Kings Arbitrary Will is certainly a much greater breach of the Trust committed to him by his Coronation Oath wherein he swore he would maintain the Laws of the Land and mix Equity with Mercy in all his Judgements now where is the Equity or Justice of this that whereas the Judges anciently held their places quam diu se bene gesserint they should now by a notorious encroachment of the prerogative not only be made durante beneplacito but that the King should stretch this prerogative so unreasonably as to examine the Judges before hand whether they would agree to the dispensing power and to turn out those that refused to comply meerly because they would not serve his Arbitrary designs and then to put in the meanest and most mercenary Lawyers at the Bar nay some who never come thither at all into their places for no other merit or good qualities but because they would serve a turn is so notorious a breach of his Oath that it could not fail in a little time to destroy all our Common as well as our Statute Laws since these were all lately lodged in their Breasts and resolved into their Arbitrary determinations which yet as all the World knows were wholy managed by the influence and commands of the Court and this I say again was as notorious an abuse of the Kings prerogative as if he had put in High-way-men into his Guards with Commissions in their Pockets to rob whom they pleased since these Gentlemen in Scarlet have taken the same Liberty under colour of Law to raise Taxes upon the Subjects against the express letter of an act of Parliament as may be seen in their late determination concerning Chimney Money making Cottages built for the use of the poor and houses of persons exempted from payment liable to Chymney Money contrary to the express words of that Statute M. I cannot deny but the things you now mention have been great abuses of Prerogative but whether so great as to require resistance I must still disagree with you therefore I shall now proceed to the next particular complain'd of viz. the examining of the Lords Lieutenants Deputy Lieutenants Sheriffs and Justices of Peace to know whether they would concur with the King in the repeal of the Test and Penal Laws and turning all such out of Commission as refused to comply with the Kings desires in this matter now tho' I will not say it was well or prudently done yet it was no more than what I think the King by his Prerogative might Justifie the doing of since he may by Law give a quietus est to what Judges he pleases and put in or out of Commissions whether Civil or Military what persons he thinks fit and as for the persons so examined they might have chosen whether they would have given any positive answers to the questions put to them by the Lord Chancellor
such Absolute Monarchs as you would make them that by the fundamental Constitution of the Government they cannot be resisted nor can fall from their Regal Power let them carry themselves never so Tyrannically for I do not see you have been yet able to do it by any Arguments you have hitherto made use of M. I have already at our 5th as well as at our last Meeting given you divers Arguments and Authorities whereby I proved the Kings of this Realm to be compleat and absolute Monarchs especially that place from Bracton where he thus speaks of the King that every one is under him and that himself is under none but God that he has no Peer in his Kingdom because so he would lose his Power since an Equal has no command over an Equal much more has he any Superiour because then he would be inferiour to his Subjects and Inferiours cannot be equal with their Superiours which sufficiently destroys that Notion of yours that Subjects can be in any case equal with their Princes so as to judge and resist their actions which is also farther inforced by another passage just aforegoing de Chartis vero Regiis factis Regum non debent nec possunt Iusticiarii nec privatae personae disputare nec etiam si in illis dubitatio ulla oriatur possunt eam interpretari in dubiis obscuris vel si aliqua dictio duos continâ—at intellectus Domini Regis erit expectanda Interpretatio voluptas cum ejus sit interpretari cujus est concedere from which we may conclude that the King's actions were above all censure and dispute much more forcible opposition of his Subjects And I defie you to shew me any passage in Bracton Fleta or even your beloved Author Fortescue that in the least countenances your Doctrine of Resistance much less your Opinion of the King's forfeiture of his Crown and Royal Dignity for Tyranny or the highest Violation of Laws but rather the contrary in all those passages that I have either observed my self or found quoted out of them by others For tho' I grant both Bracton and Fleta call the King if he prove a Tyrant or one that governs contrary to Law not God's but the Devil's Minister yet for all that they no where maintain that then he ought or may be resisted by his Subjects or that they are discharged of their Allegiance towards him For Bracton tells us in the same place that if the King do any man wrong or injury Locus erit supplicationi quod factum suum corrigat emendet quod quidem si non fecerit satis sufficit ei ad paenam quod Dominum expeâ—tet ultorem nemo quidem de factis suis praesumeâ— disputare multo fortius contra factum suum venire The same he says likewise word for word in another place of any other King or Prince who has no superiour Lord against whom there is no Remedy by Assize or Legal Trial as against an Equal but only place left the injured Subject for Petition And Bracton gives us a very good Reason for it in this maxime omnis qúidem sub eo ipse sub nullo nisi tantum sub Deo So that tho' I grant this Moral Obligation which the King hath to observe the Laws is farther increased by his Coronation-Oath as Bracton observes in his third Book de Actionibus But then as in the Oath of Allegiance the People swear nothing to the King but what they are bound to observe unsworn so the King in his Coronation-Oath promises nothing to the People but what in Justice and Equity he is bound to perform whether he swear or not for ad hoc saith the same Author of the King electus creatus est ut Iudicium faciat universis c. and separare debet Rex cum sit Dei vicarius Ius ab Injuria c. But then if he will pervert this great end for which God made him King if he will not act as it becomes God's Vicar if he will obstruct or pervert the Laws and govern never so Tyrannically yet still there is left no Remedy to his Subjects by the Law but Moral Perswasion for the Laws Imperial of this Realm have declared him to be a free unconditioned and independent Sovereign exempted from all coaction and outward force much more from any forfeiture of this Crown or Regal Authority F. I hope I shall be able to return you a satisfactory Answer to the Authorities you have now brought for as for Reasons I see none in the first place as to what you say concerning Barclays and all other Writers agreeing that in these two Cases you mention the People may resist their Prince because he does as good as renounce the Government of them and abdicate the Crown he wore Pray observe that they also allow the People to judge for themselves when the King thus goes about to destroy them to make over his Crown to a Foreign Prince Now I desire you to shew me why the People in a limitted or mixt Kingdom as ours is cannot as well judge when the King has broke the Fundamental Laws of the Government whereby it is distinguished from an Absolute Despotick Monarchy and hath either actually set up or is going about to bring in Tyranny or Arbitrary Power since according to the Rules I have laid down at our last Meeting the matters to be judged of may be as plain and evident not only to a single person but to a whole Nation All that you have to say against this is only an Hypothesis you have laid down without any just grounds that the King is a Sovereign Prince who holds his Crown without any Condition whatever and therefore free from all forfeiture of his Crown or Regal Authority which is the Point to be prov'd Now if I have already made out as I suppose I have that the King of England is not an Absolute Monarch as not having the two main parts of it viz. the power of raising Money and making Laws in his own disposal without the consent of his People and these so reserved by his own Concessions or that of his Predecessors from the very beginning of Kingly Government in this Island and if I have also proved at our last Meeting that if we have such Fundamental Rights we have also some means left us to keep and preserve them inviolable and that this means is only a forcible defensive Resistance in case they are forcibly invaded by any of the King's Officers or Souldiers nay by his own Personal Power in case he shall be so ill advised as to joyn himself with such Instruments of Tyranny it will then also follow that such a Resistance is really a suspension of their Allegiance to the King for the time it lasts and till they can see whether there be any hopes lest of a Reconciliation with Him and that he will amend his Errours and Misgovernment and if so and
dare not insist upon it so that I do not now wonder that the Gentlemen of your Principles are so violent for this right of Resistance since it is only in order to introduce your Darling Doctrine of the Peoples Power of deposing or laying aside their Kings as you term it whenever they shall judge they turn Tyrants and have thereby forfeited their Crowns which is a most dangerous Doctrine and if it should take effect the Princes of the World had need look about them since the People may make up such a pretence for ought I know even against the very best of them that are now Regnant in Europe But sure absolute Monarchs ought not to be outted of their Crowns by strained consequences or forced interpretations of Laws therefore pray shew me this original Contract you so much insist upon and those conditions on which you suppose our limited Monarchs hold their Crowns I confess if you could shew me any clause in our Laws or ancient forms of the Coronation of our Kings as there was at the Coronation of the Kings of Arragon wherein the chief Justice on the behalf of the People plainly told him that they made him King upon this Condition that they would have more Power than himself or that in the conferring of the Regal Power it was expresly reserved in what cases it should be lawful for them to resist the King or to absolve his Subjects from their Allegiance as Bodin tells us it was expresly inserted in the Coronation Oath of Henry II. Duke of Anjou afterwards King of France when he was made King of Poland that if he broke his Oath and violated the Laws and Priviledges of the Clergy and Nobility of Poland then the People of that Kingdom should not be obliged to render him any obedience I grant then that the Liberties of such a People might be preserved but the King that took upon him the Regal Power upon such conditions would not be properly a Monarch but liable to the Judgment of his People whenever he really did or that they imagined he had thus violated their Laws since the Supream Authority would still reside in them But indeed the Case God be thanked is much otherwise with our Monarchs who are Kings by right of Inheritance whether ever they take any Coronation Oath or not as K. Edward the first was whilst he was in the Holy Land almost two years before he could come over to be Crown'd and K. Henry the sixth was not Crowned till the eighth year of his Reign as well as of his Age. But that our Kings are so by Inheritance and by the Laws of God and Man previous to any Coronation Oath or consent of the People is expresly declared by the Act of recognition of K. Iames I. and that Treason could be commited against him before he was Crowned Sir Edward Cooke tells us in Calvin's Case was the opinion of all the Judges of England in the Plot wherein Watson and Clerk the Priests were Executed and Sir Walter Rawleigh condemned So that what you have now urged from Reason or Authority of our Antient Lawyers is either quite mistaken or else does not reach the matter in hand that it cannot be made out from reason is plain since your whole Argument is built upon this false foundation that it is lawful in some cases to resist the King in case of a notorious breach of the fundamental Laws and therefore it is necessary also to declare him to have forfeited his Crown if he persist in this violation whereas I deny your Assumption for I hold it utterly unlawful to resist on any pretence or for any cause whatsoever and therefore it is impossible for the King who as I said but now is an absolute unconditioned Monarch to forfeit his Crown for any such violation of your Original Contracts or Fundamental Laws of Government so that let me tell you that the citations you have brought out of History as also Bracton and Fleta do not prove either the one or the other of these for first as to the clause in King Iohn's Charter concerning resistance and the Barons having a Power thereby to constrain the King to amend his violations of it by making War upon him and that they should not return to their former Allegiance till all was redressed make the most of it it could be no more than a particular concession for himself alone and was not intended to reach his Successours who are not at all mentioned in this Clause and that it was never intended to reach them may further appear because that this clause of resistance is omitted out of all the subsequent great Charters that were granted by Henry the III. or his Son Edward the I. and instead of this it was thought a sufficient security upon the last confirmation of these Charters in the 37 year of King Henry III. for the King Bishops Earls and Barons to agree that the Arch-bishop of Canterbury and all the rest of the Bishops should declare all those that wilfully transgressed or infringed the great Charters in any point excommunicated ipso facto not excepting the King himself according to the form of it which you will find in Mat. Paris and other Writers of this Transaction But for the places you have cited out of Bracton there is none of them reach the point in question for as to the first non est Rex ubi dominatur voluntas non Rex the meaning of it is not that he is no King but that he does not act as a King but a Tyrant when he thus governs by his meer Will and not by Law and to the same effect is the next passage Rex est dum bene regit Tyrannus dum Populum fibi tradi um violenta opprimit dominatione all which we readily grant yet since he is still an absolute Monarch all Writers hold that his governing without or against Law cannot give the subjects a power to resist him much less can it be construed as a renunciation or forfeiture of his imperial Power and therefore tho' it is true that as Bracton and Fleta tell us whilst he thus acts he does not act as God's Lieutenant but the Devils Minister yet does it not follow that we may therefore resist him with carnal Weapons or force since we cannot so resist the Devil himself and tho' he may in this matter of breach of the Laws which he has sworn to observe act as the Devils Minister yet notwithstanding in all other points of Government as in the Punishment of Robbers and other notorious offenders and in the due Administration of Justice between Man and Man he still acts as Gods Lieutenant and it is much better that we should have some civil Government tho' mixt with Tyranny and oppression than that we should fall into all the mischiefs and confusions of a Civil War nay that Anarchy too which has been often produced by it and tho' I confess the last place you
of the People rather than in the Parliament or great Council of the Nation for as to your assertion that the whole People are more fallible and consequently more dangerous Judges in such a Case than the great Council I deny it since all the matters of fact must be so evident and notorious to the senses and feeling of the greater part of the People that there can be no doubt or denial of it by any reasonable and indifferent Judges and the greatest part of the People are willing to live in Peace without making any disturbance or alteration in the Government if it may be avoided whereas in any great Assembly or Council there are many and those of the most eloquent and leading Men who commonly carry the rest which way they please who are governed by faction ambition or self-interest and upon all or some of these c. may be desirous to raise Civil Wars or to declare the King to have done things that require resistance or to have forfeited his Crown when indeed he has not and for this the very Long Parliament you mention is an evident example since you cannot but grant that if the differences between the King and that Parliament had been left to the Judgment of the whole People there had never been any Civil War at all nor had the King ever been beheaded since it is notoriously known that before the Parliament stirr'd up the People to War by seizing of the Militia they were not at all inclined to it It being a restless and factious ambitious party of men on both sides who brought on the last Civil War Not but that I defer much to the Judgment of a free and unbyast Parliament who may confirm and declare what the diffusive body of the People have already justly done to be right and lawful which may be as great a satisfaction to private Mens Consciences in Civil Disputes as a general Council is in Spiritual Controversies about matters of Religion wherein tho' such a Council cannot make new Articles of Faith yet we Protestants hold that it may declare what were anciently believed but if the People have a right of Judging during the intervals of Parliament when the King has notoriously broke the Fundamental Constitution and so may make resistance accordingly as I have already proved they have since otherwise the King may absolutely refuse ever to call any Parliament at all or at least may not let them sit till all grievances are redressed so that I cannot see why they may not also Judge when the King has so wholly broke his Original Contract and so obstinately persisted in it as to create a forfeiture of his Crown since the one is not harder to judge of than the other nor is your parallel between our opinion and that of the Jesuites at all true unless you could also prove that I had put the same authority in the People to depose their Kings by a right conferred on them by God as the Jesuites do in the Pope by such a pretended Power as Superiour to that of all the Monarchs in the World but there is nothing like it in my hypothesis Since I do neither allow the People to Judge or Depose the King much less to put him to Death tho' a Tyrant but only to Judge and declare when he has made such notorious breaches on the fundamental Constitution as do necessarily imply a forfeiture or rather an implicite Abdication of his Royal Power and whereby he deposes himself But to come to the second Point to prove that our Kings were never absolute Monarchs or had the sole and absolute authority over the People of this Kingdom and if so that there was somewhat still reserved by the People at the first institution of the Government and which the King by the original contract when he or his Ancestors took the Crown must be still supposed as bound to maintain now that there must have been such a thing as an Original Contract however light you are pleas'd to make of it I thus make out you may remember that at our fifth meeting I proved that at the first institution of Kingly Government in this Nation it was not by right of Inheritance but Election 2. That this Election was made either by the whole body of the People in Person or by their lawful Representatives in the great Councils or Mycel Synods of the English Saxons 3. That this great Council did then reserve to themselves these material parts of Government First A right of Meeting or Assembling at stated times of the year and that without any previous summons from the King 2. A right of proposing or at least oâ— assending to all Laws that should be made in all future times 3. A right of granting general Aids or Taxes for the People and that without their consent no Taxes could be imposed 4. And as subsequent to all these a right of agreeing to all Wars and Treaties of Peace â—o be made with Foreign Nations but the first and last of these tho' I could prove to have been constantly observed during the Saxon Government and long after yet since the People have parted with their right to their Kings in these matters I shall not now insist upon them only that this People have still a right to Parliaments once in three years at least and oftner if necessity require These then being the Original Constitutions of the Kingdom the King must have either entred into a compact with the People for the maintenance and observation of these fundamental rights or else it must have been left to his discretion whether he would suffer the People to enjoy them or not if the latter had been true then I grant they had made him an Absolute Monarch and had left it wholly at his discretion whether they should enjoy these fundamental Rights and Priviledges or not but it appears plainly to the contrary that they did not for I shall prove if need be that the Succession to the Crown was at first Elective and not Hereditary now in all Elective Kingdoms of the Gothick Model it is very well known that their Kings were so far from being absolute that the Assembly of Estates or great Councils of those Kingdoms reserved to themselves a power of Deposing their Kings for Tyranny and Mis government as I have already proved was frequently done not only in England but in all the neighbouring Kingdoms without any imputation of Rebellion and I have also given you a quotation out of the ancient mirrour of Justices which tells us that upon the Election of the first King of this whole Island The Princes that chose him then caused him to swear that he would maintain the Holy Christian Faith with all his power should Rule his People justly without regard to any person and should be obedient to suffer Right or Justice as well as others his Subjects And now that upon a failure to perform these things a forfeiture of the
raising Money at his pleasure but the people reserved to themselves their share of both at the first institution of the Monarchy all those Princes that claim by Vertue of their Right are tied by this first original contract whether they ever took any Coronation Oath or not nor tho the Crown now become no more Elective does it at all alter the condition or the limitation of his Ancestors as long as the present King holds by and under the same Title and by vertue of the same original contract since as it was by the Peoples will that it was at first Elective so it was also by their Will that it became successive since every entail of the Crown upon heirs can only proceed from the Peoples agreement or consent to maintain it as a standing Law or else every King might alter it at his pleasure As for your next reply that if we resist the King because when he turns Tyrant he Acts not as Gods Lieutenant but the Devils Minister for so that tho' it is lawful to resist the Devil yet we cannot use carnal force against him this assumption is false since if we can suppose the Devil does ever use carnal force we may also repel the same by force or else those famous Stories of Witches and Spirits being afraid of and flying from naked Swords are all false I beg your pardon for speaking so long which I could not well contract into less compass without passing by your arguments and answers to my quotations M. You have indeed out-done me in making long Speeches but I have heard you patiently because I cannot deny but that you have argued fairly had it been upon a right foundation but since it is not pray give me leave to set you right and shew you that notwithstanding all you have urged to the contrary yet all our Kings since the Conquest were absolute Monarchs and if so not only irresistible upon any breach of their Coronation Oaths but also have been invested with such an absolute unconditioned power as can never be lost or forfeited upon account of the highest acts of Tyranny but before I come to my proofs give me leave to say somewhat to those last citations you have brought from King Edwards Laws as also from Bracton and Fleta First as to that Law you have cited that passes under the Title of one of those confirmed by King William the Conquerour give me leave to tell you that I much question whether it be genuine and not foisted in by some of the Monks that had the keeping of the Copies of those Laws in their Monasteries after the Original it self was no more to be found for in the first place I must observe it does not savour of that absolute Power that I take K. William to have acquited by his Sword to own his Royal Dignity forfeitable or that he could lose the name of King upon any account whatsoever at this pretended Law seems to intimate by these words nec nomen Regis in to constabit now that it strongly savours of the ignorance of the Monks I shall shew you by the very Law it self wherein the chief points for which the King must lose his Royal Title is not only if he does not defend his Earthly Kingdom but also the People of God that is the Clergy and also shall fail to reverence Holy Church that is the Bishops and Clergy of whom the Monks looked upon themselves as the chief and most considerable part as also if he fail to destroy evil doers that is Hereticks out of the Church then forsooth not so much as the name of King must remain to him now pray see the consequence of this and whether you will own this to be a fundamental Law of the Kingdom for then at this rate Henry the VIII who suppressed Monasteries and took away Abby-Lands and let injurious persons spoil the Church by Sacriledge and also all other Princes who have not extirpated those who when this Law was supposed to have been made would have passed for Hereticks that is all Protestants must have all forfeited their Royal Dignities and consequently the Pope did Henry VIII and Queen Elizabeth no wrong if in pursuance of this Law they Excommunicated them and declared they had forfeited their Crown since this Law says that Pope Iohn testified this truth quod nomen Regis perdet But nothing makes out more evidently to me the forgery of this pretended Law than the notorious faults there are in the Chronology where the sentence of Pope Iohn against King Childerick is mentioned as an evidence to make it good whereas indeed it was not Pope Iohn but Zachary who gave this sentence But in Hovedens Copy of this Law there is yet a more gross errour for it makes Pipin and his Son Charles to have writ to William the Bastard upon their hearing this definitive sentence so wisely given by him concerning the Title of King all which is so notorious a piece of folly and ignorance that it needs no other confuration But granting that part containing the Law it self to be genuine it does not at all set forth your Original Contract or make it a forfeiture in the King to do any of those things which you supposed to be main parts of the Fundamental Constitution only says in general that unless he defend his Earthly Kingdom and the People of God and reverence Holy Church by defending it from injurious Persons and removing Evil doers from it name of the King will not belong to him now all this the most absolute Monarch in Christendom even the King of France himself will say he performs to a tittle and therefore there is no fear of a forfeiture for any King tho' never so Absolute and Tyrannical upon these Terms unless he will do that which I think he is too wise ever to go about to destroy his People wilfully or to fall upon the Church of Rome and its Clergy As for the rest of the places you have cited out of Bracton and Fleta to prove this Notion of a Forfeiture I must freely tell you that they do not seem to me to come up to the point for which you bring them for as to that place you have cited out of Bracton non est Rex c. you and I differ about the sense of it and I see no reason why I may not still keep my own opinion the other place I confess seems more express viz. That it is the Crown or Dignity of the King to do Justice or Judgment without which it cannot hold or consist this also does refer only to such Justice and Judgment as the King is to give and distribute between Man and Man without any relation to his own actions towards his Subjects and if a Prince will not do this either by Himself or Deputies I grant his Crown or Royal Dignity cannot long subsist to be maintained since this will bring all things to utter confusion so that strangers will
general that he shall reverence the Church of God that is that Profession of Christianity or Way which he and the great Council of the Nation shall upon the most mature Judgment and Deliberation think to be so so that all that can be deduced from this clause is that the King shall reverence the Church that is maintain the profession of Religion which shall be established by Law and shall make no alteration therein without the general consent of the whole Nation in their great Councils or Synods consisting as well of Ecclesiastical as Secular Members and so likewise he shall defend it from all injurious Persons that would invade the Rights of the Church and its Clergy contrary to Law and shall root out all evil doers that is all debaucht and wicked Professors of Christianity for so malesicos properly signifies and not Hereticks as you would render it who are not Evil doers but false Believers or if it should be interpreted for Hereticks it is not those that then might be looked upon as such but what the present Church shall so determine or else we must own the former Church to have been infallible in all her determinations So that I can see no reason upon the whole matter why this Law should now become void or unprofitable by reason of any alterations in Religion or of those men that were then to exercise the functions of it as long as all the necessary and material parts of both are preserved as they are to this day for otherwise this Law would have tyed up the King and Nation from making any Reformation in Religion tho' never so much for the better or tho' the National Church had never so much required it which I suppose no true Protestant will affirm But as for those passages out of Bracton and Fleta which I have brought to confirm and support our sense of this Law and which you labour to avoid by putting too general and loose an interpretation upon them whereby you would make them only to signifie that the King is to maintain right Judgment and Justice between Man and Man without which his Royal Dignity cannot hold or subsist but that he is not obliged upon any penalty to observe the same things in respect of himself or his own Officers or Ministers this is all one as if a Shepherd who had a Flock of Sheep committed to his charge by the owner having first fleeced and then killed and destroyed them and converted the Wooll and Carkasses to his own private use should then tell the owner that he was indeed to defend the Flock from Thieves Wolves and Foxes but that it was no part of his bargain to keep them safe untoucht from himself or his Servants or so much as his own Dogs but that the sense of Bracton and Flâ—ta is quite otherwise sufficiently appears by these places I have now cited and if those will not do pray consider these that I shall nere add for Bracton also in the same chapter tells us ad hoc creatus est Rex electus ut Iustitiam faciat universis and he also there recites the ancient Coronation Oath in these words Debit enim Rex in Coronatione sua nomine Iesu Christi haec tria promittere Populo sibi subdito Imprimis se esse praecipturum pro virious opem impensurum ut omni Populo Christiano vera pax omni suo tempore observetur 2. Vt rapacitates omnes iniquitates interdicat 3. Vt in omnibus Iudiciis equitatem praecipiat misericordiam ut indulgeat ei suam misericordiam Clemens Deus Now how can a King observe this Oath that spoils the people of their Goods and raises Taxes contrary to Law or how can he continue King who violates all the ends of his Creation from all which it appears that by this Justice and Judgment must be meant not only the Kings own observing Justice towards his People not only by not commanding but also hindering his inferiour Ministers and Officers from spoiling and oppressing them and that no prerogative can justifie him in the doing otherwise is as evident from another place in Bracton where he tells us that Regia potestas Iuris est nâ—n Injuriae nihil aliud potest Rex nisi quod jure potest But Fleta is somewhat larger on this head tho' to the same effect when speaking of the Kings Power or Prerogative he says thus licet omnes potentia praecellat cor tamen ipsius in manu Dei esse debet ne potentia sua manâ—aâ— infranata fraenum imponat temperantiae lora moderantiae ne trahetur ad injuriam quia nihil aliud hoc estâ—in terra nisi quod de Iure potest nec obstat quod dicitur quod Principi placet Legis habet potestatim quia sequitur cum lege Regia quae de ejus Imperio lata est non quiâ—quid de voluntate Regis tanto pere praesumptum est sed quod Magnatum suorum consilio Rege authoritatem praestante habita super hoc deliberatione tractatu recte fuerit deâ—initum which not only shews that our ancient English Lawyers in this agreed with the Civil Law and gave the same account of the original of the Royal Power as that Law does viz. that it was conferred by the People of Rome on the Roman Emperour by the Lex Regia mentioned in the old Civilians I have formerly cited and also shews that our ancient Lawyers supposed that by a like Law among us the Royal Authority was originally derived from the consent of the People of England without whose advice and assent included in that of their Representatives here called consitium Magnatum consilium being taken for consent in this place as I have proved it often signify'd no Law can ever be made now if the King will not be ruled by this bridle of moderation this Author as well as Bracton tell us that the King then hath his Superiours the Law and his Court of Barons who were as Masters to put this Bridle upon him But admit he will run away with this Bridle between his Teeth all this had signified nothing if there be no other remedy left us besides bare supplication or remonstrances to the King of his duty and he might have dissolved the Parliament before ever it could have any time to do either the one or the other To conclude if the King was at first elected and created for this end that he may do Justice to all men and that this Justice does not only concern his maintaining Justice between his Subjects one towards another but also in respect of himself his Children and Subordinate Officers and Ministers that act by his Commission appears by what follows in Bracton after the Kings Coronation Oath Potestas scil Regis itaque Iuris est non injuriae cum ipse sit Author Iuris non debet inde injuriarum nasci occasio etiam qui ex officio
suo alios prohibere necesse habet id ipsum in propria persona committere non debet So that it is as plain that if he either command or permit these willful injuries generally or all over his Kingdom he fails to defend it according to K. Edward's Laws and if he thus fail to defend it he thereupon loses or forfeits his very Title or Office of a King since he cannot keep or hold his Crown or Royal Dignity for without Justice it cannot subsist and this by the original contract since upon whatever Terms the first King of this Race took the Crown upon the same Terms all his Posterity who succeed either by election or right of blood by vertue of that first compact are to hold it under the like penalty of a forfeiture in case of a wilful neglect or violation of his duty M. I confess you have made a specious proof of this original contract you so much talk of and more than ever I thought could have been said for it but let it be what it will it is certain in the first place that whatever coâ—ercive Power the two Houses of Parliament might pretend to when Bracton wrote they have solemnly renounced it in two successive Parliaments in the Reign of K. Charles the II. therefore I shall not insist any longer upon old antiquated Laws or original contracts which are not directly expressed but consequentially deduced at best but I must now tell you that let the first institution of this Government have been what it will in the Saxon times and what original contract soever you may please to fancy between them and their Subjects yet this was all gone and out of doors by that absolute Conquest which K. William I. made of this Kingdom for himself and his heirs who do not at all claim under the Title of our English Kings For since their Ancestor had no just Title to the Crown but by the Sword and that he gain'd this Kingdom by the Conquest of K. Harold and the People of England who had elected him and fought for him as also by the subsequent recognition of this right by all the People of England in their Oaths of Allegiance so often repeated to himself and his Successors have thereby acknowledged it to be as absolute a Monarchy by conquest as ever was instituted by any Prince in the World and tho' I grant that several of the Conquerours have been graciously pleased to grant divers Priviledges to the People of this Nation and some of them perhaps the same they enjoyed in the Saxon time yet can they not enjoy it by vertue of that Original Contract you suppose to have been made between the first King of that Saxon Race and the People of England for as I said but now K. William had no right by any Title from K. Edward the Confessor but wholly by his Sword as I shall prove by and by But however these concessions ought not at all to derogate from the absoluteness of the Power or the indefensibleness of our Kings Title for since these limitations of absolute or imperial Power did not proceed from any other Original than the free voluntary concessions of our Kingâ— not from any compacts with their People they do not at all derogate from the uncontroulable and unancountable Soveraignty thereof so that we may very well distinguish between the Being and Essence of Imperial or Soveraign Power and the exercise or emanation thereof as to the Being and Essence of it it is in as full perfection in the Limited as in the Arbitrary Sovereign tho' the Law confines and limits him in the exercise thereof but to be confined in the exercise doth not destroy the Being nor diminish the perfection of Sovereign Power for then the Power of God himself could not be Sovereign because there are certain immutable Rules of Truth and Justice within which it is necessarily limited and confined but God is nevertheless a perfect Imperial Sovereign over the Universe tho' the exercise of his Government over his Creatures be limited by the eternal Laws of Truth and Equity it is true that this limitation of Almighty God is intriasical and proceeds from the perfection of his Righteous and Holy Nature but yet it shews that the most perfect and absolute imperial Powe may without a contradiction be confined within bounds and limited in the actual exercise thereof and that such limitation of Absolute Imperial Power proceeding wholly from it self doth only qualifie and temper but not destroy the essence of it and therefore Cooke in Cawdrey's Case saith that by the Ancient Laws of this Realm England is an Absolute Empire and Monarchy and that the King is furnisht with plenary and entire Power Prerogative and Jurisdiction and is Supream Governour over all Persons within this Realm Therefore whoever will consider the Original of this limitation of Sovereign Power to have proceeded wholly ab intrinsico from the voluntary Grants of our first Monarchs after the conquest and will also distinguish the Essence from the exercise of Sovereign Power will find there is no contradiction between the fulness of Sovereign Power in the Root or Essence of it and a legal limitation of the use and exercise thereof and from hence it comes to pass that the King of England tho' he be thus limited in the use and exercise of his Power yet he is still as much the Fountain of all Power and Jurisdiction within his Dominions as if he were Arbitrary he hath none to share with him in the Sovereignty but all Power and Authority is derived from him like light from the Sun in him alone it is radically and originally placed he hath no sharers or co-partners with him in the Sovereignty none co-ordinate with him in the Government no Equal no Superiour but only God to whom alone he is Subject Hence saith Bracton omnis quidem sub to ipse sub nullo sed tantum sub Deo non est inferior sibi subjectis non parem habet in regno suo and afterwards ipsâ— autem Rex non debet esse sub homine sed sub Deo Therefore I grant the King is obliged by his Coronation Oath to keep to these limitations which both he and his Predecessors have sworn to yet if he any ways faâ—l in the performance of iâ— this failure cannot give his People any manner of right to take up Arms against him and to resist him in any such case much less can it cause a forfeiture of his Royal Power since being at first the sole Sovereign Power he did not by putting this limitation thereunto intend to part with any share of it to the great Council of the Kingdom or Parliament but only to take them into a part of the care and trouble of the Government and to limit his Prerogative Power from passing any Laws or raising any Money without their assent unless in cases of great necessity and then if he is still judge
our ancient Tenures and manner of holding and enjoying our Lands and Estates as will appear by comparing our Antient Tenures with theirs F. I shall not deny but that a great part of the matter of Fact is true as you have now put it yet tho' I grant that the Bishop Abbots Chancellors Chief Justices and other great Officers of the Crown were all or the greatest part of them Normans during the Reigns of the two first Kings of the Norman Race it doâ—s not therefore follow that these Men must have made a change in the very substance of our Laws tho' in matters of form of pleading or judicial proceedings they might have introduced great alterations for as to the Civil or Municipal Laws of this Kingdom concerning the Descent and Conveyance of Estates they continued the same after the coming in of the Normans and Lands held by Knights Service descended to the Eldest Son and Lands in free Soccage and Gavel-kind to all the Sons alike so likewise there were Estates In tail and Fee simple as now and there were also the like Customs of the Courtesie of England Burrough English c. as there are also at this day as I can prove to you by several passages out of our English Saxon Laws so likewise for Conveyance of Estates those of the better sort of People called Bookland were conveyed by Deeds with Livery and Seisin either with or without warranty as they are now but that which was called Folâ—land held by the meaner sort were only by Livery and Seisin without any Writing And tho' I grant that the custom of sealing of Deeds is derived from the Normans yet that is an alteration only in matter of forn and as for Goods and Money they were bequeathable by a Man's last Will as well after as before your Conquest And if you can have the opportunity to peruse a Manuscript Treatise of Sir Roger Owen's upon this Subject you will find it there sufficiently proved That Livery of Seisin Licenses or Fines for Alienation Daughters to Inherit Trials by Juries Abjurations Utlaries Coroners disposing of Lands by Will Escheats Gaols Writs Wrecks Warranties Felons Goods and many other parts of our Law were here in being long before the time of King William this being so as to the common Law let us see what alterations there were in the Criminal or Crown part of the Law first as to Treason and wilful Murther they were punished with Death in the Saxon times as well as after as were also Robery and Burglary in the night time but as for lesser ofâ—ences such as Batteries Maims Robberies and other breaches of the Peace they were punished by Fine as well before the Conquest as after but as for the Law of Englisherie which was that if a Man were found Murthered it should be presumed he was an Alien or Frenchman and the Town thereupon where the Body was found was to be fined unless Englisherie was proved i. e. that the person was an Englishman this Custom tho' it lasted to the Reign of Edward the Third when it was taken away by a Statute made on purpose tho it may seem a badge of the Norman Conquest yet was it indeed a Law introduced by King Knute in behalf of his Danes who being often found killed and none could tell by whom he obtained this Law to be made to prevent it as you will see at large in Bracton and the Mirrour of Justices But as for trial of all offences it was either by Juries Fire or Water ordinal by Dewel or Battle or else by Witnesses or Compurgators upon Oath as well before as after King William's entrance so that I can find nothing material as to the alterations of the Laws either in matters Criminal or Civil from what they were in the Saxons time and this being so it is easily answered how the Judges and Officers might be Normans and yet the Laws continue English still for first it is certain that for four or five years in the beginning of K. William's Reign he made no great alteration in the Judges and other great Officers of the Kingdom and by that time those whom he was afterwards pleased to imploy in the Rooms of such as either died or were turned out might very well come to understand the Laws of England as far as they distered from those of Normandy which was not in many particulars since as your self very well observed the Saxons and Normans being both Northern People had many of the same Laws and Customs common to both and the same persons might in three or four years time have very well learned English enough to have under stood the Evidence that the Witnesses gave before them without any Interpreter But say you all the Pleadings and Judgments were in French and therefore the Lawyers and Pleaders must be Frenchmen which is likewise a false consequence for Pray tell me why might not the English Lawyers have learnt French enough to Plead in three or four years time which must necessarily be required before so great an alteration could be made or Lawyers enough he brought out of Normandy and sufficiently instructed in our Laws and Customs could be fitted for their employments again supposing all Pleadings and other Proceedings to have been in French it does not follow that this practice could have obtained in all the Courts of England for tho' I grant that in the Kings Court at Westminster where the Judges as you say were for the most part Frenchmen or Normans yet this could only have some effect either in that great Court or Curia Regis where the King often sat in person together with his Chief Justiciary and other Justices or else in the Court of Common Pleas which followed the Kings Court till it was ordained otherwise by Magna Charta or else the Court of Exchequer where in those days only matters concerning the Kings Debts Lands and Revenues were chiefly heard and dispatched but as for the Court of Chancery it was not then used as a Court of Equity nor long after till the Reign of Henry the IV V and VI. when it arose by degrees as you will find in Sir William Dugdale's Origines Iuridiciales So that granting all the proceedings in these Supream Courts to have been in French because the King himself who sat there with the chief Justice and the rest of the Judges were either Normans or Frenchmen yet was this of no great importance in comparison of the Suits and Causes which were first begun and try'd in the Inferiour Courts in the Country before ever they could be brought up to London by Writ of Errour or Appeal which could only be in Causes of great Moment or between the Kings Tenants in Capite So that now to let you see that what say I say is true we will Survey all the inferiour Courâ—s of that time beginning with the lowest and going up to the highest of them The first Court we find of this kind
was that of the free burrough or Tything wherein by the Laws of King Edward the Confessor the Tythingman or Head burrough was the Judge who as that Law tells us determined all suits and differences arising among Neighbours of the same Tything concerning petty Trespasses on one anothers grounds which if they could not be there determined might then be brought before the Court Baron which was incident to every Mannor and wherein the Suitors and not the Lord nor his Steward were the Judges and this as Sir Edward Coke tells us was first instituted for the ease of the Tenants and for the ending of Debts and Damages under Potty Shillings at home as it were at their own doors and let me tell you by the way that sorty Shillings was theo near as much as forty pound is now and if the business could not be ended here or was of too high a nature it was then brought into the Hundred Court where the Hundreder together with the Suitors were Judges and if they had not Justice there they might then remove it into the Court of Trithing or Lathe which was not the smaller Court of the Tithing mentioned nor yet the Court Leet but a particular Court consisting of three or four Hundreds which tho' now quite lost was in being at the time of the Statute of Merton as I shall shew you by and by and if the business could not be decided in the Trithing it was then removed to the Shire or County Court as Mr. Lambert shews in the Laws of King Edward which was then held as now from Month to Month and in which as well as in the Hundred Court the Suitors alone were Judges and tho' it can now only hold Pleas unless it be by Writ of Justices of any Debt or Damage to the value of Forty Shillings or above yet we â—ind from ancient Authors that this Court was so considerable that we have diverse examples of Causes between the greatest Persons of England and for Lands of great value begun and determined in this Court thus Eadmertes relates the great Trial at Pinnesden-heath between Odo Bishop of Bayenâ— half Brother to your Conqueror and by him created Earl of Kent and Lanfrank Archbishop of Canterbury concerning divers Mannors in Kent and other Counties whereof Earl Odo had diseized the See of Canterbury in the time of Arch-bishop Stigand his Predecessor whereupon the Arch-bishop Petitioned the King that Justice might be done him secundem Legem Terrae and the King thereupon sends forth a Writ to summon a County Court the debate lasted three days before the Freemen of the County of Kent in the presence of many Chiefmen Bishops and Lords and others skilful in the Laws and Judgment passed for the Arch-bishop Lanfrank by the Votes of the Freemen Or primorum or proboâ—â—â— hominum as the Historian calls them So that to conclude this head if no suit could be begun in those days but what was first commenced in the Hundred Court no distringas could issue forth till three demands were made in the Hundred and from thence to be removed to the County Court where regularly all civil causes were try'd by the Suitors as the only Judges as well as in the Hundred Court and Court Baron then it will necessarily follow that unless you can prove which I think is impossible that all the English were at that time Slaves and Villains and had no Free-hold of any sort left them that all Pleading and Proceedings in any of those Courts being before meer Englishmen must have been in English and no other Language so that after all this great cry nor a twentieth part of the Suits in England were brought to London And as for Criminal Causes unless in cases of Treason all Murthers and other Felonies were Tryed and Judged in the Country either within the particular Jurisdictions of Bishops Abbots or great Lords or else of such Cities and Towns who had the Priviledges of Infangthief and Outfangthief together with Fossa and Furca that is a Pit to drown and a Gallows to hang Malefactors and if the offence was done in the body of the County they were then tryed and condemned in the County Court Justices Itinerant not being in use till Henry the seconds Reign M I must confess you have given me a great deal of light in these matters more than I had before but as I shall not dispute whether in the lowest Courts such as the Tythings and Court Barons the smaller English Free-holders might not Judge of Petty causes amongst themselves yet that in those greater causes were brought in the Hundred and County Courts which only the greater Fleemen of the Hundred or County were Judges who these Freemen were Dr. B. hath sufficiently taught us in his Commenes upon the Conquerors Laws as also in his Glossary viz. That they were Tenants in Military Service who in those times were the only great Freemen of the Kingdom and quite different from our ordinary Free-holders at this day These were the Men the only legal Men that named and chose Juries and served on Juries themselves both in the County and Hundred Court and dispatched all Country business under the great Officers I do not deny but that there might be other lesser Freemen in those times but what their quality was farther than that their Persons and Blood was Free that is they were not Nativi or Bondmen it will give a knowing man trouble to discover it to us we find in every leaf of Doomesday Socmen liberi homines Possessors of small parcels of Land but what there quality was and of what interest in the Nation Dicat Apollo no Man yet hath made it out nor can it be done by the account we have of ordinary Free-men for a Century or two last past And for further proof of this That none but Tenants in Capite or Military Tenants at least could be Judges in the County Court appears by the Laws of King Henry the first wherein it is expresly said Regis Iudices Barones Comitatus qui liberas in t is terras habent per quos debent causae singulorum alterna prosecutione tractari c. So that these Barons of the County being certainly Feudal Tenants this service of being suitors to the County and Hundred Courts was a service incident to their Tenures and then it will also follow that those Primores and probi Viri who as you have now related tryed this Cause between Earl Odo and Archbishop Lanfranc and who let me tell you were not only of the County of Kent but of other Counties in England where the Mannors and Lands lay as Eadmerus shews us and who were the Jurors in this great Cause consisted of the great Military Tenants that were not Barons and the less which were the Probi Viri for it can be no ways probable that the ordinary Freemen which made the greatest number and were all bound to
Heirs within age of such Tenants but this extended not to the Tenures of the Subjects by Knights Service as it appeareth by Bracton Dicitur Regale seâ—vitium quia spectat ad dominum Regem non alium secundum quod in Conquestis fuit adinventum c. Whereupon Sir E. C. notes in the Margent the Tenure as before it appeareth was not then invented but the fruits of this Tenure of the K. viz. Wardship and Marriage which was Bracton's meaning so as the Conqueror provided for himself but other Lords at the first by special reservation since the Conquest provided upon gifts of Lands for themselves Regis ad exemplum totuâ— componitur orbis wherein that which we had from the Conqueror we freely confess F. I shall not dispute his matter since it is doubtful whether this custom of Wardship was Norman or whether it was derived from the Saxons who possibly might have some respect to Orphans in such cases to train them up for the publick Service in point of War especially being possessors of a known right of Relief as well as Alfred the Saxon King did undertake the work for the training of some particular persons in learning for the service of the publick in time of Peace and Civil Government and tho' Sir H. Spelman is of opinion in his Title de Wardiâ— that Wardship of the Heir came in with the Conqueror yet Sir Iohn his son who was also a learned Antiquary in his Epilogue to his second book of K. Alfred's Life Printed at Oxford speaking of Military Fees granted to the Kings Thanes has this passage Haec etiam Fioda baeredibus sub Hereoti siâ—e relevaminis cujus piam quod haeres in terrae redemptionem Regi solvere tenebatur conditione plerumque transibat si haeres minor natu à Patre moriente relinquebatur Regi educatio â—jus utpoâ—â— Regis Hominis committebatur in utilitatem etiam commodum ipsius Regis But whether the Wardship of the Body of the Heir was in use in K. William's time or before is uncertain for the land is in the Charter of Henry the first in Mat. Paris granted either to the Widdow or next heir But let these customs be derived from whence you please it is a plain case it could be no badge of Conquest upon the People of this Nation and that by the Doctors own shewing for were it a Norman custom never so much if your Conqueror first of all imposed it upon those he brought over along with him it could never be a badge of Slavery upon the English Nation but rather upon the Normans upon whom it was chiefly imposed and if they afterwards granted Lands to the English upon the same terms they held them themselves they were no more Slaves to whom they were granted than they were under whom they held them but indeed this was so far from being looked upon as my badge of servitude that if the Dr. himself is to be believed these were the only Freemen and their services Bracton says were so notoriously free that in Writs of Right it was never mentioned because so well known Notandum in servitio Militari non dicitur per Liberum servitium ideo quod Constat Quia tale Servitium Liberum est And hower Rigorous the Feudal Law might be at the beginning it was when your Conqueror came in so far mitigated as to the rigour of it that the Tenants by Knight Service were not only free by K. William's Law from all Arbitrary Taxes and Tallies but also obtained a setled Inheritance to them and their Heirs as appears by that clause in K. William's Charter and therefore in the Reign of Henry the Third when William of Warren Earl of Surrey was questioned after the Statute of Quo Warranto by the Kings Justices by what Warrant he held his Lands pulling out an old Sword he answered to this Effect behold my Lords here is my warranty my Ancestors came into this Land with William the Bastard and obtained those Lands by the Sword and I am resolved with this Sword to defend them against any whosoever shall go about to dispossess me for the K. did not himself alone Conquer the Land but our Progenitors were sharers with him and assistants therein As for what you say That the Laws in the Customary of Normandy are the same with the Laws of England It is no more than what divers French Writers have taken notice of but do not attribute their agreement to their being borrowed from the Normans but quite contrary for in the first place most of the Learned Men say That the first establishing of the Customary of Normandy was in Henry the first 's time and afterwards again about the beginning of Edward the seconds time when Normandy was not under the King of England and Sâ—querius a French Author relates that K. Henry I established the English Laws in Normandy and with him do also agree Gulielmus Brito Rutilarius and other French Writers who mention also that the Laws in the Customary of Normandy are the same with the Laws collected by our English K. Edward the Confessor who was before the Conqueror an additional Testimony hereof is out of William de Reville de Alenson who in his Latin Comment upon the Customary proves and demonstrates that the Laws and Customs of Normandy came from the English Laws and Nation either not long before or after Edward the Confessor's time In the Customary there is a Chapter of Nampes or Distresses and it is there decreed that one should not bring his action upon any seisure but from the time of the Coronation of K. Richard and this must be our K. Richard the first because no K. of France was ever of that name and the words Nampes and Withernams were Saxon words taken out of the English Laws signifying a Pawn or Distress and in the same sense are used in the Customary But if you have nothing more to object against what I have now said pray proceed to your last head and let me see how you will prove that the English lost all their antient Liberties and Priviledges which they enjoyed under the English Saxon Kings M. I never heard so much before concerning the Original use of the French Tongue in our Reports and Law Books but yet this much I think you will not deny first that the Norman French was never used in our Courts of Justice till after the Conquerors entrance Secondly That he did his endeavour totally to root out the English Tongue by ordering of Children to learn the first rudiments of their Grammer in French and as for what you have said concerning the Customary of Normandy being especially as to Tenures derived from the English Laws and Customs I do not deny but that it may be the opinion of some French Writers that it was so but I shall believe it when they can prove that the Wardships and Marriage of the Heir of the
a generous Prince a Nephew and a Son-in-law and one who was bound in Conscience and Honour to consult the lasting Peace and Happiness of the Nation more than his own private interest or the ambition of wearing a Crown F. You have made the utmost defence that I suppose can be brought for the King 's first going away yet if it be better consider'd I doubt it will not serve the turn I see you are forc'd to lay the whole fault of the Kings departure in the midst of the Treaty with the Prince and his refusing to call a Parliament according to his own Promise and Proclamation upon his want of security for himself the Queen and Prince if he had stay'd by reason of the want of fidelity in his Army the general prejudice of the Nation against him and the great firmness and resolution there was in the Princes Army to adhere to him Now I shall shew you that every one of these were but pretences and that the real cause of his departure was because he fear'd to leave the inquiry into the Birth of the Prince of Wales and the free examination and redress of our grievances and those violations he had committed upon the fundamental constitution of the Government to the impartial judgment of a free Parliament For in the first place as to want of fidelity in his Army that can be no just excuse for his deserting and disbanding them as he did without any pay since he himself in his said Letter to the Earl of Feversham expresly owns that there were a great many brave men both Officers and Souldiers among them and therefore if he was satisfied of this he ought to have first sent for all his Officers both Collonels and Captains and have examin'd them how far they would stand by him in the Defence of his Person and Cause against the Prince of Orange and he might have also order'd those Officers to have examin'd every Regiment Troop and Company in his whole Army how far they would engage in his defence and if he had proceeded thus at Salisbury before he fled away in that confusion to London I have been credibly inform'd by divers Officers of that Army that the King might have found above Twenty Thousand men that would have stood by him to the last man in his Quarrel against the Prince and therefore I impute his going away as he did from Salisbury to some strange pannick fear that God had cast upon him and all the Popish Faction about him since he has been known not to want sufficient courage upon other occasions but though he had omitted it there yet he certainly ought to have tryed this last experiment after he came to London rather than have quitted the Kingdom so dishonourably as he then did and thereby giving the P. of Orange's Friends an opportunity of seizing or getting delivered into their power all the Garisons and strong places in England besides Portsmouth in those three or four days time that he was not heard of besides great part of the Army that was not disbanded had in that time gone in to the Prince in hopes of their pay and future preferment now that the King might with safety have resided with his Army somewhere about London he himself grants in his Proposals to the Prince to this effect That in the mean time till all matters were adjusted concerning the freedom of Elections and a security of their sitting the respective Armies may be retained within such Limits and at such distance from London as may prevent all apprehensions that the Parliament may be in any kind disturbed which Proposals being made not long after the Kings arrival at London we may reasonably suppose that he was then well enough satisfied with the fidelity of the greatest part at least of his own Army to him and if he were not he might have been better satisfied if he pleased but as for the next difficulty the Nations being poisoned and prepossessed against him admit it were so as long as he had a sufficient Army about him as I suppose he might have had he need not have feared any thing the People could do but indeed this was a needless fear for before the Parliament could sit it was not the Peoples Interest to hinder it or to fall upon the King or his Army when matters were in a fair way of accommodation so after the Parliament sate there would have been less cause of fear since the reverence of that Court would have kept them in awe but as to the firmness and resolution of the Princes Army the fear of that was also as needless as long as the Kings Army continued as firm to him and if the Princes Army had been the first Agressors I doubt not but the People would have taken part with the King against them but after all it was certainly and you must grant it so much more safe and honourable for the King to have treated with the Prince and held a Parliament with an Army about him than to have yielded the same things as you suppose him willing to have done after his return to Town when his Army was disbanded and London had received the Prince and had joined with him and when almost all the strong places of England were in the Princes power so that upon the whole matter it evidently appears that the King chose to trust his own Person together with that of the Queen and Prince to a Foreign Monarch rather than he would relye upon the justice or fidelity of his own Nation You say in the next place that nothing the King has done in all these exorbitances he committed that can in any wise amount to a Forfeiture or Abdication of the Government not to the former because the King redress'd all our Grievances before he went away 't is true I grant he redressed some of them by putting divers things in the same State they were before yet for all this the greatest still remained unredressed viz. the Raising of Mony contrary to Law and the Dispensing Power both which as I have already shewed you at our last meeting he never Disclaimed neither took any sufficient course by Calling a Parliament to prevent its being exercised for the future besides his going away without giving the Prince and Nation any further Satisfaction about the Birth of the Prince of Wales all which not being done I must still affirm that this wrought a forfeiture of the Crown or an Abdication of it at least by his refusal to Hold and Govern it according to the Fundamental Laws thereof for he that destroys the Law or Conditions by which he holds an Estate does Tacitly Renounce his Title to it As I shewed you in the Case of Tenant for Life altering in Fee So that this being considered as also that the City of London and the whole Nation had Surrendred themselves to the Prince of Orange and that even the Arch-Bishops of Canterbury and York
which may oftentimes tend to quite other purposes than what we suppose As for the next Clause by breaking the Original Contract I have heard that divers of the Lords and Bishops who were for the King against this new Invention of an Abdication put the other side very hard to it to make out this Original Contract and desired them to shew in what part either of our Common or Statute Law it was to be found for they knew no such Maxim in the Common Law nor no such Clause in any Statute Aucient or Modern And though I confess you have undertaken to prove to me that there is such a thing yet it has been only by Far-fetch't Consequences and from the Old Form of Government among the Saxons of above 600 years standing which iâ— there were any such thing it is now become so Antiquated and out of Date that neither the King himself nor yet our Lords Bishops or Judges except some few Lawyers of your Kidney ever before now thought of any such thing I pass by the next Clause by the Advice of Jesuits c because I cannot say by whose Advice those things which you call Breaches of the Fundamental Laws were acted but as for the next wherein the Violation of these Fundamental Laws is lay'd to his Charge I confess you have given me a prety large Catalogue of these Fundamentals at our 9th meeting which yet you cannot say are to be found together in any one Law but are to be picked up here and there out of Magna Charta and divers other old Statutes but since the King and Parliament have declar'd in the first year of King Iames I that there are such things as Fundamental Laws and Priviledges I will not deny there are none yet certainly any Breach of them by the King was never intended to Create a Forfeiture of the Crown for if it had I think there would have been but few Kings or Queens of England which would not have forfeited who for some one or more of these Breaches committed in their Reigns by the Advice of their Judges and Councellors as these were lately by the King For I suppose you cannot expect that Princes should see any otherwise in matters of Government than by other Mens Eyes nor hear but by other Peoples Ears And therefore if the wilful Breach of these Fundamentals must cause a Forfeiture or Abdication of Government call it which you please methinks it had been reasonable for the Parliament to have given a list of these Fundamentals in some one Law that the King might have been sure to have avoided the Transgressing of them and fear of losing both his Royal Dignity and his penalty ought also to have been declared But the next Clause deserves more particular consideration viz. and having withdrawn himself out of the Kingdom hath Abdicated the Government now I must confess it is the first time that ever the Kings going away for fear of losing both his Royal Dignity and his Life and that with a declar'd design and intention to return again to the exercise of the Government when ever he might do it with safety should be judged a wilful Dessertion or Abdication I am sure there is nothing in our Common or Statute Laws that can at all warrant this Notion for Common Law is nothing but Ancient usage and immemorial Custom Now Custom supposes presidents and parallel Cases But it 's granted of all Hands that the Crown of England was never judged to be Abdicated by the withdrawing of the Prince before now And therefore it follows by undeniable consequence that this Opinion can have no Foundation in the Common Law because there is not so much as one ruled Case to prove it by But if we come to those presidents we have in our English History I shall give you such of them as I can remember we read in the Reign of Edward the 2d that when he fled from the Forces of his Wife and Son who had seized the Kingdom by Force the King being deserted by his Souldiers and Followers indeavoured to get into the Isle of Lundy for safety but not being able to make it was driven back and taken in Disguise at the Abby of Neath in Wales as the King was lately at Feversham now it is certain that King Edward went away without appointing any Governour of the Realm in his absence and if this Notion of an Abdication had been then taken for Law the Parliament needed not to have been put their to Shifts to find out so many other matters for which to depose him The next is the like case of King Edward the 4th who when the Earl of Warwick had Raised a great Army against him on a suddain and forced him to fly with a few followers to the Duke of Burgundy his Brother in Law though Henry the 6th was again put into the Throne yet was it not objected against King Edward that he had lost his Title to it or that it was become vacant by his Deserting it and if these two are not parallel Cases and do not reach the matter in hand I desire you to shew me wherein they differ from the present Case of the King But I am come now to the last clause of all that the Throne is thereby become vacant which seeming only to refer to the clause of Abdication I think I have said enough already against that Notion Therefore we will admit at present for Discourse sake that the King had really Abdicated the Government by Deserting the Kingdom and thereby wholly lost his Regal Power Now according to the Fundamental Laws and Customs of this Realm which is you know an Hereditary Monarchy the eldest Son or other next Heir either Male or Female immediately Succeeds the King his Father or other Predecessor and that without any inter-regnum at all so that the Reign of the Successor immediately begins from the very moment the Last King or Queen Deceases this being the setled Law I cannot see any one step the Convention has made in their whole proceeding that can be justified by the Fundamental Laws of the Land or the Laws of Equity and Justice for Equity has no quirks in it nor ever lies at a catch Reason is always just and generous it never makes mens misfortunes an accusation nor judges in favour of violence for indeed what can be more unrighteous though in the Case of a private person than that any one should suffer yet worse for being injured and be barred his rights for the injuries of others If a man should forfeit his House to those who set it on Fire only because he quitted it without giving some formal directions to the Servants or be obliged to lose his Estate for endeavouring to preserve his life I believe it would be thought a strange piece of Justice in any Law whatever and if this be proved illegal the Title of your Present King and Queen being wholly founded upon the validity
Act are declared absolutely void yet the said Lord Chief Justice likewise proves that this Clause of Non-obstante is void and he makes this out not only from constant practice in other Statutes of like nature but also from the opinions of Plowden and the said Lord Cook first as to the Statutes there is a Statute of the 23. of Henry the VI. that no man shall be Sheriff for above a year 2. That all Letters Patents made for Years or Lives shall be void 3. That no Non-obstante shall make them good which shews that the Parliament thought the King could otherwise have dispenc'd with this act by a Non obstante there is likewise in this Act a Penalty of 200 l. and the party is also disabled from bearing the Office of Sheriff in any County of England and also every Pardon for such Offence shall be void so that in all respects this Statute answers that of King Charles the II. now in dispute only in this the Penalty to the Prosecutor is higher viz. 500 l. and the disability is not only from holding that Office but any other whatsoever for the future And yet it was resolved by all the Judges of England in the second of Henry the VII in the Exchequer Chamber upon the Kings Power of Dispensing with this Statute of the 23. of Henry the VI. that the Kings Dispensation with that Statute was good and so it hath been held ever since for it is very well known that the King hath not only exercised this Prerogative of Dispensing with this Statute for divers Sheriffs holding more than a year but hath also granted this Office for Life aâ— appears by the same case cited by Plowden in his Commentaries between Grendon and the Bishop of Lincoln where he expresly says That notwithstanding this Statute of Henry the VI. the Kings Grant to the Earl of Northumberland to be Sheriff during Life ought to have a Clause of Non-obstante because of the precise words of the Statute before mentioned and with such a Clause of Non-obstante the Patent to the Earl was good But yet my Lord Cook is more express in his opinion concerning these Dispensations for in his twelfth Report he has these words No act can bind the King from any Prerogative which is sole and inseparable to his Person but that he may Dispence with it by a Non-obstante as a Sovereign Power to command any of his Subjects to serve him for the publick Weal and this solely and inseparably is annext to his person and this Royal Power cannot be restrained by any Act of Parliament neither in Thesâ— nor in Hypothesi but that the King by his Royal Prerogative may Dispence with it for upon the commandment of the King and obedience of the Subject do's his Government consist and therefore for this reason he allows this Judgment of all the Justices in England in the second of Henry the VII to have been according to Law that Judg'd the Kings Dispensation with this Statute of Henry the VI. to be good and he also instances in another Statute in the fourth of Henry IV. in which it is ordain'd That no Welshman should be Justice Chamberlain c. nor any other Officer whatsoever in any part of Walts notwithstanding any Patent made to the contrary with Clause of Non-obstante licet sit Wallicus natus and yet without question the King may grant those now Offices to Welshmen with a Non obstante and the said Lord Cook in Calvin's case tells us That the same was resolved by all the Judges of England viz. in 2. of Hen. VII that every Subject is by his natural Allegiance bound to serve and obey his sovereign c. and he then proceeds to recite the Statute of the 23. of Henry the VI. and the opinion of the Judges above mentioned and gives us this reason for it for that the act could not barr the King of the service of his Subject which the Law of Nature did give unto him This is there reported as the sense of all the Judges of England in King Iames his time and therefore since this has been ever the opinion of the Judges and a constant Prerogative exercis'd by the King ever since I desire you would shew me any difference why the Kings Dispensation to a Sheriff should be good for the holding of his Office for above a year norwithstanding the Statute of Henry the VI. and yet a Dispensation for the taking or holding any Office or Command Civil or Military without taking the Oaths and Tests appointed by the 25. of Charles the II. should be declar'd a breach of our Fundamental Laws for I can see no manner of difference between them since their preambles set forth the designs of the Law much to the same purpose viz. That of making the Statute of Henry the VI. is the insupportable damage of the King and his People Perjury Man-slaughter and great Oppression and in the Statute of King Charles the II. the mischiefs recited are of a much less nature viz. for preventing dangers which may happen from Popish Recusants and quieting the minds of his Majesties good Subjects So that the Subject of neither of these Acts being Mala in se but only Mala prohibita if the King might Dispence with the one he may certainly do as much with the other for the same reasons Therefore if this be so I need not say much against the second Article in the Declaration of the Convention against the Kings proceedings viz. His committing and prosecuting divers worthy Prelates for humbly Petitioning to be excused from concurring to the said assumed Power for if by the opinion of all or most part of the then Judges the Kings Power of Dispensing with this Statute of King Charles the II. was good it was certainly much more lawful in Dispensing with all other Statutes against Papists and Non-conformists since they are no more than bire Penal Statutes without any Clauses of Non-obstante and though I grant that King Charles's Declaration giving a Toleration to Papists and Dissenters by Dispensing with all the Acts against Masses and Conventicles were declared Illegal by the House of Commons in the year 1672. and that the King to get a good lump of Money did recal that Declaration yet was it never declared by him to be Illegal only that it should not be drawn into consequence for the future and you know an Address or Declaration of the House of Commons alone was never looked upon as a Declaration of Parliament and the opinion of the Judges hath ever been that no Statute or Judgment of Parliament can bar the King of his Lawful Prerogatives of which this of Dispensing with such Penal Laws is one so that it was certainly very undutifully done of the Bishops not only to deny distributing his Majesties Late Declaration for Liberty of Conscience in their several Diocesses but also to have the confidence to give him a Petition wherein they desir'd
Kings to obtain these publick liberties could ever entertain such a thought concerning them but to let you see that the Law concerning the Oaths and Tests are not only for the publick good of the Common Wealth and that the King is not the sole Judge when they may be dispenced with appears plainly by this that the Law for taking of the Oaths and Test has given every particular person a right to prosecute any one that hath acted contrary to it and the penalty of 500 l. is given wholly to the Prosecutor which shews plainly that the intent of the Law was to make it every mans particular care as well as benefit to see it observed M. Since it grows late I shall not further dispute this point with you of the Kings dispensing power though I had a great deal more to urge in defence of it for notwithstanding all you have said against it it is now counted so inherent a Prerogative and in many cases so necessary for the benefit of the Subject that the Convention it self after a great deal of dispute about it though they had condemn'd the King for assuming and exercising a power of dispensing with and suspending of Laws without consent of Parliament yet in this very Declaration when they assert their Antient Rights and Liberties they only declare That the pretended power of dispensing with Laws or the execution of Laws by Regal authority as it hath been assumed and exercised of late is Illegal which shews that they do not go so high as you who seem to be absolutely against any such thing F. You very much mistake me if you say so for though I maintain that antiently till about the middle of the Reign of King Henry the III. there were no dispensations at all either because they were not thought necessary or else that Penal Laws were not then multiplied to that degree they have been since yet since they have been now so long in use and do I grant often tend not only for the benefit of the King but also of the Subject I do no way 's condemn them provided they are restrain'd within those due limits prescribed by the lite Chief Justice Vaughan in the case above mentioned and when they do not tend to the common mischief and ruine of the Protestant Religion establishâ— by Law and the Rights and Liberties of the Subject nay I grant in times of necessity as in the coming over of the Duke of Monmouth for example the King might Justifie the granting Commissions to Popish Officers and therefore the Parliament did very well to offer the King to prepare an Act to indemnifie them from the penalties they had incurr'd by acting without taking the Test so that when the King utterly refused this reasonable proposition and chose to dissolve the Parliament rather than he would permit them in the least to question on this usurpt power what could be farther expected than that He was resolved to execute it whether the Parliament would or not as we afterwards sound he did But admitting he really had been indued with this Prerogative yet was it still under a trust not to abuse it so notoriously as he did by granting it to every Apostate Person Officer or Judge that required it and I doubt not but if he had govern'd a little longer but we might have found it granted to Bishops likewise as soon as he had thought fit to make them of his own Religion for tho' the King for example has an undoubted prerogative of pardoning Robbers and Highway-men yet if he should so far abuse his Prerogative as to pardon every Robber that was taken I leave it to you to consider whether such a Government could long subsist I shall not apply this case to these dispensations because they say comparisons are odious These things being apparent I think it would be very easie to vindicate that clause in the Declaration concerning the Bishops for if the Kings Declaration was unlawful as certainly it was not only by reason of the Dispensing Power we have been now disputing about but also for one main clause in it which I have yet but lightly touched which is this We do likewise declare it is our Royal Will and Pleasure that from henceforth the execution of all and all manner of Penal Laws in matters Ecclesiastical for not coming to Church or not Receiving the Sacrament or for any other Non-conformity to the Religion establisht or for or by reason of the Exercise of Religion in any manner whatsoever be immediately suspended and the farther execution of the said Penal Laws and every of them is hereby suspended So that by this Clause in the Declaration not only the Laws of our Reformation but all the Laws for the preservation of the Christian Religion in general were suspended and become of no force since every man might not only chuse whether he would come to Church or not but also all Priests and Ministers were hereby indemnified from either Praying or Preaching in the Churches as well as their Parishioners freed from Hearing them so that not only all the Laws of our Reformation were at once suspended but those of Christianity it self by these words or for or by reason of the exercise of Religion in any manner whatsoever nor is it confined to the Christian Religion but all other Religions even Mahometanism it self were thereby permitted But perhaps it may be urged that the execution of the Law is only hereby suspended and not the Law it self which is a meer evasion for what is the external obligation of any Law but it's execution in order to obedience which if it be once taken off there can only then remain the naked internal obligation in foro conscientiae and with how sew this is of any weight you understand so well I need not tell you So that by this Declaration â—he King took upon him to suspend above forty Statutes at once concerning our Religion and if he could do so I desire to know whether he might not the next week have suspended forty more even concerning our Civil Properties likewise and so might have proceeded till he had suspended all the Laws in the Statute Book nor are those Laws suspended for any limited time but during the Kihgs Pleasure and this not only a bare suspension for a time but in effect a down right abrogation of them for what is an abrogation of a Law but the taking away the force of these Statutes without any time limited And if this be not to usurp the Sole Legislative Power I know not what is and if this were once commonly put in practise Parliaments would signifie nothing and the Legislature would be wholly in the King this was so evident that it was granted by one of the Judges at the trial of these Bishops If therefore this were the truth of the case I cannot see wherein the Bishops that presented this Petition to His Majesty acted at all undutifully towards him as you
President and Fellows of Magdalen Colledge and that Prosecution that was lately order'd against all those Bishops and inferior Clergy who had refused to distribute or read the King's Declaration though I confess there was a stop put to this upon re-calling this Commission Immediately before the Princes Arrival So likewise for the other Article of levying Money contrary to Law that was also without any opinion of the Judges at all demaâ—ded about it for the illegal collection of Chimny Money by making Cottages and Ovens pay that were exempted by the Acts concerning it and also the illegal levying of Excise by making Small-Beer pay the Duties of Strong were all of them acted and done by particular directions from the Treasury or by the private abuse of the Farmers of the Excise without any opinion of the Judges and of these Orders his Majesty could not chuse but be the Author or approver at least since 't is very well known he constantly satâ— there when any great Business was to bâ— transacted and the Lord Treasurer or Commissioners of the Treasury would certainly never have presum'd to have issued out their Orders in a Case of so great moment if they had not been very well satisfied that it was his Majesty's express Will and Pleasure to have iâ— so And I my self have now by me a Copy of the then Lord Treasurers Directions to the Officers appointed for the levying of Chimney-money commanding them to levy it upon all Cottages and Ovens whatsoever which was done accordingly with the utmost rigour which though it was a very great oppression yet since it chiefly concern'd the poor and ordinary sort of people who had not purses to go to law with the King or else such Gentlemen and others who though they were forced to pay for their poor Tenants yet did they not think it worth their while to bring iâ— before the Barons of the Exchequer where as things then went they could not expect to find much Justice I shall not insist upon the King 's taking the additional Customs contrary to the Act of Parliament by which they were granted to the late King Charles only for life and though in his last Sickness there was a Contract for the new farming of them by vertue of which I grant the King might have justified the taking of them till the end of the Farm yet since that Contract never passed the Seals during the King's life-time it was certainly against Law for the King to take them before they were re-granted by Act of Parliament I say I shall not insist upon this since the Parliament were so easy as to pass it by without declaring it to have been illegal only it sufficiently shows that from the very beginning of the King's Reign he was resolv'd to govern arbitrarily and to levy Money upon the Subject whether the Law gave him any Authority to do it or not But as to what you say concerning the Judges being wholly in fault for all the unjust and illegal Proceedings exercis'd in their Courts and that the King was wholly faultless I should be of your mind had I not seen that all those Judges who would not agree to the dispensing power and other illegal Judgments I could name were turn'd out and others either Papists or of less consciences than Papists were put in their places which were not conferr'd for any longer time than durante bene placito and therefore no wonder if such men were absolute slaves to the King's will and pleasure M. I had much more to say in defence of the King 's raising and keeping up a standing Army and his disarming Protestants in and after the Duke of Monmouth's Rebellion which are laid to his charge as endeavours to destroy the Rights and Liberties of this Kingdom But since it grows late I shall only now take notice of something which I forgot to insist upon concerning your Notion of the King 's obdicating the Crown by a wilful breach of the Laws which is quite different from the sense in which this Word is taken in Roman Authors as also in our Civil-Laws For when Cicero uses the Expression Itaque tutela me abdicare togito Brison tells us his meaning was se nolle esse tutorem But Pompenius in his Book De orig Iuris gives us the true sense of this Phrase Abdicare se Magistratu est ante tempuâ— Magistratum deponere which plainly shows the Romans had no notion of a Tacit or imply'd abdication of a charge or Majestracy without a man's express consent and therefore if the Kings bare desertion of the Kingdom was not an Abdication of the Throne as you your self are forced to grant I cannot imagine how the King's violation of the Laws or endeavouring to subvert the Government both which you lay to his charge can properly be call'd an Abdication of it so that indeed the King hath not abdicated the Government but your Convention hath abdicated him And tho we often read in our Civil-law That a Father might abdicare filium yet I never read or can you show me any Example that a Son might abdicate a Father or Subjects their Prince F. You discourse upon a wrong ground for I never affirmed That Subjects had any authority to abdicate or depose their Prince nor hath the Convention assum'd any such power to themselves what they have done in this affair hath not been authoritative or as taking â—pon them to call the King to an account for his actions or to depose him for his misgovernment but only declarative to pronounce and declare as the Representatives of the whole Nation that by endeavouring to extirpate the Protestant Religion and to subvert the Fundamental Laws and Liberties of the Kingdom he had wilfully I do not say willingly Abdicated the Government that is renounced to Govern this Kingdom any longer as a lawful King which I take to be a tacit or imply'd Abdication of it as I have already proved and to shew you farther that even Tully himself allows in our sense of an imply'd Abdication in his third Philippicks when he says thus concerning Mark Anthony that for his offering a Crown to Caesar Eoâ—die-non modo Consulatu sed etiam libertate se abâ—itavit c. where you see Mark Anthony is said to have Abdioned the Consulshâ—p without any express Renunciation of it for Caesar might have continued him in it after he had been declar'd Emperor M. I grant your Authority to be good yet even in this sense this Abdication of the Consulship could only take its effect from Anthony's owâ— Will for offering a Crown to Caesar if he did not expresly yet he effectually renounced his Consulship for had Caesar accepted in he could no longer have been the Consul of a Popular State but must thenceforth have acted by authority from Caesar or not at all but then this would not have agreed with your Noâ—on of a Forfeiture which always supposes a crime and a depriving the party
notwithstanding all you have alledg'd against it which yet is no more than what you said before that Duke Robert had an Hereditary Right and therefore he could not be put by which is to beg the Question for you cannot prove to me that he had this Right either by the Law of Nature the Law of England or the Law of Normandy not by the two former as I have already prov'd for your Conqueror himself being a Bastard had no better Title to the Dutchy of Normandy than his Father's last Will before he went to the Holy Land which was not good without the consents of the Nobility of that Dutchy as appears by the Historians of that time so that the greatest Objection you have to make against King Henry's being elected in a true Common-Council of all England is this that the time was so short between the Death of William Rufus and his Election that it was impossible for all the Parties that had Votes to be there present which is a very bold assertion for how can you or your Doctor tell that at the time when King William was kill'd he might not then have held a great Council at Winchester where he then Lay who might immediately upon his Death chuse his Brother Henry for their King for it is certain the Election was there the Day before his Coronation at London and therefore it is very rashly done to affirm that this Election was not in a Common-Council of the Kingdom when all the Historians and particularly W. Malmesbury tells us the manner of it and the Disputes there were about it viz. that Henry was elected King as soon as King William's Funerals were over Aliquantis tamen ante controversiis inter proceres agitatis c. and H. de Knyghton reciting the cause why Duke Robert was set aside viz. because he had been always contrary and unnatural to the Barons of England therefore quod plenario consensu consilio totius Communitatis Regni ipsum refutaverunt pro Rege omnino recusavâ—â—â—nt Henricum fratrem in Regem erexerunt which plainly shews that it was the opinion of all the Antient Writers out of whom Knyghton took this passage that this election was made by the free consent and in a full Council of all the whole Community of the Kingdom nor does the after claim of Duke Robert to the Crown at all alter the case for the reasons already given as also because the agreement that was made between them that he that surviv'd should succeed the other was never confirm'd or agreed to by the great Council of the Kingdom and therefore those Norman Lords that join'd with Duke Robert here in England are justly taxed by William of Malmesbury and the Saxon Chronicle with Infidelity and Rebellion and though I grant that Mat. Paris or rather Roger of Wendover whom he transcribes seems to condemn King Henry's taking the Crown as unjust and contrary to Right and that he therefore feared the Justice of God eò quod fratri suo primogenito cui jus Regni manifestè competebat temere usurpando injustè nimis abstulcrat yet this author writing about the middle of the Reign of King Henry III. who had succeeded his Father by a pretended right of Inheritance as well as Election it is no wonder if He who writ near a hundred years after this transaction should give his judgment in this matter according to the common opinion and prejudice of that age and must certainly speak by guess for how could he otherwise affirm unless he had been acquainted with that Kings thoughts as he doth in the same place that he felt conscientiam suam in obtentu Regni cauteriatam since no other Writer either of that time or after it does thus blame King Henry for taking the Crown But as for the account you give why Duke Robert never took upon him the Title of King if the Throne had not then been looked upon as vacant because of the agreement which he made with his Brothers by which he parted with his Right for a Pension during his Life is not at all satisfactory for in the first place neither of these agreements were made till above a year after his pretended Title did acrue to him by the Death of his Father and Brother and therefore he ought if he had look'd upon himself as true King to have immediately taken the Title upon him which he never did so likewise the agreement it self makes wholly against your notion of any hereditary succession to the Crown to be then setled since the main clause in both these agreements is that the survivor should be heir to him that died first unless he left Children of his own to succeed him which plainly shews that in the opinion of both those Princes and of the great men that swore on either side to see it observed they knew of no such setled Right of Succession in their Heirs which they themselves could not part with or else this Clause had been wholly in vain since both King William and King Henry's Children were to have succeeded to the Crown of England by vertue of both these agreements before the Sons of Duke Robert had his Son William who was only Earl of Flanders survived him But now if you please you may proceed with your other exceptions against the rest of the Instances I have here given you of the Vacancy of the Throne till such time as the Common Council of the Kingdom had agreed whom to place therein M. As to what you have said in defence of the Vacancy of the Throne after the death of King Henry I. carries less shew of Reason than what you urged in the former Cases since all Writers agree that this was a manifest Usurpation in Stephen who could pretend no sort of Title to the Crown himself as well as Perjury in the Bishops Lords and great Men of England who having sworn Fealty to King Henry's Daughter Maud in his life-time made Stephen Earl of Blois their King therefore William of Malmsbury and all the Writers of those Times do accuse Stephen of down-right Perjury and Usurpation and likewise relate that he was advanced to the Crown through the power of the Londoners and Citizens of Winchester but yet all these Endeavours had been in vain unless he had been assisted by his Brother Henry Bishop of that City and then the Popes Legate in England and favoured by the Arch-Bishop of Canterbury who Crowned him and yet for all this there was but a very small Faction of the Bishops and Lords who were for his Croonation for W. Malmsbury tells us Coronatus est ergo in Regem Angliae Stephanus tribus Episcopis praesentibus nullis Abbatibus paucissimis Optimatibus And many of the Nobility and great Men of England were so sensible of this that being headed by Robert Earl of Gloucester the Empresses base Brother they raised a War against Stephen which after her coming over hither was
by you from the Parliament Roll yet for all that it doth not follow that the Parliament allowed this Kings seigned and false claim to be good by their not contradicting it For though the Record says That upon the hearing of this Challenge or Claim all the Estates of the Kingdom being then asked their Judgments severally they declared that the same States without any difficulty or delay unanimously agree'd that the said Duke should Reign over them For considering the Dukes great Power it was not safe telling him to his face that he had no true Right by Inheritance therefore they only declared in general words without expresly denying or affirming his said Claim That he should Reign over them Which words do rather amount to an Election of him to be King without declaring what Title he had to be so And this they thought they might very well justifie not only for his having delivered them from the Tyranny of King Richard but also because they then looked upon it as their Right not only to Depose the King in case of an apparent violation of the Fundamental Laws of the Kingdom but also to place in his stead any of the Blood-royal tho' not next Heir by Blood according to the Message the whole Parliament had formerly sent to K. Richard in the beginning of his Reign by the Arch-Bishop of Canterbury and his Uncle the D. of Gloucester which I gave you at our ninth Meeting as I remember And pray take notice the words were Et propinqai rem aliquem de stirpe Regia loco ejus in Regnisolio sublimare Where observe that the words were not the next of Blood but some near Kinsman of the Blood Royl And though it is true that both King Henry the Vth. and VIth might both seem to succeed to the Crown by Right of Blood yet I do rather attribute their right of Succession to an Act of Parliament made in the seventh and confirmed in the eighth year of Henry the IVth whereby the Crown was entailed upon all his Sons by Name and the Right Heirs of their Bodies By vertue of which settlement both Henry the Vth. and VIth Succeded thereunto For if he had thought his own feigned Hereditary Title to have been sufficient he would never have troubled himself to have procured the Crown to be setled upon himself and his Children by Act of Parliament M. All this signifies nothing for I have already sufficiently proved that in the 39th year of Henry the VIth upon a solemn hearing before the Paliament of the Claim of Richard Duke of York to the Crown the said Act was set aside And it was there expresly declared that the said Dukes Title could no ways be defeated And this agreement is still on Record between Henry the then possessor of the Crown and the said Duke whose Right it was and the Judgment of the Parliament was then given in the behalf of proximity of Blood as to have always been the foundation and ground of Succession to the Crown of England and of taking it from the Son of Henry the VIth and restoring it to the Duke of York and his Issue as right Heirs thereof As appears by the Title and Pedegree of the said Duke set down at large in the first Article of this Agreement confirmed by Parliament that is by King Henry the VIth himself who was then King de Facto tho' not de Iure F. I will not deny the matter of fact to be as you have set forth yet if you will but please to consider the time when this Declaration and Agreement was obtained and the manner how it was done you will quickly find that it was rather got by force and constraint upon that poor Prince Henry the VIth than by any real Right the Duke of York had to the Crown after its being setled for three Descents in the House of Lancaster For the proof of which I desire you in the first place to take notice that at this time the whole Kingdom was under general discontent noâ— only for the loss of all our Conquests in France but also for the great mismanagement of Affairs at home by reason of the exorbitant power of the Queen and her two favourites the Dukes of Somerset and Suffolk who made the King a meer Cypher and had without his consent made away Humphrey Duke of Gloucester the Kings only Uncle then living contrary to Law so that affairs being in this ill posture it was very easie for the Duke of York and the Earl of Warwick to procure a sufficient Interest in the Nobility and Great men of the Kingdom to raise an Army upon pretence at first only of reforming the grievances of the Kingdom and bringing the said Dukes of Justice the issue of which War was that the Duke not being strong enough at first to oppose the Kings Forces was forced to surrender himself and to obtain his Pardon took a Solemn Oath never to Rebel against the King again but being afterwards Attainted at a Parliament held at Coventry for new Conspiracies he then again Rebelled together with the Earl of Warwick and then that King Henry being carried to head his Army was by the Duke of York taken Prisoner in the Battle near Northampton and being thence by him brought up to London a Parliament was call'd in the Kings name though without his consent wherein the Duke of York had the confidence to seat himself in the Royal Throne and to make that challenge of the Crown you have recited and under how great a terror all the Friends and Servants of this poor Prince was at that time appears plainly from this that neither the Kings Attorney nor any of his Council durst undertake to plead his Cause before the Parliament nor yet would the Judges give their opinions in a matter of such great moment but they all answer'd That this Matter passed the Learning of the Justices and also that they durst not enter into any Communication in that matter and besought all the Lords to have them excused for giving any Advice or Council therein but the Lords would not excuse them and therefore by their Advice and Assistance it was concluded by all the Lords that the Articles following should be objected against the Claim and Title of the Duke So that you see from the Record it self that the Judges were with much ado prevail'd with to object any thing against the Dukes Title Therefore considering the great contempt the Kings Person was then under by reason of his weakness and the great hatred and weariness the Nation had then of the evil Government of the Queen and her Favourites it was no more difficult for the Duke of York to procure this Judgment in Parliament in savour of his Title than that Henry the 4 th should after he had put Richard the 2 d in Prison get him Depos'd and make his own Title to be allow'd for good and certainly if it were
Kingdom do hold good though made under Usurpers and that for this Reason because such Acts being for the publick benefit it is to be suppos'd that the King de jure did give his tacit consent to them for as it is well observed in the Case you have now cited that it behoves the Realm should have a King that is some Civil Government and that the Laws should be kept and maintain'd but then those Laws can extend only to such things as are for the publick good and do not tend to the disinheriting of the King de jure or barring him or his Heirs of their Right as did that Act of the 7th of Henry the IVth whereby the Crown was intail'd upon himself and his Sons which was declar'd to be void by the 39th of Henry the VIth so likewise this Act is void for the same reason since it would give a Right to the Subjects to defend the King for the time being though an Usurper against the true and lawful King who would be thereby not only defeated of his Right himself but also his right Heirs would be so too which would be directly contrary to the intent of the said Statutes of the 39th of Hen. VI and 1 st of Edw. IVth but now mention'd but also to the Act of Recognition of King Iames the Firsts Title And therefore I must still maintain that my Lord Coke is mistaken in supposing a King de facto to be within the intent of the Statute of the 25th of Edw. the IIId for sure it would seem a very odd question for any one to ask touching the Laws that are made in any setled Monarchy for the defence of the Kings Person Crown and Dignity who is meant by the King in those Laws whether the Lawful and Rightful King of that Realm or any one that gets into the possession of the Throne though he be not a Rightful King but an Usurper So likewise as to that Clause in this Statute which makes it Treason to Conspire the Death of the Kings Eldest Son and Heir it could be never intended for the Son of a King de facto since that would be to own him for right Heir of the Crown for ever and thereby intail it upon his Family to the prejudice of the Right Heir of the King de jure and therefore though I grant some of the Judges and Lawyers held the Law to be so as you have cited it in Bagot's Case and that a King de facto may enjoy those Prerogatives in some respects yet cannot this be extended to the prejudice of the King de jure and his Right Heirs and though I also grant that divers Acts of Parliament made by Kings de facto have for the most part held good without being confirm'd by any subsequent Statute of the King de jure yet have they been also repeal'd sometimes meerly because made whilst the King de jure was alive as I shall prove more at large by and by F. I shall also take the boldness to reply to these answers of yours before I proceed to answer the rest of your Arguments in the first place let me tell you that this notion of a tacit consent in the King de jure suppos'd to be given to all Statutes made for the publick good is to serve upon all occasions when those of your Party cannot tell how otherwise to answer the Arguments that are brought against them and you may as well tell me that they do also give their tacit consents to all other Acts that Usurpers may do and I may as well suppose that Queen Elizabeth the Wife of Henry the VIIth the Lawful Heiress of the Crown did in the person of her Husband give her tacit consent that this Act of the 11th of Henry the VIIth should hold good for ever since it is so much for the publick good and peace of the Nation that the Statute declares it to be against Law Reason and good Conscience that Subjects should suffer for fighting for the King for the time being but I very much wonder if this suppos'd tacit consent were given to all Acts of Parliament by the Kings de jure why upon their return to the Government he did not also express this consent by confirming all those Acts which were made by his Predecessors the Kings de facto or else declare them void but since they neither did the one nor the other it is plain it was because even they themselves looked upon it as altogether needless Nor is your reason at all satisfactory why a King de facto cannot be intended by the Statute of the 25th of Edward the IIId because that maketh it Treason to Conspire the death of the King 's Eldest Son and Heir which say you can only be meant of the Eldest Son of a King de â—urâ— which is to beg the question for though it is true this Clause in the Act was intended for the preservation of the King 's Eldest Son yet it doth no where determine that this must be the Eldest Son of a King de jure for though I own this Clause was made to preserve the Crown in the Right Line from Father to Son yet does it make no difference between the Son and Heir of a King de facto and one de jure nor have you yet answer'd the Authorities I have brought from the Acts of attainder of those Lords who Conspired against the three Kings of the House of Lancaster which stand unreversed unto this day and which also confirm the Opinion given in Bagot's Case where it is said expresly that a Man may be arraigned for Treason committed against the King de facto by the King de jure and therefore I think my Lord Coke may very well be justified in his Opinion notwithstanding the question you put whether the Statute could mean him who is lawful and rightful King or any other who gets into the possession of the Throne Now this seems to me no such odd question for when the Law only mentions the King and the Law-Makers certainly knew that Kings without an hereditary right had often ascended the Throne if they had intended to except all such Usurpers they should have expresly said so But indeed that distinction of a King de facto and a King de jure was not known 'till many years after being first heard of in the Reign of Edward the IVth for a King de facto as the late Chief Justice rightly asserts is Seignior Le Roy within that Statute and there is no other King but he whilst he continues so For King signifies that person who has the Supream Government in the Nation and a King de jure is he who should have the Government but has it not that is who of right should be King but is not and the Statute of Treason tells us what is Treason against him who is King not against him who should be but is not King and reason good it
from the constant practice of those times that the King de facto was always own'd as Lawful Sovereign and had Allegiance still paid him by all the People of this Kingdom except those who being the heads of one or the other Party were either attainted or else forced to â—lye the Kingdom But as for all others though different and contrary Oaths of Allegiance were impos'd upon the People sometimes by the one and sometimes by the other of those Kings according as they got possession of the Throne yet I can no where find that ever any body suffer'd for barely swearing Allegiance to the King then in Being for it was always taken for Law that Allegiance was due to the King de facto since ordinary Subjects are not suppos'd to understand the legal right or justice of the Kings Title M. I must still say that there was some colour for the Peoples thus acting as you say they did during the contest for the Crown between the two Families of Yorke and Lancaster when I grant it was somewhat a difficult matter to judge which of the two had the best right to the Crown by reason that the House of Lancaster had held it for three descents as also from the speciousness of their Title since it was founded upon a pretended claim by right of blood upon supposing that Edmund Sirnamed Cronch-back who was one of the Ancestors of this House of Lancaster was the Eldest Son to Henry the Third which had it been true would have given Henry the Fourth a good right to the Crown not only against Richard the Second but his own Grandfather Edward the Third likewise had he been then alive and this descent falling out long before the memory of any man then living who could confute the falsity of this pretended Pedigree The People of England might very well be excus'd for owning an Usurper and paying Allegiance to him since they did not know but his claim might have been right especially since it was approv'd of in full Parliament without any contradiction as I have already shewn you at our last Meeting But what is all this to the matter now in debate between us when the Lineal Succession of the Crown has been so often declared to be the only means of acquiring a just Title to it and every one knows very well who was own'd for lawful King of England within these three Months and also who was pray'd for in all our Churches as his Son and Heir apparent and therefore I must still tell you that your parallel between those Kings de facto of the House of Lancaster and those Princes whom the Convention have now voted to fill the Throne does not at all agree since every Subject of this Kingdom who has but sence enough to go to Market can very well tell if they will deal sincerely to whom their Allegiance is due F. As to what you have now said it is no more than a repetition of what you have already urged to evade the force of these clear Authorities but indeed it was all one when a Prince had been once recognized for Lawful King by Act of Parliament whether the People knew his Title not to be good by right of blood or not And this I have plainly proved to you from the instance of Richard the Third who though both his Elder Brothers Children were then alive and the Eldest of them had been Proclaim'd King and also own'd for such by himself and whose Title he had also sworn to maintain in his Brother King Edwards life time as appears by the Clause Roll of the 11th of Edward the Fourth yet when he had once depos'd him and had call'd a Parliament which recognized his Title his Acts and Judicial Proceedings stand good at this day and though he himself was attained and declar'd a Tyrant and an Usurper yet all the Subjects who acted under his Authority and had taken an Oath of Allegiance to him never needed an Act of Indemnity for so doing whereas those that came over with Henry the VIIth were sain to have an Act of Pardon past to Indemnifie them for fighting against Richard the Third as I have now show'd you And though this Parliament of the first of Henry the Seventh agreed to repeal divers Acts which the King found fault with yet as for all other Statutes made in the Reign of King Richard the Third which have not been since repealed they are still in force without any confirmation likewise when Henry the Seventh had prevail'd over Richard the Third and that he was slain in the Field though all the Nation very well knew that Henry the Seventh could not be Heir of the House of Lancaster because his Mother was then alive and had never formally given up her right if she had any as certainly she could have none as being descended from Iohn Earl of Somerset who was base Son to Iohn of Gaunt Duke of Lancaster by Catherine Swinford whilst his Wife was alive and though I grant after his Marriage with the said Catherine the Children born of that Bed were made legitimate by Act of Parliament in the 20th of Richard the Second yet that legitimation only respects such private Priviledges and Inheritances which they might enjoy or succeed to as Subjects and not in respect of the Crown the Succession of which they were expresly declared uncapable of by that very Act of Legitimation still to be seen upon the Parliament Roll. But for all this when Henry the Seventh had called a Parliament and was therein recogniz'd for their Lawful Sovereign and that the Crown was setled by Statute on the King and Heirs of his Body without any mention of the Princess Elizabeth who ought to have been Queen by right of blood yet none of the Subjects of this Kingdom as I can find ever scrupled to swear Allegiance to him before ever he married that Princess though they as well knew that he could have no right by blood as you can suppose that the People at this day can know whether King Iames has abdicated or forfeited the Crown or not or whether your Prince of Wales be his true and lawful Son for since they are both nice and difficult Points and having been determined by the Convention the Supream Judges in this Case in favour of their present Majesties and that they also recognized their Title after they became a Parliament I can see no manner of reason why all the Subjects of this Kingdom may not as well justifie their taking this new Oath of Allegiance to them notwithstanding their former Oath of Allegiance to King Iames and his Right Heirs as well as the People of England could justifie their taking an Oath of Allegiance to Henry the Seventh notwithstanding their former Oath to Edward the Fourth and his Right Heirs before ever Henry the Seventh had Married the Princess Elizabeth the Heiress of the Crown especially since this Act of the 11th of Henry the
open to him was too timorous then to have put in any Magistrates into Corporations but such as were for the Protestant Religion as it stands by Law establisht and such however angry they might be with those they call'd Whigs in respect of their opposing the Dukes succession to the Crown yet I believe most of them would never have given up the freedom of Elections of Parliament men or have done any thing to bring in Popery among us so that as long as things remained in this State there were some hopes still lest of a redress of our grievances whenever a Parliament had met and that the Nation was grown more cool and had come to it self again after those heats which had risen in the late Parliaments about the succession and other things whereas now the case was far otherwise in this Kings Reign wherein we found not only our Religion but the fundamental Rights and Priviledges of the Nation struck at by the Kings dispensing power and the Arbitrary proceedings of the Judges and not only the freedom of Elections of Knights of Shires but of Cittizens and Burgesses endeavour'd to be taken from us either by threatning the Electors or else by open force as I shall prove by and by when I shall have occasion to speak farther upon that head so that unless a great part of the Nation had declared for the Prince of Orange he had been repuls'd with shame and ruine and our Chains tyed faster upon us than ever they were before M. I shall forbear replying further to what you have now said till I come to conclude but in the mean time I cannot omit another material grievance set down in the Princes Declaration viz. the turning out and disarming the English Protestant Magistrates Officers and Souldiers in Ireland and putting of Irish Papists in their Rooms as also the late Declaration of Indulgence in Scotland but as I will not defend the Justice or Prudence of those Councils so I think none of them could give any sufficient cause for the people of this Kingdom to rise in Arms for sure it is enough if not too much for them to concern themselves with the grievances and miscarriages of their own Country without taking upon them to take up Arms to reform those of their Neighbours since they are not only ignorant of the Laws and Constitutions of those Kingdoms but may also mistake the true reasons and grounds on which those alterations were made F. I see you can as little defend what has been illegally acted in Scotland as in Ireland only you would sain put me off by telling me that the people of this Nation have nothing to do to take notice of what is done in other Kingdoms and you may as well tell me that a man ought not to take any warning as to defend himself against Thieves though he see 's another man robb'd by them before his Eyes or that the Protestants of England should not take warning by the sad example of those in France from ever suffering a Popish King from having the same power here as the French King has in France for fear of the like fatal effects since I never found Papists give Protestants the least forbearance or shew them any mercy longer than whilst it was not in their Power to hurt them But to come to the matter in hand we cannot but concern our selves with what has been so lately done in Scotland and Ireland for the introducing of Popery and Arbitrary Government in those Kingdoms since the latter is notoriously known to be govern'd by the same Laws as England and it is as much against the Laws of that Kingdom as it is of ours for the Irish Papists to be put in Arms and the Protestant Militia disarmed and for Popish Judges and Justices of Peace to be put in Commission as hath been practised under the Government of the Lord Tyrconnel and if English Protestants in Ireland cannot enjoy their Estates and Liberties without being turned out of them by the Papists how could we in England expect better treatment whenever they shall think themselves strong enough and as for Scotland tho' it be not wholy governed by the same Laws as England yet the fundamental constitution of the Government is the same in both Kingdoms and the King can no more make abrogate or dispense with Laws in Scotland without the Parliament than he can here and therefore for the King not only to issue out such a Declaration of Indulgence and suspension of all the Penal Laws in Scotland against Papists but also therein to declare that he expected an obedience to all his commands without reserve whether legal or not was so bold a stroke that we could not but expect the like in England tho' his Majesty thought it not fit at present to discover his Mind so plainly to us M. I shall not any longer dispute these points with you but own that the abuses you mention were indeed of great concern both to the Protestant Religion and our Civil Liberties yet however besides the Laws of the Land which I still suppose do expresly forbid all resistance of the King upon any account whatsoever I think there ought to have been no such thing done by any Subject of this Nation even upon your own principles which seem not to allow of such resistance but in case of an actual and violent assault upon mens Religion Lives and Properties and that by open force of Armes now I desire you to shew me whom it is that the King has ever yet Dragoon'd or persecuted till they would become of his Religion or whose Life his Majesty hath taken away even of the most notorious Traytors but by due Trial and course of Law nay he has pardon'd divers several after they were condemn'd meerly because he was inform'd they were not really guilty of the Crimes whereof they stood Condemn'd and as for mens civil properties I defie you to shew me any persons Estate that has been taken from him without due course of Law or any Taxes that have been Assessed upon the Nation but what have been granted by Parliament or else raised by the opinion of the Judges by whom if his Majesty hath been misinform'd they only ought to answer for it in the next Parliament who are the only proper Judges of their Miscarriages without having any course to Force which the Laws of this Kingdom so much abhor and therefore make the worst of it you can all these Greivances already mentioned were no more than some breaches upon the outward Splendour of our Church Religion or some of our civil liberties whilst the main Essential parts of both continu'd untouch'd since God be thanked we have hitherto enjoy'd the Free publick profession of our Religion together with our lives Liberties and Estates in perfect peace and undisturb'd by any outward Force or Violence from the King or any Commission'd by him and as for those Grievances you mention viz. The turning
out the President and Fellows of Magdalen Colledge by the late Ecclesiastical Commission as also the turning out of the Deputy Lieutenants and Justices of Peace and all other Magistrates out of Cities and Corporations the King has sufficiently redress'd them by restoring the first to their places and by putting all the rest into Commission again and turning out those that came in their rooms and all this before the Prince of Orange came over and I doubt not but his Majesty would have been content to have given the Nation any other reasonable satisfaction they could have desired in the next Parliament Which ought to have been patiently waited for untill his Majesty thought sit to call it without going about to right our selves by Force F. I confess you have made not only the most plausible defence you can of the Kings late actions but have also urg'd the utmost that can be said against those defensive Arms that have been lately taken up by those Lords Gentlemen and others who have associated themselves to stand by the Prince of Orange till our grievances were redrest by a free Parliament but if what you have said be strictly lookt into I doubt it will prove but a mere Subtersuge to hide the nakedness of the Cause you have undertaken In the first place therefore let me tell you that though I confess the King has not yet Dragoon'd us to Mass nor has made an actual War upon the Lives and Properties of the People of this Nation yet that he has not only invaded our Liberties but also endanger'd the Protestant Religion of the Church of England establish'd by Law you your self have not the confidence to deny only you will not suppose it to have been done by any Armed Force and therefore ought not to have been resisted by Force but to have waited for their redress by Parliament which is but an evasion for in the first place it is plain that the things complain'd against in the Prince of Oranges Declaration do most of them strike at the Fundamental Constitution both of the Church and State as I have sufficiently prov'd and shall do it more particularly hereafter when there is occasion all therefore that remaines to be prov'd is this that all these breaches and violations of our Religion and Civil Liberties tho' done under colour of Law yet were acted and maintain'd by Force and Secondly that all other hopes of remedy or redress unless by joyning with the Prince of Orange was wholy taken from us the first of these I prove thus It is notoriously known that for the King to maintain a standing army in time of peace has been always declar'd against in Parliament as contrary to Law and dangerous to the Religion civil rights and Liberties of this Nation now it is also as certain that the King has ever since the Duke of Mâ—nmouths coming over set up and maintain'd a standing Army in this Kingdom in which he has also put in as many Popish Officers and they as many Popish Souldiers contrary to the Laws of the Land as ever they could find besides the many Irish Papists that have been of late sent over for no other purpose than to be listed here whilst Protestant souldiers were turn'd out of several regiments to make room for them not to mention the listing of vast numbers of loose and prâ—â—ligate fellows and some of them pardon'd Highway men who provided they had their pay would not have â—luck to Rob or Murder any body they had been ordered as may be sufficiently prov'd not only by their common taking of free quarter but by their frequent taking it in the houses of Gentlemen and other private Persons in divers places of this Kingdom and that without any amends or redress as I know of tho' frequently complain'd of at Court all which being done by the Kings arbitrary Power without the least colour of Law and in contempt of the Militia the only legal Forces of this Kingdom what was this but plainly to declare that as the King had thought fit to Act so many arbitary things clean contrary to Law so he was likewise resolv'd to maintain 'em by force since it is plain that the King never dur'st undertake to do all these Illegal and arbitrary things we have now mention'd untill such time as his standing Army was raised and tho' it is true mens Lives Liberties or Estates cannot be taken away unless by some Force or other either Legal or Military yet as for those Civil rights and Priviledges which are the main Bulwarks and defences of the former they can only be invaded or taken from us by Illegal Judgments and Declarations which if supported by a visible Force beyond what the Nation in the Circumstances it was in was able to resist this is as much a taking them by Force as if there had been resistance made about them Thus if Souldiers come into my House and say that the King hath given them Orders to quarter there upon free cost I suppose you will not deny but this is a forceable taking of my goods nowithstanding I dare not because I cannot resist them the same I may say for a whole Nation when once opprest in their Civil Liberties and those oppressions are once back'd and defended by a standing Army contrary to Law But that this Army was raised cheifly to this intent I can give you a remarkeable instance from the mouth of the late cheif Justice Wright who sent for Officers and Soldiers to make the Scholars keep silence because they Hum'd at what the President and Fellows of Magdalen's had just before done against the authority of this pretended court so that to conclude from that very time that the King beagn to keep up an Army and to list Popish Officers and Souldiers tho' utterly disabled by Law to take Commissions or to bear Arms by vertue of his Dispensing Power and all this in Order to back and support his Arbitrary proceedings I look upon this Nation under such a force as that they might Lawfully remove it by Force when ever they could And that either by joyning with some Foreign Prince or else by their own Domestick Arms. But to come to the second point to be prov'd viz. That there was no other means but Force lest us to redress these mischiefs and to retrieve us out of that sad condition in which we lately were as also to hinder us from falling into worse I shall only suppose that which I think you will readily grant that there could be no other means to cure these evils but either by some sudden change in the Kings inclinations or else by a Free Parliament the former you must acknowledge was not possible as long as he continued of the Religion he is of and suffer'd himself to be manag'd by the Counsels of the Jesuits and French King and as for a Free Parliament what hopes could there be of that as long as the King had done all he could