ADVERTISEMENT THE Author hath thought fit for the Reasons he hath given you to alter the Method he laid down in his Preface to the First Dialogue and to propose the Subjects he treats of in this following Method Bibliotheca Politica OR AN ENQUIRY INTO The Ancient Constitution OF THE ENGLISH GOVERNMENT Both in respect to the just extent of Regal Power and the Rights and Liberties of the Subject Wherein all the Chief Arguments as well against as for the late Revolution are impartially Represented and considered in Thirteen Dialogues Collected out of the Best Authors as well Antient as Modern To which is added an Alphabetical INDEX to the whole Work LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford-Arms where may be had the First Second Tâ—ird Fourth Fifth Sixth Seventh Eighth Ninth Tenth Eleventh Twelvth and Thirteenth Dialogues 1694. THE QUESTIONS Debated in the Ensuing Dialogues WHETHER Monarchy be Iure Divino Dialogue the First Whether there can be made out from the Natural or revealed Law of God any Succession to Crowns by Divine Right Dialogue the Second Whether Resistances of the SVPREAM POWER by a whole Nation or People in cases of the last extremity can be justified by the Law of Nature or Rules of the Gospel Dialogue the Third Whether Absolute Non Resistances of the SVPREAM POWERS be enjoyned by the Doctrine of the Gospel and was the Ancient Practice of the Primitive Church and the constant Doctrine of our Regormed Church of England Dialogue the Fourth Whether the King be the Sole Supream Legislative Power of the Kingdom and whether our Great Councils or Parliaments be a Fundamental Part of the Government or else proceeded from the Favour and Concessions of former Kings Dialogue the Fifth Whether the Commons of England represented by Knights Citizens and Burgesses in Parliament were one of the Three Estates in Parliament before the 49th of Henry III. or 18th of Edw. I. Dialogue the Sixth Whether the Commons of England represented by Knights Citizens and Burgesses in Parliament were one of the Three Estates in Parliament before the 49th of Henry III. or 18th of Edw. I. Thâ— Second Parâ—â— Dialogue the Sevenâ—h A Continuation â—f tâ—e former Discourse concâ—rnâ—ng the Antiquity of the Commons in Parliament wherein the best Authorities for it are proposed and examined With an Entrance upon the Question of Non Resistance The Third Part Dialogue the Eighth Whether by the Ancient Laws and Constitutions of this Kingdom as well as by the Statutes of the 13th and 14th of King Charles the II. all Resistance of the King or of those Commissioned by him are expresly forbid upon any pretence whatsoever And also whether all those who assisted his present Majesty King William either before or after his coming over are guilty of the breach of this Law Dialogue the Ninth I. Whether a King of England can ever fall from or forfeit his Royal Dignity for any breach of an Original Contract or wilful violation of the Fundamental Laws of the Kingdom II. Whether King William commonly stiled the Conquerour did by the Conquest acquire such an absolute unconditioned Right to the Crown of this Realm for Himself and his Heirs as can never be lawfully resisted or forfeited for any Male-Administration or Tyranny whatever Dialogue the Tenth I. In what Sense all Civil Power is derived from God and in what Sense may be also from the People II. Whether His Present Majesty King William when Prince of Orange had a just Cause of War against King Iames the II. III. Whether the Proceedings of His Present Majesty before he was King as also of the late Convention in respect of the said King Iames is justifiable by the Law of Nations and the Constitution of our Government Dialogue the Eleventh I. Whether the Vote of the late Convention wherein they declared the Throne to be vacant can be justified from the Ancient Constitution and Customs of this Kingdom II. Whether the said Convention declaring King William and Queen Mary to be Lawful and Rightful King and Queen of England may be justified by the said Constitution III. Whether the Act passed in the said Convention after it became a Parliament whereby Roman Catholick Princes are debarred from succeeding to the Crown was according to Law Dialogue the Twelfth 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 to their present Majesties could be lawfully deprived of their Bishopricks Dialogue the Thirteenth ADVERTISEMENT THE Author writing these Dialogue purely for the discovery of Truth and for giving a full and impartial account of all the considerable Arguments and Authorities that have been urged on either side in the Controversies discussed in the foregoing Dialogues if therefore any Person who having perused them is dissatisfied with any of the Arguments Answers or Authorities there made use of and supposes he could confute them or else put better in their stead if such Persons do not think it worth while to write a Treatise on purpose on this Subject they may if they please send their Animadversions to the Publisher of these Dialogues who will undertake to communicate them to the Author who hereby also engages to Publish them fairly without any Alterations or Additions together with his Answers or Replys to them if the Subject will admit it the Persons concerned may follow the Method used in the foregoing Appendix of Additions but are desired to send in their Animadversions by the beginning of next Michaelmas Term when if sent they shall be Publish'd Bibliotheca Politica Or A DISCOURSE By way of DIALOGUE WHETHER MONARCHY BE IVRE DIVINO Collected out of the most Approved Authors both Antient and Modern Dialogue the First LONDON Printed for Richard Baldwin in Warwick-Lane near the Oxford-Arms 1694. The Epistle Dedicatory To all Impartial and unprejudiced Readers especially those of our Hopeful and Ingenious Nobility and Gentry HAving out of Curiosity for some years before the late wonderful happy Revolution as well aâ— since for the satisfaction of my own Conscience carefully perused all Treatises of any value that have been published of late years concerning the Original and Rights of Civil Government aâ— well of Monarchy aâ— the other kinds thereof as also of the Antient Government and Fundamental Constitutions of this Kingdom I have found it necessary in order to my better retaining of what I had read and making a more certain Iudgment thereupon to commit to writing the most considerable Arguments on both sides as well of those who have Monarchy to be Jure Devino as of those who only allow it to Government in general of those who hold an Absolute Subjection or Passive Obedience as their Phrase is as well as
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
his Inferiors because an Inferior Power can never limit a Superiour And since all our Laws as well as the Oath of Allegiance and Supremacy we take to the King do own him to be the Sole Supream Governour of this Realm I cannot understand how this Limitation can consist with the King's Supremacy for if he be thus limited and restrained how is he Supream and if Restrained by some Law is not the Power of that Law and of them that made that Law above his own Supream Power And if by the Direction of such Law only he must Govern where is his Supream Power So that when the Law must Rule and Govern the Monarch as a Superior and not the Monarch the Law he hath at best but a Gubernative and Exâ—cutive Power Lastly if this Power of the Prince were Limited at the Original Constitution there must be a Power appointed in some Council or Senate call it a Parliament or Assembly of the States or by what Name you please whose business it must be to see them exactly kept and performed Now these Men must either have a Power barely of Advising the Monarch and perswading him to observe these Fundamental Limitations or else they must also have a Power of Forcing or Compelling him if he will not hearken to their Advice and Remonstrances if they have no more than the former Power that you say signifies nothing since the King may refute to hearken to them if he pleases and may do what he will notwithstanding but if they have also a Coercive Power over him and may Resist or punish him for his Transgressions he will then cease to be a Monarch Since he cannot be so who is accountable to any Power either Equal or Superior to himself And this our late Parliaments have bin well aware of when they Renounced all Coercive Power over the Person of the King and any Right of making War either Offensive or Defensive against him So that besides the History of matter of Fact which I can further give you to prove our Kings to have bin at first Absolute Monarchs I think the very Hypothesis of a mixt or limited Monarchy labours under such insuperable Difficulties and Absurdities that I cannot conceive how those Limitations by which we find the King's Prerogative now Restrained could ever proceed from any Higher Cause than the free Grants and Concessions of the Kings Predecessors confirmed by his own Coronation-Oath Which though I acknowledge he is bound to observe and that if he breaks it he commits a great Sin against God Yet it is only He that must punish him for so doing since the Oath is not made to the People but to God alone F. Notwithstanding what you have now said I hope I am able to shew you that all your Arguments against a Mixt or Limited Monarchy are more subtile than true For as to your first Argument from the word Monarch I grant indeed that strictly speaking the Word Monarch and Monarchy signifie a single Ruler and the Government of one alone Yet in Common Acceptation or according to the Laws and Constitutions of several other Kingdoms besides England as in the Empire in Denmark and Sweden the Emperor and those Kings have bin called Monarchs and those Kingdoms Monarchies though by the Original Constitution of those Governments those Princes have not bin invested with a pure Imperial Authority such as that of the Roman Emperors of Old Yet since they had the Executive and Gubernative part of the Government committed to them and that they were lookt upon as the Heads of those Kingdoms and that the Government did therein partake more of Monarchy than of any other Form those Princes have bin always reputed and that justly Monarchs notwithstanding there was a very great mixture of Aristocracy in the Empire and in Denmark and both of Aristocracy and Democracy in Sweden The like may be said of England France and those Kingdoms in Spain that were instituted by the Goths and Vandals the Francs and Saxons after the Ancient Gothic Model of Government And though I grant this sort of mixt Monarchy is not to be Reduced to any of the three distinct Kinds of Government layd down by Aristotle yet are they not for all that to be Condemned but rather the more approved of since by this mixture they were capable of diverse Benefits and free from several Mischiefs which are incident to any of those Forms of Monarchy Aristocracy or Democracy when exercised purely and without any such mixture And that this as to England it self is no Invention of the Common-Wealth-Men as you call them you may read King Charles the 1st's Answer to the 19 Propositions sent him by the Parliament for the words are Remarkable This Kingdom says he is mixt of Monarchical Aristocratical and Democratical Government and that so wisely that we have all the Conveniences and none of the Inconveniences of any of those Forms taken single Nor doth this at all Derogate from the Nature of the Monarchy nor make any Division between the necessary Functions of Soveraign Power For I have already granted that the executive or gubernative part is wholy in him as also the Power of making War and Peace and as for the Legislative as long as the King hath a Negative Vote in all Laws that pass and that they cannot be made without his Royal Sanction the Legislative Power is not divided as I have already proved But as for your other Argument against a Prince's being limited by the Original Constitution of Government tho as I yield it is more Subtile so it is also more Sophistical and fallacious than the former For your Dilemma by which you would prove the Absurdity of that Nation will not do because a Prince at the Institution of the Government may be limited by those who are neither Superior nor Inferior to himself but only equal in the State of Nature as I suppose the People to be with a King before he was made so by them And that Equals may thus limit each other you your self will not I suppose deny in the Case of Princes who are Equals in the State of Nature As Queen Mary for Example made such conditions with King Philip of Spain before she Marryed him that if he offered to meddle with the Government of this Kingdom without her Consent it would be Lawful for her to part herself from him and to send him home into his own Kingdom and might she not with a Safe Conscience have done so upon the Breach of the Conditions on his side Apply this to the People in the State of Nature and the person they are about to make King before the Politick Marriage of a Coronation or Admission to the Crown and see if they do not exactly agree or whether the People can be blam'd if they repudiate their Politick Husband for Invading that part of the Government which they had reserved to themselves Nor doth this argue any more Superiority in the People
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
against those that are Commissioned by him in pursuance of such Military Commissions and it is also to be noted that all Mayors of Cities or other Corporations were obliged by a former Statute of the 13th of this King to take the same Oath From both which Statutes and Declaration we may draw these Conclusions First That the Militia i. e. the Command of all Military Forces and War-like Affairs are declared to be wholly in the King Secondly That either or both Houses of Parliament cannot make any War offensive or defensive against him c. Pray mark that Thirdly That the contrary practice hath tended almost to the destruction of this Kingdom and that many evil and Rebellious Principles whereof this without doubt is intended for the chief have been instilled into the minds of the People c. And lastly That in pursuance thereof all persons above-mentioned were not only obliged to renounce taking up Arms against the King upon any pretence whatsoever but also against any that shall be authoriz'd by the King 's Military Commissions without any Exceptions And it is farther Enacted That all Clergy-men should be obliged to take this Oath as well as the Laity and it is likewise there ordained That all Clergy-men who were to enjoy any Livings or Preferments in the Church were likewise for the space of Twenty Years next ensuing obliged to subscribe this Declaration so that it is no wonder if the Loyal Clergy of the Church of England think themselves not only tied by the Express Rules of Scripture but also by the Laws of the Land strictly to observe this great Law of Passive Obedience and Non-Resistance Now pray see here the Doctrine of Non-Resistance in its full amplitude yea this very Doctrine declared to be the Law of this Kingdom and that by two express Acts of Parliament And can you think the Two Houses were not in earnest when they made this Declaration surely had they not been so they had been very ridiculous to jest with all our Laws and Liberties had they not been I say verily perswaded of the truth of this Doctrine by Law as well as by Scripture So that I hope you must now be forced to confess that even our own Representatives have solemnly renounc'd for themselves and the whole Nation all right of Resistance so much as defensive against those Commissioned by the King upon any pretence or occasion whatsoever and we have left us nothing whereby to defend our selves against our Kings or those Commissioned by them no not if they never so much abuse their power but the old Primitive Artillery of Preces and Lachryma F. As for what you have more than once said that this Doctrine of Resistance if carried home always ends in the Deposition and Murder of the King tho' it hath I grant sometimes happened yet that has not been always so but most often to the contrary as appears in those Resistances that were made in the Reigns of King Richard the First Henry the Third Edward the First and divers times in Edward and Richard the Second's Reign before things were driven to that extremity as they afterwards were and as I will not justifie the Deposition of those Princes tho' done by Parliament yet will I not absolutely condemn them since no Act of Parliament hath as I know ever done it And tho' it is true all the proceedings in Parliament against Edward the Second are taken off the Rolls yet was it not done by Order of Parliament but by Richard the 2d alone when he by his exorbitant courses feared to be served after the same manner but that there was in those times some Ancient Law extant which was also destroyed by that King appears by that remarkable Declaration of the Lords and Commons in Parliament sent by way of Message to the King then wilfully absenting himself from the Parliament by the Duke of Gloucester his Uncle and the Bishop of Ely who sure were too great to tell so notorious a Lye The Speech you will find at large in Knyghton beginning thus Domine Râ—x And after many Petitions and good Advices at last thus concludes which I shall give you in Latine Sed unum aeliud de animo nostro superest nobis ex parte Populi vestri vobis intimare habint enim ex antiquo Statuto de facto non longe retroactis temporibus experienter quod dolendum est habito si Rex maligno Consilio quocunque vel inepta conâ—â—macia aut contemptu seu protervae voluntate singulari aut quovis modo irregulari se alienaverit à Populo suo nec voluerit per jura Regni Statuta laudabiles Ordinationes cum salubri Consilio Dominorum Procerum Regni gubernari regulari sed captiosâ— in suis inâ—anis Confiliis propriam voluntatem suam singularem proterve exercere tunc licituâ— est iis cum comâ—uni assensu Populi Regni ipsum Regem de Regali solio abrogare propinquiorem aliquem de stirpe Regis loco ejus in Regni solio sublimare From whence you may observe that the Lords here relate to an Ancient Statute or Law then in being tho' the execution of it on the person of his great Grand-father Edward the Second was but of times not long passed and that King Richard might as well destroy the Record of that Law being not then commonly known or in private mens hands as well as he did divers other Records as appears in the 24th Article against this King wherein it is set forth That the said King had caused the Rolls of the Records touching the State and Government of this Kingdom to be defaced and razed to the great prejudice of his People and the disinherison of the said Realm c. So that nothing is more certain than that the Two Houses of Parliament at that time did look upon it as their undoubted right to Depose the King in case he violated the Fundamental Laws and Constitutions of the Kingdom tho' how this could consist with that Power which the King then exercised of calling and dissolving Parliaments at his pleasure I do not understand since it can never be supposed that a King if in full power would permit a Parliament called in his name to sit to Depose himself for Evil Government As for the Resistance made by the Two Houses against King Charles the First I shall not undertake to justifie for the Reasons already given as also because it it was not a War undertaken by the general consent of the whole Kingdom but carried on chiefly by the Puritan or Presbyterian Party For tho' the City of London and many other great Towns were for the Parliament yet it is also certain that the major part of the Nobility and Gentry of England fought for the King and were so considerable a number as to make an Anti-Parliament at Oxford so that this War could never have happened had not the King parted with the power of
13th of Charles the Second for the Militia never intended thereby to enable or leave it in the power of that King or his Successors to make this Kingdom an absolute Despotick Monarchy instead of a limited one as they must have done had they declared that the King and those Commissioned by him might do what they pleased with the Religion Lives Liberties and Estates of the People of this Nation and that it was Treason to resist in any case whatsoever sure they could not but remember that Commission of Sir Phelim Oneals in the year 41. whereby he pretended to be impowered to drive the English Protestants out of Ireland and to set up the Popish Religion in that Kingdom and restore the Irish to their Estates and sure divers of them could not be unmindful that this was to give away all right of Self-defence in case any future King should by his own innate Tyrannical Temper or the evil Counsel of wicked men be perswaded to use Force upon the persons of the Lords and Commons either whilst they were actually sitting or in their passage to the New Houses since by this Act or Oath if understood in your sense they must have barred themselves and the whole Nation of all right of Self-defence in any case whatsoever tho' of the greatest extremity and therefore I doubt not but the intent of this Parliament was to leave things as they found them and as it was absolutely unlawful for the People of this Nation to take up Arms against the King so it is also as unlawful in him or those Commissioned by him to make War upon the People or to disseize them by force of their Religion just Rights Liberties or Estates and if the King hath a right to defend himself and his Crown and Dignity against Rebellion so must the People of this Nation have a right likewise to defend themselves against Arbitrary Power in case of an Invasion of any of the Fundamental Rights above-mentioned or else all bounds between a Limited and Despotick Power will be quite taken away and the King may make himself as absolute as the King of France or great Turk whenever he pleases M. I will not dispute with you about bare matter of fact or that a prevailing Faction might not in turbulent times and during the Reigns of weak and ill advised Princes take upon them by force of Arms to remove Evil Counsellors and to put the Government of the Kingdom in what hands they pleased and then procure Acts of Parliament to indemnifie themselves for so doing yet I cannot allow that even such Acts could make it lawful to take up Arms against the King or those Commissioned by him upon any pretence whatsoever So that tho' I grant that the intent of this Parliament of King Charles the Second was not to make any new Law against Resistance or taking up Arms against the King yet was it their design so to explain the Ancient Statute of the 25th of Edward the Third that none should for the future doubt in the least that all taking up Arms or Resistance of the King or those Commissioned by him upon any pretence whatsoever was unlawful and treasonable and for this we need go no farther than the very words of these Declarations which the Parliaments of the 12th and 13th of Charles the Second have made concerning this matter as first in the Statute of the 12th of Car. 2. Cap. 30. for attainting the Regicides that two Houses of Parliament expresly declared That by the 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 hath or ought to have any Coercive Power over the persons of the Kings of this Realm Whereby not only all the Traiterous Examples of the Depositions and Imprisonments of King Edward and Richard the Second are expresly condemned but also all taking Arms to force the King to redress our grievances whether he will or not And farther that all Arms whether offensive or defensive are expresly forbid Pray mind that Clause in the Preamble to these Acts of the Militia I now mentioned wherein that Parliament expresly renounces all taking up Arms as well defensive as offensive against the King and the words of the Oath it self are yet more strict that it is not lawful upon any pretence whatsoever to take up Arms against the King Now can any thing be plainer than that all defensive Arms tho' for our Religion Lives and Liberties or whatsoever else you please are expresly declared to be against the Fundamental Laws of this Kingdom But as for the dreadful consequences of this Law if never so strictly taken they are not so bad as you are pleased to fancy for as to your instance of Sir Phelim Oneal's pretended Commission from King Charles the First you may be very well satisfied that it was a notorious piece of forgery since besides that good King 's constant denial of any such Commission granted by him Sir Phelim when he came to suffer in Ireland for raising that horrid Rebellion did voluntarily at the Gallows acknowledge that he had forged it himself by putting the Seal of an old Patent which he had by him to that pretended Commission you now mention Nor indeed can it ever enter into my head that any King should grant a Commission to destroy or make War upon his People as long as they continue in their duty to him tho' of a different Religion from himself tho' perhaps he may think fit for some reasons to disarm them or deny them the publick Exercise of their Religion or render them uncapable of bearing any Offices of publick Trust in the Kingdom but if these should be lawful Causes of Resistance why the Papists should not be allowed it as well as the Protestants I can see no reason to the contrary As for your other Instance that the Parliament by renouncing all defensive Arms must be supposed likewise to give up all right of Self-defence in case the King or any Commissioned by him should use any violence to the persons of the Lords and Commons assembled in Parliament or in going thither this is so unlikely and remote a case that it hardly comes under the consideration of a bare possibility But however let the worst that can be happen I am very well satisfied that the Parliament was then so thoroughly convinced of the Mischiefs had befallen this Nation by this Republican Doctrine of Resistance having been the cause of the destruction of the best Constituted Church and Government in the World as also of the murder of one of the best Princes that ever Reigned that they were resolved rather to trust to the Coronation Oaths and innate goodness of our present and future Kings than to suppose any War could be lawfully made against them upon any account whatsoever which would have been expresly contrary not only to
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
and Lord Lieutenants and if they had refused to answer positively to those questions proposed to them I know no other penalty they had been liable to more than being put out of Commission which sure is no punishment but rather an ease and tho' I do not defend those evil Ministers that put the King upon this Method of distrusting and disobliging his best Protestant Subjects I mean those of the Church of England by putting them out and putting in either Papists or Fanaticks in their steads yet all that own themselves of that Communion ought to have been of more loyal Principles than to have taken up Arms as some of them have done upon pretence of standing by the Prince of Oranges Declaration against these abuses F. I see though you cannot directly justifie the examining of the Lords Lieutenants and Deputy Lieutenants and Justices of the Peace about taking away the Penal Laws and Test and turning those out of Commission that refus'd yet you strive to mitigate it as far as you can by making it part of the Kings Prerogative to put in and out what Judges Justices and other Officers he pleases well granting this to be so yet sure you cannot deny but that the clositing of Judges and all other Officers you have now mention'd and putting those out of Commission that refus'd to comply with the Kings Will and that for no other reason was sure a strange abuse of that Prerogative and the excuse you make that the persons examin'd had a liberty to refuse whether they would give any positive answer or not is yet more trivial since it is very well known that as well those who gave doubtful answers or refused to make any answer at all were as much turned out as they who positively denied to comply with the Kings demands so that no answer was looked upon as satisfactory but such as seemed to give up all freedom of Elections and Votes in Parliament none being to be chosen by the Kings directions but such as would engage before hand to repeal the Test and Penal Laws and I think you will not deny but that the King by thus examining all these Magistrates and Officers you now mention and by turning those out that refused to comply did all he could to hinder the free Election of Members to serve in Parliament and the freedom of giving their Votes when they came thither and the King might as well another time have declar'd that he would have no Members chosen but such as would agree to take away the Statute de Tallagio non concidendo or any branch of Magna Chartâ— which he should think fit to have repeal'd and as this strikes at the very fundamental constitution of the Government viz the free Election of Parliament men so it was inserted among the Articles against Richard the II. that he had caus'd the Sheriffs to return whom he pleas'd for Knights of Shires as I have already shewed you But what say you to the Kings late calling in almost all the Charters of Cities Towns and Corporations in England and putting in Popish or Fanatick Officers and Magistrates into the rooms of those that were turn'd out only to influence Elections and to procure what persons he desired to be return'd for Parliament men is not this a grand breach of the fundamental constitution of the Kingdom thus to take away the legal Rights and Priviledges of these Corporations for no other cause than to procure the King such Parliament men as he had a mind to M. I beg your pardon I forgot to mention this sooner and though I will not take upon me absolutely to defend the Legality of it much less the design for which it was done since I grant that it was in order to destroy or at least to humble the Church of England yet since iâ— was done by colour of Law and Judgment of the Court of Kings Bench and no more than what has been formerly done in the Reign of King Charles I cannot see how the Noblemen and Gentlemen lately in Arms could defend their rising upon that ground unless they would also at the same time justifie the lawfulness of the Plot and Rebellion intended in the same Reign and in which so many of the Whig Nobility and Gentry were deeply engaged F. To answer what you have said in vindication of this great violation of one of the fundamental Rights and Liberties of the Kingdom I must in the first place tell you that as I shall not now examine into the matter of Law whether a Corporation can forfeit it's Charter for misdemeanours or not much less shall I concern my self whether it were done by or without colour of Law or the Judgment of the Court of Kings Bench since it is notoriously known that none of the Judges were permitted to sit there nor any new ones put in but such as would blindly agree to all the Court would have done and therefore I value nor any thing they did nor think it one â—ot the more legal for their Judgments nor is it any excuse that the same thing was done in King Charles Reign and therefore might as well be done now without any rising against it for though I must tell you I look upon the taking away of the Charters from the City of London and the other Cities and Corporations of the Kingdom one of the most arbitrary and illegal acts of that Kings Reign yet there were several reasons which made it unlawful for the Nation to rise then yet it might not be so now as in the first place because most of those Charters were either willingly surrender'd by the members of those Corporations or else were declared forfeited by due trial and Judgment of Law whereas it was much otherwise in this Kings Time when notwithstanding that all the Cities and Towns Corporate in England had but a few years before taken out new Charters to their great trouble and expence they were now summon'd anew to surrender these again for no other reason but because it was the Kings pleasure it should be so for who can imagine that all the Corporations of England could have forfeited their Charters in so short a time as three or four years and they were plainly told that the King must and would have them and that it was to no purpose to stand out and therefore it was no wonder if all the Cities and Corporations of England were forced to submit patiently to this violation since they found by experience the Judges were ready to give Judgment against them right or wrong And besides this I have already laid it down as a Maxime that no resistance whatever is to be made till matters become desperate and all other means are become absolutely ineffectual which I think they were not as long as King Charles lived who besides the inconstancy of his humour which seldome persisted long either in well or evil doing especially if the ill consequences of it were well laid
M. OH Are you come at last I have looked for you these two Nights and now began to fear you were not well or else had distrusted your cause and declined another Conference F. I beg your Pardon for disappointing you which yet I had not done had noâ— some Business hindred me but however to let you see I do not decline another Conference with you upon this Subject pray let us go on where we left off and tell me freely your sense of my Notion of the Kings forfeiture or Abdication of the Government by his violation of the Fundamental Laws of the Kingdom and refusal to repair those Breaches when he might have done it M. In answer to your demand I will deal freely with you and must tell you that I have perused all Writers that have Writ any thing considerable concerning the Laws of Government or of Nations and cannot find in any of them any thing to countenance your Notion of forfeiture or Abdication of an absolute Sovereign Prince aâ— I must still take ours to be notwithstanding all you yet said to the contrary unless what you have cited at our third meeting out of Barclays third Book contra Monarches where he allows the Subjects to resist their Prince in case he go about to destroy the Body of the People or Common wealth whereof he is the Head To which I may also add another Case which you have omitted viz. if the Prince make over his Kingdom to another without the Consent of his People And I confess that both Grotius and Pufendorf agree with Barclay in this Notion Because they look upon both these Cases as their plain downright Renunciations of their Civil Authority over those whom they were obliged to Govern But indeed the first of these Cases is so improbable nay almost impossible to happen that were it not for the over-great niceness of these Writers it need not to have been so much as mentioned since none but a Mad-man can ever go about to destroy his whole People and therefore as a Man out of his Wits such a Prince may be Resisted and lockt up if ever it should so fall out as you your self have confessed it hath very rarely for a Nation to be so unhappy as to have such a Prince but as for the Second viz. the making over their Supream Power to a Foreign Prince that likewise so very rarely happens That it is scarce worth the while to make any dispute about it But in all other Cases they held the Supream Power of every Nation to be absolutely Irresistible in any case whatsoever and if irresistible then certainly uncapable of forfeiting their Right to govern by any pretended or real Violation of the Liberties and Priviledges of the People And Bodin in his first Book de Republica tho' he grant that absolute Princes are obliged in Conscience to keep and maintain all such Priviledges which have been granted to the People by either themselves or Predecessors which are for the good of the Common-wealth yet since the Prince is sole Judge whether these Priviledges are consistent with his Supream Right to Govern and Protect his People he may therefore have occasion sometimes not only to Detract from them or dispense with them in some Cases but may wholy break and lay them aside by turning Tyrant Yet nevertheless in all these Cases People are still bound not to resist them And that he looked upon the King of England as such an Absolute Monarch as well as others he there mentions pray read me the place I now Cited where after he has allowed Resistance to be lawful against those Princes who were not properly Monarchs as enjoying but a share of the Supream Power and among which he reckons the German Emperor and the Kings of Denmark Sweden and Poland But then when he comes to speak of Real and Absolute Monarchies his Sense is quite different as you may see by these words Quod si Monarchia quaedam est summâ unius potestate constituta qualis est Francorum Hispanorum Anglorum Scotorum c. I shall slip all the rest because not to our purpose ubi Reges sine controversia jura omnia Majestatis habent per se nec singulis civibus nec universis fas est summi Principis vitam famam Fortunas in discrimen vocare seu vi feu Iudice constituto id fiat etiamsi omnium scelerum ac Flagitiorum quae in Tyrannis convenire antea diximus turpitudine infamis esset where you may observe that Force or Resistance by which such an absolute Princes Life or Regal Power here called Fortunas are as much forbid as calling him in question by appointing Judges to sit upon him And he there gives us a very good reason for it because all Subjects of what degree soever cannot pretend to any Coercive Power over the Person of a Sovereign Prince F. We have discoursed enough concerning the Resistance of Absolute Monarchs at our third and fourth meeting and therefore I desire we may not fall into that Subject which can produce nothing but needless Repetitions and I have already proved at our 5th Conversation that the King is not an Absolute Despotick Monarch but is limited and tied up by the Fundamental Laws of the Kingdom from making of Laws or raising Taxes without the consent of his People in Parliament and that our Government is mixed and made up of Monarchy with an allay of Aristocracy and Democracy in the constitution the former in the House of Lords the latter in the House of Commons as K. Charles the First himself confesses in his Answer to the Parliaments 19 Propositions and I have farther inforced this from divers Authorities out of our Anâ—ient as well as Modern Lawyers viz. Glanvill Bracton Fortescue and Sir Edward Coke So that since we have such clear proof for our Constitution from our own Histories and Authors nay from the King himself besides the whole purporâ— and style of the very Laws and Statutes of the Kingdom I do not value the Authority of Bodin a Foreigner whose business it is to set up the Authority of the French King to the highest pitch he could and therefore being sensible that antiently the Government of France and England were much the same he could not with any face make his own an Absolute Despotick Monarchy unless he had made ours so too But this is not the only Errour he has been guilty of in our History and Constitution as I can shew you when there is occasion But Arnisaeus who as well as Bodin is so much for Absolute Monarchs yet does in his Treatise of Government called his confess that a Tyrant in an Hereditary Monarchy who violates all the Laws of Justice and Equity to the endangering the Ruine of the Common-wealth doth ixcidere Iure haereditario fall from or forfeit his Hereditary Right But pray make it out by some convincing proofs either from History or Law that our Kings are
Wales though it is true he is carried out of England ought to have been immediately declar'd King as was done in the Case of Edward the 3 d. who was so declar'd upon the Deposition or Resignation of King Edward the 2 d. F. Though I grant ever since the Crown has been claim'd by Descent the Law has gone as you have cited it and that Finches Law lays it down for a Maxim I shall not deny but that from the beginning or original of Kingly Government whether we look before or after you Conquest it will appear that the Throne was often vacant till such time as the Common Council of the Kingdom had agreed who should fill it and to shew you I do not speak without good Authority pray tell me if this Maxim had then obtain'd why after the Death of William the First his Eldest Son Robert Duke of Normandy did not immediately take upon him the Title of King of England or at least had done it after the Death of William Rufus who you know was placed on the Throne â—not by Right of Inheritance but by his Fathers Testament confirm'd and approv'd of according to the Antient English-Saxon Custom of Succession by the common Consent of the great Council of the whole Kingdom and yet notwithstanding after the Death of this William Henry his younger Brother succeeded him by the free Election and Consent of the same Common Council and yet that Duke Robert should never in all his Life-time take upon him the Title of King Pray tell me likewise if this Maxim had been then known why Maud the Empress immediately upon the Death of her Father King Henry the First did not take nor yet her Husband the Duke of Anjou in her Right the Title of King and Queen of England though she had had Homage paid her and Fealty sworn to her in the Life-time of her Father as the immediate Successor to the Crown and yet notwithstanding the utmost Title she could assume was that of Domina Anglorum Lady or Mistress not Queen of the English whilst Stephen who had no other Title but the Election of the great Council of the Nation held both the Crown and Title of King as long as he lived As also why Arthur Duke of Britain who according to the now received Rules of Succession was the next Heir to the Crown upon the Death of King Richard the First never took upon him the Title of King unless it were that he very well knew that his Uncle King Iohn had been placed in the Throne by the Common Consent and Election of the great Council of the Kingdom So likewise after the Death of King Iohn why Henry his Son was not immediately proclaim'd King till such time as the great Council of the Clergy Nobility and People had met and agreed to send back Prince Lewis whom they had chosen for their King though not being Crowned he never took upon himself that Title and so chose Henry the Third then an Infant for their King Lastly Why all these Princes viz. Henry the Second Richard the First and Henry the Third who according to your notions were undoubted Heirs of the Crown never took upon them the Title of Kings of England nor are so stiled by any of our Historians till after their Elections and Coronations if it had not been then received for Law that it was the Election of the People and Coronation subsequent thereunto that made them Kings and till this was performed though they might look upon themselves as never so lawful Successors the Throne was notwithstanding esteem'd in Law vacant Therefore as for your Iâ—stance of King Edward the Third 's immediately succeeding upon the Resignation of his Father if you please better to consider of it that makes against you for it is plain from Th. Walsingham and H. de Knyghton that Prince Edward succeeded not to the Crown by Succession but the Election of the great Council or Parliament the words are express Huic Electioni universus Populus consensit and this was also owned by Edward the Second himself who when the Commissioners of all the Estates of Parliament came in all their Names to renounce their Homage to him yet in the midst of all his sorrow he gave them thanks quod Filium suum Edwardum post se Regnaturum eligissent which plainly shews that the Parliament had then such a Notion of a Forfeiture proceeding from his Deposition for violating the Fundamental Laws of the Kingdom that the Eldest Son and Successor could pretend no other Right to it even in the Judgment of the late King himself but what proceeded from their Election M. I cannot deny but what you have now urged from matter of fact may appear very plausible to your self and those of your Notions yet if it be looked closer into I doubt not but the known Laws then receiv'd and the Notions the people had then of a Lineal Succession by Right Inheriâ—ance will prove directly contrary to the matter of fact For you know very well à facto ad Ius non valte consequentia but that all the Princes you mention'd except the three last were really Usurpers and not Lawful Kings I shall let you see by evident Authorities from the Historians of those Times For in the first place though I grant William Rufus succeeded to the Crown by his Fathers last Will which was certainly unlawful as being contrary to the receiv'd Laws of Succession in Normandy as well as England yet was it not by Election of the people as you suppose but by the kindness of Arch-Bishop Lanfranc his God-father and the favour of the greater part of the Norman Barons who came over with his Father as well as out of hatred to Duke Robert his Elder Brother that he was thus made King so that William Rufus claimed as a Testamentary Heir and by reason of that Claim was advanced to the Throne by the Assistance of Lanfranc's and the Bishop's Faction who then swayed the people but yet never owned any Election from them so that if you rightly consider this Story you cannot call it an Election but a Designation or Nomination by his Father William the Conqueror and consented to by the major part of the Bishops and Lords of the Kingdom but not by their Election or Decree as a Common Council as you suppose But that for all this Duke Robert his Brother being assisted by Odo Bishop of Bayenx and Earl of Kent his Uncle as also divers other Norman Lords who being satisfied of his Right raised a War in England against William and great mischief was done on both sides till at last a Peace was made between them upon these conditions among others as Matthew Westminster relates it that because of the manifest Right Duke Robert had to the Crown he should have a Yearly Pension of three thousand Marks out of the Revenue of England and he of the two Brothers that surviv'd the other if he died
was a man and better acquainted with England and having the Interest of the Arch-bishop of Canterbury and most of the great men were of his party and yet for all that Hoveden who was alive at this time speaks not a word of his being Elected but only that upon his coming into England he was received by the Nobility and Crown'd by Hubert Arch-bishop of Canterbury so that there is not one word there of any Election by but only a submission from the Lords Spiritual and Temporal to King Iohn and a recognition that he was their King nor indeed could he need it if it be true what the same Author tells us That when King Richard despar'd of Life he devised to Iohn his Brother the Kingdom of England and all his other Lands and caus'd all those that were present to do him Fealty and this is related by Hoveden in all probability an Eye Witness of these transactions So that the first Author we find to mention any thing of the particulars of this pretended Election is Mâ—tthew Paris who has given us the Speech which the Arch-bishop made at this supposed Election and also reciting the Arch-bishops Bishops Earls and Barons and all others who ought to be at his Coronation the Arch-bishop standing in the middle of them said thus Hear all of you your Discretion shall know that no man hath right to succeed in this Kingdom unless after seeking God he be unanimously chosen by the University of the Kingdom that is those that are here said to meet at London the rest of the Speech needs no repeating only he lays it down for Law which I think was never heard of before That if any of the Progeny of the dead King did excel others they ought more readily to consent to the Election of him and so upon this Speech made in behalf of Earl Iohn and full of a great deal of fulsom slattery he was declar'd King But to let you see what a sort of Man this Arch bishop Hubert was here see what the same Author tells us in the same place that being asked afterward why he said these things answer'd That he guested and was thought ascertained by certain Prophecies that Iohn would bring the Kingdom and Crown into great Confusion and therefore lest he he might have too much liberty in doing he affirmed he ought to come in by Election and not by Hereditary Succession Now though this Learned Doctrine of the Arch bishop asserts a right of Election in the Convention of Bishops Earls Barons c. yet by his own answer when he was asked why he said these things it clearly discovers it to be only a design and artifice in the Archbishop to cause them to set up and make Iohn King and in which also he denies any such right of Election but since Hoveden nor any other of our antient historians make mention of this Election but only of his Coronation and the Bishops Earls and Barons assisting at it not giving their consents to it it may very well be that that story of an Election and this Speech of Arch bishop Hubert might be only an invention of Matthew Paris or rather of Roger of Wendover from whom he took most of his History but that this doctrine of the Arch-bishop concerning the Election of our Kings if meant according to the modern understanding of it was then new Gervase a Monk of Canterbury in the year 1122. who also speaking of the Coronation of Henry the First says it was manifest and known almost to all men that the King 's of England were only obliged and bound to God for the possession of the Kingdom and to the Church of Canterbury for their Coronation manifestum est autem omnibus fire notum Reges Angliae soli Deo obligari teneri ex ipsius regni adeptione Ecclesiae Cantuariensi ex Coronatione But that King Iohn was looked upon as an Usurper is very certain since besides some of the honest English Nobility that took Duke Arthurs part the King of France did also make War upon King Iohn upon his Nephews account because he looked upon him as true Heir to the Crown and therefore when K. Iohn had privately made away his said Nephew in prison the K. of France summon'd him as Duke of Normandy and Peer of France to answer for the Murther in an Assembly of the Peers of France at Paris where for his refusing to appear he was condemn'd to death and his Dukedom of Normandy declar'd forâ—eited to the King of France F. I confess you have said as much as can be to prove that King Iohn had no Hereditary Right to the Crown nor was so solemnly Elected to it as Matthew Paris relates but yet for all this I think I may very justly oppose all that you have now said upon this Head for in the first place it was then very much disputed as it hath been also since that time if an Elder Brother died and left a Son a Mâ—nor whether his Younger Brother or the Son should succeed for though the People of Anjou and those of Guienne own'd Duke Arthur for their Prince yet the States of Normandy were of another mind and as well by vertue of King Richard's Testament he was immediately after his Death invested with that Dukedom nor was he then at all opposed in it by the King of France though Supreaâ— Lord of the Fee and as for England besides his Brothers Testament whereby he left him Heir of all his Territories it was also then generally held in England as most consonant to the Antient English Saxon Law of Succession that the Uncle should succeed to the Crown before the Nephew therefore it is no wonder if Duke Arthur found so small a party here not any Bishop Earl or Baron as I read of owning his Title and as for the King of France it is also as certain that he did at first own King Iohn for lawful King of England and Duke of Normandy and entred into a Treaty of Peace and made a League with him as such though it is true that afterwards when he had a mind to pick a quarrel with that King he then set up Duke Arthur's Title And though this Duke was made away in the beginning of King Iohn's Reign yet did not the King or Peers of France ever take any notice of it till about twelve or thirteen years after when he had now unjustly Conquered all Normandy and almost all that Kings other Territories in France and then wanting a Title to keep them he began this Prosecution you mention against him and upon his non appearance he was condemned unheard but that the King of France himself and all the great men of that Kingdom did look upon him to have been lawful King of England appears by that Speech which Matthew Paris relates to have been made after King Iohn's Deposition by the Barons of England by a Knight whom Prince Lewis
pleased to imagine Since therefore the Business must be wholly done by force I shall in the next place consider all those Suppositions you have laid down as well in respect of the French as Irish who are the only Hands that I see likely at present to do this Work First as to what you say that the King would be too wise then to bring over along with him so great numbers of the French and Irish Nations as shall be able to make an entire Conquest of this Kingdom least thereby both he and his Crown may lie wholly at their Mercy when the Business is done you have hereby granted as much as I desire For if their Majesties are never like to be without an Army in England of at least Fifteen or Twenty Thousand Men as long as this War lasts and that the Militia of this Nation which are almost totally against King Iames's Interest and do amount altogether to above a Hundred Thousand Men I think you your self will grant that King Iames cannot attempt coming over hither with an Army of less then 30 or 4000 Veteran Soldiers of the French and Irish Nations though you should reckon the Papists and others who should come into his Assistance at 20000 more who if they should be altogether able to beat not only King William's standing Army but the Militia of the Kingdom to Boot I desire to know what shall hinder them from making as perfect a Conquest of this Nation as ever Cromwell's Army did either of England or Scotland And consequently of seting up what Religion or Government they please in this Kingdom which that it will not be that which is now exercis'd either in Church or State I think any unprejudiced Man will easily grant me But your next Suppositions are altogether as Precarious that it is not either the Design or Interest of the French King to make an entire Conquest of this Kingdom for himself nor yet to make King Iames an absolute Monarch here one of these I must needs believe will happen for though perhaps that King may at present stand so much upon his Glory as not Seize the Kingdom of a Kinsman and an Allie wholly to his own use and benefit yet it is most likely that he will retain French Garrisons in all or most of the strong places of England not only for the security of the Charges he will have been at to place King Iames in the Throne but also as a tye upon us that we shall never endeavour to drive him out again let him use us as he pleases so that tho' I grant he may not make an absolute Conquest of us now yet it may be in his or his Sons power to do it hereafter if ever King Iames his Son shall go about to shake of that Yoke when once the present Obligation is forgot or the near Relation between the two Kings shall be farther remov'd nor is what you say less Precarious that it will not be for King Lewis's Interest to destroy our Liberties and make King Iames an absolute Monarch because the Kingdom will be then weaker and more divided-then it is now by those Jealousies and Disputes we shall then maintain with the King about our Civil Rights which is indeed so far true if he Governs when he returns in the same Arbitrary manner as he did before but if he Govern according to Law which no wise Man can expect there needs be no more Divisions among us then was for a great while after King Charles the Seconds coming in but that the French King should fear if he once made the King of England an absolute Monarch and put the whole power of the Purses as well as Swords of his Subjects in his Hands he might then become so formidable as to be an equal Match to France it self and to be able to demand either the whole Kingdom or any part of it is yet more pleasant since France is now in comparison with England not only in respect of Men but also the Revenues belonging to the King as Ten to One and I think I may very well maintain that if England should once come to be Govern'd as France is it would be so far from growing Richer or more Powerful thereby that from the Intestine Grieviances and Discontents that such a violent course of Government would cause in the minds of the People of all Sorts and Conditions by those excessive Taxes and Oppressions that would follow from such an Arbitrary Government the Kingdom would quickly diminish and decay as well in People as Trade and Riches and so consequently in power too which is but the product of both these notwithstanding whatsoever the fair appearance of an outwardly Magnificent Court and a great standing Army may produce in the minds of those that do not truly consider or understand the true Grandure and Safety of the Prince and Happiness of the People But granting all this to be as you suppose pray tell me what shall become of our Religion and Civil Liberties not only 〈◊〉 respect of the French King but of King Iames himself 〈…〉 believe that either of them will cease to be instigated by the Jesuits their Confessors to destroy the Northern Heresie as they term our Religion as well in England as it has been in France No the poor Vaudois in Savoy have been too recent an Example that the King of France would carry the Persecution to the same degree here as he did there and that King Iames being wholly in his Power will not be able to withstand his Commands besides the constant Solicitation of his Confessors of the 〈◊〉 Order and Principles of those of the French King to which Holy Fathers the Protestant Religion in France and Savoy do chiefly owe its Destruction To Conclude let us suppose that King Iames shall now prevail in this War by the help of the Irish Army now rais'd by the Earle of Tirconnel can we â—â—pect better Quarter if the King prevails by their Arms and Assistance then if they were intirely French For having once Conquer'd this Nation it will not be in the King's Power to Govern them so easily as you expect but being inveâ—â—â—te Enemies to the English they will not only possess what Estates they please of the English Nobility and Gentry in Ireland but in England too which will be declar'd forfeited by their Owners opposing of King Iames and then I will leave it to your self to Judge in what a Condition we shall be in both as to our Religion and Civil Liberties when the King shall come to be manag'd by Men who are declar'd Enemies to both neither will it be in the power of those few moderate men either of the Popish or Protestanâ— Religion who take King Iame's part to hinder it since the other Party will by means of the Priests and Jesuites and the interest of France run down all sober Councils and they will be but looked upon but as Trimmers at best that oppose
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
things being considered it is no wonder if the Judges and Clerks of Parliament who were in those days entrusted with the drawing up all Acts of Parliament being greater Masters of the French than Latin Tongues chose rather to draw them up in the former and thus it continued until the Reign of Henry the seventh when our Statutes began first to be drawn up and enrolled in English M I confess you have given me a greater light in this matter than I had before yet I suppose you cannot deny that the Tenure of Knights Service with those clogs that belong to it of Wardship Marriage and Relief were all derived from the Normans as appears by the grand customer of Normandy which I have already menâ—ioned so that tho' it be true that all these are now taken away by a late Statute of K. Charles the second yet since this Tenure and those services are not found among the Saxon Laws there cannot be a greater proof of the ancient power of the Conqueror or of the servitude imposed upon the Nation by him and therefore I look upon it as a very imprudent part of the late K. Charles to part with so great a tye which his Father and all his Predecessors had over the Persons and Estates of all the Nobility and Gentry of the Kingdom F. I shall not take upon me to decide whether it were Politickly done or not of K. Charles the second to part with the Wardship and Services of his Tenants by Knights Service but this much is certain that considering the abuses and corruptions that had crept into that Tenure by degrees since the first institution both by the unfit Marriages of the Heirs as also by the waste that was often times commited on the Wards Estate during his Minority it was certainly a very great grievance and burthen to the subject and considering how many of those Wardships were begged by hungry Courtiers they were of no considerable profit to the Crown and tho' I grant they were a very great tye or rather clog upon the Estates of the Nobility and Gentry of this Kingdom yet it did not thereby produce any such love or obedience as would retain the Tenents better in their duty before than since they were granted away for the forfeitures for Treason and Felony and also Fines for Alienations and are reserved to the Grown now as they were before and as for any love or respect which was anciently paid by the Heir how could there be any such thing since the King granted away the custody of the Heir and his Lands to persons who for the most part made a meer prey of them so that they were often Married against their consents and their Estates were delivered to them wasted and spoiled besides also what was exacted from them for reliefs and Ouster lismaines we need not wonder if it were rather a cause of secret discontent and hatred of the Kings Prerogative than otherwise and therefore I cannot think it was not so unpolitickly done by the King to render himself gracious and acceptable to his People upon his return to grant their request and pass that Act for taking away Wards and Liveries and to accept of a Revenue by excise of treble the value in stead of it But to come to the Original of Knights Service it self I do not think it was derived from the Normans since we are certain there were Thane Lands in England which were held of the King and that by Knights Service before King William's coming over and there were also middle Thanes who held of those Lords above them by the like Service insomuch that in the Laws of K. Knutâ— there is one concerning the Heriots which an Earl the Kings Thane as well as inferior Thanes were to pay not only to the King but to other inferiour Lords which are almost the same as were afterwards reserved by the Laws of K. Edward the Confessor confirmed by K. William as you will find them in Ingulph only there is no Gold reserved but only Horses and Arms whereas by the Law of K. Knute each E. was to pay two hundred Manenses of Gold each Kings Thane fifty and each inferiour Thane two pounds only note that he who is called E. in K. Knutes Laws is called a Count in these the Thane a Baron and the inferior Thane a Vauasor and that which is there called a 〈◊〉 is here termed a Relief And that this Tenure by Knights Service which is now called Escuage or Servitium Scuti was of ancient time named expeditio hominum cum scutis and was in use before the coming in of the Danes is also as certain for Sir E. Coke in his fourth Inst. tells us that we may in the Charter of K. Kenulph who Anno Domini 821. granted to the Abbot of Abbindon many Mannors and Lands and reserved quod expeditionem duodecim virorum cum tantis scutis exerceant antiqâ—os pontes arces renovent and also he mentions a like Charter of K. Ethelred to a Knight called Athelâ—eâ— Anno Domini 995 so that you see not only Spiritual Persons and great Thanes or Barons but also Knights held Lands by the service of so many men before your Conqueror and your Dr. also himself allows it for in his answer to Mr. P. in all ancient Charters in the Saxon times he translates the word fidelâ—s by Tenants in Capite or Military Service M. I will not deny that Military Fees were in use before the Conquest and also that the feudal Law did obtain here in many things and therefore I am so far of the Doctors opinion who in his Gossary Tit. Feudal Laws tells us The Feudal Law obtained to most Nations of Europe and in Normandy was in its full Vigor at the time of the coming over of the Conqueror but afterwards grew more mild and qualified as also the Tenure it self a perfect description of which with all its incidents of Homage Relief Ward Marriage Escuage Ayds c. are to be found in the Grand Customer Cap. 29.33 34 35. and although there were Military Fiefs or Fees here in the Saxon times yet not in such manner as after the Conquest established here by William the Conqueror and according to the usage in Normandy when as it appears by Doomesday-book in every County he divided most if not all the Land of England amongst his Normans and Followers Now that this custom of Wardships is wholly derived from the Norman Conquest you shall find in Sir E. Cookes fourth Institutes in the same Chapter you last cited as you may here read You have heard before de regali servitio before the Conquest but that regalâ— servicium which was Knights service drew unto it relief but neither Wardship of the Body or of the Land as hath been said it is true that the Conqueror in respect of that Royal service as a badge of the Conquest took the Wardship of the Land and the Marriage of the
of France had made his Procurator to treat with the Popes Legat about his coming over hither where when he had recited that King Iohn had been condemn'd by his Peers for the Death of his Nephew Arthur and that he had been also for his great cruelties and other wickedness Deposed by the Barons of England and farther reciting that the said King without the assent of his Nobility had resign'd his Kingdom to the Pope to hold it of him at an Annual Tribute of a thousand marks the rest I will give you in Latine because you your self shall translate it etsi Coronam Angliae sine Baronibus alicui dare non potuit potuit tamen dimittere tam quam statim cum resignaverit Rex esse desiit Regnum sine Rege vacavit vacans itaque Regnum sine Baronibus ordinari non debuit c. so that you may see that by the order of Prince Lewis and the allowance of the King of France himself every one of our opinions are maintain'd for good first That King Iohn was before the resignation of his Crown to the Pope true and lawful King Secondly That by that resignation to the Pope he did dismiss or abdicate his Right to it for so I suppose the word demittere Regnum is here to be render'd Thirdly That upon this dismission of the Crown the Throne became Vacant Fourthly That upon this Vacancy the Kingdom could not be conferr'd without the consent of the Barons that is the great Council of the Kingdom But let King Iohn's Right to the Crown have been what it would it is certain that he could not take it upon him until such time as this Great Council had both heard and allow'd his Title and that this was in the nature of an Election notwithstanding his Brothers Will appears by that account which Roger Wendover and Matthew Paris have given us of it which though Hoveden and other Writers have omitted yet doth it not therefore follow that this was all the pure invention of Roger of Wendover or Matthew Pariâ— since the former he living near that time might write from the relation of â—oâ—e that were then present and as for the latter I look upon him though a Monk as a man of too great integrity to invent any thing of his own Head and though I confess the account that Arch-bishop Hubert gives why he put King Iohn's Title rather upon Election than Succession looks very suspicious since the Arch-bishop must thereby have made himself a Knave and a Hypocrite and seems also to contradict what Matthew Paris had before said viz. That all those that heard his Speech dares not so much as doubt of these things knowing that the Arch-bishop had not thâ—s judged of this matter without cause and therefore I grant that this part of the relation concerning the Arch-bishops vindicating of himself for thus giving his Judgment might be a Story commonly taken up and being told to this Authour was by him inserted in his History at a time when I grant the Crown of England began to be thought successive by reason that King Henry the III. had succeeded as the eldest Son of his Father though he was noâ— for all that admitted without Election as I shall prove by and by but that King Iohn was made King by Election though he claim'd it from his Brother by successiâ—n likewise appears from his own Charter still to be seen at this day in the Arch-bishops Archives at Lambeth wherein he recites that he came to the Crown Iure hereditario mediante tam Cleri quam populi unanimi consensu favore where you see plainly that he derives his Title from the consent and favour of the Clergy and People as well as his own Hereditary Right M. Notwithstanding what you have now said I cannot agree with you that by these words you have now cited from this Charter is to be understood any formal Election of the Clergy and People but that this unanimous consent mention'd in it was rather their acknowledgment of his Title and submission to him than any thing else for according to Hoveden's relation of his coming to the Crown which I think the most exact extant the whole Nation submitted and swore Fealty to him against all men before he came over into England But as for his Son Henry the III. it is much more plain that he succeeded by Succession and not by Election as being the Eldest Son of the Late King his Father as appears by the relation of his Coronation in Matthew Westminster who tells us thus Henricus Iohannis primogenitus in Regem inunctus solemniter Coronatus est and tho from the Speech which was made to the Clergy and Nobility that was then at Gloucester by the Earl Mareshall 't is pretended that Henry was Elected yet I dare say if any one do but impartially consider the tenour of it he will find that the design of it was rather to persuade all those then present to return to their duty and acknowledge Him for their King whom God and Nature had designed for that great charge for the Earl begins his discourse to 'em thus as it is in Knighton Ecce Rex Vester which certainly could not then be true if an Election was necessary to make him such but amongst the rest of his Arguments he urges this Hunc igitur libeat regem dicere cui ipsum Regnum debetur you ought to chuse him to whom the Kingdom is due which surely it can be to none if it be not Hereditary and what puts all out of doubt that the Kingdom was not then and if not then I am sure never since Elective is the answer of Hubert de Burgh to Lewis when he summon'd him to deliver up Dover Castle to him since his Master for whose use and service he held it was dead but see his answer If my old Master say's he he dead he has left behind him Sons and Daughters to succeed him A thing he never would have asserted had he not thought there had been a Divine Right somewhere else than in the People F. Before I speak any thing to King Henry the III ds Election give me leave to reply to what you have said against the express words of King Iohns Charter for if Favor and Consensus does not signifie somewhat more than a bare acknowledgement and submission I understand neither English nor Latine Nor is this any answer to the express testimony of Roger of Wendover and Mat. Paris to the contrary And as for Roger Hoveden he does not say he was not Elected but only omits the manner of it as divers other Historians do So that at the best this is but a negative Argument And yet that Hoveden himself did not look upon him as King even after the whole Nation had sworn Fealty to him before his Coronation may appear from this passage a little before his coming over Wâ—â—ielmus Rex Scotorum misit