that if the Sense of these Words have been sufficiently explained I think no reasonable man can have any cause to doubt whether these Abstract Words Nobilitas Universitas and Communitas should be taken for all Sorts and Degrees of men when thus represented in the Great Council or whether they shall be confined to the Greater or Lesser Nobility only viz. the Great Lords Bishops and Tenants in caâ—ite as you would make me believe which requires stronger Proofs than what you have yet brought Besides which Sense of this Word Communitas or le Commune it is also more commonly used at this day and often then too in another more restrained and yet legal sense and that is when it is used for the Commonalty or Commons of England distinct from the Peers and this may very easily be distinguished by observing that when it is taken in this Sense it is always set after the particular enumeration of the other Orders of the Lords or Peers viz. the Arch-Bishops Bishops Abbots Priors Earls and Barons or when it is put contradistinct to the Word Magnates I shall give you some Authorities and Examples from Historians and Records of both these and that in the Times preceding those that you allow the Commons to have been summoned in Parliament Of this sort is that which Matt. VVestm mentions as a Parliament held 37th Hen. III. and which is thus recited in the Patent Roll of this year where after the Excommunication denounced against all Infringers of Magna Charta there is this solemn Clause aâ—ded That if to the Writings concerning the said Sentence any other thing or in any otherwise should be added thereunto besides the Forms of the said Sentence then to be denounced and approved of that then Dominus Rex praedicti Magnates Communitas Populi Pretestantur publice before all the Bishops that they would never consent thereunto and conclude thus In cujus Rei Testimonium in posterum Veritatis testimonium as well the King as the Earl of Norff. Heref. Essex and VVarwick as Peter de Sabaâ—dia ad Inslantiam aliorum Magnatum Populi Praescripti sigilla sua apposuerunt where you may see that it was usual before the 49th Hen. III. for those that were Peers to sign for the Communitas Populi or Commons M I pray give me leave to answer your Authorities as you bring them lest I not onely forget some of them but also tire both you and my self with too long a Discourse I hope I am very well able to prove by the learned Dr.'s assistance that the Communitas Populi here mentioned doâ—h signifie not the Commonalty or Commons but the Community of the Laity there present consisting of the Greater Barons or else the Less or Tenants in capite And for proof of this pray take notice that Matt. Paris called this Council Tota Angliae Nobilitas And in this Parliament the King demanding a great Sum of Money of them after much contest and upon promise to reform all Abuses according to the Tenour of the Great Charters thereupon the same Author tells us The Church granted the Tenth of the Revenue for three years and the Knights or Nobility granted for that year Scutage to wit Three Marks of every Scuâ—uâ— or Knights 〈◊〉 And then the Arch-Bishops and Bishops in their Pontificalibus with Light-Candles in their Hands in the presence and with the assent of the King the Earl of Cornwal his Brother and several Earls there named aliorum Optimatum Regni Angliae and other chief men of the Kingdom excommunicated and cursed all those that from thence forward should deprive the Church of her Right and all those that should change alter or diminish the Liberties of the Church and Anciâ—â—t Customs of the Kingdom especially those granted in the Great Charter of the Common Liberties of England and Charter of the Forest granted by the King Arâ—hiâ—piscopis Episcopis cateris Angliae Praelatis Comitibus Baronibus Militibus â—â—berè Tenentibus c. i. e. To the Arch-Bishops Bishops and other Prelates of â—â—gland and to the Earls Barons Knights and Free-Tenants or Tenants in Military 〈◊〉 Knights Service For they only were such aâ— paid Scutage which was at this â—ime a kind of composition with the King for the confirming Magna Charta and was never charged but upon Knights Fees and these were such that held perhaps one narrow or scanty Knights Fee only or some part of a Knight's Fee as an half 3d 4th 6th 8th part c. who all paid a proportionable share of Scuâ—age to the Great Lords or Tenants in capite for the Land they held of them in Military Service which was paid first to the Great Lords and by them paid to the King And from thence I collect that besides the Barones Majores that came to this Great Council or Parliament there were also the Tenants in Capite according to the Directions and Law for Summons in King Iohn's Charter who were comprehended under the Words tota Nobilitas Milites and that other Tenants but held of the Tenants in capite by Knights Service were bound by their Acts 〈◊〉 they all knew how many Knights Fees they held of the King in capite and if â—â—ey had given any away to others they held of them as they did of the Crown â—â—d answered a proportionable rate towards this Tax for the Fees Quantities 〈◊〉 Parts of Fees they held of them about which there could be no mistake 〈◊〉 the Scutage was ascertain'd So that in so Great an Assembly where all the Nobility of England were called together by the King 's Writ and upon so great 〈◊〉 occasion and solemnity as confirming the Great Charter of Liberties after such an extraordinary a manner it cannot be doubted but besides the Barons all the 〈◊〉 in capite both Great and Small which were then very numerous were â—resent or at least most of them from whence it is not difficult to tell you to the Communitas were after the Prelates Barons and Magnaâ—â—â— they were no other than the Small Tenants in capite who were all summoned by one General Writ nor chosen and sent by the people but summoned as the Great Barons in general by King Iohn ' Magna Charta as I shall shew you hereafter F. I hope I shall be well enough able to prove that what you have now alledged is pure imagination or in the Dr. Phrase an airy Ambuscade and quite contrary to the Sense of Matt. Paris as also of the Lawyers and Historians of those Times For in the first place nothing is plainer than that this Author by the Words Communitas Populi must understand an Order of Men distinct from the Magnates or else if the Word Magnates might have comprehended them all it would have been to no purpose to have mentioned any more But to answer those Authorities you bring from Mat. Paris As for the Word Nobilitas since you still insist upon it I
Point namely That the King his Nobility and Commons did Ordain and Enact the same And which is more if you shall find any Acts of Parliament seeming to pass under the Name and Authority of the King only as there be some that have that shew indeed yet you must not by and by judge that it was established without the Assent of the other Estates As for the rest of your Insinuations rather than Arguments against the Antiquity of those Expressions Be it Enacted by Authority of Parliament or Be it Enacted by the King Lords and Commons which bear so hard upon you to prove that these last have a share in the Legislative that they were introduced in the Reigns of Henry VI. and VII two Usurpers and but in the Nonage of the former I think I shall be able to shew you that you are very much out in your account for I will shew you much ancienter Authorities wherein the same words or others equivalent have been used in our ancient Statutes And first pray call to mind the Statute of Measures already recited where it is said That by the Consent of the whole Realm of England the Measure of our Soveraign Lord the King was thus made c. which certainly must mean the Assent of all the Estates assembled in Parliament And my Lord Coâ—e tells us in his Third Institutes of an ancienter Record that he had seen of the 7 th of this King wherein it was Enacted by the King the Lords Spiritual Temporal and Commons But since I have given you Presidents enough of Statutes which are said to be made or ordained by the King with the Assent of Lords Spiritual and Temporal and Commons I will shew you one where the King is not at all mentioned and that is in Rastal's Statutes 4 Hen. 4 cap. 24. concerning Aulnage of Clothes wherein it is said to be ordained and accorded by the said Parliament without any mention at all of the King And to let you see that these fatal words you except against were in use before the Reign of Hen. 6. pray see 9 Hen. 5. cap. 4. concerning the Misprision of Clerkâ— in writing which runs thus The King hath now declared and ordained by Authority of this Present Parliament that the Iustices c. which must certainly refer to the Lords and Commons unless you can make the King alone to carry the whole Parliament in his own person But whereas that Phrase had began from Vsurpation it would have been first found in the Statutes of Henry the 4 th But to let you see that Edward the 4 th tho no Usurper yet did not think that these words did abate any thing of his Royal Prerogative pray see in the 4 th of that King Cap. 1. wherein it is recited That the King by the advice assenâ— request and authority of the Lords Spiritual and Temporall and Commons in Parliament assembled hath ordained and established But that by Assent of Parliament and by Authority of Parliament is all one and the same since the Assent of Parliament makes its Authority Pray see the express Judgment in this point of the Lord Chief Justice Crew and Justice Doderidge given in the Great case of the Earldom of Oxford reported in Judge Iokes's Reports To conclude tho I do not deny His Majesties Negative Vote to all Acts of Parliament yet this Prerogative can be concluded only from his giving his last Assent to a Law for when a Bill begins from himself the two Houses have likewise a Negative upon him which is evident in an Act of Pardon which proceeds from the King first and sent down to the Parliament this neither the Lords nor Commons can add or alter one tittlâ— to yet may they notwithstanding his prior Asent refuse the whole Bill if they please tho already past under the Great Seal And tho I likewise grant that it is the Le Roy le Veult that by yielding the highest and last Assent gives the Enacting force to the Law and thus the King may in a Logical sense be said thereby to make the Laws according to that known Maxim Quod dat formam dat esse â—ei Yet this does not hinder but in a Legal sense according to the express declaration of our old Lawyers and Acts of Parliament the Laws owe their obligation to the joint consent of King and Parliament and his giving his last assent or form to the Law no more proves his sole Legislative Power than it would do that of the Lords or Commons if either of them by the Constitution of the Government were to give their Asents last thereunto So that I think upon the whole matter no man can reasonably deny but that Legally the Two Houses of Parliament have also their share not only in framing but Enacting of all Bills that shall pass for otherwise they would signifie no more than the Committee of Estates in Scotland or the King and Council of England in relation to Ireland the former of which draws up all Bills that are to pass in the Parliament of that Kingdom and the latter must approve or reject all Bills that shall pass in the Parliament of Ireland Whereas the Authority of our Parliament consists in their consenting to and Enacting together with the King all Statutes whatsoever And this Distinction I think may very well reconcile Bracton with Fortescue the former of which says Quod leges ligant suum Lâ—torem meaning the King and the latter in the place I have already cited affirms that the People are governed by those Laws quas ipse feâ—t which they themselves make and this I think is to ascribe to the King as much Power as is requisite to a Civil Soveraign and yet to leave a sufficient share to the People to secure themselves from Tyranny M. I must beg your pardon if I cannot be satisfied with your division of the Legislative Power beiween the King and the Two Houses of Parliament since it is against the sense of our old Lawyers Glanville and Bracton who as you your self confess make the King the Sole Legislator And tho I confess Fortescue gives the People a share in it yet he is but a Modern Author in comparison of the other two and writ to support the Vsurped Title of Henry the Sixth So that I cannot comprehend how the Two Houses can have any share properly speaking in the Legislative Power without falling into that old error of making the King one of the three Estates and so co-ordinate with the other two whereas if the King be a Monarch that signifies in Greek the Government of one person whereas by giving the Two Houses a part in the Legislative you divide it into three several shares Whereas there is so close a conjunction between all the Parts of Soveraign Power that the one cannot be separated from the other but it will destroy the form of the Government and only set up an Irregular Commonwealth in its place
will not affirm that the Ecclesiastical Authority of Bishops as to their Right of meeting in publick Synods or Councils is derived from the Crown But the Truth is the Sense of this Statute is no more then that all such Iurisdiction is immediately derived from the King though Originally from the People which Fortesoue calls Potestatem à Populo effuxiam and by them intrusted with him as the Supream Magistrate to Distribute it to all Inferior Courts which yet he cannot at this Day Create anew without an Act of Parliament so that this will not extend to the whole Assembly of the Estates themselves Since I doubt not but to prove by undeniable Testimony that that Constitution is as Ancient as the English Nation it self M. I see you have a mind to wrest the true sense of this Statute by a forced Interpretation but I hope at our next meeting to prove to you that our first Saxon and Norman Kings were Absolute Monarchs and that not only all the Liberties and Priviledges we enjoy but also our Civil Properties were wholy derived from him and if so it will also necessarily follow that all Difference and Distinction in Honour or Power by which the Bishops and Temporal Lords can claim to Sit in Parliament is wholy derived from those Kings For as to the Commons I need not go so high for their Original since it is the Opinion of our best Antiquaries and I think the Learned Dr. Brady hath sufficiently proved it against Mr. Petyt that they are no Ancienter than the latter end of Henry the 3ds or perhaps the 18th of Edw. the 1sts Reign Nor do the Authors you have quoted for the Independant Authority of Parliaments viz. â—â—acton and the Mirrour mention any other than the Curia Baronum or that of Counts or Earls as the Author of the Mirrour hath worded it by which can be meant no other than the House of Lords for as to that of the Commons had they bin then in Being or had they had any thing to do in the Government it is not likely these Ancient Authors as well as our Acts of Parliament of those times would have omitted particularly to mention them So that the higher I go and the more I look on the History of our Ancient English Kings the more Absolute I find their Power and the less dependant upon the People Therefore I have very great reason to believe that our first Kings were Absolute Monarchs not only by the Original Constitution of Parliaments but also that our very Liberties and Properties proceeded at first from their meer Grace and Pavour F. I know you have Asserted the same things more than once All the Difficulty lies in the Proof And therefore I would not have you be too positive or rely too much upon the conciseness or Silence of the Ancient Monkish Writers of those first times For since as I own they have never given us any exact account of our Ancient Civil Government nor yet of the History of their own times We are forced for the most part to pick out the Truth from other Circumstancâ—s or such Passages as we can meet withal in their Ancient Laws and Customs nay sometimes from those of their Neighbours who lived under the same kind of Government and Laws with our Saxon Ancestors as proceeding from one Common Stock or Original as I shall shew you before we have done But since we are already in Possession of our Ancient Laws and Liberties and of a Right to Parliaments once every Year or oftner if need be by two Ancient Statutes yet in force at farthest once every three Years by a late Act of Parliament it ought to be your Task to prove to me the Absolute Power of our first English Monarchs and by what Steps and Degrees they came to part with their Power and to be thus limited as we now find them and when you can shew me this I do assure you I will come over to your Opinion M. I shall observe the Method you prescribe And therefore to begin with the first Entrance of the English Saxons into this Island I suppose you are not Ignorant of so Common a piece of History that all the Title they had to this Island was by the Sword or Conquest of their first Princes or Generals who being sent by Lot together with the Armies that followed them out of their own Country because it was too narrow or barren to sustain such great Multitudes they came over hither to seek new Dwellings Now whether these Princes were made Kings before they came over or that they made themselves so immediately after their Conquest will be all one since if we consider them as Military Captains or Leaders of Armies their Power was Absolute as that of all Generals ever was and must be by the necessary Laws of Military Discipline If we look upon them as Kings or Princes as it is very likely they were also before they came over since they were certainly of the Blood Royal all of them deriving their Pedegree from Woden their God as well as first King being thus made Kings by their Fathers or other near Relations there is no Ground to believe they owed their Titles to the Votes or Suffrages of their followers But after they had Setled a Heptarchy or Seven Kingdoms in this Part of Britain called England We find them Governing and Leading their People like Absolute Kings and Monarchs over their little Principalities And since each Kingdom was Conquered from the Britains under the Conduct according to the Laws of Nations and Right of Conquest all the Lands of each Kingdom belonged to the Conquerors who though they cantoned them out into shares to their Captains and Souldiers according to each Man's Valour or Desert Yet did this wholy proceed from their Bounty and Favour who might have kept the whole to themselves if they had pleased and hence it is that not only since the Norman Conquest but also long before all the Lands of England were holden of the King as the Supream Lord And if so I suppose you will not deny but that according to your own Principle all our other Priviledges and Liberties must have been derived from him since you have already Asserted that whoever is Lord of the Soil of a Country he is so also over the Persons of the People F. Before you proceed any farther I pray give me leave to answer what you have now said I doubt with greater shew and appearance of Truth than the matter will justly bear when well canvassed But since I grant our earliest Writers are very short in giving us the true Form or Original Constitutions of our Ancient Saxon Government it is necessary we look into the Roman Authors who treat of the Laws and Customs of the Ancient German Nations a Stirp of whom our Ancient English Saxons certainly were and in those Authors you will find that they as well as other Nations of the Gothic Original were
farther confirmed by several undeniable Authorities wherein by the Communitas Populi must be understood not the Community of the People or Commons but the whole Body of the Less Tenants in Capite But to give you an answer why the Word Populus could not comprehend all sorts of people among the Saxons as it did among the Romans but only the Nobility who were then properly speaking the only Freemen is this that none but the Nobility possessed any Lands in Fee-simple all the rest of the meaner sort of people then called Cheorl Folk holding theirs in Villanage under their Lords or Thanes being no better than meer Villains or Costagers and who were all bound to the Good Behaviour every tenth Family being bound one for another in the Sheriff's Torne or Court of Franc-Pledge under their Head or Tenth Man called the Tything-man who was to answer for them So that the common People of England were not such a Free People nor had any share in the Government as some suppose there being I believe no such persons as our Yeomen or Faâ—â—â—ers in those days F. Tho perhaps this Law might very well be transcribed from some old Copâ—â— of King Aethelbert's Laws not now extant and in which there might be the Word Thanes instead of Baronibus which is but a Translation of it in the sense iâ— which it was used not long after the Conquest Nor is it true which you affirm that the Word Barones was never in use before the coming in of the Normans in ancient Charters as I shall prove to you by this Charter of King Edgar to the Abby of Westminster containing a confirmation of their ancient Charters and Priviledges collected 〈◊〉 the aforesaid Sulcardus a Monk of Westminster as it is to be found in the Cottonian Library the Charter it self is long but concludes thus In Concilio habito infra Basilicam Westmonast Praesidente 〈◊〉 Filio suo Edwardo Archiepo Dunstano universis Episcopâ—â— Baronibus suis where you may see that the Word was not unknown before the time of William I. and I could give you more Instances of other Kings Charters where the same Word is used before the Conquest were it worth the while to trouble you with them And so likewise Populus for People or Folk in the Saxon Yet take it as you suppose to have been writ not long before the time Hoveden writ his History which was above 80 years before the 49th of Hen. III. This Author or whoever else added this Passage to this Law about Tythes did then suppose that according to the custom then used the People had Representatives in those Assemblies which I shall prove from your own sense of these words for if the word Populus signifies here another sort of men different from the Lords then this word Populus must necessarily signifie some that were Commons and not Lords by your own concession and who also must represent others besides themselves but it is highly improbable that by this word Populus should be meant the Communitas Angliae or the Communitas Baronum for then since the word Baronum would have included all the Tenents in capite both Great and Small to what purpose should the word Populus have been added at all Therefore I am so far from believing this way of expressing the several Estates of the Kingdom to have been a Monkish Blunder as you suppose that â—t was rather a common and ordinary way of Expression among the Writers of those Timeâ— as well in Records as Histories who then very well knew the People or Commons to be an Estate or Constituent part of the Common Council of the Kingdom quite different from the Lords and in which sense it is recited in an ancient Charter of King Iohn That He being divorced the New Queen was crowned de communi assensu concordi Voluntate Archiepiscoporum Episcoporum Comitum Baronum Cleri Pâ—puli totius Regni Where by Clerus it is plain must be meant the Inferior Clergy represented by their Proxies in this Great Synod or Parliament and by Populus was understood the People or Commons likewise present by their Representatives or else the Words Clerus and Populus had been idle Tantologies in this Record And in the like sense it is also used by Matt. Paris in the 9th of Hen III. presentibus Clero Populo cum Magnatibus Regionis Where this Author makes a plain distinction between the Magnates and the Populus which had been altogether in vain if the Word Magnates would have comprehended all your Greater or Less Barons or Tenants in capite But I shall in the next place proceed to that Great Synod or Council that was called by King Edward the Elder Anno Dom. 905. and is mentioned by Simeon of Durham and other Authors quoted by Arch-Bishop Parker the Compiler of the British Antiquities in these Words Plegmundus Cantuariensis Archiepiscopus â—â—â— cum Rege Magnifico cognominato Edwardo seniore Consilium Magnum Episcoporum Abbatum Fidelium Procerum Populorum c. convocavit Which Synod or Council was called to divide the large Dioceses of Winchester and Sherbarn into five other as I have already told you where you may plainly see the Words Fidelium Populorum put distinct from the Word Proceres if we take that Word to signifie only the Greater Nobility I shall now conclude with a few Words in reply to your Answer why the Word Populus could not among the Saxons take in all sorts of People as well as amongst the Romans for I cannot take it as a satisfactory answer for these Reasons 1. Because tho I should grant that the Vulgar sort of People were greater Slaves than they are now and that they had no hereditary Properties in their Estates but at the will of their Lords yet does it therefore follow that all the Freemen of the Kingdom were Noblemen or Gentlemen or else Villains as now understood since Nitardus tells us in the place above mentioned that there were three sorts of people among the Saxons Edelingi Frilingâ— Lazzi i e. Gentlemen or Noblemen Freemen and Slaves or Villains and this middle sort of men might also possess Lands in Allodio or Free-Tenure tho they did also depend upon other greater men for Protection and seem to be those who were after the Conquest called in Doomsday Book Commendaâ—â— i. e. such who tho they lived under the Protection and within the District of some Great Men Lord or Patron yet as Sir Hen. Spelman tells us were free both as to their Persons and Estates not as sworn to or holding of any but the King And besides these there were also great Bodies of men in Cities and Burgh Towns and those very considerable for Estates and other Riches who tho not nobly born and yet being Freemen it was but reasonable that they should have their Representatives in Parliament as well as the former M. I shall not at present
have already proved that the whole Parliament as well the Lords Spiritual and Temporal as Commons were both before and after this time comprehended under these words Nobilitas Angliae and if you yet doubt of it I can give you a plain Authority out of VValsingham for it is in his Life of Edw. II. Anno 1327. where relating the manner of that King's Deposition he tells us That when the Queen and Prince came to London there then met Tota Regni Nobilitas to depose the King and chuse his Son in his stead and then there was sent to the King being Prisoner in Kenelworth Castle on behalf of the whole Kingdom two Bishops two Earls two Abbots and of every County three Knights and also from London and other Cities and Great Towns especially the Cinque Ports a certain number of persons who informed him of the Election of his Son and that he should renounce the Crown and Royal Dignity c. This Proof is so plain it needs no Comment As for the rest of your Argument the strength of it chiefly consists in this that the Tax there mentioned is said to be granted à Militibus or Tenants in capite as you would have it of three Marks upon every Knight's Fee But in the first place I desire you to take notice that this Scutage is not Scutage Service but a general Land Tax or Manner of taxing according to Knights Fees and which was continued long after Hen. III. Reign as it appears by this Passage in Sir Henry Spelman's Glossary Tit. Scutagium Edwardus primus habuit 40 Soli de quolibet 〈◊〉 Anno Regni 13 Dom. 1285. pro expeditione contra VVallos And it was also granted by the Lords and Commons after the 18th of Edw. I. when you and the Dr. supposes the Commons to have then came to Parliament and if so I desire to know why a Militibus here mentioned by this Author must only signifie Tenants in capite by Knights Service and not the Knights of Shires since it is not here said a Militibus qui de Rege tenuerunt in capite And therefore it is a forced Interpretation of the Dr.'s and without any Authority to limit these words Militibus libere Tenentibus omnibus de Regno nostro which you omit with an c. as also the omnibus Hominibus Liberis Regni nostri only to the Arch-Bishops Bishops and other Prelates of England and to the Earls Barons Knights and Free Tenants or Tenants in Military or Knight's Service because they were only such as paid Scutage VVhereas you have already acknowledged that Magna Charta was granted to all the people of England who had all a benefit by it and who paid towards the aid there granted as well as the Tenants in capite But if Knights Fees alone were Taxed and that by the Tenants in capite only I desire to know by what Right all Tenants in Petit Serjeanty and by Burgoge oâ— Sâ—occage Tenure who made a greater Body of men in this Kingdom in those Times could pay this Scutage since they held not by Knights Service but by certain Rents or other Services and so not appearing in Person could have no Representatives in this or any other Parliament of those Times But if you will tell me they might pay according to the value that Knights Fees were then reckoned at viz. for every 20 l. a years Estate I desire to know how this could be called Scutage or how the Tenants in capite or other Lords from whom they held those Lands could give away their Money for them And in the next place I desire also to know how all the Cities and Burroughs in England could be charged with this Tax a great many of them is you your self grant holding of the King in capite or else of Bishops Abbots or other Mesâ—e Lords by Soccage or Bargage Tenure So that this Tax if granted only by the Tenants in capite by Knights Service could reach them and no other persons but if by this Word a Militibus may be understood Knights of Shires then the Tax was general as well upon Soccage Tenants as those by Knights Service But for the other Words you insist upon viz. the Liberi Tenentes which you translate Tenants by Military Service if that had been the meaning of these words then they had been altogether in vain since you have already told me that the â—â—lites were so called non a Militari Cingulo sed a Feodo and if it were no Name of Dignity then certainly the Word Milites would have served to comprehend all your Liberi Tenentes or Tenants in capite without any other addition But that these Words Laberi Tenentes do not here signifie Tenants by Military Service pray see Sir Henry Spelman's Glossary Tit. Liber Homo liber Tenens where he there gives us a more general Signification of thesewords thus Ad Nobilesolim spectabant isti 〈◊〉 à majoribus ortos omnino Liberis and then ends thus vide Ingenuus Legalis 〈◊〉 Francus Tenens Liberè alias Liber Tenent quo etiam sensu occurrit interdum Homo 〈◊〉 which upon every one of these Titles he makes to signifie all one â—â—d the same thing viz. an ordinary Freeholder And therefore it is a very forced Interpretation of yours to limit these Words Communitas Populi only to the Community or Body of the Earls Barons and Tenants in capite Tho I confess you are very kind in one main Point in únderstanding the Communitas Populi to mean the Community of the Lesser Tenants in capite that were no Barons and then do what you can these Words must here signifie Meer Commoners or Commons unless you can shew us a Third Sort of Men who tho neither Lords nor Commons yet had a place in Parliament So that these Gentlemen notwithstanding their Tenure were no more Noble than their Feudatory Tenants or Vavafors themselves my than the Knights of Shires are at this day And then granting as I doubt not but I shall be able to prove that the Cities and Boroughs had then also their Representatives there I pray tell me whether or no there were not Commons in Parliament before 49 Hen. III. or not which is contrary to your Dr.'s Assertion in divers places of his Answerâ— to Mr. P. And that the Word Populus must here signifie the Commons and not the whole Body of the Laity appears plainly by this place you have quoted since it is restrained by your self to mean not the whole Community of the Kingdom but only the Community of Lesser Tenants in capite who were not Lords But that Matt. Paris doth also in another place take the Word Populus for the Commoners and not for the whole Body of the Laity pray again remember what he says in Anno 1225. where relating the manner how Magna Charta came to be confirmed in 9th Hen. III. he tells us Rex Henricus ad Natale tenuit Curiam suam apud VVestm
welcome Sir but I did not expect to see you again so soon M. I beg your pardon if I come unseasonably but the truth is I have so great a desire to conclude what we began upon that important Subject we last discoursed of that I could not be at ease till I had done my endeavour to give you Satisfaction therein if it be possible But to come to the matter that we now meet about I must now tell you again that tho' this your gloss upon King Iohn's Charter seems plausible at first sight nay is agreeable to the Dr's own way of dividing and reading the several Articles of this Charter yet upon better consideration I can see no good reason for making a full or at least a half stop in the 16 th Article after these words omnes liberas consuetudines suas adding the rest that follows ad habendum Commune Concilium c. to the following Clause de seutagiis assidendis c. much lest for supposing as you do without any ground that there were two sorts of Common Councils one for Assessing Escuage and the other for Granting all other Aids and Taxes and then if read otherwise it will plainly appear that it was one and the same Council of the Kingdom that did then both grant Aids to the Crown and Assess Escuage ratione tenurae which I am the more inclined to believe from the fourteenth Clause here cited which says That no Scutage or Aids shall be imposed unless by the common Council of the Kingdom Now to what purpose is this so-express'd if there was to be one Council for the granting of Aids and another for the Assessing of Escuage So that if this Common Council of the Tenants in Capite might grant Aids and Assess Escuage upon the Subjects unless in the case before excepted I see no reason why they should not be the only Council for the giving their Assent to Laws also and consequently of concluding not only their own Tenants but the King's Tenants in Petty Sergeanty and Socage nay the Tenants of any other Persons whatsoever And though I have seriously considered Mr. P's Appendâ—x to the Rights of the Commons asserted and Dr. b's Answer to it as also his Animadversions upon Iani Anglorum c. Yet can I not see any colour of an Argument for making any distinction between the King 's Curia of his Great Lords and Tenants in Capite and the Great or Common Council of the Kingdom but that they were then all one and the same It would be tedious to me as well as you to run over all the particular Authorities and Examples which have been urged pro and con in this Question But I desire you or your Friend Mr. P. to shew me that there was any Bishops Earls Barons or other Members of Parliament in the times we now treat of that had any place or Vote therein but according to their Tenure and the ancient Custom of all Feudal Tenants who by the German Gothic and Lombard Feudal Laws which in substance were the same with ours were always summoned to the Court of the King their Supreme Lord. But farther to prove that this Council for Assessing Escuage was no other then the great Council or Parliament of those Tenents in Capite appears from Liâ—tleton's â—enures where in his second Book Sect. 97. he tells us That after an Expedition Royal into Scotland Escuage shall be Assessed in Parliament upon all those who failed to do their Service in that Expedition so that if the Parliament did then Assess Escuage I desire to know why they might not do it in the Reign of King Iohn iâ— this great Council of the Arch bishops Bishops great Lords and Tenants in Capite were not the Common Council of the whole Kingdom in those Times yet that Escuage was not always Assessed in Parliament after this Charter of King Iohn but that the King by his own Prerogative did often grant his Tenants in Capite a Power to take Scutage of their Tenants without any Assent in Parliament the Dr. hath given you above a dozen Examples in the Reigns of Hen. III. and King Iohn Thus it was for Aids and Scutage Service but if it was for Scutage imposed in Parliament as a Tax upon Land by the Common Council of the Nation then the Tenants in Capite were not only the sole Grantors but the Collectors of that Scutage too from their Mesne Tenants And the Writs to the Sheriff was different from these in Scutage Service though the same in Substance as likewise appears by those Records the Dr. hath there given us F. I doubt not but I shall make good my Assertion and shall be able to defend what Mr. P. hath in his Learned Treatise asserted concerning this matter In the first place I must stick to that way of reading and pointing of this Clause in dispute since it is not only agreeable to the Dr's Manuscript Copy but also to the old French Copy published by Father D'achery in his Spicilegium vol. 13. which is written in the French of thaâ— time but to answer your Objection against this Interpretation you your self have in great part helped me to do it by that true distinction you have now made between a Scutage as an Aid or Tax and as a Service the latter of which you assert might be granted to the King to be raised by his Tenants in Capite upon their under-Tenants whereas the former was only grantable in Parliament by the Common Council of the whole Nation Which Tax I Affirm was always granted to the King and imposed by the Common Council of the Kingdom only and not by the Tenants in Capite alone before the Expedition was undertaken Whereas Scutage Service considered as a payment of so much Money was never due or payable till the Expedition was ended and then only upon such as had failed to serve in Person or by sufficient Deputies and was then to be Assessed by the Tenants in Capite alone And though I grant it may seem to have been a Prerogative as you call it exercised by some of our Kings sometimes to grant his Tenants in Capite a License to take Scutage of their Tenants without the Assent of the Great Council of the Kingdom yet such Payments or Assessments were either according to Law and the express Grant of this Charter it self as is that Writ of King Iohn to the Sheriff of Glocestershire for the Assessing of an Aid or Scutage Service of three Marks on each Scute upon the Tenants of Saber Earl of Winchester for making his Eldest Son a Knight and which the said Earl might have claimed of his Tenants by the Common Law as also by the 20 th Article of that Charter but for Scutage Tax Littleton tells us Lib. 2. Sect. 101. That because such Tenements came at first from the Lords it is Reason they should have Escuage of their Tenants and the Lords in such case might
It is evident from this Record meaning that of the 34th of Edw. I. abovementioned who were the Populus or People intended by the Historian in this place to wit the Comites Barones alii Magnates nec non Milites Comitatuum Now I desire to know whether the Knights of the Shires were not then Commoners as well as now tho' reckoned among the Magnates and as a Superiour Order to the Citizens and Burgesses here called by a general word Mercatores who then gave a 20th part of their Moveables by themselves But that the word Plebs does not only signifie the Lay Nobility but the Commons too in both the Quotations you have made use of out of Mat. Westminster is also as plain for in the first Instance concerning the Reception of the Legates is it to be imagined that none but Earls and great Lords accompanied them and that there were no Knights or Gentlemen amongst them and as for the words Primates and Optimates I think I have sufficiently proved that those do not only signifie the Lords or Greater Nobility but the lesser also Nay the Chief Citizens and Magistrates of Cities and great Towns As for the next Authority concerning the Plebs that Granted the Eigth Penny it is much more evident that the Commons as well as the Lords must be comprehended under that Term And that this is so I need go no further than the Dr's own Concession in the same place a little farther which you may read in these words And that the Agreement for the Confirmation of the Charters here mentioned was made and the Eighth Penny granted by the Earls and Barons and perhaps the Knights of Shires and that they were the Plebs that stood about the King in his Chamber is clear from the Writ of Summons of Parliament for two Knights in every County dated Septemb. the 15 th immediately following to come and receive the Confirmation of the Charters and his Letters that the paying of this Eighth Penny should not prejudice the Commons for the Future and to do further what by his Son and his Council should be Ordained So that the Dr. himself is forced to confess tho' sparingly that the Knights of Shires were likewise there and comprehended under the word Plebs at the time of this Grant The King held this Parliament at his Pallace of Westminster in some of the Halls or great Rooms and the Commons might very well sit in the now Court of Requests then called the Alba Aula or White Hall where Parliaments have been frequently held and from thence be sent for by the King into the Painted Chamber or now House of Lords where the King then sate and which might in respect of the Hall from whence they came be very well called Camera Regis for none can imagine his Presence Chamber or Bed-Chamber could hold all that Company and in that Room the King might make that Speech to them which this Author mentions and then upon his promising to renew the Charters followed the Granting of the Eighth Peny ab Incolis by the whole People immediately granted the said Subsidy Now the Dr. grants in this place That the Incolae here meant by the Historian were the Incolae Regni such Inhabitants as used to Pay Subsidies and Aids only the Plebs must here signifie the Lay Nobility Now if the Incolae Regni were such us used to Pay Aids and Subsidies who made this Concession can any Man doubt but that this Grant was made by their Representatives of the Knights Citizens and Burgesses for if the Tax was general upon the whole Kingdom as it appears it was can you imagine that the Citizens and Burgesses were not there present when this Tax was given as well as the Knights of the Shires since it was to be levied upon all alike Nor is the Dr's Objection of any weight That because the King not long after Summoned another Parliament when he was beyond Sea to meet his Son Prince Edw. at Westminster That therefore it was not probable that if the Commons had been at the Agreement and granting of the Eighth Penny in the King's Chamber they would have been dismissed and called again about the same business in so short a time seeing the Confirmation of the Charters was dispatched in Six Days when the Parliamement â—et October the Sixth For the Dr. is very much mistaken to imagine that this was the same Business they met about before when the very Writ of Summons shews the contrary For the Tax was given already and therefore they could not meet about that but the Truth was the King went away in haste into Flanders without Confirming the Charters So that before the People would give any more Money his Son Prince Edward was forced to confirm them as the Dr. himself confesses in the same place After the Confirmation of these Charters and that the Earls and Barons were satisfied But as for the Dr's wondrous discovery of the false bad Translation of the old French Coronation Oath I do so far indeed agree with him that the words le Commune aura elu are not to be translated which the Commons or Vulgar People but the whole Community shall chuse rendered here by the word Vulgus by the Old Monkish Translator yet this can by no means signifie only the Bishops Abbots Lords and Tenants in Capite for who ever knew the word Vulgus to signifie the Superior Clergy and Nobility and so to exclude the whole Body of the People in general But Mat. Westm. tells us Concessus esâ— viz. to Eâ— I Novenarius Denaâ—ius à Vulgo à Clero vero Denus ad Scotorum Pâ—rtinaciam reprimendam who had then invaded Northumberland and harrassed the other Northern Countries Now pray read the Dr's Comment upon these words in his Glossary Here Vulgus is the same with Populus and Plebs when opposed to Clerus or joyned with it as a Distinct Body of Men and Clerus Populus Clerus Plebs Clerus Vulgus are the Clergy and Layety in the meaning of this Historian whether the Earls and Barons alone or the Temporal Earls and Barons with the Commons were understood by them that is the Commons represented in Parliament and not the Multitude or Rabble Which indeed is a worthy discovery of the Dr's Nor do I know any body so mad as so to render it in the Coronation Oath but that this word Vulgus when put for the whole Layety of the Kingdom is very ancient in that Oath See the Old Coronation Oath in Toâ—tle's Collection of old Statutes who transcribed it out of some ancient Latine Copy of that Oath or else from that Clause in the Coronation Oath of R. Richard II. which is still to be seen upon record I beg your Pardon for speaking these so long upon the true signification of these words Clerus and Populus Plebs and Vulgus since there was a necessity for it by reason of those false glosses
England and Scotland there was no difference in Point of Priviledges as to being taxed or having Voices in the great Council of the Kingdom between the higher Nobility such as had the Titles of Dukes Marquesses and Counts and simple Gentlemen whereas in England it has been always otherwise at least since the Conquest and the Earls and Barons had by 〈◊〉 Tenures Places as Lords or Peers in the great Council of the Kingdom and so made a distinct Body from the rest of the People whereas in other Countreys the higher Nobility and Gentry are reckon'd as all one Estate and therefore it was but Reason that the rest of the Inferior Nobility or Gentry should have their Representatives in this great Council or Parliament or otherwise they would have been as very Vassals as to their Estates to the great Barons and Tenants in Capite as the Boors in Germany or the Paisants in France were to their Lords by whom they were taxed aâ— their Pleasures which they never were in England as we can find either from History or Records So that tho I grant that it is the municipal Laws of each Kingdom or Nation that must determine what are the governing part of the People in those Countreys yet tho that was not absolutely the same in all of them as it is in England yet we find it so in the main and the Representatives of the Cities and Towns do sufficiently assert the Right of the Plebians or Common People who make the 3d Estate in those great Councils But I must here except Sweden in which it is certain that the meer Rusticks or Boors had always their own Deputies in their Dyets as well as the Cities and Towns and if Sweden had this priviledge I cannot see why the English Gentry and Yeomanry who make but one body of Commons might not have had the like till you can shew me more sufficient proofs to the contrary M Well Siâ— I shall consider of what you say but since it grows late that we may wind up this Conversation as fast as we can give me leave to tell you that tho' I should admit all that you have hitherto averred for truth and that we should grant the Commons of England to have been as ancient a part of the great Council or Parliaments as any of the other two what is that to the main Point in question between us viz that of Non-resisâ—ance of the King upon any account whatsoever or how can you justsfie those of the Clergy Nobility and Gentry of the Church of England for taking up Arms against the King and contributing so much as they have done to the driving him away and in bringing things to this confusion they are now in since let your Constitution of great Councils and Parliaments be never so ancient let us also for once suppose them as you do to have a share in the Legislative Power of the Nation yet how can this authorize them much less any private persons out of Parliament to take up Arms against the King or those commissioned by him since the whole current both of Common as well as Statute-Law runs directly against you and all with one consent assert that the disposal of the Militia or Military Force of the Kingdom has been even so absolutely in the King's power and at his disposal that no man can without being guilty of Treason take up Arms whether offensive or defensive without his Commission to authorize him to do it so that no Government in the World is more averse to all forcible Resistance than our own the King having been even from your time beyond memory so fully possest of the whole Militia or power of raising offensive or defensive Arms in this Kingdom that it is expresly forbid by the Statute of the 7th Ed. I. against coming to Parliaments and Treatises with force of Arms in which the King sets forth That in the last Parliament the Prelates Earls Barons and the Commonalry in Latine Communitas or Body of the Realm have said that to us i e. to the King it belongeth and our part it is through our Royal Seignâ—ury to defend that is in old French to forbid force of Armour and all other force against our Peace at all times when it shall please us and to punish them according to our Laws and Vsages of our Realm and hereunto they are bound to Aid us as their Soveraign Lord as oft as need shall be From whence you may observe that it is the King's Prerogative to forbid all manner of Arms or Armed force within the Realm so that no man can lawfully Arm himself without his Authority And this is further confirm'd by the Statute of 25 Ed. the Third concerning Treasons wherein it is declared without any excepted Cases to the contrary That to Levy War against our Lord the King in this Realm or to be adherent to the King's Enemies in his Realm giving them Aid or Comfort in the Realm or elsewhere is Treason And Sir Edward Coke upon this Statute saith thus That this was High Treason before by the Common Law for no Subject can Levy War within the Realm without Authority from the King and if any man Levy War to expulse Strangers to deliver men out of Prisons to remove wicked Councellors or against any Statute or to any other End pretending Reformation on their own heads without Warrant this is Levying of War against the King because they take upon them Royal Authority From which Statute as also from your own Oracles Sir Ed. Coke 's Interpretation of it you may observe that it is not only Treasâ—n to make War against the King's Person but to take Arms to make any Reformation or Alteration in Church or State without the King's Authority nor can any Subject of England justifie the taking Arms upon any account whatsoever unless it be by the King's Commission and therefore all the Judges of England in the Case of Dr. Story who was Executed for Treason in the Reign of Queen Elizabeth did with one consent agree that the very Consultation concerning making War against the Queen shall be interpreted a making War against her Person and supposes a design against her Life So that nothing seems plainer to me than that by the Ancient as well as Modern Laws of England all defensive as well as offensive Arms are expresly forbidden and condemned F. I think I shall be able to make out notwithstanding what you have now said that all Resistance of the King or those commissioned by â—im is so far from being Treason as you suppose that it is every mans duty to oppose him in case he goes about to set up instead of a Legal Monarchy a Tyrannical Arbitrary Power in this Nation since this is but to preserve the Original Constitution of Parliaments which in some cases cannot be maintained without such a Resistance be allowed But to proceed to the Authorities you bring from our Statutes as for the first you urge
in French hauz Homes Comun de la Terre shall rise against them to grieve them to the utmost of their power and shall be obedient to them in nothing and in doing all things as if they were bound to them in nothing until these things shall be amended and maintained according to the Ordinance of the Peace aforesaid and to this our Lord the King and Monsieur Edward and the great Men of the Kingdom have sworn upon the holy Gospels to keep and maintain the things aforesaid And with this Record agrees this King's Latine Charter much to the same purpose recited in the Annals of Waverly An. 1264. only the words there are more general that if the King or Prince should break the said Peace by hurting or falling upon any of the said Earls of Leicester or Gloucester or any of the Persons above-mentioned Liceat omnibus de Regno nostra contra nos insurgere ad gravamen nostrum opem operam dare juxta posse ad quod ex praesenti praecepto nostro omnes singulos volumus obligaâ—i fideliter homagis nobis facto non obstante So that you see here that by the Judgment of the King himself and the whole Parliament this Resistance might be exercised notwithstanding the Homage they had done him And this is that Form of the Peace which I have before cited to you to have been made as appears by a Writ to the Sheriff of Yorkshire to be seen upon the same Roll and in the same Membrane unanimi consensu voluntate nostra Edwardi filii nostri Primogeniti Praelatorum Comitum Baronum Communitatis Regni nostri c. which Doctor Brady thought fit to conceal and not publish with the former Record because the word Communitas did not at all suit with his Notions in this place M. I must confess this so solemn an Agreement upon the Record would have been very considerable had it been made whilst the King and Prince had been free and in their own power whereas the Dr. has made it plainly appear that the King and Prince were at this time in the power of Simon Montfort and his Adherents who called that famous Parliament of the 49th to which we suppose the Commons were first summoned and therefore the Prince was not delivered at this time any more than the King his Father out of their power and was only taken out of Dover Castle and made a Prisoner at large under a Guard as his Father was until he made his escape from his Keepers at Hereford Castle So that I do not at all value this Agreement because made by duress tho' I confess the words of the Records are express that it was de unanimi coâ—sensu voluntate nostra c. Edwardi Filii nostri But it appears plainly that by this Agreement the King had discharged himself of all Royal Power and confirmed this Agreement whereby the whole Government of the Kingdoms and Nomination of all the great Officers of the Crown was put into the hands of Nine Earls and Barons F. At this rate no Act that a King can do when he hath the worst of it tho' confirm'd by a Solemn Oath as this was upon the holy Gospels can ever be binding for it is but alledging that it was done by duress and it is sufficient to render it null and void But be it as it will this was certainly the general Consent Act and Declaration of the whole Nation assembled in Parliament and that owned by the King himself and his Son the Prince and all his Party And farther that this Resistance of the Earl of Gloucester who was one of these Barons was not after counted for Treason or Rebellion appears by that Pardon of the said Earl which we have before cited to have been made by this King with Assent of the King of Almaine his Brother and the Counts and Barons and Commons of the Land in which he pardoned the said Earl and all his Company and also all the Londoners all rancour and ill-will and in the same manner as the King quits and discharges the Earl and his Company so does the said Earl hereby for himself and all his Company remit to all those that were of the Party of the King any thing done since that moment that is that Civil War in which the Earl of Gloucester had so great a share so that you see this Resistance of the Earl of Gloucester was within two years after the Battle of Evesham so far from being looked upon as Rebellion that the Pardon is made mutual not only for the Earl and those that followed him but also for those that had taken the King's part But I shall come now to his Son and Successor King Edward the First where we shall find this Doctrine of Resistance asserted more than once not only by private men but by the whole Parliament as appears by those Letters that were written by the King's command or permission at least in the 29th of his Reign in the name of all the Earls Barons tota Communitas Angliae to Pope Boniface the Eighth in vindication of the King's Superiority over Scotland to which you will find this remarkable passage Nec etiam permittimus nec permittemus sicut non possumus nec debemus praemissa tam insolita indebita praejudicialia alias inaudita praelibatum Dominum nostrum Regem etiam si vellet facere modo quolibit attemptare Which restraint of the King's Will must certainly mean some what more than a bare Remonstrance or Declaration against it since we have seen in our own Times Kings make nothing of meer verbal Declarations of the Two Houses of Parliament if they had a mind to do a thing they thought belonged to their Prerogative tho' the Parliament declared against it And to let you farther see that this Doctrine was at this time generally believed and practised all over Europe you will find almost the same Clause in the Letters which were written in the Reign of Philip the fair King of France Anno 1203. which falls about the 30th of our King Edward the First and were sent to the same Pope Boniface upon the occasion of his manifold Usurpations upon the Church of France in the name of the whole Clergy of that Kingdom whereby it not only appears that this was done in a general Assembly of Estates viz. of the Clergy Barons c. Communitates Villarum but they also there declared expressius viva voce Quod si praesatus Dominus Rex quod absit toleraâ—â— vâ—l dissimulaâ—e veilet Ipsi scil Episcopi Barones c. nullotâ—nus sustinerent So that here you see not only the Temporal Estates but the very Clergy declare that they would by no means suffer the King to act thus no not if he would But the Barons and People of England did actually put this Doctrine in Execution some few years before
his Father and to be Exiled from the Realm of England and that therefore the King that now is and the Queen his Mother being in so great Jeopardy in a strange Countrey and seeing the destructions and disinherisons which were notoriously done in England upon holy Church the Prelates Earls Barons and the Commonalty of the same by the said Spencers Robert Baldock and Edmund Earl of Arundel by the Encroachment of Royal Power to themselves and seeing they might not remedy the same unless they came into England with an Army of Men of War and have by the Grace of God with such puissance and the help of the great Men and Commons of the Realm vanquished and destroyed the said Spencers c. therefore our Soveraign Lord the King by the Common Council of the Prelates Earls Barons and other great Men and of the Commons of the Realm have provided and ordained c. as follows That no great Man nor other of what Estate Dignity or Condition soever he be that came in with the said King that now is and with the Queen in Aid of them to pursue their said Enemies and in which pursuit the King his Father was taken and put in Ward c. shall be impeached molested or grieved in person or in goods in any of the King's Courts c. for the pursuit and taking in hold the body of the said King Edward nor for the pursuit of any other persons not taking their goods nor for the death of any Man nor any other things perpetrated or committed in the said pursuit from the day of the King and Queens Arrival until the day of the Coronation of the said King This Act of Indemnity is so full a Justification of the necessity and lawfulness of the Resistance that was then made against King Edward the Second and his wicked Councellors the Spencers that it needs no Comment And tho' King Edward the Third took warning by the example of his Father and was too wise then to follow the like Arbitrary Courses yet Richard the Second his Grandson being a wilful hot headed young Prince fell into all the Errours of his great Grand-father and found the like if not greater Resistance from his Nobility and People for when he had highly mis-governed the Realm by the Advice of his favourites Alexander Arch-Bishop of York the Duke of Ireland and others a Parliament being called in the 10th Year of his Reign the Government of the Kingdom was taken out of their hands and committed to the Bishops of Canterbury and Ely with Thomas Duke of Gloucester the King's Uncle Richard Earl of Arundel and Thomas Earl of Warwick and nine or ten other Lords and Bishops but notwithstanding this the King being newly of Age refused to be governed by the said Duke and Earls but was carried about the Kingdom by the said Duke of Ireland and others to try what Forces they could raise and also to hinder the said Duke and Earls from having any Access to him But see what followed these violent and arbitrary courses as it is related by Henry de Knighton who lived and wrote in that very time and is more exact in this King's Reign than any other Historian he there tells us that when Thomas Duke of Gloucester and the other Bishops and Earls now mentioned sound they could not proceed in the Government of the King and Kingdom according to the Ordinance of the preceding Parliament through the hinderance of Mich. de la Poole Robert de Vere Duke of Ireland Nich. Brembar and Robert Tresillian Chief Justice and others who had seduced the King and made him alienate himself from the Council of the said Lords to the great damage of the Kingdom whereupon the said Duke of Gloucester and the Lords aforesaid with a great Guard of Knights Esquires and Archers came up towards London and quartered in the Villages adjacent and then the Arch-Bishop of Canterbury the Lord Lovat the Lord Cobham the Lord Eures with others went to the King in the name of the the Duke and Earls and demanded all the persons above-mentioned to be banished as Seducers and Traitors to the King and all the Lords then swore upon the Cross of the said Arch-Bishop not to desist till they had obtained what they came for the conclusion of this Meeting was that the King not being able to withstand them was forced immediately to call that remarkable Parliament of the 11th Year of his Reign in which Mich. de la Poole and the Duke of Ireland were attainted and Tresillian and divers other Judges sentenced to be hanged at Tyburn upon the Impeachment of the said Duke of Gloucester and the Earl of Arundel for delivering their Opinions contrary to Law and the Articles the King had not long before proposed to them at Nottingham I shall omit the Resistance which Henry Duke of Lancaster made after his Arrival by the Assistance of the Nobility and People of the North of England against the Arbitrary Government of this King being then in Ireland not only because it is notoriously known but because it was carried on farther than perhaps it needed to have been and ended in the Deposition of this King Only in the first Year of Henry the 4th there was the same Act of Indemnity almost word for word passed for all those that had come over with that King and had assisted him against Richard the Second and his evil Councellors as was passed before in primo of Edward the Third I shall not also insist upon the Resistance of Richard Duke of York in the Reign of King Henry the 6th who took up Arms against the Evil Government of the Queen and her Minion the Duke of Suffolk because you may say that this was justifiable by the Duke of York as right Heir of the Crown nor will I instance in the Resistance made by the Two Houses of Parliament during the late Civil Wars in the time of King Charles the First since it is disputed to this day who was in the fault and began this Civil War whether the King or the Parliament Only thus much I cannot omit to take notice of that the King in none of his Declarations ever denied but that the People had a right to Resist him in case he had made War upon them or had introduced Arbitrary Government and expresly owned in his Answer to one of the Parliaments Messages that they had a sufficient power to restrain Tyranny but denied himself to be guilty of it and still asserted that he took up Arms in defence of his just Right and Prerogative to the Command of the Militia of the Kingdom which they went about to take from him by force M. I have with the greater patience hearkened to your History of Resistance in all the Kings Reigns you have mentioned because I cannot desire any better Argument to prove the unlawfulness of such Resistance than those Acts of Pardon and Indemnity You cannot but confess have
commanding a Centry to be drawn off from his usual Post he could never have gone away without being discovered and if he would have gone away at Noon Day I know not who unless the Rabble would have hinder'd him so that I think it is evident that this was the civilest and mildest usage that a vanquisht Prince could expect from him that had so much the better of him and in whose power he now was and I doubt more than the King would have allowed the Prince had it been his Fortune to have got him as much in his power nay the King was so far from being confin'd that it is plain he had the liberty given him to go whither he pleased nor were these Guards plac'd so much about him for his confinement as to secure him from the insults of the Rabble who otherwise there as well as they did at Feversham might have expressed too violent a resentment against his Person M. I cannot deny but you have given a very-fair and as far as I know a true account of this transaction and have told me some things which I never heard before but however I cannot depart from my first opinion that it was neither honestly nor wisely done of those who took upon them to advise the Prince to push things to extremities in this conjuncture and therefore I impute it chiefly to those English who supposing they had by taking Arms and joyning themselves to the Princes party provoked the King beyond all possibility of Pardon were resolved to do their utmost to put it out of the Kings Power ever to call him to an account for it and tho' perhaps his first sending away the Queen and Prince and then going away himself in the middle of a Treaty with the Prince and thereby leaving his Affairs in such confusion may seem to deserve blame yet certainly his Majesty is to be excused in a great measure for what he then did for as he tells the Earl of Feversham in his Letter to him to Disband the Army That things being come to that extremity that he was forced to send away the Queen and the Prince his Son that they might not fall into the Enemies hands and was also constrained to do the same thing himself and follow them since the Troops of his Army were not to be relyed on that it was not adviseable for him to Fight the Prince of Orange in the Head of them for it was but reasonable that Princes as well as other men should provide for their own security as well as they can But yet I can never believe that his Majesty's first going away was any Abdication of the Government much less a forfeiture of his Crown or Royal Dignity any more than the second for in the first place it could be no forfeiture according to your own Principles because he had already Dissolved the Ecclesiastical Court and restor'd the Cities and Corporations to their former Charters and Freedom in Elections of Parliament-Men and putting again in Commission all Lords Lieutenants and Justices of the Peace who had been before turned out and if he could not give an intire redress to all our grievances by a free Parliament it was only because he durst not stay to hold it since he thought he could have no security for his Person the whole Nation being in a manner poisoned and prepossessed against him by those malicious Artifices of a French League and a suppositious Prince and that his Majesty had so many unfortunate disappointments and so surprizing and unparallell'd accidents part of his Army deserting him and the rest too apparently unserviceable when there were such terrible disorders in the Kingdom and all places were either flaming or about to take fire So likewise could it not be properly any wilful desertion or Abdication of the Government since he was forced to quit it like the master of a Ship who when the Vessel is like to sink is forced to leave her and escape in a Cock-boat and that his Majesty did not act thus without an intention to return and again to vindicate his right when opportunity served appears likewise in that passage in the above mentioned Letter wherein he desires both the Officers and Souldiers of his Army then to be disbanded To continue their Fidelity to him and to keep themselves from Associations and such pernicious things from whence it plainly appears he went not away without a prospect of returning to his Throne when Time should serve and if he left no orders at all for the Government of the Kingdom in his absence nor named any Commissioners or Lieutenants to represent him it was because he thought it to no purpose since besides that he could find no body who durst undertake so difficult an employment so they that had taken it would have found no body who would obey them the generality of the People and also of the Kings Army being more inclinable to the Prince of Orange than to himself Yet however you see upon his return to Town the King was so well persuaded of the Prince of Oranges kind intentions towards himself and the Nation that I verily believe that his Majesty would have yielded to any thing that could in reason have been desired of him and upon this ground I suppose he writ so kindly to the Prince and invited him to come to St. Iames's with what Troops he should think fit for his security therefore I must needs tell you again I think it was a great oversight of the Prince of Orange thus to let slip this opportunity by refusing all terms of accommodation with the King his Father and by clapping up my Lord Feversham then seizing the Kings Person and sending him out of Town to let all the World see he was resolved to treat no more with him and this being the true state of the case it is not your saying that he had forfeited his Crown by going away and consulting his own safety that will convince any unprejudiced man for as to your notion of a forfeiture that they were not then entred into the Thoughts of the Peers and others of the Privy Council appears by the Order they made for sending the Lords Feversham Alesbury â—armouth and Middleton most humbly to intreat the King to return to White-hall so that he was received very joyfully and with great Acclamations of the Common People as he passed through the City and when he came to White-hall he called a Council where he made an Order to stop the demolishing and plundering of Houses by the Rabble so that he was not only receiv'd but also acted as a King after his return to Town This being the true state of the case I shall not dispute the point whether his Majesty and the Prince were in a state of War or Peace after his return to Town or what the Prince might have done as an Enemy and a stranger to the Kings Person but what might be expected from him as
Superior to both of them and him interposed and diverted or rather over-ruled it For 1. If a Priority of Being gave Adam a power over his Wife it gave him much more so over his Children 2. If God's taking Eve out of Adam the forming her of one of his Ribs without his concurrence did yet make her his Inferiour his Children were much more so which were derived from him and by his Act. 3. If she were formed for him not he for her and that was another reason this extended to his Children too who were begotten for the comfort and assistance of both him and her 4. When God put Eve under the Subjection of her Husband after the Fall her Children must needs be so too if they were not excepted but we Read of no exception 5. Is it not an Eternal Law of Nature that all Children should be subject to their Parents And did not this Law spread it self over the Face of all the Earth as Mankind encreased And whereas you would limit this Power of Parents over their Children both in its Extent and Duration this is purely owing to the Civil Laws of Nations and not to the Laws of Nature and is different in different places some having restrained the Poweâ— of Parents more and some less But God gave the Parents a Power of Life and Death over their own Children amongst his own People the Jews and that not limited in Duration neither for the Fathers Power over his Son was not determined but by his Death though they could not execute that Power but in the presence of a Magistrate And I am also sure that in all the Histories and Relations I have met with amongst civiliz'd Nations where it is not otherwise order'd by the Civil Laws of the Country all Husbands and Fathers have Power of Life and Death over their Wives and Children and so it is at this day amongst many Eastern Nations and was antiently amongst the Romans Gauls and Persians c. Which power I take not to have been given or conferred on them but rather left to them by the Civil Laws of their Country in the same state as it was establisht by the Law of Nature or rather Nations Now if such Husbands and Fathers antiently had and still have a power of Life and Death in divers Countries over their Wives and Children I desire to know what higher power they could enjoy since he that hath power over a Man's Life which is of the highest concern to him may certainly command him in all things else But as for your last Scruple that you cannot see if Monarchy be of Divine Institution how any Government but that can be lawfully set up or obeyed by Men I think it may be a satisfactory Answer if I tell you that if those who are Born under a Monarchy can justifie the Form they live under to be God's Ordinance they are not bound to forbear their own Justification because others cannot do the like for the Forms they live under let others look to the defence of their own Government If it cannot be proved or shewed that any other Form of Government had ever any Lawful beginning but was brought in or erected by Rebellion must therefore the Lawful and Just Obedience to Monarchy be denied to be the Ordinance of God F. I hope before I have done to give you a clearer Original from the Law of Nature as well of Paternal Authority as Civil Government without recurring to Divine Revelation which as I said before would oblige none but Jews and Christians or Mahometans whose Law is a mixture of both the other In the mean time give me leave to tell you that Eve's being the Representative of all Wives did not put either her self or her Daughters into any absolute Subjection either to Adam or their Husbands if it did then could not this Subjection be likewise owing either to Adam as the Patriarch or Grandfather of the Family or to his Eldest Son after his Decease since this would make every Wife in the state of Nature to have had two absolute Lords her Husband and her Husband's Father which is contrary to our Saviour's Rule That no man can serve two Masters that is in the same kind of Service And therefore it plainly makes out my distinction that there is a great deal of difference between a Conjugal Submission of a Wife to her Husband and a Servile Subjection of a Servant to his Lord as also of that Obedience or Duty which a Subject oweth his Soveraign since by your own Hypothesis it necessarily follows that either Cain's Wife for Example was not to be subject to her Husband or else must be free from all Subjection to her Father Adam But as for any Submission to Cain as Elder Brother after Adam's Decease I desire to be excused medling with it till we have dispatcht the Question in hand I come now to those fresh Considerations you bring for this Monarchical power of Adam for indeed I cannot call them new Arguments because most of them have been answered already The first Consideration is from the Priority of the Being which you suppose gave Adam a Power over his Wife and consequently over his Children but I think his Priority of Being could give him no such Power at all over her and consequently not over them for I desire to know whether if God had been pleased to have Created the same day that Eve was made twenty single Men and their Wives that therefore Adam must have been from his being first Created Monarch over them all unless God had particularly commanded it I grant indeed that from God's Creating Eve out of Adam it did render her inferiour to him and also from God's express command that she was to be subject to him in all Conjugal Duties yet did neither of these render her or her Children absolute of perpetual Subjects and Slaves to Adam And that their being deriv'd from him or by his Act doth not at all alter the Case I have already proved As for the third that if she wene formed for him and not he for her that this must be another reason which must extend to his Children too Here the Assumption is not only false but the Consequence too For she was not only formed for him but that they might be a mutual help to each other and therefore the Scripture tell us A Man shall leave his Father and his Mother and shall cleave unto hit Wife and they two shall be one Flesh which words in my Opinion are very far from proving any such absolute Subjection for no Man can ever tyrannize over his own Flesh and if such an absolute Subjection had been intended from Eve to Adam it had been more consonant to reason for the Scripture to have enjoyn'd her to have left her Father and Mother to cleave to her Husband Whereas indeed there was no more meant by this Text than that when a Man marries he may freely
it would be left in her Power not only to govern her self but by marrying to chuse a King for her Subjects whom they do not approve of And therefore we read that in diverse of the Antient Kingdoms of the World Women were excluded from the Succession Nor are these the only questions that either might then or else have in latter Ages been started concerning Succession in Kingdoms and Principalities and have been the cause of great disputes between Pretenders to Crowns where a King Dies without Lawful Issue as whether a Grandson by a Younger Daughter shall inherit before a Grand-daughter by an Elder Daughter Whether the Elder Son by a Concubine before the Younger Son by a Wife From whence also will arise many Questions concerning Legitimation and what by the Laws of Nature is the difference betwixt a Wife and a Concubine All which can no ways be decided but by the Municipal or Positive Laws of those Kingdoms or Principalities It may further be enquired whether the eldest Son being a Fool or Madman shall inherit this Paternal Power before the Younger a Wise Man And what degree of â—olly or madness it must be that shall exclude him and who shall be the Judges of it Also whether the Son of a Fool so excluded for his Folly shall succeed before the Son of his Wiser Brother who last Reigned Who shall have the regal Power whilst a Widdow Queen is with Child by the Deceased King until she be brought to Bed These and many more such difficulties might be proposed about the Title of Succession and the Right of Inheritance to Kingdoms and that not as idle speculations but such as in History we shall frequently find examples of not only in our own but likewise other Kingdoms From all which we may gather that if the Laws of God or Nature had prescribed any set rules of Succession they would have gone farther than one or two cases as concerning the Succession of Elder Sons or Brothers where an Elder Son dies without Issue and would also have given certain infallible rules in all other Cases of Succession besides these and not have left it to the Will or particular Laws of diverse Nations to have established the succession so many several ways as I am able to shew have been practised in the World M. I must confess you have taken a great deal of pains to perplex the Succession to Adam which seems designed for nothing else but to make me believe that if Adam or any of his Sons were Kings or Princes it must have been by the Consent or Election of their Children or Descendants which is all one as to say that those Antient Princes derived their Titles from the Iudgment or Consent of the People the contrary to which is evident as well out of Sacred as Civil History F. Since you appeal to History to History you shall go and to let you see that I have not invented these doubts about Succession of my own Head and that there might have very well been a real dispute about the Succession to Adam in the Cases I have put may appear by the many disputes and quarrels that have been in several Nations concerning the Right of Succession between the Uncle and the Nephew of which Grotius is so sensible that he confesses in the latter end of the Chapter last cited that where it could not be decided by the Peoples Iudgment it was fain to be so by Civil Wars as well as private Combats and therefore he is forced ingenuously to confess that this hath been practised divers ways according to the different Laws and Customs of Nations and he gives us here a distinction between a direct Lineal Succession and a transversed and acknowledges that amongst the Germans as also the Goths and Vandales Nephews were not admitted to the Succession of the Crown before their Uncles the like may be said of the Saxons and Normans and therefore we find in our Antient English History that before the Conquest the Uncle if he were Older always enjoyed the Crown before the Nephew which I can more particularly shew you if you think fit to question it The like manner of succession was also amongst the Irish-Scotch for above 200 years after â—â—rgus their first King The like Custom was also observed among the Irish as long as they had any Kings amongst them and is called the Law of Tanistry The same was also observed in the Kingdom of â—astile where after the death of Alphonso the fifth the States of that Kingdom admitted his Younger Son Sancho to be King putting by Ferdinand de la Cerda the Grand-Son to the late King by his Eldest Son tho' he had the Crown left him by his Grand-Father's Will So likewise in Sicily upon the Death of Charles the Second who left a Grand Son behind him by his Eldest Son as also a Younger Son named Robert between whom a difference arising concerning the Succession it being referred to Pope Clement V. He gave Judgment for Robert the Younger Son of Charles who was thereupon Crowned King of Sicily and for this reason it was that Earl Iohn Brother to King Richard the second was declared King of England by the Estates before Arthur Earl of Brittain Son of Ieoffrey the Elder Brother and Glanvil who was Lord Chief Justice under Henry the second in that little Treatise we have of his makes it a great question who should be preferred to an Inheritance the Uncle or Nephew But as for Daughters whether they shall inherit at all or not or at least be preferred before their Uncles is much more doubtfull since not only France but most of the Kingdoms of the East at this day from Turkey to Iapan do exclude Women from the Throne And it was likewise as much against the Grain of the Antient Northern Nations and hence it is that we find no mention of any Queen to have reigned amongst the Antient Germans or Irish-Scots and never but two among the English-Saxons and those by Murder or Usurpation and not by Election as they ought to have done And upon this Ground it was that the Nobility and People of England put by Maud the Emperess and preferred Stephen Earl of Blois to the Crown before her for tho' he derived his affinity to the Crown by a Woman yet as being a Man he thought himself to be preferred before her So likewise in the Kingdom of Aragon Mariana in his History tells us that Antiently the Brother of the King was to inherit before the Daughter examples may also be given of divers of the other instances but these may suffice M. I Pray give me leave to interrupt you a little for by these examples you would seem to infer that these Laws about setling the succession of Crowns in several Kingdoms depended upon the Will of the People whereas I may with better reason suppose that if such Laws and Alterations have been in such successions they were made by
without their Consent and therefore Samuel appeals to them how little he had opprest them whose Ox or whose Ass have I taken whom have I defrauded whom have I opprest Neither could they nor the Judges their Successors make any new Laws for the People God himself being their King and Legislator and therefore what you urge as to the Regal Power of Moses and Ioshua after the Sanhedrin had been constituted amounts to no more but that both of them were Heads or Captains of the People to lead them out to War and bring them back again which is exprest by going in and out before them and their Obedience to their Military Orders as also to such things which God hath expresly commanded is understood by these words All that thou commandest us we will do and whithersoever thou sendest us we will go Yet still this was with respect to their obtaining the Land of Canaan for otherwise if either Moses or Ioshua should have gone about of their own Heads to have Led them again into Egypt I suppose you will not say the Israelites were bound either to have followed them or submitted to them but rather might have resisted them in such cases And therefore Iosephus his Speech which he makes Moses to deliver is not so ridiculous as you are pleased to make it for the Laws here mentioned by him and here set in opposition to Monarchy were not such Laws as were made by the Greek Common-Wealth as you suppose but the Law given from God by his hand and these he might well think were sufficient with such Power as he and Ioshua enjoyed without having any recourse to a Human Monarchical Government since God himself was their King and as for the Judges that succeeded them they had much less Power than either Moses or Ioshua Since it is apparent by the Story of Deborah and Barak Iudges the 4th who were the Princes or Generals of the Tribes of Zebulun and Naphtali that they had no power to force the People to go out to fight against the Canaanites whether they would or no. And therefore you will find in the next Chapter in the Song of Victory which they sung that many of the Tribes came not in to their Assistance therefore it is there said That for the Divisions of Reuben there were great thoughts of heart therefore they ask Why abidest thou among the Sheepfolds c. And presently after it is said Gilead abode beyond Jordan and why did Dan remain in the Ships Asher continued on the Seashore and abode in his breaches And so they conclude with Curse ye Meroz curse ye bitterly the Inhabitants thereof because they came not to the help of the Lord against the Mighty So that I am perswaded it was the want of this Power in the Judges of making Laws of imposing Tributes or Taxes and of forcing Men to serve in the Wars against their Enemies which they did before only as Volunteers that made the Israelites the more desirous to have a King over them like those of other Nations who were endued with these Prerogatives And therefore the best Commentators do interpret the Prediction of Samuel concerning the manner of the King that should Reign over them and would take their Sons for his Chariots and his Horse men and to be Captains over thousands c. to relate to his Royal Power of enrolling and making them serve in his Army either as Officers or Souldiers and the taking of their Fields and their Vineyards and the Tenth of their Seeds c. to give his Officers and Servants to signifie no more than his Power of imposing Publick Tribute and Impositions on the People to maintain his Royal Splendor the Necessities of the State as other Neighbouring-Kings were wont to do all which they not being used to before they should cry unto the Lord by reason of them as a great oppression And that Saul when he came to be King used this Prerogative of forcing the People to come and serve in the War in a higher manner than Samuel or the Judges had done before appears by the 11th Chapter of this Book when Nahash the Ammonite came to make War against Iabesh Saul took a Yoke of Oxen and hewed them in pieces and sent them throughout all the Coasts of Israel by the hands of Messengers saying Whosoever cometh not forth after Saul and after Samuel so shall it be done unto his Oxen and the fear of the Lord fell on the People and they came out with one Consent And it seems evident to me that the Power which Samuel had before the Children of Israel desired a King was not Monarchical but mixt of Aristocracy and Monarchy together in which Samuel as Judge had a Judicial Authority and likewise a Supream Military Power of leading them out to War against the Philistines and other Enemies and yet notwithstanding the Supreme Power in all other things remained wholly in the Principal Heads or Fathers of the Tribes which whether they were chosen by the People or enjoyed it by Right of Inheritance I confess the Scripture is silent and therefore I am not at all satisfied with your Notion that the Government of these People when they had no Judges consisted of Twelve petty Monarchies under the Heads or Princes of the Tribes for there is no Authority in Scripture to countenance any such opinion the place you bring for it out of the 1st and 7th of Numbers not at all proving it For tho' I grant there were twelve Princes of the Tribes whose names are there set down and who are called Heads of the Houses of their Fathers yet is it no where said that these were endued with Civil Power or were Chief Rulers over the Tribes for it is apparent all Civil Power remained then in Moses and the Sanhedrim who under him decided all controversies So that it is most natural to suppose that these Heads of the Tribes were not Civil Magistrates but the Military Leaders or Captains of each Tribe when they went out to War and are the same who in this Chapter are called the renowned of the Congregation c. and Heads of the Thousands of Israel Nor doth it follow that because there were such Officers in Moses his time that they must continue the same after under the Judges so many Slaveries and oppressions that this People had undergone or that if they did still continue that their Power was Monarchical or that they could do any thing without the consent of the Heads or Fathers of Families of each Tribe in whom I suppose the Supream Authority was in the Intervals of the Judges and therefore we find in the ninth of Iudges that the men of Shechem and all the House of Millo made Abimelech King that is not over all the Tribes of Israel but over Ephraim and half Manasses only which is to be understood by Israel in this Chapter where it is said v. 18. by Iotham the Son of
to defend their own Lives or a Property in any thing they can enjoy and if ever they could be supposed to have done so I think I may boldly affirm that such a Nation are not Subjects but Slaves and the Prince not a Monarch or Civil Governour but only a Lord of a Great Family or Master of a publick Work-house For I take the difference betwixt Subjects or Slaves and Princes and Masters of Families to consist in this that the Power of a Prince is chiefly ordained for the Good and Preservation of his Subjects tho' I grant his own may likewise be included in it as an Encouragement and Reward for his Labour yet not as the principal End of his Institution Whereas in a Family of Slaves they are chiefly ordained for his profit or Benefit that maintains them but their Happiness and Preservation is only accidental and as it may conduce to that The main End also of Civil Government is to institute and maintain a distinct Property in men's Estates and which the Prince or Common-wealth can have no Right to take away And therefore tho' I grant that in those Despotiâ—k Monarchies you mention the Monarchs do exercise an Absolute Arbitrary Power over the Lives Liberties and Estates of their Subjects Yet that this is by Divine Right or Institution I utterly deny or that it was always so in all of them from the beginning for most of those Empires you mention can no otherwise subsist than by a Constant maintaining vast standing Armies or Guards to keep their Subjects in Obedience Nor can any Governments be of Divine Institution which are exercised with a sole Respect to the personal Power and Grandeur of the Prince rather than the Good and Preservation of the People So that if you will but survey the accounts that Travellers give us of those Eastern Parts of the World you will find that there are no known setled Laws or Properties in those Countries except at the Arbitrary Will of the Monarch or his Viceroys and thus all those rich and fruitful Countries of Egypt and Asia which formerly flourished in all Arts Knowledge and Civility and abounded in Multitudes of People are now in most places reduced to meer Deserts and do not breed a Tenth part of that number of People as they did in former Ages Which proceeds from no other cause but the Cruelty and Injustice of the Government quite different from what it was in the time of the Roman Emperours who tho' I confess they were in some sence absolute too yet governed by and were obliged to observe Known Laws and the People had a settled Property in their Estates which the Prince had no Right to take away I shall not enquire how all these Monarchs came to be so Arbitrary at first and thus to abuse their Power But the Generality or Antiquity of this abuse can be no more a Plea for its Right than that because Idolatry was generally practised throughout the World within three or four hundred Years after the Flood till three or above four hundred Years after Christ therefore Idolatry was the True and Ancient Religion of the World Now tho' I will not condemn this sort of Government where the Subjects enjoy no setled Property in Lands or Goods as absolutely unlawful and directly contrary to the Laws of God or Nature Yet in those Kingdoms and Common-wealths where Civil or Hereditary Property is once introduced I think it is not Lawful nor indeed in the Power of the Prince or Common-wealth to destroy or take it away And therefore if the Roman Emperours should have endeavoured by any Laws or Edicts of their own making to have dâ—stroyed all Civil or Hereditary Property in Lands and Goods and to have reduced all the Estates of their Subjects into their own Possession I think they might have been Lawfully disobeyed and resisted by the People since they went about to destroy one great End of Civil Government viz. the Instituting and Maintaining of Civil Property To conclude I freely grant that in all Countries which are governed either by absolute Monarchies or Common-wealths the Soveraignty is so fully in one Person or Body of Men that it hath no other Bounds or Limits under God but it s own Will or Commands Provided they do not apparently tend to the absolute Ruine and Destruction of the People for that being inconsistent with the Notion or End of governing them they are and ever will be Iudges of it And therefore even amongst the Turks and Tartars themselves if they should once find their Prince go about wilâ—ully to destroy them or sell them for Slaves you would soon find notwithstanding this servile Subjection That they would quickly be rid of them as the Ianisaries have served their Emperours of late Years for far less faults M. I cannot deny but you have spoken reasonably enough on this Subject and perhaps if you had restrained this Power of Resistance only to such Cases where the Prince or Monarch makes open War upon his People or doth otherwise actually go about to destroy them it might have been a tolerable doctrine that they may lawfully resist the Forces he shall send against them but this is a Case that so seldom happens if ever at all that it can never be supposed and no Prince unless he were Mad can be guilty of it and therefore when ever he Acts thus I think he may not only be Lawfully resisted but tyed up for a Madman But this is seldom or never the Case between Monarchs and their People for most of the Rebellions and Insurrections that I have ever read of or observed in the World have not proceeded from any necessity that the People had to rise up in Arms and Rebel against their Supream Magistrates because their Lives or Estates were assaulted or in danger to be taken away but for the most part they arose either from the too Great Cruelty or severity of the Supream Power towards some particular Private Men who by themselves and their Friends and Relations have gone about to revenge those Injuries that they supposed had been done them And of this all Histories are to full that I need give no particular Instances of them all which abuses may be reduced to these Heads First when a Prince doth commonly himself violate the Chastities of the Wives or Daughters of the Subjects which tho' it hath been the ruine of divers Princes yet is he able to do this only to some few particular Persons and tho' if he should permit his Soldiers or Officers generally to do this without any Punishment yet even this can hardly if ever extend to all the Wives Daughters or Women in a whole Countrey And therefore both these Cases are to be born withal according to your own Principles since it doth not tend to the Slavery or Destruction of the People I mean as to their whole complexed Body A Second is when an absolute Prince or Monarch goeth about to alter the
Samuels Days it setled in their Kings For as for the Iewish Sanhedrim whose Power is so much extolled by the Iewish Writers who are all a late Date many years since the Destruction of Ierusalem and therefore no competent Witnesses of what was done so many Ages before it does not appear from any Testimony of Scripture that there was such a Court of Iudicature till after their Return from the Babylonish Captivity But yet God took care to secure the Peace and good Government of the Nation by appointing such a Power as should receive the last Appeals and whose sentence in all Controversies should be final uncontroulâ—ble as you may see in Deuteronomy Chap. 17. There were indeed inferiour Magistrates and Iudges appointed in their several Tribes and Cities which Moses did by the advice of Iethro his Father in Law and by the Approbation of God But as the Supream Power was still reserv'd in the hands of Moses while he liv'd so it is here secured to the High-Priest or Iudges after his Death for it is expresly appointed that if those inferiour Iudges could not determine the Controversie they should come unto the Priests the Levites that is the Priests of the Tribe of Levi who by the 12. v. appear only to be the High-Priest and to the Iudge that shall be in those days that is if it shall be at such a time when there is an extraordinary Judge raised by God for there were not always such Iudges in Israel as is evident to anyone who reads the Book of Iudges they should enquire of them and they shall shew the sentence of Iudgement and thou shalt do according to the sentence which they of that place which the Lord shall Chuse shall shew thee and thou shalt observe to do according to all they shall inform thee And what the Authority of the Chief-Priest or of the Iudge when there was one was in those days appears from v. 12. And the Man that will do presumptuously and wilâ— not hearken â—o the Priest that standeth to Minister there before the Lord thy God or unto the Iudge even that Man shall dye and thou shalt put away the evil from Israel This is as absolute an Authority as the most absolute Monarch in the World can challenge that disobedience to their Last and final Determination whatever the Cause be shall be punish'd with Death and what place can there be for Resistance in such a Constitution of Government as this It is said indeed v. 11. And according to the sentence of the Law which they shall teach thee and according to the Iudgment that they shall tell thee thou shalt do And hence some conclude that they were not bound to abide by their sentence nor were punishable if they did not but only in such Cases when they gave sentence according to the Law of God But these Men do not consider that the Matter in Controversie is supposed to be doubtful and such as could not be determin'd by the inferiour Courts and therefore is submitted to the Decision of the Supream Iudge and as he determin'd so they must do no Man under the Penalty of Death must presume to do otherwise which takes away all Liberty of Iudging from Private Persons tho' this Supream Judge might possibly mistake in his Judgment as all Humane Iudicatures are liable to mistakes but it seems God Almighty thought it necessary that there should be some final Iudgment from whence there should be no Appeal notwithstanding the Possibility of a mistake in it So likewise when God had appointed Ioshua to succeed Moses and had conferrd upon him all that Power that Moses had before and that he came to give his Orders to the two Tribes and an half before their Passage over Iordan you 'l find that they not only promis'd him perfect Obedience as they had before pay'd to Moses but farther also assure him That whosoever he be that doth rebel against thy Commandment and will not hearken unto thy words in all that thou Commandest him he shall be put to Death So that there was a Supream and Soveraign that is an unaccountable and irresistible Power in the Iewish Nation appointed by God himself for indeed it is not possible that the Publick Peace and Security of any Nation should be preserved without it F. You have Sir methinks taken a great deal of pains to prove that which I do not at all Deny but rather joyn with you to assâ—rt that Stubbornness and Disobedience to Gods Commands is a very great Sin and the Rebellion thereunto is likened to the Sin of Witchcraft as Samuel shews to no less a Man than King Saul himself when he had Rebelled against that is disobeyed God in not destroying the King of the Amalâ—kites and therefore it is no wonder that in a Government where God himself was the Head and had appointed Moses and Aaron as his Lieutenants or Substitutes under him the one in Civil and the other in Ecclesiastical matters that God should punish their Murmuring and Rebellion against them as done to himself not that I deny but that St. Iude does likewise denounce this Judgment of perishing in the gainsaying of Core against those wicked Hereticks the Gnosticks who thought themselves set free from all Civil subjection and therefore despised Dominions and spake evil of Dignities that is not the Men invested with them but Civil Magistracy it self which they look'd upon as inconsistent with their Christian Liberty But yet for all this and that I grant God denounced no less than the Sentence of Death against any Man that refused to Hearken to the Priest or unto the Iudge in those matters that should be brought before them by way of Appeal and also that whoever would not obey Ioshua but should Rebel against his Commandments should be put to Death yet can I not think that there was any Irresistible Power plac'd by God in the Persons of Moses Ioshua or the Iudges or that it was not possible for the Publick Peace or security of the Nation to be preserved without that But indeed all these Persons above nam'd being to be Obeyed as Gods Substitutes or Lieutenants as he was King of the Children of Israel so likewise their Commands or Dictates were only so far to be observ'd as they perform'd this Commission and if they had swerved from it I doubt not but they might not only have been disobeyed but also resisted by them And therefore pray tell me suppose this Rebellion of Core had happened because Moses making himself a distinct party amongst the mixt multitude of strangers that came up with them out of the Land of Egypt and others of his own Tribe or whom he could bring over to his Faction under colour of this Soveraign Power which God had given him had instead of leading and governing the People committed to his charge taken upon him to have rob'd them of all those Goods and Riches which
themselves in Caves and Mountains and yet this was the only defensive War which David made with all his Men about him nay all that he would make and all that he could make according to his Professed Principles that it was not Lawful to stretch out his hand against the Lords Anointed And when these Men are pursued as David was by an enraged and Jealous Prince I will not charge them of Rebellion tho' they fly before him by thousands in a Company Yet there was sufficient Reason why David should entertain these Men who voluntarily resorted to him tho' he never intended to use them against Saul for some of them served for Spies to watch Sauls Motions that he might not be surprised by him but have timely notice to make his Escape And the very presence of such a number of Men about him without any Hostile Act preserved him from being seiz'd on by some Officious Persons who otherwise might have delivered him into Sauls hands And he being Anointed by Samuel to be King after Sauls Death this was the first step to his Kingdom to have such a Retinue of Valiant Men about him which made his Advancement to the Throne more easie and discouraged any Oppositions which might otherwise have been made against him as we see it proved in the event and have reason to believe that it was thus ordered by God for that very End It is certain that Gad the Prophet and Abiathar the Priest who was the only Man who escaped the Fury of Saul when he destroyed the Priests of the Lord were in Davidâ— Retinue and that David enterpriz'd nothing without first asking Counsel of God But he who had Anointed him to be King now draws Forces after him which after Saul's Death should facilitate his Advancement to the Kingdom F. I cannot think your Answer to this Objection satisfactory for first it is evident that when David was at the Cave of Adullam his Brethren and all his Fathers House as soon as they heard it went down thither to him and tho' it be not expresly said that he sent for any to come to his Assistance yet it is plain he refused none that came and to what purpose should he make use of so many as 400 or 600 Men unless it were to defend himself against those Men that Saul might send against him since half a score or twenty Persons had been enough to have served for Spies and if he had thought himself obliged only to run away three or four Servants had been enough in conscience to have Waired on him in any Neighbouring Country but that David thought it no Sin to defend himself from the Violence of those which Saul should send to Kill him is plain from what he says to Abiathar upon his flight unto him after the Death of his Father Abide thou with me fear not for he that seeketh my Life seeketh thy Life but with me thou shalt be in safeguard And if David had not meant by these Words to have defended Abiathar's as well as his own Life if assaulted and without a Possibility of escaping it had been very cold comfort for David to have only assur'd him that he should be in safe-guard with him till the first assault that should be made upon them but that then he should shift for himself for as for his own part he would rather permit his Throat to be cut by the Kings Officers or Souldiers than resist them And therefore tho' I own that it was not Lawful for him to stretch out his hand against the Lords Anointed Since I do not allow any Private Subject to Kill even Tyrants unless a in State of actual War or Battle wherein they are Aggressors nor then neither if it can possibly be avoided Yet do I not find it at all unlawful for David or any other private Man to defend his own Life against such Assassinates as his Prince may send against him So it may be done without a Civil War or endangering the Peace of the Common-Wealth And so much you your self tho' Coldly seem to yield when you say that the very Presence of such a number of Men about David without any Hostile Act preserved him from being seiz'd on by some Officious Persons who otherwise might have delivered him into Sauls Hands For I cannot think that David would have been at the trouble of keeping so many Men only for shew and a Terrour to those Officious Persons you mention without resisting of them if there had been occasion And tho' you tell me that his being Anointed by Samuel to be King after Sauls Death was the first step to the Kingdom to have such a Retinue of Valiant Men about him which made his Advancement to thoâ—punc Throne so much the â—aster and discouraged any Opposition which might have been made against him and that we see it proved so in the Event and therefore have Reason to believe that it was thus ordered by God to that very End I must take the Liberty so far to differ from you For first I desire to know by what Authority David could List 600 or 700 Men in Arms in Sauls Territories and whether according to your Doctrine they were not Rebels for joyning themselves with one who was declared a Traytor by the King And tho' you say it was thus ordered by God I grant indeed it was yet doth it not appear that it was done by any Divine Revelation to Nathan or Abiathar but only by the Ordinary Course of his Providence like other things in the World and therefore it is no fair way of Arguing for you to affirm that what ever David did in the matter of his own Defence contrary to your Principles he must needs do it by express order from God of which the Scripture is wholy silent much less doth it appear from the Story that these Men whom David kept with him were only to facilitate his attaining the Kingdom as you affirm since the Scripture mentions no such thing only that after Saul's Death he went up by Gods Command to Hehron with the Men that were with him and thither the Men of Iudah came and there they Anointed David King over the House of Judah but 't is no where mention'd that these Men were of any use to David for the Obtaining of the Crown since the Tribe of Iudah would have made him King tho' these Men had not been with him for what could 600 or 1000 Men do against so vast a Multitude as the whole Tribe of Iudah And therefore it is evident that these Forces were for no other End than his own defence And tho' you make very light of this State of War in which David was in relation to Saul yet pray tell me supposing that the Duke of Monmouth had really been as he Pretended the Legitimate Son of King Charles the II. but by some Particular Disgust of his Father or by the Intrigues of his Competitor the Duke of York had
Arms against their Kings offensive or defensive upon any Pretence whatsoever is at least to resist the Powers which are ordained of God And tho' they do not invade but only resist St. Paul tells them plainly they shall receive to themselves Damnation From which you may plainly see that this Convocation which consisted of as great Men as I think had been for divers Ages do clearly maintain Monarchy to be of Divine Right and Resistance to be in no Case lawful F. I should grant the Canons of this Convocation to be a good Proof of the Iudgment of the Church of England were it not for two very good Reasons I have against them The one I will tell you presently and the other I will keep a while to my self In the first place therefore I suppose you cannot but very well know that this Convocation sate and passed these Canons which likewise received the King's Confirmation after the Parliament that was summoned together with this Convocation was dissolved And I suppose you know that by the Law of England the Convocation having from all times been looked upon as an Appendix to the Parliament was till then always dissolved with it For which Reason all Acts and Proceedings of this Convocation were condemned and declared null and void by the Long Parliament that began to fit the latter End of the same Year And which is more was likewise condemned by the first Parliament after the Restauration of King Charles the second And therefore I think I have very little Reason to own thâ—se Canons as Conclusive M. In the first place I might reply to what you have now said that that very Parliament which first condemned these Canons afterwards ruined the Monarchy it self In the next place that in old time the General or Provincial Synods were not Dependant upon the Assembly of the States at the same time And I likewise farther Answer that these Canons were made and confirmed in a full Convocation of both Provinces of Canterbury and York and the making of Canons being a work properly Ecclesiastical these Canons were made by the Representatives of the whole Clergy of this Kingdom 2. The Canons were confirmed by the King which was all that was of old required in such Cases and tho' the Convocation sate after the Dissolution of the Parliament yet this is not without President even in the Happy Days of Queen Elizabeth not to look back unto Henry the eighth or the Primitive times And as for your Objection that these Canons were reprobated since the Restitution of Charles the II. I say that I quote them not as Law but as the known Sense of the Church of England at that time F. Your first Answer in behalf of these Canons is altogether Invidious For it was not this Parliament that ruâ—ned the Monarchy but only the Rump or Fag end of it after it had suffered divers Violences and Exclusions of Members by the Army and that the House of Lords being by this Iunto voted useless and dangerous were shut out of doors nor is your second Answer any more true for antiently in the Saxons time the Wittena Gemot or Great Counsel and the General Synod made one and the same Assembly consisting both of Clergy-men and Lay men and then all matters of Ecclesiastical Discipline were enacted and confirmed by the King as also the Spiritual as well as Temporal States Nor can you shew me an Example of any General or Provincial Synod which met independently and without the States of the Realm until after the Reign of Henry the first when the Popes took upon them to encroach upon the Royal Authority as also upon our Civil Rights and by his Legaâ—s to call Synods and make Ecclesiastical Constitutions in which neither the King nor the States of the Kingdom had any thing to do And tho' I grant that upon the Reformation the King was restor'd to those Rights as Supream Governour of the Church which the Pope had before usurped yet is not this Act of the Supremacy to be so understood as to give the King all that Power which the Pope unjustly took upon him to execute before for that had been to make their Case no better than 〈◊〉 was before and therefore this Act of the Supremacy being only an Act of Restoration of the King to his Pristine Rights of which that of Calling Synods and Convocations was one of the Principal the King could not call nor continue those Assemblies in any other form or after any other manner than they were held before the Popes Usurpation in taking upon him to call such Independant Synods and notwithstanding what you tell me I am confident you cannot shew me any Precedent of a Convocation so turned into a Synod as this was in all the Reigns of Henry the eighth and Queen Elizabeth But as for your last reply that you quote not these Canons for a Law that obliges the Church but as the Sense of the Church of England at that time if they do not now oblige the Church neither in Point of Belief nor Practice as you may seem to grant it signifieth no more to me what was the Sense of the greatest part of the Members of that Convocation in this matter nor doth it any more shew me what is the true Doctrine of the Church of England than if I should tell you that because in the Reign of Queen Elizabeth the Major part of the Bishops and Clergy of our Church were rigid Calvinists in the Interpretation of that Article about Predestination that therefore Calvinism was then the Doctrine of the Church of England but is not so now And therefore we ought not to take that for a Doctrine of any National Church unless the Synod or Assembly that declares such Doctrine be solemnly and Lawfully assembled according to the Laws and Customs of that Nation or Country wherein they are so declared M. Since you so much contest the Authority of these Canons I shall no longer insist upon them but I shall here shew you out of the Books of Homilies to which all the Clergy in England are bound to subscribe by Act of Parliament as well as to the Articles and Canons as containing wholesome Doctrine and nothing contrary to the Word of God so that these Homilies do indeed thereby become a part of the known Laws of the Land that in these very Homilies there are divers passages so very full and Plain against all Resistance of the Sovereign Powers for any Cause whatsoever that if you are a true Church of England Man as I hope you are you can have no just Reason to deny their Authority The Homily or Exhortation to Obedience was made An. 1547. in the Reign of King Edward the sixth in the second part of which Sermon of Obedience we are told in these Words which I desire you to read along with me That it is the Calling of God's People to be patient and on the suffering side
the Counsel and Consent as well of the Prelates as the Temporal Lords was accounted necessary in passing of all Acts of Grace and Favour to the People because that having many Royalties and large Immunities of their own a more near relation to the Person and a greater Interest in the honour of their Lord the King nothing should pass unto the prejudice and diminution of their own Estates or the disabling of the King to support his Sovereignty F. I confess you have given a plausible Account concerning the Government of William I. whom you call the Conqueror whereas if it be more exactly lookt into it will be found that he had no more Power of making Laws without the Consent of his Great Council than any of his Predecessors Neither had he any such Despotical Power as you imagin over the Lives and Fortunes of all his Subjects for whether we consider them as Normans French or Flemmings or whether as English it will be all one For if as Dr. B. supposes these latter were quite turned out of their Estates and that they were by him wholely given to the former then these French and Normans being Conquerors together with him would never have submitted to any other Government than what they enjoyed in their own Countries each of which was then governed by Kings or Dukes together with a Great Council or Assembly of the Estates and we find that when succeeding Kings would have oppressed and tyrannized over their Heirs and Descendants they together with the old English took up Arms and defended their Liberties and never laid them down until they had obtained their Iust Rights and Liberties contained in the Great Charters of King Iohn and Henry the 3d. And which as Math. Paris himself tells us in the Reign of King Iohn contained for the greatest part the Ancient Laws and Customs of the Kingdom And therefore by the Statute called Confirmatio Chartarum 25th Ed. 1st it is adjudged in full Parliament That the Great Charter and Charter of the Forest shall be taken as Common Law So that they were not any new Grants but rather Confirmations of their Ancient Rights and Liberties as my Lord Coke very well observes in his excellent Preface to his 2d Institutes where he tells us that Magna Charta is for the most part declaratory of the Principal Grounds of the Fundamental Laws of England and for the Residue is Additional to supply some Defects of the Common Law so that the Learned Chancellor Fortescue had very good Reason to affirm in his Treatise De â—audibus legum Angliae that it was then Governed in all King's times by the same Laws and Customs as it is now with whom likewise agrees one of his Learned Successors the late Earl of Clarendon in his Survey of the Leviâ—than when he tells us that those Laws and Customs which were before the Conquest are the same which this Nation or Kingdom have bin ever since governed by to this Day And as for the Laws of Edward the Confessor though it is true that William the Conqueror Re-granted and Confirmed them Yet was it no more than what he was obliged in conscience and honour to perform and observe since he was admitted to the Crown by the General Consent of the Clergy Nobility and People and at his Coronation as well as afterward swore to observe the Laws of King Edward And by the way tho these Laws are called the Laws of King Edward yet William of Malmsbury long since observed That they were called his Laws Non quâ—â—ulit sed quas observaverit that is he had only collected them into one body and ratified them with the Assent of his Great Council And that these Laws were more than once sworn to and confirmed by King William himself appears by the Story of Frederick Abbot of St. Albans who frighted him into a confirmation of them by Oath for fear of a general Insurrection of the People So that if he or his Son Rufus made any Breâ—ches upon their Liberties they were as it were ex post liminio restored to them by the Magna Charta's of Hen. I. K. Stephen K. Hen. II. K. Iohn and K. Hen. the III. And those oppressions contrary thereunto are branded by all Historians as Notorious Perjuries and Wrongs to the Subjects But that King William the First altered nothing material in the Fundamental Constitutions of the Government whatever he might do in some less material Customs or Laws which he brought with him out of his own Country appears plainly by this which you cannot deny that he often assembled his Great Council as his English Predecessors had done and that in them were dispatched all the Great Causes and Complaints of the Kingdom And for this I will give you the Testimony of two very ancient Historians The first is Râ—dolphus de Diceto who in Anno 1071 tells us That the Plaint of Wulstan Bishop of Worcester was heard and ended in Consilio celebrato in loco qui vocatur Pedreds coran Rege Doroberniae Archiepiscopo Primatibus totius Regni The next is Gervasius Dorobernensis who thus relates it Lanfranc Arch-bishop of Canterbury Eligentibâ—s eum Senioribus ejusdem Ecclesiae Episcopis at Priacipibus Clero Populo Angliae in Curia Regis in Assumptione Sandâ— Mariae Here the Episcopi Principes Bishops Princes the Cleri Populus the Clergy and People or Laity were the same Persons and only expressive of one another and all had Votes in this Election M. I pray give me leave to interrupt you a little I will not deny but that the Conquerour did often assemble Great Councils of his Bishops and Great Lords commonly called in Historians Principes or Primates yet I think I may boldly affirm that there were no Englishmen in those Councils or that they made any Laws for the Benefit of Englishmen who were kept under by those Normans who then enjoyed their Estates much less was there any such thing as Commons either by themselves or their Representatives in those Assemblies which then consisted wholly of the King 's Feudal Tenants in Capite and of no other as Dr. B. hath very plainly shewn us And when King William made Laws it is much to be doubted whether he made them so much as with the Consent of his Great Council or not for the Title to the French and Latin Copies of his Laws runs thus put into English These are the Laws and Customs which William the King granted to all his People of England after the Conquest or Subduing of the Land They are the same which Edward the King his Kinsman before him observed In this Preface we have only to note that the Laws are expressly said to be the King's Grant and the Supplemental Laws writ in the Red Book of the Exchequer are by way of Charter or Grant thus Wilhelmus Rex Anglorum c. Omnibus hominibus suis Francis Anglis salutem
and all along the Authoritative parts are expressed by Statuimus volumus interdicimus probibemus praecipimus So that by these Expressions in his Laws the absolute soveraignty of the Conqueror in the point of Law-giving is manifest I shall content my self with a very few Authorities because the matter is so plain Ordoricus Vitalis saith thus Eamque i. e. England Gulielmus Rex suis Legibus commodò subegit And Eadmâ—r Contemporary with the Conquerour in his History thus Vsus atque leges quas patres sui ipse in Normannia solebâ—nt in Anglia scribere volens Cuncta divina simul humana ejus nutum expectabant From whence you may see that all matters as well Spiritual as Temporal depended upon his sole will And tho we have no particular account of what Laws his Son William Rufus made yet we may presume according to the Testimony of Historians that he was altogether as absolute in those Councils he called as his Father as may be seen in Eadmerus his account of his Transactions with Archbishop Anselm So that it is certain he governed by his own absolute Authority raising what money he pleased upon his Subjects 'T is true that in the Reign of his Successor Henry the First the People found some little relaxation by reason of the Charter he made them containing several mitigations of the severity of the Feudal Laws as also those of Forests yet even these are said to be made by his own single Grant and Authority tho I confess it was granted in a great Council So likewise in Florence of Worcester we find that in 28 th of Hen. I. That King confirmed the Acts of a Synod or Council of the Clergy of the Province of Canterbury and gave his Royal Assent to them As for King Stephen tho he was a Notorious Vsurper and Set up and Crown'd by a Faction of Bishops and some few Temporal Lords and that not long after his Coronation he in a Great Council at Oxford granted to all his Subjects another Charter of divers Priviledges and Freedoms from the former Exactions yet the words of the Charter are in his own name and by his own authority solely as appears by these words Observari praecipio constituo But Richard Prior of Hexham alias Hagulstad in his Chronicle closes his Charter thus Haec omnia concedo confirmo salva Regia justa Dignitate mea From which words it is plain that he never meant to part with any of the just and necessary Prerogatives of his Crown So likewise King Henry the Second in a Great or General Council held at London confirmed the Great Charter granted by King Henry the First his Grand-father but this Charter also runs wholly in the King 's own name without any mention of its being assented to either by the Bishops or Nobles And as for the Constitutions made at the Great Council of Clarendon tho that King made the Archbishops Bishops with all the Clergy as also the Earls Barons and Nobility all swear to observe them yet the Enacting part proceeded only from the King as appears by their very Title thus Assissae Henrici Regis factae apud Clarendon c. And Mat. Paris concludes these Constitutions with Decrevit enim Rex From whence it appears that it was the King alone that decreed and Constituted those Laws I shall not say much of the Great Councils in Richard the First 's time since he did not reign long enough to call many but in that held at Notingham we find that the King diseized Gerard de Canville and others and that the King appointed to be given him two Shillings on every Carucate of Land throughout England c. From whence I shall observe that the words Rex praecepit constiâ—uit c. as they are in this Historian shew that the King then had solely the Authoritative Power of passing all Consultations of these Councils into binding Laws even where money was to be levied on the Subjects and that seisure was to be made of their Estates But to come to the more troublesome and perplext Reign of King Iohn in which there were many Great Councils holden yet I shall instance but in some few of them mentioned in Mat. Paris as that of St. Albans held by Ieffery Fitzpeter and the Bishop of Winchester in this King's Absence where ex parte Regis it was firmly enjoyn'd under penalty of Life and Limb that the Laws of King Henry his Grandfather should be kept by all in his Kingdom From whence we may observe that the Laws had their force only from the King's Authority as appears by this expression ex parte Regis firmiâ—er est praeceptum And when afterwards at Runningmead he was compelled to sign the first Magna Charta I own it was done in a Great Council of Bishops Earls and Barons as well those who stood for him as against him Yet that it proceeded wholly from his own good will is plain from the Charta de Foresta of this King as appears by these words Ad emendationem Regui nostri spontanea bona voluntate nostra dedianus concessimus pro nobis haredibus nostris has libertates subscriptas From all which Charters of Liberties we may conclude that the Petitions of the People were drawn into the form of a Charter and passed under the King's Seal as his meer voluntary free Grants and Concessions without their Votes Suffrages and Authority And sometimes such Rights or Liberties have been bestowed and declared by our Kings by way of answer to the Petitions of the Lords and Commons and that this custom is not yet discontinued appears by the Answer of K. Charles the first to the Petition of Right when no other answer would please the Commons but the King 's expressed Assent to their Petition in these words Sole Droâ—â—t faict comme esâ— dâ—sire But to return to the Reign of Henry the Third F. I beseech you Sir give me leave now to answer what you have already alledged out of our Hiâ—â—oâ—iâ—ns for the Supreme and Absolute Power of our Kings before we proceed further to less obscure times And therefore I must tell you that you have in this long speech of yours made use of all the Artifice of an Advocate for a Party viz. in urging all that can any way make for you and slyly passing over whatsoever may make against you And to begin with your story of King William the First I shall not now dispute whether there were any Englishmen in those Great Councils or whether they consisted only of Tenants in Capite since I shall defer that Question till anon But as for the English you have put upon the French Title of the Laws of this King it is not fairly rendred for in the French it is Apres le Conquest dâ— la â—erre which doth not always signifie a subduing by force but by any other ways of acquisition different
particularly to the 55 th Law of William the First part of which I have already cited it begins thus Volumus etiam ac firmiter praecipimus concedimus ut omnes liberi homines totius Monarchiae Regni nostri praedicti habeaâ—t teneant terras suas pâ—ssessiones suas bene in pace libere ab omni exactione injusta ab omni Tallagio ita quod nihil ab ois exigatur vel capiatur nisi Servitium suum liberum quod de jure nobis facere debent facere tenentur prout statutum est eis c. So that whatsoever was done at any time contrary to this Statute was illegal and consequently ought not to be quoted as any part of the King's Prerogative But that the Nobility and People of England had divers Rights and Liberties before the time of King Iohn and of his granting that Charter appears by its conclusion in these words Salvis Archiepiscopis Abbatibus Prioribus Templariis Hospitalarâ—is Comitibus Baronibus Militibus omnibus aliis tam Ecclesiasticis Personis quam secâ—laribus libertatibus quas prius habâ—erunt And as for the rest of the Liberties granted by this Charter tho they are said to have been granted from the King 's meer good will yet that is recited only to make it more strong against himself since the Nobility and People of England claimed those Liberties as their ancient undoubted Right And the same Author as I have already hinted expresly tells us that this Charter contained Maxima ex parte leges antiquas And a little lower he relates where those Liberties were to be found Capitula quoque legum libertatum quae ibi Magnates confirmari quaerebant partim in Charta Regis Henrici superius scripta sunt partimque ex Legibus Regis Edwardi aâ—â—iquis excerpta So that they were not only the effect of the King 's meer Grace and Favour as you suppose But if you please now to descend to the Reign of Henry the Third and so downward from which time our Eldest Printed Statutes bear Date let us see if I cannot answer all those Arguments which the Gentlemen of your opinion have thence brought for the King 's Sole Legislative Power M. Tho I do not allow of your notion of the Conqueror's not being properly and really so as I shall shew you another time when I shall more particularly consider that Argument of the Right of Conquest in King William and all his Successors therefore I do at present readily assent to your Proposal and it was the very thing I was coming to And therefore I shall begin with the Magna Charta of Henry the Third which begins thus Know ye that We of our Meer and Free Will have given these Liberties The Statute de Scaccario Anno 51 Hen. 3. begins thus The King commandeth that all manner of Bayliffs c. The Statute de Districtione Scaccarii made the same year runs thus It is Provided and Ordained The King willeth The Statute of Marlbridge 52 Hen. 3. And he i. e. the King hath appointed all these Acts Ordinances and Statutes to be observed of all his Subjects If we come to the Reign of his Son Edward I. and begin with the Statute of Westminster I. it is there said in the Preamble These are the Acts of King Edward I. made at his first Parliament by his Council and by the Assent of the Archbishops Bishops c. And in the first Chapter 't is said The King hath Ordained and Established these Acts. And tho I grant that in divers Statutes of this King at in this of Westminster it is recited that the King by the advice of his Counsel or Assent of the Archbishops Bishops Earls Barons c. have Made Provided Ordained or Establisht such and such Laws yet it is plain that the Enacting or Decreeing part is wholly ascribed to the King in all those Statutes wherein such words are found as I shall make it appear more plainly by the Statute of Act on Burnel made in 13 Edw. I. where it is said The King by himself and all his Council hath Ordained and Established And in the Statute of Westminster 3.18 Edw. I. Chap. I. Our Lord the King in his Parliament at Westminster at the Instance of the Great Men of the Realm hath Granted Provided and Ordained In the Statute De iis qui ponendi sunt in Assizes 21 Edw. I. Our Lord the King in his Parliament holden c. hath Ordained that c. The Statute of Quo Warranto 18. Edw. I. runs thus Our Lord the King at his Parliament holden at Westminster of his special Grace and for the Affection he beareth unto his Prelates Earls and Barons hath granted That c. I Edw. II. begins thus Our Lord the King hath Granted The Statute of Gavelet 10 Edw. II. begins thus It is provided by our Lord the King and his Iustices The Statute of Carlisle 15 Edw. II. begins thus The King unto the Iustices of his Bâ—nch sendeth Greeting Whereas of â—ate We have Ordained c. But if we come to the Reign of his Son Edw. 3d. The Prefaces to most of the Statutes made in his Reign run thus Our Lord the King by the Assent of the Prelates Earls c. and at the Request of his People hath granted and established or else at the Request of the Commonality hath ordained c. The like Stile continued during the Reigns of Richard the 2d Henry 4th and Henry 5th with very little Alteration only it was commonly at the Request of the Prelates Dâ—kes Earls and Barons and at the Instance and Special Request of the Commons the King hath Ordained c. Whereby we see a plain difference in the Phrases of the Statutes of those times for it is the Lords that give their Assent whereas the Commons only Petitioned but it is the King alone who Ordaineth and Establishes I confess indeed that under some Princes of bad Titles as in particular under the Minority of Henry 6th there began some Alteration in the form of penning the Enacting part of most Statutes that were then made and that unto those usual words which were inserted ordinarily into the Body of the Acts from the beginning of the Reign of that King viz. by the Advice and Assent of the Lords Spiritual and Tempâ—ral and at the Special Instance and Request of the Commons there was added by the Authority of the said Parliament But it is still to be observed that though these words were added to the former Clause yet the Power of Granting and Ordaining was still acknowledged to belong to the King alone as appears by these Acts of Parliament of that King viz. the 3d. Henry 6th Ch. 2. 8th Hen. 6. Chap. 3. Where it is said our Lord the King by the Advice and Assent and at the Request aforesaid hath ordained and granted or Ordained and Established by the Authority of this Parliament And thus it generally
stood but every General Rule may have some Exceptions till the beginning of the Reign of Henry 7th about which time that usual Clause at the Special Instance or Request of the Commons began by little and little to be laiâ— aside and that of their Advice or Assent to be inserted in the place thereof For which I do refer you to the Statute-Book at large which Form I confess continues to this day yet even in Hen. 7ths time in the first of that King and the 7th Chap. it runs in this Stile The King our Soveraign Lord of his Noble and Abundant Grace by the Advice and Assent of the Lords Spiritual and Temporal at the Supplication of the Commons in the said Parliament Assembled and by Authority of the same Ordaineth And though the Statutes of Hen. 8th do generally agree in their Style with those of his Father Yet in his time also many Acts were drawn up in Form of Petitions as 3 Hen. 8th c. 14. Prayen your Highness the Commons in this present Parliament Assembled and 5 Hen. 8. c. 4. Prayen the Commons in this present Parliament And in the Reign of his Son â—d 6th tho' I grant that most of his Acts do run in the usual Form yet this one is very Remarkable I Edw. 6. c. 4. Wherefore the King our Soveraign Lord c. At the Humble Petition and Suit of the Lords and Commons in this present Parliament Assembled doth Declare Ordain and Enact by the Assent of the Lords Spiritual and Temporal and the Commons in this present Parliament Assembled and by the Authority of the same Which last words though they may seem to refer to the Parliament and may make Men think that the Lords and Commons did then pretend some Title unto the Power of making Laws Yet neither Adviseing nor Assenting are so Opperative in the present Case as to Transfer the Power of making Laws to such as do advise about them or assent unto them nor can the Alteration of the Forms and Styles used in Ancient times import an Alteration of the Form of Government unless it can be shewed as I think it cannot that any of our Kings did Renounce that power which properly and solely did belong unto them or did by any Solemn Act of Communication confer the same upon the Lords and Commons convened in Parliament And therefore upon the whole matter since in almost all our most Antient Statutes it is precisely express't that they were made by the King himself the meaning of those general words used in latter times that the Statutes are made by Authority of Parliament are particularly explained in former Statutes viz. that the King Ordaineth the Lords Advise the Commons Consent as by comparing the Writs with the Statutes that expound the Writs will evidently appear F. In answer to those Authorities you have now brought I doubt not but I shall give you others of as great weight that prove the direct contrary to what you now Assert To begin with your Instance of Magna Charta I shall shew that those Charters that were granted and confirmed by Henry 3d. were not his Acts or Grants alone but the Grants also of the whole Kingdom Represented in Parliament We have two Express Declarations for the one in the 25th of King Edw. 〈◊〉 Where is to be found in the Parliament Roll of that Year a Confirmation of the Great Charter of Liberties and Forests in these Words which I shall render to you in English out of the Old French for your better understanding Know ye that the Honour of God and Holy Church and for the profit of our whole Realm We have granted for us and to our Heirs that the Great Charter of Franchises and Forests which were made by the Common Assent of the whole Realm in the time of King Henry our Father should be held in all Points without any Blemishment So likewise we find another Confirmation of those Charters in the Parliament Rolls of the 15th of Edw. 3d. which being in Old French I shall render it into English Imprimiâ— it is Accorded and Assented that the Franchise of Holy Church and the Great Charter of Forest and the other Statutes made by our said Lord the King and his Progenitors the Peers and the Commons of the Land for the Common profit of the People shall be firmly kept and maintained in all Points So that you may hence plainly see that the King himself with the whole Parliament declare and that in two several King's Reigns that the Great Charters were not only the Free Grants of King Henry but also the Ioynt Acts of the Common Council of the whole Kingdom and why King Iohn's Charter should not be made by the like Authority being one of his Progenitors I see no reason especially if we consider that that Charter was first drawn up by the Barons in the Form in which we find it and was past by that King under his Great Seal in that vast General Council or Assembly at Running-Mead And certainly whoever can draw up a Law and can offer it to a Prince to Confirm and without which consent of theirs it would not be good must necessarily have a share in the making of it As for your other Instances of those Old Statutes made in the Reign of Heâ— 3d. though I grant they begin as you say in the Kings Name Yet if you would but have read a little further you would have found that in divers of them the Bishops Earls and Barons gave their Consents to them And for the Proof of this I shall begin with one of the Antientest Statutes we have left us viz. that of Merton in the Preamble of which it is recited Provisum est in Curia Domini Regis apud Merton where after the parties that were present at the making of the Laws it concludes thus in the Latin Copies ita provisum est Concessum tam a praedictis Archiepiscopis Episcopis Comitibus Baronibus quam ab ipso Rege aliis where you see the Providing and Enacting Part is Ascribed to the Bishops Earls and Barons as well as to the King who is here mentioned almost last of all And though I confess that there was then no Set Form of Penning of Statutes in that honest and plain Age when Parliaments did not last so many Days as they do now Weeks and that the King's Judges and Council drew up the Acts after the Parliament was up in what Form they pleased sometimes leaving out any mention of the Bishops sometimes of the Temporal Lords and most commonly of the Commons Yet that they did all give their Consents to such Acts appears by the Statute of Westminster the 1st which you have already Cited where the Assent of the Arch-Bishops Bishops c. Counts Earls Barons and all the Commonalty of the Land is expresly mentioned So likewise the Statute of 51. of King H. 3d. concerning Measures begins thus Per
ordinationes totius Regni Angliae fuit mensura Domini Regis composita But farther to convince you that in the Opinion of the Lord Chancellour and those Learned Judges who framed the Writs that were issued out upon any of these Antient Statutes you will find that they who lived in those very times believed that those Statutes were made not by the K. alone but by him and the Common Council of the Kingdom which Writs as you may see in the Register of Writs run thus Rex Vicecom c. Salut Si A. fecerit c. tunc summonias c. B. quod sit coram Iusticiarijs c. Ostensuris quare cum de Communi Concilio Regni Nostri Angliae provisum sit c. as you may see in the Writs Granted upon the Statutes of Magna Charta Marlbridg Merton Glocester c. which have all of them this or the like Recitals cum de Statuto or juxia formam Statuti de Communi Concilio Regni nostri Ang. inde provisi The like Instance I could give you upon the Statute of Marlbridge and divers other Old Statutes in which the King by the Statute it self seems only to have Enacted it and yet you may see that our Sages of the Law were very well Convinced that those Statutes were made not by the King alone but by the whole Common Council of England So that there is no avoiding the Conclusion that the Great Council or Parliament had then a Great Share in the Legislative Power unless you can suppose the King alone to have bin the whole Common-Council of the Kingdom mentioned in these Writs But as for the rest of your Instances of Edw. 2d and Edw. 3ds times I think I can shew you that there is no General Rule to be drawn from some few Examples For though it is very true that the first of Edw. 2d begins thus Our Lord the King hath granted c. Yet it is plain by the Statute it self that it was made in and by Parliament The like I may say of the rest of the Statutes of this King's Reign though they do not all agree in Form as you may see by the Statute of Sheriffs 9th Edw. 2d Our Lord the King by the Assent of the Prelates Earls Barons and other Great Estates hath Ordained and Established And though you would fain draw some mighty Consequence from those Phrases in the Statutes of Edw. 3d. and many of his Successors by the Assent of the Lords and at the Request of the Commons as if the Consent of the latter were not as necessary as the former Yet indeed it is a meer difference in Form and proceeds only from hence that that Estate which found it self grieved always Petitioned the King for Redress and which amounted to as much as a Consent For you shall always find that the Petitioning Part still refers to that Body which was then oppressed without giving any other Assent For certainly their Requesting to have an Act made doth necessarily express their Consent And to prove what I have now said by Examples pray see the 8th of Hen. 6. c. 1. Where it is Recited in the Preamble that our Soveraign Lord the King Willing Graciously to provide for the Security and Quiet of the said Prelates and Clergy at the Supplication of the said Prelates c. and of the Assent of the Great Men and Commons aforesaid hath Ordained and Establishs't where you may see that the Assent of the Prelates is not here at all mentioned because it was needless as being made at their Request And if Praying and Requesting should destroy the Legislative Power I doubt whether Edw. 3d. did not give away his when in his 14th Year in a Statute concerning the Subsidy of Wools The Preamble runs thus nevertheless the King prayeth the Earls Barons and all the Commonalty for the Great Business which he hath in Hand c. that they would grant him some Aid upon Wools Leather c. Where upon Deliberation being bad the said Prelates Barons and Commons of the Kingdom have Granted him 40 Shillings to be taken on every Sack of Wooll But to return to the Matter to let you see that not only the Commons but also the Lords have bin oftentimes Petitioners as well as the Commons Pray see these Authorities The 1 is the Statute of Provisors 27 Edw. 3d. runs thus Our Soveraign Lord the King with the Assent and Prayers of the Great Men and the Commons of the Realm of England hath ordained c. And in the 4th of Ed. 4th i. e. It is Recited thus The King by the Assent Advice Request and Authority of his Lords Spiritual Temporal and Commons c. hath Ordain'd and Establisht in the Preamble of the Statute of 1. Edw. 6. c. 4. it is thus Wherefore the King our Soveraign Lord minding and entirely desiring at the Humble Petition and Suit of the Lords and Commons in this present Parliament Assembled doth Declare Ordain and Enact by the Assent of the Lords Spiritual and Temporal and the Commons in this present Parliament Assembled and by the Authority of the same And that the Assent of the Commons was always necessary to the making of Laws not as bare Petitioners but as Assenters too as well as the Lords appears by this Protestation or Declaration of the Commons to Edw. 3d. which is still to be found in the Parliament Rolls of 51. of that King which I shall read to you in English out of the Law-French which perhaps you are not used to Also the said Commons do Petition our Lord the King that no Statute or Ordinance may be made or Granted at the Petition of the Clergy unless it be by the Assent of the Commons Neither that the said Commons should be obliged by any Constitution which they may make for their Advantage without the Assent os the said Commons For they will not be obliged to any of your viz. the Kings Statutes or Ordinances made without their Assent M. I do not deny but that the Assent of the Commons as well as Lords hath bin allowed as necessary for a long time But whether the Consent of either at first was so is a great doubt since we find the first Ancient Statutes as I have already observed to have bin made wholy by the King alone And I think the most Ancient Laws are the best Interpreters of the Original Legislative Power And thence it appears that many Provisions Ordinances and Proclamations made heretofore out of Parliament have bin always acknowledged for Laws and Statutes We have among the Printed Statutes to this purpose one called the Statute of Ireland Dated at Westminster the 9th of February 14 Hen. 3d. Which is nothing but a Letter of the King to Gerard Fitz Maurice Justiciar of Ireland The Explanations of the Statute of Gloucester made by the King and his Iustices only were received always for Statutes and are still printed with them Also the Statute made
voluntate Regis teâ—â—ere praesumptum est sed quod consilio Magistratuum suoâ—an Rege Authoritatem praesâ—aâ—â—e babâ—â—a super hoâ— deliberatâ—one So that you see in the time when this Author Writ the King could do no more by his Prerogative then the Law allowed him to do and though it is true it is his Will and Authority that gives Vigour to the Law yet this only as it is declared in Parliament and in those Acts which had before received the Consent of his Great Council here called the Kings Magistrates And therefore you have done what you can to confound the difference between the Kings Declaration or Writs Explaining and Enforcing the Common Laws of England or else Interpreting former Acts of Parliament already made which was a Prerogative often exercised by the King and his Council in Parliament which then consisted of all or most of the Iudges and Great Officers of the Kingdom of which I shall speak more at large by and by And I confess we are much in the Dark because our Ancient Parliament-Rolls are almost all lost and consequently the Statutes therein contained So that we have almost nothing left of them but such Copies or Remains as were preserved by Iudges and Lawyers in those and Succeeding times whilst they were still in Being And therefore I think I may at present boldly affirm that if that which you call the Statute of Ireland was not founded upon some former Statute not now in being it was no Act of Parliament at all but only the King 's Writ to the Chief Justiciar of Ireland Commanding and Enforcing the Common Law of England in the Case of Coparceners to be observed in Ireland The like I may say to the Explanation of the Statute of Gloucester which might be no more than the Interpretation of the King and his Iustices of the Sense of some Articles in that Statute and this for its Greater Authority Exemplified under the Great Seal and so sent to all the Courts at Westminster and often to the Sheriffs of all the Counties in England yet without altering that Statute in some Points as you would have it The like I may say of the Statute of Acon Burnel and therefore it is very rashly done to conclude that though we have not the Original Acts and Records of Parliament of that time that therefore such Statutes were made by the King alone in his Privy Council So that I must still continue of the same Opinion with the Great Selden in this Point who in his Marâ— Clausum tells us It is most certain that according to Ancient Custom no Answer is given either by the King or in the King's Name to any Parliamentary Bill before that Bill whether it be brought in first by the Lords or by the Commons hath past both Houses as is known to all that are versed in Parliamentary Affairs Which if it hath bin the Fundamental Law of this Kingdom it signifies very little in what Form the Law is express't whether in the King's Name only as giving the last Assent thereto or else as his Concession to the Lords and Common's Petition as long as you grant that their Assent was necessary For sure whosoever Petitions another to do a thing which he cannot impose upon him without his Request must give his consent to the Doing it unless you can prove that it could be done whether the Petitioner would or not And this by the way will serve to answer an Objection which though you insist much upon it is scarce worth it viz. The King's Answer to the Lords and Commons Petition of Right which was indeed no Grant or Concession of any New Rights or Priviledges from the King to the People But only a Declaration of several Ancient Rights and Liberties of the Subjects which had been very much broken and infringed of late and therefore the King's Answer was very proper soit Droict faict comme est desire The next mistake you fall into proceeds from your confounding the King 's extraordinary Council in Parliament with the King 's Special or Privy Council and in a manner making this a fourth Estate by whom as well as by the Lords and Commons Laws are often made whereas indeed neither the one nor the other is true For tho I grant that there is often made mention in our Ancient Statutes or Records of the Kings Council yet this is not to be understood of his Privy Council but of a Special Council with whom our King 's formerly sate during the time of Parliament and before whom and to whom we find by divers Records that both the Lords and Commons did often Petition as you your self do truly affirm But that this was not the King 's Privy Council but another quite different from it And to which it seems to me that Fleâ—a refers in his 2d Book Cap. 2. Habet enim Rex curiam suam in Concilio suo in Parliamentis suis praesentibus Praelatis Comit. c. And this Council consisted of all the Great Officers of the Kingdom viz. The Lord Treasurer Chancellor and Keeper of the Privy Seal Master of the Wardrobe the Judges of the King's Bench Common Pleas Barons of the Exchequâ—r Justices Itinerant and Justices of Assizes with such of the Dignified Clergy as it pleased the King to call Which that they were altogether distinct from the King 's Privy Council appears plainly by this that the later never included all the Iudges nor did the Privy Council ever exercise any Iudicial Authority in Parliament as this Council did in those days but that this Council consisted of the Parties above mentioned see the Statute of Escheators made 29 Edw. I. and in the Placita Parliamentaria of that year the Statute runs thus Per Consilium Regis concordatum est coram Domino Rege ipso consentiente c. But in the Close Roll of this year it is clearly explained who were of this Council their Names being there particularly recited viz. all the Great Officers above-mentioned together with the Iudges of the King's Courts and Justices Itinerant c. Which is likewise explained by the Parliament Roll 9. Edw. 2. Rex voluit quod Dominus Cancellarius Thesaurarius Barones Soaccarii Iustiâ—iarii alii de Consilio Domini Regis Londin existente convenirent I could give you many more Examples of this kind but I shall give you but two more to prove that this Council in Parliament could not be the King 's Ordinary Privy Council The first is in Placit Parliament 2 Edw. 3. in a Cause betwixt Thomas Fitz-Peter and Alienora Wife of Iohn de Mowbray Coram Rege The Record is long but concludes thus to the Justices Et si difficultas aliqua subfuerit quare praemissa facere non possâ—tis tunâ— placitum illâ—â—d usque in Prox. Parliamentum nostrum udjornetis ut ibidem â—unc inde fieri valeat quod de Consilio nostro fuerit faciendum By which we may very
well gather that this was none of the King 's Ordinary or Privy Council or else to what purpose was this Cause adjourned to the meeting of the next Parliament Since if it had been to be determined by the Privy Council it might have been done forthwith I shall give you but one Instance more out of the Close Roll of the 41 of this King wherein a Cause between Elizabeth Wife of Nicholas D'Audley and Iames D'Audley in a Controversie between them touching certain Lands contained in in the Covenants of her Marriage is said to have been adjudged Devant Son Conseil c'est a scavoir Chanceller Thresorier Iustices Aâ—ires Sages assemblez en la Chambre des Etoiles i. e. Before his Council viz. the Chancellor Treasurer Justices and other wise men assembled in the Star-Chamber So that when any thing in our old Statutes is said to be Ordained by the King and his Council it is always to be understood not as if this Council were a fourth Estate whose Assâ—nt or Advice was as necessary to the making of Laws as that of the Lordi Spiritual Temporal and Commons for then they would have had the same Power still but only according to the Custom of those times when most Acts of Parliament were drawn by them and that the King past none without their advice it was then said to be done by the King and his Council viz. in Parliament and I conceive the Power of this Council continued till the beginning of the Reign of Henry the Seventh when this Court being by Act of Parliament annexed to that of the Star-Chamber where also this Council of the King used to meet before as appears by the Case I have last cited and having afterwards only to do with Criminal Causes and that as well out of as in Parliament and that King Hen. 7 th not caring to exercise his Iudicial Power in private Causes as his Predecessors had done or to make use of their advice either in the drawing or passing of Bills which now began to be drawn by Committees in either house wherein those Bills were preferred this Council came by degrees to grow quite out of use as it is at this day I hope you will pardon this long digression which I have been drawn into to rectifie a Common mistake of the Gentlemen of your opinion who when they find any thing in our ancient Statutes or Records wherein the King's Council is mentioned presently entertain strange fancies of the Antiquity and Authority of the Privy Council M. I am so far from thinking this Discourse you have now made to be at all tedious that I give you many thanks for it since it gives me a light into many things which I confess I did not know before and I shall better consider the Authorities you have now given me and if I find they will hold shall come over to your opinion in that point tho I am not as yet satisfied as to the Legistative Power of the two Houses and therefore pray proceed to answer the rest of the Presidents I have brought on that Subject F. I shall readily comply with your Commands and therefore to come to those Statutes of the 15 th and 20 th of Edw. 3. which you suppose to have been repealed by that King without the Consent of the Lords and Commonâ— I grant indeed that the Statutes you mention were intended to be repealâ—d by the King without Assent of Parliament Yet was this not done by himself and his Council alone as you suppose but by a Council of Earls Barons and Commons which the Kings of England in those days were wont to call upon emergent occasions and for the doing of that which they thought Parliaments could not so speedily perform as in this pretended repeal of the Statute you mention And tho I grant this was a great brâ—â—ch upon the fundamental Constitutions of the Kingdom yet that it was done in such a Great Council as I have now mentioned I refer you to this pretended Statute its self and to your recital of it And that the King often called such Great Councils appears by an agreement of Exchange made for the Castle of Berwick between King Hen. IV. in the fifth year of his Reign and the Earl of Northumberland where the King promiseth to deliver to the Earl Lands and Tenements to the value of the Castle by these words which I shall render out of French from the Original which remains in the Tower By the advice and â—ssent of the Estates of the Realm and of his Parliament so that the Parliamâ—nt happen before the Feast of St. Lucie otherwise by the Assent of his Great Council and other Estates of his said Realm which the King will cause to be assembled before the said Feast in case the Parliament do not happen c. And yet notwithstanding this high strain of Prerogative King Edw. III. himself was not satisfied with this repeal of those Statutes you have mentioned but in the next Parliament held in his 17 th year he procured a formal and Legal repeal of them as by the Parliament Rolls of that year remaining in the Tower doth plainly appear And which I could give you at large did I not fear to be too tedâ—ous But I think it fit to let you know this because most ordinary Readers seeing no more appear in Print in our Statute Books are apt to imagin that the Kings of England in those days did often take upon them without Authority of Parliament to make and repeal Laws But as for your next Instance of the Statute of Edw. III. it is much weaker since tho I confess that in the Preface to these Acts there is only mention of the Great Men or Grantz as it is in our old French and other wise Men of our Council yet I shall prove at another time that under this word Grantz were meant the Lords in Parliament as by the wise men of our Council are understood the Commons And therefore it seems most reasonable to interpret the sense of many ancient Statutes wherein the King alone is said to make and ordain Laws by those later or more modern ones wherein the King by the Consent of the Lords and Commons or by Authority of Parliament is said to have Ordained them Since the true Stile and Meaning of ancient Laws which were penned with the greatest brevity ought to be still Interpreted by the Modern ones and not the Modern ones by the Ancient So that I am of the Learned Mr. Lambardâ— opinion who in his Arcbâ—ion or Discourse upon the High Courts of Justice in England expressly tells us That whether the Laws are said to be made by the King and his Wise Men or by the King and his Council or his Common Council or by the King his Earls Barons and other Wise Men or after such other like Phrases whereof you meet with many in the Volumes of Parliaments It comes all to this one
the Aldermen or Burgesses of Towns Represent those which we now call the Commons And supposing that then there were no Knights of Shires yet these being then the only Proprietors of any considerable Estates of Land in the Nation might very well represent all their Vâ—ssals or Vnder-Tenents as Tenents for years and at Will are at this day by the Knights of Shires tho they have no Votes at their Elâ—ction To conclude tho I grant that the King 's of England are the Fountain of that Honour which we call Peerage Yet it is only in Pursuance of that Ancient Constitution which their Ancestors brought out of Old Saxony and Normandy along with them as the firmest defence of Kingly Power against the Insolency and Encroachments of the Common or Meaner sort of People as well as Tyranny in their Princes And therefore in all Monarchies where there is no Hereditary Nobility the Prince hath no surer â—ay to maintain his Power than by Standing Armies to whose Humours and Pactions he is more Subject and is also more liable to be Murdered or Deposed by them when discontented with him than ever any limited Prince yet was or can be by his Nobility or People As I could shew you from a multitude of Examples not only from the Roman but Moorish Arabick and Turkish Histories and therefore to constitute a lasting stable limited Monarchy as ours is it must be according to the Model I have here Proposed M. I shall not contradict the latter part of your Discourse but I must freely tell you that if as you your self grant there were no Knights of Shires in the Saxon times I cannot see how those we call the vulgar or Commons of England had then any Representatives in the Great Council since those Thanes or Lords of Mannors whom you suppose to have Represented their Tenants or Vassals were never chosen by them and consequently could not properly be their Representatives But I think it will be easy enough to prove that none of your Inferior or middle Thanes but only the Chiâ—f or Superior had places in those Assemblies So that these Feudal Thanes or such as held of the King in Chief by Military Service were of the sam Kind with them that were after the Norman times Honorary or Parliamentary Barons and their Thainlands alone were the Honorary Thainlands and such as were afterwards Parliamentary Baronies Nor can I find any Footsteps in our Ancient English Histories of Cities and Buroughs sending any Representatives to those Great Councils So that admit I should own at present that the Bishops and some Great Abbots had from the first Setling of Christianity in this Island an Indisputable place in the Great Councils and likewise that the Earls Aldermen or Great Nobility had also Votes in those Assemblies and that the Chief Thanes or less Nobles had also their places there by reason of the Tenure of their Estates yet certainly the House of Commons was of a much later Date and owed its being either to the Grace and Favour of our Kings of the Norman Race or else to those that had Vsurp't their Power And this I think Dr. Brady hath very well proved against Mr. Petyt and I think I could convince you also of the Truth of it by his as well as other Arguments were it not now too late to enter upon so long a Subject F. Therefore pray let us defer any further Discourse of this Question till the next time we meet wherein I hope I may shew you that if you owe that Opinion to the Doctors Arguments he hath led you into a very gross mistake And I shall only at present take my leave of you and bid you good night M. I wish you the like ADVERTISEMENT A Brief Discourse of the Law of Nature according to the Principles and Method laid down in the Reverend Dr. Cumberland's now Lord Bishop of Peterborough's Latin Treatise on that Subject As also his Confutations of Mr. Hobb's Principles put into another Method With the Right Reverend Author's Approbation FINIS Bibliotheca Politica Or A DISCOURSE By way of DIALOGUE 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. Collected out of the most Approved Authors both Ancient and Modern Dialogue the Sixth LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford-Arms where also may be had the First Second Third Fourth and Fifth Dialogues 1693. Authors made use of and how denoted 1. Mr. Pettit's Ancient Right of the Commons of England Asserted P.R.C. 2. Dr. Brady's Answer thereunto Edit in Folio B. A. P. 3. The said Doctor 's Glossary at the end of it B. G. 4. Anamadversions upon Treatise Ianii Anglorum forces novo B. A. I. 5. The Author of Ianus c. his Confutation of the said Doctor entituled Ianus Anglorum ab Antique I. A. A. 6. Dr. Brady's Preface to his History B. P. H. 7. Dr. Iohnston's Excellency of Monarchical Government I. E. M. G. THE PREFACE TO THE READER HAving in my last Discourse treated of the Legislative Power of this Kingdom as also the Ancient Constitution of our English Government by great Councils or Parliaments the former of which questions I should scarce have dwelt so long upon had I then known of a Learned Treatise now 〈◊〉 to be publisht on that Subject I am at last arrived at the hardest and most important though perhaps in the Iudgment of some the driest and most unpleasant part of my Task viz. Who were anciently the constituent Parts or Orders of Men who made up thâ—se Assemblies That the Bishops Abbots Priors Earls and Chief Thanes or Barons were Principal Members is granted by all Parties but whether there were from the very Original of these Great Councils nay till long after the coming in of the Normans any Representatives for the Commons as we now call them in distinction from the Lords Spiritual and Temporal is a doubt which as it was for ought I can find first raised by an Italian who writ the History of England in the last Age so hath it been continued by some Antiquaries of our present Age though the first that ever appeared to prove the contrary was a Treatise published by James Howel in the Cottoni Posthuma under the Name of Sir Robert Cotton about 1654. but whether it was his or no I know not only it was supposed to be so by Mr. Pryn in his Preface to the Collection of Records which he published under the Name of the same Author in 1657. and after him this Notion of the Bishops Lords and other Tenants in Capite being the Sole Representative for the whole Nation in those Councils was next printed in the Second part of Sir Henry Spelman's Glossary Tit. Parliamentum where King John's Charter is made use of at the main Argument to prove that Assertion The next who appear'd in Prâ—nt on
atque supâ— mâ—nerâ— Ministri notantur And also in his Perambulation of Kent saith 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 was usually taken for the very same that we call now from the Latin word Gentilis a Gentleman that is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 A man well born or of good Stock and Family So that I think nothing can be more evident than that according to the Opinion of our best Criticks in the Saxon Tongue the word Thane doth not always signify a great Lord or Baron of Parliament as he is now called in distinction to an Inferior Nobleman or Gentleman And that there were also Burgh Thanes Thanes of Cities and Boroughs will evidently appear from a Writ or Charter of K. Edward the Confessor which is still to be found in Sir Iohn Cotton's Library in these words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Willem 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 alle mine 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 on 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which Charter with divers other of like nature confirming the Privileges of that Monastery were collected by a Monk of Westminster called Sulcardus who lived not long after the Conquest In the next place as for the word Magnates though I grant it there often signifies Great men or Lords Yet not only such as were Lords or Noblemen by Birth but as I shall shew you by several Instances as well before as after the Norman Entrance that it likewise also comprehended the Gentry or Inferior Nobility and such as were eminent and considerable either in the Countries or Cities for Interest Office or Estate As for the word Optimates I know it signifies the better or best sort of men yet not always great Noblemen or Lords For in Monastic Anglic. Tom. 3. we read of one Goda who under Edw. the Confessor subscribed himself Optimatem Ministrum Regalem i. e. Thane And lest you should apprehend that Optimas should always signifie the King's Thane or Tenent in Capite du Fresne in his Glossary defines Optimates to be Vassalli Barones qui ab ullo Domino ratione Hominu nede pendet but I shall speak more of this word Optimates when I come to speak of the times not long after VVilliam the First In the next place for the word Proceres it doth not only signifie Men Noble by Birth but Isidore a Spanish Author in the Gothic-times in his Origines Lib. 9. Cap. 4. says thus Proceres sunt Principes Civium and that this word often signified in the ancient English Saxon the Chief Magistrates of Cities or Burghs appears by Alfrick's ancient Glossary where these words Proceres Primates vel Primores he thus renders 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 buph papa And Du Fresne in his Glossary says also Proceres appâ—â—labantur qui in Civitatibus pracipuos Magistratus gerebant As for the word Principes any man that understands any thing of the Latin Tongue knows that it doth not always signifie Princes or Men Noble by Birth but any Chief or Principal Man remarkable by Place Office or Dignity and therefore we often read in Livy and other Latin Authors of Principes Civitatis and in this sense I suppose every Member of Parliament may be reckoned inter Principes among the most Considerable or Chief Men of the Kingdom So that when our ancient English Historians as well before as immediately after the Norman Conquest do often after the Arch-Bishops Bishops c. add caeteri totiâ—â— Regni Proceres Optimates or Principes as Members of the great Councils of those times Yet that these Writers did not then mean what you would understand by these words only Princes Earls or Great Lords Mr. Selden in his Titles of Honour teaches us when speaking of this word Principes as the most comprehensive of any says that though Princeps in the Singular were proper to every Earl or Alderman yet in the Plural Principes is more often applied comprehensively to others also of less though of special Eminency such as were Viri Primarii or Thanes And for this he refers us to the Charter of King Ethelwulf as it is recited by W. of Malmsbury Lib. 2 Cap. 2. And Ingulph wherein that King granted Tithes and divers other Priviledges to the Church Abby of Malmsbury which is said to be done Consilio Episcoporum Principum snorum as also of Hen. Hunt who relating the Election of Harold the Son of King Cnute expresses it thus Fuit magnum placitum apud Oxonford ubi Leofricus Consul omnes Principes eligerunt Heraldum Lastly As for the word Wites or Sapientes there can be nothing in that word which can limit it only to Men Noble by Birth since it signifies no more than the King 's Great Council of Wise men or Senators and might also well refer to the Chief Magistrates or Representatives of great Cities and Boroughs For Du Fresne in his Glossary tells us That among the Lâ—mbards Sapientes in Italia appellabant Civitatum Cives Primarii quorum Consilio Respublicae gerebantur Hieron Rubeus Lib. Hist. Raven Anno 1297. Sed longe antea illud nomen abtâ—â—uit in aliis Longobardâ—rum Civitatibus ut colligere liceret ex Ottone Acerbo Morena in Hist. Rerum Lâ—ndevetium c. Nor is this Authority inconsiderable since the Lombards were derived from the Goths from whom also the English Saxons had their Original and had the like fundamental Constitution and were governed by much the same Laws But that the Title of Wites or Sapientes was often attributed to the Commons of England I shall explain to you when I come to treat of the Antiquity of the House of Commons after the Normans Entrance where I shall shew you that divers Petitions were directed a tres Sages les Communes And sure whosoever is chosen by a County City or Borough as their Representative and is by them thought wise enough to be trusted with their Purses and to make Laws for them may very well I think be called in Old English a VVite or in our modern Dialect a Disercet or VVise man But let this word VVites signifie what it will yet it could never mean here great Lawyers or Iudges as your Dr. will have it since I very much doubt whether Law was then a Trade or Profession or not And that the Iudges in those days had not any more Voice in making Laws than they have now or any more to do in it than in the bare drawing of them up I am very well satisfied since if they had any such Power in those days I do not believe our Kings would ever have let them have lost it since it was so advantagious to their Prerogatives that they should keep it I could give you divers other Authorities though of later date to prove that the Commons were often included under the word Sapientes in our ancient Statutes and Records but I refer those for the times after the Conquest but I beg your pardon for being so
prolix already which the abuse your Dr. hath put upon these words would not permit me to avoid But now we have cleared most of the Terms in dispute between us I hope we may proceed with greater Certainty M. Though your Discourse hath been long yet since it is so essentially necessâ—ry to the right understanding the matter in hand I am well satisfied and I shall more fully consider the account you give of these words another time but a present give me leave to tell you That suppose I should admit that those words on which you have now given Interpretation of divers Authors may sometimes be taken in the sense you have now put upon them and that consequently the Commons might be represented under some of those general Names Yet am I not satisfied how the Aldermen and Magistrates of Cities and Boroughs could be included under this word VVites since in the Auctuary to the 35 Law of Edw. the Confessor 't is said Erant aliae potestates dignitates per Provincias Patrias universas per singulos Comitatus totius Regni constitutae qui Heretoches apud Anglos vocabantur Scilicet Barones Nobiles insignes Sapientes c. And Gregory of Tours Rodovicus and many of the foreign ancient Historians mention Sapientes only as Lawyers Counsellors Judges and among the modern foreign Lawyers Hottomon and Calvin say expresly they were such But perhaps not of the Inferior Ranâ— no more than the Saxons Sapientes were of which their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 only consisted And we have at this day the Iudges and King's Council and other great Lawyers that sit in the Lord's House and are assistant to the Parliament when there is occasion Nor have you yet brought any proof that the Cities or Towns then sent their Representatives to the great Councils in the Saxon times by this or any other Title But as for the Knights of Shires though I grant the Treatise called Modus tenendi Parliamentum mentions such Persons to have been present in Parliament in the time of K. Ethelred yet by that word Parliament so often used by the Author of that Treatise and divers other Circumstances it may be easily perceived that the Author lived but about the time of Edw. 3. or Rich. 2. as Mr. Selden in his Titles of Honour and Mr. Pryn in his Animadversions to Sir E. Cook 's 4th Institutes have very fully proved so that admitting that your Thanes or Lords of Towns did then appear in those Councils for themselves and their Tenants yet could they not be properly said to be their Representatives because as I told you before they were never chosen by them whereas now the ordinary Freeholders of forty Shillings a Year and the Freemen and Inhabitants in Cities and Towns have the grâ—â—test share in the Election of Knights Citizens and Burgesses And as for those Thanes you mention they or those under whom they claimed owed their Estates wholly to the Grants of former Kings and held their Possessions from them by some Tenure or other And by virtue of this Tenure it was that all the Lands of England were liable even those that belonged to the Church to those three Services anciently called Trinoda Necessitas viz. Expediâ—â—â— Castelli Pontis extructio that is Military Service against a Foreign Enemy and the Repair of Castles and Bridges and subject to the common Services of the Kingdom And that the Earls and Chief Thanes did hold their Lands by Knights or Military Service appears by the reliefs of the Earls and Thanes exâ—â—rest in the Laws of King Cnut in Sir H. Spelman's Councils So that if all the persons who held those Lands owed them wholly to the King's bounty it seems plain to me that they must likewise owe their places in the great Council to the same Original F. I think what you have now farther urged will be of no great moment against my Opinion for as to the Authority you bring from the Addition to that Law of Edw. the Confessor it is plain by the word Barones that it was added long since that time that word not being commonly in use till some time after the Norman Conquest But letting that pass it is plain by the rest of the Law if you would have been pleased to have read it out that these Heretoches here called Barons were no other than ordinary Gentlemen or Thanes which then answered the word Barones And these as this Law it self expresly tells us were chosen by all the Freemen in the Folemote or County-Court And therefore tho I grant they might be men of Estates yet there was no necessity of their being Lords or Noble by Birth nor is it likely that the people would have chosen their Earls or any other of the like Order to command them when they had sufficient choice of Thanes or Gentlemen in their own Countrey to command the Military Forces of it And tho it is true these Gentlemen are called Nobles and remarkable Wise Men yet this according to your own shewing doth not exclude others and those of a far different Profession viz. Counsellors Lawyers and Iudges all which you suppose had then Places in the Great Council as they have now in the Lordâ— House And if this Word might comprehend both Sword-men and Lawyers I cannot see why it may not also take in the better and richer sort of Citizens and Magistrates who in that Age as was notorious were elected by their respective Corporations And I have already proved that these were called Sapientes in other Countries and I see no reason why they â—ny not have been called so here too But that the King's Judges and Counsellors could have no Votes in the Saxon Great Councils I have already given a sufficient Reason to the contrary But I shall now farther shew you That the Cities and Boroughs in the Saxon times being so much more numerous and considerable than they are now must needs have had according to the custom of those Times a considerable share in those Great Councils since in them consisted a great part of the Strength and Riches of the Kingdom and were many more than they are at this day for Bede 〈◊〉 in the beginning of his History That there were in England long before his time 28 Famous Cities besides innumerable Castles and walled Towns of note many of which tho now extremely decayed or quite mined were then very considerable the greatest and richest part of the Nation inhabiting in those times for the most part in Cities or great Towns for their greater benefit or security and the greater part of the Lands of England in the Saxon times and long after â—y incultivated and over run with Forâ—sts and Bogâ— so that the Inhabitants of those Cities and Boroughs being them so considerable for Estates in Lands as well as other Richâ—â— could not â—e excluded from having Places both in the Brittish or Saxon Great Councils what man of Sense can
believe that the Ancient and Potent Cities of London Tâ—â— Câ—nterbury Lincoln c. Should ever be excluded from having any hand in the Great Consultation of giving Money and making Laws and for the publick defence of the Kingdom in the Saxon times any more than they are now And therefore we find that in all the Kingdom of the German or Gothick original the chief Cities and Towns have still sent Deputies to the Diets or Assemblies of Estates as I said but now In the next place tho I do not positively assert that there were Knights of Shires before the Conquest yet am I not convinced that there were none For tho I confess the Treatise you mention appears to have been written since the coming in of the Normans yet might the Substance of it have been much older than the times of Edw III. and Rich. II. or else certainly King Hen. IV. or his Chancellor for him would never have been at the trouble of transmitting a Copy of this said Modus into Ireland under the Great Seal which is thought to incroach so much on the Prerogative had he not been very well informed of the Antiquity as well as Authority thereof And therefore it might very well be written about the Time of Hen. III. from some Ancient Historians and Records not now extant tho the Copies we have of it may be of no longer standing than the time Mr Selden mentions But admitting that there were no Knights of Shires before the Conquest and tho the Thanes who I suppose made the greatest Figure in the Wittena Geâ—â—â—er were not Earls or chief Thanes that is of the Greater Nobility yet they were great Freeholders and tho Commoners yet Gentlemen and of the Lesser Nobility in the same sense as Gentlemen or Knights of Shires are now And the not elected by the Countries yet might be as well esteemed their Representatives as they are now of Freeholders under 40 s. per Annum Lease-holders and Copy-holders for years who have no Votes at the Election of Parliament men whereas these Thanes were then the chief if not the only Possessors of all the Freehold Estates in the Kingdom Nor is it any material Objection to say that these Thanes might at first owe those Estates to the Grant of the First Saxon Kings and might also after a sort hold their Estates of them as Heads of the Commonwealth by such Services as were setled by Publick Laws yet does it not therefore follow that they owed their very right of coming to the Great Council wholly to the Kings Favour For in the first place it is to be considered that tho the First Saxon Kings conquered this Island from the Brittains yet those that assisted them being only Voluntiers the chief Officers or Commanders of them might not only deserve but also capitulate for their Shares in the Land so conquered And these being given out by the King according to each mans quality condition or desert might constitute those who were called the King's Thanes as those who held likewise under them were the Middle Thanes or Vavassors Supposing till you can prove the contrary that these had Places in the Great Council as well as the other and you might as well argue that they could have no Places there but by the favour of their Lords Whereas I have already proved that an Estate of Five Hides in Land of whomsoever holden made a Thane or Nobleman of the Inferior Rank And we find by the same Laws of King Athelstan his Weregild or Price of his Head was valued but equal with that of a Mass Thanes or Priest viz. at 2000 Thrymsas So that a sufficient Estate in Land did not only make a man a Gentleman but also give him a place in the Great Council And there were besides all these several Alodoril who held their Lands discharged from all Services and could sell or dispose of them without the consent of the King or any other inferior Lord and are those mentioned in Domes-day Book qui potuit ire cum terra que â—â—but Nor is your Argument conclusive That because in those times as well as now all Lands were held either mediately or immediately of the King and were chargeable with those three general Services you mention for the publick safety and good of the Kingdom that therefore not only all mens civil properties but also their right of coming to the Great Councils must wholly depend upon the King's will Since I have already proved that the first Saxon Kings by their conquest of the Kingdom could not acquire the sole property of all the Lands thereof to themselves tho they might be made use of as publick Trustees to distribute them according to those mens qualities and deserts who had helped them in the Conquest So that when they were once possessed of such Estates they had immediately thereupon a right to a place in the Great Council the burthen of the Government lying chiefly on such as had Estates in Land And that many others besides the Kings Thanes or Great Lords had places in the Great Council of those times appears as well by the name of Mycel Synods â—â— Wittena-Gemots which are rendred by our Ancient Glossarists Numerosa or Popuâ—â—sa Conventio as also the Titles and Conclusions to divers of the Titles of those Great Councils in the Saxon Times where are often mentioned after the Comites Proceres Terrae aliorum fidelium infinita multitudo which must certainly take in many more than the Kings Thanes Judges or other of his Great Men who were then but a few in comparison of all the rest of the Freeholders of England M. I will not longer dispute the probability of what you say all the difficulty lies in the proof of the matter of Fact For in the first place I deny that any other of a less Degree than the King's Thanes of chief Tenents had any Places or Voices in the old English Councils Nor can you find as you your self are forced to confess in our Saxon Laws or Ancient Historians of those times any Representatives of the common people mentioned such as are now much less Citizens or Burgesses for any City or Burrough in England And therefore what you say concerning the Riches or Power of the Cities and Towns before the Conquest tho perhaps it might be true yet doth it not therefore follow that they must then send their Representatives to the Great Councils Nor is it any Argument to prove that they did because great Cities and Towns do or did lately send Deputies to the like Assemblies in other Countries since our Government might not only originally differ in that from theirs but that also the sending of those Deputies might be granted by some later Princes long since the time of the first beginning of those Kingdoms and I do believe will prove so if closely look'd into And in Denmark which you know was an Elective Kingdom the Cities and great Towns never sent any
Deputies to their Great Councils at all and since the Government of England as you your self grant did very much resemble that why might it not be so here too F. I think your Reply hath no more weight in it than what you have already urged For in the first place it lies upon your side to prove that none but the King 's or chief Thanes had any Places in the Great Councils of those times and wheâ—â— you can prove that you may do something But what I have now brought to prove the great Antiquity of our Cities and Burroughs in England is not so little to the purpose as you would make it since it confirms that Right of Prescription which all ancient Cities and Burroughs is England do claim of senâ—ing Members to Parliament and therefore pray 〈◊〉 what Mr. Lambard a Person whom all the Learned own extremely knowing in the English Saxon Government tells us on this Subject in his Archeion in these Words That whereas in the beginning of the Law viz. those made by the Saxon Kings he there mentions all the Acts are said to pass from the King and â—is Wisemen both of the Clergy and Laity in the Body of the Laws each Statute being thus And it is the advice of our Lord and his Wisemen So as it appears that it was then a received Form of Speech to signifie both the Spirituality and Laity that is to say the Greater Nobility and the Less or Commons by this one Word Witena i. e. Wisemen Now as these written Authorities do undoubtedly confirm our Assertion of the continuance of this manner of Parliament so is there also unwritten Law or Prescription 〈◊〉 doth no less infallibly uphold the same For it is well known that in every Quarter of the Realm a great many Burroughs do yet send Burgesses to the Parliament which are nevertheless so ancient and so long since decayed and gone to nought that it cannot be shewed that they have been of any reputation at any time since the Conquest and much lesâ— than they have obtained this Priviledge by the Grant of any King succeeding the same So that the Interest which they have in Parliament groweth by an ancient usage before the Conquest whereof they cannot shew any beginning Which thing is also confirmed by a contrary usage in the self same thing for it is likewise known that they of ancient demesne do prescribe in not sending to the Parliament for which reason also they are neither contributers to the VVages of the Knights of Shires neither are they bound by sundry Acts of Parliament tho the same be generally penned and do make no exceptions of them But there is no ancient Demesne saving that only which is described in the Book of Dooms-day under the Title of Terra Regis which of necessity must be such as either was in the hands of the Conqueror himself who made the Book or of Edward the Confessor that was before him And so again if they of ancient Demesnes have ever since the Conquest prescribed not to elect Burgesses to the Parliament then no doubt there was a Parliament before the Conquest to the which they of other Places did send their Burgesses From whence we may conclude that the Learned Author did not only believe that the Lords but that also the Inferior Nobility and Representatives of Cities and Towns were included under the Word VVites and also that these Placeâ— claimed that Priviledge by Prescription and not by Grant of any King since the Conquest or before M. I shall not deny but Mr. Lambard was a Learned Antiquary yet there are others more in number and perhaps of greater Learning who do suppose that no Cities or Burroughs sent Burgesses to Parliament but since the Conquest the I confess the time is not exactly agreed on but whenever they began to appeaâ—â— there it is certain they could have no right of coming but from the King's Summons or Grants since none but such Cities or Towns that held of thâ— King in Capite had anciently any place in those Assemblies noâ— of them neither any other but those whom the King pleased to call And from thence proceeds that great Variety we find in the List of those Towns which send Members to Parliament But I shall omit speaking any thing farther of this at present But as for those middle inferior Thanes or Vavassours as they were afterwards called whom you suppose to have made so great a Figure in the Saxon Great Councils I do not believe that they had any Votes there and I hope I shall be able to prove to you by and by that none but the King's Tenants in Capite appeared in those Meetings from the time of William the Conqueror to the 49 Hen. III. Now if it be true as you suppose King William made no alterations in the constituent parts of the Great Council of the Kingdom after his conquest of it it will likewise follow that the same sort of persons viz. Tenants by Knights Service were the only Members of it before the conquest too But if you have any express Authorities out of our Ancient Saxon Laws or Histories to prove that the Commons appeared at the Wittena Gemotes in the Saxon times pray let us see them F. I shall perform your Command immediately but in the first place give me leave to tell you that what you have said concerning Cities and Towns not sending Burgesses to Parliament till after the Conquest is a great mistake built upon a false and precarious Hypothesis that they all held in Capite of the King the contrary of which I shall make out when I come to treat of that Question So likewise is it as precarious that none but the King's Tenants in Capite had any Votes in our Great Councils in the times immediately succeeding your Conquest till the 49th of Hen III. and that therefore it must have been so before the Conquest For as I own that King VVilliam made no material alteration in the Government of the Kingdom after his entrance so I likewise affirm that as well after as before that time if not Knights of Shires yet all Thanes the or Barons i. e. great Freeholders of England had Places in that Assembly before 49th of Hen. III. But to proceed to the Authorities you desire I shall begin with the first and most ancient General Council we have left us in the Saxon times viz. that which was held at Canterbury A. D. 605. by King Ethelbert not long after the settlement of Christianity in this Island which is recorded by Sir H. Spelman in his Brittish Councils in these Words An. Incarnationis Dominicae 685. Aethelbertus Rex in fide Roboratus Catholica una cum Beria Regina silioque ipso Eadbaldo ac reverendissimo praesule Augustino caeterisque optimatibus Terrâ— Solenitatem Natalis Domini Celebrant Cantuariae Convocato igitâ—r ibidem Communi Consilio tam Cleri quam Populi Whence you may observe that
the people then made a considerable part of the Great Council from the very beginning of the Saxon times M. Pray Sir will you give me leave to answer your Questions one by one as you go for fear I should not only forget them but also tire you with too long a Speech In the first place therefore give me leave to tell you that you are very much mistaken to suppose that by the Word Populus is here meant the common People or Vulgar Whereas when Clerus and Populus are used together in our Ancient Writers of those times it signifies no more than a Common Council of the Clergy and People or Laity and not the Common People for then the Lords or Great Men would have been quite left out of this Council as certainly they were not and so when Clerus and Populus are used together and thus contradistinguished then they are expressive of two different Estates or Conditions of Men or Christians the Clergy and Laity or secular Men and those were the Optimates Terrae the chief Men of the Land before expressed Neither was this Council held under a sole Saxon Monarch but under Ethelbert King of Kent only and that but eight years after Augustin's coming hither and above two hundred years before the Seven Kingdoms were united into one Monarchy F. I am not at all concerned at this Answer since I can prove that by the Word Populus must be here understood somewhat more than Kings Noblemen and Iudges viz. the Representatives of the Commons likewise or else the Saxon Witena-Gemotes were not what their Titles speak them to be Common or General Councils of the whole Kingdom that is of all the Estates or Orders of it there but only a Convention of the Bishops and Great Lords And therefore if the Word Clerus did then comprehend all the Clergy both Superior and Inferior i e. as well the Bishops as Abbots Priors Deans and Clerks for the Secular Clergy and Cathederal Chapters c. I pray give me a Reason why the Word Populus when put alone must be wholly confined to your Earls or chief Thanes and may not also take in the Middle or Less Thanes Freeholders or Lords of Townships and the Representatives of Cities and Burrough Towns and why not with as much reason as that the Word Populus amongst the Romans took in the whole Body of the People of Rome both Patricians and Plebâ—ians when assembled in their Comitiis Centuriatis to make Laws or create Magistrates The rest of your Argument is not very material for tho I grant this Council was held before the Heptarchy was united into a Monarchy yet I think it is very easie to prove that as all the Saxon Kingdoms consisted of several Nations of the same Language and Original so were they likewise under the same Form of Government And that Councils consisted of the same constituent Members 〈◊〉 I shall prove to you from the Kingdom of the West-Saxons from which was the Foundation of our present English Monarchy And for this I shall give you the Authority of Will of Malmesbury and H. Huntingdon who 't is highly probable had seen the ancient Histories and Records of those times and they both agree in the Relation of the Deposition of Sigebert King of the West-Saxons for Tyranny and Cruelty Anno. 754. the Words are remarkable which pray read Unde in Anno secundo ipsius Regni congregati sunt Proceres Populi Totius Regni provida deliberatione unanimi consensu omnium expulsus est a Regno Kinewulfus satus ex Regio sanguine electus est in Regem where you may observe a plain difference made between the Higher Nobility here called Proceres and the Representatives of the People here stiled Populi as also from another Authority of a Great Council held under the same King Aethelbert as it is mentioned by Roger Hoveden Domestick to King Hen. II. in the 2d Part of his Annals where among the Laws of King Edw. the Confessor and which he writes to have been confirmed by King William I. you will find under the Title de Aptbâ—â—s de aliis minutis Decimis which are there said to be given to the Clergy by former Kings and particularly by this King Ethelbert these Words Haec entâ—n Sanctus 〈◊〉 praedicavit docuâ—t haec concessa sunt a Rege Baronibus Populo So that it Populus â—ere doth not signifie an Order of Men contradistinct from the Barons or Great Lords it would have been a Tautology with a witness M. I must confess if this Authority you now urge had been as ancient as the time to which it is ascribed it would be of some weight but it appears by this Word Baronibus not used in England till after the Conquest that it was added long after that time by some ignorant Monk to the Confessor's Laws and therefore will not prove that for which you bring it viz. That the Vulâ—â—â— understood for the People or Commons in the sense they are now taken had any Place in the Saxon Great Councils But make the most of it this was but the confirmation of a Law made by King Aethelbert but how and by what Words the Legislators were expressed near 500 years after the Law was made or how they were rendred in Latin after the coming of the Normans transiently and without design to give an account of them cannot be of much Validity to prove who they were and that the Laws of King Edw. were made or at least translated into Norman Latin after the Norman Conquest appears by the Word Comites besides Barones already mentioned Militeâ— Servientes c. all Norman Words and not known here till their coming hither He that will assert any thing from a single uncouth Expression in one Case and upon one occasion only brings but a slender Proof for that he says so will any man think because 't is said in one of King Edward's Laws and perhaps no where else concerning this King's Coronation quod debet in propria persona â—â—am Regno Sacerdotio Clero jurare ante quam ab Archiepiscopis Episcopis Regni coronetur That the Priests were not Clergy-men nor the Clergy-men Priests and that the Arch-Bishops and Bishops were neither Many other uncoath Expressions do often occur in the old Monks which are to be interpreted according to the common usage and practice of the times in which they are delivered And therefore seeing before the time of the Conquest and for two or near three Centuries of years afterward the Commons as at this day understood were not called nor did come to Great Councils or Parliaments as I shall prove when I come to speak of those times So that by Barones must be here meant the Great Barons and by Populus the Communitas Angliae or which was then all one the Communitas Baronum the Less Barons or Tenents in Capite and the sense of the Words is
dispute the matter farther with you concerning the Word Populus since I shall refer speaking more about it till I come to the times after the Conquest And therefore to return to the Matter in hand Had you but read a little farther in the same Leaf in the Author you have cited you might have found who they were whom King Edward the Elder called to this Council The Words are these Edwardus Rex Synodum Praedictam Nobilium Anglorum congregavit cui presidebat Plegmundus Here your own Author tells us in few words the meaning of a long Title of this Synod now mentioned viz. that the Bishops Abbots Fideles Proceres Populus were all Nobiles Noblemen that is the Ecclesiasticks and Laies or the Bishops and Lay-Nobility as I shall make more evident hereafter and not the Vulgus Commons or ordinary sort of People And to this effect Malmsbury and the Manuscript in the Bodleian Library cited by Sir William Dugdale and Mr. Somner from the Treasury of the Records and Evidences of the Church of Canterbury cited by Sir H. Spelman do all report of this very Council That Edwardus Rex congregavit Synodum Senatorum Gentis Angloâ—â—â— cui prasidebat Plegmundus c. That King Edward convened a Synod of the Senators in the Saxon Aldermen of the English Nation that is such as were usually called to such Councils which were only the Nobles and Great men for ought yet appears from this Instance But what if after all there was never any such Synod called and consequently no such Title to it For it was said to have been assembled by reason of a chiding Letter from Pope Formosus Now this Formosus died Anno 895. that is ten years before this Council was supposed to be called F. I see this Authority galls you therefore I do not blame you to do what you can to be rid of it but I shall not give it up for all that For that this Word Populorum then signified all the Lay-persons who were actually Noblemen that is of the Greater Nobility I think is a great mistake for to what purpose are all these different Words here heapt together since the Word Proceres had donâ— as well alone in your sense and at once comprehended all those Lordâ— or Noblemen that you would only have to be there But the Word Nobiles did not in those times neither doth at this day in any other Countrey but England signifie none but Great Lords Barons or Peers since in Germany and France and other Countries every private Gentleman is Nobilis And I think the Middle or Less Thanes might then as well be called Nobiles as the Great ones And the Aldermen or other Magistrates of Great Cities and Towns might also very well be stiled Nobiles ratione officii for the time they acted in that Employment and might also deserve the Name of Senators as well as the Greater Aldermen or Earls And if there were no other Lay-Men but your greater sort of Aldermen then what becomes of your chief or Kings Thanes which you your self grant were constant Members of those Councils Nor indeed doth the Word Senator only signifie such who were Noblemen by Birth since among the Romans there were Senators of the Plebeian as well as Patrician Order as any man who hath but read Lucius Florus may quickly see But as for your Exception That there was no such Council because Pope Formosus is said to have died ten years before this Council was called it is a bold Assertion to annihilate a whole Council because of the mistake of the Date or time of its meeting or perhaps in the Name of the Pope or King then reigning especially when it was assembled upon so remarkable an occasion as the erecting of these new Bishopricks which all our Historians ascribe to this Council But I shall now proceed to another Authority and that is to the Great or Common Council held at Winchester Anno 853. where you will find in Sir H. Spelman's Councils as also in Ingulphus's History that after the Bishops Earls and other Great Men or Thanes who subscribed to the Law of Tythes granted by way of Charter there mentioned wherein these following Parties are mentioned Aliorumque Fidelium infinita multitudo qui omnes Regium Chirographum laudaverunt Dignitates verò sua nomina Subscripserunt and the Learned Commentator upon King Alfred's Life published in Latin at Oxford is so well satisfied that the Commons were meant by this Expression that he hath this remarkable Observation upon this King 's granting of these Tythes Bis videtur Rex Decimas Ecclesiae concessisse Primum Anno 844 2 vero 855. vel ut alii 854 è tota Regione cum Assensu omnium Nobilium totius Populi where this Author rightly supposes that the Words at the conclusion of this Council did comprehend the consent of the People or Commons as well as of the Lords or Noblemen Or else this reciting of this Word Populus as distinct from the Nobiles had been altogether in vain So that tho I do not affirm that the meer Vulgar or Plebeian sort of People did appear personally in the Great Council of those times any more than they do now yet they were there by their Representatives viz. either by Knights of Shires as now or else the chief Thanes or Freeholders of the Kingdom as also by the Aldermen or chief Burgesses of great Cities and Towns who I suppose did then represent those Politick Bodies since all men could not appear there in person But I shall give you another Authority out of the same Author viz. Arch-Bishop Parker's British Antiquities where when he relates the calling of the Council of Calne for the turning of Married Priests out of Monasteries and Cathedral Churches and putting Monks into their places He tells us a remarkable Accident that then happened viz. The falling down of the Room where the Council was assembled So that there fell together all of a sudden pray take the words themselves out of the Authors there cited Praesules Proceres Equites Nobiles pariter Ignobiles Corruerunt So that you see here were other sorts of men present in this Council beside the Prasules i. e. Bishops and Abbots and the Proceres i. e. the Earls and chief Thanes viz. the Knights or Inferior Thanes Noblemen or Gentlemen as also Ignobiles those that were not Noble by Birth such as were the Representatives of Cities and Burroughs and of this opinion the Arch-Bishop himself seems to be for at the end of this Relation he makes this Remark Sed nec hujus domus in qu◠〈◊〉 Ordinum tam Conspicui Clarique viri Consulto Convenerunt tam repentina ruiâ—â—â—pe Diabolica carere potuit Where by Omnium Ordinum he must certainly mean the three Estates of the Kingdom in the same sense as the word Ordines is used by Camden and other Latin Writers who call our Parliament Conventus Ordinum that
Lords or Peers of Parliament and that the rest being the lesser or lower Tenants in capite sometimes stiled Barones minores were for some time before this summoned by general Writs directed to the Sheriffs or Bayliffs as appears by King Iohn's Magna Charta Now whether these men were ever really Peers or not I have reason to doubt since I do not find but it was they alone who for some years after the Conquest served upon Juries in County Courts and dispatched all the publick business of the Country which was then as at this day a drudgery beneath the Peers to perform and therefore I shall not insist upon it But thus much I think is certain That they were a sort of persons much above any other Lay-men of the Kingdom since they held their Estates immediately from the King and were so considerable as that by the Constitutions of Clarendon they were not to be Excommunicated without the King's leave and so were then in some sort of the same Order ratione Tenurae with the great Barons or Peers being commonly stiled Barones and made up but one Estate or Order of Lay-men in Parliament And from thence I suppose proceeds that common Error of Sir Ed. Coke that the Lords and Commons did anciently sit together and made but one House Now if you have any thing to object against this Notion pray let me hear it F. I think you and I are come pretty near an issue in this question for you confess that these lesser Tenents in capite and whom you comprise under the word Barones were not truly and properly Barons and so far you are in the Right but yet you will have them to be somewhat more than mere Commoners as if there had been some Degree or Order of men in England in those times who were neither Lords nor Commons but an Amphibious Race between both But to prove that they were indeed no more than Commoners and not Lords nor Peeâ—s at all nor equal with them we need go no farther than their way of Trial in cases of Treason or Felony which was by mere Commoners who were not Tenants in capite as well as those that were so that a person who was no Tenant in Capite and might serve upon a Jury of Life and Death upon them and as well as the Dr. in his Answer to Mr. P. as you asserted that they only served in the Country upon all Iuries and that before the time of King Iohn So after all this noise of none but Lords and Tenants in capite appearing for the whole Commons of England we find by your own showing that three parts in four of the Lay Members of that Council were as meer Commoners as our Knights of Shires and Barons of the Five Ports at this day nor can I see any reason why these latter might not be as well comprehended under the Word Barones as the former who were meer Commoners likewise if we consider that it was neither Nobility nor Birth nor the King's Writs of Summons but only the meer Tenure of their Lands that gave them a particular right to a Place in that Assembly in those Ages or if a meer Citizen could get Money enough to purchase such an Estate in capite he was as good a Member of Parllament as the best of them all So that the Question then amounts to no more than this Whether the Commons of England were then represented by Tenants in Capite or by Knights of Shires and others as they are now But since you will have none Commoners but Tenants in capite to have had places therein pray tell me whether you allow that Priviledge to all who held in capite or not M. Yes I allow it to all who held in capite by Knights Service and who also enjoyed a whole Knight's Fee or so much as was sufficient to render them able to sustain the Dignity of that Place not but that the King had also a prerogative of summoning or omitting whom of them he pleased to his Great Council or Parliament till the Less Tenants in capite thinking it a wrong to them it was provided by King Iohn's Charter that all of them should be summoned by one General Writ of Summons directed to the Sheriff But I exclude from this Concil all Tenants by Petit Serjeanty who tho 't is true held of the King in capite yet was it not by Knights Service So likewise I exclude all Cities and Towns tho the Citizens or Burgesses of divers of them held their Lands and Tenements by that Tenure since being neither noble by Blood nor having Estates sufficient to maintain the Port of a Gentleman or Knight they had no Right to appear there in Person among the other Tenants who were owners of one or more Knights Fees Yet do I not affirm that the Commons were not after some sort represented in Parliament by their Superior Lords tho not as Commoners since the Bishops Abbots and other Barons did then make Laws and give Taxes not only for themselves but their Feudatory Tenents also tho of never so great Estates and Tenure in capite was then looked upon as the only true Freehold of the Kingdom and the Tenents by it as the only true Freeholders F. I shall shew you by and by the falsity of this Notion but in the mean time pray tell me when a Great Council or Parliament was called who represented those Persons who you say did not appear there and made General Laws and granted General Taxes for themselves and the whole Kingdom when there was occasion For I see you shut out the greater part even of these your true Freeholders from this Assembly M. As for the Tenents in Petit Serjeanty I at present conceive tho I am not sure of it that many of them might hold Lands and perhaps divers Knights Fees by Grand Serjeanty or Knights Service also since those Estates which were given by the Conqueror to his Servants to be held of him by such and such Petit Services might in process of time fall by Purchase or Descent into the hands of such Great Tenents in capite as had sufficient Estates to maintain that Dignity and as for the rest they might for ought as I know before the Statute de Tallagio non concedendo have been taxed by the Kings Writs according to the proportion of the Knights Fees or parts of Knights Fees which they then held and according to the Rate of the Sums imposed in Parliament either by way of Aids upon every Knights Fee or else by way of Subsidy by so much a yard or Plow Land throughout all England which has been the only way of taxing ever since that of Knights Fees hath been disused F. Then I find after all you have said that scarce half your Tenents in capite had any Votes in Prrliament either by themselves or their Representatives and so having Laws made for them and being taxed at the King's Will were as
errant Slaves and Vassals notwithstanding their Tenure in capite as the meanest person of the Kingdom who was taxed as you would have it at the Will of his Superior Lord which whether so great and powerful a Body of men would ever have sufferd I leave to any indifferent person to judge M. I grant this may now appear somewhat hard yet since it was the receiv'd Law and Custom of the Kingdom it was not then look'd upon as a grievance and it was then no more unjust than it is now that persons under forty Shillings a year tho of never so good Estates in Money or Stock or that Tenants for years or for the Life of another should at this day have no Votes at the Election of Knights of Shires and consequently be without any Representatives in Parliament of their own Choice and yet be subject to all Laws and Taxes tho never so great when made and imposed by the King in Parliament And I am able to give you divers good Authorities to prove that even London it self and all other Cities and Towns which held of the King in capite and were called his Demesnes were often taxed by the King and his Council out of Parliament before the Statute De Tallagio non concedendo And I think Dr. B. hath proved this beyond exception in his Animadversions upon Mr. A's Iani Anglorum facies noâ—e and he there gives us the Record it self of 39 Hen. III. now in the keeping of the King's Remembrancer of the Exchequer That the King did that year as he had divers times before Talliate or Tax all his Demesne Lands in England and then likewise demanded of the City of London the sum of 3000 Marks in name of the Talliage or Tax so laid And the Mayor and Citizens at last yielded after a great Contest It appearing upon search of the Rolls in the Ezchequer that the Citizens of London had been several times before so taxed in the Reigns of King Iohn and the King himself and so they payed at last the Sum which the King demanded By which you see that the greatest and richest Cities and Towns in England were taxed at the King's Will nay I think I am able to prove were it now necessary that the whole Kingdom was often taxed by the King and his Council only before the granting of King Iohn's Magna Charta and the Statute de Tallagio non concedendo above mentioned But to return to the Matter from which you forced me to digress I think nothing is more plain than that our Ancient Parliaments were only the King's Court Baron for the dispatch of the Publick Affairs of the Kingdom and in which as in the Lesser Courts Baroa or Courts of Mannor the Suitors or Tenents were together with the Lord or his Stewards the sole Judges So that at first after the Conquest it belong'd to the King alone as the Supreme Lord of the Kingdom to appoint or call which or what sort of those Tenants be pleased to attend him with their Aid and Advice at his Common Councils or Parliaments And I think nothing is more evident as I shall prove more at large from our Ancient Histories Records and Statutes then that before the 49th Hen. III. and some years also after that time none but the Bishops Abbots Earls and Greater Barons and some of the Less called in King Iohn's Charter the other Tenents in capite then constituted the whole Body of the Parliament under â—he Titles of Baronagium Angliae or Communitas or Universitas Baronagii Angliae And for this I can give you so good Authorities that nothing but more cogent and evident Proofs can bring me from this Opinion And therefore I must tell you I do not value those loose and inconsiderate Expressions of Historians either before or after that time F. I see the Testimonies of Historians are of no credit if they make against your Hypothesis but I shall show you your Mistakes about the King's Taxing anon but the main force of your Argument lies in the signification of those Latin Words you have last mentioned and which I must needs tell you I think you take in too strict a sense For first as to the Word Baro I grant it was not much in use before William I. obtained the English Diadem Baro says Camden Britanni pro suo non agnoscum in Anglo-Saxonicis legibus nusquam comparet nec in Aâ—frici Glossario Saxonico inter dignitatum vocabula habetur For the English Saxons called those in their own Language Aealdermen which in Latin were named Comites and by the Danes Earls but it was of so extensive an import in its signification that we read of Aldermani Regis Aldermani Comitatus c. as I have already shewed you So that according to the strict Sense of this Word we had whole Regiments of Earls whose Titles seldom if at all descended Hereditary till the Confessors Time and after William I. the Saxon Words Aealderman and Thegnes began to be changed and in the room of Aldermanni Thani we find Comites Barones as in all our Ancient Laws and Histories Nor was the Word Barones only taken in those days for Great Barons and Tenents in capite but also for the Inferior Barons or Free Tenents which held great Estates of other Mesne Lords as well as of the King by certain Services and to whom the Great Lords or Earls as Sir H. Spelman shews us in his Glossary Title Baro often directed their Charters Barombus Fidelibus nostris tam Francis quam Anglis and we there also read some Quotations from the old Book of Ramsey Abby wherein the Barons of the Church of Ramsey as also the Milites and Liberi homines thereof are particularly mentioned all which as this Learned Author tells us non de Magnatibus sunt intelligenda sid de Vassallis feodalibus note Scil melioris And the same Author says a little lower that Barons are often taken pro liberè Tenentibus in genere hoc est tam in Soccagio quam per servitium Militare M. What then do you suppose that all the Freeholders in England by whatsoever Tenure they held appeared in Person in Parliament before the time Sir H. Spelman in his Glossary and Dr. B. Assign for the summoning of the Commons to Parliament At this rate every Yeoman or Petty Freeholder was a Baron so that this Assembly might then consist of above 50 or 60 Thousand Persons Since Spot in his Chronicle tells us that William the Conqueror reserved to himself the service of about 60000 Knights Fees which by the time I suppose might have been divided into many more lesser ones by Co-heirship or by sale and otherwise parcelled out by the King's License into Half-Knighs-Fees Third Part of Fees Fourth Part of Fees Eight Parts Sixteen Twenty Thirty and Forty Parts of Fees and so have been increased into as many more And these besides the Tenants in
Soccage must needs have been so numerous that what Room nay what Field or Place was able to contain so great a Multitude Or how could any business have been transacted therein without the greatest confusion imaginable F. So then you your self must also grant that when all your Greater and Less Barons or Tenents in capite appeared in Person Parliaments were much more numerous than they are now since according to the Dr.'s Catalogue out of Dooms-Day-Book in his Appendix to the English History Vol. 1. of all the Tenants in capite or Serjeanty that held all the Lands in every County of King William they did besides the Bishops Abbots Earls and Barons altogether amount to about 700. and these in the 49th of Hen. III. by forfeiture and new Conveyances from the Crown or by those other ways you have now mentioned might be multiplied into twice as many more and those also of sufficient Estates to maintain the Port of a Member of Parliament or Knight Since 15 Pounds a year was in the Reign of King Iohn and Henry III. reckoned as a Knight's Fee and he that had it was liable to be Knighted And if so I pray according to your own Hypothesis how could so great an Assembly be managed as of about 3000 or 4000 Persons without strange confusion and disorder but upon our Principles there will follow no more Absurdities or Inconveniencies than in yours for either these Barons of Counties Burgesses and Inhabitants of Towns and Cities were always represented by Knights and Citizens as they are now or else these Barons of Counties appearing for themselves were Lords of Mannors or Freeholders of good Estates who were not so numerous or inconsiderable as you imagine the Freehold Lands in England being in those days but in a few hands in comparison to what they are now And for this Opinion I have Sir H. Spelman of my side who in the place already quoted under Barones Câ—â—itatus expresly tells us Hoc nomine contineri videtur antiquis paginis omnis 〈◊〉 â—eodalium specier in uno quovis Comitara degentium Proceres nempè 〈◊〉 Domini nèc non liberè quique Tenentes hoc est fundorum proprietarii Anglicè Freeholders ut Superiù◠dictum est Normidum autem est hoc liberè Tenentes nec tam â—iles 〈◊〉 fuisse nèc tam Vulgares ut hodiè deprehonduntur nam villas Dominia in 〈◊〉 Hareditates non dum distrahebant Nobiles sed ut vidimus in Hibernia penes se retinentes agros per precarios excolebant adscriptitios So that you see Sir H. Spelman then believed that the Mannors and Great Freehold in England were not then parcell'd out into so many small Shares as you imagine and that such Inferior Barons whether they held in caâ—â—â—e or not were also called Proceres see the Laws of Henry I. Chap. 25. the Title whereof is de Privilegits Procerum Angliae The law runs thus Si exurgat placitum inter homines allcusus Baronum foenam habentium tractâ—tur placitum in Curia Domini sui Now that this Socha was no more than Soc. in old Saxon see Spel. Gloss. Tit. Soc. i. e. secta de hominibus in curia Domini secundum consuetudinem so likewise in Titulo Socha vel dicitur Soc. a Saxon socâ— i. e libertas Franchesia vide manerium qd dicitur etiam Soca dictum est From all which we may observe that these Lords of Mannors here called Proceres Barones had Court Barons which took their Name from their Lords tho Feudatory Tenents or Vavaâ—ours But granting that about the end of King Iohn or beginning of the Reign of Hen. III. Supposing that these Lords of Mannors and Great Freeholders whether Tenents In capite or others might amount in all to 5 on 6000 persons I do not see why such an Assembly might not be as orderly and well managed as one of 1000. or 4000. supposing your Greater Barons and Less Tenants in capite to have than made about that number especially if we consider that most business or Acts of any consequence and for which Parliaments were called might be prepared and drawn up by the King and his Council before they met So that take it which way you will fewer Inconveniences and Improbabilities attend my Hypothesis than yours M. That the Earls and Greater Barons both Spiritual and Temporal together with the Tenants in capite then made the Body of the Baronage of England I have very good Authority on my side but that any Feudatory Barons or Tenants of a Lesser Degree ever had any Places or Votes in those Assemblies I think you can give me no sufficient Authority for it 'T is true Mr. P. in his Treatise of the Rights of the Commons asserted gives us two Modern Quotations the one out of Mr. Câ—â—den's Britannia the other out of Mr. Selden to prove it As for the former it is in the Introduction to the Britannia first published in Quarto The Words are these Verum Baro ex illis non imbus videatur qua tempus paulatim moliara molliora reddidit nam longo post tempore non Milites sed qui liberi erant Domini Thani Saxombus dicebantur Barones vocari caperunt nec dum magni honoris erat paulo autem postea meaning after the Normans entrance eò honoris pervenit ut nomine Baronagii Angliae omnes qâ—â—dammodo Regni ordines continerentur But he doth not tell us that this Learned Author in his last Edition of this Work in Folio being sensible of his mistake hath added the Word Superiores before Ordines whereby it is plain he now restrains it only to the Earls and Barons as they are now understood Mr. P's other Quotation is out of Mr. Selden's Notes upon Raâ—â—â—rus where commenting on the Word Barones he saith Vocabulum nempe alio notione usurpari quam vulgo neque eos duntaxat ut hodie significare quibus peculiaris ordinum Comitiis locus est but then conceals this that follows which makes directly against him Sed universos qui Regiae munificentiae ad formulam Iuris nostre Clientelaris quod nullius Villae Regiae glebam sed ipsum tantum modo Regem spectat Tenure en Chief Phrasi forensi dicimus sive Tenura in capite lati fundiâ— pessidebant whereby you may see that he expresly restrains this Word Barones to Tenents in capite only tho your Author takes no notice of it Nor indeed in his Title of Honour doth Mr. Selden give us any other Description of a Baron I mean such who had a Vote in Parliament but such in the Sense that is taken in Henry I. his Charter as it is recited in Matt. Paris Siquis Baronum meorum Comitum vel aliorm qui de me tenent mortuus fuerit i. e. One who was either one of the Earls or Greater Barons or otherwise held in capite F. Mr. P. is not at all to be blamed as you make him
in these two Quotations since in that out of Camden you cannot deny but he hath truly quoted that Author as it was in his First Edition and if he afterwares altered it it may very well be questioned whether he did not add the Word Superiores rather out of fear of displeasing the Greater Nobility whom that Quotation had before Shockt than out of any sense of his being in the Wrong as it appears by the Words immediately following when he tells us out of a nameless Manuscript Author That Henry III. out of so great a multitude of Barons which was seditious and turbulent called the best and chiefest of them only by Writ to Parliament By which it plainly appears that he supposed all those Less Barons or Tenants in capite tho no Lords as now understood who were thus excluded to have been only Nominal and not Real Barons and if so Commoners or else he must extend the Peerage of England to at least Three or Four Thousand Persons For so many Tenents in capite might very well be at that time The same I may likewise say as to the Quotation out of Mr. Selden for by the Words quibus peculiaris in ordinum Comitiis locus est 't is plain he supposed that all the rest of those Tenents in capite were but meer Commoners yet he no where affirms that none but these appeared in Parliament for all the Commons of England for he very well knew the unreasonableness of that Supposition Since besides these Barons or Tenants in capite Bracton in his first Book tells us of divers other Orders of Men of Great Dignity and Power in this Kingdom about the time when you suppose this marvellous Alteration to have happened His Words are these Et sub iis viz. Regibus Duces Comites Barones Magnates sive vavassores Milites etiam Liberi Villani deversa Potestates sub Rege constitutae and a little farther sunt alti Potentes sub Rege qui dicuntur Barones hoc est Robur belli sunt alii qui dicuntur Vavassores viri 〈◊〉 Dignitatis From which Words I desire you to observe that he here makes the Magnates and the Vavassores or Feudatory Tenants to be all one and also ranks them before the Milites Now whether these Vavassores and Milites who did not all hold of the King in capite were men of so great Dignity and Power as these whom he here reckons immediately after the Earls and Great Barons should have no Votes in Parliament neither by themselves nor their Representatives is altogether improbable And agreeable to this of Bracton Du Fresne in his Lexicon Tit. Vavasor tells us that Vavassorum duo erant ordines sub majorum apellatione implectuntur qui Barones apellantur sub â—norum vero quos vulgò Vavassores dicunt ut leges Henrici I. Reg. Ang. Thaines minores respectu Thainorum majorum qui Baronibus aequiparantur But that these Lesser Thanes or Vavassors were also stiled Barones Sir H. Spelman tells us expresly in his Glossary Tit. Baro etiam Barones Comitum Procer umque hoc est Barones subalterni Baronum Barones sâ—pissime leguntur and of this he gives us many Examples and particularly of the Chief Tenants of the Abby of Ramsey above mentioned So likewise the same Author a Leaf or two farther speaking of the Barones of London mentioned in the Charter of King Henry I. understands them pro civibus praestantioribus qui socnas suas consuetudines i. e. Curias habuerunt Privilegia eorum instar qui in Comitatu Barones Comitatus dicuntur c. Nor did this Title of Barones extend to London alone but he also immediately tells us in the same place Sic Barones de Ebaraco de Cestria de Warwico de Soe Feversham plurium Villaram Regiis Privilegiis insignium cum in Anglia tum in Gallia c. and that Barons of Counties were no more than Lords of Mannors I have just now proved for Socna means no more than a Court Baron or Court of a Mannor So that here arises a plain distinction between the Barones Regis the King 's Great Barons or Tenants in capite and these Lesser Barons we now are here speaking of called Medmesse Thegnes and Burgh Thegnes by the Saxons till they 〈◊〉 on the Word Parliamentum to signifie the Common Council of the Kingdom who tho no Peers yet were Barones Regni Barons or Noblemen of the Kingdom according to the general acceptation of the Word Nobiles in that Age and is such made up the Body of the Baronage called by Matt. Paris and other Authors Baronagium or Communitas Baronagit totius Angliae M. I see you do all you can from the equivocal use of the Word Barones to croud in new and unknown men into the Great Council of the Kingdom viz. your Barons of Counties Cities and Towns whom since you dare not affirm there were then any Knights of Shires you suppose to have served instead of them and these you would have to be not Barones Regis but Regni or Terrae forsooth i. e. of the Land or Kingdom whereas we never had any True Barones held by mean Tenures here in England this if you deny you must deny all History and all our Ancient Laws and Law-Books too and if you grant it you must confess that every Baron was a Tenant in capite and by your own Concession he must then be the King's Baron or Baro Regis I grant indeed there were Nominal or Titular Barons such as you mention many in those Times such as were Tenants to Great Lords Bishops or Abbots of whom we find frequent mention in our Ancient Histories Records and Charters But these are not the men who had ever any Place in our Great Councils and I desire you would prove to me that ever they appeared there before the Times I assign and I would also have you inform your self of the Gentlemen of whom you borrow this Notion if they can prove that there were any such kind of Tenure as Tenura de Terra or de Regno or whether there was ever any man that held an Estate de Regno Whether forfeitures or Escheats were to the Kingdom And whether Fealty was sworn or Homage done to the Kingdom Or whether an Earl was invested or Girt with the Sword of the County by the Kingdom Or whether the ancient Ceremonies used at the Creations of Earls and Barons were done by the Kingdom Thus all the Barons of England held of the King and thus all these things were performed and done to our Ancient Kings and by them which are most manifest Notes of the King 's immediate Jurisdiction over the Barons and that they were his Tenants in capite and by consequence his Barons only which you cannot deny and of which Tenants in capite the Earls and Greater Barons always created by Investiture of Robes or other Ceremonies were summoned by particular Write
and the other Less Barons or Tenants in capite ever since the 17th of King Iohn were summoned by one Common Writ directed to the Sheriff of the County since which time if not some time before I grant these Tenants in capite were not look'd upon as Barons or Peers of the Kingdom properly so called Yet did their Votes in Parliament still conclude and charge their Tenants in the making and imposing of Taxes or Laws which they alone together with the Bishops and greater Barons still performed until the Times I assign F. I see you are in a Wood and do not know well under what Class to rank your Tenants in capite for if they were at first all Lords or Peers how could they serve upon Juries in Hundred or County Courts If they were meer Commoners then there were Commons in Parliament before the 49th of Henry III. and why might not others as considerable Commoners have Places in the Great Council as well as they whether they were the Kings Barons or Tenents in capite or not But in answer to this you tell me that we never had any Barons held by mean Tenure here in England this is plainly equivocal for if you mean it of Baronies in capite it is true if of other Baronies it is false by your own Confession And Sir H. Spâ—lman tells us in the Title last quoted that the Barons of Burford pleaded to hold of the King per Baroniam and yet he was never any Baron of the Kingdom Now I desire you to shew me if he and such like Barons as himself had no place in Parliament who it was represented them there And therefore in answer to your Dilemma I grant that every Baron by Tenure was a Tenant in capite but every Tenant in capite was not a Baron and this I think is so plain that you your self cannot deny it But in answer to your next Question I can answer it without asking the Gentleman from whom you suppose I borrow the Notion that there might be other Barons or Lords of Mannors who by reason of their Estates might have Places in Parliament supposing Knights of Shires were not introduced till after Henry the II. or King Iohn's Time when such Freeholders became too numerous all to appear in person and yet these might not be Barons by Tenure And therefore all your Questions conclude nothing For you suppose that which is still to be proved That because all the Barons of England properly so called held of the King in capite and were consequently his Barons that therefore none but Bâ—rons and Tenants in capite had any place in our Great Councils which is the thing you only suppose and I as positively deny M. Well Sir since you put it to that issue I hope I shall fully convince you that none but the Persons I have mentioned were the constituent Members of the Common Council or Parliament before 49th Hen. III or 18th Edw. I and who done gave assent to all Laws that were made and all Taxes that were to be imposed on themselves and their Under-Tenants who were then concluded by the Acts of their Superior Lords But not to wrangle with you any longer about the signification of the Word Barones I grant there were Nominal or Titular Barons very many such as I have mentioned nay that there were several other Great Subjects who had Tenants that held 5 6 7 8 〈◊〉 nay more Knights Fees under them and who had the Name and Title of Barons But what is this to the purpose I desire you would prove to me by any direct proof that these sort of men had any Voices either by themselves or their Representatives in our Great Councils till after the time we allow them and this besides the Proofs I have already brought I think is sufficient Since it is plain that the Barones Regni or Terra and the Milites and Homines sui are all one and the same Persons that is they were the King 's Great Barons or Tenents in capite who alone constituted the Baronage or University of the Baronage of England or of the Kingdom in our Great Councils or Parliaments And for the farther proof of this I need go no farther than those very Arguments your own Author Mr. P. hath made use of in his Right of the Commons asserted wherein he would prove from certain Letters that were sent from the Baronage or University of the Baronage of England to the Pope against the Church of Rome's Exactions here in England And therefore I shall not bring only Fragments Phrases or single Words out of the Records or Histories which seem to countenance my Opinion contrary to the true meaning of those Records and the sense of the Historians as some of your men do but shall give you the Quotations out of those Authors whole and entire and shall make such reasonable Deductions from them as I think you will have no reason to deny to be fairly raised from the Words themselves And also as Matt. Paris relates in the 29th Hen. III. the Earls and Barons sent Letters to the Pope then at the Council of Lions to complain of the Pope's Exactions which Letters are said by this Author to be directed A Magnatibus Universitate Regni Angliae And tho it is also true that in the same Year there were other Letters sent thither from the same Parties to the Cardinals there assembled which are recited by the Old Manuscript to have sent Messengers to the Cardinals and the Old Manuscript in the Cottonian Library that they sent to the Cardinals assembled at the Council of Lyons Letâ—ers a Baronibus Militibus universis Baronagii Regni Angliae per procuratores 〈◊〉 Rogeram Bigod Comitem Norff. Willielmum de Cantelupo Iohannem silium Galfriâ—â—â— Radulphum filium Nicholas Philippum Basset Barones Procuratores Baronagii Angâ—â—â— tunc temporis Innocentio Papa Quarto celebrante Concilium ibi generale Anno Gratia 1245. And the Letters are thus directed Venerabilibus in Christo Fratribus uniâ—â—sis Singulis Dei Gratia Salutem Barones Milites Universitas Baronagii Regis Angliae And that Matt. of Westminster does likewise agree in this Relation only stiles the Persons last named Milites whom Matt. Paris calls Viri Nobiles discreti But this will make no difference as I shall shew you by and by And to these Matt. of Westminster adds Mr. William Powic Clark who seems to have been their Secretary But notwithstanding it will appear that all these Persons so sent named Barones Milites universitas Baronagii did not represent the Commons of England at all but only the Great Earls Barons and Tenants in Capite For first it appears from Sir W. Dugdale's Baronage of England that every one of the Persons here named was either an Earl Baron or Great Tenant in capite and nâ—â— Common Persons as your Author would have them And tho it true the Cottonian Manuscript
answer it I confess it appears very specious at first sight but what if I shew you that this Letter was written by the Lords only from Lincoln after the Commons had been dismissed from thence by proâ—ogation or Adjournment For tho it is commonly story'd but erroneously that this whole Parliament or at least the Temporal Lords and the Commons wrote to the Pope concerning the Jurisdiction and Superiority of the Kings of England over the Kingdom of Scotland Yet it cannot be so for this Parliament met on the Octaves of Hillary or the 20th of Ianuary and sate but eight days the Writs for the Commons Expences bear date Ianuary the 30th of the same Year and the Letter to the Pope signed by the Temporal Lords for themselves and the whole Community of the Kingdom of England is dated Feb. 12 th next following at Lincoln after the Commons had been discharged 14 Days So that you see the Barons still continued to stile themselves the Community of England and both Spiritual and Temporal Barons and other of the King's Council did stay and dispatch much Business after all others were dismissed according to the Tenor of the there recited Proclamation and may be fully proved from the Proceedings of that Paâ—liament as they are to be found in Ryley's Plâ—cita Parliamentaria So that nothing seems plainer to me than that the whole Community of England for whom the Barons there named set their Seals to that Letter you mentioned were the Community of the Barons only F. I confess Mr. Pryn in his Animadversions upon my Lord Coke's 4th Institutes was the first who started this Objection That the Commons could not be present as parties to this Letter Yet he still supposes that the Lords who stayed behind and made a kind of a Great Council at Lincoln signed it not only for themselves but for the Commons also tho not actually there and is not so extravagant as your Dr. to suppose that by the Words in this Letter Tam pro Nobis quam pro tota Communitate c. are to be understood the Community of Barons only for that would have been a Tauâ—ology indeed For so the last Word Communitas c. would have signified no more than that they subscribed for themselves and themselves and that the Word Cummaâ—â—tas Regni which I can prove to you by many Examples did then signifie the Commons of England must here mean more than your Community of the Earls and Barons For pray take notice that the Tenants in capite had now by your own concession left off to appear in Parliament in a Body as being now represented by the Knights of Shires c. So that Sir Edward Coke very well observes in his Fourth Institute that this Letter was sealed by above 104 Earls and Barons by the assent of the whole Commonalty in Parliament and Mr. Pryn is so far convinced of this in his exact History of Papal Usurpations that he â—tiles this Letter The Memorable Epistle of the Earls Barons Great Men and Commons of England c. But to shew you farther that there was no change neither of the constituent parts of our Ancient Parliaments nor of the Terms by which they are expressed our Ancient Records appears by a Plea among Mr. Ryley's printed Pleas of Parliament in 35th of Edw. I. where it is recited that in a Parliament at Carlisle Will. de Testa the Pope's Clerk was impeach'd per Comites Barones alios Magnates Communitatem totius Regni concerning divers new and intolerable Grievances laid upon them by the Pope Where you see there is no change of this Word Communitas after the Commons were as you suppose certainly present in this Parliament and why the same Word should not signifie the same thing in the beginning of this King's Reign as well as now you had need give me very good Authority to prove the contrary against such clear evidence as this But this Record goes on and farther recites that these Letters were sent to the Pope Ex parte Communitatis praedictae and in which Clerus Populus dicti Regni set forth the said grievances to the full Now as the Word Clerus here expresses all sorts of degrees of Clergy as well Superior as Inferior represented in Parliament and Convocation so much Populus here signifie the Laity of both Orders as well the Commons as Lords since the Commons were certainly present at this Parliament and why the Word Populus should not signifie the same thing long before I can see no Reason for it but the Dr.'s bear Assertion And as for what you say that the Commons could be no parties to this Letter because it appears by the Writs of Expences that they were discharged before this Letter was written admitting it were so it makes nothing against my Assertion For why could not the Commons agree upon the Substance of the Letter and leave the Lords to draw it up and subscribe it for them after they were gone home And that it was so appears by the Letter if self which recites That the King had caused the Pope's Letter In medio or pleno Parliamento exhiberi ac scriose nobis fecit exponi unde habito tractatu deliberationâ— Diligenti super câ—â—tentis in literis vestris memoratis communis concors unanimus omnium singulâ—râ—m consensus suit c. Now every one knows that understands any thing of Parliamentary Affairs that when any thing is said in an Act of Parliament or other Record to have been agreed upon in full Parliament that is always understood to have been done all the Estates being there present Nor can I see any reason why this Letter should not be called the Letter of the Commons as well as of the Lords since the very Statutes of that Age were often said to have been assented to by the Commons tho it is clear they were not drawn up into form till after the Parliament was dismissed But that the Commons were certainly parties to this Letter appears by a Record of the beginning of Edw. III. time printed by Mr. Pryn keeper of the Records of the Tower and which he tells us he found among the Rolls in the White-Town which Record contains the Heads of a Defence compiled by the King's Council in order to a stronger Defence against the Pope's taking cognizance in the Court of Rome concerning the King of England's Superiority over Scotland in the conclusion of the 2d of which Records there is a remarkable Article relating to this very Letter now before us in these Words Item ad finem quod Nobiles Regni Angliae Procuratores Crâ—munitatis subditorum Regni praedicti admittantur per ipsum Domiâ—â—â— Regem ad hujusmodi defensiones propenend prout corum Antecessores ab Avo Dicti Domâ—â—â— Regis nostri â—rant admissi Now to what Transaction of this kind in the Reign of Edw. I. this King's Grandfather can this passage
Praesentibus Clero Populo cum Magnatibus Regionis which pray let us put into English and see if it will not prove what I say viz. the Clergy and People being present with the Great Men of the Kingdom Now if the Word Magnates as you affirm did then comprehend all the Barons and Tenants in capite to what purpose is the Word People put here as a distinct Member of this Parliament But to shew you father that this Word Populus is not always to be understood for the whole Body of the Laicks but Lords and Knights of Shires 〈◊〉 shall shew you out of Walsingham Anno 1297. 24th Edw. I. where he mentions a Parliament held at St. Edmundsbury In quo a Civitatibus Burgis concessa est Regâ— Octava a Populo vero reliquo duodecima pars Bonorum Where by Populus 〈◊〉 not only meant the Peers but Knights of Shires or Grands des 〈◊〉 also M. I am not prepared at present to answer all the Queries and Difficulties that you can make or raise against the Dr.'s Arguments yet I think I am able to give you a very satisfactory answer why all Tenants in Soccage should be bounâ— by the Acts of those of whom they held their Estates For since as I have a ready proved all the Land in England except what belong to Religious Houses was granted out by King William the Conqueror to be held in capite by Knights Service and was again granted out by these Head-Tenants to their Feudatory oâ— Mesne Tenants by the like Services there being very few Lands granted in Free Soccage at the first And tho it is true that in process of time maâ— of those Estates and Lands became Free Tenements or were holde in Soccage that is were Freeholds yet the Lords still retaiâ— the Homage which in the Times we speak of was no idle insignificant Word and by that a Dominion over the Estate whereby upon Disobedience Treachery or Injury done to the Lords the Lands were forfeited to them and theâ— neither the Lands nor the Tenants to them which were termed Freeholderâ— were subject to any base Services or servile Works yet the Lords had still great power over these Tenants by reason of their doing Homage to them 〈◊〉 â—o nominè their Lands were many ways liable to forfeiture and therefore it waâ— but reason that the Chief Lords being Tenants in capite should conclude that Tenants in Soccage also and both make Laws and give Taxes for them without their being at all privy to it But admitting I grant that before 49th 〈◊〉 there were in some sense Commons in Parliament tho not as Knights Citizen and Burgesses chosen by the Common People as their Representatives Yet 〈◊〉 it not destroy mine or the Dr.'s Assertion who in the Introduction before the Answer to Mr. P. only affirms That before the 49th aforesaid the Body of the Commons of England or Ordinary Freemen as now understood or as we now call them collectively taken c. had any share or Votes in making Laws unless as they were 〈◊〉 presented by the Tenants in capite F. Be it so But I am sure in many places of the Dr's Booâ— he absolutely denies that there were any Commons in Parliament till the Time he Assigns But as for what you alledge in answer to my Queries how Tenants in Soccage could have Laws made for them and Taxes laid upon them 〈◊〉 â—heir Lords or Tenants in capite your answer is wholly grounded upon mistakes For in the first place King VVilliam did not grant all the Lands in England to be held of him by Knight's Service since as I shall prove hereafter there were many subordinate Tenants to Bishops Abbots and other Great Lords who never forfeited their Estates at all nor were disseiz'd of them by your Conqueror â—ad who had also great numbers of considerable Freeholders under them as in 〈◊〉 at the greatest part of the Land was Gavelkind which was Soccage Teâ—re In the next place neither were all the Lands he bestowed upon his Followers granted to be held by Knight's Service since you your seâ—f own that a great deal â—land was given by him to his Inferior Servants to be held by Petit Serjeanty and besides this a great deal of other Lands was regranted by that King himself 〈◊〉 some of those old Proprietors who had been dispossessed to be held in Soccage is appears from Fleta who speaking of these sort of men says expresly In 〈◊〉 maneriis seilicet Regis erant liberi Hemines Labâ—ri Tenentes quorum quidaâ—i 〈◊〉 per Potentiores a Tenementis fuerant ejecti eadem post modum in Villenagium tenenâ—â— resempserunt quia hujusmodi Tenentes cultores Regis esse dâ—gnoscuntur provisa 〈◊〉 quiet ne sectas facerent ad Comitatum Vel hundredum c quorâ—m â—â—gregationem tunc Soccam appellarent hinc est quod Sokemanni bodie dicunâ—â— c. Where you may see that these Socmen or Soccagers were then created by a â—ew Tenure from this King Nor did all the Tenants in capite grant their Lands â—o others to be held by Knights Service since they as well as the King did at first 〈◊〉 also in process of time grant Lands to the Old English Proprietors to be held of â—â—em in Soccage nor was Homage the proper or only Badge of Soccage Tenure but â—ealty unless the Land had been held by Knights Service at first as you may see in Littleton's 2d Book Sect. 118. Nor did this Soccage Tenure give the Lord any more right over his Tenants Estate to tax him de alto bâ—sso at his Will by â—eason of the subjection he was in to the Lord in respect of Forfeiture since â—hen the King should have had for the same reason the same Rights over all his 〈◊〉 in capite to tax them likewise at his pleasure and this Right of Forfeiâ—â—â— in case of Felony or for want of Heirs continued to the Lords as well of Soccage Tenants as others long after the time you assign for the coming of the Commons to Parliament even to our own Times and yet for all that those Lords could not give taxes for such Tenants in Soccage at their pleasure But that we may proceed pray consider also the form of the Peace agreed upon between the King the Prince his Son and the whole Body of the Kingdom assembled in Parliament to compose all Differences between the King and the â—arons The Title of which in the Record is thus Haec est forma 〈◊〉 a Domino Rege Domino Edwardo filio suo Praelatis Proceriâ—â—â—â—â—â—â—ibus cum Communitate totâ Regni Angliae Communitèr Conâ—â—â—ditèr approbata Which Articles were signed by the Bishop of Lincoln the Bishop of Ely Earl of Norf. Earl of Oxon Humphry Bohun William de Monte Canisio Majore London in Parliamento London Mense Iunii Anno Domini 1264. Haec autem â—rimatio facta est London de Consensu
Voluntate Precipto Domini Regis nec non â—â—â—datorum Baâ—onium ac etiam Communitatis tunc ibidem praesentium M. I think the Dr. hath given us full satisfaction as to this Record in his Answer to Mr. P. the substance of which I shall here give you in short First It is certain that at the making of this forced Peace Simon Mountford and his Faction then held the King and Prince as also Richard Earl of Cornwal the King's Brother as good as Prisoners and made them do what he pleased and he carried the King and Prince along with him until he had taken in all the strong places of the Kingdom and when he had done then he called this Parliament which could not be one in the sense it is now taken since there was none there but the Earls Barons and Heads of the Rebels which had the King and Prince in their power and as you your self set forth were the same persons that sealed it for themselves and the other Barons and the whole Community of the Kingdom of England which Community must be the Community of the Barons and Great Men or Tenants in capite by Military Service and no other for how can the Lords and Barons sign any thing for the Commons as at this day understood They did not then nor now do represent them But I shall give you another Authority to make this clearer of some years before related in Matt. Paris viz. Anno Dom. 12â—â— 42 d Hen. III. where Letters are said to be sent a Communitate Angliae to the Pope concerning Aymer de Valence Bishop Elect of Wachester the Direction is thus Sanctissimo in Christo Patri c. Communitas Comitum Procerum Magnatum Aliorumque Regni Angliae cum subjectione debita Pedum Osrâ—â—â— c. And to put the Matter beyond all doubt it is certain that these Letters were sealed by six Earls and five Barons onely vice totius Communitatis I need 〈◊〉 give you their Names since you may find them in the Author himself as also cited by the Dr. And as for H. Bigod the Chief Justice and the four Persons named after him they are proved by Sir VVilliam Dugdale in his Baronage of England to have been the Greatest Barons in the Kingdom Now pray let me ask you this Question Did these Eleven Persons all Great Earls and Barons represent the whole Commons or Community of England as at this day understood or did they represent the Community of the Barons only together with the Alios the Milites which held by Military Service of the Great Barons and the Less Tenants in capite for the whole Community here intended must be one of them take which you please you 'l lose the Cause For certainly these Great 〈◊〉 and Barons that sealed this Letter vice totius Communitatis were not chosen nor sent by the Commons to this Parliament or Meeting nor were the Commons represented as at this Day by them as you your self have already granted F. I hope I shall not need to make any long Reply to this Answer of youâ—â— or rather of your Dr.'s since it is built upon the same false Supposition with the other viz. that the Words Cum Communitate tot â Regni Angliae must always mean only the Community of the Tenants in capite which Supposition if it be false in your former Argument is also as falfe in this of the Lords and Commons too and therefore it is impertinent to repeat my Answer to it But if this were no true Parliament because Simon Mountford had then the King and Prince in his power This would likewise serve to unparliament that of the 49 th of this King from whence the Gentlemen of your Opinion date the first coming of the Commons to Parliament since the King and Prince were as much in Simon Mountford's power then as now and yet no man as I know of ever questioned the validity of it tho I cannot also omit that you pass by in this Letter the words Magnatum aliorumque Regni under which Words as I have already proved might very well be comprehended all the Knights of Shires as well as Citizens and Burgesses unless the words had run thus as they should have done to have made out your Assertion aliorumque qui de Rege Tenent in capite But to come to the main point you insist upon which is How these Great Earlâ— and Barons could seal this Form of the Peace and these Letters to the Pope in the Name of all the Commons of England Before I answer to that I pray give me leave to ask you one Question You have already allowed that the ordinary Tenants in capite of which that numerous Body chiefly consisted tho called by courtesy Barones Minores were really no Barons nor Peers of the Realm and if so were but Commoners Now pray tell me how these Great Earls and Barons you mentioned to have signed this Peace and this Letter to the Pope could put their Seals for those who were no Barons themselves by your own confession and you cannot say they represented them for they were as good Tenants in capite as the Greatest Lords But if you say they did it by their order and consent pray why might not these Great Lords or Barons as well do the like for the Knights of Shires and Burgesses by their appointment Since I have already proved that the Lords did act thus in the Letters which were sent to the Pope concerning the Business of Scotland And besides I must here observe that the Dr. and you do not deal fairly with your Adversaries in citing this Authority of the Lords and Barons signing these Letters to the Pope Vice tâ—tius Communitatâ—s Angliae since I acknowledge in this place the Word Communitas being put alone doth mean no more than the Community of the whole Kingdom But in the Authority I have quoted it is put after the Earls and Barons and so then must mean the whole Commonalty or Body of the Commons in the Sense they are now taken and as it hath been always used in French as well as in Latin when it comes after the Earls and Barons as I have already noted And for this pray see the Stat. of Westm. I. made 3 d Edw. I. but eleven years after the 49 th of Hen. III. Per l'assâ—ntments des Aechievesques Evesques Abbes Priors Counts Barons tout le Comminalty de la terre illonques summones Which Phrase I can shew you to have continued the same in most of our French Statutes during the Reign of this King and all his Successors in many Records and Acts of Parliament whilst they were writ in Latin or French which I shall omit reciting because I suppose you your self will allow it I have a great deal more to say concerning the true sense of the Words Communitas le Commune le Communalty which because it is long and it now grows late I shall
the most part signifie the King's or any other Lord 's immediate Tenants by Knights Service for you may consult Spelman's Glossary and Du Fresue's Lexicon under these Titles But farther to confirm who were then the Constituent Members of our Great Councils pray see the Title to the Assize of Forests under King Richard the I. which Hoveden recites in these Words Haec est Assiza Dom. Regis haec sunt praecepta de Forestis suis in Angliae facta per assensum Consilium Archiepiscoporum Episcoporum Abbatum Comitum Baronum Militum totius Regni Where by Militum is to be understood not only those Tenants in capite that were Knighted but also all other Tenants in capite and if the Word ever signifies any other persons they were not ordinary Freeholders but Liberè Tenentes in servitio Militari Freeholders in Military Service as you may find in the Dr.'s Glossary Tit. Probi Homines Milites c. But pray remember also what Sir H. Spelman tells us in his Glossary Tit. Miles that these Milites when put alone were properly the Liberi Tenentes or Tenants in capite Qui non à Militari Cingulo sed a Frodo nomen sumpserunt So that I think no ingenious man but will confess that all these Councils were General Councils or Parliaments of the whole Kingdom consisting of no other persons than Tenants in capite F. To return an Answer to all your Authorities together I must now repeat what I often said that there are no firm Arguments to be drawn from the doubtful Words and general Expressions of our Ancient Historians and I doubt not but to shew you that all the whole strength of your Reasons consists in this alone But since I have already spoken so much of the various signification of the Word Barones Regis Regni I shall omit that and now proceed to the rest of the Words which you think make so plain for you and shall only observe at present that these Words Barones and Milites are always stretch'd or contracted according as the Gentlemen of your Opinion find it best to suit with their Hypothesis As for Example If the Word Barones is put alone then it must signifie none but Great Barons and Tenants in capite if it be joined with Milites then by Barones must be only meant the Great Barons or Peers and by Milites those Tenants in capite who were not Lords If any other words follow Milites then this Word must signifie only such Tenants in capite as were Knighted So likewise you deal with all other Words tho of never so comprehensive a Signification But why may not I with as much Reason affirm That by Barones mentioned in these Authorities is to be understood the Barones properly so called and by the Milites the Knights of Shires whether they were Tenants in capite or Feudatories to others For Radulphus de Diceto in Anno 1040. in the Laws of Malcolm the Second King of Scots mentions Milites Vavasores qui tenent de Baronibus tetras suas and that not only Tenants in capite but all others of whomsoever they held who were able to maintain themselves like Knights might be then forced to receive Knighthood appears by two Writs of 24 th and 26 th H. III. as they are found in the Close Rolls under this Title Forma de Molitibus faciendis and I desire you would read the Writ it self Rex Vicecomiti Northampton Salutem Praecipimus tibi quod per totam Ballivam tuam in Singulis bonis Villis similiter in pleno Comitatu tuo clamari facias quod omnes illi de Comitatu tuo qui tenent Feodum Militis integrum vel etiam minus quam Feodum integrum dum tamen de Tenemento Suo tam Militari quam Socagio pâ—ssint sustentari Milites non sunt Sicut Tenementa sua deligunt citra festum omnium Sanctorum Anno Regni Nostri 25. Arma capiant se Milites fieri faciant Et si qui fuerint tales qui citra Terminum illum se Milites fieri non fecerint Omnia Nomina eorum Statim à Termino illo quantitatem Valorem tenementorum suorum nobit scire facias Teste Rege apud Lewes 25 die Iulii Similiter Scribitur omnibus Vicecomitibus And as for the Words Homines Sui which you will have only to mean the King's Tenants in capite those Words have so equivocal a Signification that there is no Argument to be drawn from them for they may as well signifie all the King's Subjects sworn to him by Fealty and Allegiance as Tenants by Homage or Knights Service only as Sir H. Spelman in his Glossary observes upon the Word Homo dicitur de quovis Praediorum Tenente sive Socmanno sive Militari And for this he cites the Book of Ramsey and if Suus be added to Homo it doth much alter the Case as appears by the words following in the same place Dicitur Praeterca de Quovis Ministro Subdito saepe occurrit hoc modo in Antiquis Privilegiis non Solum Vassalos Tenentes sed Famulos Subditos quoslibet Significans and for this he gives us several Authorities So that you see these Words do not only signifie Tenants in capite but also any other Subjects and so might take in the Knights of Shires with the Citizens and Burgesses likewise at least the Representatives of such Cities and Burroughs as held of the King in capite by your own Sense of these Words But I shall however say something of the rest of the Words you insist upon out of Abbot Benedict viz. Barones terrae suae which means no more than Regni sui before mentioned and then it will signifie no more than that all the Barons of his Kingdom were summon'd to this Assembly which Word Tenents in capite I can give Mr. Selden's Authority for who in his First Edition 2 d Part hath his remarkable Passage speaking of the several kinds of Barons he says That besides the Barones Regis there were Barons of Subjects holding not of the King but by Mesnalty who made a third Rank of such as were Lords of Mannors c. Out of this may be understood why and in what sense Baronagium Angliae Rex Baronagium suum sine Assensu Baronagii sui so often occur in our old Stories taken as well for the King and the whole State sometimes as for the Greater Nobility But if your Dr. had been pleased to have compared the Authors he quotes with others nay with the Title to the very Constitutions of Clarendâ—n themselves as he hath given them as in his Appendix to his History out of Quadrilogus this Objection would have been needless for if you consult Gervase of Canterbury he stiles the Parties to this Council Praesules and Proceres Anglicani Regni And as for Matt. Paris pray observe that after the
word Clâ—rus which there coming immediately after the Bishops Abbots and Priors must needs signifie the Inferior Clergy he expresses the Lay Orders thus Cum Comitibus Baronibus ac Proceribus cunctis where we may observe the word Proceres here put distinct from Barones which may very well signifie not the Less Tenants in capite but the Knights Citizens and Burgesses as I have already proved the word Proceres does often signifie both in our Historians and Records but Quadrilogus gives us the Title of these Constitutions more exactly in these words Facta est ista Recognitio coram Archiepiscopis Episcopis Clero Comitibus Proceribus Regni and in the next Line he says That those Customs were thus recognized per Archiepiscopos Episcopos Comites Barones per Nobiliores Antiquiores Regni where he likewise distinguishes between the Bishops and Inferior Clergy and those who in the first place he calls Proceres Regni In the next he calls Nibilores Antiquiores Regni by which he might mean the Knights of Shires Citizens and Burgesses who were called in the Saxon Times Seniores Sapientes as I have already proved now if the Inferior Clergy appeared by their Representatives at this Council since they could not then all come thither in person any more than now to imagine that the Commons of England should not be likewise there by their Representatives of their own order is to deprive the Commons of that Right which you cannot but allow to the Inferior Clergy To conclude You your self confess that your Less Tenants in capite sometimes called Barones minores were only nominally and nor properly Barons of the Kingdom in the sense that word is now taken and if so pray give me any satisfactory Reason why other Commoners as well as they viz. the Knights of Shires Citizens and Burgesses might not then likewise have had Places in our Great Councils or Parliaments M. I see you use your utmost endeavour from the various and equivocal sense of the words in question between us to prove that the Commons in the sense they are now taken might be comprehended under the words Barones Miiâ—a Homines sai which it is very certain could not be according to the Constitution of the Government at that time And therefore I shall give you a very plain Answer to your Question why other Commonrss as well as the lesser Tenents in Capite could not be present or have places in those Great Councils because it was contrary to the received Custom and Law of the Kingdom at that time appears by those Clauses of King Iohn's Charter which Dr. B. hath made use of with so good success against Mr. P. and the Author of Ianus Anglorum c. And therefore I desire you would read them along with me 〈◊〉 they stand here in the Appendix to the Dr's Compleat History of England and as he hath transcribed them from an Ancient Manuscript in Bennet Colledge and divided them into so many distinct Articles or Chapters but those we chiefly insist upon are these Article 14. Nullum Scutagium vel Auxilium ponam in Regno nostro nisi per Commune Consilium Regni nostri nisi ad Corpus nostrum redimendum ad Primogenâ—◠〈◊〉 filium nostrum Militem faciendum ad Primogenitam filiam nostram semel Nâ—â—tandam ad hoc non siet nisi rationabile Auxilium 15. Simili modo fiat de Auxiliis de Civitate Londinensi Civitas Londinensâ— habeat omnes antiquas Libertates Liberas Consuetudines suas tam per terras quâ—â— per aquas 16. Praeterea Volumus concedimus quod omnes aliae Civitates Burgi Villae Barones de quinque Portibus omnes Portus habeant omnes Libertà tes omnes Liberas consuetudines suas ad habendum Commune Conclium Regni de Aâ—â—liis assidendis aliter quam in tribus casibus praedictis 17. Et de Scutagiis assidendis submoneri faciemus Archiepiscopos Episcopos Abbates Comites Majores Barones Regni singillatin per Literas nostras 18. Et praterea faciemus submoneri in generali per Vice Comites Ballivos nostrâ— omnes alios qui in Capite tenent de nobis ad certum diem scilicet ad terminum quadra ginta dierum ad minus ad certum locum in omnibus literis submonitionis caâ— sam submonitionis illius exponemus 19. Et sic facta submonitione negotium procedat ad Diem assignatum secundâ—â— Consilium eorum qui praesentes fuâ—rint quamvis non omnes submoniti venerint From which Ancient Monument we may draw these Conclusions 1. That the King exercised a Royal Prerogative before this Charter of Assessing Aids and Scutages upon all sorts and degrees of Men without the Assent oâ— the Great or Common Council since called the Parliament from doing which for the Future the King by this Charter tyed up his own Iâ—â—and unless iâ— the Three Cases here particularly reserved 2. That there is no mention of any other Members to be summoned to thâ—â— Council but the Archbishops Bishops Abbots Earls and Greater Barons bâ— particular Writs and all the other Lesser Tenents in Capite by one general Summons by the Sheriff So that it is apparent that the Greaâ— Councils before this time only consisted of such Earls Greaâ— Barons and Tenents in Capite as the King by special Writ waâ— pleased to summon and this new way brought in a greateâ— number of the Tenents in Capite than ever had appeared before so that if iâ— should be true which you assert that this Charter was no new Grant to the People of England but a Confirmation of their Ancient Rights and Liberties it muâ—â— then necessarily follow that Great Lords and Tenents in Capite called sometimâ—â— Barones Minores were then the only Representatives of the Commons And that the Inferior Tenents consent was included in tâ—â— Assent of his immediate Superior Lord whose presence was râ—â—quired in those Great Councils or Parliaments need not think be doubted and I can give you if need be several Authorities to prove it But pray observe further that here is no mention at all in this Charter of any Citizens or Burgesses to be summoned to the Great Council unless you will have them included under the general Title of all others who hold in Capite and then none but such Cities and Towns who held in Capite could pretend to send any Members much less is there any mention of any Knights to be chosen for Counties which certainly would have been particularly provided for by this Charter had they then had any place in this Assembly So that I think it is very plain that the Commons were not otherwise represented than by these Tenents in Capite for the rest of King Iohn's and most part of King Henry III. Reign for ought I can yet discern For though this Charter was Confirmed in the second and ninth year of
that King last mentioned per Commune Consilium 〈◊〉 Regni yet there is likewise no mention made of any Knights and Citizens 〈◊〉 Burgesses F. Before I answer this main Argument of yours which I freely grant carrieth the greatest shew of probability of any you have yet brought give me â—â—â—ve to take notice that I think you are very much out in your first Conclusion that before this Charter the King exercised a Royal Prerogative of Imposing Taxes without the Assent of Parliament for if you mean that this Exaction was exercised de facto and from thence you would make it a Prerogative of the Crown I grant this was true not only before but after this Charter before the Statute de Tallagio non concedendo was made but if you mean de Iure I affirm that our Kings were as much tyed up by the 55th Law of William the First which you have already Cited from Levying any unjust Taxes or Exactions 〈◊〉 Communi Consilio totius Regni as they could be afterwards by any other subsequent Law that could be made But I shall proceed to answer the Authority you have now brought from this Clause in King Iohn's Charter to prove That none but Tenants in capite had any place in our Great Councils or Parliaments But though I confess the Charters of Henry III. and Confirmation of Edward I. are the same with this in the most material parts yet there are several Clauses of which this Clause in question is one which are in King Iohn's Charter and yet are totally omitted out of both those of Henry III. as I shall shew you hereafter So that let â—â—e sense of this place be what it will I defie you to shew me any Great Council of the Kingdom that was ever summoned according to this Imaginary Model of yours and that I do not speak without Book that Parliament or Council of 9. Henry the Third when but 11 years after King Iohn's Charter was Conâ—â—â—med Mâ—t. Paris as I have already observed tells us it consisted of Cleâ—â— Populus cum Magnatibus Regionis But give me leave to read this Clause according as your Dr. himself hath Printed and Transcribed it and as your self have now read it and I doubt not but it will appear plain enough that the Clause you insist on in this Charâ—â—r doth not at all concern the Great Council of the Kingdom and for the proof of this I desire you only to observe that by the 15th and 16th Clauses of this Charter you have now read both the City of London and all other Cities Barâ—â—ghs and Towns had a Right to have a Great Council of the Kingdom for the â—â—â—essment of Aids otherwise than in the Three Cases there expected And â—ay take the Dr's Paraphrase to this Clause along with you in his Appendix to his compleat History of England viz. That they viz. the Citizens Burgesses and Cinque Ports shall send their Representatives or Commissioners to the Common Council of the Kingdom for the Assessment of Aids So that according to his Concession there must have been Citizens and Burgesses in the Great Council in the Reign of King Iohn and if so I desire you to tell me whether those Gentlemen were Commoners or not But I will not insist too much upon his Concessions for I think it is very plain from the Words themselves which point out a distinction between the Common Council of the Kingdom mentioned in the first Clause which was to meet to grant or assess Aids or Subsidies and that other tho not Common Council or Assembly consisting of all the Tenants in capite which by the 17 th and 18 th Clauses of that Charter are to meet to assess Escuage and to do such other Business as was express'd in their Summons So that nothing seems plainer to me than that this Assembly mentioned in this Charter for assessing Escuage was a distinct Council from the Great Council of the Kingdom which was appointed for the granting of other Taxes called Auxilia and for the making of Laws M. I confess this Gloss of yours seems at first sight very plausible and agreeable enough to the way of Reading and Pointing with which the Dr. himself published this Charter but for all that I much doubt whether you are in the right or not therefore pray give me leave to put off this Debate till our nâ—â—t Meeting since it now grows late and in the mean while I will take time to consider the Arguments and Authorities you have now made use of F. Pray take your own time but do not defer it above a day or two for I have a great mind to have this Question dispatch'd off our hands I am your Servant M. Good night Sir FINIS Books Printed for Richard Baldwin near the Oxford-Arms in Warwick-Lane A Brief Disquisition of the Law of Nature according to the Principles and Method laid down in the Reverend Dr. Cumberland's now Lord Bishop of Peterborough's Latin Treatise on that Subject As also his Confutation of Mr. Hobb's Principles put into another Method With the Right Reverend Author's Approbation The Gentleman's Iournal Or the Monthly Miscellany By way of Letter to a Gentleman in the Country Consisting of News History Philosophy Poetry Musick Translations c. Compleat for the Year 1692. Printed for Rich. Parker and are to be sold by Richard Baldwin near the Oxford-Arms in Warwick Lane Where are to be had the Single Iournals for each Month or Compleat Setts bound The Tragedies of the Last Age consider'd and examin'd by the Practice of the Ancients and by the Common sense of all Ages in a Letter to Fleetwood Shepherd Edq A Short View of Tragedy its Original Excellency and Corruption With some Reflections on Shakespear and other Practitioners for the Stage Both by Mr. Rymer Servant to their Majesties Bibliotheca Politica OR A DISCOURSE By Way of DIALOGUE 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. The Second Part. Collected out of the most Approved Authors both Antient and Modern Dialogue the Seventh LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford-Arms where also may be had the First Second Third Fourth Fifth and Sixth Dialogues 1693. Authors made use of and how denoted 1. Mr. Petut's Ancient Right of the Commons of England Asserted P. R. C. 2. Dr. Brady's Answer thereunto Edit in Folio B. A. P. 3. The said Doctor 's Glossary at the end of it B. G. 4. Animadversions upon Mr. Atwood's Treatise Intituled Iani Anglorum faces nova B. A. I. 5. Mr. Atwood his Confutatin of the said Doctor Intituled Ius Anglorum ab Antiquo I. A. A. 6. Dr. Brady's Preface to his History B. P. H. 7. Dr. Iohnston's Excellency of Monarchical Government I. E. M. G. THE Seventh Dialogue BETWEEN Mr. MEANWELL a Civilian AND Mr. FREEMAN a Gentleman F. YOU are
accepit c. Now pray tell me what Common Council was this Of the Bishops and chief Men of the Kingdom that Anselm referred himself to Was it not ex more by Custom You cannot find in Eadmer any Summons to it neither Rex asâ—ivit nor praecepâ—o Regis convenerunt nor Rex sanctione suâ adunavit In short not to multiply Examples look where you will in Eadmerus or any other of the ancient Historians you have cited and you will still find that the Persons who met ex more and without any Summons were the same who Assembled by the Kings Summons at other times that is the Principes and Episcoâ—i Regni or Terrae or called more generally Priâ—ates utriusque ordinis or the Barones or Majores Regni who did at these great â—easts pro more go to Court and hold a solemn Curia or great Council there And that these made up the Vniversity or whole Body of the Kingdom pray see what Matt. Paris says In die Pentecostes Dominus Rex Anglorum Loâ—dini Festum tenens Magnum serenissimum â—unc compositâ per Regni Vniversitatem Eleganti Epistolâ c. This was about the Pope's Exactions as hath been before delivered And Hen. III. in his Letter to the Pope calls the same Persons Magnates Angliae which in his Letter to the Cardinals about the same matter he calls Magnates Nostri as you may see in the former Citations of them F. But pray give me leave to ask you this question might not our first Norman Kings often Summon the Common Council of the Kingdom at one of the said usual Feasts since it was so much for the conveniency of the Bishops great Lords and Tenants in Capite who I grant were then all Members of the Great Council to meet all the rest of the Kingdom or Representatives of the Commons at the same time Though the Writers you have quoted may not mention their being Summoned at all And as for the Writs of Summons those of much later Parliaments being lost how can it be expected we should now prove their being Summoned so many Year before M. I confess it might be so that upon extraordinary business and when the occasion was great and the King desired a great and full appearance they might also receive an express Summons at those times But then I must desire you to shew us any mention of a Summons to any of these Common Councils which when called at other times are most constantly mentioned in this Author And I desire to know of you what you will say to those words pro more convenit which is spoken of the most general Councils when the Community of the Kingdom met at the King's Court You cannot deny but that the Tenants in Capite were the Kings Barones Milites Magnates c. Upon this we will joyn issue And I affirm without bringing Proofs which are infinite in this Case that all the Bishops Earls and Barons of England did hold their Lands Earldoms and Baronies of the Crown or which is all one of the King as of his Person and that was in Capite William the Conqueror as I said before divided most of the Lands in England amongst his great followers to hold of him he made Earls and Barons such as he pleased They and their Descendants held upon the same Terms with the first grantors which was to find so many Horse and Arms and do such and such Services both Titles and Lands were Forfeitable for Treason or Felony to the King did Homage for them and every Bishop Earl and Baron of England was in those circumstances and held of the King after this manner Other Lands were given to other Persons for meaner Services as to his Woodwards Foresters Hunts-men Faulconers Cooks Chamberlains Gouldsinlibs Bayliffs of Mannours in his own hands and many other Officers which in Doomsday-Book are called Terrae Thanorum Regis and sometimes servientium Regis And I doubt not whatever the Notion of Petyt Sergeanty now is but that originally this holding of Lands was the true Tenure not but presenting the Lord with a Bow an Arrow a pair of Spurs every Year c. might also be called Petyt Serjeanty though not so properly as the other F. Not to multiply words to no purpose I think your Reply is far from being Satisfactory for in the first place it is very unreasonable to demand that we should now shew the express Summons to these common Councils which were not held de more since you know that all antient Records of that kind are destroyed and lost for if we could produce them at this day the difference between us and those of your Opinion would quickly be at an end as appears by those great Councils which are said expresly by the Historians I have cited to have been summoned and yet no such Writs of Summons are to be found nor is it any good Argument that because our ancient Historians mention no distinct Summons to the great Councils when met at the usual times of the meeting of the Tenants in Capite that therefore there were none such since we find they often pass by much more material Matters than this And though I grant that the Tenants in Capite were then part of the great Council of the Barones Milites Magnates Regni yet does it not follow for all this that none but the Kings Barons and Tenants in Capite were Members of this great Council since there might be in those times other Barons or great Freeholders who though they held their Lands of the Tenants in Capite yet might be there as Knights of Shires or else appear in Person at those Assemblies as well as the other and besides there were others who though they did not hold of the King in Capite but of some great Honor or Castle or else of some Abbot or Prior yet were Men of very great Estates and very numerous all which must otherwise have had their Estates tax'd and Laws made for them without nay against the consent of themselves or any to represent them Nor is your Assertion at all true That William the Conqueror divided most of the Lands in England to be held of him in Capite For besides those Servants and Officers you last mentioned above two third parts of the Lands of the Abbies and Priories in England were not held as also much other Lands in Kent and other Countries per Baroniam or Knights Service but in libera Elecmosina only or Socage as I have already prov'd and consequently neither they nor their Tenants could according to your Hypothesis have any Representatives in Parliament And farther you your self grant that those Lands you mention which were given out by your Conqueror to his Woodwards Foresters c. did not capacitate them to appear in Parliament since their Tenure was only by Petyt Serjeanty and not by Knights Service Nor could they become the King's Tenants in ancient Demesne because such Tenants
held wholly by Socage Tenure whereas it appears plainly by Littleton that Tenants in Petyt Serjeanty were subject to Wardship Marriage and Relief So that whoever will but consider that near half the Lands in England were held by Bishops Abbots Priors c. and of whom not a third part held by Knights Service of the Crown and will then likewise consider what a vast number of Tenants those Abbots Priors Deans and Chapters who were not Tenants in Capite at all must have had and who either held Estates in Fee or else for Life under them in Socage as well as by Knights Service as also all the other sorts of Tenures I have already mentioned which either held of the King as of some Honor or Castle or else of other Mesne Lords by other Tenures than Knights Service must certainly conclude that not above one half of the Lands of the whole Kingdom was held either immediately of the King or else of other Mesne Lords by that Tenure So that if all these Persons which were far the greater Number of the Free-holders in England should have been thus excluded from having any thing to do in our Great Councils I doubt not but we should have found sufficient Clamour in our Histories against so unjust a Constitution and when the whole Body of the Kingdom was in Arms against King Iohn at Running-Mead they would likewise have inserted a Clause for themselves if they had not had their Suffrages there before either by themselves in their own Persons or by their lawful Representatives And therefore upon the whole matter I durst leave it to the Consideration of any unprejudiced Man whether it is not much more probable that the Constitution of Knights of Shires Citizens and Burgesses appearing in Parliament should be much more antient then the time you assign than that so small a Body of Men as the Bishops Lords and Tenants in Capite should represent all the Freeholders and People of England who never held of them by Knights Service at all Nor have you yet answered the Quotation I have brought out of Bracton in my last Discourse to the contrary And whoever will but consult that Author in his Chapter of Tenures will find that the Tenants in Capite were so far from having a Power of charging all the Mesne Tenants at their Pleasure that in his Chapter de Tenuris it appears that a Mesne Tenant in Capite having purchased an Estate for a valuable Consideration was lyable to no other Services and Conditions than what his Tenure express'd which once performed the Lord had no more to say to him and if so be he laid any further Burthens upon him he might have had a Writ of acquital out of the King's Court against him directed to the Sheriffs several Forms of which you may see in Glanville and in the old Register M. We are not to rest upon meer Probabilities for some things that now appear to us unreasonable at this instant of time might then be very just for if the Feudatary Tenants of the Bishops Barons and other Tenants in Capite were well enough contented with the Constitution of the Kingdom as it then was and that it plainly appears by matter of fact that there was but one Common Council for the whole Kingdom and that of the Bishops Abbots Great Lords and less Tenants in Capite only it is in vain to argue of any unreasonableness in or Inconveniencies that might arise from such a Constitution though perhaps a great part of the Kingdom did not hold in Capite nor yet by Knights Service and therefore though the Feudatary Tenants of the Tenants in Capite were upon the performance of their Services acquitted of all other Charges yet this was still to be understood only of such ordinary Services as those Tenants were to perform by virtue of their Tenures such as was Scutage Service or the attending upon their Lords when they went out to War along with the King but did not extend to such Scutages as were granted in Parliament or as a Tax upon Land by the common consent of the Nation for then the Tenants in Capite were not only the Grantors but the Collectors too of such Scutage Tax from their Military Tenants and the Writs to the Sheriffs were different from those for Scutage Service and for proof of this I desire you would peruâ—e that Writ which the Dr. Quotes of the 19th of Hen. III. which is still to be seen in the close Roll of that Year Rex Vice Comiti Sussex salutem Scias quod Archiepiscopi Episcopi Abbates Priâ—reâ— Comites Barones omnes alii de Regno nostro Angliae qui de nobis tenent in Capite spontanea voluâ—â—â—te suâ— sine Conâ—uetudine concesserunt nobis Efficax Auxilium ad magna Negotia nostra Expedienda unde provisum 〈◊〉 de Consilâ—o illorum quod habeamus de feodis Militum Wardis quae de nobis Tenent in Gapite duâ—s Marcas ad predictum Auxilium faciendum unde proviâ—erint reddere nobis unam medietatem ante Festum sancti Micâ—aelis Anno Regni 19. aliam Medictatem ad Pasche Anno Regni â—osirâ— 20. Ideo tibi precipimus quod ad Mandatum venerabilis Patris R. Cicestren Episcopi Cancellarii nostri sine dilatione Distringas omnes Milites liberos Tenentes qui de eo Tenent per Servitium Militare in Balliva tua ad redlendum ei de singulis feotis militum Wardis duas Marcas ad predictum Auxilium nobis per manum suam Reddendum in Terminis predictis Sic scribitur pro aliis Episcopis Abbatibus Prioribus Magnatibus Now I desire you to tell me whether any thing can be more plain than that this Tax was granted by a Common Council of the Kingdom according to that Clause of King Iohn's Charter I have now cited Wherein it is first especially provided that no Aid or Scutage shall be imposed upon the Kingdom unless by the Common Council thereof and yet you see by this Writ that the Archbishops c. with the Barons there mentioned together with the other Tenants in Capite alone granted an Aid or Scutage Tax of two Marks for every Knights Fee which they held of the King and that by virtue thereof not only those Knights Fees they held in their hands but also all those Subseudatary Tenants called here Freeholders who held of them by Knights Service were likewise charged for every Knights Fee so held the like Summ of two Marks Now I think nothing can be more plain from this Record than that this was a Common Council of the whole Kingdom and yet consisted of Tenants in Capite only and therefore I desire you to shew me some better Proofs than you yet have done that these Tenants in Capite ever made a distinct Council different from the Common Council of the whole Kingdom F. I grant this seems at first sight to be a good Authority for
you but I doubt not for all that to prove that it makes wholly against you and will together with those Proofs I shall urge make out this difference between the two sorts of Councils I have already asserted and therefore I must tell you that there is no necessity of understanding the words de Consilio illorum mentioned in this Record to refer to the Common Council of the whole Kingdom It not being here said to be granted per Commune Concilium Regni and then there can no more be proved from this Record than that a Common Council of the Tenants in Capite took upon themselves an unusual Power sine consuetudine as the Writ here mentions in those times to charge not only themselves but their Under-tenants also and that even this was an encroachment appears by the Statute De â—â—lagio non conâ—edendo made 25th of Ed. 1. whereby it is expresly forbid that any Talliage or subsidy should be laid upon the Kingdom sine volunâ—aâ—e â—ssenâ—â— Archiepiscorum Episcoporum Comitum Baronum Militum Burgensium aliorum liberorum hominum de Regno nostro Now pray read my Lord Cooks Reason in his 2d Inst. why this Statute was made The 2d Cause says he was that the King the Year before had taken a Talliage of all Cities and Burroughs without assent of Parliament whereupon arose a great Murmuring and discontent among the Commons for pacifying which discord between the King and his Nobles and for the quieting of the Commons and for a perpetual and constant Law for ever after both in this and other-like Cases this Act was made c. being no other then as the same Author tells us in the Conclusion of this comment on this Statute then a restitution general to the Subjects of all their Laws Liberties and free Customs as freely and wholly as at any time before in better and fuller manner than they used to have the same But yet that this was no general Scutage or Tax upon the whole Kingdom but only upon the Tenants in Capite and their Tenants by Knights service appears by the Writ it self So that not only all the Persons I have already mentioned who being Tenants to Monasteries and Priories did not hold by Knights service and all Tenants in Petys Sergeanty and all Cities and Burroughs who did not hold in Capite who if they had not then Representatives in the great Council were wholly Free from this Tax and not only these but all Tenants in Fee Socage whether holding of the King or of other Mesne Lords were wholly exempt from this Scutage So that nothing seems plainer to me than that this Assembly that gave the King this Tax for themselves and their Tenants was a Common Council only of Tenants in Capite charging themselves and their Tenants only and not the whole Kingdom and that done in a Case of great necessity sine consuetudine For if it had included all the rest of the Kingdom there would certainly have been some mention made how all the rest of the Kingdom which did not hold by Knights service should be Taxed And that this was a Council consisting of the Tenants in Capite only may appear by a Record of the 42d of this King which I pray read Rex Bar. c. Quia per Commune Concilium Com. Baronum aliorum Magnatum nobiscum in Walliâ nuper existentium provisum est quod nos ipsi qui servitium nobis fecerunt ibidem habeamus Scutagium nostrum viz. De Scuto 40 Sol. pro Exercitu nostro Wall Anno Regni 41. Vobis mandamus quod de omnibus feodis Militum quae tenentur de Nobis in Capite vel de Wardia in manu nostra existentibus exceptis Feod illorum qui brevia nostra habuerunt de Scutag suo babendo lâ—vari fac Scutag nostrum From which Record it appears that this was only a Common Council of Tenants in Capite who had attended on the King and done their Service in this Welsh Expedition and concerned none else but such Tenants by Knights Service and their Tenants who had fail'd to do their Service and is just such a Tax as is expresly reserved by the last Clause of King Iohn's Charter which you have before cited whereby Scutage is to be assessed by all the Tenants in Capite And that not only the Spiritual and Temporal Barons and Tenants in Capite did thus meet and hold distinct Councils or Assemblies for the granting of Scutage but also that the Spiritual Barons and Tenants in Capite did also sometimes hold separate Assemblies appears by the Patent Roll of the 15. of this King thus Cum peteremus à Praelatis Angliae quod nobis Auxilium facerent pro Magnâ necessitate nostrâ de quâ cis conflabat viz. Epis. Abbatibus Abbatissis Prioribus Priorissi qui de nobis Tenent in Capite ipsi Nobis liberaliter concesserunt Auxilium tale viz. De singulis Feodis Militum suorum 40â— de tos Feodis de quot ipsi tenentur nobis respondere quando nobis faciunt Servitium Militare Where you see not only the Bishops and Abbots but the Abbesses and Prioresses granted a Scutage of 40 â— upon every Knight's Fee not which was held of them but for which they were answerable to the King before and though I do not suppose that these Women left their Nunneries and appear'd in Person at such Meetings yet they might very well do it by their Oeconomy or Stewards as their Lawful Proxies for Assemblys of that Nature But when a general Tax or Subsidy was granted by the whole Kingdom the Stile of these Councils runs much otherwise as appears by the Close Roll of the 4th of this King where it is recited in the Record that Omnes Magâ—ates Fideles totius Regni nostri granted de qualibet carucatâ duos solidas Now it hence appears that this was a grant of Caruage which not being a Scutage service nor yet a Tax by way of Scutage and was therefore to be granted by the Common Council of the whole Kingdom assessed not only upon Tenants in Capite and their Feudatory Tenants but upon each Plough-Land of the whole Kingdom must have bin granted as I have already proved out of Bracton speaking of this Caruage de consensu Communi consilio totiut Regni for otherwise these Tenants in Capite could never have charged all the Lands of England of which not half was held by Knights service And to make it yet plainer by other Records pray see another of the 16th of this King in these words Rex Vice-comiti Devon salutem sciatis quod Archiepiscopi Episc. Abbates Priores Clerici tâ—ras habentâ—s quae ad Ecclesias suas non pertinent Comites Barones Milites Liberi homines Villani de Regno Nostro concesserunt nobis in auxilium quadragessmam pariem omnium mâ—bilium suorum So that it is plain here who made the Commune
the true meaning of these Villani by another Record dated but two years after this of yours viz. 21 Hen. 3. Rex Vic. Kant Salut Sciâ—s cum octavis Sancti Hillarii c. ad mandatum nostrum convenirent apud Westm ' Archiepiscopi Episcopi Abbates Priores Comites Barones totius Regni nostri ut tractatum haberent nobiscum de statu nostro Regni nostri iidem Archiepiscopi Episcopi Abbates Priores Clerici Terras habentes quae ad Ecclesias non pertinent Comites Barones Milites Liberi Homines pro se suis Villanis nobis concesserunt in Auxilium Tricessimam partem honorum From this Record we may observe 1. That the King's Writ was only issued to the Arch-bishops Bishops c. Earls Barons of the whole Kingdom 2. That in the recital of this Tax the Sheriff is told first that the Arch-bishops Bishops c. and the Clergy which had Land not belonging to their Churches a certain sign that they granted by themselves and out of nothing else but that and then that the Earls Barons Knights and Free men for themselves and their Villains granted a thirtieth part of their moveables And from this Record it is also manifest these Liberi Homines had Villanos if not Bondmen Villagars or Rusticks Colonos or Husbandmen at least of whose Estates by publick Assent and for the publick benefit they might in part dispose of which Liberi Homines according to the Tenor of all our Records and Histories were Tenants in Capite and that the Villani mentioned in the other Record of 16. Hen. 3. to have given a fortieth part of their Moveables did grant by their Lords that is their Lords Paramount that were Tenants in Capite did grant for them though they held it not immediately of them but of other Tenants in Military Service which immediately held of the Tenants in Capite who did charge them by publick Taxes hath been shewn from divers Records So that it was frequent in those times to say such and such concesserunt granted such a Taxe that is by those who had Power and Authority to do it for them and without their consent too when those for whom they granted were not capable of being Members of Parliament themselves I could give you more Examples of the like Nature but I will not tire you F. I pray Sir give me leave to answer this long speech and to begin with your Interpretation of this word Fideles First then we are so far agreed that the word Fideles had two or three different Significations First it signified all the Subjects in general in the next place all Vassals or Feudatary Tenants whatever whether of the King or any other Lord as appears by the Passage you have cited out of William of Malmsbury as also divers antient Charters particularly those of King William I. and Maud the Emperess and King Stephen which are divers of them directed Fidelibus suis Francis Anglâ— which cannot mean Tenants in Capite since the Doctor and your self will scarce allow any English Men to have then held Lands in Capite of the Crown Lastly I grant this word Fideles may sometimes signifie the Tenants in Capite of the King all which being so I think you cannot deny that it is not the bare word but the sense it bears in the Places where it is used that must direct us to its true Signification and that the fideles there mentioned to have granted Caruage in the 4 th of Hen. 3. could not be the King's Tenants in Capite only I have given you a sufficient reason which you do not think fit to answer viz. That Caruage was a general Tax imposed upon all the Lands of the Kingdom as well what was held by Knights Service as what was not and how your Tenants in Capite could Tax those Lands which were never held by Knights Service I desire you would resolve me And therefore by the Fideles here mentioned in this and many other Records are not to be understood the Tenants in Capite only but all other Subjects who did Fealty who though they could not all appear in Person in our great Councils or Parliaments yet were there by their Representatives the great Freeholders Lords of Mannors or else by the Knights Citizens and Burgesses But I must now make some Remarks upon your Interpretation of â—he Writs of the 16 th and 21 th of Hen. 3. wherein you have certainly very much mistaken the sense of all the main Words For in the first place as for the Clerici terras habentes non ad Ecclesias pertinentes which you interpret to have been Clerks having Mannors and Military Fees not belonging to their â—enefices but held of the King in Capite seems to be altogether forced For whoever heard of Clerks that is inferior Clergy Men Parsons or Vicars of Churches who held Benefices of the King in Capite and not in Franc Almoigne or if they had any such that therefore those Lands so held should be called Lands not belonging to their Churches for at this rate the Lands of Bishops all Abbots Priors c. which held of the King in Capite would have been in your sense Lands not belonging to the Church but who but you and your Doctor ever gave such an unreasonable Comment on those words Nor will that Passage you cite out of Mat. Paris at all favour your Interpretation for either these Bishops and Prelates there mentioned gave this sortieth part of their Moveables in Parliament with the rest of the Kingdom or else as Clergy men in Convocation If the former then these Clerici could have no Votes there in Person for I believe it would puzzle you to prove that at this time any Ecclesiastical Person below the degree of an Abbot or Prior had any place in Parliament by reason of his Tenure by Knights Service in Capite for those Lands he held in Right of his Church but if you 'll have this Tax to be granted by the whole Clergy in Convocation then such Clerks as you mention could not be there in Person First because they are said to be such as had Lands quâ—e ad Ecclesias suas non pertinent and so could not have any place there as Clergy-men nor could they be included under the Praelati since that word takes in none beneath the degree of a Dean And therefore if these Clerks gave any thing in Parliament they must do it by their lawful Representatives the Knights of Shires or if in Convocation by their Clerks of the lower House then called Procuratores Cleri So that take it which way you will those Clerks could not be present themselves at these Parliaments when those Taxes of the 30th and 40th part of their Moveables were given to the King and therefore either as Lay-men or Clergy-men must be Taxed by their Representatives but in deed the words Proceree Regni which immediately come after Episcopi Pralati in
other Weapons And the 2d Article of King Iohn's Charter says expresly Concessimus etiam omnibut Liberis Hominibus Nostris Regui Anglia pro Nobis Haeâ—elibus Nostris in perpetuum omnes Liberates subscriptas â—abeâ—das â—enandas eis haeredibus â—uit de Nobia Hâ—rodibus nostris Which the Dr. himself renders thus We have also granted to all our Freemen of the Kingdom of England c. And sure then this Charter could not be made to none but Tenants in Capite unless you will suppose that none but they were Freemen and all the rest Slaves Nor was this Charter only made to relax the severity of the Feudal Tenures as you suppose since there are divers other Clauses in it which concern all the rest of the Freemen and Free holders in England as well as they for besides the first and second Chapters of this Charter which grants and confirms to the Church of England and to all the Freemen of the Nation their Rights and Liberties If you please better to consider it you will find that there are several other Chapters in this Charter which all other Freemen as well as the Tenants in Capite have thereby an Interest in as you may see by the 10 11 12 13. 15 16. 22 23 24 25. and above 30 other Chapters or Clauses therein exprest which are granted not to Tenants in Capite alone but either to Ecclesiasticks or other Lay Freemen of the whole Kingdom But to prove this a little further I shall give you but one or two instances out of this Magna Charta and that too in the Drs. own Translation Article 48. No Freman shall be taken or imprisoned or disseised of his Free Tenement or Liberties or Free Customs or Out-Lawed or Banished or any ways dâ—stroyed nor will we pass upon him or commit him to Prison unless by the Legal Judgment of his Peers or by the Law of the Land i. e. by Legal Process The other is the 49. Article of this Charter that we will not sell to any Man we will not deny any maâ— or delay Right or Justice Now Judge your self whether these two Articles were made to the Tenents in Capite alone or to all the Freemen of the whole Kingdom And hence it also plainly appears that the same Body of Freemen to whom this Charter was made were likewise present and gave their Assents to the making of it Nor were Vavasors or Fendatary Tenâ—nts of the Bishops Abbots great Lords and other Tenants in Capite Persons so inconsiderable as you would make them that they only should come hither but as followers to augment the Noise since I have already proved from Bracton that there were divers of them Men of great Estates and Power in their Countries besides the Tenants of those Abbots and Priors who as I have already mentioned did not hold in Capite of the King at all and yet made a great Part of the Kingdom besides Tenants in Petyâ— Serjeanty and those that held of great Honours who could never be represented by the Tenants in Capite at all And therefore I must notwithstanding what you affirm to the contrary look upâ— on all these Persons for as good Law-makers as the greatest Lords or Tâ—nants in Capite of them all since the main force of the Nation did not lye in them but in their Feudatary Tenants who would never have followed their Lords in this Assembly if they had not look'd upon themselve as having as good an interest in the Rights and Liberties they demanded as appears by this Silvo of all their Liberties as their Lords themselves and also as good a Right as they in giving their Assent to them when they were to be pass'd into a Law as they were by this Charter since these Feudatary Tenants were not at all obliged by their Tenure to obey their Lords Summons at any other Warlike expeditions but where the King or his Lieutenants went out in Person M. I am very well satisfied that this could be no Parliament for the reasons already given and tho I grant that these Charters were made to and in the Presence of the greatest part of the Clergy Earls Barons and Freemen of the Kingdom yet this proves not that they had any Vote or Suffrage in making of them nor indeed could they for the great Charters were only the Petitions of the People drawn into the Form of a Charter and passed under the King's Seal as his meer voluntary Free Grants and Concessions without any Votes or Authority from the People And therefore the great Charters of Henry III. recites them to have bin made of his meer Grace and Free Will as it is in the Preface to it But pray answer me a few plain Questions concerning King Iohn's Charter which if you can resolve I may be inclined to believe there might be some other great Council besides that of Tenants in Capite The first is if this Common Council of Tenants in Capite were for Assessing of Aids and Escuage only as you suppose it is provided by the last Clâ—use of this Charter why was the Cause of the Meeting to be declared in every Writ of Summons to the great Barons and Tenants in Capite if they were only Summoned about Aids and Escuage or other ordinary business of Course sure then the Cause of Summons need not to have been declared as it is here provided In omnibus Litâ—er is Submonitionis causam Submonitionis illius exponemus F. I will give you an answer to this Question immediatly but before I do it let me tell you that you are much mistaken in saying that the great Charters because they were the Kings Free Concessions were therefore passed without any Votes Suffrages or Authority of the People of England Since I have already proved in our discourse concerning the legis â—â—tive Power that the matter of those Charters was no more then an affirmative of the Common Law of England long before your Conquest and that the Peoples consent and Suffrage was sufficiently given in their drawing them up and offering them to the King to be Sealed and accepting them from him when he had done it And therefore that the great Charters are always called Statutes in our Ancient Records and Aâ—â—s of Parliament But to answer your Question I suppose that the King besides the ordinary business of their Assessing Escuage had often other affairs of great moment to be transacted with and Communicated to his Bishops great Lords and Tenants in Capite in which the rest of the Kingdom were not at all concern'd such as giving the King their Advice as a great Council concerning divers weighty Affairs as in the business of Sicily mentioned in the first Record I have cited as also about undertaking Forraign Wars against France Scotland Wales c. in which they were bound to follow and assist him together with their under-Tenants according to their respective Tenures and therefore it was but reason
that they should have timely notice that they might give their advice in it as also that they might either come or stay away according to the greatness or urgency of the occasion and might also give their Under-Tenants notice to provide themselves with Horses and Arms and all things necessary in case a War should be agreed on which I think are sufficient reasons for thus expressing the Causes of their Meeting in the Writs of Summons M. Admit this were so which I shall yet take further time to consider of pray tell me in the next place if all your inferiour Barons Vavasors or Lords of Manours c. supposing them either to have appeared in Person or else as chosen for Knights of Shires or else as Citizens and Burgesses who were the Members of the great Council of the Nation I pray tell me why there should not have been the same care taken that they might be also Summoned as well as the Tenants in Capite certainly they came not to them by instinct nor is it scarce probable that they would leave their Country busineâ—s to Travel from one remote part of England to another to these great Councils which seldom continued above three or four days if they had had a Right so to do F. I shall answer you in few words because it was not at all necessary to express that Clause you mention for them all Since it was sufficient therein to follow the old Course of Summoning the Common Council of the Kingdom for doing which it had always been the Custom to give sufficient Notice by Writs of Summons of their Meetings whereas in this Council of Tenants in Capite Since there was by this Charter some alteration in the manner of their Summoning so there was also for expressing the cause of their Meeting For whereas before that as the Dr. himself allows all the Lesser Tenants in Capite had particular Letters or Writs of Summons expressing the Cause of their Meeting they were for the future to be Summoned by general Writs directed to the Sheriffs and therefore it was but reason that there should be a particular Clause reserved for their general Summoning which there was no need of in those Writs that were Issued for the summoning therest of the People or Commons to the great Council or Parliament as I doubt not but it would appear in case we had those Writs to produce in which likewise there was anciently often exprest the particular cause of their Meeting as there was for instance in those famous Writs to the Lords and Commons of the 49. Hen. III. which the Dr. hath given us in his answer to Mr. P. M. But I have still a greater objection behind than either of the former You cannot deny but that by the first clause of King Iohn's Charter which I have made use of all Aids and Escuages were to be imposed by the Common Council of the Kingdom and Littleton himself tells us in the second Book of his Tenures That Escuage is always to be Assâ—ssed by Parliament upon those that failed to do their Services after the Expedition was ended Now if this had not been a Right Inherent to the Great or Common Council of the Kingdom but that the Tenants in Capite alone assessed it in King Iohn's time how came they to lose that Priviledge and the great Council of the Kingdom or Parliament to get it if the former had not been the only great Council at the first F. I hope to give you as satisfactory an answer to this as I have to the rest of your Demands This alteration might have fallen out two ways either according to Camdens old Manuscript Author cited in his Introdâ—ction to his Britania the Summ of which is that when King Henry III. after his great Wars with Sim. Momford and the Barons had Ruined many of them he out of so great a Multitude which was before Seditious and Turbulent called the best and chiefest of them only by Writ to Parliament who after that time became Barons by Writ and not by Tenure as they were before And as for the lâ—sser sort of them called â—â—ones Minores they might be wholly resolv'd into the Body of the Commons or ordinary sort of â—ree-holders and the King being fearful of any farther encrease of Power in these Barons and Tenants in Capite might no more desire their Company at the usual Feasts of the Year whither before they used to come ex more and so their Power fell of course to the Council or Parliament of which before they only made a part Or else it might happen from the negligence of the Tenants in Capite themselves who growing weary of their Attendance might neglect to come to those Councils because of the great trouble and charge of those Journeys and the King being as willing to dispense with their Presence this Court was lost by Non-usage and so the judicial part of it remained in the House of Peers and that of Assessing Escuage and advising and giving Aids in matters of War fell wholly to the great Council of the Kingdom of which these Tenants in Capite by their being capable of being Elected Knights of Shires soon became the Principal Members But admit I should take this Council for Assessing Escuages for the Comâ—on Council of the Kingdom pray give me leave to ask you one or two Questions likewise in my turn Pray tell me therefore if this Council had been such as you would have it to what purpose is there a full Stop in all the old Coppies at the end of this Clause ad babendum Commune Concilium legâ—l de Scutagiis assidendis aliâ—er quam in tribus Casibus praelictis and why â—ould the next Clause begin with de Scutagiis assidendis submoneri faciâ—â—us 〈◊〉 if they had been both one and the same Councils Since it had been easier to put it all under one Clause If the matters therâ— Treated of had been the 〈◊〉 In the next place pray tell me if this were the great Council of the Kingdom or Parliament as it is now called why are there no other Rights or Priviledges reserved to this Council but this of Assesing Escuage Were not the Powers of granting other Taxes which could not be included under the word Escuages and also of giving their Assent to Laws things of as great say greater moment than this of Assessing Escuage M. I shall give you as short and satisfactory an answer as I can to those Queries In the first place I will not deny but that both the Clauses you mention might have been contracted into one supposing them to be read without any full stop between them as Sir H. Spellman in his Glossary supposes them to be But what is this to the purpose Must these therefore be two distinct Councils because the Charter it self words them a little more loosely than it needed to have done And as for your next Query there was no
been known who had a right to come to this Council if these words had not bin inserted so that this seems to me to make a plain distinction between these Liberos homines qui de nobis Tenent in Capite and the rest of the Freemen of the whole Kingdom But when Eadmerus and other ancient Historians mention the great or Common Council of the whole Kingdom afterwards called the Parliament then their expressions are more general and comprehensive for proof of which pray consult the Old English Saxon Annals continued down to the time of Henry I. wherein Anno. Dom. 1085. being the last Year of William I. there is a remakable passage which I shall here give you in English At Christmas the King viz. William I. was at Gloucester with his Nobles and there held his Curia or Court in Saxon his Hired Five days and immediately after it follows thus After this he held a great Council in Saxon Mycel Getheat where he had many great Discourses with the Nobles c. Now it seems plain to me that this Court here called his Hired could not be the great Council of the Kingdom for to what purpose should it meet again so quickly if it had the great Council of the whole Kingdom or why are they here called by different Titles the one his Hired or Court and the other the Mycel Gatheaâ— the great Council which is also called commune Concilium totius Regni in Sir Henry Spellmans Councils in this very Year And to shew you more plainly the difference between this great Council of the whole Kingdom and the lesser Council of the Kings Barons and Tenants in Capite Pray see Eadmerus who relating what was done in a great Council held at Easter immediately before the Invasion of Robert Duke of Normandy in the 2d Year of Henry I. says there met tota Angliae Nobilitas cum Populi numerositate and then Arch-bishop Anselm engaged for the King that he should Govern the Kingdom according to the just Laws thereof where you see that besides the Noble men and Gentlemen here called Regni Nobilitas there was also a great number of the Commons here termed in the Barbarous Latin of that Age Populi numerositas But when the King held his Curia of the great Lords and Tenants in Capite alone the expressions are more particular as may appear by many Charters of our first Norman Kings to several Abbeys of their own Foundation which are said to be made Consilio Assensu Baronum nostrorum tam presulum quam Laicorum as you will for example find it in the Charter of Hen. I. to the Abby of Abington as it is exemplifyed in the ancient Manuscript Register of that Abbey now in the Cottonian Library in which Book you will find more of the like Nature which plainly make out this difference between this less Council of the Kings Barons and Tenants in Capite and the great Council of the Kingdom And for further proof of this pay see the Instrument of King Iohn's resignation of his Crown to the Pope as you will find it at the end of Dr. B's compleat History which is recited to have been done Communi Concilio Baronum Noâ—troâ—um that is by the Common Council of the Kings Barons and Tenants in Capite who were all there present in Arms against the Landing of the French King then expected And yet this was never looked upon to have been done per Commune Concilium Ragni since this Resignation was declared void by the Bishops Lords and Commons in full Parliament in the 40th of Edward III. because done saâ—z lour Assent as it is in the Parliament Roll of that Year But when ever the whole great Council or Parliament was summoned to assemble then this lesser Council of the Tenants in Capite must needs meet also as being a principal part of it And then the expressions were more comprehensive as I have already noted and our ancient Historians do in my Opinion by their Expressions plainly signifie an Union of both these Councils to make up the Common-Council of the Kingdom as appears by the Letters which the Priory of Canterbury wrote to the Pope upon the Election of Ralph Bishop of Rochester in the 14th of Hen. 1. to the See of Cantebury as you will find them in Eadmerus Lib. 5. fol. 111. and which is there said to have been made adunato conventu totius Angliae that is in the united Assembly of all England viz. the Episcopi Abbates Principes Regni itgens Populi Multitudo So likewise Hovelen in his History fol. 273. Anu 1121 being the 18th of Hen. 1. relates the Kings Marriage with the Lady Adeliza Daughter to the Duke of Lovain to have been celebrated at Windsor adunato Concilio totius Regni i. e. in the united Council of the whole Kingdom M. I am not yet satisfied with your proofs and I doubt not but to shew you that this distinction of your Friends Mr. P. and Mr. A. his second between the Common Council of the Kingdom and the Council of the great Lords and Tenants in Capite will prove but a meer Chymra of those Gentlemen from whom you have borrowed it for there was indeed but one Common Council of the Kingdom in those times viz. that of the Bishops Earls Barons and other Tenants in Capite And therefore in answer to your first Authority from the Saxon Chronicle I shall shew you another of the same King's Reign which will shew the different expressions of this great Council by Hired and Mycel Getheat to have been the particular Fancy of that Monkish Writer and it is from Gervas Doâ—â—bornensis de Actis Pontisicum Cantuarens Ecclesiae where you may see in the Decem Scriptores this passage Anno. 4. Regis Wilhelmi I. Anno. Dom. 1070. Lanfrancus Cadomensis Ahlu electus fuit Archiâ—piscopus Cantuariensis a Senioribus ejusdem Ecclesiae cum Episcopit Principibus clero populo Angliae in Curia Regis in Assumptione Sanctae Mariae where you may see that this confirmation of the Arch-bishop was made in the great Council of the Kingdom which is here called collectively or altogether and not one part of it only Curia Regis As for the words which make up the constituent parts of this Council we have sufficiently debated them and therefore I need say nothing more concerning them But tho the Dr. has given us more Authorities to prove this yet I shall make use of but one more from Badmerus it is in the Reign of Henry I. thus in subsequenti Nativitate Dom. Christi Regnum Angliae ad Curiam Regis Lundoniae pro more convenit magna Solemnitate habita est c. This instance is full in all points here is the whole Kingdom that is the whole Baronage or University of England for Bracton tells us the whole Kingdom consisted of Earldoms and Baronies who met according to Custom at the Kings Court and hence
more material from Eadmerus of the whole Kingdoms meeting the King at Christmass ex more without any Summons mentioned to which it may be reply'd that there might be a Summons to the whole Kingdom to meet as well as to the Tenants in Capite and this happening at Christmass one of the usual times of their meeting this Author might apply the Title of this Court to the Council of the whole Kingdom And that this was so will appear from an Anonymous Author who wrote in H. 1. his time published by Mr. Sylas Taylor in his History of Gravel-kind p. 194 who relates this Election of Arch-bishop Lanfranc to have been made Communi Consensu Consilio omnium Baronum suorum omniumque Episcoporum Abbetum tostusque Populi which certainly must mean somewhat more than your Council of Tenants in Capite alone And this also is confirmed by Matt. Pariâ— who has been so careful as to mention a Summons to a great Council immediately after the holding of the Curie of Tenants in Capite at Christmass the words are thus Anno Dom. 1237 i. e. the 21th of Hen. 3. senuts Rex curiam suam ad natale apud Win 〈…〉 autem continuo per omnes fines Angliae Scripta Regalia praecipiens omnibus ad Regnum spectantibus Archiepiscopis Episcopis Abbatibus Prioribus Comitibus Baronibus ut omnes in octabis Epiphaniae Londentis convenirent Now pray tell me if this Curia held ex more at Christmass had been the great Council of the whole Kingdom consisting of the Arch-bishops Bishops Abbots Earle and Barons and other Tenants in Capite to what purpose should the King coptinus i. e. immediately issue out his Writs for summoning the very same Persons to meet him at London on the octave of St. Hillary when they were then all with the King at Winchester and that he might have communicated what he had pleased to them Or what have you to say to the Curia or Common Council held before in the Ninth of this King but Eleven years after King Iohn's Magna Charta when the great Charters were confirmed and an Aid granted by the whole Kingdom which Matt. Paris Anno Dom. 1225. relates thus which tho' I gave you at our last meeting it will not be amiss to repeat again Rex Henricut ad natale termis â—â—â—iam suam apud Westmon praesentibus Clero Populo cum Magnatibus Regionis which words as I have already urged must comprehend some other Persons then your Tenants in Capite alone otherwise the word Populus had been altogether in vain so that you see the Common Council of the whole Kingdom was often held at the same time with the ordinary Curia and is by way of Excellency called by the same name as we at this day call the great Council of the Kingdom the High Court of Parliament and Curia and Court differ no more then a Latin Name from an English which is likewise very well confirmed and explained in the Chronicle of Walter of Civentry to be found indivers private hands who lived in the Reigns of King Iohn and Henry 3. and speaking of this 〈◊〉 Council or Parliament which though it might begin at Christmas with the Curia yet it seems held on till Candlemass when the Commons were joyned to it He 〈◊〉 thus In Purtsicatione beatae Marlie convocaniur apuâ— Londâ—n Proceres Angliae ibiq tractatu babito dissustere cum Claro Populo ibiâ—â—m convâ—cato Rex 〈◊〉 Libertates tam Ecclesâ—â—e quam Regni quam Forestâ—â— sicut cartie suae sunt â—â— confectâ—â— Now I leave it to your self to judge whether by these words Tractaâ— diffusure babiâ—o cum Clero Populo c. put after the calling of the Proceres i. e. great Lords and Tenants in Capite any thing can be meant but the inferior Clergy and Commons all which being joyned in one Body made up the Commune Concilium Regui And that this was so appears by the date of this great Charter it self 11 Februaril Anno Regui nono H. 3. But that the whole Council or Parliament when thus joyned was likewise called Caria Regis I can prove by several Examples among which see the Stat. of Mâ—â—on in 20 Hen. 3. beginning thus Provisum est in curia Domini Regis Henrico c. coram Will. Cant. Archi piscopo Episcopis suffraganeâ—s suis coram naure parte Comitum Baronum Auglie ibidem exillentium pro Coronatione qu dem Regis pro quâ— omnes vocati fuerunt ita provisum fuit câ—ncessum 〈◊〉 â— predictis Archiâ—pise Epise Commitibus Baronibus quam ab ipso Rege Aliis Now who can these Alii mean coming thus after Barones but the Commons as now understood M. I confess these Authorities you have now brought carry some colour of in Argument but if they are lookt into will signifie little to begin with your first quotation from Matt. Pariâ— suppose I grant that there was a Curia 〈◊〉 more held at Westminster at which there then appear'd at Court only a small number of the Bishops Lords and great Tenants in Capite but the King not finding them enough for the great Affairs he had then to communicate to them immediately issued out his Royal Writs to all the Orders of men there mentioned to appear at London on the octave of St. Hillary but how can you affirm there were any Commons then summoned in the sense in which they are now taken the Barons being the lowest Order here expresly mentioned but if you would but have read the words that immediately follow in its place you have now cited you would easily see that your Knights of 〈◊〉 and Burgesses could not then be there the words are these venti iâ—iâ—â— Sancti Hiâ—â—arii Londoniâ—s insiniâ—um Nâ—bilium multitulo how could these representatives of the Commons have been elected and returned in so short a time as between Christmass and eight days after Twelfth-tiâ—â— so that there could have been scarce three Weeks time from the date of the Writs presently after Chistmass-day to the meeting of the Parliament but the truth is by this infinita Nobilium multitudo who are here said to have come to London is to be understood the great number of the smaller Tenants in Capite who all appeared at this Council according to King John's Charter Whereas your Knights of Shires Citizens and Burgesses if they had all come at that time could not be called infinita Nobilium multitudo as not consisting at this day of 600 Persons and sure would have been fewer then But as for your other Authorities if this be true I have now laid down they will be as easily answered since by the word Populus put before and distinct from the Magnates in the passage you have now quoted from Mat. Paria these smaller Tenants in Capite are to be understood and by Magnates the Bishops and great Lords and this also explains the like Phrase you now cite from Walter
of Coventry where by Proceres Populus are to be understood the same orders of Men as by Magnates Populus in Mat. Paris so that it was with the smaller Tenants in Capite and the inferior Clergy with whom the King had this larger or more diffusive Treaty as this Author words it F. I confess you have now put a very fair gloss upon these Places I have now made use of but 't is an hundred pitties that such a fine Hypothesis should have no better proofs than your bare Surmises to support it for that is all the Authority that I can see you bring for your sense of this word Populus for the smaller Tenants in Capite and not for the rest of the People but I see no good Authority as yet brought by you to prove it except that clause in King John's Charter which if as I have lately shewed you it will beat a quite different Interpretation all that you have said upon that head will signifie nothing therefore as for the main Argument you raise from the words infinita multitudo nobiâ—ium in Mat. Paris that they could not be the Knights of Shires together with the Citizens and Burgesses because they could not be such an infinite Multitude as this Author here mentions to have me at London as also because of the shortness of the time of the Summons If these are material Objections against our Opinion so it will be likewise against yours for how could this be a great Council according to King John's Charter which expresly provides for Forty days Summons for the Tenants in Capite to come to this Assembly and if so be this usage was broken at this time upon some urgent occasion in respect of them it might be so also as to all the rest of the Kingdom for the Knights of Shires might be chosen at the next Country-court and their Names returned immediately before or together with their meeting at London and as to the Citizens and Burgesses it was yet more easie for them to be chosen and returned in three Weeks time since every body knows the Cities might have called Common Councils and the Towns and Burroughs by the notice of their proper Officers to whom the Writs were delivered might have assembled at their common Halls or Town-houses immediately upon the receipt of the Writs and these together with the Knights Citizens and Burgesses joyn with the great Lords and Tenants in Capite made up the infinita Nobilium multitudo mentioned by Mat. Paria But your main Objection I confess is behind how these Representatives of the Commons here called infinita Nobilium multitudo could be the Knights Citizens and Burgesses whose number could not be at that time above 500 Persons As for this pray consider if the difficulty will not bear as hard upon you for if your Tenants in Capite made such a vaft multitude all those difficulties will arise that you press me with upon my Hypothesis of the meeting of all the chief Free-holders or Lords of Manors in England in Parliament before Knights of Shires were introduced in the room of them viz. How it was possible for so great a multitude to debate vote or do any business and what Room or Church was able to hold so many and the like so that granting all your smaller Tenants in Capite who had but one Knights Fee apiece to have met there these might have made a body of 5 or 5000 Men which how they could have been managed any better then 20000 or 30000 which would have more then taken in all their Feudatary Tenants too I desire you would resolve me if you can so that at last upon your own Hypothesis this Populus consisting of the Tenants in Capite were as much Commoners as the Knights oâ— Shires at this day for as for the word Nobilium I have already proved and you must needs here grant it that it takes in the inferior Nobility or Gentry under the degree of Lords as well as the Superior and if so why not all the considerable measu Tenants of those Tenants so that you have hitherto brought no proof but your bare Assertion that under this infinita multitudo Nobilium Populus must be understood only the great Lords and Tenants in Capite since either this Author speaks Hyperbolically or else all the chief Gentry of England of whatsoever Tenure might have appear'd at this great and extraordinary Assembly So that you are under this Dilemma either this Curia which you confess met ex more was the great Council of the Kingdom or it was not if it was not then there was some other greater Council besides that but if it was then it will plainly follow though you do all you can to mince the matter that this great Council of the Kingdom or Parliament met of course by ancient custom three times in the year without any Summons at all from the King which if I should have affirmed you would have called it a Common-wealth Notion since nothing can be a greater proof that this Assembly of the whole Nation in Parliament did not upon your Hypothesis immediately depend on the Kings Writs of Summons for their Assembling and Acting when met M. Well since you can bring no direct proof that these were any other besides the Tenants in Capite who met at this great Council I have still more reason to suppose them to have been so then you can do for the conorary Opinion therefore pray give me if you can some clearer and later proofs for this difference between the two Councils F. I shall comply with your desires and in order to it shall conclude with two or three of those very Authorities the Doctor has given us in his Answer to Mr. P. where he gives us this passage out of Mat. Paris in the 2â—â—th of Hen. 3. which plainly proves the Tenants in Capite not to have been the common University or sole Rep. esentative of the whole Kingdom â— pray read it Eâ—â—â— in Anno convenerunt regis summonitione convocati Londinum Magnates totius Regni Arciâ—pisâ—ori Episcopi Abbates Priores Comites Barones in quo Concilio portis Rex oâ—e proprio in presentia magnatum i. e. of all the parties above mentioned in Refectorio Westmonasteriensi Axilium sieri pecuniare cui fuit responsum quâ—d super â—oc tractarent â—recedentesque Magnates de Râ—fectorio convenerunt Archiepiscopi â—â— Episcopi Abbates Priores seorsim per se superque hoc diligenter tractaturi â—andâ—m requisiti fuerunt ex parte eorum Comites Barones si vellent illis unanimiter conâ—entire in responsione previsione super hiâ— facienda qui responderunt scâ—licet Comites Barones quod sine communi universitate nihil facerent ture de communi dissâ—nsu electi fuerunt ex parie cleri Electus Cant. c. Now I think here is as manifest a distinction as need to be between the Lords and Commons as Members
of the great Council and the common University of the whole Kingdom for it is obvious that when all the Lay Lords Earls and Barons to whom you may also add your Tenants in Capite if you please being met together were asked by the Bishops Abbots and Priors then present whether they would agree with them or not the Eaâ—ls and Barons answered for themselves that they would do nothing without the Common Vniversity which could not possibly be only the Lords Spiritual and Temporal and Tenants in Capite since it is plain they were now all here and referred themselves to another distinct order of Men different from themselves who were not there present as also from the Bishops Abbots and Priors who demanded there Consents to what they had agreed upon Now if the Temporal Lords and Tenants in Capite had concurred here had been the consent of the Common Vniversity of Lords and Tenants in Capite but besides the consent of all these there was notwistanding it seems required the Consent of another body of Men called here the Communis Vniversitas by which must be meant the Commons or no body since otherwise they might have all agreed together without any more ado M. I confess this Story out of Mat. Paris looks somewhat plausible at the first on your side but I doubt not if it be better considered it will do you little Service for what if by this Common Vniversity is to be understood the whole body of lesser Tenants in Capite who not â—itting with the Lords at that time they would do nothing without their Consents till it was proposes to them but that they did afterwards all agree pray read the rest of this Narration and it will make it clear enough that this Common Vniversity of Tenants in Capite did also agree with the Lords Bishops and Abbots the words immediately following in Mat. Paris are these Tunc de communi assensu electi fuerunt ex parte cleri Blectus Cantuariensis Wintoniensis Lincolniensis Wigoriensis Episcopi ex parte Laicorum Richardus Comes Frater Domini Regâ—â— Comes Bigod Comes Legr S. de Monteforti Comes Maresâ—ballus ex parte vero Baronum Richardus de Montfiâ—hes Iohannes de Baliol de Sancto Edmundo Rameseit Abbates ut quod isli duodecim providerâ—nt in communi recitaretur nec aliqua forma Domino Regi ostenderetur Authoritate duodecim nisi omnium communis assensus interveniret from which last passage it appears plain to me that in this Parliament the several Orders of men that were the constituent parts of it were only the Bishops Abbots Priors Earls and Barons and that all these put together were termed the Common Vniversity which is more comprehensive then University simply taken now if the Commons as at this day represented had been there we must have had some mention of them one way or other as well as of the Committees of the other Orders which made up the general Committee of Twelve so that it is plain beyond doubt that the Commons were not part of the Common Vniversity F. Then pray tell me who they were for the Historian tells that when all these Bishops Abbots Priors had now met together with the Earls and Barons yet these last â—ell them that without the Common University they could do nothing which had been nonsense if as your Doctor supposes the whole University or Community of the Kingdom had been all present M. I must confess this is a material Objection but what if to help him out I should tell you that by the Common University here mentioned is to be understood the body of the inferior Tenants in Capite under the degree of Barons and this Common University of Tenants in Capite might not have been present and sat with the Earls and Barons at that time when the Bishops and Abbots made this Proposal therefore the Lords might very well answer that till they had consulted the Common Universty or Body of Tenants in Capite they could do nothâ—ng and though this Body of Tenants in Capite did not then actually sit with the Earls and Barons yet doth it not follow that they made a distinct Estate by themselves different from that of the Lords or greater Tenants in Capite for then the Arch-bishops Bishops Abbots c. who are here expresly said to have consulted by themselves must have done so likewise therefore though our Author is not so particular as he might have been yet certainly this Common University were thereupon consulted and gave their Assents to the choice of this Committee of Twelve who were to draw up their answer to the King for the words are tunc ex communi assensu electi fuerunt which seem to refer to the Common University or Body of Tenants in Capite or else the Lords Excuse as well as the Election of these Persons by the Bishops Earls c. had been very insignificant F. This seems to me to be a precarious assertion and without any due proof for tho the words are Tunc ex Communi Assensu yet I very much doubt whether these words do refer to the Common Vniversity of the whole Kingdom or not for your self confess that Mat. Paris is short in this point and that it was not so seems most likely to me by this material circumstance that not one Person of the Twelve but was either a Bishop Earl or great Baron For that Richard de Monâ—sichet and Iohn de Baliot were so Sir William Dugdale hath proved in his Baronage of England Whereas if the University or Body of the Tenants in Capite had joyned in this Election it is not likely but they would have chosen some of their own Body to represent them in this Committee who were not Earls or Barons Since your self must confess that they then were a great Body of Men who were not Lords nor did at this time Sit or Act Joyntly with the Lords or greater Barons in this Assembly and likewise it farther seems highly probable that this Common Vniversity of Tenants in Capite take it in your sense did not give any Resolution in this matter since we do not find any Mony given in answer to the King's Request but only Complaints of and orders about Redressing of Grievances which was in those days often done in a great Council of the Bishops Lords and Tenants in Capite But I shall shew you now by some other Records which the Dr. himself hath made use of that there often was a distinct Assembly or Council of the Lords and Tenants in Capite different from that of the Commons or Commonalty of the whole Kingdom The first Record is to be found among the Patent Rolls of the 42. Hen. III. beginning thus Rex omnibus c. cum negotiis nostris arduis nos Râ—gnum nostrum contingentibus Proceres Fideles Regni nostri ad nos London in Quindena Paschae proximae praeterita faceremus convocari
cum de Negoâ—iis supra dictis maxime de prosecutione Negotii Siciliâ—e diligenter cum iisdem tractaremus ac ipsi nobis responderum quod si statum Regni nostri per Concilium Fidelium Nostrorum ratificandum duxerimus Dominus Papa Conditiones cirea factum Siciliae appositas melioraverit per quod Nigeâ—ium illud prosequi possâ—mus cum effectu ipsi diligentiam fideliter apponent erga Communitatem Regni nostri quod nobis Commune Auxilium ad hoc praestetur c. The rest I shall not trouble you with because it is not to our present purpose But you may here see that taking the Words Proceres and Fideles in your own sense the former for the Bishops and Lords c. and the latter for the Tenants in Capite who were called to consult about the business of Sicily which Kingdom the King had before too rashly accepted of from the Pope Yet tho they were all met they could do nothing but give him advice and could give him no Commune Auxilium i. e. common Aids or Subsidies without the consent of the Commonalty of the Kingdom Now what can this Community signifie but the Commons for your Lords and Tenants in Capite were all met already and if they alone made up the Common Vniversity or Body of the Kingdom as you suppose why could they not have immediately granted the King the Assistance he desired if they had a sufficient Power so to do without putting him off with a Promise that they would use their endeavour with the Community of the Kingdom as a distinct order or Body of Men That this Aid or Subsidy should be given him and upon this condition it is that at the end of this Record the King Promises them that before Christmas He would mend the State of the Kingdom per Consilium Proborum Fidelium Hominum nostrorum which can mean nothing less than a Parliament which the next Record in the same Roll recites was to meet at Oxford after the Feast of Penâ—icost which Record since it not only recites the King's Oath whereby he had bound himself to observe the Direction of a Committee of 24â— Fideles i. e. Faithful or Loyal Man 12 of which were to be chosen out of the Kings Council and the other 12. by the Procoreâ— or Magnates Regni which as I have already proved may take in the Commons as well as the Lords but whether by these wordâ— were meant the Lords or Commons The conclusion of this Record sufficiently confirms my Argument from the precedent Record that the Lords and Tenants in Capite could not then Tax the whole Kingdom at their Pleasure without the consent of the Commons or else to what purpose are these words in the conclusion of this last Record Promiserunâ— etiam nobis Comites Barones Memoraâ—i quod expleris Negotiis superius tactiâ— bonâ— fide laboraâ—unt ad hoc quod Auxilium nobis Communâ— praestâ—â—ur à Communitate Regni nostri in cujus rei c. Dat 2. die Maeii And it appears by the Date as also by the entry on the Roll that both these Records were perfected at once and concerning the same business and further to prove that the Parties appointed in the Record to be chosen ex partâ— Procerum were not chosen by the great Lords or Peers only may be seen from a Patent Roll of the same 42. Hen. III. whereby Henry de Wengham Dean of St. Martin le Grand and then Keeper of the Great Seal and Iohn Manseâ— Provost of Beverlay were two of the said Commissioners tho they were neither Barons nor Tenants in Capite as I know of hue only Eminent Lawyers and Men of great Abilities and so meer Commoners Yet Mat. Westminster calls these Men Proceres as you may see by this Passage speaking of this whole Committee Videntes ergo Proceres antedicti viginti quatuor ad Regis Regni regimen 〈◊〉 Electi c. I shall only now conclude with a French Record which the Dr. himself hath also given us at large and which refers to the said Committee of 24. above mentioned it begins thus Henry par la Grace de Dieu Roy d' Engleterre c. a touz ceus c. Sachiez ce pur le profit de nostre Reâ—ume é a la Requeste de nos â—auz Homes é Prodes Homes é du Commun de nostre Râ—aume Otreyames es vinc quatre Homes eusâ—ent pâ—â—r perqâ— tous ce quil ordencirent del Estat de nostre Reaume fust serm é Stable the rest being very long you may read at your leasure only I shall take notice of the date of this Letter to which the King also put to his Seal The conclusion being thus Coste chose feu feite a Lundre landemaigne prochein apros la Gaule bauâ—â—l'an de nostre corronement quarente secundo and tho the Dr. caâ— make nothing of the words Gaule baut this happened I suppose either from the bad Writing of the Record or from the Ignorance or Mistake of the Transcriber for it should be Gaeule d' Aut that is the Gula of August which is a great Holy Day in the Church of Rome upon the First of August called also St. Petri ad Vincula in the Memory of St. Peter's Chains curing of a Roman Virgin by her Kissing them I shall only observe from this Record that the Hauz or Prodes Homes mentioned in this Record being taken in the Drâ— own sense for High and Wise Men that is the Earls and Barons yet the words è du Commune that immediately follow them must needs signifie some Body of Men different from the former or else it had been a notorious piece of Nonsense since if the former words had taken in all the Lords and Tenants in Capite that is in your sense the whole Community of the Kingdom to what purpose are these words è du Commune that are immediately subjoyned since the hauz Prodes Homes would have served to express all the Lords and Tenants in Capite whether taken as Great or as Wise Men. M. I confess what you have now said would carry some weight with it were I not very well satisfied that you impose upon your self by taking as I told you at our last Meeting these words Communitas le Commune Communalti in a wrong sense for the Commons as they are now when indeed these words before the 49th of Hen. III. nay the 18th of Edw. I. as the Learned Dr. shews us in his 2d Edition against Mr. P. are always to be understood either of the whole Representative Body of the Kingdom in general consisting of the Bishops Abbots Earls and Barons together with all the Tenants in Capite called by Mat. Paris and other Historians Communitas Baronagii or else for the Community of the Tenants in Capite alone Stiled Communitas Regni in our ancient Records And this I think I can prove to
Indeed if the words had been Milites libere Tâ—nâ—ntes qui de Rege tenuerunt in Capite you had said somewhat but otherwise it is all meer supposition without any ground But pray go on to the last woâ—ds in this Charter omnes de Regno nostro what can they mean â—ut that all the Freemen of the Kingdom gave this Fifteenth by their Lawful Representative M. If you do not like our sense of these words Milites and Libere Terentes I cannot help it nor shall I dispute them longer with you but as for this last Clause in the Charter omnes de Regno it only means all these who were Tenants in Capite in general in the same sense as when our ancient Historians mention Regnum Sâ—cerdotium by Regnum is to be understood both the Temporal and Spiritual Barons great and small the Kings Justices or any other that exercited any share or Ministerial part of the Government as perhaps all those diâ— one way or other by coming to our great Councils or Parliaments c. all which is evident from the words of the Quadri partiâ—e History concerning Thomâ—s Becket thus Rex apud Clarendun Regnum convo aâ— universum Quò com venisâ— ut Prasules Proceres c. i. e. the whole Baronage called together by the Kings Writ or a full meeting of the Spiritual and Temporal Barons both great and small I pray also remember that passage you your self made use of but now out of Mat. Paris whereby you would prove that the Common Council of the whole Kingdom was distinct from that of the Tenants in Capite because that after the Curia held at Christmass the King immediately issued out his Writs commanding omnibus ad Regnum spectantibus to appear at London and yet you see there are no more mentioned to be Summoned than the Archbishops Bishops Abbots Priors Earls and Barons So that we may hence learn the true meaning of these words omnes de Regno at the end of this Charter for these omnes de Regno were the same with the omnes ad Regnum spectantes in Mat. Paris the Regnum or Government the Communitas Regni the totalis Regni universitas the insluita nobilium multitudo and also gives us the meaning of those words omnes alii de Regno in the close Roll of the 19 th Henry the Third to the Sheriff of Somersershie Scias quod Comites Barones omnes alii de toto Regno nostro c. Concesserunt c. Which are further explained by a Writ in the same Roll about the same business directed to the Sheriff of Sussex which you have likewise cited beginning thus Sciatis quod Arohiepiscopi Episcopi Abbates Priores Comites Barones omnes alii de Regno nostro Angliae qui de nobis tenent in Capire nobis concesserunt c. Here the omnes alii de Regno were the omnes qui de nobis tâ—nent in Capite which were then all the Regnum or Communitas Regni So likewise it may be farther proved from a Record of the 48 th of Henry the Third Rex omnibus c. cum venerabiles Patres G. E. Eborum Archiepiscopus c. alii Praelati Magnates Milites libere Tenentes omnes alii de Regno nobis nuper in Articulo necessitatiâ— servitium fecerunt sulisidium c. And I may also put you in mind of the Writ I cited but now directed Archiepiscopis Episcopis c. Comitibus Baronibus Militibus omnibus aliis de Comiâ—aru Kanciae c. for the Levving of forty Shillings upon every Knights hee in that Country Now this Writ could not be directed to all the Men in Kent but to all such as paid Scutage for not a fortieth part of them were Tenants in Capite or Military Service So that these omnes alii de Regno and Omnes alii Comitatus were the same one with the other and otherwise it could not be for by Omnes de Regno or Omnes alii de Regno the Inhabitants in general could not be understood for they never were Summoned no not the Hundredth part of them to meet in Great Councils for 't was impossible they should and perhaps not above a fourth part of the Kingdom paid to this Fifteenth if we consider how many Servants Villainâ— Bondmen and many such People there were than in the Nation that paid nothing F. You have taken a great deal of pains to perplex and darken words in themselves very clear and perspicuous for methinks it is a strange piece of confidence in your Doctor when the Charter says expresily That Omnes dâ— Regno all the Freemen of the Kingdom gave this 15th to restrain this Act only to the Tenants in Capite who were but a few in comparison to the whole Kingdom this is indeed to make words signifie any thing he fancies But to answer your Authorities which are founded all upon false suppositions without any proof As to your Authority from the Quadrilogus History of Thomas Bâ—ecket it is true that the Praesules and Prâ—ceres are there called Regnum the Kingdom but I have already proved at our last Meeting that this word Proceres was of so comprehensive signification that it took in all the Principal Men of the Kingdom as well those that were Lords as those that were not so that the chief Citizens and Magistrates of our Cities and great Towns are often stiled Proceres Magnates Civitatum in our ancient Historians and Records and certainly the great Free-holders or Knights of Shires did much more justly deserve that Title As for the other passage out of Mat. Paris where the Bishops Abbots Earls and Barons are called omnes ad Regnum spectantes this is but a general way of expression in this Author and proves nothing For either the word Barones takes in all the smaller Tenants in Capite or it does not if the latter then this Author does not exactly recite all the Orders of Men whom your self must acknowledge to have appeared there since the great Barons alone could never make this infinita Nobilium multitudo mentioned in this Author if the former then it is plain that he thereby comprehended more then those who were really Barons Since it is certain that the smaller Tenants in Capite were not so nor are so much as called so in King Iohn's Charter and then make the most of this word Barones it may in a large and common acceptation take in all the chief Free-holders or Lords of Mannors which as I have already proved were often called Barons in our ancient Historians and Laws of the first Norman Kings and Mr. Cambden tells us that under the word Baronagium omnes Regni ordines continarentur This I say supposing that by this infinita Nobilium multitudo is to be understood all the cheif Gentry or Free-holders of England called often Nobilitas Angliae as I have already made
will not affirm But least I tire you as well as my self in dwelling so long upon things so plain and obvious were not they by too much industry rendred obscure I come at last to the conclusion of your discourse which is no more then a repetition of what you had said at first that because all the Kingdom could not be Summoned to appear in Parliament and that Villains and Servants c. never paid to this Tax that therefore the words omnes de Regno are not to be understood literally a doughty discovery and therefore you have found an expedient to help this contradiction by your Tenants in Capite and Thy Knights Citizens and Burgesses for the Laity and by the Procuratores Cleri for the Inferiour Clergy whose Interpretation is most agreeable to truth I durst leave to any indifferent Judge for I must needs tell you once again I cannot see any manner of reason either from Authorities or from the Nature of the thing that your Tenants in Capite could be the omnes de Regno in a legal sense and as such did represent all the Freemen of Estates in the whole Kingdom therefore if you can prove this it may go far to convince me otherwise not M. Since you will not rest satisfied with those Authorities I have already produced to prove it pray let me discourse with you a little more particularly of the nature of Tenures by Knights Service I therefore suppose that the Dr. hath very well prove by several Records as also the two Writs of 19th Hen. III. to the Sheriffs of Somerset and Sussex that the King anciently by his Prerogative and his original Power and Right reserved upon Knights Fee did Tax the Military Tenants of his Tenants in Capite and their other ordinary Free Tenants and by his Writs caused them to pay both â—cutage Tax and Scutage Service and other reasonable Aids as often as necessity required F. I grant indeed the matter of fact to have been sometimes as you say since there is no averring against express Records but I say likewise that as for those Writs the Dr. has given us concerning the Kings Ordering the Sheriffs to distrain the Mesne Tenants of the Tenants in Capite for Scutage Service as to Marry their Daughters or for the finding of Men in any Warlike Expedition it was no more then those Mesne Tenants were bound to do by the Tenures of their Estates if they had failed to serve their Lords in Person or by sufficient Deputies and therefore the King might legally grant them Scutage upon such Tenants and perhaps might also change their Service in Person into a pecuniary Aid as appears by some of those Writs the Dr. has given us and this not by his Prerogative but by Law so likewise tho your Tenants in Capite could Tax themselves in their distinct Council or else in the Common Council of the whole Kingdom at what rate they pleased for the Knights Fees they held of the King and tho the King might sometimes undertake by this pretence to I evy a Scutage of two Marks on their Under-Tenants also yet does it not appear by either of those Records you have now cited that they gave for more then themselves alone the words in the Writs being only that they had given the King Esseâ—ax Auxilium of two Marks upon every Knights Fee as well Wards as others who held of him in Capite without any mention of their Mesne Tenants so that if the Sheriff was afterwards ordered to distrain these Mesne Tenants also for two Marks for each Knights Fee they held of their Lords this was straining a point of Prerogative and was expresly against Law for at this rate the King might by the lâ—ke Prerogative have Taxed all the Bishops Abbots great Lords and all other Tenants in Capite without their consents as well as their Mesne Tenants tho it was contrary to the express words of the Charters of King William I. and King Iohn which you your self cited at our former Meeting so that granting the matter of fact to have been practised sometimes as your Records make out this is no proof that this was a constant Law or settled Custom much less that the King had a right so to do M. I do not doubt but that I can prove to you that what this King then did in charging these mesne Tenants was according to his ancient Prerogative and what himself and his Predecessors had frequently done both before and after the Clause in King Iohn's Charter of Nullum Scutâ—gium vel Auxilium ponam in Regno meo â— was granted nay after it was granted Hen. 3. and Edw. 1. taxed their Demeasns through England tho not the whole Kingdom by the advice of their Privy Council until the Statute de Tallagio non concedendo was made in 34 Eâ—w 1. and both Rich. 1. and K. Iohn had taxed the whole Kingdom without common assent before the Grant of Magna Charta as also in the Reign of Rich. 1. as you may find in Hoveden who lived at that time the passage is long and therefore I shall only give you the beginning of it viz. that this King Anno 1198 Regno 9. accepit de unaquaque Carucata terrae totius Angliae V. solidos de Auxilio c. and then goes on to shew us the manner how it was raised and collected and 't is observable that he uses these words Auxilium and Tallagium for the same Tax so we find in Mat. Paris that King Iohn took a seventh part of all Moveables without common Assent and another time a Thirtieth the great Men and Clergy grumbling at it K. Hen. 3. also taxed all his Demeasn in the 33 d year of his Reign as appears by a Writ in the close Roll of this year whereby he also commands the Sheriff of Buâ—ks that he make Philip Basseâ— a Ratiâ—nabilâ— Tallagium de hominibus suis de eo tenentilus in Mannerio de Wycumb quod aliquando suit Dominicum Praedecâ—ssorum Râ—gis c. In the 39 th year this King as the Doctor shews us at large by a Recoâ—d in the keeping of the Remembrancer of the Exchequer he taxed all his Demeasn and among the rest the City of London at 3000 Marks which tho with some contest mentioned in this Record they were at last forced to pay because it was found upon Record that this King and his Father had several times â—alliated or Taxed the saiâ— City in like manner at the sums therein mentioned so that at last the Mayor and Citizens were fain to acknowledg themselves thâ—s Talliable by the King So in the 52. year of his Reign he Taxed all his Demeasn Lands beyond Trenâ— by his Escheators and this Right was acknowledged by all the Bishops Earls and Barons in the 33 d year of Edw. I. as appâ—aâ—s by their Petition to him in Parliament in these words Al Pâ—tiâ—ionem Arcâ—iepiscoporum Episporum
Praelatorum Comitum Baronum aliorum proborum hominum de Terra pâ—tentium quod Rex concedere veli quod ipsi pâ—ssunt taâ—â—iâ—re antiqua dominica unde sunt in Tenantia â—icut Râ—x Dominica sua taliavit itâ— responâ—um est fiat ut petitur From all which you may plain see that the Kings of England had anciently a Prerogative of laying Taxes not only upon their own Tenants and their Mesne Tenants who held under them but upon the whole Kingdom too and it their Successors have acted otherwise it has proceeded from their meet grace and favour who have tyed up their owne hands from exercising this Prerogative F. I confess you have muster'd up a great many Authorities but for what end I know not unless it be to prove that some former Kings stretcht their Prerogative to act directly against Law and their own Charters to the contrary and to justifie them in it when they have doâ—e as if all things were done according to their Lawful Prerogative because they did it if this be Law or Reason either much good may do you with it for at this rate the King notwithstanding all Laws made and sworn by him to the contrary may take what he pleases out of our Estates without our consents because his Predecessors broke the Laws and their Coronation Oath into the Bargain but you might have remembred that a de fâ—cto ad jus non datur consequentia but I doubt the Precedents you have now brought will not come up to the proof of the assertion you have laid down for it is plain as well from King Iohn's Charter as by that passage in Bracton I but now cited whereby it appears that extraordinary Taxes such as Hidage Corage and Carvage alia under which I suppose was included your Scutage-Tax also could not be imposed without the consent of the Common Council of the whole Kingdom when the King met his People in Parliament if then this were Law whatever K. Iohn oâ— Henry the Third or any other King acted contrary to this Rule was illegal and produced among other mischiefs the general revolt of all the Baronage i. e. as well the Inferior as Superior Nobility of the whole Kingdom till such time as our Kings finding they could do no good by force were fain at last to content themselves with the Legal Prerogatives of the Crown and by new Laws and fresh Declarations of the ancient Law to declare it unlawful for them to impose any Taxes upon their Subjects without their consents in Parliament But let me tell you that by thus setting up the Kings Illegal Prerogative of taxing the Mesne Tenants of their Tenants in Capite you quit the question for I asked you by what right the Tenants in Capite whom you suppose could grant by this great Charter a Fifteenth of the Moveables of the whole Kingdom as well of those who did not hold of them by Military Service as of those that did nay of those who never held of them at all and you then fly presently to I know not what unknown Royal Prerogative of Taxing the Mesne Tenants of the Tenants in Capite at pleasure which was either according to Law or it was not if the former I have already proved he could not do it by Law at all but if against Law there was the like reason why he should have had the like Prerogative over his Tenants in Capite too even over the very Bishops Abbots and Temporal Lords and then I desire to know whether the great Council of the Kingdom had not been long since destroyed and given up But to examine your Authorities it is true Hoveden says of Richard the First that accepit de unaquaque Hida Terrae V. solidos yet does it not therefore follow that he took this Tax without consent of his great Council it was the ordinary Phrase of Writers in those times to say Rex accepit i. e. received such a Tax when indeed he took nothing but what was given him by his Parliament And therefore tho we find this Tax not mentioned in any other Writer but only Hoveden and so cannot give you an express proof that this Tax was granted in a great Council yet it is most likely nay certain it was for the word accepit does not in its own nature import any violent or illegal exaction and therefore considering the nature of the thing it is greater reason to suppose that this aid was granted by consent since this same Author tells us in the relation of this affair that this Money was received by the hands of two lawful Knights of each Hundred and that they did answer this Money to the Exchequer Coram Episcopis Abbatibus Baronibus ad hoc assignatis who would never have undertaken it had not this Tax been granted by the Common Council of the Kingdom but that this King could not tax the whole Kingdom at his pleasure may appear by a relation out of this very Author in the very same year but a little before viz. that when the King demanded by Hubert Archbishop of Canterbury that Homines Angliae the men of England should find him 300 Milites i. e. Knights to stay one whole year in his Service or else would give him so much money as that he might therewith maintain those 300 Knights in constant pay viz. to every Knight three Shillings of English Money wages a day and that to grant this all the rest were willing as not daring to resist the King's will only Hugh Bishop of Lincoln as a true servant of God abstaining from all evil answered That he would by no means agree to the Kings desire because it would redound to the detriment of his Church c. and so it seems the business fell and came to nothing Now it is plain that this Request must have been made in the great Council of the Kingdom or at least in that of the Tenants in Capite and if he could not charge his Subjects with the keeping but of 300 Horsemen for one year without their assents can any body believe that he should presently after extort a much greater Sum viz. five Shillings out of every Plow-land in England But as for all your Precedants for King Iohn's reign he was such a Notorious Tyrant and breaker of his Coronacion Oath and common Faith both to God and man that I hoped that neither your self nor any good English man would have fetcht Precedents for Prerogative from so prosâ—igate a Reign as his and in which I grant there were more than once illegal Exactions of this nature which yet are branded by those very Historians that relate them for great oppressions and unjust exactions as particularly in this first instance of out of Mat. Paris of K. Iohn's taking away by force the Seventh of the Moveable Goods of the whole Kingdom which is by this Author called by no better than Rapinam Rapine or Robbery The same I may say
of Parliament and Taxed with the rest of the Kingdom as often as there were Laws made and Taxes given when their Bishop or Earl was present which was not so for in the first place as for the County of Chester if the Earl had been the Representative in Parliament of his Tenants by Knights Service or otherwise as also of all the Abbeys and the City of Chester it self and all other great Towns in that County his Vote in Parliament would have obliged all of them and there would have been no need of a Common Council or Parliament of the States of the whole County in which they then made Laws and Taxed themselves as a Separate Body from the rest of the Kingdom as may appear from these following Records which Mr. A. hath given us the first of which is a Writ of K. Edw. I. directed Archiepiscopis Episcopis Abbatibus Prioriâ—us Baronibus Militibus omnibus â—liis Fidelibus suis in Comitat. Câ—striae reciting that whereas the Prelates Counts Barons alii de Regno had given him a 15 th of their Moveables He desires that they also would of their Benevolence and Courtesie in Latin Curialitate grant him the like Subsidy which Note could not be done out of a Common Council So likewise in another Writ of the 20 th of this King reciting that whereas the Probi Homines Communitas Cestriae sicut caeteri de Regno nostro 15 mam partem omnium mobilium suorum nobis concesserunt gratiose Now supposing as the Doctor always does that these Probi Homines were the Earls Tenants in Capite what can this word Communitas here signifie but another sort of men distinct from them viz. the Communalty or Commons of that County And which is also remarkable this County was now fallen to the Crown for want of Heirs male of the last Earl and so according to the Doctors notion the King being their sole Representative needed not to have been beholding to them for these Subsidies since tho not as King yet as Earl of Chester he might have Taxed them himself which yet he thought not fit to do because he knew it was contrary to the Rights and Priviledges of that County which had ever since the grant of it to Hugh Lupus by Will I. always been Taxed by themselves Which Priviledges are also expressly set forth in a Supplication of all the Estates of this County Palatine to K. Henry the Sixth which Mr. P. has given us from an Ancient Copy of it then in the hands of Sir Thomas Manwaring of that County Baronet Wherein the Abbots Priors and Clergy Barons Knights Esquires and Commonalty set forth that they with the consent of the Earl did make and admit Laws within the same c. and that no Inheritors or Possessors within the said County were chargeable or lyable or were bounden charged or hurt of their Bodies Liberties Franchises Lands Goods or Possessions unless the said County had agreed unto it Now what can here be meant by County but the Common Council or Parliament thereof since otherwise they could make no Laws nor do any other publick Act The like I may say for the County Palatine of Durham which from the Grant thereof by William Rufus to the then Bishop had always been Taxed by themselves and not by the Bishop in Parliament and that as low as the Reign of Edw. 3. as appears by this Record of the 14 th of that King containing a Letter or Commission to R. Bishop of Durham reciting that whereas the Prelates Earls Barons and the Commons of Counties had given him a 9th of their Goods there mentioned that therefore the Bishops should convene the Magnates Communitatem Libertatis vestrae to wit of his County Palatine ad certum diem locum with all convenient speed and that done to perswade and excite the said Magnates Communitas to grant the King the like or a larger Subsidy or Aid towards the maintainance of his Wars which had been altogether in vain if the Bishop or the King could in those days have Taxed this County at their Pleasure Now if these great Tenants in Capite could not Tax their Mesne Tenants without their consents much less could the rest of the Tenants in Capite in England impose Taxes on their Tenants in Military Service or in Socage without their consents which last had a much less dependance upon them M. I must confess I never considered these Precedents of the County Palatine of Chester and Durham and therefore can say nothing to them at present since it is matter of fact but as to Reason and Law I think it is consonant to both that not only Tenants in Military Service but Socage Tenure should be found by the Acts of their Superior Lords of whom all the Lands of England were formerly held by Knights Service And tho in Process of time many of these Estates and Lands became free Tenements or were holden in Socage that is were Free holders yet the Lords retained Homage which in the times we now write of was no idle insignificant word and by that a Dominion over the Estate whereby upon Disobedience Treachery or Injury done to the Lords c. the Lands were Forfeited to them and although the Lands nor the Tenants of them which were termed Free-holders were subject to any base Services or Servile works yet the Lords had a great Power over these Tenants by reason of their doing Homage to them which tho now antiquated yet eo nomine their Lands were many ways liable to Forfeiture and Taxes too So that upon all thesâ— accounts it was then as reasonable that the Tenants in Capite should in those days make Laws and grant Taxes for all the rest of the Kingdom as the Tenants in Capite in Scotland should do so to this very day for all the Inhabitants of that Kingdom of never so great Estates and to this Argument which is certain in matter of fact you have yet answered nothing nor do I believe can F. I cannot see notwithstanding what you have now said that the Superior Lords by reason of Homage should have an absolute Power over their Tenants Estates For tho in the Profession of Homage to the Lords I grant the Tenant thereby promised to become the Lords Man yet he never thereby meant to become his slave and there were mutual Duties on both sides so that if the Lord failed to protect his Tenant in his Estate or unjustly oppressed him he might have refused nay renounced his Homage till the Lord had done him right nor can I see how a bare right of having the Forfeiture of the Estate in the Cases you have put which yet let me tell you were never so strict in respect of Socage as Military Tenure as I could shew you were it worth while for if this right of Forfeiture alone could give the Superiour Lord a Power over his Tenants Estate to make Laws for
and Burroughs from times beyond all Memory sent their Proxyes and Representatives to the Parliament in Scotland and that each Citizen and Burgess so sent had as good a Vote in their Parliament as the greatest Bishop or Earl of them all M. I desire no better proofs then what your self have now brought to make out that the Tenants in Capite are not only at this day but have been from the very beginning of Parliaments in that Nation For I shall appeal to those very Statutes and Records you have now cited which compared with divers subsequent Statutes of that Kingdom will make the matter plain enough that the Communitas and these probi homines mentioned in these Laws you have cited were the Community of the Tenants in Capite only In the first place therefore let me observe from that very Law of King Alexanders the Title of which you have but now quoted that these words per essenssum Communitatis cannot here signifie the Commons since they alone could neither advise nor give their consent to make Laws and therefore they must needs refer to the whole Community or Assembly of Estates consisting of Tenants in Capite only as I shall prove by a Parliament of King Rob. III. who began to Reign Anno. Dom 1400. in the 10th year of our Richard II the Title is thus Parliamentum Domini nostri Roberti III. Scotoâ—um Regis c. vocatis summonitis more solito Episcopis Prioribus Duâ—ibus Commitibus Baronibus Liberis Teâ—entibus Burgensibus qui de Domino Rege tenent in Capite and this is also confirmed from the Title to a Parliament held at Perth Anno. Dom. 1427. being the 23d of King Iames I. Summâ—nitis voâ—atis mâ—re solito Episcopis Abbatibus Prioribus Comitibus Baronibus Liberi Tâ—nentibus qui de nobis tenent in Capite de quolibet Burgo certis Buâ—genfibus so that I think nothing can be plainer from these ancient Statutes then that the Scottish Parliaments did anciently consist of no other Members then the Bishops Abbots and Priors Dukes and Earls Barons Free-holders and Burgesses which held of the King in Capite Having thus shewn the ancient Costitution of the Scotish Parliaments for your satisfaction I shall farther shew when and how it was altered In the Seventh Parliament of King Iames the First held at Perth A. Dom. 1420 there was a Law made which I shall contract That the small Barons and Freeholders need not to come to Parliaments and that for the future out of each Schirefdome there should be sent two or more wise men after the largeness of the Schirefdome the which shall be called Commissaries of the Shire and that these should have full power finally to hear and determine all causes to be proposed in the Great Council or Parliament and that the said Commissaries should have Costage of them of each Shire that ought to appear in Parliament or Council I have only given you an Abstract of this Statute because it is pretty long and pen'd in old Scotish English but you may consult it at your leisure And this is farther confirm'd by a subsequent Act of Parliament of King Iames the Sixth holden at Edinburgh Iuly the 29 th 1587 wherein after a repetition of the former Act of King Iames the First and a Confirmation of the same it follows thus And that all Freeholders of the King under the degree of Prelates and Lords of Parliament be warned by Proclamation to be present at the choosing of the said Commissioners and none to have voit in their Election but sik as hes Fourtie Shillings Land in free tenandrie halden of the King and hes their actual dwelling and residence within the same Schire c. I need give you no more of this Act but I think it is most clear from this as well as the former Act of Parliament that the Commons in Scotland were only the Kings Tenants in Capite and are so at this day since none but they can either choose or be chosen Commissioners for the Shires but as to the Buroughs who do each of them send but one Commissioner or Burgess except the City of Edinburgh which sends two all which are chosen by the Common Council of the Towns Now there are in Scotland three sorts of these Burghs that is to say Royal Burghs Burghs of Regality and Burghs of Barony but only the Royal Burroughs the Burgi Dominici Regis or qui de Rege Tenent in Capite send Commissioners to Parliament and are in number Sixty To conclude that I may apply what hath been said concerning the Constituent parts of the Scotish Parliament to ours anciently it seems to me that from the great affinity there was between ours and theirs 't is certain that our and their Communitas Regni was the same that is they were the small Barons and Tenants in Capite F. I cannot deny but that the Parliament of Scotland hath for above these two hundred years consisted of the Bishops Abbots and Temporal Lords together with the lesser Tenants in Capite or their Representatives the Commissioners for Shires and Burgesses of Cities and Towns till the Reformation that the Bishops and Abbots were quite taken away tho the former were restored to their places in Parliament by a Statute made in the latter end of King Iames the First yet I cannot allow that from the beginning of that Government the Scotch Parliaments have consisted of no other Members than those since the word Communitas coming as it does in these old Statutes and Records I have now cited immediately after the Praelati Comites Barones Milites c. must signifie a distinct order of men from the Tenants in Capite called in the Statute of King Iames the First the small Barons and since the Citizens and Burgesses though none of those Barons were also comprehended under this Communitas and whom you grant to make the third Estate why this word might not comprehend all the other great Freeholders I can see no reason to the contrary And therefore I suppose that in the Reigns of K. David 2 d. or Robert the 2 d. or else the beginning of Robert the 3 d. there was a great alteration in the constituent parts or Members of the Scottish Parliament and about that time the chief Freeholders or Lords of Mannors who held of Bishops Abbots and other Temporal Lords as well as of the Tenants in Capite or else of the King by petty Serjeantry or Socage Tenure as also many of the small Towns or Baronies might either forbear coming at all or else desire to be excused because of the great trouble and charge of attendance as you see the smaller Tenants in Capite afterwards did when Commissioners for Shires were appointed in their steads and so might by degrees leave off coming or be excluded by some Law not now extant and thus the Tenants in Capite might become the sole Representatives of the
whole Nation in Parliament and I am of this opinion because in many of the old Statutes before the time of Robert the 2 d. we find the Communitas totius Regni coming immediately after the Earls and Barons as in our own ancient Statutes and Records but after those Reigns we find no more mention of this Communitas but only of the Dukes Earls Barons Liberi Tenentibus Burgensibus qui de Rege tenent in Capite as in the Titles to those Statutes of K. Robert the 3 d and Iames the 5 th you have now cited And yet that Liber Tenens was not anciently taken for a Tenant in Capite only pray see the 14 th Chap. of the Laws of K. Alexander the 2 d. made Anno Dom. 1214. with your Doctors comment upon them Statutum est quod nec Episcopi nec Abbates nec Comites nec aliqui liberi Tenentes tenebunt curias suas nisi Vicecomes Regis vel servientes Vicecomitis ibidem fuerant upon which words the Doctor in his answer to Mr. P. hath this remark viz. this again shews us that the Freeholders were Lords of Mannors at least So that unless you will suppose that none but Tenants in Capite were Lords of Mannors or held Courts as certainly very many of the Mesne Tenants did this word Liber Tenens must extend to any other great Freeholder or Lord of a Mannor of whatsoever Lord he held it and as such might anciently have had a Vote in that Parliament so that if I have as I think sufficiently proved that the word Communitas coming after the Earls and Barons in our ancient Statutes and Records did certainly signifie another order of men distinct from the Tenants in Capite I I have the same reason to believe it was so in Scotland too not only because these general words Communitas totius Regni must needs be more comprehensive than to express the Tenants in Capite only who could never Represent all the great Freeholders in Scotland any more than they did in England but also because it is acknowledged by the Scotch Lawyers that the Fundamental Laws and Constitutions are the same in both Kingdomâ— for Sir Iohn Skene in his Epistle to K. Iames before his Scottish Laws says thus Intelligo tuas tuorumque Majorum leges cum legibus Regni tui Angliae magna ex parte consentiunt which is also acknowledged by the King himself in the Speech he made in Parliament concerning the Union of both Kingdoms To conclude I cannot but admire your Doctors strange partiality who does allow the Commons of Scotland to have even been a third Estate when he expressly grants that the Commons of Scotland were and are at this day the Kings Tenents in Capite and that the Kings Royal Burroughs were such as ever did and do at this day in Scotland only send Burgesses to Parliament Now why the Cities and Burroughs in England should not have always had the like Priviledge as well as in Scotland I wish you could give me any sufficient reason M. Since you own that the Tenants Capite or else Commissioners in their stead have been the sole Representatives for the whole Kingdom of Scotland for above 200 years I doubt not but they were so long before that time since you confess you cannot shew any Law by which this ancient Custom came to be changed though I grant that the Statutes before K. David and Robert the 2 d are said to be made by the Communitas totius Regni yet you must not suppose that Constitution of the Kingdom altered when the Clerks altered their phrases in penning their Statutes and Records so that this Communitas was the Community of the Tenants in Capite only and not of the Freeholders or of the Citizens and Burgesses of the whole Kingdom since as for the former you cannot say that all the People in Scotland had ever a right to chuse the Commissioners for the Shires for then 't is most likely they would have kept to this day whereas we see that none but Tenants in Coplie have Votes at such Elections And as for Cities and Burroughs I cannot find nor do I believe you can shew me any instance of a City or Burrough-Town in Scotland that ever sent Deputies to Parliament but what held in Capite of the King For though there are at I said already besides the Royal Burghs two other sorts viz. Burroughs of Regality and Burroughs of Barony who hold of the King but not in Capite or else of some Bishop or Temporal Lord and though divers of these are considerable for Trade and Riches yet none of them send any Burgesses to Parliament so that though I confess there are three Estates in the Scotch Parliament called in the Statutes of K. David and Robert the 2 d the Treâ— Communitates Regni yet did these always consist of the Tenants in Capite only who therefore sit together and make but one Assembly Now that we may apply what hath been said to England I desire you to take notice that the Doctor and we that are of his opinion do not positively affirm that that the Commons of England were not at all represented before 49 Hen. 4. but that they were not represented in Parliament by Knights Citizens and Burgesses of their own choice but by the greater and lesser Tenants in Capite the greatest part of which I grant were not Lords and admit that I should grant you that some Cities and Burroughs sent Members to Parliament before the 49 th of Henry the Third yet were they only such as held in Capite and no other as the Doctor has very well observ'd in his Answer to Mr. P's argument from the Petition of the Town of St. Albans so that upon the whole matter there will be no more gain'd by you in this Controversie than that perhaps some Citizens and Burgesses appear'd in Parliament and constituted a third sort of men which you may call the Commons if you please though I cannot find they were so called till after the time of Edward the First but supposing this to be so it is very far from your Republican levelling opinion who do suppose that all the Freeholders of England had an ancient indisputable right of appearing in Parliament by reason of their propriety in Lands or other Estates whereas by our Hypothesis we suppose the great Council or Parliament to have anciently been the Kings Court-Baron consisting of his immediate Tenants call'd thither by him their Supreme Lord to advertise him of the Grievances of the Nation and to propose what new Laws were necessary for the publick good of the Commonweal and together with him to raise such publick Taxes both upon themselves and their Tenants as the necessities of the State requir'd yet notwithstanding there is a vast difference between your notion and mine concerning the Rights which such Tenants in Capite might claim of coming to Parliament since before King Iohn's Charter whereby
French Peasants at this day and so were not Reckoned among the Freemen all Freedom consisting then in so much Freehold Lands held in a Man 's own right or being Freemen of some City or Burrough Town and this gives us a reason why Copy-holders and Tenants for years have no Vote in Parliament at this day since it is certain and all our Law Books allow it that at the first all Copy-hold Estates were held by Villenage and the owners of them at first the Villani or Tillers of the Demefnes of the Lord of that Town there being at first no Free-hold less then that of a whole Township since a Mannour and therefore all Copy-holders and Tenants for years or at Will though Freemen are not admitted to have Votes at this day because as I said before Freedom anciently consisted in the Inheritance or Free-hold Estate of Land or in Riches in Trade or Traffick Leases for Life and Years being not known or at least not commonly in Use in those days and hence it is that when Estates of Free-hold came to be divided into small Parcels all Free-holders till the Statutes of Henry IV. and VI. which we have before cited were as much capable of giving their Votes at the Election of Knights of Shires as the best and greatest Tenant in Capite in England till it was reduced by those Statutes to 40 s. Freehold per Annum these Freeholders and Burgesses of Towns being anciently looked upon in the Eye of the Law as the only Freemen and it was these Freeholders alone who owed Suit and Service to the County Court and were amerced if they did not appear This being premised and sufficiently understood will give us a very good account why Copy-holder and Lease-holders for years do not give any Votes at Elections of Knights of Shires and yet the Parliament may still continue the Representative of all the Freemen of the Nation as the People of Rome and the Territories about it were of all the Romans though there were a great many Liberti and in Inqui lini who sure were Freemen and not Slaves and yet had no Votes in theirs Comitiis Centuriatis or general Assemblies of all the Roman Citizens But that the Liberi homines Libere Tenentes de Regno must take in more than your Tenants in Capite the Doctor himself is at last forced to confess in his Glossary notwithstanding his maintaining the contrary in the body of his Book viz. that the Liberi Homines Libere Tenentes mentioned in Iohn's Magna Charta were not only the Tenants in Capite but their Retinue and Tenants in Military Service also and whom he there supposes to have been then the only men of Honour Faith and Reputation in the Kingdom and if so might certainly have been chosen Knights of Shires as well as any of the Tenants in Capite though this is but Argumentum ad Hominem for the truth is that the Mesne Tenants by Military Service were not the only men of Faith and Honour in those times since it is certain the Kings Tenants in Peâ—yt Serjeantry and of some Honour or Castle or else his Tenants in Socage besides those who held of other Mesne Lords and the Tenants of those Abbots and Priors who did not hold in Capite and yet were very numerous were men of as much Faith and Honour as those that did since many of them possest as good if not better Estates than the Tenants in Capite themselves so that you are certainly mistaken in matter of Fact when you say the whole force and strength of the Nation lay in their hands for if you mean Legal force I have already proved that the Tenants in Capite had no Legal right to give away the Estates of their Mesne Tenants or to make Laws for them without their consents who were altogether as free as themselves Servitiis suis debitis solum-modo exceptis as Bracton tells us much less for so great a Body of Men as I now mentioned who never held of them at all and consequently could not upon your own Hypothesis be ever represented by them but if you mean a Physical strength or force though this can give no Natural much less Legal right for one Man to Lord it over another yet even this was much farther from truth since the Mesne Tenants of all sorts as well by Military Service as in Socage together with those above mentioned who never held of the Tenants in Capite at all made six times a greater Body of Men both for numbers as well as Estates then all the Tenants in Capite taken together But to conclude neither is your remark upon my Authorities from Gheller and Durham at all to the purpose for I have sufficiently proved that those County Palatines were not at first concluded within the general Laws and Taxes of the Kingdom since they had their particular Councils for both within themselves as the Supplication of the Estates of the County Palatine of Chester sufficiently declares and certainly Durham had the like Priviledges since I never heard that the Men in that County were more Slaves to their Bishop then the Cheshire Men to their Earl and tho I grant that about the confused Times of King Hen. VI. there was a great breach made on the ancient Liberties of these two Counties Palatines and if the King and Parliament made Laws for and Levyed Taxes upon them though they had no Representatives therein this proceeded partly from their being over-powered by the rest of the Nation and partly by the ease they found in being excused from the Expences of Knights of Shires and Burgesses which all the rest of the Kingdom was at that time liable to and which came to a great deal of Money Four shillings per diem being in those days more then Forty Shillings now and yet you see at last they were aware of their Errour and at their request got the Priviledge of having Representatives in Parliament of their own choosing as well as the rest of the Kingdom and if this had not been a certain right of English Subjects how came the Welsh Counties which were anciently no part of the Kingdom of England to have been admitted to choose one Knight for each County and Burgesses for each Burrough Town as well in North Wales as South Wales though both these were Conquered Countries at the first and incorporated to England by particular Statutes and therefore we have no reason to deny the Truth of Bracton's and Fortescue's assertion that no Laws are made nor Taxes imposed in England sine consensu communi â—uius Regni or as the latter truly adds in Parliamento and certainly this word common Assent must take in all their Assents who had Estates either in Land or other Riches at that time when this Law was Established But leaving this dispute about Scotland and the County Palatines pray make an end for it grows late and give me the rest of your Reasons
why the Commons could not be represented in Parliament before the 49th of Hen. III. and 18th of Edw. I. M. I will proceed to do it and for this end shall reduce my Arguments to these three Heads the first is some Writs found out and produced by the Doctor whereby he proves that the Commons were not Summoned during the Reign of Hen. III. till the 49th secondly the general silence of all Statutes in Hâ—n III. Reign wherein is not one word mentioned of the Commons but rather to the contrary thirdly the critical Time viz. in the 49th of Hen. III. when the Commons were first called during Monsfords Rebellion fourthly their discontinuance from that time till the 18th of Edw. I. there being no mention made of them in all the rest of the Reign of Hen. III. nor yet of Ed. I. till the 18th in which the Doctor shews you a Writ not taken notice of before by which the Commons were Summoned a new to Parliament Lastly from the uncertainty of the manner of the Writs of Summons whether for one Knight or two Knights and sometimes no Citizens and Burgesses at all which sufficiently prove the Novelty of the Institution as also of some Parliamentary Forms relating to the Commons which shew that neither their number nor manner of Election was settled long after the Reign of Edw. I. To begin therefore with the first Head I know the Gentlemen of your opinion make a great Noise about the loss or rather defect of the Writs of Summons and Parliament Rolls of all the Kings till the 23d or 25th of Edw. I. So that we cannot be so well assured what was done in Parliaments of those times as we may be afterwards Yet there are still some Writs of Summons Extant upon the Close Rolls before and in those times by which the Bishops Earls and Barons were Summoned to Parliaments or great Councils And we have all the Close Rolls of King Iohn and Henry III. on the Dorseâ— of which anciently most of the Writs of Summons to the Commons in other King's Reigns are entred few on the Patent Rolls which we have likewise 'T is therefore very strange if the Commons were then represented by Knights Citizens and Burgesses and Summoned to Parliament as at this day that there cannot be found any Summons to them upon these Rolls as well as to the Lords But the Learned Doctor hath for our Satisfaction found out three Writs of Summons to the Lords one in King Iohn's Reign and two other of Hen III. The first is in the Close Roll 6th of King Iohn directed to the Bishop of Salisbury which is needless here to be repeated Verbatim only pray take notice of the material words of this Writ where after the Cause of the Summons particularly expres'd it concludes thus expedit habere vestrum Consilium aliorum Magnatum Terrae nostrae quos ad diem ilium Locum fecimus convocari The second is in the Close Roll of the 26th Hen. III directed to W. Arch-bishop of York wherein he is likewise Summoned ad tractandum Nobiscum una cum caeteris Magnatibus nostris quos similiter fecimus convocaâ—i de arduis Negotiis nostris statum nostrum totius Regni nostri specialiter tangentibus with this note underneath eodem modo Scribitur omnibus Episcopis Abbatibus Comitibus Baronibus The third is of the 38th of the same King directed to Boniface Arch-bishop of Canterbury whereby he is Summoned to be at Westminster within Fifteen days after Hillary next coming before the Queen and Richard Earl of Cornwail about the Affairs of Gascony and this very Council Mat. Paris Anno. Dom. 1254. calls a Parliament to which all the Magnates or great Men of England came together the Day of which Meeting he makes to have been the 6th of the Calends of February being St. Iulian's day and which fell one within Fifteen days after St. Hillary's Day which was that appointed for the Meeting of this Parliament by the aforesaid Writ of Summons and who were the Constituent parts of this Parliament may be be farther made out by a Letter of the Queen and Earl Richard to the King then in Gascony which is recited by Mat. Paris in his Additaments in these words Domino Regi Angliae c. Regina Richardus Comes Cornubiae Salutem Recipimus literas Vestras ad Natale Domini proximae praeteritum quod in Crastino Sancti Hillarii Convocaremus Archiepiscopos Episcopos Abbates Priores Comites Regni Angliae ad ostendendum c. Whereby it appears who were then the Constituent parts of Members of our English Parliaments viz. the Archbishops Bishops c. Earls and Barons of the Kingdom So that there is no such Universal silence concerning the Constituent Parts of our Parliaments as you and those of your Party suppose from the loss of the Parliament Rolls of those times most of which though I confess are lost yet there are enough left to satisfie any reasonable Person that there were then no Commons in Parliament in the sense they are now taken F. You cannot give me a better demonstration of the loss of the Parliament Rolls and Writs of Summons than what you now offer for if we have all the Close Rolls of King Iohn and Henry III. on the Dorses of which you tell me the Writs of Summons use to be entered then certainly those to the Lords were there entered also and if so how comes it to pass that in above Eighty Years time in which there must be above Eighty Parliaments you can shew me but three Writs of Summons and those only to as many Bishops and to no Temporal Lords at all If so be these were Parliaments and not great Councils of the Bishops Lords and Tenants in Capite only as I rather believe they were for you rely too much upon you Doctors credit when you alledge that we have all the Close Rolls of King Iohn and Henry III which is a great mistake for I have had a Friend who has given me a note of what Close Rolls are still Extant in those Reigns and what are lost which you may here see To begin with King Iohn pray observe that all the Close Rolls of the first Five years of his Reigns are gone and so they are in the 9th 10th 11th 12th and 13th for certainly there were some in those as well as in the succeeding years In the next place till the 18th there is but one Roll left of each year but then there are three and after that but one or two in a year to the very end now pray tell me how we can be assured that there was not more then one Roll in every precedent year as well as in the 15th the like I may say for the Reign of Hen. III. which though I grant are more entire then those of King Iohn there being some left us of every year but the 23d yet they are but
a few and for the greatest part but one in each year never but two in any year in all this long Reign unless it be the 39th in which there are four which is very strange that in so busie a time as most of this Kings Reign was there should be no more Rolls left and therefore it seems very probable that at least half are lost and in which might be many Summons as well to the Commons as to the Lords and if they are not lost pray tell me what is become of all the Writs of Summons to your lesser Tenants in Capite who certainly often met in this long Reign according to King Iohn's Charter but if you will tell me they are lost or omitted to be entred upon the Close Rolls I may with like reason and certainty affirm the same of the Writs of Summons to the Knights Citizens and Burgesses for if the one may be lost sure the other may be so too But what if after all these Writs you have produced were not any Summons to a Common Council or Parliament at all but only to a great Council of the Tenants in Capite which I have great reason to believe not only because the Title to the last Writ is only Summonitio ad Concilium and not Commune Concilium Regni but also because Mr. Selden and Mr. Pryn who certainly must have seen all these Writs as well as the Doctor and were as able to Judge of them never cite them for Summons to Parliament and Mr. Pryn observes of several Writs in which the like words of Summoning the Lords to give their advice are likewise found that they were only to such Councils or Treatises which were frequently used as Low as the Reign of Richard II. but if these Writs had been Summons to Parliament sure Mr. Selden and Mr. Pryn had no reason to bewail as they so often do the loss of not only of Parliament Rolls but of all Writs of Summons both to Lords and Commons except those of 49th Hen. III. till the 23d of Edw. I. But pray go on if you please to make good the rest of the positions you have now laid down M. I doubt not but in the next place to shew you though 't is true most of our Parliament Rolls are lost both from our ancient Historians and Statutes that there were no Commons in any Parliament during all the long Reign of King Hen. III. except in the 49th of that King I shall begin with the first Act of Parliament we have of the time of Henry III. which was made in the 20th of this King at Merton where though it is said to be provided and granted as well by the Arch-bishops Bishops Earls Barons as others yet the words Aliis and others are to be understood of the Tenants in Capite distinct from the Earls and Barons as I have already proved F. I shall answer your Authorities as you go you may say you have proved it but I know not when and why may not I with as good a Face maintain that these words Aliis do here signifie the Commons if the word Barons must take in all the great Lords and lesser Tenants in Capite as sometimes you suppose it doth when no other Lay-Members are mentioned but I have already observed that this Barones is a Cheveral word and to be stretch'd or contracted as best suits with your Hypothesis So I think I may with greater reason suppose the Earls and Barons to be all comprehended under the word Barones and the Commons under Aliis as I have already proved and which is also most suitable to the last Clause of Magna Charta of King Henry III. But you forget that I have I think sufficiently made out that the Commons had their Representatives both at the making and confirming of Magna Charta in 2d and 9th of Henry III. and therefore whatever proofs you bring to the contrary will come to late though I shall patiently hear what you have to say but if you have no more Authorities to produce from Statutes and Records which have not been already considered Pray proceede to the 49th of this Kings Reign and give me some reasons why the Commons were called in that year and never before nor after till the 18th of Edw. I. for they both seem to me very improbable suppositions M. I shall observe your Commands and shall give you as short an account as I can of this transaction First therefore I desire you to take notice that after Simon Monâ—fort and the rest of the Barons of his Faction had taken King Hen. III. and Richard Earl of Cornwall the King's Brother with many other of the Nobility Prisoners at the Battle of Lewes He carried them about with Him till they had taken in all the strong Forts and Castles of the Land and when this was done Mat. Paris tells us that calling together at London the Bishops Earls and Barons of that Faction which so seditiously held their King Prisoner they began to set up a Committee for the Government of the Kingdom consisting of Twelve Lords who were chosen out of the whole Community or Body of the Baronage without whose advice and consent or at least of Three of them no affairs in the King's Houshould or in the Kingdom should be transacted and to these Ordinances the King and his Son were forced to agree and though the Record of this Agreement recites that this Ordinance was made at London by the consent goodâ—liking and Command of the King and also of the Prelates Barons and of the Community there present yet I am not yet convinc'd that by the word Communitas in the Latin Record is to be understood the Commons but the Community of the whole Kingdom since this Agreement is Signed only by some great Earls and Barons and no Commoner witness to it but the Mayor of London whom your self will grant was no Parliament Man After which Simon Montfort the better to settle himself in his Usurpt Power and in those Lands and Castles which himself and those of his Faction had unjustly wrested from Prince Edward who was now also a Prisoner having delivered himself as a Hostage for the Performance of this forc'd Peace they in the first place sent out Writs in the King's Name unto divers Bishops Abbots and Priors and to such of the Noblemen as were of their own Party to appear at Westminster on the Octaves of St. Hillary next ensuing and the Doctor hath given us a Copy of the Writ of Summons to the Bishop of Durham as it is found in the Close Rolls of the 49th of this King and at the end of it it is thus recited â—eodem moâ—o Mandatum est Episcopo Carleol As also to divers Bishops and Abbots all of their own Party and Faction there being above an Hundred Abbots and Priors then Summoned more than ever were I believe before or since and then follows a short
's particular direction since by the general Writ of Summons provided by King Iohn's Charter the Sheriff of each County was to Summon all the Minor Barons and Tenants in Capite which could not be if only the more Discreet were then Summoned nor is there in this Preamble the least Hint or Intimation of any Writs directed to Counties Cities or Burghs for the Choice of Members I desire you in the next place to take notice that Britton who lived about that time supposes this Statute to have been made Per la Purveance de Robert Walerand per Commune Assent des Graunts Seigneurs du Realme By the Procurement or Forecast of Robert Walerand and by common assent of the Great Lords of the Realm without any mention of the Commons I have a great many more such Statutes to instance in which are said by M. Paris to have been made in several Parliaments of this King by the Community or Common Vniversity or Baronage of the whole Kingdom but I pass them by because we have sufficiently debated most of them already F. If only some of your Great Lords and Tenants in Capite could thus meet and make Laws to bind all the rest and they so tamely put up this strange Infringement of their Priviledges as you suppose it seems their Power was much abated since the 37 th year of this King when as I said Mat. Paris tells us that the Barons would do nothing without the rest of their Peers whom it seems the King had then omitted to Summon and therefore I must needs tell you that I am not of your Doctors opinion nor yet of Cambden's nameless Author that this King after his victory over Montfort and his Adherents could by his Prerogative call or omit what Peers he pleased since it is contrary to the Declaration of all the Bishops Abbots and Priors in Full Parliament 2 Rich. 2. wherein they claimed That holding per Baronium it did belong to them de Iure consuetudine Râ—gni Angliae that is by Rights of Prescription to be present in all Parliaments as Peers of the Realm and to treat consult and ordain concerning the Affairs of the Kingdom and if the Spiritual Lords claimed this Priviledge sure the Temporal Barons might with the like right have made the like claim and I am sure it is highly derogatory to the Rights of the Peerage of England to maintain that the King either hath or ever had the power of calling and leaving out what Lords he pleased and so to make pack'd Parliaments to serve a turn when ever he pleases But to come to the main strength of your Argument that because the more Discreet men of the Kingdom of the Greater as well of the lessâ—r are only mentioned in this Statute that therefore there were only called to it such Lords and Tenants in Capite as the King pleased to Summon and that all the rest were left out which is a very idle Supposition for at this rate may as well say that there were no Temporal Barons there at all and that by the Greater discreet mâ—n are to be understood some of the Bishops and Judges who tho no Peers yet were then the most Learned in the Laws and Customs of the Kingdom of any persons at that time and consequently the most wise and discreet to draw up Laws and by the lesser sort of discreet men shall be understood such Great Clerks and Lawyers tho not Tenants in Capite as the King pleased to chuse as being likewise most able to advise him But if you tell me that this Interpretation is forced I may as well say the same of yours and that with greater reason Yet I shall prove that this Parliament was Summoned in no other manner and consisted of no other persons than those that used to appear in all other preceding Great Councils or Parliaments In the first place therefore I must put you in mind of what I have already said that there is no conclusion to be drawn from the bare penning of the different Forms of ancient Statutes who were Summoned to the making of them nor by what power they were Enacted some of them it is true being drawn in the form of the Kings Charters or Writs without any mention of the Assent either of the Lords or Commons and others are said to be Enacted by the whole Realm without any mention of the King at all and I have given you a List of divers old Statutes from the Reign of King Henry III. to the time of King Edward III. in which there is no mention at all made either of the King or any other of the three Estates and yet no Man I think but will grant that these Statutes were all made and agreed to by them according to the usual Forms tho it be not particulaly expressed and therefore to give a better account of this Law it is fit we consider that these words convocatis Discretioribus Regni are no more restrictive to some particular Persons then if it had been in the Superlative Degree and instead of Discretioribus it had bin Discretissimis or Sapientissimis Regni which no Man would interpret to mean only a few of those whom the King should judge the wisest and most discret Men of the whole Kingdom and therefore we must not mind the Grammatical but Legal sence of these words and then it amounts to no more than this that by the Greater discreet Men were meant the Lords Spiritual and Temporal as under the lesser Discreet Men were included the Commons But that these Minores Descreti cannot be understood of the Tenants in Capite only appears by the conclusion of the Preface to this Statute of Marle-bridge in these words Provisiones Ordinationes Statuta subscripta â—b omnibus Regni ipsius incalis tam majoribus quam Minoribus firmiter inviolabiliter temporibus perpetuis Staâ—neriâ— observari so that if by the Majores Iâ—colae who were to observe these Statutes the Lords Spiritual and Temporal are meant then by the Minores Incolae Regni must be understood by the same reason the whole Commons of England and so likewise for Parity of reason by the Minores Discreti mentioned before in the Preface must be also meant the Representatives of the Commons in Parliament And that this alone can be the genuine sense of these Words may appear by comparing this Statute with another made at Gloucester the 6th of Edward I. where in the Preface it is recited in these words purvenant mâ—sm le Roy pur Amendement de son Royalme pur pluis plenier exhibicion de droit sicome le profit d'office demande appelles les pluis Discretes de son Royalme auxibien des Greindres come des meindres establie est acordan'ment ordeine So that if the Commons were there called to this Parliament and if by the Greindres Discretes were understood the Lords then by the like reason under Meindres Discretes must be meant the
Commons as at this day But that this Statute was made by the Common Council of the Kingdom and not by a Conventicle of a few of the Lords and Tenants in Capite Summoned ad Libitum Regis appears by all the original Writs founded upon several branches of this Statute whâ—ch are to be seen in the Register reciting that this Statute was made de Communi Concilio Regni Now the word Commune signifies no more than General and how could this be call'd a General Council which only consisted of a few of the wiser sort of Bishops Lords and Tenants in Capite As for what you and the Doctor cite out of Cambden's Nameless Author of King Henry's sending Writs of Summons and culling out a few of the Earls and Barons out of a great multitude that were Seditious after the War with the Barons was ended if you will have it extend to those who never forfeited by reason of Montfort's Rebellion I need not say much to it since Mr. Selden in his Titles of Honour hath sufficiently baffled that Authors authority for if it was never true as to Earls it was not like to be truer in respect of the greater Barons But as for your lesser Barons or Tenants in Capite I know not but he might be much more in the right in respect of them What you say as to Robert Walrand is not much material for tho he was never so great a Baron or Lawyer yet he could draw up this Law but as being one of the Kings Council who in those days drew up and prepared all Bills that were offered in Parliament And thus Britton might well say that this was made by the Common Assent of the Grand Seigneurs this Act being so highly for their advantage and yet the Commons might be also there as well as the Great Lords for otherwise if Britton must be literally understood what becomes of your Minores Discreti mentioned in this Statute to have given their consents as well as the Majores whereas this Author mentions none at whose request it was made but the Great Lords only But that by these Minores Incolae Regni mentioned at the end of this Statute were meant the Knights Citizens and Burgesses Pray see a Writ of Summons the 24th of Edward I. with the Doctors note upon it in his answer to Mr. P. the Writ is directed to the Arch-bishop of Canterbury and concludes thus that he should warn the Procuratores Cleri there mentioned to appear with him ad tractandum ordinandum faciendum noâ—iscum cum ceteris Praelatis Proâ—eribus aliit â—ncâ—lis Regni nostri in the Margin over-against these last words the Doctor gives us this Note the Incolae Regni were the Knights Citizens and Burgesses mentioned in the former Writ but not here particularly enumerated Now though it is true that this Writ is after the time that the Doctor will acknowledge the Commons to have been constantly Summoned to Parliament yet if these words could mean the Commons in this Writ why they should not signifie the same in this Statute I can see no reason but the Doctors strong prejudices to the contrary But if you have no more Authorities to alledg from the Reign of Henry the Third pray go on and shew me the rest of your Arguments why you suppose the Commons were never called in above half the Reign of Edward the First till the 18 th And I desire this the more because as I have already proved from the Statute of West 1. 3 Ed. 1. the words tout le Communalty de la Terre coming immediately after the Counts Barons and those other words foregoing must needs signifie the whole Commonalty of the Land and so the Doctor himself has rendered it in his Answer to Mr. P. M. But first pray observe what the Doctor there tells you that by the word Commonalty he means not the Commons in the sense they are now taken but the Community of the Tenants in Capite only and for this pray consult the Writ of Summons to the Archbishop of Canterbury to come to this Parliament which I confess is the only Writ of this kind that is left upon the Rolls from the 49 th of Henry the Third to the 23 d. of this King in which you will find the Archbishop Summoned ad tractandum ordinandum una cum Prelatis magnatibus Regni that is as the Doctor explains it with the Prelates and Great Men of the Kingdom which Great Men very frequently comprehended as well the Barons Majores as Minores the Earls Barons and greater Tenants in Capite and the less which then were the Community of the Kingdom so that your Interpretation of the words des Greindres des Mendres in the Statute of Gloucester by which you would interpret the like words in the Statute of Marlbridge for the Commons as now understood will signifie nothing as being before the time we allow the Commons to have been Summoned to Parliament in this Kings Reign F. It were a very easie thing for any man of a confident undertaking temper to frame what Interpretations he pleases from the general or equivocal of Histories or Records if he could as easily find Authorities to support it but I see nothing like a proof for it but the Doctors bare Assertion Since I have already sufficiently proved that the words Communalty and Communitas coming in our Statutes and Records immediately the Counts and Barons after do always signifie the Commons as now understood and why they should not signifie so here I can see no reason for as to the words in the Writ to the Arch-bishop of Canterbury they prove nothing at all who were the Constituent parts of that Parliament for if the word Magnates must need signifie the greater and lesser Tenants in Capite only pray why do they not signifie so in the Writ of Summons to Parliament of the 49th of Henry III. to the Bishop of Durham which the Doctor has Printed where there is no mention made of his Treating or advising with any other Persons then the other Prelates Magnatibus nostris yet the Doctor within two Leaves after gives us the Writs of Summons for the Knights Citizens and Burgesses to this Parliament But it seems in his first Edition of his Book against Mr. P. he had not made those rare discoveries he did afterwards where he pretends not to carry this Opinion beyond the 49th of Hen. III. Therefore pray go on to shew this new Light by which the Doctor discovered that the Commons were never Summoned to Parliament all the Reign of Edward I. till the 18th M. In the first place you cannot shew us any mention of the words Communalty or Communitas in any of the Parliaments of this Kings Reign not in the Statute de Bigamis made in the 4th of this King the Preamble thereof runs to this effect That these under-written
future Parliaments the words are ad faciâ—ndum quod â—unc de Communi Consilio ordinabitur or the like as appears by the Writ of Summons of the 23d of this King which the Doctor has printed whereas the words in this Writ are ad consentiendum c. â—iis qua Comites Barones Proceres â—radicti rune duxerint concordanda c. And if this had been done at the request of all the Tenants in Capite as you suppose how come the Bishops Abbots and Priors who held also in Capite to be omitted and not mentioned in this Writ to have joyned in this request as well as the Earls Barons and great Men But as for the Doctors next precedent viz. a Writ to the Sheriff of Northumberland to return two Knights of the Shire and then the next day after other two for the same County I am not at all satisfied that those Writs were a Summons to a Parliament and not to a great Council for besides the Title of the Writ is de Militibus Eligendis Miâ—tendis ad Consilium and the words in the Writ are not the same with those which were commonly used in Writs of Summons to Parliament as I have already shewn ' you in this Writ of Summons we are now upon Whereas in the Summons to Parliaments of the 23d of this King the ordaining part doth as much refer to the Commons as to the Lords the Commune Consilium consisting of both whereas in these Writs you have cited they were to consent to such things which the Earls Barons and great Men should think fit to agree to but that I may shew you a little more plainly the absurdity of this fancy of your Doctors that these Knights of Shires were now Summoned the Parliament sitting pray let me ask you one or two Questions concerning this business pray who were these Gentlemen that the King you say thus Summoned to Parliament M. According to the Doctors account they must have been all Tenants iâ— Capite since he often tells us that out of these alone the Knights of Shires were chosen at the first F. Well but then who were these Magnates and Alii Proceres mentioned in the Statute of Westminster and in this Writ of the 18th of Edward I. M. I must own my self at a loss certainly to define who they were for if I say they were the smaller Tenants in Capite who are here put as a distinct order from the Comites Barones immediately foregoing I foresee you will ask me how these Gentlemen could be â—ummoned since all the Tenants in Capite were at this Parliament already therefore I must tell you I think there were only some of the greatest and wisest of the Tenants in Capite who were no Barons now Summoned and whom the Doctor tells us were often called to great Councils as Barons Peers and who though sometimes called to sit among the Lords were often again omitted in several Kings Reigns so that this Parliament was composed as those of Marlbridg and Gloucesâ—er not of all but only of the more discreet of these lesser Barons or Tenants in Capite F. If this be all you have to say to extricate your self out of this difficulty I think it will not amount to much for in the first place all you have here said is meer conjecture without any proof since this Statute of Westminster 3d. says only in general that it was made at the Instance of the Magnates under which Title your Doctor when he explains the Writ of Summons to the Arch. bishops of Canterbury tells us were frequently comprehended the Barones Majores the Earls and Barons as under Minores the lesser Tenants in Capite which when the Statute of Westmister the first was made he will have to be the whole Commonalty of the Land therein mentioned and why this Parliament of Westminster the 3 d. should not consist of the same Members now needs some better reasons than your bare affirmation to the contrary Besides this Prerogative of calling these Barons Peers to Parliament did not only extend to Tenants in Capite but to other Mesn Tenants also if the King thought them considerable enough for Estates or wisdom to do them that Honour and so was not confined to Summon none but Tenants in Capite who according to your Interpretation of K. Iohn's Charter had all a right to appear by General Wrâ—ts at the Common Council of the Kingdom but you may put what sense you please on these words Magnates Proceres yet I am sure your Doctor can take them in no other sense than for the Community of all the Tenants in Capite both great and small and so he tells us in his Glossary when he Comments upon the Writ of the 30 Edw. 1. which you now mentioned and which refers to this very Parliament of the 18 th when Forty Shillings was granted on every Knights Fee to Marry the Kings Daughter and there the Doctor immediately tells us that such as payed that Scutage were Tota Communitas Regni and no others and of these the Tenants in Capite granted and payed it first for themselves and Tenants c. and which must certainly relate to this very Parliament of the 18 Edw. 1. or none at all M. I confess I do not see how the Doctor can solve this difficulty but by denying what he has already said and affirming as I do now that all the lesser Tenants in Capite were not Summoned to this Parliament but only some of them at last ordered by this Writ to be chosen and returned by the Counties F. Yes he might do it if bare affirming were to pass for proof but I shall not give up my reason upon no better Grounds either to him or you not to mention the improbability of the thing that the King should be now over-perswaded by the Earls Barons and other Great Men to call these Knights of Sâ—ires which had been now omitted ever since the 49 Hen. 3. for above twenty yearâ— when he had no need at all of them but rather the contrary advantage of Governing without them since it is the Policy of Princes rather to diminish than increase the number of the Members of their great at well as private Councils who certainly are most easily managed when they are a few than a great many M. But what if we should go from the Doctors Position and say that perhaps these Knights were chosen out of the Mesn Tenants of the Tenants in Capite many of whom I grant might be considerable for Interest as well as prudence and with whom the King at their request might desire to treat of certain matters which had been before moved and propounded by him F. This is all that can be said and yet is much more unlikely then the other since to believe that the Earls Barons and Tenants in Capite should be now grown so weary of their Power of imposing Taxes and making Lawâ— for the
make use of into these three Heads First I shall give you divers Quotations out of the most Ancient Writers who lived in or nearest the time you prefix viz. the coming in of the Norman William and shall descend down in order of time as low as your Drs. 18th of Edward I. 2. I shall shew you from the Authorities and Testimonies of the Judges of almost all our Courts of the House of Commons nay of several whole Parliaments and the King himself that the Commons had an undoubted Right of Sâ—tting there by Prescription 3. From the Consent of all our Neighbouring Kingdoms who being governed by a King and a great Council or Assembly of the Estates according to the Gothick Model the Commons had always from the Institution of the Government their Representatives in those Assemblies M. I much doubt that but pray begin with your Ancient Historians for as for my own part I must freely tell you though I have looked them over very warily yet I can find nothing in them concerning the particular constituent parts or Members of our great or Common Councils but the Magnates Optimates or Principes Comites and Barones all which tho' you have at our last meeting shewed me from some Authorities that they may take in others tho' not Nobâ—â— by Birth yet since these words have been most commonly taken in another sense it needs some better proof than to say in general that meer Commoners were there because those general words may sometimes be taken in that sense and as for the words Clerus and Populus which I confess are often mentioned to be present at those Assemblies the Learned Dr. in several places of his Answer to Mr. P. as also in his Glossary hath plainly proved that as the word Clerus sometimes signifies the Bishops and sometimes the Inferiour Clergy so Populus does also neither great nor little People but only the Layety and therefore as it is used and restrained signifies the Lay Plebs or the Lay Magnates What I mean by Plebs I shall shew you by and by but that the word Populus does not signifie the Inferiour sort of people or such as were inferiour to Barons Tenants in Capite or Noble-men the Dr. has very well proved from that passage made use of by Mr. P. to prove the Commons to have been in that great Council which made Henry the first King because it is said by Mat. Paris that Congregato Clero Populo universo c. by which word Populus he would understand the Commons alone distinct from the great Lords But the Dr. very plainly shewâ— him the falseness of this Interpretation from the same Author within three lines of the place himself had cited where the same Body of Men which is but just before called Populus is presently after called Magnates ad haec Clero respondente Magnatibus cunctis not one word in this place of any Populus but the great or Noble-men that is the Tenants in Capite must be the People or Lay-men here mentioned and this same Clerus and Populus is by Eadmerus speaking of a great Council held at Westminster in the second Year of this King called Primates Regni uâ—riusque Ordinis or as Florence of Worcester words it the Orders of Men assembled in this very Council Omnes Principes Regni sui Ecclesiastici Secularis Ordinis the which the Dr. also proves from several like passages in Eadmerus in all which as also in all other Authors the Dr. hath there cited This Populus is explained to be the Earls Barons and great Men of the Kingdom only that is all the greater as well as smaller Tenants in Capite And tho' I confess at our last Meeting you brought very good proof that the word Populus was more comprehensive among the Romans yet tho' the Roman Populus comprehended all the People as well Nobility as Plebeians and that in Scotland it took in the Burgesses of the Royal Burroughs which hold immediately of the King yet does it not follow that this word must needs signifie so in this Kingdom too since in all Countreys not all the People but only the Governing part of it is used for the Populus in all Histories Publick Acts and Laws of those Kingdoms thus in Denmark formerly and still in Poland the Populus consisted solely of the great Councils of the Nobility and Senate in which there were no Plebeians at all F. I hoped we had done wrangling about this word Populus but since I see you are not yet satisfied I shall shew you more plainly that by this word used in our Ancient English Historians is not only meant the great Lords and Tenants in Capite but another larger and more comprehensive Body and whereas you say that the word Populus is still restrained by our Ancient Historians to the Magnates Primates Principes Regni all which words do in their genuine signification signifie Great or Noble-men and that tho' they are sometimes taken in a different acceptation yet that it lies upon me to prove that they are to be taken in my sense to this I must tell you that the proving part ought to lie wholly of your side for since the Commons of England have been for above these Four hundred years constituent Members of our Parliament as is agreed on all hands and that they also claim to be so by right of Prescription it lies still upon your door to prove the contrary and to shew at what time and upon what occasion they were first introduced which if you have not been able hitherto to perform so as to give me any tolerable satisfaction you cannot blame me if I still keep my own Opinion and believe them as Ancient as Kingly Government it self in this our Island But since I grant these words Clerus and Populus are of a general and equivocal signification their true sense and meaning is best to be understood from the subject matter that is treated of as I shall shew you first from the nature and signification of the words Clerus and Populus according to the Ancient Constitution of our Government that they must signifie many more than your Tenants in Capite alone and then I shall confirm my Interpretation by the Authority of such Ancient Historians as lived either in or very near the Times I mention And therefore I shall first prove it from the great Analogy there was between the Clerus and the Populus so that if the Clerus took in more than your Tenants in Capite in our Common Councils by the same reason the Populus must do so too Now that this word Clerus when used by it self does not originally signifie either the Bishops and Abbots alone or the Inferiour Clergy alone as your Dr. asserts is evident because Clerus is a general word and comprehends all the Clergy of whatsoever sort or degree Now that all the Clergy as well the Superiour as
Assembled the Archbishops Bishops Abbots c the Pope's Legate presiding over the Clergy and besides these cum innumera Cloi Populi Multitudine and the Continuator of Florence shews us the manner of their giving their Consents to those Constitutions as well Civil as Ecclesiastical there made and Published they being proposed with a Placet vobis and the Answer to them is Plaecet Placet Placet thrice repeated which is very like the Form still observed in the Bishops and Lords giving their Consent to all Matters proposed in their House by saying Content So likewise the Continuator of Florence in Anno Dom. 1127. being the 27th of this King mentions such another General Council or great Synod wherein William Archbishop of Canterbury Presided over the Clergy and after the recital of all the Superior Clergy as before he thus proceeds Confluxere quoque illue i. e. to Westminster magnae multitudines Clericorum Laicorum tam Divitum quam Mediocrium sactus est Conventus inaestimabilis sedit etiam tribus diebus acta sunt ibi de negotiis saecularibus nonnulla quaedam quidem determinata quaedam dilata quaedam vero propter nimium aestuantis turbae tumultum ab Audientia judicantium proâ—â—igata And tho' the Author gives us the Ecclesiastical Constitutions only yet it is plain from him that Civil Matters were also transacted in this very Council which consisted as well of the Superior as Inferior Clergy as also of the Nobility and Commons which are all expressed under the general words of Divitum Mediocrium and resemble the Phrases of the Majores Minores and the des Greindres des Meindres mentioned in the Statutes of Marlbridge and Glocester which words were debated at our last Meeting In the Reign of K. Stephen there were also several Councils held of the same sort and particularly that of his Third Year in which was granted a Charter of Confirmation of this Kings of the Priviledges of the Abbey of Westminster which is also to be found in Sulcardus's Chartalary above-mentioned wherein after the general words of habito universali totius Angliae consilio and a mention of the Pope's Legate who Presided over the Clergy It follows thus â—ffuerunt etiam Comites Regni mei Barones quamplurimi innumera Cleri Populi multitudo qui his omnibus interfuerunt Religioso favore voluntatem Assensum Authoritati nostrae paginae Privilegio praebuâ—rent c. So likewise in an ancient Manuscript Chronicle of the Abby of Ely under A. D. 1139. being the 4th Year of K. Stephen there is a remarkable Passage when speaking of a great Council then held at London he expresses it in these Terms Concilio adunato Cleri Populi and then explains of what Members these did consist viz Episcoporum atque Abbatum Monachorum Clericorum Plebisque infinitae multitudinis Now pray give me leave to make some Observations from these Passages in all these ancient Charters and Historians that besides these Bishops Abbots Earls and Barons of the Kingdom there were also an innumerable Multitude of Clergy and People or as the Ely Chronicle words it an infinite number of Clerks and Commons Now pray tell me what can be meant here by all these put distinct from the rest of the higher Orders but the inferior Clergy as the Deans Arch-deacons and Procurators of the Chapters of Cathedral Churches as also those of the secular Clergy of the whole Diocess And who can be meant by this infinite Multitude of People or Plebis which naturally signifies the common People distinct from the higher Nobility but the most considerable Free-holders or Lords of Manners whether Tenants in capite or not under the degree of the higher Nobility together with the Citizens and Burgesses of Cities and Towns and who came not only as idle Spectators since the Charter I last cited expresly mentions that they were not only present but also gave their Assents to this Charter of King Stephens M. And may I not with as good reason ask you why these words Populus and Plebs may not in the Historical barbarous Latine of that Age serve only to express not the Multitude or Rabble or meer common People but the whole Body of lesser Tenants in capite beneath the Dignity of the greater Barons F. I will give you two very good Reasons for that First from the great Analogy there was then between the Members of the inferior Clergy and those of the inferior Laiety or Commons the former of which even all the Abbots and Priors except those few that held in capite with all the rest of the inferior Clergy already mention'd holding only in Frank Alimoign and not by any Military Tenure at all Now pray give me any sufficient Reason why the Layety should not also consist of all other Orders of Men who did not hold in capite neither and by whom I do not mean the meer Vulgar or Rabble tho' Freemen of Free-holders of small Estates but the most considerable Free-holders or Lords of Mannors in England or else the Knights of Shires who I suppose represented not only themselves but their inferior Tenants whether Copy-holders or for Term of Years as also the Representatives of all the Cities and Borough Towns in England Now these might together with your Tenants in capite make so great an Assembly as might very well deserve the Title with an easie Hyperbole of Infinita or innumera multitudo as our Ancient Historians express it Whereas your Drs. Tenants in Capite could never in these first Times after this Conquest amount to so great a Multitude not being by his own Confession above 700 Persons besides the Bishops Abbots and Priors who did not make above 100 more which could never deserve the Title of an infinite and innumerable Multitude M. I must confess that neither your Notion nor your Authorities to prove it do any way satisfie me for in the first place your Argument from the Analogy between the Clergy and Layety who you say made up this Assembly does not hold for tho' I grant there might be in that part of it which we call the Convocation and was then called the Synod all the Bishops Abbots and great dignified Clergy-men nay Procurators of the inferior Clergy too if you please yet were not these who I grant were not Tenants in Capite Members of the great Council of the Kingdom but a distinct Assembly from it which treated only of Spiritual Matters and together with the Bishops and Abbots made Ecclesiastical Canons as the two Houses of Convocation do at this day yet medled not at all in Matters of a meer Civil or Temporal concern any more than the Lay Council could meddle with Spirituals and to let you see that this was true it is evident beyond dispute that this Ecclesiastical Synod was often assembled by the Authority of the Pope or Archbishops of Canterbury and York when the Common
of the 49 th of Henry the 3 d which is certainly a summons to Parliament in which is no Clause of summoning the Inferiour Clergy this is no more an Argument than the former since it might not then be the Custom to insert them in the same writ with the Bishop to be summoned by him but they might have general writs of their own directed to the Clergy of each Diocesâ— but that all the Inferior Clergy as well as the Superior appeared at divers Common Councils or Parliaments during this Kings Reign which they could never have done without the Kings Summons tho the writs are lost may appear from that great Council or Parliament of the 9 th of Henry 3 d Whereto as Mat. Paris tells us in the place I have so often mentioned were summoned Clerus Populus cum Magnatibus Regionis or Regni as Mat. Westminister Words it and in this Council was given by omnes de Regno the 15 th of all the moveables of all the whole Kingdom So that certainly these omnes de Regno must take in all Degrees of men and consequently the Inferior Clergy too since it is certain the Bishops and Abbots did never represent them in the House of Peers or in Convocation so as to lay any Taxes upon the Inferior Clergy without their express Consents and this is the more evident because this Tax was a 15 th upon moveables and not a Tax upon Land and consequently could never be imposed upon those of the Clergy who held in Frank Almoign as all the Inferior Clergy then did and do at this day by the Bishops and Abbots that held in Capite and that these Charters were made by the Common Consent of the whole Kingdom and then certainly by the Inferior as well as Superior Clergy may appear by the Confirmation of the great Charters as also in the Preamble to the Statute of Articuli super Chartas made the one in the 25 th the other in the 28 th of Edward I. in both which it is expresly recited that the great Charters of Liberties and the Charters of Forrest were made per Commun Assent de tout le Royalme en Temps nostre Pere and if by the Common Assent of the Realm then sure by that of the Inferior as well as Superior Clergy since the Bishops and Abbots who saâ—e there only by their Baronies could never represent them That the Inferior Clergy were also summoned to Parliament in the 39 th of of Henry 3 d. appears from the Annals of Burton in Anno Dom. 1253. Where that Author who lived at that time relates that the Inferiour Clergy then appearing in Parliament sent Messengers to the Pope concerning the intolerable Grievances they then lay under among which the first Grievance set forth by the Procurators of the Clergy for the Diocess of Lincoln is this Quod decima bineficiorum suoram Domino Regi fuit concessa ipsis non voâ—atis maxime cum agitur de aliquo obligando necessarius est ejus expressus consensus By which it appears that the Inferior Clergy then claimed it as their undoubted Right by the Law of the Land not to be Taxed either by the King or the Pope without their express Consents and they contended so hard for it that they have preserved this Right even to this day when they now give their Votes to the choice of Knights of the Shires tho till the late King Charles's Reign they were never taxed without the Consent of their own Procurators in Convocation and this may serve to enlarge your understanding and to shew you in what sense the whole Clergy as well the Inferior as Superior did anciently make the third Estate in Parliament which was more Comprehensive than the Bishops and Mitred Abbots alone who sate in the upper House only per Baronian by Reason of their Baronies tho in the Synod or Convocation of the Clergy as Ecclesiastical Persons only Where they also joined in the making of Ecclesiastical Laws and giving Taxes which last you cannot deny but to be a meer Temporal Thing M. I grant you are so far in the Right yet tho the Inferior Clergy often joyned with the Common Council of the Kingdom in giving the same Taxes yet this was by and upon themselves alone and they had no hand in making of Temporal Laws and giving Taxes for all the rest of the Kingdom and I challenge you to shew me any precedent within these 500 years that the Inferiour Clergy ever made the third Estate in Parliament or that their Consents was ever asked to the making of Temporal Laws since the Bishops have been always lookt upon till of Late as the onely Representatives of the Inferior Clergy in Parliament how else could they be obliged by general Statutes or Acts of Parliament since according to your own Confession they gave no Votes at the Election of Knights of Shires but since the return of King Charles II. so that if they had ever joyned in this Legislative Power as you suppose they anciently did I cannot see why they should not have kept to this day F. I grant indeed it has been otherwise between 300 and 400 Years but for that it was not so from the Original Institution of the Government is also as certain for that the English Common Councils consisted of all sorts and degrees of Ecclesiasticks you must allow since before the coming in of the Normans the Bishops and Abbots did not sit in the Mycel Synods as Temporal Lords is generally acknowledged and yet even after they came to sit among the Lay Peers in the great Council of the Nation by virtue of their Baronies the Inferior Clergy also gave their Assents to the making of Temporal Laws and giving Taxes I have proved by such Authorities as I do not see you are able to answer and for further Proof of this to shew you their coming was continued down to the Reign of Henry third see Sir H. Spelmans Councils second Volume where you will find that they were in that great Council at Clarendon when those famous Constitutions were made as appears by these Words in Mat. Paris at the end of these Constitutions Hanc Recognitionem sive Recordationem de consuâ—tudinibus libertatibus iniquis Archiepiscopi Episcopi Abbates Priores Clerus cum comitibus Baronibus Proceribus cunctis juraverunt So likewise at the Council of Gaintington in the 34 th of this King Roger Hoveden has in his History these Words Dominus vero Rex statin postquam in Angliam applicuit magnum congregavit concilium Episcoporum Abbatum Comitum Baronum aliorum multorâ—m Clericorum quam Laicorum apud Gaintington And Mat. Paris in the Year 1185 being the 31 st of this Kings Reign mentions a Common Council of the Kingdom then called at Clerkenwel where Convocatus est Clerus Populus cum tota nobilitate which Dr. Heylin in his Stumbling Block of Disobedience thus
and had they been always a part of this Council pray tell me how they came to lose this Right since the Clergy in those days were not wont to lose any Right or Priviledge they enjoyed F. I have already granted that tho the Inferior Clergy have been no necessary Constituent part of Parliament for divers Ages last past yet does it not follow that therefore they never were so since they have lost this Right by Degrees and I shall now shew you by what steps it happen'd First therefore pray observe that anciently all Abbots and Priors whatever as well those that held in Capite as those that held in Frank Almoign were all summoned alike to the general Councils of the Kingdom as appears by the first Councils after your Conquest that we have any Monuments of nay it also appears from that very Writ of the 6 th of King Iohn if it were a Writ of Summons to Parliament which as I have already proved at our last Meeting it is most likely it was not whereby the Bishop is to summon all the Abbots and Priors of his Diocess none excepted and tho I grant that in the next Writ of Summons of the 26 th of Henry the 3 d to the Archbishop of York there is no Clause expressed of summoning the Abbots and Priors and other Clergy of his Diocess yet it is much to be doubted whether this were a Summons to Parliament or notâ— being without any Title of ad Parliamentum or Concilium But that the Abbots and Priors as well those that held in Capite as those that held in Frank Almoign were summoned to the great Parliament of the 49 th of Henry the 3 d appears by that List of their Names which both Mr. Pryn and the Dr. have Printed from the Roll nor ' do I believe that this was the first time that all these Abbots and Priors being 101 in all were summoned to Parliament notwithstanding your Drs. fancy that Simon Montsert summoned so many of them onely because he was sure of them since if we had the Rolls of the foregoing years as well as of this we should no doubt find little or no difference for by another List of the Abbots and Priors which the Dr. himself has given us of the 23 d of Edward the I. to the same Parliament above mentioned when the Inferior Clergy were likewise summoned there appears to have been seventy Abbots and Priors summoned to this Parliament of which not a third part ever held in Capite and tho divers of them then pleaded exemptions yet they were many of them such as held in Capite as well as those that did not as the Abbots of St. Edmunds Bury Waltham St. Albans Evesham c. all which as it is notoriously known held in Capite and were commonly summoned to all Parliaments afterwards now pray see how all this numerous Train of Abbots and Priors which Mr. Pryn confesses to have sometimes amounted to 122. who were summoned to some Parliaments and great Councils came to be omitted is to be ascribed chiefly to their own Petition and Desire when their constant attendance in Parliament when held every year and frequently oftâ—er was counted a burthen rather than an advantage by Reason of the great charge and trouble of coming to those Assemblies and their being bound to contribute to the general Aids that were then given the King and thence it is we find on the Rolls so many discharges upon their Petitions in Parliament that they did not hold of the King by Barony nor in Capite nay the Abbot of Leycester after serving in no less than 50 Parliaments yet in the 25 th of Edward the 3 d procured a writ of Exemption from the King Quod non compellatur venire ad Parliamentum the Lords in Parliament easily giving way to it since they knew that the fewer hands the Legislative Power was reduced to the greater still was theirs that remained to which may be added the Kings Pleasure who by degrees began to omit summoning of divers of the smaller Abbots and Priors before summoned since it has been the policy of our Kings to reduce their great Councils or Parliaments especially the Peers into as few hands as they could because they are then most easily managed and the Abbots and Priors never complained of it for the Reasons already given thus most of these came to be struck off by degrees till at last of all this numerous company of Abbots and Priors there were in the Reigns of Edward the 3 d. Richard 2 d. and Edward the 4 th and even to the dissolution of Monasteries under Henry the 8 th no more than 25 Abbots and two Priors viz. the Prior of Coventry and of St. Iohn of Ierusalem summoned to Parliament I have dwelt the longer on the History of these Abbots and Priors because it sufficiently confutes your Drs. Notion of none but Tenants in Capite appearing in Parliament But to give you some account of the Inferiour Clergy how they likewise might come to be often omitted out of the Writs of Summons to great Councils and not to make a constant part of the Parliament but onely of the Convocation this might happen two or three ways and that without any positive Law for it As in the first place pray consider the vast increase of Power which fell to the Bishops after King Henry the first had given up his Right of Investitures to the Pope by which means they depended not at all on the State and so took upon themselves a greater Power of imposing upon and making Temporal Laws for the Inferior Clergy in Parliament as if they had been their Representatives yet they could never represent all the Abbots and Priors who held in Frank Almoign for the Reasons already given as also because most of them were exempted from their Jurisdiction But that the Bishops could never impose Taxes upon the Inferior Clergy at their Pleasure without their express consents in Parliament or Convocation appears by this memorable Writ of 9 th of Edward 2 d to the Archbishop of Canterbury which Mr. Pryn has likewise given us by which it appears that divers of the Clergy had consented to grant the King a subsidy in the precedent Parliament but onely by Reason of the absence of the said Archbishops and others of the Prelates and Clergy it could not then be done and therefore the Archbishop is thereby ordered to call a Convocation for that purpose which had been needless if the Bishops alone could have Taxed the Inferior Clergy in Parliament or Convocation without their express Consents so that it is plain that in that Age they still retained a great share of the Supream Power viz. of not being taxed unless by Representatives of their own either in Convocation or Parliament as it continues to this day But to shew you further how the Presence of the Inferior Clergy and consequently their summoning to Parliament
that that Dr. has with so much artifice put upon them still using them like Charms to bewitch and impose upon his unwary Readers especially since a right Notion of these words is absolutely necessary for the right understanding the true sense and meaning of our Ancient English Historian 〈…〉 after all this pother the Dr. makes about the signification of those words Populus Plebs Vulgus as synonimous as he grants them to be they must all signifie the whole Body of the People as well the Commons as the Lords represented in Parliament by his own confession or else I leave it to your self to consider who of the two is guilty of levelling Notions your Dr. or Mr. P. since one does but allert with the general consent of Ancient and Modern Writers that the words Barones and Baronagium Angliae did anciently take in more than the Lords and Tenants in Capite And the Dr. straight calls him a man of Levelling Principles and that jambles the Commons together with the Lords whereas your Dr. can when he pleases make the words Plebs and Vulgus to to signifie the great Lords and Tenants in Capite contrary to the subject matter on which he discourses and to their Genuine signification either in Ancient or Modern Latine M. I must consess you have now told me more than I ever yet heard or read of or indeed thought could have been urged for the Inferior Clergies having been once a part of the Civil as well as Ecclesiastical Council of the Kingdom and I will consider farther of it But in the mean time let me tell you you have not been yet so clear in your Explanation of the other opposite word Populus for admitting I should grant you that there were in some sort Commons in Parliament as represented by the lesser Tenants in Capite who were not Lords yet does it not therefore follow that there must have been another rank or order of Persons beneath or different from them since as I said it is but how 't is only the Custom and Law of each Countrey that can determine what is the Community or Representative Body of the People so that there is no such certain Analogy between the Clerus when taken for the Inferior Clergy and the Populus when taken for the lesser Nobility or Tenants in Capite Since in Scotland tho' their great Council or Parliament might consist of the Abbots and Inferior Clergy as with us who did not hold in Capite yet you cannot deny but that the Temporal Estate or Layety at least of late Ages wholly consisted of the Earls Barons Lairds or smaller Barons together with the Burgesses of Royal Boroughts all which held in Capite and for ought as I can see from any clear Proofs you have brought to the contrary did so from Times beyond all memory and so it might have been in England too for ought as I know for tho' you have taken a great deal of pains to Answer the Dr's and my Arguments against the Tenants in Capite being the Representatives of the whole Kingdom in Parliament before the 49th of Henry the Third and 18th of Edward the First and also to prove that the words made use of in our ancient Historians Records and Acts of Parliament are of a more comprehensive signification than to be confined to them alone But you have not as yet proved that these Gentlemen who you suppose to have had Places in our great Councils besides the Tenants in Capite were Knights Citizens and Burgesses or whether all the Lords of Mannours or great Freeholders in England appeared there in person for themselves and their under Tenants therefore I pray be a little more clear in this point and shew me some Authorities that the Knights of Shires Citizens and Burgesses have been always constituent Members of Parliament ever since the Conquest for methinks you waver in this Matter and sometimes you seem to assert the former and sometimes the latter F. I confess it is not my humour to be positive in any thing that is in the least doubtful or obscure and therefore as I will not maintain that Knights of Shires always a constituent part of Parliament before your Conquest or presently were after tho' it is positively asserted by the Author of the Modus tenendi Parliamentum since the Antiquity of that Piece is justly questioned by Mr. Selden and other Modern Antiquaries so on the other side I shall not assert that they were not there at all but this much I think I am able to prove that they were Summoned to Parliament long before the 49th of Henry the Third or 18th of Edward the First But as for the Cities and Boroughs that they had their Representatives in Parliament at or presently after your Conquest I think I can prove from as undeniable Testimonies as can be expected Since all the most ancient Rolls and Records of great Councils and Parliaments are long since lost and destroyed Yet to shew you that we have some very ancient Authors that seem to mention not only the Citizens and Burgesses but Knights of Shires to have been summoned before the times you insist upon and if it prove so whether they were there from the very Time of the Conquest is not material since if I confute your and your Dr's Opinion of the 49th of Henry the Third and 18th of Edward the First I carry the Cause and you may then invent if you can some other Epocha whereon to fix their first appearing at our great Councils I shall therefore give you another Quotation out of the same old Monk Sulcardus which immediately follows the conclusion of the Charter of K. William the First to the Abby of Westminster but now cited and it has been made use of not only by Mr. P. in his Ancient Rights of the Commons c. but by Sir William Dugdale himself in his Origines Iuridiciales as also by the Author of Argumentum Aâ—tinormaunicum to prove the Commons to have been summoned to a great Council in the 9th Year of K. William the First Anno Dom. 1075. the words as cited in Sir William Dugdale are these That after the King had Subscribed his Name to this Charter with the Sign of the Cross adding many of the Bishops Abbots and Temporal Nobility instead of Cum multis aliis hath these words Multis praeterea illustrissimis virorum personis Regni Principibus diversi Ordinis omissis qui huic Confirmationi piisimo affectu testes â—autores fuerunt Hii autem illo tempore à Regia potestate diversis Provinciis urbibus ad universalem Synodum pro causis cujuslibet Christiane Ecclesâ—e audiendis tractandis ad praescriptum celeberriumum Coenobium quod Westmonasterium dicitur Convoceti Now I shall only observe from this Author that Mr. Selden in his Titles of Honour and Sir Henry Spelman in his Glossary do render Provincia for a County or Shire M. I pray give me leave
are the Bishops the Nobility and Civitatum delegati the Deputies or Commissioners of Towns and Cities For Sweden it comes near the Government and forms of Danemark and hath the same Estates and degrees of People as amongst the Danes that is to say Proceres Nobiles the greater and the less Nobility Episcopi Ecclesiastici the Bishops and inferiour Clergy Civitates Vniversitates the Cities and Towns Corporate for so I think he means by Vniversitates as Tâ—uanus mustereth them To which we may also add tho here omitted by this Author the Delegates of the Rusticks or Husbandmen who make a fourth Estate in the Assembly of Estates of this Kingdom And in this Realm the Bishops and Clergy enjoy the place and priviledges of the third Estate notwithstanding the Alteration of Religion to this very day the Bishops in their own Persons and a certain number of the Clergy out of every Sochen a Division like our Rural Deanries in the name of the rest having a necessary Vote in all their Parliaments And this Swedish great Council is the more remarkable because it comes very near our Constitution in England in which I proved the Inferior Clergy and the Commons not excepting the meanest Freeholders anciently had their Representatives So that it had been the strangest thing that could have been observed in all the Political Constitutioâ—s on this side of Europe if that of England tho descended from the same Gothick Original and founded according to the same model should have had no Representatives for the Commons or Plebians in their great Councils or Parliaments The Dr. here concludes with Scotland and England the former of which since you agree to have had from all times Citizens and Burgesses in their great Councils or Parliaments I need not repeat what is there since it is no more than what you your self have granted and as for England he owns as appears by the Passages I have already cited out of this Chapter that the Clergy Nobility and People were called to a Parliament held under Henry the ad at Clerkâ—nwell M I will not deny but there were Representatives of the Cities and great Towns in the great Councils or Assembly of Estates of all those Kingdoms you have now mention'd out of Dr. Heylins Treatise yet whether they were there from the very first Institution of those Governments is much to be doubted But since I have not now leasure to inquire into the Original of all these Kingdoms nor at what time each State began to come to these great Councils give me leave in the mean time to remark that all these Kingdoms except Sweden came nearer to that Constitution which we suppose to have been anciently in England and Scotland and also other Kingdoms where feudatory Tenures were observed and consequently none but the Chief Lords or Barons by Knights Service and that held of the King so that all those Foreign Councils or Dyeâ—s c. at first were all the same as consisting of Emperours or Kings with their Earls and Barons Bishops and great Officers as is evident from all the old German and French Authors and since Cities sent Deputies in Germany and Italy they were only from Imperial Cities the like I believe would be found in France and those other Kingdoms you have now mentioned but you cannot shew me unless in Sweden any Representatives elected by the Common People or Rusticks distinct from the Nobility and Gentry like our Knights of Shires in England So that I still doubt whether all the Representatives of the great Lords and other Nobility that appeared in the Councils of these Kingdoms were not all Tenants in Capite and no other F. That this is a meer surmise of yours I think I can easily prove for in the first place as for the Bishops Abbots and Clergy who still made the first Estates in all these Kingdoms nothing is more certain than that they never any of them held of the King by Knights Service and therefore could not 〈◊〉 in their great Councils by that Tenure that Institution being for ought as I know peculiar to England and introduced by your Conqueror as you your self acknowledge and as for the Temporal Nobility you will find that in France not onely those Noblemen that held of the King by Military Service but those who held in libero Alodio without any such Service at all had places either by themselves or their Deputies in the Assembly of the Estates so likewise for the Cities and Towns that sent Deputies to it I believe you will not find that any of them held of the King in Capite and to come to Germany you are likewise as much mistaken in fancying that all the Imperial Cities were Subject immediately to the Emperor before they became so for Hamburgh and Lubec were Subject to their own Princes the former to the Duke of Holstein and Sleswic and the latter to Earls of its own till at last they either purchased their Liberties they enioy from their Princes or else cast them off and were after received into the Body of the Diet by the Bulls or Charters of several Emperors and so likewise Brunswick was always a fâ—â—e City till it was united to the Empire by its own Consent I could shew you the like of several other Cities now called Imperial who held anciently not of the Emperour but either of their own Earls or Bishops tho I grant it was the Charters of the Emperor with the Consent of the Dyet that gave them a place in those Assemblies and tho it is true that in all the rest of these Kingdoms the meer Rusticks or Paisants have no Representatives in their great Councils yet this makes no Alteration in the Case if you please to consider it for the Nobility and Gentry are the only true and proper owners of the Lands of those Kingdoms all the Rusticks or Paisants being meer Vassals and in France almost Slaves to their Nobility and Gentry who as I have already said had all alike Votes in their Assembly of Estates as well those who held of the King in Chief by Knights Service as those that did not whereas it was always far otherwise in England where the meanest Freeholder was always as free as to his Person and Estate as the greatest Lord of whom he held and hence it is that we have had from all Times those of the degree of Yeomen so peculiar to England as Fortiscut in his Treatise de Laudibus Legum Angliae takes notice who if they lived on their own Lands had no more dependance on the Noblemen and Gentlemen than they have now and therefore it was but Reason that these should have their Representatives in Parliament as well as the Inhabitants of the Cities and Burroughs who had most of them a far less share in the Riches and real Estates of the Kingdom Secondly Pray take notice that in the rest of the Kingdoms of Europe except
from that 7th Edward the First I think that can by no means do the business for which you design it for in the first place this is only Declaration of the Bishops Lords and Commons of the Land that it belongs to the King to defend i. e. forbid all force of Arms but mark Sir what force sure it is only meant of such Force as belongs to the King's Prerogative to forbid viz. force of Arms against the Publick Peace and such as he might punish according to the Laws and Usages of the Realm and therefore the Statute expresly declares that as Subjects they are hereunto bound Aid him their Soveraign Lord the King at all times when need shall be but does this Act any where say that he hath an Irresistible Power to disturb this Peace by his own private Illegal Commissions or that any men are bound to assist him in it or because for example he hath Authority to punish all men according to Law that shall come to Parliaments with force of Arms that therefore he hath an unlimited power of raising what Forces he would and in prisoning or destroying the whole Parliament if he pleased and that no bodâ— might resist him if he had gone about so to do The like may be said if the 〈◊〉 should notoriously and insupportably by force invade all the Civil Liberâ—â—â—â— and Properties of his Subjects by Levying Taxes and taking away theâ—r Estates by down-right Force contrary to Law now can any body in his senses believe that the Act of 25th of Ed. 3. was made to prevent all Resistance of suâ—h Tyrannical Violence and that the Resistance of those Forces whether forreign or domestick that might be sent by the King 's private Commissioners to murder or enslave us is making War against his Person or that it comes within any of the Cases expressed in that Statute and therefore cannot fall within the compass of Sir Edw. Coke's Comment upon this Staâ—ute all the offences therein specified being Treasâ—ns at Common Law before that Statute was made nor is the Reformation there mentioned to be understood of a just and necessary Defence of our Lives Liberties Religion and Properties as setled and established by the Laws of the Land to be looked upon as making War against a weak or seduced King but is rather in defence of him and the Government by opposing Tyranny which will certainly bring both him and us to Ruine at last so the Reformation he there mentions is only to be be understood of such Insurrections and Rebellions as have been made under the meer pretence of Religion or obtaining greater Liberties for the common sort of People than they had by the Law of the Land such as were the Rebellions of Wat Tyler in King Richard the Second and Mortimers in Hâ—â—ry the 6th Reigns not to mention the other Rebellions raised by the Papists in the times of King Henry the Eighth Edward the Sixth and Queen Elizabeth's Reigns all which being begun by Seditious or Superstitious men were certainly rank Rebellions and so are and ought to be esteem'd by all good Subjects M. I grant these pretences seem very fair and specious yet notwithstanding this your pretended right or a necessity of Resistance of the King or those commissioned by him in case of Tyranny has been still looked upon as Rebellion in all Ages and the Actors dealt with accordingly where ever they were taken F. I do not deny but as long as Arbitrary and Tyrannical Princes could get the better of it and keep the Power in their own hands they still Executed for Traytors whosoever opposed or resisted their wicked and unjust Actions tho' they were never so near Relations to them thus both Edward and Richard the Second put their Uncles the Dukes of Lancaster and Gloucester to death meerly because they joyned with the rest of the Nobility and People to prevent their designs So that it is not the Execution of the Man but the Cause that makes the Traytor since Princes are seldom without a sufficient number of Judges and Jury-men to condemn whomsoever they please to fall upon But that the Clergy Nobility and People of England have always asserted this right of Self-defence in case their Liberties and Properties were uniustly invaded by the Tyrannical or Arbitrary Practices of the King or those about him I think I can prove by giving you the History of it in so many Kings since your Conquest as will render it indisputable if you please to give me now the hearing or else to defer it till the next time we meet M. I confess I was so weary of sitting up so long at our last Conversation that I made a Resolution not to do so any more and therefore since it grows late let us leave off now and I promise to meet you here again within a night or two and then I will hear how well you can vindicate your right of Resistance from Law or History but if you have no better proofs for it than the Rebellion of the Barons in King Iohn and Henry the Third's Reigns you will scarce make me your Convet since Impunity does never sanctifie a wicked action or render it the more lawful and you have already given it me for an Axiom that a facto ad Ius non valet consequentia F. I accept of your Appointment with thanks but pray do not forâ—judge my Arguments till you hear them and as for the Axiom I allow it for good provided I may urge it in my turn but in the mean time I shall wish you good night M. And I the same to you FINIS Bibliotheca Politica OR A DISCOURSE By WAY of DIALOGUE Upon these Questions 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 Collected out of the most Approved Authors both Antient and Modern Dialogue the Ninth LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford Arms where also may be had the First Second Third Fourth Fifth Sixth Seventh and Eighth Dialogues 1693. Authours chiefly made use of in this Dialogue and how denoted in the Margin Dr. Sherlocks case of Resistance S. C. R. Mr. Iohnsons Reflections upon it I. R. S. Dr. Hick's answer to Iulian Intituled Iovian H. I. I desire the Reader to remember that whenever I make use of the word People in this or the following Discourse I mean thereby the whole diffusive body of the Nation consisting of the Clergy Nobility and Commons The PREFACE TO THE READER I Must beg your pardon if I have exceeded my intended design in the Preface to the first of these Dialogues of reducing what I had to say on the
of this I shall proceed with the earliest Instances of this kind after the Conquest viz. in the Time of King Richard the First during whose absence in the holy Land he had committed the Government of his Kingdom to William Bishop of Ely who abused his Power by an Arbitrary and Insolent Carriage affronting and oppressing Iohn Earl of Morton the King 's own Brother and Geoffry Arch-Bishop of York the King 's base Brother whereupon they rose up against him and having the Bishops the Earls and Barons of their side appointed the said Bishop a day to answer to his Crimes in the King's Court or great Council of the Bishops Lords and Tenants in Capite then called Curia Regis where when he refused to appear they all with one consent came to London and fought with the Followers and Adherents of the said Chancellour by the way when they came to Town Earl Iohn with the Arch-Bishops of York and Rouen with all the Earls and Barons together with the Citizens of London met in St. Paul's Church-Yard and there it was proposed that the said Chancellour should for his Evil Government he deposed and banisht the Kingdom and so he immediately was by the general Consent of the Common Council of the Kingdom so that you see the Nobility Clergy and People had then no notion of an Irresistible Power in the King and those put in Commission by him when they found their Power to grow Tyrannical and Insupportable M. But if I forget not you omit one material Circumstance in this Affâ—ir which seems to make against you which is that Arch-Bishop of Rouen and William the Earl Mareschal did at that time produce the King's Letters signed with his 〈◊〉 wherein he had appointed that they two should be associated in the Government with the Bishop of Ely and that he should do nothing without their privity and consents and of those associated with him in the business of the Kingdom and that if he offered to do otherwise he should be deposed So that it seems what they now acted was not so muchin opposition to the King's Commission as to the Bishops who had refused to obey his Commands F. I confess it was as you set forth yet this makes nothing against my Opinion since it is apparent that Arms were taken and this Resistance made by the major part of the Bishops Earls and Barons together with the Londoners before ever it was known that such Letters were written by the King And so it seems they would have done much the same thing if there had been no such Letters sent by the King at all You may also rememâ—er that all these proceedings also were approved of and confirmed by the King himself But that I may proceed in my History of Non-Resistance I come to the Reign of King Iohn his Brother who when he had refused the Arch-Bishop of Canterbury and all the Bishops Earls and Barons of the Kingdom to confirm the great Charter of King Henry the First they together with the rest of the great Men and People of the Kingdom of all degrees and conditions took up Arms and made a vast Army resolving never to lay them down till he had new granted and confirmed the Charters of Liberties and Forrests till at last the King finding himself almost quite forsaken so that he had scarce five Knights left about him he was at last forced to meet the said Bishops Earls Barons and People at Runne-Mead and there to grant them that great Charter which has been the Subject of so much discourse between us so that you see here that the Church of England in those Times if the Bishops and Clergy are the Representatives of this Church had then no notion of this Doctrine of Passiâ—e Obedienâ—e to the King 's Absolute Will and Commands M. I cannot deny the matter of fact to be as you say but yet you may remember that the same Author tells us that the Pope thought the King hardly dealt withal in this matter so that he gave Audience to the King's Ambassadors concerning the Rebellions and Injuries which the Barons of England had committed against their King and that upon a solemn hearing of the whole business and after a consultation with his Cardinals he did as Supreme Lord of Engâ—and after King Iohn's Resignation of his Crown to him by his Bull then published make void the said great Charters of Liberties and Forrests and condemn all the Barons proceedings as against their Duty and Allegiance to the King their Soveraign Lord so that it seems this was not approved of any where but by the Actors the Pope thereupon Excommunicating the Barons and Suspending the Arch-Bishop of Caâ—terbury for joyning with them F. I believe you will make nothing of this Objection for it appears from the same Author that the Pope had before this Excommunicated the King and as far as lay in his power depriv'd him of his Kingdom and absolved all his Subjects of their Allegiance so that it is plaiâ— it was not out of any true Principle or hatred of Rebellion and Resistance in Subjects that the Pope had thus acted but purely to gratifie the King at this juncture of time and to defend him in his Tyranny and breach of his own Charters because he was then become his Vassal and so he cared not how much he oppressed his Subjects because he was thereby the more able to pay him the Tribute before promised and he could also expect the more securely to extort Money from the whole Kingdom But that this Bull of the Popes was contrary to the King 's own Express Act and Agreement appears plainly by that Clause which is still to be found in a Charter under the Seal of this King and which seems to have been the Heads of the great Charter according to which it was drawn into the Form we now find it in Mat. Paris in which it is expresly provided and granted by the said King that in case he should go about to break or infringe any Clause in the said Charter and shall not amend it within the space of forty days that then Iâ—li Barones cum Communia totius Terrae distringent gravabunt nos modis omnibus quibus pouerint aut scil per captionem Castrorum Terrarum possessionum aliis modis quibus potuerint donec fuerit emendatum secundum arbitrium eorum salva Persona nostra Reginâ—e nostra Liberorum nostrorum cum â—uerit emendatum intendent nobis sient prius fecerunt So that you see here in the Judgment even of the King himself they might freely resist and take up Arms against him till he made good every Article of these Charters if violated and were not to return to their Obedience till it was amended and the like Clause almost word for word is also to be found in the conclusion of the great Charters published in Mat. Paris M. I grant the Clause is there as
you quote it yet I much doubt whether it was of any validity being no doubt drawn up by the Barons then in Arms and which the King durst not at that time refuse and so he was indeed under a kind of duresâ— when he did it And besides pray mark the conclusion of this Clause this Resistance was to be Salva Persona nostra Reginae nostrae Liberorum nostrorum cum fuerit emendatum intendent nos sicut prius fecerunt Now how this Security here reserved for the King's Person could consist with that open War the Barons made afterwards against his very Person and casting off all their Allegiance to their Natural Prince and calling in Prince Lewis Son to the King of France I cannot understand F. I think all this may very easily be solved For in the first place K. Iohn was no more compelled to agree to this Clause than he was to the Charters themselves and if those were lawful and reasonable so was this Resistance too since there was no other way or means lest to preserve them in case the King should go from his own Acts and break through all he had done so that if the ends were lawful the means to preserve it must be so too or else those Charters would have signified nothing any longer than the King pleased As for the other part of the Objection that this Resistance was still to be saving the Person of the King and Queen c. and that this did not consist with the Barons after making War against his Person and casting off all Allegiance to him It was not their faults but the King 's if they could not perform this Agreement since the King by making War upon the Clergy Nobility and People by his open and notorious breach and recalling of these Charters calling in Strangers to his assistance and declaring he would no longer govern according to Law had made it absolutely unpracticable to preserve their Allegiance to him any longer so that they never cast off their duty as Subjects till he had cast off his duty as a King and then what was there else left to be done but to provide for their own safety by calling in a Forein Prince to their Assistance as soon as they could since there was no other way left them to defend themselves against those Troops of Strangers the King had invited over and though many of them with their Captain Hugh de Boves had been cast away and drowned in a Tempest at Sea yet more were daily expected So that if Tyrants should suffer nothing for the breach of their own Charters and Oaths they would be in a better condition by their violation than the observing of them â—or by the making them they for the present quiet the Minds of their discontented Subjects and when they please may break them all again when they have got power if no body must presume to resist them or not think them as much Kings when they destroy and oppress their People as when they protect and preserve them by governing according to the Laws of the Kingdom But pray what have you to say against that general Resistance that was made by almost all the Bishops Barons and great Men of England against his Son Henry the Third about the frequent and notorious violations of the great Charters which his Father and himself had so often sworn to and confirmed and for which he had received such great Benevolences and Subsidies from the Nation M. Before I answer this Question pray take notice that I am not at all satisfied with your Arguments that when ever Subjects shall think themselves injured and oppressed by their Soveraigns that then they may cast off their Allegiance to them if they cannot have the Remedy they desire since this were to make them both Judges and Parties too in their own Cause which is altogether unjust and unreasonable between private Men much more between Kings and Subjects But passing by this at present I shall tell you my Opinion of this Resistance of Simon Montfort and the Earls and Barons his Adherents that it was down-right Rebellion and tended only to dethrone the King and make him a meer Cypher and to devolve the whole Government upon themselves as appears by the Oxford Provisions recited by so many Authors of that Age and which were afterwards condemned and consequently those violent means by which they were obtained by Lewis the Ninth King of France who in an Assembly of his Estates upon a solemn hearing of the whole difference between King Henry the Third and his Barons declared these Oxford Provisions null and void So far was this good and pious King from countenancing any Rebellion or Resistance as you term it of Subjects against their lawful Soveraign F. For all this I cannot find that the King of France did then at all condemn this defence the Earls and Barons had before made of the Liberties granted them by the great Charters for tho' he restored the King to his former Power by avoiding the Oxford Provisions yet at the same time when this was done as the Continuator of Mat. Paris tells us he expresly excepted the Ancient Charters of King Iohn Vniversâ—li seil Angliae concessae and from which per illam sententiam in nullo intendibat penâ—tus derogare and if he did not in the least intend to derogate from them he could not with any Justice condemn the only means the Barons had to maintain them after so many Trials and fresh Promises and Oaths of this fickle inconstant King all broken and laid aside so that you may as well or better alledge the Pope's shameful Absolution of this King from this Oath he had made to observe the great Charters as an Argument why they should not be any longer bound by them nor the Barons obliged to defend them as this Sentence of the King of France to render the Resistance the Barons had made in defence of the great Charters to be unlawful And that King Henry himself did afterwards allow this Resistance for good and lawful Pray see the Agreement which was not long after made in full Parliament in the 49th between the King the Prince and all the Prelates Earls and Barons of England whereby he obliged himself to observe all the Articles and Ordinances which had been before agreed upon at London in the 48th Year of his Reign And then follows this Clause in the Record which the Doctor himself has printed in his Appendix at the end of the first Volume of his Introduction to English History which I shall here translate out of French because it is very old and obscure it is thus And if our Lord the King or Monsieur Edward viz. the Prince shall go against the Peace and Ordinance aforesaid or shall grieve the Earls of Leicester or Gloucester or any of their Party by reason of any of the things aforesaid that then the great Men and Commons of the Land
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
since by the subsequent words in this Oath it is restrained to the taking Arms by his Authority against his Person or those Commissioned by him which shews that nothing here is intended to be forbidden but taking up offensive Arms upon popular pretences without and against the Authority of the Law which is further explained in another Test by the Authority of both Houses of Parliament Thirdly 'T is observable this is but a Test upon some that were to come into Offices and can by no means make any change in the Ancient Law which cannot be changed by Implication nor does this amount to so much the first part of this Oath requiring only that the party admitted into Office shall so declare and believe and tho' the second Clause call it a Traiterous Position yet this is restrained only to these two particulars That Arms may not be taken up by the King's Authority against his Person or those Commissioned by him which can have reference to nothing but that distinction taken up in the late Times of Civil War when the Parliament pretended to take Arms and grant Commissions in the Name of King and Parliament by vertue of that Authority which they supposed he left with them at Westminster so that this Clause can by no means exclude any Arms made use of for Legal defence according to Law Fourthly and lastly Tho' the words against those Commissioned by him may seem to extend the matter further and is mistaken by some as if â—t required at least Passive Obedience to all Commissions of the King tho' never so illegal yet there is not the least colour for it since nothing is a Commission but the King 's Legal Command or Authority pursuant to some Law and for putting the same in Execution which is the Legal definition of a Commission and when this Test was first brought in to the second Parliament of King Charles the 2d and that the word Legal was offered to be added to the Bill upon a long Debate it was only left out because it was declared by all the Lawyers in the House even by Sir Hen. Finch then the King's Sollicitor and agreed to by the whole House that it was clearly implied and could bear no other construction but that all Illegal Commissions were Null and void and in no Legal sense could be called Commissions so that taking up Arms in the defence of the Law and pursuant thereunto cannot in any wise be called a taking Arms against the King's Person or those Commissioned by him and farther that by the words in pursuance of such Military Commissions are meant such as are warranted by that Act such as the King may issue by his Royal Authority which is bounded by Law and consequently cannot grant any Commissions but what are according to Law so that if these Commissions are granted to persons utterly disabled by Law to take them as all are that will not take the Test appointed by the Act of the 25th of K. Charles the Second intituled An Act to prevent the dangers that may arise from Popish Recusants as also all Commissions to do any Illegal violent action are absolutely void and consequently may be resisted or else our Magna Charta with all the other Laws that establish Liberty and Property as also our very Religion it self Established by Law may be either undermined by the King 's new Dispensing Power or else subverted by open force and every Commission Officer in a Red Coat will be as sacred and irresistible as the King himself But to conclude That the Instances I have given that the King's Commission may be abused to the destruction of the Nation nay of the whole Parliament are not so unlikely and remote as you imagine Pray let me put you in 〈◊〉 that as for that pretended Commission to Sir Phelim Oneal tho' it is true it did prove afterwards to be forged yet was it not known to be so till long after and therefore having all the signs of a true Commission under the King 's great Seal the poor Protestants in Ireland were to have had their Throats cut according to this Oath before ever they could be satisfied whether it were true or not But that a Popish King persecuting and destroying his Protestant Subjects only for matters of Religion is not so improbable a thing as you would have it the French King 's late Dragooning Imprisoning and sending to the Gallies all that refused to renounce Heresie as they call it and subscribe to the Articles of the Romish Religion has given us but too sad and recent an example and how you can assure me that the King acting upon these very Principles and being governed by like Confessors will never do the same things I should be glad to receive some better satisfaction than his bare word to the contrary Nor yet is my other Instance of its being left according to your Doctrine in the King's power to make a violent assault upon the persons both of the Lords and Commons assembled in Parliament whenever he pleased without any Resistance whatsoever so remote and improbable as you are pleased to make it since you may find it still upon Record among the Articles exhibited in Parliament against Robert de Vere Duke of Ireland Robert Tresilian Chief Justice and Sir Nicholas Brembur in the Parliament of the 11th of Richard the Second which I have already mentioned the 15th Article of which was That they by their false Council had caused the King to command the said Nicholas being then Mayor of London suddenly to rise with a great power to kill and put to death the said Lords viz. Thomas Duke of Gloucester and the other Lords there named and the Commons viz. of the Parliament of the 10th of this King who were not of their Party and Conspiracy for the doing of which wickedness the said grand Traitors above-said were parties and presents to the destruction of the King and his Realm So that if this Treason had not been discovered and that no private persons might then resist those Commissioned by the King it would have been Treason according to your principles for the said Lords and Commons to have resisted those that were thus sent to assault them and take away their Lives and what hath once happened 't is not impossible but it may happen again And we may remember how about little more than 30 years since that the K. of Denmark shut up the Senators and Nobility of the great Council of that Kingdom in Coppenhagen and threatned them with Death or Imprisonment if they refused to give up all their Liberties and from an Elective King make him and his Successors absolute hereditary Monarchs as they are at this day by means of the Bishops and Clergy of that Kingdom who then basely gave up and betrayed the Liberty of their Countrey and what they have now got by it they best know therefore this is a thing to be considered as a
them Life is the only state of Happiness in this World and without which nothing can be enjoyed It is therefore better for you to be made Slaves than to venture a Battel for in the Fight God knows how many of you may be destroyed whereas if you quietly submit we promise to hurt none of you we will only carry you away and sell you for Slaves and sure Slavery is better than Death for even Slaves enjoy a great many Comforts of life tho' with some hardships and you may be redeemed again or make your escape but life once lost can never be recovered The same Argument a Tyrant may use for the exercise of his Arbitrary Power over mens lives that he will not nay cannot destroy the whole Nation but only use them as Butchers 〈◊〉 their Sheep cull out the fattest and let the poor ones live thrive and grow fat till they are likewise ready for the Knife This perhaps may be a proper life for those Beasts that cannot live without Man's protection but what man of any courage or sense would be willing to live under a Government where his Poverty was to be his only Protection who would not venture his life in one brisk Battel rather than live in such a vile and slavish Condition and who would not rather argue thus It is great odds if among so many Thousands I am the person ordained for Death or if I am I may perhaps purchase Victory for my Countrymen and Liberty for my Posterity but let the worst happen I venture my life for the publick good and it is better once to die than always to live in fear But if the Calculation of the number of mens lives that may be lost in the recovery or maintaining any right whatever should be the only rule to render War either reasonable or lawful I doubt whether most of the Wars Princes make for small Territories or Punctilio's of Honour as lowering the Flag for example nay even for the recovery of their Crowns when unjustly detained or taken from them can upon your principle ever justifie either Princes in Conscience to make such Wars or oblige Subjects in prudence according to your Rule of the publick good to fight in such quarrels since none of them but often cost more Lives to defend or regain them if lost than the things are worth that the Princes of the World usually make War about against each other But if you tell me that men are bound by the Law of God and of their Country to assist their Prince in any Wars he shall Command them without inquiring into the Consequences of it and let what will happen as to the loss of mens Lives Estates or Liberties that we are likewise to obey and submit to lawful Princes because let them tyrannize enslave or destroy us never so much yet God has put us into their hands and we are safe in God's hands whilst we are in theirs This is all a meer fallacy for what is this to your main Argument from the destruction of Mankind for if so many men are to lose their lives in the War what difference is it as to them whether the War be made by a lawful or unlawful Power it is still upon this Principle unlawful to be made and consequently unlawful to be fought for and if you once grant that Princes may tyrannize without resistance kill or enslave any of their Subjects what difference is it as to the people that are to suffer it whether he be a lawful Prince or a Tyrant or Usurper that does it for as for being delivered by God into the hands of a lawful Prince to be dealt withal as he shall think good it is all meer Jargon pray prove to me if you can that whil'st a Prince thus tyrannizes oppresses and enslaves his people that God ever thus deliver'd the people into his hand for that design or that whil'st he does so he acts as God's Minister This I have urged you to prove at our 4th meeting but since you could not do it I take the case for desperate But to answer your Comparisons of the Sun and Sea to which you compare lawful Princes that turn Tyrants they are as easily retorted upon you if the rays of the Sun are too hot we may resist them and put on thicker Cloaths or set up shelters to defend our selves from them the like we may say of his malignant Influences or Effects upon mens Bodies could there be any means found out as easily to avoid them So likewise for the Sea suppose the breaking in of it upon any Country to be sent by God for their Sins you will not say it is unlawful for the people to make Banks or Dikes or use any other natural means to keep it out or to drain it away and the case is the same as to Tyranny for if resistance be as natural a means against it as these I have mentioned are against the too violent heat of the Sun or breaking in of the Sea I cannot see why we may not as lawfully exercise it But since we are â—alking of Waters this puts me in mind of the place you have now cited out of Proverbs That the heart of the King is in the hand of the Lord which without doubt is a great truth but then you should have added what immediately follows as the Rivers of Waters he turneth it whithersoever he will now how does God turn Rivers of waters it is not by any super-natural means but either by a strong VVind or else by the hands of Men. So likewise that Solomon's Comparison of God's turning the Hearts of Kings like Waters is but an allusion to the Custom of those Eastern Countries that as a Gardiner draws the streams of water through the trenches he cuts into what part of the Garden he thinks good so doth God turn the Hearts of Princes to act or do quite contrary to their first intentions nay to what they have actually done before but how is this performed it is only as he makes use of the Gardiner to turn the streams of Water it is wholy by Humane means such as Advice of good and wise Counsellors and a prudent Consideration upon it to which also may be added the Resistance of their Subjects when after all Remonstrances and Intreaties to the contrary Princes still go on outragiously to oppress them when they see they will no longer bear it and find themselves engaged in a troublesom War with them they then see their Errour and send to their Subjects and offer them terms of Peace Thus divers of our Kings hearts were turned when they saw the Nation would all as one Man resist their tyrannical Arbitrary Proceedings they came to Terms with them and granted them Magna Charta and other good Laws for the security of their just Rights and Liberties But as for what you say of our being safe in the hands of Tyrants as being in God's hands I grant we are
common Air they breathe in and King Charles the First somewhere says That it was his Maxim that the King's Prerogative is to Defend the Peoples Liberties and that the peoples Liberty strengthens the King's Prerogative For indeed if the Foundations are destroyed the Superstructure cannot stand and if this Rule had been well observed by this King's Sons we had not been reduced to this great Confusion we now lye under For my Lord Bacon calls those Flatterers who put the King upon such Dangerous Courses as great Traitors to him in the Court of Heaven as he that draws his Sword against him And King Iames I. in his Speech in Parliament 1609. Calls all those who perswade Kings not to be confined within the limits of their Laws Vipers and Pests both against them and the Common-wealth M. For my part I shall not go about to defend such ill men whoever they be yet since such Insinuations are done privately and in a Corner it is very hard for Subjects to judge when such Evil Councils are inâ—used into the Ears of Princes and much more unjust for them to make any resistance on pretence to remove them and therefore besides the absurdity of making Subjects both Judges and Parties you have not yet told me what number of men must be at once oppressed in their Fundamental Rights as you call them and who may make this resistance for methinks it is very absurd to give one County for example upon the account of free Quarter a Power of rising in Arms and resisting the King's Officers and Soldiers when perhaps all the rest of the Nation where no Soldiers are feel no such thing F. I am not so unreasonable as to maintain that Subjects ought to take Arms merely because the King gives too much ear to Flatterers and wicked Ministers or is too much led by them let him be so provided the people do not smart for it But if once it comes to that pass that they grow intolerable and set the King upon a General Invasion of the peoples Rights in any of the great Points I have now laid down let them look to themselves if they will not permit a Parliament to sit and redress those Grievances they must expect the Nation will rise at last against them as they did against Gaveston and Spencers and make them undergo that punishment they so well deserve But as for what you say of making the people Judges when their Rights and Liberties are invaded the Consequence is as bad if the King alone shall judge as for example in the Case of Ship-Money the Judges gave their Opinions that the King might raise Money for Ships of War in case of Necessity without any controul but if he be sole Judge of this Necessity he might lay this Tax as often and raise it to what degree he pleased Therefore as I shall not deny that the King may judge it fit to do a great many things against the strict Letter of the Law in cases of urgent necessity but it will be at his peril if he judge amiss as for example Every man's House is his Castle and he may lawfully defend it against all Illegal Commissions Yet I think no man will deny but that in case of a Fire in London the King may by Common Law command his Officers to break open some of the next Houses and blow them up with Gun-powder to stop the Fire but admit he should out of malice or mis-information command some Houses to be blown up that stood a Mile off under pretence of stopping the Fire do you think the Owners were bound to stand still and let them do it But if the People must not judge when their Fundamental Rights and Liberties are invaded because they will be both Judges and Parties then no man whatever by this Argument ought to defend himself against the violence of another for who can be judge but he that feels the blow Nor indeed could Princes make so much as Defensive Wars since whenever they do so they are themselves both Judges and Parties as I told you at our Third Meeting when I answered as I then thought all your Arguments against the peoples ever judging for themselves So that if it be proved that the people in a limited Kingdom remain as to the defence of their Lives Liberties Religion and Properties always in the state of Nature in respect of their Prince as well as all the rest of Mankind they must certainly make use of defensive Arms when necessity requires it or else become Slaves whenever he pleases to make them so may people have no right to judge of his Violence and Oppressions But as for the number that are to make this Judgment and Resistance thereupon I grant in most Cases this is not to be done as long as the Oppression is begun by colour of Law without actual violence Secondly when it concerns only some particular Bodies of Men thus if free Quarter should be taken in one or two Towns or Counties I do not allow it a sufficient cause for all the Neighbouring Towns much less the whole County or the Neighbouring Shires to take an Alarm and rise in Arms upon it since perhaps the King may know nothing of it and if he were once informed of it would redress it but can you affirm the Case would be the same if this Grievance should become general all over the Nation and that the King should be so far from redressing it that he should put out a Declaration setting forth that it was his Prerogative so to do would not the whole Nation then take it for granted that the King's Design was to govern by a standing Army who should live upon the people and devour them as they do in France to the very Bones and might not they make Resistance against these Robberies and Oppressions the same I say for all other breaches made in any other of our Fundamental Rights I do not allow any resistanâ—e to be made till it become a general Oppression upon all or the major part of the Nation and without all hopes of being otherwise remedied and this must be also so evident that there can be no doubt or denial of the Matter of Fact for so long as the Case is disputable or the Grievance is not of a general concern I grant the people ought never to stir but of this they alone must Judge since our Constitution has left us no other Judges of these breaches but the diffusive Body of the whole people in the intervals of Parliament But for your last Question as to the number that may thus rise to make this Resistance I answer thus that when once the Mischief becomes general and without all other remedy any part of the People who think themselves strong enough to defend themselves against such violence may begin to rise if they can till the rest of the Kingdom can come into their assistance as I told you the Town of Brill did
no man will say that their Acclamations and crying yea yea will make our Kings Elective any more than it could do it in the Case of K. William who had a Title by Conquest precedent to this prâ—tended Election tho' I grant this custom may have been in use ever fined this Coronation of the Conqueror But that King William claimed indeed by Conquest and by no other Title let us not mind his specious colourable pretences but his actions which are the best Interpreters of the Thoughts of Princes and we shall find that thorough all his Reign he Governed this Kingdom as a Conqueror and this I shall prove by making good the three Instances I have already given of his great alterations of the Property Laws and Civil Liberties of the People of this Nation to begin with the first of these For the proof of which I shall make use of the Authority of Gervace of Tiâ—bury a considerable Officer in the Exchequer in the time of Henry the Second and who received his information from Henry of Bloâ—s Bishop of Winchester and Grand-child to the Conqâ—eror who is most full to that purpose which he thus delivers in the Manuscript Treatise called the black book of the Exchequer which I shall read to you according to the Learned Dr. B's Translation of it After the Conquest of the Kingdom and the just subversion of the Rebels when the King himself and his great men had viewed and surveyed their new acquests there was a strict enquiry made who they were which had fought against the King and secured themselves by Flight from these and the Heirs of such as were slain in the Field all hopes of possessing either Lands or Rents were cut off for they counted it a great favour to have their Lives given them But such as were called and sollicited to fight against King William and did not if by an humble submission they could gain the Favour of their Lords and Masters they then had the liberty of possessing somewhat in their own persons but without any right of leaving it to their Posterity their Children enjoying it only at the Will of their Lords to whom when they became unacceptable they were every way outed of their Estates neither would any restore what they had taken away And when the miserable Natives represented their Grievances publickly to the King informing him how they were spoiled of their Fortunes and that without redress they must be forced to pass into other Countries At length upon consultation it was ordered that what they could obtain of their Lords by way of Desert or Lawful Bargain they should hold by â—unqestionable Right but should not claim any thing from the time the Nation was Conquered under the Title of Succession or Descent upon what great consideration this was done is manifest says Gervacâ— for they being obliged to compliance and obedience to purchase their Lords â—avour therefore whoever of the Conquered Nation Possessed Lands c. obtained them not as if they were their Right by Succession or Inheritance but as a reward of their service or by some intervening agreement This alone were sufficient coming from an Author of such Credit and living so very near the time but besides his I shall give you the Authority of divers other Authors to the same purpose and particularly Ordericus Vitalis whom you but now cited tells us how William the first circumvented the two great Earls of Moreâ—a and that after Edwin was slain and Morcar imprisoned then King William began to shew himself and gave his Assistants the best and most considerable Counties in England and made Rich Collonels and Captains of very mean Normans and that he thus disposed of whole Counties to divers great men appears by Domesday Book wherein it is seen that the whole County of Chester was given by the Conqueror to â—upus a Norman so likewise the greatest part of Shropshire was given to Monâ—gomery And further he took away from the English their Estates and gave them to his Normans and this he did from his first coming in for Fitz-Osbern was made Earl of Arundel and Hereford at his first coming in and was Lord of Bettivil in Normandy and established the Laws of that Town at Hereford Alan Earl of Bâ—itain had all Earl Edwin's Lands given to him at the Seige of York about three years after his arrival to these I may add the 795 Mannors Robert Earl of Morâ—ton in Normandy and Cornwal in England had given to him by K. William so likewise â—lan Earl of Britain and Richmond 442 Mannors and Ieffery Bishop of Constance had 280 Mannâ—rs given him by the Conqueror besides many other Lands of the Saxon Earls Thains c. were all given to the Normans who took their Title from King William's Conquering Sword So that I think it is very evident that this King had distributed most of the Lands of the Nation to his Norman's long before the survey was begun and by that infallible Record it is clear that he gave near all the Lands of the Nation to his followers and very little or none to the English who held that they had hys new Title and new services from the Conqueror or his great Lords or became Tenants to or Drudges upon their own Lands as we heard before from Bracton and Fleta Here is enough to satisfie any unbyassed person that thâ— Conqueror did not lay by his Sword after the Battle of Hastings F. In answer to what you have now said concerning your Conquerors taking away the Lands of a great many of the English Nobility and Gentry it is so apparent in matter of Fact that it were a high piece of impudence to go about to deny it yet will it not therefore follow that what he thus disposed of were almost all the Lands of England as I shall shew you by and by but in the mean time to let you see that I am a fair adversary I will at present suppose that K. William took away all the Lands from the former owners and gave them to his followers who helpt him in his Conquest but these were not only the Normans his Subjects but French Flemmings Anjovins Britains Poictovins and People of other Natioâ—s who made up a great part of his Army and came in with him under great and considerable men their Leaders and whom your Dr. tells us came not out of staâ—k love and kindness without any consideration of sharing with and under him in the Conquest Now I desire to know by what Law or Act of theirs they thus constituted K. William an Absolute Monarch over them and their Descendants For as for the Normans tho' they were it's true his subjects yet they enjoyed divers considerable Rights and Priviledges at home and surely never intended to come over hither to make themselves as great Slaves as the People they had Conquered much less can it be supposed of these of other Nations who were not subjects to Duke William before
he was made King nor can I see how their taking of Lands from Him could make him become an Absolute and Irresistible Monarch over them and their Descendants so that if upon your supposition all the owners of Lands in England at this day hold their Estates either by descent or purchase from those Antient Normans or French Proprietors they must also succeed to the same Liberties and Priviledges as those under whom they claim did formerly enjoy But before I conclude I cannot but take notice of what you have said against my proofs of the formal election of King William for if the keeping of a guard about the place where the King is Elected and Crowned should void the freedom of the Election I doubt whether the election of any elective Kings or Monarchs no not of the German Emperor himself would hold goods as for the other reason that they could not chuse but â—lect him that is yet mâ—re trivial for there being no more than one thaâ— stood to be chosen they could indeed chuse no other but if not having a Liberty to refuse must void the Right of Election pray consider as I told you before whether there be any Canonical Election of Bishops in the Church of England at this day therefore I doubt not but that King William I. was as lawfully and freely elected as K. Edward the Confessor his Predecessor whom all Authors agree to have had no other Title and Williâ—lmus Gemeticensis in the place I now cited tells us he was Elected King as well of the Norman as English Nobles and if the custom had not â—â—en â—â—cen to Elâ—â—â— the King before he was Crowned it is not likely thaâ— your Conqueror would have introduced a new custom to the prejudice of his pretended right by Conquest but indeed there is not only more cogent argument to prove that the Crown was formerly elective than â—he constant usage as you your self confess ever since your preâ—ended Conquest to this day of asking the People whether they are content to have such a one for their King As for your Doctors quotation out of William of â—oictoâ— pray take notice that he places your Conquerors Hereditary bequest together with the Oaths of the English as his best Title and the right of War last by which this Author did not understand a Conquest of the People of England but his prevailing against Harold M. I do own with the learned Dr. B. that the Descendants of those ancient Norman and Freâ—â—h Earls and Baâ—ons than came in with the Conquerour and their Posterity afterwards seeing the Yoke of feudâ—l Tenures and other prerogatives this King and His Descendants exercised over them to press as hard upon them as the Antient English were those that made such a disturbance for their Right and Liberties in the Reigns of H. Iohn and Henry the third and tho' I grant their Ancestors were never conquered and consequently could not be obliged to him as to a Conqueror 〈◊〉 may for all this maintain that they and their Posterity were as much bound to an Absolute Subiection without any resistance aâ— the English whom they conquer'd for they were either his own Subjects in Aâ—â—mandâ— before his coming oâ—eâ— hither or else were such Volunteers who followed him but of hopes of Estates and Brâ—ferment was for all those of the former 〈◊〉 and 〈◊〉 were his subjects before they were tied not only by their 〈◊〉 Oaths of a Regiance which they had taken in Normandy but were also bound by the same obligation of Non resistance as all other subjects must always be both in that and all other Governments to all which was added another Obligation in respect of those who were not his subjects before his entrance since this whole Kingdom was by Conquest the Conqueâ—ors as appears in that he bestowed the 〈◊〉 part of 〈◊〉 his Followeâ—â— whose blood runs at this day in the Veins of most of our English Genâ—ry and Nobility as a reward for their Service and Assistance tho' he might have some part to the English Natives and their Heirs yet so aâ— that he altered the Tenure and made it descend with such burdens as he pleased to lay upon them so that as well â—his own Countrymen Normans as those of all other Nations who thus became Subjects and Feudataries to him for all the Lands they possessed in England since he was the only Directus Dominus or Lord Paramount of the whole Kingdom were also his Vassals and Subjects for in case of Treason and Rebellion or Death without Heir those Lands were to return to him again and to be aâ— his dispossal so that all subjects as well Normans as other Foreigners who had Lands granted to them by the Conqueror thus became his homines Ligei Liegemen and did owe Faith and true Allegiance to him as their Supream and Liege Lord as the King is called in several Statutes and the definition of Liegeancy is set down to the grand Customary of Normandy Ligeantia est ex quâ domino tementur vasalli sui c that is Liegeancy is an obligation upon all subjects to take part with their Liege Lord against all men living to aid and assist him with their Bodies and Goods and with their advice and power 〈◊〉 to lift up their hands against him nor to support in any wise those who oppose him and tho' I grant that the Supream or Liege Lord is likewise bound to govern and defend his Liege People according to the Rights Customs and Laws of the Countrey yet is he not liable to resistance much less forfeiture if he neglect it For tho' if Subjects break their Covenants and prove disloyal all their Lands and other Rights are forfeited to the King yea if the King or Supream Lord break his Oaâ—â—â— notwithstanding his sailing therein neither his Crown nor any Rights belonging to his Royal Dignity are thereby â—orfeiâ—ed the reason of this inequality is because the King gave Laws to the â—eople but the People did not give Laws to him so that it is plain that however you 〈◊〉 the Conquerors entrance whether by the Sword or to avoid the Envy of the Title of a Conqueror by a voluntary submission of the English Nation to him as to their Sovereign the conclusion cannot vary because the duty of Non-resistance arises from their own Act they taking an Oath of Allegiance to be his True and Loyal Subjects with which Oath Resistance can by no means consist F. I must beg your pardon if I cannot take what you have now said for a satisfactory answer since I doubt it will do you little service whether you make use of it either in respect of the Normans or other Foreigners for as to the soâ—mâ—r it appears from the Antient Constitution of Normandy that the Duke was no absolute Monarch there but Feudaâ—ary to the King of France and farther could make no Laws nor impose Taxes in Normandy without the consent of the Estates of that Dutchy as
and Service to the Hundred and County Courts and that these very men were such as after your Conquest were called Barones Comitatus appears in this that those who before the Conquest were called Thanes are afterwards called Barons of Counties in all our Ancient Laws and Charters and for this I shall give you the Authority of Sir H. Spelman in his Glossary who tho' he does chiefly understand by this word all sort of feudal Barons dwelling in each County Proceres nempe Maneriorum domini yet nor only these but necnon liberi quique Tenentes hoc est fundoâ—um proprietarii Anglice Freeholders ut superius dectum est So that take it in which sense you will this word cannot signifie only Tenants in Capite or so much as Military Tenants as you suppose since a man might hold a Mannor by other Tenures than Knights Service as by grand or petty Serjeanty or in Soccage by a certain Rent and so likewise might he hold any other lesser Estate of Free-hold by the like Tenures which if it were so your Drs. Fancy of Tenants in Military service being then the only Free-men of the Kingdom and who were capable of serving upon Juries in the Hundred and County Court is a meer Chimera without any ground as I have already proved at our third meeting when I shewed you by the words liberi homines so often mentioned in King William's Laws are to be understood not only Tenants by Knights Service but any other Free-men or Free holders who held Lands or other Possessions which may be also proved farther by the Stat. of Merton Cap. 10. as appears by this clause Provisum est insuper quod quilibet liber â—omoqâ—â— sectam debet ad comitatum trithingum hundredum Wapentagium vel ad 〈◊〉 domini sui libere possit facere Attornatum suum ad sectas illas pro eo faciendas Whereby you may see that every Freeman who was a Master of a Family and not under the power of another was then obliged to pay Suit and Service to the County Trithing and Hundred Courts But say you these persons who were Jurors in this great Cause between Earl Odo and Arch-bishop Lanfranc are there called Primores and Probi viri not only of the County of Kent but other Counties where the Lands lay and it is not probable that the ordinary Free-men which made the greatest number and were all bound to their good behaviour could be the Probi Legales homines who served upon this Jury well I grant it that these Gentlemen you speak of might be Lords of Mannors and considerable for Quality and Estate and who alone were impannelled upon Juries in this and other such great tryals of Novel Disseiâ—in and yet for all that those lesser Free-men or Free-holders you mention were Legales homines and as such were capable of trying all Causes of what nature soever since Sir H Spelman tells us in his Glossary Title Legalis that In Iure nostro de eo dicitur qui stat rectus in Curia non exlex seu utlegatus non excommunicatus vel infamis c. sed qui in lege postulat postulâ—tur Hoc sensu vulgare illud in formulis juridicis probi legalis homines So that he does not make as you do that a Man's legality must depend upon his Tenure but upon his being rectus in Curia So that it is no more an Argument that because in some great Tryals in those times none but the chief and most considerable Men in the County were impannelled upon Juries in the County Court therefore none but they could ever serve there upon Juries at all then it would be now for a man to affirm that because in great Tryals at the Assises or at the Bar at Westminster only Knights and Gentlemen are Impannelled therefore none but they and not any Yeomen or Countrymen can ever serve upon Juries at all But let these Gentlemen you mention have been all Tenants in Capite or by Knights Service if you please yet will it not make good your assertion that they were only Normans or Frâ—nchmen who as the only Proprietors of Estates served upon this and other Juries at that time for they must have certainly been such who of their own knowledge knew the Lauds in question and to whom they did belong before K. William's entrance into England and your Dr. himself in his answer to Mr. Atwood's Ianus fully agrees to this truth as appears by this passage which I desire you would read In Tryals of Novel Dissâ—isin and for the Possession of Lands Customs Services c. the Juries at the time of the Conquest and in several of the King's Reigns next succeeding were Impannelled out of the same Town and Neighbourhood of such as did know the Land and things in question and who had been possessed of it and for what time And to this purpose in an Assize if none of the Jurors knew the right it self or truth of the matter and did testifie so much to the Court upon Oath recourse was then had to others until such were found who did know the truth but if some did know the truth and others not those that knew it not were put by and others called into the Court until twelve at the least should be found to agree therein and for this purpose it was that all Suitors to Hundred and Country Courts were bound to appear there under great penalties that thâ—re might be a Jury of such as knew whose the Land was and so far your Dr. is very much in the right but then that all the Gentlemen that served upon this Jury must be Englishmen is as plain from the reason he hath now given us and if he had not told us so we have an undeniable authority for it to wit the antient Mss. called Codex Roffâ—nsis quoted by Mr. Selâ—en in his notes upon Eadmerus where speaking of this Tryal Praecipit Rex Comitatum totum viz. of Kent absque mora considere homines Comitatus omnes Francigenas praeciput Anglos in antiquis legibus consuetudinibus peritos inâ—unum convenire But it also adds alii aliorum Comitatuum homines and so confirms what Eadmerus says so that nothing is more evident by your Doctors own shewing as also by the Testimony of this ancient Author that this great cause was Tryed either by Tenants in Capite and other great Free-holders were all Englishmen or such Frenchmen as were here before your Conquest so that from this famous Tryal we may draw two of three confusions directly contrary to your assertions First That there were many great Proprietors not only in Kent but in other Counties as appears by Eadmerus who were a sufficient number to try Causes in the County Courts a good while after your Conquerors coming over Secondly That the Pleadings and Verdict in this Cause being before Englishmen and given by them must have been all in
if the King had seised all the English Estates without any Legal Tryal as for example in Essex in Barnstable hundred In Burâ de istis Hidis est una de hominibus soris sactis erga Regem and this was the way of expression in the Active Voice we find in Noâ—folk Earl Ralf held such Lands Quando se foris fecit But more particularly in Cambridgeshire in Wardune Hardwin holds of Richard's Ancestors but Ralf Waders held it Die quo deliquiâ— contra Regem all which would never have been inserted could this King have taken away mens Lives and Estates without any colour of Law or Justice and therefore you may find in all the Historians of his time that after the great Plot wherein so many Norman as well as English Lords were concerned and for which Roger Earl of Hereford and Ralph Earl of Norfolk and Suffolk both Normans had conspired with Earl Waltheof and other English Lords to call in the Danes and dispossess the King yet they were convicted by a legal Tryal of their Peers and suffered death for it So that in this he distributed equal Justice to the Normans as well as the English who thereupon forfeited all their Estates and yet notwithstanding this there were some Native Englishmen still lest who tho' they had been in Arms against the King at the beginning of his Reign yet were nevertheless reconciled to him and restored to their Estates as for example Ederic Sirnamed the Forester who as Florence of Worcester tells us was reconciled to King William and accompanied him into Scotland soon after as also Herward the Son of Leofric Lord of Brunne who having lost his Estate and being Out-lawed as Ingulph tells us Took Arms against the King William and joyned himself with those in the Isle of Ely and yet after divers great Battels as well against the King as his Commanders yet at length having obtained his Inheritance by the Kings allowance he finished his days in Peace and now here were two considerable English Barons which still enjoyed their Estates notwithstanding all King William's severity and yet I do believe it will puzzle your Dr. to shew me their names in Doomesday-book so that that Book alone is not it seems a certain Rule to discover what Englishmen were then Barons or Tenants in Capite But admit all this to be true as you your self have represented it can this Kings perjury to his Subjects and breach of all Laws after so many solemn Oaths give him a right as a Conqueror over the Lives and Estates of his English Subjects and that after he had solemnly renounced his Right of Conquest by so many solemn transactions with his Subjects with whom you suppose he still made War after he had for so many years laid down his arms at this rate I cannot tell when subjects may be safe for let Kings that come to a Crown by a mixt title partly by force and partly by right take never so many Oaths to maintain the ancient constitution of the Government together with the Rights and Priviledges of the People 't is but his saying afterwards when he hath sufficient power that they were forced upon him and that he never designed to keep them and his business is done and he may then take away his Subjects Lives and Estates by this pretended right of Conquest whenever he pleases nor does this only extend to himself alone but to all his Heirs and Successors who claim under that Title let them take never so many Coronation Oaths or make never so many Declarations to the contrary since they all claim under the same divine Title of the Sword that is as you will have it receive their Crowns immediately from God and then can never forfeit them let them tyrannise to the utmost degree imaginable for you have provided them with two easie and pleasant excuses that all promises are either broken or kept and Stultám Sacramentum est Frangendum and I cannot but smile to see what an excellent excuse you have found out for all the breach of Oaths and Covenants of those engaged in the late Civil Wars since they might very well plead they had so many Royal Presidents for so doing as sufficiently authorised it unless you will have that to be Perjury in Subjects which must be a Divine Prerogative in Kings And therefore let me tell you I am very glad for your own sake that there is no body here but you and I since all the company would have cryed out and said that this way of arguing were to make open War not only upon all the Laws and Priviledges of this Nation but also to put the King and People in a state of War against each other for if he once declares by such Overt Acts as these of King William's that he will not be tyed neither by his Coronation Oath nor by any Laws he has made I doubt their Oaths of Allegiance will not long bind them neither and they will be very ready to reply that whatever power began and is continued by force and violence may also be cast off by the like means and when a King and his People are brought once into this state it is easie to foretell what will be the event either he must turn out or they must be all Slaves and I wish it was not owing to such Jesuitical flattering Councils as this that the King first lost the Affections of his People and then his Crown since Father Peters himself with the rest of the Jesuits and Arbitrary Ministers of the Cabal could never have instilled worse Principles than these therefore I pray for the future either get better reasons or keep those to your self But God be thanked both King Iames and K. Charles the First had much better thoughts of the Laws and Liberties of the Nation since the former hath solemnly declared in a Preamble to the second Act of Parliament in the first year of his Reign That not only the Royal Prerogative but the Peoples security of their Lands Livings and Priviledges were secured and maintained by the antient fundamental Laws Priviledges and Customs of this Realm and that by the abolishing or altering of them it was impossible but that present confusion will fall upon the whole state and frame of this Kingdom And his Son was of the same opinion in his first declaration at the beginning of the late Wars The Law says he is the Inheritance of every Subject and the only security he can have for his Life or Estate and the which being neglected or disesteemed under what specious shew soever a great measure of infelicity if not irreparable confusion must without doubt fall upon them M. If I had no love at all for the Government and Liberties of my Country as I thank God I have a great affection for both yet should I not have the Impudence to contradict the sense of two Kings and a Parliament neither have I so
the Prince had demanded This would have been not to have been parralel'd any where but in a Romance But as for those Officers and Souldiers who you say Deserted the King and went over to the Prince from Salisbury though I grant they make a great noise yet were they not a Thousand Men Soldiers Officers and all as I am Credibly inform'd which was but a small number in comparison with the Kings whole Army and yet these may very well be defended upon the same principles with the former for if the Violations of our Liberties were so great and dangerous as I have now set forth those Gentlemen were certainly oblig'd to prefer the common Good and Preservation of their Religion and Liberties before any private interests or Obligations whatsoever though it were to the King himself therefore it was more his than their fault if they Diserted him and as for their going away whilst they were his Souldiers and with their Commissions in their pockets I suppose you cannot expect that the King should have ever given them leave to have quitted his Service or have accepted of their Commissions if they would have surrender'd them unless at the same time he had clapt them up in prison for offering of it and if then they were perswaded that it was theiâ— Duty so to do it is but a Punctilio of Honour whether they went away with their Commissions in their pockets or had left them behind them since their going off was a Surrender of their Commissions and a sufficient Declaration â—â—at they could not with a safe Conscience serve the King any longer in this quarrel and you see that the going off of these few had such a fatal effect that it cast such a panick Terrour upon the King and the whole Popish Faction about him as to make him run away to London without striking a stroke But that the Prince of D. with the Dukes of Grafton and Ormond Lord Churchill were convinced of the danger this Kingdom was in both in respect of their Religion and Liberties appears by their leaving the King and going over to the Prince where they could never expect to be put into higher places of Honour or Trust than what they enjoyed already under the King and therefore that expression of the Lord Churchill's in his Letter to the King is very remarkable That he could no longer joyn with self-interested men who had framed designs against His Majesties true Interest and the Protestant Religion to give a pretence to Conquest to bring them to Effect And one would be very much inclin'd to believe so considering the great number of Irish Papists which have been brought over and listed here though with the turning out and disbanding of a great many English Officers and Souldiers out of several Companies But to come to the business of the Prince of Wales which you say was a meer calumny and an unjust suspition on the Princess side though I will not affirm any thing positively in so nice a matter since the Convention has not thought fit to meddle with it I shall only say this much that if there have been any jealousies and suspitions raised about it the King may thank those of his own Religion who were intrusted with the management of the Queens Lying-Inn For in the first place it looked very suspicious to us Protestants who do not put much faith in the Miracles of the Romish Church that immediately after the presenting of the Golden Angel to the Lady of Loretto and the Kings Pilgrimage to St. Winifreds Well the Queen after several years intermission should again be with Child and when she was so should have two different Reckonings Which though it may be forgiven Young Women of their first Children yet those who have born so many Children as Her Majesty are commonly more experienced in these matters M. What is all this to the purpose Was it not proved by many credible Witnesses and those of the Protestant Religion before the Privy-Council that they were not only present in the Room when the Queen was Delivered but that they had seen Milk upon Her Linnen before Her Delivery and that they had also felt Her Belly immediately before it and found that Her Majesty was Big with Child and ready to be Delivered And the Midwife Swears that she actually Delivered Her So that since every person is to be presum'd to be the true Son of those Parents that own him for theirs So nothing but a direct proof to the contray and that by undenyable Evividence ought to make any Man believe otherwise much more in the concern of the Heir apparent to the Crown and therefore I know not what you would have to been done which has not been observed in this nice matter F. And Sir let me tell you because it was so nice a matter and concerned no less than the Succession of Three Kingdoms therefore the whole Nation as well as the Prince and Princess of Orange were to be fully satisfied of the reality of the Princes Birth since they were all suffiâ—iently sensible that there wanted nothing but a Male Heir to entail Popery on us and our Posterity And therefore there ought to have been present such Persons as had no dependance upon the Court and who ought to have been deligated by the Prince and Princess of Orange since the Princess of Denmark could not be there in Person but instead of this the only two Ladies who as I am informed were trusted by the Princess to be present at the Queens Labour were never sent for till she was brought to Bed and the Child Drest And as for the rest of the Witnesses they were either Lords or other Persons who only Swear they stood in the Room at a distance and heard the Queen cry out and immmediately after the Child cry sometime before they saw it And as for the Ladies the greatest part of them Swore no further than the Lords So that notwithstanding all that they have Sworn in this matter there might have been a trick put upon them and they never the wiser Since you may Read in Siderfin's Reports of a Woman who pretended to have been delivered of a Child by a Mid-wife within the Bed and yet many years after this was proved to be a suposititious Birth by the Deposition of the Mid-wife and the poor Woman who was the real Mother of the Child and others that had been of the Conspiracy And what has been done once may be done again 'T is true the King himself with one or two Ladies Deposed something further as to Milk and the feeling of the Child immediately before the Birth but his Majesty if it be an Imposture is too deeply concerned in it to be admitted as a competent Witness And as for the rest of the Ladies they are likewise being as the Queens Servants and having an immediate dependance upon her to be excepted against and under too much awe to speak the whole Truth
which his Majesty should have chosen one for to supply each Bishoprick c. as they became vacant And therefore for my own part I was so far from believing all agreements with the King to be unpracticable that there was no body rejoyced more than I when upon his Majesty's first return to London he so far Complied with the Desires of the whole Nation as to issue out his Proclamation for a Free Parliament and that he sent down his Commissioners to Treat with the Prince and I had then great hopes of an Accommodation but when instead of this the King had burnt the Writs for the Election of Parliament Men and had sent away the Queen and Prince together with the Great Seal that no more Writs might be issued and that before ever the Commissioners could return to London or before any Answer to the Princes Proposals was given by the King he had withdrawn himself and done all he could to get away into a Foreign Kingdom it was then and not till then that I saw all hopes of Agreement absolutely desperate and though you put a great stress upon the Kings last return to Town which you suppose was with a Design to agree with the Prince in every thing that could be in Reason demanded I can see no cause for your drawing such a Consequence from it for if he did not look upon himself as safe here before his Army was Disbanded he could not think himself more so when it was either wholly Dissolved or else was gone over to the Prince and therefore I have much greater reason to believe that his return again to Town was only to comply with the present necessity and to wait for a fitter opportunity to get away there being never a Vessel then ready to Transport him especially if that be true which I have heard that the King declared to a Person of Credit That the Queen had obtained from him a Solemn Oath on the Sacrament on the Sunday that if she went for France on Monday he would not fail to follow her on Tuesday and if this were so though he was disappointed in his intended passage yet still was he under the same obligation to the Queen nor do I see any Transaction of his with the Prince of Orange or with these of the Church of England that can perswade me to believe otherwise sinâ—e his long Consultation with the French Envoy and the Priests and Jesuits could only tend to the taking new measures for his Departure or else how he might Imbroil us further while he stayed by some faint hopes of new Treaties and Agreements But as for the other part of your Answer whereby you would confute my Notion of the lawfulness of Resistance for the defence and preservation of our Religion Established by Law as also of our Liberties and Properties I hope I shall let you see that it is not I but your self who are mistaken in this matter For 1st All Writers on this Subject and even Dr. Sanderson himself in his Lectures of the Obligation of Conscience do acknowledge that all Civil Government is principally ordained for the good and preservation of the People and that the good of the Governours is only to be considered secondarily and in order to that which if so I pray tell me whether the good and preservation of the people ought not to be considered in the first place since the end for which a thing is ordain'd is always more worthy than the means by which it is procured and therefore I shall freely grant that as long as the safety and interest of the Supream Power and that of the People are all one and can any ways consist together and that they make the happiness and preservation of the People to be the main end of their Government I so far agree with you that the good or preservation of the Prince or Supream Powers cannot nay ought not to be separated from that of the People but when they once set up a separate interest quite different from that of the People as all Princes do who turning Tyrants go about to inslave them they then cease to be the true heads of that Political Body the Common Wealth and thereupon the Community or People become free and at liberty either to oppose or remove these Artificial heads and to set up new ones in their rooms so that since similies are not Arguments your comparison between a Natural and Political Body hath only served to impose upon your Judgment in this matter and therefore I affirm that a Natural and Political Body do wholly differ in this matter for in a Natural Body the real good of the head cannot be separated from that of the Body nor the good of the Body from that of the Head nor yet can the Body alone Judge of the proper means of it's own preservation nor when it is hurt or assaulted but by the head which is the principle of sense and motion but in a Political Body it is quite otherwise for first the Supream Powers of a Common-wealth which you suppose to be Head of this Political Body do often pursue and set up an interest quite different from nay contrary to that of the Body or People and that not only to their prejudice but also sometimes to their destruction and that when they do this the Politcal Body or the People will in evident and apparent cases Judge for themselves let this Political Head say or declare what it will against it and will when they are thus destroyed opprest and inslav'd by those that they have submitted to as their Political Heads and in such cases of extremity endeavour to free themselves from the severity of their Yoke M. Notwithstanding what you have now said I am not yet convinced that the King had no real design to redress our grievances and to make a final agreement with the Prince for though I do not deny but his Majesty did converse with some Priests and others of his own persuasion as also with the French Envoy after his coming to Town yet might this be for no ill intent and he did also converse with divers reverend Bishops and Lords of our own Religion to whom he still expressed a great desire of making an end of all differences between himself the Prince and the whole Nation and this I suppose is the true reason why the Arch-bishop of Canterbury though it is true he signed the first and second Addresses to the Prince upon his Majesty's first wth-drawing himself yet has been ever since so sensible of that mistake he then committed that he has never appeared or acted in any meeting of the Peers nor yet in the Convention and that his Majesty even at Rochester did not lay aside all thoughts of Agreement and making up all breaches between himself and his People I could give you another demonstration which is not commonly known and which I had from a particular Friend viz. that the King
their Arms in their hands and took that opportunity of revenging themselves upon those that they looked upon as the Authors of all this confusion so that except the rifling of the House and Chappel of the Spanish Ambassador which I grant was contrary to the Law of Nations there were very few Popish Houses plunder'd or spoiled but such as had before rendered themselves some ways or other obnoxious to the Laws by their Apostacy and accepting of Commissions which they were utterly disabled by Law to take and though to my knowledge the Deputy Lieutenants and Justices of the Peace did their utmost in most Counties of England to quell those Riots and Disorders yet the Mobbile were too much enraged and too numerous to be commanded when like a vicious Horse whose Rider is cast off they run away with the Bridle in their Teeth M. I confess you have made the best Apology for the Mob that the matter will bear and I cannot deny in comparison of what has been done in other Nations on the like occasions it was a very civil Mob but yet this may serve to let us see the danger of your doctrine of Resistance since by the same Law by which they then pulled down and plunder'd the Popish Chappels and Roman Catholick Houses by the like right they might have done the same violences upon any other Noblemans or Gentlemans House in England whether a Papist or Protestant that they had a spleen to since it was but their crying out that he was a Papist or at least a favourer of them and then it had been enough to make them suffer as if they really had been so as I could tell you of my own knowledge of a very honest Gentleman of my acquaintance who because he was a true Son of the Church and had been always a Loyal Subject to his Majesty and a great Enemy to the Whig Faction in the Countrey and had also put the Laws severely in execution against the Dissenters was like to have had his House plunder'd by the Phanatick Mob of a certain Town from which this Gentlemans House was not far distant F. If you please to consider it this is a very unjust inference from our Doctrine for these actions were not any resistance of the Supream Powers of the Nation but certain violent actions or revenges which the Rabble thought they might take upon those whom they looked upon as publick Enemies when there was no civil or military Power in being that was of sufficient strength to keep them in order but if you please to call to mind my positions I do by no means allow the Rabble or Mob of any Nation to take Arms against a Civil Government but only the whole Community of the People of all Degrees and Orders commanded by the Nobility and Gentry thereof and though I grant the People may be sometimes mistaken in the exercise of this Right as what is there though never so lawful that may not be abused yet I think you will grant that the bare abuse of a lawful thing is no sufficient ground for the taking away the liberty of exercising it and I think I have sufficiently proved that the total denial of this Liberty would be of far worse consequence to whole Nations and Kingdoms nay to all mankind than the allowing of it as those of my opinion do only in cases of Extream necessity and when no other remedy will serve M. I will not renew this old dispute again about Resistance we sufficiently know one anothers minds about it and are not as I can see like to bring over either of us to the others opinion but since I know you have studied the Common Laws and Histories of this Kingdom better than I I cannot forbear making divers just reflections upon the late proceedings of the Convention for tho' indeed they had no Legal Authority to assemble upon the circular Letters of a Foreign Prince yet since this was the greatest if not the only liberty we had left us I will not quarrel or dispute the legality of their meeting but then they must use it only for lawful ends and such as in their private capacities they were obliged to pursue if they were able therefore when they assembled if they would have maintain'd the due Rights of Monarchy and Succession in this Kingdom sure they ought in the first place to have inquired what was become of the King where he was and who forced him to go away and when they had known that they ought then to have joyn'd in Addressing to the Prince that since he had declared that he came not to Conquer this Nation but only to free it from Arbitrary Government and restore it to its just Laws that there could be no sure enjoyment of these without the King therefore he would join with them in sending to him to desire him to return to the Government of these Kingdoms and to Govern them according to Law but instead of this they not only neglected taking any notice of the King as if he were not at all in Being but have also refused to receive those gracious Letters he sent them in which he promised To amend all former Errours and to Govern according to Law which certainly deserved to be taken notice of since coming from their Lawful Prince they ought at least to have proposed some terms to him before they had proceeded to that rash and unparallell'd Vote which I desire I may read to you word for word because I intend to examine every clause of it Resolved That King James the II. having endeavoured to Subvere the Constitution of this Kingdom by breaking the Original Contract between King and People and by the Advice of Iesuits and other wicked persons having violated the Fundamental Laws and having withdrawn himself out of this Kingdom hath Abdicated the Government and that the Throne is thereby vacant I shall make bold to consider each of these Clauses one alter another and therefore first pray take notice that this Vote of the two Houses cost above a weeks Debate in the House of Lords which past in the House of Commons in two or three days because divers of the Lords as well Temporal as Spiritual did with great Honour Reason and Resolution oppose and protested against it to the last and it was carried at last by a very small Majority but that we may examine each Clause in this Vote first it is here only said That King James II. endeavoured to Subvert the Constitution of this Kingdom not that he really did it which is as much lower than you are pleas'd to put it as endeavouring a thing falls short of actually doing it and therefore it is very hard to Declare a Prince to have forfeited or Abdicated his Kingdom for bare Designing and Indeavouring since those things that you bring to prove it may bear a much more favourable Interpretation especially with Subjects who are no fit Judges of the private Designs of Princes
as a wilful Forfeiture or Abdication of the Government and it is from this first going away that I suppose that the Convention dates his Abdication since though it is true after his return to London he took upon him to make an Order in Council to stop the further pulling down and plundering Popish Chappels and Papists Houses yet was it sign'd by very few of the Council and almost only by those who had been in some Office or Place of Trust so that though he was then own'd by them yet since that Order did only serve to shew his Zeal for the Popish Party and was never obey'd or taken notice of by those to whom it was directed and that neither the Prince nor the City of London owned him afterwards since it had already delivered it self up to the Prince and had as well as the Peers invited him to repair to that City I cannot see that so slight an act as this Order of Council should be counted a return to or a re-establishment in the Throne since the King had not only lost the Crown by his wilful departure without calling a Parliament or giving the P. any satisfaction in the great business of the pretended Prince of Wales or the Nation by repairing up those desperate breaches he had made upon our Fundamental Laws but had also lost his Title to the Crown by being Conquer'd by the Prince in open War as I shall prove more at large another time so that if you please better to consider this Vote of the Convention you will find that these words had Abdicated the Government do not only refer to the last clause of his having withdrawn himself out of the Kingdom but to everyone of the foregoing Clauses viz. His having endeavour'd to subvert the Constitution of this Kingdom his breaking the Original Contract and his having violated the Fundamental Laws so that it is plain their notion of Abdication was not fixt only in the Kings Desertion or bare withdrawing himself out of the Kingdom but from his renouncing the Legal Title by which he held the Crown and setting himself up as a Despotick Soveraign and ruling by a mercenary Army and therefore all that you have said about the Kings quitting the Government with a design to return to it again as soon as with safety he might is altogether vain for as he went away because he would not Govern any longer as a King by Law so hath he yet given us no satisfaction that he would not return again to Govern otherwise or rather worse than he did before had he an opportunity so to do that is as the Letter I cited but now phrases iâ— to return and have his ends of us so that this being indeed the case I think I can very well justifie the last clause in this Vote that the Throne was thereby vacant M. Sir you have spoke a considerable time and I doubt more than I can distinctly remember to answer as I should therefore before you proceed to this last Clause of the Vacancy of the Throne the dispute about which I foresee may hold longer than upon any of the former pray give me leave to reply to what you have already said in Justification of all the other parts of this Vote in the first place I will not deny but that if the King had once got the power of making what Mayors Aldermen and other Officers in Corporations at his pleasure it would have gone a great way towards the making the Majority of the Parliament-men nay I likewise grant that by his dispensing Power he might have made what Papists or other person he pleased Sheriffs in any County who would have made such return of Knights of Shires as he should have thought fit yet I suppose this would not have been to the subversion of the Constitution of the Kingdom which I think I have proved to consist originally in the K. alone before any great Councils or Parliaments were instituted And as for those violations of the Fundamental Laws and Liberties of this Kingdom the Declaration instances in I think several of them may very well be justified by antient Presidents and ad judged cases in Law and therefore were so far from being violations that they are no more than the Kings exercising of his due Prerogative and though at our ninth meeting I had not time so well to consider these matters as also because I was not then prepared to defend the Kings Proceedings I shall therefore make bold to examine the most considerable of those Articles which the Late Declaration supposes did so highly tend to subvert the Protestant Religion and the Laws and Liberties of this Kingdom I shall begin with the first viz. His assuming and exercising a power of Dispensing with and Suspending of Laws and the Execution of Laws without consent of Parliament which Power let me tell you by the way was not asserted to Dispence with all Laws or Statutes whatsoever but only such as the Subject has no particular cause of action in and where the damage that may arise by it doth not concerns the publick safety of which the K. is sole Judge and not any particular mans interest I suppose you cannot but have read that learned and short account of the Authorities in Law upon which Judgment was given in Sir Edw. Hales his Case written by Sir Edward Herbert Lord Chief Justice of the Common Pleas in vindication of himself wherein I think he proves beyond any possibility of a just answer that the dispensation granted to Sir Edward Hales to receive a commission and act as a Collonel of Foot was good notwithstanding his not having received the Sacrament and taken the Oaths and Test appointed by the Act of the Statute of the 25 of Charles II. where he first proves from my L. Cock's Authority that it belongs to the Kings Prerogative to Dispence with all Positive or Penal Laws the penalty thereof is only popular and given to the King and to shew you that my Lord Cook who was never counted any great friend to the Kings Prerogative was not single in this opinion he gives you also the authority of the year Book of Henry the VII where it was own'd by all the Judges That the King can Dispence with all things which are only Mala Prohibita and not Mala â—n se though expresly forbid by Act of Parliament for though says the Year Book before the Statute Coining of Money was Lawful but now it is not so yet the King can Dispence with it so that say I if he can dispence with that which is now made Treason by EÃ the III. he may certainly dispence with all other Penal Statutes of a less nature But because I grant there is some difference between Common Penal Laws which barely prohibit the doing of some things under a penalty and this Act in which there is also an express Clause of Non-obstante that all Licences or Dispensations contrary to this
Statutes of Provisors and Praemunire and I could shew you from divers Records of Parliament in the Reign of Richard II. Henry IV. and Henry V. that they never intruâ—ed the Crown with an absolute power of Dispensing with those Statutes but only for a time as till the next Parliament or longer as they thought fit But since I have not now so much time to give you so many Presidents at length I shall only tell you that as to the main instance you relye upon viz. the Kings Dispensing with the Statute of Sheriffs that at first it was not taken for Law appears by several Acts of Parliament as in 28. of Henry the VI. whereby those Sheriffs that had held their Offices for more than a year are pardon'd likewise in the Act of Edw. IV. there is a like Statute pardoning those Sheriffs Who by reason of the late troubles in the Realm had held for above a year yet nevertheless confirms all former acts concerning Sheriffs for the time to come and this held as far as the sixth of Henry VIII which is long after the Judgment you mention in the Exchequer Chamber of all the Justices in England to the contrary for there was then an Act made which reciting all the former Statutes about Sheriffs as then in full force it Enacts that the Sheriffs and under Sheriffs of the City of Bristol may continue to occupy their Offices in like manner as the under Sheriffs and other Sheriffs Officers in London do without any Penalty or Forfeiture for the same the said Acts or any other Acts to the contrary notwithstanding From all which Statutes I think it sufficiently appears that neither the Sheriffs of those times nor the City of Bristol nor the whole Parliament when that Act was made did believe the King had Power to Dispense with the Act of the 25 of Henry the VI. concerning Sheriffs for if they had certainly it had been much easier and cheaper for them to have obtain'd the Kings Dispensation than to have got an Act of Parliament for it M. I believe you may have cited these Statutes right enough but yet I think they are not sufficient proof against so solemn an Opinion as that of all the Judges in the Exchequer Chamber 2 d of Henry the 7 th and whatever the Parliament might have declared in the Case of this or that Particular Statute I confess carries some Authority with it yet ought it not to be counterval'd by so solemn a Judgment as that of all the Judges and Lawyers of England together with the King 's constant Exercise of this Prerogative not only since but before that time and that without any question or dispute with the Parliament about it as in the Case I have already put of the Statute that forbids any Welchman being an Officer in Wales to which I may add divers other Cases of like nature such as the Statute against a Judges going the Circuit in his own Country as also those Statutes that prohibit the King from granting Pardons to Persons convict nay condemned for Murther with several other Penal Statutes I could name were though the King's hands are tied up by particular Clauses of Non-obstante yet has His Majesty and his Predecessors at all times exercised their Prerogative of dispensing in all those Cases notwithstanding those Acts of Parliament with Non-obstantes to the contrary And though I grant you have given me several Presidents of the Parliaments sometimes restraining the King in this Exercise of the Dispensing Power yet they are all or the greatest part of them before the beginning of Henry the VII th's Reign when I grant the Law first began to be setled in this matter and since the Judgment of all the Judges in the Exchequer Chamber is the only Rule of Law we can have in the Intervals of Parliament and that this case of Dispensations being by them adjudged and ever since setled and own'd for Law without the least dispute I can see no reason we have to question it now But as for the Statute of the 6 th of Henry the VIII which you urge as a President to the contrary since the Reign of Henry the VII I think it will not reach the Point in question for the Act you now cited seems to me no more than a private Act for the Sheriffs of Brestol alone who being it seems afraid to rely upon the King's Dispensations because they thought them too chargeable to be taken out as often as they should have need of them did think it a great deal less charge and trouble to pass an Act of Parliament to indemnify themselves which I grant put that matter beyond all dispute But since this Act of Henry the VIII I find no contest between the Parliament and the King about his Power of dispensing with Penal Laws till the Reign of King Charles the II. when I grant the House of Commons did address to His Majesty That Penal Statutes in matters Ecclesiastical cannot be suspended but by Act of Parliament as also the last Address of the House of Commons in 1685. against the King's dispensing with the Officers of the Army their holding Employments without taking the Oaths and Test according to the Act whereby they were appointed But these being only against the King's Power of dispensing with Laws Ecclesiastical as concerning Liberty of Conscience can no ways be extended to their excepting against the King's Power of dispensing with divers other Penal Laws I will not say all which have Non obstantes in them F. Since I see not only your Opinion but also that of most of the Judges and Lawyers of England concerning this matter of the King's Dispensations with Penal Laws has been chiefly if not only founded upon that Opinion of all the Judges in King Henry VII i me give me leave to examine the validity of that Judgment for if that can be proved not to have been according to Law or elâ—e never given at all I suppose you must grant that my Lord Coke and all others who have founded their Opinions upon this adjudged Cause of Hen. the VII were mistaken Now pray give me leave to argue a little with you in point of Reason If a Non obstante from the King be good when by Act of Parliament a Non-obstante is declar'd void what doth an Act of Parliament signifie in such a case must we say it is a void Clause But then to what purpose was it put in Did the Lords and Commons who drew this Act of the 23 d of Henry the VI. as also those Acts concerning Sheriffs understand this Clause of Non-obstante to be void when they put it in If it were so and contrary to the King's Prerogative why did the King pass this Act without any refusal or protestation against it certainly it was then thought otherwise and if so we have the Authority of the two Houses of Parliament against the Opinion of the Judges But if it were not a
void Clause then how came it to be so afterwards pray say what alteration has been made in the Laws of England by Act of Parliament as to this point since the time that these Acts have been made for if not how comes a clause that had force in 23 Henry VI. to have none in a Henry VII could the Twelve Judges in the Exchequer Chamber by giving their Opinions destroy the force of an Act of Parliament M. I do not say they can only I affirm with my Lord Coke and all the Judges That no Act can bind the King from any Prerogative which is inseparable from his Royal Person but he may dispense with it by a new Obstante as a Sovereign power to command any of his Subjects to serve him for the publick-weal Nor can this Royal Power be restrain'd by any Act of Parliament And upon this ground it is that my Lord Coke in the 12th Report from whence I have taken this Conclusion maintains that such Dispensations made by Sheriffs are good and upon the same ground the Dispensation lately granted by the King to Sir Edward Hales and all other Popish Officers and Ministers as well Civil as Military must be also good F. But admit I shew you that there was never any such Judgment in the Exchequer Chamber in the 2 of Henry the VII as my Lord Coke and late Lord Chief-Justice Herbert supposes will it not then follow that all their Arguments that are wholly founded upon this Statute will fall to the ground M. Yes indeed that will be something but how will you prove that can you believe so many learned Judges should be mistaken in this matter and those of your opinion only should make this discovery F. I do not desire you should believe me but your own eyes and therefore look upon the Year Book it self here you see that it is indeed so far true that all the Justices were of opinion that the Grant of the Sheriffdom of the County of Northumberland to the E. of that County for Life was good but do not tell us all the reasons whereon their judgment was grounded tho it seems to have been because the Sheriffdom of that County had been commonly granted for life before this Statute of Henry the VI. was made as appears by these Words in the Year Book Iudgment for it is such a thing as may be well granted for Term of Life or Inheritance as divers Counties have Sheriffs by Inheritance which began by the King 's Grant then was shewn a Resumption I suppose it meant an Act of Resumption of the Sheriffalty as appears by the following Words and then was shewn a Proviso for it Count. de N. and if so the King had a right to grant it only for Life again but none save Radcliff one of the Barons of the Exchequer cites the Statutes of the 28 th and 42 d. of Edw. the III. against Sheriffs holding for above a year but doth not cite this Statute of the 23 d of Hen. the VI. at all nor doth he or any other of the Judges nor the Court ground their Opinion upon any Non-obstantes express'd in the said Acts for if you please to consult them you will find there is no Clause of Non obstante in any of them before the 23 d of Henry the VI. which is not at all mention'd here therefore I wonder how Fitz Herbert in his Abridgment comes to vary so far from the Year Book from whence he must have took it as to make the Judgment to have been grounded upon the Non obstante in that Statute of Henry VI. for none but Radcliff speaks any thing of the Patents being good with a Non-obstante to those Statutes and the Court in all the rest of the Case agree the Patent to be good by reason of the said Proviso in an Act of Resumption and then fall into debates concerning the other point how this Patent was to be understood M. I must confess if this be so as it seems to be prima facie I wonder my Lord Coke and other Learned Lawyers have laid so great a stress upon and drawn so many Arguments from this Judgment of the Judges tho I must needs also tell you that tho only Radcliff insists upon the Non-obstante yet since the rest of the Judges did not contradict him it seems to me that they all concurr'd with him since according to the Proverb Silence often gives consent But this much I suppose you cannot deny but that ever since Henry VIII time at least Sheriffs have been frequently continued for above a year and the Judges have been also dispenced with to go the Circuit in their own County and Welchmen have been commonly made Judges and other Officers in Wales by vertue of the King's Dispensations notwithstanding the particular Clauses of Non-obstante in the Statutes of Richard the II. Henry the IV. and Hen. the VI. by which they are expresly prohibited F. I do not deny what you have now said as to matter of Fact only let me tell you I conceive that the Reason why the King has taken upon him to dispence with those Statutes you mention was because that the Causes for which they were first made have long since ceased For when those Statutes against Judges going the Circuit in their own Counties and Sheriffs holding for above a year were made both the Judges and Sheriffs were found the one by going their Circuits in their own Counties where they had great Interest and Acquaintance to have too much awed the Common-juries and the other by their great Estates and Commands in the Country to have made partial returns of Jurys and also by their long continuance in their Office to have learnt a trade of oppressing the people so when by the stop that was put to those Abuses by these Statutes you have mentioned there was no need of a strict observation of these Laws and also when after the Civil Wars between York and Lancaster and all things became setled under King Henry the VII who was of a Welcâ—â— Family there was then no more need of observing the Statute of Henry the IV. against Welchmens beating Offices especially after the Stat. of the 27th of Henry the VIII when Walâ—s became incorporated with England and had by that Statute a right conferr'd upon it of sending Members to Parliament tho the Parliament might not think fit or at least forgot to repeal them and yet finding that the Kingdom received no prejudice but rather benefit by such Dispensations and not caring to quarrel with their Kings for sometimes using a Prerogative by which they were rather benefited than grieved those Dispensations have ever since passed without any complaint in Parliament which would certainly have been before this time had they sound the same Grievances and Reasons to have still continued for the strict observance of those Laws as there were at first for the making of them tho if they will have my private Opinion
President and Fellows of Magdalen Colledge and that Prosecution that was lately order'd against all those Bishops and inferior Clergy who had refused to distribute or read the King's Declaration though I confess there was a stop put to this upon re-calling this Commission Immediately before the Princes Arrival So likewise for the other Article of levying Money contrary to Law that was also without any opinion of the Judges at all demaâ—ded about it for the illegal collection of Chimny Money by making Cottages and Ovens pay that were exempted by the Acts concerning it and also the illegal levying of Excise by making Small-Beer pay the Duties of Strong were all of them acted and done by particular directions from the Treasury or by the private abuse of the Farmers of the Excise without any opinion of the Judges and of these Orders his Majesty could not chuse but be the Author or approver at least since 't is very well known he constantly satâ— there when any great Business was to bâ— transacted and the Lord Treasurer or Commissioners of the Treasury would certainly never have presum'd to have issued out their Orders in a Case of so great moment if they had not been very well satisfied that it was his Majesty's express Will and Pleasure to have iâ— so And I my self have now by me a Copy of the then Lord Treasurers Directions to the Officers appointed for the levying of Chimney-money commanding them to levy it upon all Cottages and Ovens whatsoever which was done accordingly with the utmost rigour which though it was a very great oppression yet since it chiefly concern'd the poor and ordinary sort of people who had not purses to go to law with the King or else such Gentlemen and others who though they were forced to pay for their poor Tenants yet did they not think it worth their while to bring iâ— before the Barons of the Exchequer where as things then went they could not expect to find much Justice I shall not insist upon the King 's taking the additional Customs contrary to the Act of Parliament by which they were granted to the late King Charles only for life and though in his last Sickness there was a Contract for the new farming of them by vertue of which I grant the King might have justified the taking of them till the end of the Farm yet since that Contract never passed the Seals during the King's life-time it was certainly against Law for the King to take them before they were re-granted by Act of Parliament I say I shall not insist upon this since the Parliament were so easy as to pass it by without declaring it to have been illegal only it sufficiently shows that from the very beginning of the King's Reign he was resolv'd to govern arbitrarily and to levy Money upon the Subject whether the Law gave him any Authority to do it or not But as to what you say concerning the Judges being wholly in fault for all the unjust and illegal Proceedings exercis'd in their Courts and that the King was wholly faultless I should be of your mind had I not seen that all those Judges who would not agree to the dispensing power and other illegal Judgments I could name were turn'd out and others either Papists or of less consciences than Papists were put in their places which were not conferr'd for any longer time than durante bene placito and therefore no wonder if such men were absolute slaves to the King's will and pleasure M. I had much more to say in defence of the King 's raising and keeping up a standing Army and his disarming Protestants in and after the Duke of Monmouth's Rebellion which are laid to his charge as endeavours to destroy the Rights and Liberties of this Kingdom But since it grows late I shall only now take notice of something which I forgot to insist upon concerning your Notion of the King 's obdicating the Crown by a wilful breach of the Laws which is quite different from the sense in which this Word is taken in Roman Authors as also in our Civil-Laws For when Cicero uses the Expression Itaque tutela me abdicare togito Brison tells us his meaning was se nolle esse tutorem But Pompenius in his Book De orig Iuris gives us the true sense of this Phrase Abdicare se Magistratu est ante tempuâ— Magistratum deponere which plainly shows the Romans had no notion of a Tacit or imply'd abdication of a charge or Majestracy without a man's express consent and therefore if the Kings bare desertion of the Kingdom was not an Abdication of the Throne as you your self are forced to grant I cannot imagine how the King's violation of the Laws or endeavouring to subvert the Government both which you lay to his charge can properly be call'd an Abdication of it so that indeed the King hath not abdicated the Government but your Convention hath abdicated him And tho we often read in our Civil-law That a Father might abdicare filium yet I never read or can you show me any Example that a Son might abdicate a Father or Subjects their Prince F. You discourse upon a wrong ground for I never affirmed That Subjects had any authority to abdicate or depose their Prince nor hath the Convention assum'd any such power to themselves what they have done in this affair hath not been authoritative or as taking â—pon them to call the King to an account for his actions or to depose him for his misgovernment but only declarative to pronounce and declare as the Representatives of the whole Nation that by endeavouring to extirpate the Protestant Religion and to subvert the Fundamental Laws and Liberties of the Kingdom he had wilfully I do not say willingly Abdicated the Government that is renounced to Govern this Kingdom any longer as a lawful King which I take to be a tacit or imply'd Abdication of it as I have already proved and to shew you farther that even Tully himself allows in our sense of an imply'd Abdication in his third Philippicks when he says thus concerning Mark Anthony that for his offering a Crown to Caesar Eoâ—die-non modo Consulatu sed etiam libertate se abâ—itavit c. where you see Mark Anthony is said to have Abdioned the Consulshâ—p without any express Renunciation of it for Caesar might have continued him in it after he had been declar'd Emperor M. I grant your Authority to be good yet even in this sense this Abdication of the Consulship could only take its effect from Anthony's owâ— Will for offering a Crown to Caesar if he did not expresly yet he effectually renounced his Consulship for had Caesar accepted in he could no longer have been the Consul of a Popular State but must thenceforth have acted by authority from Caesar or not at all but then this would not have agreed with your Noâ—on of a Forfeiture which always supposes a crime and a depriving the party
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
without Children should be Heir to the Deceased And so far were they from thinking this Agreement stood in need of Ratification of a great Council that there was but twelve of the Principal Men on each side sworn to see it duly observed But if we come to consider the next putting by of Duke Robert from his Right to the Crown you will find it to have been done with a far less colour of Right than the former for he being then absent in the Holy Land at the time of Rufus's death Henry his Younger Brother laid hold of the opportunity and assembling divers of the great Men of the Kingdom he promised them to make a full Restitution of all their Antient Laws and Liberties and confirm them by his Charter and abrogate such severe ones as his Father had made thereupon they did unanimously consent to Crown him King Now I cannot see how this managed with so much Artifice corruption can properly be call'd an Election since that ought to be a deliberate sedate Action and at which all the persons concern'd ought to be present but this could not possibly be for King William was kill'd on the second of August and buried the next day and the day after that being Sunday this pretended Election was made and the Saxon Chronicle tells us That those great Men who were near at hand chose his Brother Henry King So that this looks more like the Combination of a Faction of Bishops Lords and great Men than the free Election of a King since it was impossible for all that were or ought to be present from all parts of the Kingdom to have notice to assemble and dispatch that great Business in two days time But to let you see that Duke Robert did not fit down contented with this Usurpation upon his Right for as soon as ever he came from the Holy Land he straight made War upon his Brother and many great Men of the Normans took his part and this War was eagerly carried on for some time and Duke Robert Landing in England with an Army K. Henry marcht against him with all his Forces but as the Saxon Chronicle also tells us some principal Men going between them brought them to an Agreement upon conditions that K. Henry should pay Duke Robert 3000 Marks Pension yearly and that he of the Brothers who surviv'd the other should be Heir of all England and Normandy unless the party deceas'd should have Children of his own so that though I grant King Henry recites in his Charter in Matthew Paris that he was Crowned King by the Common Council of the Barons of England yet his saying so could not give him a Right and he must say this or nothing for no other pretence or Title he could have and there never was any other Usurper in his circumstances but must say that or some such thing to make out a Title and therefore to answer your Question why Duke Robert took not upon himself the Title of King neither upon the death of his Father nor after that of his Elder Brother I think this may serve for an Answer that he parting with his Right to both his Brothers successively he then lookt upon it as needless to take the Title of King upon him as not looking upon himself then to be so F. I confess you have from your Dr. together with some assistance of your own made a very cunning gloss upon these two great Instances of Vacancy and Election to evade if it were possible that Right which the Common Council of the Kingdom then challeng'd to themselves and therefore I shall make bold strictly to examine what you have now said In the first place as to the Title of King William Rufus though I grant it was founded upon his Fathers Testament yet you see that this was not good alone without the consent and approbation of the Common Council of the Kingdom I think I have sufficiently prov'd at our last Meeting but one when we discourst of the Force of the like Testament made by King Edward the Confessor to King William the First which according to the English Saxon Law that â—as still observed was never valid until confirm'd by the consent of the Wittena Gemot or Great Council and he that had both these whether next Heir by Blood or not was always esteem'd as lawful King as I have also proved from the Testament of King Alfred and though you will take no notice of it yet was this Testament of King William I. then produced and read in the Common-Council of the Bishops Earls and Barons of the Kingdom as appears by all the Antient Historians who treat of this matter I shall only give you a taste of them Matthew Paris expresly relates the circumstances of it in these words Optimates frequenteâ— â—d Westmonasterium in concilium convenere ubi loci post long am consultationem Gulielmum Rusum Regem fecere and Abbot Brompton tells us that it was done in a full Council Convocatis Terrae magnatibus so that here was nothing wanting to a full Election or Confirmation at least of King William's Title and till this was done it is plain the Throne was Vacant But as for the claim that Duke Robert made to the Crown though I do not deny but he might think himself to have a just Title to it by a received custom among divers Nations by which the eldest Son is looked upon to have a right before the younger yet that this is no Law of Nature or Reason and consequently not Divine I think I have sufficiently prov'd at our second meeting But that this right of Succession of the eldest Son to be no fundamental Law of this Kingdom I think I can sufficiently prove from our English Saxon Histories as well as Laws and as for what you say concerning those Norman Lords and Bishops who joyn'd with Duke Robert after his Brother was Crown'd King it is call'd no better than Treason by all the Writers of those times for Florence of Worcester and Sim of Durham both tell us that the King thereupon call'd together the English and open'd unto them the Treason of the Normans and the Saxon Chronicleâ— who seem'd to have lived about that time compares the Treason of Bishop Odo to that of Iudas Iscariot against our Lord and though I grant King William might make such an agreement with his Brother Duke Robert as you mention yet as for the 3000 Marks Pension which you say he was to pay him I very much doubt it since no Historian but Matthew of Westminster who lived between two and three hundred years after makes mention of it and therefore I think it is to be referr'd to the following agreement betwixt this Duke and his Brother King Henry which the Saxon Chronicle expresly mentions Having now examin'd and clear'd the Title of King William Rufus I come next to justifie that of King Henry I. to the Crown
notwithstanding all you have alledg'd against it which yet is no more than what you said before that Duke Robert had an Hereditary Right and therefore he could not be put by which is to beg the Question for you cannot prove to me that he had this Right either by the Law of Nature the Law of England or the Law of Normandy not by the two former as I have already prov'd for your Conqueror himself being a Bastard had no better Title to the Dutchy of Normandy than his Father's last Will before he went to the Holy Land which was not good without the consents of the Nobility of that Dutchy as appears by the Historians of that time so that the greatest Objection you have to make against King Henry's being elected in a true Common-Council of all England is this that the time was so short between the Death of William Rufus and his Election that it was impossible for all the Parties that had Votes to be there present which is a very bold assertion for how can you or your Doctor tell that at the time when King William was kill'd he might not then have held a great Council at Winchester where he then Lay who might immediately upon his Death chuse his Brother Henry for their King for it is certain the Election was there the Day before his Coronation at London and therefore it is very rashly done to affirm that this Election was not in a Common-Council of the Kingdom when all the Historians and particularly W. Malmesbury tells us the manner of it and the Disputes there were about it viz. that Henry was elected King as soon as King William's Funerals were over Aliquantis tamen ante controversiis inter proceres agitatis c. and H. de Knyghton reciting the cause why Duke Robert was set aside viz. because he had been always contrary and unnatural to the Barons of England therefore quod plenario consensu consilio totius Communitatis Regni ipsum refutaverunt pro Rege omnino recusavâ—â—â—nt Henricum fratrem in Regem erexerunt which plainly shews that it was the opinion of all the Antient Writers out of whom Knyghton took this passage that this election was made by the free consent and in a full Council of all the whole Community of the Kingdom nor does the after claim of Duke Robert to the Crown at all alter the case for the reasons already given as also because the agreement that was made between them that he that surviv'd should succeed the other was never confirm'd or agreed to by the great Council of the Kingdom and therefore those Norman Lords that join'd with Duke Robert here in England are justly taxed by William of Malmesbury and the Saxon Chronicle with Infidelity and Rebellion and though I grant that Mat. Paris or rather Roger of Wendover whom he transcribes seems to condemn King Henry's taking the Crown as unjust and contrary to Right and that he therefore feared the Justice of God eò quod fratri suo primogenito cui jus Regni manifestè competebat temere usurpando injustè nimis abstulcrat yet this author writing about the middle of the Reign of King Henry III. who had succeeded his Father by a pretended right of Inheritance as well as Election it is no wonder if He who writ near a hundred years after this transaction should give his judgment in this matter according to the common opinion and prejudice of that age and must certainly speak by guess for how could he otherwise affirm unless he had been acquainted with that Kings thoughts as he doth in the same place that he felt conscientiam suam in obtentu Regni cauteriatam since no other Writer either of that time or after it does thus blame King Henry for taking the Crown But as for the account you give why Duke Robert never took upon him the Title of King if the Throne had not then been looked upon as vacant because of the agreement which he made with his Brothers by which he parted with his Right for a Pension during his Life is not at all satisfactory for in the first place neither of these agreements were made till above a year after his pretended Title did acrue to him by the Death of his Father and Brother and therefore he ought if he had look'd upon himself as true King to have immediately taken the Title upon him which he never did so likewise the agreement it self makes wholly against your notion of any hereditary succession to the Crown to be then setled since the main clause in both these agreements is that the survivor should be heir to him that died first unless he left Children of his own to succeed him which plainly shews that in the opinion of both those Princes and of the great men that swore on either side to see it observed they knew of no such setled Right of Succession in their Heirs which they themselves could not part with or else this Clause had been wholly in vain since both King William and King Henry's Children were to have succeeded to the Crown of England by vertue of both these agreements before the Sons of Duke Robert had his Son William who was only Earl of Flanders survived him But now if you please you may proceed with your other exceptions against the rest of the Instances I have here given you of the Vacancy of the Throne till such time as the Common Council of the Kingdom had agreed whom to place therein M. As to what you have said in defence of the Vacancy of the Throne after the death of King Henry I. carries less shew of Reason than what you urged in the former Cases since all Writers agree that this was a manifest Usurpation in Stephen who could pretend no sort of Title to the Crown himself as well as Perjury in the Bishops Lords and great Men of England who having sworn Fealty to King Henry's Daughter Maud in his life-time made Stephen Earl of Blois their King therefore William of Malmsbury and all the Writers of those Times do accuse Stephen of down-right Perjury and Usurpation and likewise relate that he was advanced to the Crown through the power of the Londoners and Citizens of Winchester but yet all these Endeavours had been in vain unless he had been assisted by his Brother Henry Bishop of that City and then the Popes Legate in England and favoured by the Arch-Bishop of Canterbury who Crowned him and yet for all this there was but a very small Faction of the Bishops and Lords who were for his Croonation for W. Malmsbury tells us Coronatus est ergo in Regem Angliae Stephanus tribus Episcopis praesentibus nullis Abbatibus paucissimis Optimatibus And many of the Nobility and great Men of England were so sensible of this that being headed by Robert Earl of Gloucester the Empresses base Brother they raised a War against Stephen which after her coming over hither was
carried on with great vigour and though I grant that after divers changes of fortune the Empress was at last forced to quit the Kingdom yet her Son Duke Henry did not fail to continue his claim to the Crown in right of his Mother and coming over into England renewed the War against King Stephen which was at last compos'd by an agreement between them which as Matthew Paris and Mat. Westminster relate it was thus That King Stephen acknowledged in an Assembly of Bishops and other great men of the Kingdom that Duke Henry had an Hereditary right to the Crown and the Duke thereupon as kindly granted that King Stephen should peaceably possess it during his Life so that it is certain till this agreement even by his own acknowledgment he had no right to it and though I grant that the Empress Maud for some reasons we are not able to give a true account of never took upon her the Title of Queen yet it is very certain that she acted as such during all the time she was in England receiving Homage and Fealty from those Lords and others who came over to her side and also granting Charters and conferring Honours by the Title of Anglorum Domina which shews she look'd upon her self to be the Supream Governess of the Kingdom though not under the Title of Queen so that I think you can find nothing in this transaction that can support your Notion of Vacancy F. Pray give me leave to answer what you have now said before you proceed farther first I cannot excuse neither King Stephen for taking the Crown nor the Bishops and Great men that set it on his Head from perjury and injustice since the Emperess Maud had been before in a Common-Council of the whole Kingdom declared the Lawful Successor and that Fealty had been sworn to her as such All that I insist upon in this affair is this that Quod furi non debâ—t factum valet And though this ought not to have been done yet when once done did stand good and therefore if whilst the Throne was vacant King Stephen by the Election and Consent of the Bishops and Great Men of England was placed therein he was there looked upon as true and legal King as long as he lived And this was the reason why the Emperess never took upon her the Title of Queen of England no not when she had taken King Stephen prisoner and one would have thought might have justly done it as a Conqueress But yet she forbore it because that Title was not then to be taken without the consent of the Great Council of the Kingdom which I cannot find she ever held her party being not great enough to make one And though I cannot deny but that she might in some particulars exercise some prerogatives of Royal Power yet this was only upon a pretence of her being Elected and Stiled by this Title of Lady of the English in a Synod of the Clergy at Winchester by the procurement of Henry the then Bishop of that See and the Popes Legat who was now turned against his brother King Stephen For she was never generally received nor own'd as Queen nor did she ever exercise those great prerogatives of Sovereign Power viz. Calling of Great Councils making of Laws raising of Taxes or Coining Mony But whereas you represent King Stephen to have been Elected but by a very small party of the Bishops and Noblemen of England yet it is very much to be doubted whether William of Malmesbury who Dedicated his History to Robert Earl of Gloucester King Stephens greatest Enemy being no friend to his Title is to be altogether credited in this matter For Henry of Huntington who lived not long after tells us expresly that Omnes qui Sacramentum juraverant tam Praesules quam Consules Principes assensum Stephano praebutrunt hominium fecerunt And it is also as certain that the Earls of Gloucester and Chester the two greatest men of England did then likewise swear Allegiance to him and own his Title though they afterwards revolted from him again Yet could they do nothing considerable against him till his own Brother the Bishop of Winchester revolted also from him upon pretence that the King had violated the Rights of the Church And though it is true that after the Empresses departure out of England Duke Henry her Son came over and prosecuted the War against King Stephen yet could it not be in his own but his Mothers Right who was then alive Nor could the agreement you mention be made between the King and the Duke as having then a right to the Crown in his own Person since we read of no concession the Empress his Mother had made to him of it And therefore whatever Title Henry could claim thereunto Upon the death of King Stephen it was wholly due to this Kings adopting him for his Son and declaring him his Successor upon condition that he himself should enjoy the Crown during his life which agreement was solemnly confirmed and ratified and that by Oath in a full Assembly of all the Bishops Lords and great men of the Kingdom For Ordericus Vitalis in his Annals p. 989. Is very express in the manner of this great Transaction in these words Sic tamen in praesentiarum ipse Rex Caeteri Potentes Sacramento â—irmarent quod Dux post mortem Regis si tempore eum superviveret pacifice aâ—â—que contâ—adâ—ctione Regnum haberet therefore as long as the Empress Maud lived who died after her Son King Henry's coming to the Crown ' â—is plain he could have no Hereditary Right to it notwithstanding what Matthew Paris and Matthew Westminster who lived long after these Transactions have said to the contrary and therein are to be looked upon as Authors that speak their own sense rather than that of the Writers of those times M. I confess what you have urged in this matter concerning Duke Henry's being admitted as Heir of the Kingdom during the Life of his Mother the Empress Maud seems to the purpose and there could be nothing said against it but that this was done by the Concession of the Empress her self who surrender'd all her pretentions to her Son tho' we have no particular account of it or else which is more likely in my opinion that the Government of Women being then unknown in England and Normandy and consequently odious to the English and Norman Nobility and for which reason chiefly they had before set this Empress aside they thought they did in effect perform their Oath to her when they acknowledged her Title in her Son Duke Henry who is said by the Historians of those times to have succeeded Stephen Iure Haereditario which could not at all agree with your notion of his receiving his Title from the Consent or Election of the great Council But I shall pass over this and come to your next instance of the Vacancy of the Throne which you pretend
nuncios ad Iohannem Ducem Normandiae c. Where you see he calls him no more than Duke of Normandy But to come to the Election of his Son Prince Henry if this be all you have to prove a Divine right of Succession in Henry the IIId I doub it will do you but little service for according to your own principles it must have been lodged some where else than in this Prince For when King Iohn his Father died Eleanor the Sister of Duke Arthur was then alive and died not till the 25 th year of King Henrys Reign a close Prisoner in Bristol Castle as Matthew Paris relates So that it is apparent he could have no such Divine Hereditary Right as you suppose and therefore perhaps his Father to strengthen his Title and to recommend him the more to the Peoples savour appointed him his Successor by his last Testament And Matthew Paris and Matthew Westminster tell us that when King Iohn died Henricum Primegenitum suum Regni constituit haeredem So that it seems there was then no such Hereditary Right for if it had what need had there been of this Testament But for all this Divine Right I do not find that this poor Princess Eleanor had any of the Bishops or great Lords to take her part but all the dispute then was at this great Convention at Gloucester whether they should abjure Prince Lewis whom most of them had before chosen for their Lord and adhere to Prince Henry there present before them as Matthew Paris tells us Erat autem tâ tempestate inter Optimates Angliae fluctuatio maxima cui se Regi committeâ—ent Iuvenine Henrico An Domino Ludovico So that it seems by the relation our Historians give us of this matter it was not from any great sense that the Clergy and Nobility had of the justness of Prince Henry's Title that made them agree to chuse him King but the hatred they then bore to Prince Lewis when they found he had broken his contract with them and put all the strong places of the Kingdom in the hands of French men and treated the English Nobility with scorn and contempt And therefore no wonder if they preferr'd an innocent young Prince of their own Nation who had never been guilty of his Fathers faults before a Stranger whose fraudulent dealing with them they had found not to answer their expectations and therefore Mat. Westminster tells us That Omnes nobiles Terrae in brevi ipsi Iuveni Regi Hemico qui nihil culpae versus tos merueras fideliter adhaeserunt But to prove farther that this King came in by Election and not by Succession appears by what our Historians relate concerning the manner of it Henry de Knyghton in his Chronicle tells us that on the Feast of St. Simon and Iude Henry Son of King Iohn in Regem erigitur viribus industria Gualonis Papâ—e Legati which plainly shews that he was not King before and I desire no better an authority than your own Author Matthew Westminster who says that he was in Regem inunctus anointed to be King which shews that he thought him not so before his Coronation and though I grant Mat. Paris makes the Earl Marshal to begin his Speech with those words Ecce Rex vester as you relate them yet this was no more than an allusion to that place in St. Iohn ch 19. Behold your King it being usual in those days to begin their Speeches with a Text of Scripture So that the Earl did not intend to be understood literally for then he should have in this Speech contradicted what he had said bâ—fore for though to prepossess their minds he says of the young Prince there present Behold your King Yet it is plain that how much soever he thought the Kingdom his right yet that it could not be conferred upon him without their choice as appears by these words which you your self have made use of viz. You ought to chuse him to whom the Kingdom is due And it is evident by the assent which the whole Assembly gave to the reasons declared by him in this Speech that it was their choice alone that made him King their Votes being given in these words Fiat Rex which had been altogether needless had they looked upon him as King already And therefore the Speech of Hubert de Burgh which you mention may very well be reconciled to this Hypothesis of supposing a necessity of an Election and Coronation to confer a full and legal right in those times For when he said That the King if dead had yet left behind him Children who ought to succeed him This if strictly taken is altogether false for Eleanor the true Heiress of the Crown according to your rule of Succession was then alive But if taken in a limitted sense is true that is the Children ought to succeed if the great Counsel of the Nation thought fit without whose consent though they might have Ius ad rem yet had they not Ius in re This Election and Coronation being then looked upon as Livery and Seisen at this day is to an Estate in Fee without which though the writings are sealed and delivered the Land will not pass To conclude I pray answer me that question I have so long put though without any reply viz. why before this Election and Coronation was perform'd none of those Princes that came to the Crown by your supposed Right of Succession are call'd by any higher Title than Dukes of Normandy or Earls of Poictou So that from what has been here said I think it plainly appears that no less than seven of the eight Princes from your William the Conqueror reckoning him for one to King Henry the III. have owed their Title to the Crown not to any right of Succession but either to the Election of the People alone or else to the will or designation of the last King confirm'd by the general consent of the People given thereunto and without which it would not have been good according to the ancient custom of the English Saxons before your Conquest where besides the Testament of the King deceased there was also required the consent or Election of the great Council So that you see here was no alteration made in the form of our chusing our Kings after your Conquest from what it was before for no less than seven or eighâ— descents and when you can answer this I shall then come over to your opinion M. In answer to your Question I shall not deny but that all our Historians give all the Kings you mention no higher Titles than Dukes of Normandy or Earls of Poictou before their Coronations which though I suppose they might do from a foolish superstition of that Age which made them fancy that none were properly to be called Kings until they had been Anointed and solemnly Crown'd by a Bishop yet that they looked upon them as Kings indeed appears in that they
ordered and disposed of all publick Affairs conferr'd Offices and Bishopricks as if they were lawful Kings before your pretended Election or the ceremony of their Coronation and also had Ambassadors sent to them from Foreign Princes as appears from your own Quotation out of Hoveden Of those that were sent by the King of Scots to King Iohn before he was crowned though it is true he there stiles him no more than Duke of Normandy And this also may further appear by that passage I have cited out of the same Author that King Richard had Fealty Sworn to him as King of England by all the Freemen of England before he was Crown'd and you your self acknowledge the same Oath to be taken by the same persons to King Iohn before he came over to take the Crown And Lastly To make it yet plainer that there was no Vacancy or Inter-regnum in all these Successions you have mention'd consult what Chronologer you please or look into the most ancient Tables of the Succession of our Kings of England or into our old Printed Statutes or Law Books and you will still find the Reign of the Suceeding Prince to commence from the Death of his next Predecessor without any Vacancy or Inter-regnum between And these I think to be a great deal surer marks of their succeeding to their Royal Dignity by a pretence at least of a right of Inheritance from their Father or Brother rather thau this fancy of yours that you lay so much stress upon That because of their not being stiled Kings by our Historians till their pretended Election and Coronation was over they were not so indeed And I hope this may serve to satisfie this mighty Objection F. I must beg your pardon if I still declare my self not satisfied with your answers for though I grant that if this Argument of the Historians not stiling them Kings had stood single without any thing else to support it that your answers might have signified something But if you please better to consider it you will find that of these Princes taking in William your Conqueror claimed as your self must acknowledge not by any Hereditary right but by the Testament of the deceased Predecessor and if so where was your setled right of Succession by right of Blood Secondly It is likewise as plain that these four were never admitted or acted in England as lawful Kings till those Testaments were confirmed by the Election of the Great Council before whom they declar'd their Rights And till this was done how the Throne could be otherwise than Vacant I cannot for my Life conceive But as for two of them whom you call downright Usurpers viz. Henry the I and King Stephen it is certain they could have no colour of a Title till their Elections and if not till then and that neither your next Heir of the Crown nor yet they themselves took upon them the Title of Kings Was not this a Vacancy of the Throne in the mean time Suppose that time to have been but for the space of three or four days as it was after the death of King William Rufus In the next place pray consider that upon the death of every one of these Princes we do not find the Great Council of the Kingdom which still assembled to Elect the Successor was ever call'd in their names but met by their own Inherent Authority for how could they be summon'd by the King before he took that Title upon him which as your self are forced to acknowledge he never did till after his Coronation Lastly Pray remember farther that whoever was thus Elected and Confirm'd by the Great Council whether he was next Heir by Blood or not was always looked upon as Lawful King and has always passed for such in all our Chronicles and Laws and not those that claimed as the right Heirs by Blood and if this be not sufficient to prove that these Princes had no true and compleat right to the Crown till this Election was past I desire you would shew me my mistake These things premis'd I think it will be very easie to reply to every one of those answers you pretend to have made to my Query Therefore as to your First That they were really Kings before their Election or Coronation because they order'd and dispos'd of all publick affairs I do not deny but that some of them who Succeeded either as Heirs by Testament or by right of Blood might do many publick Acts by reason that they looked upon themselves as Heirs Apparent to the Kingdom and whom the Great Council I grant could not without high Injustice set aside and upon this account they might also receive Ambassadors from Foreign Princes in Affairs relating to Peace or War that they might know how to deal with them or what to expect from them after they were setled in the Throne yet that they sent not to them by the Title of Kings appears by that passage I cited out of Hoveden but I defie you to shew me any one instance that any of these Princes above mention'd ever took upon them to exercise any of those Prerogatives of Sovereign Power such as making War or Peace Enacting Laws Coining of Money before their Election and Coronation which though in some of them was done both at once yet in others it appears plainly to have been at different times and not upon the same day as it happen'd in the case of Henry I. whose Election was at Winchester upon Saturday and his Coronation was not till the next day as also that of Henry the 3 d. whose Election was upon St. Simon and Iude's Day but his Coronation not till the day after But as for your next reply which I grant to have been the strongest you have made that King Richard I. and King Iohn had both of them Homage and Fealty sworn to them as Kings by all the Freemen of England before they were Crowned this were a material argument if it were made out as I think it cannot for in the first place the bare swearing of Homage and Fealty to a Prince doth not make him immediately King though I grant it might give him in that Age a right to be looked upon as Heir Apparent to the Crown thus Henry the I. made all the Lords and Great Men of England to swear Homage and Fealty to Prince William his Son and so after his being drown'd to the Empress Maud his Daughter which was the true reason why she looked upon her self afterwards as Heiress to the Crown so likewise King Stephen a little before his Death at the great Council I have mention'd caus'd all the great men of the Kingdom to Swear Homage and Fealty to Henry Duke of Anjou as his immediate Successour so that you see this swearing of Fealty was in those days often perform'd â—efore the persons that received it were Kings indeed and so I believe it was done in both those instances you now give me for though I
grant that Hoveden as you cite him relates that Homage to be made and Fealty sworn to Richard the I. by the Title of King yet is it very much to be doubted whether this was not only by a Prolepsis or perhaps a slip of the Pen in this Author since he writ this History long aâ—ter King Richard's Death and therefore without we had the very words of this Oath there is no certain conclusion to be drawn from thence and I think we may as well credit the Chronicle of Abbot Brompton who likewise lived about the same time and recites all this affair almost in the same words with those in Hoveden but there the Oath does not run exactly in the same words as in this Author but thus quod unusquesque liberorum hominum totius regni Iuraret quod sidem portaret Domino Richardo Domino Angliae filio Domini Regis Henrici c. ficut legio Domino suo contra omnes mortales where you see the Oath is not made to King Richard as King but only as Lord of England and that there is a great deal of difference between those two Titles not only in name but in Substance I have already prov'd when I spoke of the Empress Maud's stiling her self Domina and not Regina Anglorum tho' she had Homage rendred and Fealty sworn to her not only in her Fathers Life time but also after her coming over again into England in the Reign of King Stephen by all that own'd her Title and that Hoveden himself meant no more than this appears by that passage I have already taken notice of viz. that Hubert Arch-bishop of Canterbury and William the Earl Marshal being sent over to keep the Peace made all the men of the Kingdom as well of Cities as Burroughs with the Earls Barons and Free-holders Iurare fidelitatem pacem Iohanni Normanorum duci filio Henrici regis filii Matildis Imperatricis contra omnes homines where you see the Oath is taken to him only as Duke of Normandy and not as King at all and therefore you are mistaken to say that Hoveden mentions the like Oath to be taken to Duke Iohn as it was before to King Richard But I come now to answer your last argument whereby you would prove that there was no Vacancy or inter-regnum in this Age which is because that our Chronicles and Tables of Successions do still begin the Reigns of each King from the day of the Decease of his Predecessors without any Vacancy or Inter-regnum between them to which I reply That none of our antient Chronicles or Historians reckon thus as I know of but rather acknowledge a Vacancy of the Throne to have been between each Succession and as for the Tables of the Succession of our Kings when you can shew me one more antient than the time from which I grant the Crown of England began to be looked upon as a Successive and not an Elective Kingdom I shall be of your opinion but admit it were so since the Succession to the Crown has been for the most part mixt partly Elective and partly Hereditary our Kings might to maintain the honour of their Title still reckon their coming to the Crown immediately from the death of the last Predecessor tho' there has been oftentimes some days and weeks between the one and the other as I have now proved and shall prove farther by and by which being but small fractions of time are not taken notice of in the whole account which may be notwithstanding very agreeable to Law for both my Lords Dyer and Anderson in their Reports do agree That the King who is Heir or Successor may Write and begin his Reign the same day that his Progenitor or Predecessor dies M. It will be to no purpose to dispute this point with you any longer since I must confess that there were so many Usurpations in the Succession of most of those first Kings after the Conquest that it is a difficult matter to prove any setled rule of Succession to have been then observed in England and therefore I only desire you to take notice that though it is true King Henry the 3 d was an Usurper for the first Twenty five years of his Reign yet for all the rest of it which was near Thirty more he was a true and lawful Prince for Elianor his Cousin being dead in Prison without issue and there being no more of that Line left her Right wholly devolved upon King Henry and he and his Children are to be from henceforth reckon'd to have a true Hereditary Right to the Crown without any Competitors And that this was so will plainly appear from the Testament of King Henry the 3 d. a Copy of which I have by me where tho' he Bequeaths a great many of his Jewels to the Queen and a great deal of Money to charitable uses yet for this Kingdom and other Territories in France and Ireland he makes no Bequest of them at all either to Prince Edward his Eldest or to Edmund his youngest Son tho' his Father King Iohn had bequeathed the Kingdom to him by his Will as you have already shewed and what could be the reason of this But that there being now no Title left to contest with his Son there was no need of it and therefore tho' Prince Edward was absent in the Holy Land when his Father Died yet a great Council being call'd in his Name at London he was there only recognized and acknowledged to be their natural Leige Lord and Lawful Successor to his Fathers Throne pray read the words as they are in Walsingham's Life of this King Edwardum absentem Dominum suum Leigium recognoverunt paternique successorem honoris ordinaverunt we meet not here with any thing like Election which no doubt we should not fail to do if there had been any such thing practised So likewise upon this King's death his Son King Edward the 2 d. by the like Right succeeded as Heir to his Father and tho' this Prince by suffering himself to be too much guided by his Minions fell at length into such Arbitrary and Irregular courses as procured him the hatred and ill will of his Subjects to that Degree that by the Disloyal and Ambitious practices of his Lascivious Queen he being made Prisoner a Parliament was call'd in his name who took upon them to Depose him for his misgovernment contrary to all Law and Right and though his Son Prince Edward had hitherto join'd with his Mother against his Father yet is he herein so far to be commended that tho' the Crown was offered him by Election of the Great Council yet the same Author tells us he swore that without his Father's consent he would never accept it whereupon divers Messengers or Delegates being dispatched from the Parliament to the King then Prisoner at Kenel-worth Castle who told him what had been done and concluded of at London required him to resign his Crown and
succeeding immediately upon his said Fathers resignation there could be no Vacancy of the Throne to which I answer that I do not deny that after this King was once setled in the Throne but that he might think it most to his honour and the independency of his Title to relye wholly upon his Right of Succession as Eldest Son and Heir without taking any notice of the Parliaments Election of him tho' this be also convertly expressed in these words which are in this Writ and Proclamation viz. ` That consenting to his said Fathers pleasure he had taken the Government de consilio advisamento Praelator Com. Baron Magnat Communitat praedict which though you translate by Council and Advice of the Prelats Earls Barons and Commonalty yet I do suppose that by consilio is here meane not Council but Consent as I have already proved the word consilium often signifies in our antient Statutes for otherwise if this word must here signifie Council it would be a plain Tautology for Advice and Council are the same thing But to shew you also that there must needs have been a vacancy of the Throne either upon the Deposition or Resignation of Edward the 2 d. take it which way you will appears from matter of Fact for it is plain that when Prince Edward refus'd the Crown upon the Parliaments Electing him unless his Father would willingly resign it he did at their request resign his Title to it by certain Commissioners sent down to him to Kenelworth Castle to take it now that place being at least two days Journey from London it is certain there must be as many days vacancy of the Throne if not more before the said Commissioners could get to London and that Prince Edward had agreed to take the Crown upon his Fathers Resignation for till then the Throne was Vacant since till the Prince had declared his assent to take it he might have chosen whether he would have accepted of it or not as not being satisfied whether his Fathers resignation were voluntary and not by constraint Now if there were a Vacancy of the Throne in this case though but for two or three days it serves to prove the matter in question as well as if it had been for two years So likewise let the Reign of King Henry the IVth begin either from the Resignation or Deposition of King Richard the II d. take it which way you please there must have been a Vacancy of the Throne as appears by the Parliament Roll still extant For it is there plain that after the instruments of King Richards Resignation and Deposition were solemnly read that the Throne continued Void for some space Till such time as Henry Duke of Lancaster stood up and made his Claim to it in that form of words which stands to this day to be seen upon the Parliament Roll and that the Arch Bishop of Canterbury taking the Duke by the hand had led him to the Throne and placed him therein M. I cannot deny but as you have set forth the matter of fact there must have been a Vacancy of the Throne in these two cases but since the depositions of both these Kings were contrary to Law and their resignations extorted from them by constraint whilst they were in prison they are neither of them looked upon as valid or to be urged as presidents in future times But however the Throne might seem then to be Vacant in point of fact yet in Law it was otherwise for Edmund Earl of March ought to have immediately Succeeded upon the Death or Resignation of King Richard as being Lineally descended from Philippa only Daughter and Heir to Lionel Duke of Clarence Third Son of King Edward the IIId But to let you see that Henry Duke of Lancaster as much an Usurper as he was yet was so sensible that the Crown could not be then enjoyed by Election but by Right of Blood and that the Parliament also thought themselves in duty bound to submit to him to whom by Right of Blood the Crown did belong Will appear from this Dukes manner of laying claim thereunto Which since you have not particularly mention'd I will For no sooner was the Throne Vacant by the pretended voluntary resignation of King Richard but Duke Henry having fortified himself with the sign of the Cross stood up and made his demand of the Crown in his Mother-Tongue in this form of words as I have extracted them out of the Parliament Roll. In the Name of the Father Son and Holy Ghost I Henry of Lancaster challenge this Reawme of Inglonde and the Corone withall the Members and appurtenances also that I am Descendit by Right Line of the Blode comyng fro the gude Lord King Henry the Third And thorghe that Right that God of his Grace hath sent me with the help of my Kyn and of my Friends to recover it The which Reawme was in poynt to be undon for default of Governance and undoyng of the gude Laws And after which Challenge and Claim says the Record which I render out of Latine as well the Lords Spiritual as Temporal and all the States there present being all severally interrogated what they thought of the aforesaid Challenge and Claim the above named States with all the Commonalty without any difficulty or delay unanimously agreed that the aforesaid Duke should Reign over them Where you may see that this whole Parliament admit the Dukes Claim for good without proceeding to any formal Election of him And by vertue of this pretended Right and Claiming as Heir of Earl Edmund Sirnamed Croutch-back Brother to King Edward the Ist. whom he falsly pretended to have been the Eldest Son to King Henry the IIId and put by for his Deformity did not only himself but also his Son Henry the IVth and his Grandson Henry the VIth though Usurpers Succeed as right Heirs to the Crown till the 39th year of Henry the VIth when Richard Duke of York did in a full parliament lay Claim thereunto in right of his Mother being only Sister and Heir of Edmund Earl of March. And because the Judgment of the Parliament in this case is very remarkable pray read this part of it as it stands recorded in the Parliament Roll. Whereupon consideration of the Answer and Claim of the Duke of York it was concluded and agreed by all the Lords that his Title could not be defeated And therefore for eschewing the great inconveniences that may ensue a mean was found to save the Kings Honour and Estate and to appease the said Duke if he would Which was That the King viz. Henry the VIth should enjoy the Crown during Life the Duke to be declared the true Heir and to possess it after his Death c. And note that all this was done after a solemn hearing of all that could be said on both sides F. I confess the matter of fact concerning King Henry the VIth coming to the Crown is truly recited
by you from the Parliament Roll yet for all that it doth not follow that the Parliament allowed this Kings seigned and false claim to be good by their not contradicting it For though the Record says That upon the hearing of this Challenge or Claim all the Estates of the Kingdom being then asked their Judgments severally they declared that the same States without any difficulty or delay unanimously agree'd that the said Duke should Reign over them For considering the Dukes great Power it was not safe telling him to his face that he had no true Right by Inheritance therefore they only declared in general words without expresly denying or affirming his said Claim That he should Reign over them Which words do rather amount to an Election of him to be King without declaring what Title he had to be so And this they thought they might very well justifie not only for his having delivered them from the Tyranny of King Richard but also because they then looked upon it as their Right not only to Depose the King in case of an apparent violation of the Fundamental Laws of the Kingdom but also to place in his stead any of the Blood-royal tho' not next Heir by Blood according to the Message the whole Parliament had formerly sent to K. Richard in the beginning of his Reign by the Arch-Bishop of Canterbury and his Uncle the D. of Gloucester which I gave you at our ninth Meeting as I remember And pray take notice the words were Et propinqai rem aliquem de stirpe Regia loco ejus in Regnisolio sublimare Where observe that the words were not the next of Blood but some near Kinsman of the Blood Royl And though it is true that both King Henry the Vth. and VIth might both seem to succeed to the Crown by Right of Blood yet I do rather attribute their right of Succession to an Act of Parliament made in the seventh and confirmed in the eighth year of Henry the IVth whereby the Crown was entailed upon all his Sons by Name and the Right Heirs of their Bodies By vertue of which settlement both Henry the Vth. and VIth Succeded thereunto For if he had thought his own feigned Hereditary Title to have been sufficient he would never have troubled himself to have procured the Crown to be setled upon himself and his Children by Act of Parliament M. All this signifies nothing for I have already sufficiently proved that in the 39th year of Henry the VIth upon a solemn hearing before the Paliament of the Claim of Richard Duke of York to the Crown the said Act was set aside And it was there expresly declared that the said Dukes Title could no ways be defeated And this agreement is still on Record between Henry the then possessor of the Crown and the said Duke whose Right it was and the Judgment of the Parliament was then given in the behalf of proximity of Blood as to have always been the foundation and ground of Succession to the Crown of England and of taking it from the Son of Henry the VIth and restoring it to the Duke of York and his Issue as right Heirs thereof As appears by the Title and Pedegree of the said Duke set down at large in the first Article of this Agreement confirmed by Parliament that is by King Henry the VIth himself who was then King de Facto tho' not de Iure F. I will not deny the matter of fact to be as you have set forth yet if you will but please to consider the time when this Declaration and Agreement was obtained and the manner how it was done you will quickly find that it was rather got by force and constraint upon that poor Prince Henry the VIth than by any real Right the Duke of York had to the Crown after its being setled for three Descents in the House of Lancaster For the proof of which I desire you in the first place to take notice that at this time the whole Kingdom was under general discontent noâ— only for the loss of all our Conquests in France but also for the great mismanagement of Affairs at home by reason of the exorbitant power of the Queen and her two favourites the Dukes of Somerset and Suffolk who made the King a meer Cypher and had without his consent made away Humphrey Duke of Gloucester the Kings only Uncle then living contrary to Law so that affairs being in this ill posture it was very easie for the Duke of York and the Earl of Warwick to procure a sufficient Interest in the Nobility and Great men of the Kingdom to raise an Army upon pretence at first only of reforming the grievances of the Kingdom and bringing the said Dukes of Justice the issue of which War was that the Duke not being strong enough at first to oppose the Kings Forces was forced to surrender himself and to obtain his Pardon took a Solemn Oath never to Rebel against the King again but being afterwards Attainted at a Parliament held at Coventry for new Conspiracies he then again Rebelled together with the Earl of Warwick and then that King Henry being carried to head his Army was by the Duke of York taken Prisoner in the Battle near Northampton and being thence by him brought up to London a Parliament was call'd in the Kings name though without his consent wherein the Duke of York had the confidence to seat himself in the Royal Throne and to make that challenge of the Crown you have recited and under how great a terror all the Friends and Servants of this poor Prince was at that time appears plainly from this that neither the Kings Attorney nor any of his Council durst undertake to plead his Cause before the Parliament nor yet would the Judges give their opinions in a matter of such great moment but they all answer'd That this Matter passed the Learning of the Justices and also that they durst not enter into any Communication in that matter and besought all the Lords to have them excused for giving any Advice or Council therein but the Lords would not excuse them and therefore by their Advice and Assistance it was concluded by all the Lords that the Articles following should be objected against the Claim and Title of the Duke So that you see from the Record it self that the Judges were with much ado prevail'd with to object any thing against the Dukes Title Therefore considering the great contempt the Kings Person was then under by reason of his weakness and the great hatred and weariness the Nation had then of the evil Government of the Queen and her Favourites it was no more difficult for the Duke of York to procure this Judgment in Parliament in savour of his Title than that Henry the 4 th should after he had put Richard the 2 d in Prison get him Depos'd and make his own Title to be allow'd for good and certainly if it were
the Nation from his Oppression though the Prince was pleas'd to accept it upon those terms expressed in the late Declaration of the Convention and upon his free promise to preserve preserve our Religion Laws and Liberties which he has since also confirm'd by his Coronation Oath But as to what you say that the Prince made the Kings Army desert him and wrought the People into hatred of his Person by lying Stories and mean Arts is altogether untrue since I know of no Reports he made of the King or his Government but what are in his first Declaration and that is certainly true in every part of it and as has been justified by the express Declaration of the Convention in every particular except that concerning the Prince of Wales which I confess is left still undecided because as I have already proved it is impossible to give any certain judgement in it unless the Witnesses as well as the Infant himself could be brought over hither nor doth the Prince in his said Declaration say any more concerning that business than that there are violent suspicions that the pretended Prince of Wales was not Born of the Queen but for the report of the Secret League with France for the extirpation of the Protestant Religion as there is no such thing in his Highnesses Declaration so the spreading of it cannot be laid to his charge since he never gave it out as I know of yet there are certainly great presumptions and too much cause of suspicion that it may be so as I proved at our last Meeting But though you will not allow the Prince the Title of our Deliverer yet I am sure the greatest part both of the Clergy and Laity of the Church of England were once of Opinion that King Iames's violations both upon our Religion and Laws were so great that nothing could preserve the Kingdom from a total Subversion in its Establisht Religion and Civil Constitution but his Highnesses coming over and most of the Bishops were of that Opinion who now the Government is setled refused to take the Oath of Allegiance to their present Majesties But to answer what you say that the manner of Henry the IV ths and Henry the VII ths coming to the Crown doth not at all agree with this Case of King William because they claimed by right of blood which you say King William cannot do that is not so in respect of the Queen who has certainly a right to succeed her Father by right of blood in case the Prince off Wales be not the true Son of the Queen and untill he can be proved so we must at present look upon him as if he were not so at all so that the Convention hath done no more in setling the Crown upon the King during his Life than what the Great Council of the Kingdom have frequently done before upon other vacancies of the Throne as I have proved from the Examples of William Rufus and Henry the First King Stephen King Iohn and Henry the Third And it is very hard to suppose the whole Nation to have been guilty of Perjury and Treason upâ—n their Swearing to and Fighting for those Princes after they were so Solemnlâ— Elected Crowned and Invested with the Royal Power But as for Edward III. his first and best Title was from the election of the Great Council of the Kingdom who I doubt not but if they had found him unworthy of the Royal Dignity by reason of folly or madness or Tyrannical Principles would have set him aside and have made his youngâ—â— Brother King a Protector to govern in the King's Name with Royal Power having never been known in England till the Reign of Henry the VI th but as for Henry the IV th notwithstanding his claim by right of Blood I have already proved that the Paâ—liament by their placing him in the Throne did not at all allow it nor is any such Right recited in the Act of the 7 th of Henry the IV th which by the Crown is entail'd upon that King and his four successive Sons And though it is true Henry the Seventh also claim'd the Crown by right of Inheritance in his Speech in Parliament yet they were so far from allowing it that they do not so much as mention it in that Act of Setlement which as I have recited they made of it upon that and the Heirs of his Body And therefore I think I may still maintain that the Convention hath done nothing in the present Setlement of the Crown but what hath been formerly done upon every vacancy of the Throne either by deposition or resignation of the King or Abdication or Forfeiture of the Crown as in the case of King Iames in which the Convention have done no more than exercised that Power which has always been suppos'd to reside in the great Council of the Kingdom of setling the Crown upon such a Prince of the Blood-Royal as they shall think best to deserve it Thus much I have said to preserve the Antient Right of the Great Council of the Nation But to put all this out of dispute I have been credibly inform'd that the Princess of Denmark her self did by some of her Servants in both Houses as well of the Lords as Commons declare upon a great Debate that arose about securing her Highnesses Right to the Crown immediately after her Sister the Queen that her Highness had desired them to assure the Convention that she was willing to acquiesce in whatever they should determine concerning the Succession of the Crown since it might tend to the present setlement and safety of the Nation which I think is a better Cession of her Right to his present Majesty than any you can prove that the Empress Mawd made to her Son Henry the Second or than the Countess of Richmond ever made to her Son Henry the Seventh M. You have often talked of this forfeiture and extravagant Power of your Convention by whom you suppose they are not obliged to place the Crown upon the head of the next Heir by Blood which I shall prove to be a vain Notion for if there be an absolute forfeiture of the Crown the Government would have been absolutely Dissolved for since there is no Legal Government without a King if the Throne were really vacant and that the People might place whom they pleas'd in it yet the Convention can have no Power to do it as their Representatives since upon your suppos'd dissolution of the Original Contract between the King and the People there was an end of all Conventions and Parliaments too And therefore if a King could have been chosen at all it ought to have been by the Votes of the whole body of the Clergy Nobility and Commons in their own single Persons and not by any Council or Convention to represent them since the Laws for restraining the Election of Parliament-men only to Freeholders are upon this suppos'd Dissolution of the Government altogether void and
in pleyn Parliament that is in full Parliament where both Lords and Commons were present that the Proceedings of the Lords against those that were no Peers should not be drawn into Example c. Now pray see the Commentaries of the most Learned and Reverend Author of the Grand Question upon these words in this Record This hath all the formality of an Act of Parliament and therefore all the Estates were present so likewise in the same year in the next Roll but one Accorde est per nostre Seigneur le Roy son Counsell in Plein Parliament which was an Act of Parliament concerning those that had followed the Earl of Lancaster So in the 5 th of this King we have the particular mention of the Bishops as some of those who make a full Parliament Accorde est per nostre Seigneur le Roy Prelates Counts Barons autres Grands de Roiaâ—me in pleyn Parliament So in the 6 th of Edward the Ill d the Arch-Bishop of Canterbury made his Oration in pleyn Parliament which is thus explained en le presence nostre Seigneur le Roy tous les Prelats autres Grantz And in another Roll si est accorde assentu per tous in pleyn Parliament and who these were we are told in the same Roll viz. les Prelats Counts Barons tous les autres Summons à misme Parliament Now this is the clearest explication of these words in full Parliament viz. in the presence of all those who were Summon'd so that if the Commons were then Summon'd to this Parliament as certainly they were they must have given their Assents under the Title of Grantz since the Prelats Earls and Barons were particularly mention'd before To Dialogue the 10 th p. 706. after these words be Reformed by them or not read thus And that King Iames the First himself was satisfied of this Original Contract may appear by his own words in a Speech to both Houses of Parliament 1609. where he expresly tells them that the King binds himself by a double Oath to the observation of the fundamental Laws of his Kingdom Tacitly as being a King and so bound to Protect as well the People as the Laws of his Kingdom and expresly by his Oath at his Coronation so as every King in a setled Kingdom is bound to observe that paction made to his People by his Laws in framing the Government as agreeable thereunto according to that paction which God made with Noah after the Deluge c. To Dialogue 12. p. 874. after their Successors add this So that all the Modern Acts of Parliament for intailing the Crown being made and ordained by the Counsel and Assent of the Lords and Commons are so many plain declarations and evident Recognitions what the Fundamental Constitution of the English Government was in that grand Point To Dialogue the 12 th p. 898. after the words of the said Parish read thus and that not only all the Private Acts of that Parliament but some Publick ones also tho' never confirmed in the following Parliament of the 13th of Charles the Second are yet held good in Law appears by these that follow viz. 1. An Act for Continuance of Process and Iudicial Proceedings Continu'd By which all Writs Pleas Indictments c. then depending were ordered to stand and proceeded on notwithstanding want of Authority in the late Usurpers and therein it was farther ordained that Process and Proceedings in Courts of Justice should be in the English Tongue and the generall Issue be Pleaded till August 1. 1660. as if the Acts made during the Usurpation for that purpose had been good and effectual Laws And upon this foot only stand many Fines Recoveries Judgments and other Proceedings at Law had and passed between April 25 1660 and August 1. 1660. 2. An Act for Conforming and Restoring of Ministers This Act is usually to this day set forth and pleaded in Quare impedits tho' it was said to be refused upon debate to be confirmed in the House of Commons 13th of Car. II. when divers other Acts of the same time were confirmed yet both these Acts having no other Authority but from that Convention as you call it have been Judged and Constantly allowed to be good Laws for above these 30 years To Dialogue the 13 th p. 966. after these words were still alive read this And to shew you that the King and Parliament have deprived even Bishops of their own Communion and that such deprivations have been held good and that the King hath nominated new Bishops upon the vacancy you may see in Dr. Burnets History of the Reformation and in the Appendix to it where you will find a memorable Act of Parliament of the 25 th of Henry the VIII before his departure from his obedience to the See of Rome whereby Cardinal Campegio and Hieronimo de Ghinicci were deprived of the Bishopricks of Salisbury and Worcester which they had held for near 20 years and Campegio had without doubt been installed in it when he was in England The Act it self being so remarkable I shall give you some passages out of it verbatim first the Preamble sets forth that whereas before this time the Church of England by the Kings most Noble Progenitors and the Nobles of the same hath been founded ordained and establish'd in the Estate and degree of Prelacy Dignities and other Promotions Spiritual c. which sufficiently confirms what I but now asserted that all the Bishopricks were founded by our Kings with the consent of their Grand Councils or Parliaments and then it proceeds to recite that whereas all Persons promoted to Ecclesiastical Benefices ought to reside within the Realm for Preaching the Laws of Almighty God and keeping hospitality and since these Prelates had not observed these things but lived at Rome and carried the Revenues of their Bishopricks out of the Kingdom contrary to the intention of the Founders and to the great prejudice of the Realm c. in consideration whereof it is Enacted by the Authority of this present Parliament that the said two Sees and Bishopricks of Salisbury and Worcester and either of them henceforth shall be taken reputed and accounted in the Law to be void vacant and utterly destitute of any Incumbent or Prelate and then follows a Clause enabling the King his Heirs and Successors to nominate and appoint Successors being the Natives of this Realm to the said Sees and the King did nominate Successors according to the said Act. A Table of ERRATA THE Authors Occasions not permitting 〈…〉 Town whilst most of these Dialogue were in the Press begs pardon for the many Erratas in some of them and desires you to Correct such gross ones that alter or disturb the sense viz. Dial. 1. p. â—0 l 24. for Author r. Authority p. 52. l. 37. for 4th r. 5th p. 36. l. 38. for Rights r. Rites Dial. 2. p. 80. l. 25. del hundred r thousand p. 80 l. 22. d. Greek p. 84.
one thing more to add in relation to somewhat I promised at the end of the Preface to the last Dialogue concerning the late Revolutions being different from the last Civil War and Murther of King Charles the First which though I have finish'd and thought to have inserted into this Discouese yet since it proves rather too long without it and that the Bookseller urges for its speedy Publication I have thought fit to omit it since also the greatest part of it relates to matter of fact which is variously stated by those who write the History of those times yet I shall make bold to give you the heads of those inquiries I have made and shall leave you to satisfie your self in these Points following first if after King Charles the first had not only passed all Bills for redressing those Grievances the Nation lay under at the beginning of the Parliament in 1640. but had also passed the Bill to make it not to be Prorogued or Dissolved without their own consents I say whether there were then any such violations of our Religion and fundamental Laws which should require the Parliament and Nations puting themselves in a posture of defence against the King's Arbitrary Power Secondly whether the fears and jealousies of Popery and Arbitrary Government which notwithstanding all that the King had done still troubled many Mens minds were a sufficient ground for the two Houses to demand the putâ—ing the whole Militia of the Kingdom out of his own Power into such hands as they should nominate and appoint Thirdly whether upon his refusal of their Adresses for the Militia their going about to take it out of his hands by force and particularly their shutting him out of Hull was not an actual making War upon the King when he was as yet unâ—armed and had given out no Commissions to raise Men or Arms. Fourthly when the War was begun whether the King did not in all his Messages to and Treaties with the Parliament propose and seem to desire Peace upon equal and reasonable terms Fifthly Whether the two Houses did not instead of complying with those reasonable Proposals still insist upon higher Terms as their Victories and Successes over the King increased Sixthly when the King was deliver'd up by the Scots whether the Parliament and Army did not keep him as good as a close Prisoner and vote no more Addresses to be made to him meerly because he refused to pass whatever Bills they brought to him Seventhly When at last he was forced by necessity to grant them at the Isle of Wight almost whatever they demanded whether he was not hurried away from thence by Cromwell's Army and for the major part of the House of Commons who had Voted the King's Concessions satisfactory excluded the House by force till the far less Party had reversed all that the rest had done and then Voted the King should he called to an account for making War upon the Parliament and for Treason against the Kingdom Eighthly Whether in pursuance of this they did not appoint Iudges to Trie the King who upon his refusal to own their Authority Condemned him to death and cut off his head before the Gates of his own Palace Ninthly Whether this fag end of a Parliament did not alter the whole frame of the Government both in Church and State destroying both Monarchy and Episcopacy and Voting the House of Peers useless and dangerous and setting up a Democratical Commonwealth or rather an Oligarcy in their stead consisting of about fifty or sixty Men wholly governed and awed by Cromwell and the Officers of the Army Now let any Man but impartially consider all these Transactions with the late Revolution and read what hath been said in the three last Dialogues and then let him tell meingenuously whether he thinks this Revolution hath been begun upon the like grounds and carried on by the same violent Courses or has ended with the same direful effects as the late Civil War and Murther of King Charles the First I have no more to propose on this Subject but only to wish that these Discourses written with a real design for the publick good and peace of my Countrey may be read with the like affection with which they were written and may really promote that end for which they were designed but if not that they may at least serve as an Impartial History to Posterity of those Principles and Opinions on which this late great Revolution hath been brought about in England and also those on which it hath been so violently opposed by the dissenting Party THE Thirteenth Dialogue BETWEEN Mr. MEANWELL a Civilian AND Mr. FREEMAN a Gentleman F. SIR I hope I do not interrupt you by coming too soon for the truth is since I intend that this shall be the last Dispute I shall ever have with you upon this Subject I was very desirous to have it dispatched as soon as I could that when I have once discharged the duty of an old Friend and Acquaintance my mind may be at rest which side soever you take M. Dear Sir I thank you and though I intended to go abroad this Evening upon an Appointment yet I will not put it off that I may enjoy your better Conversation therefore pray begin where you left off and prove to me that I may lawfully take this new Oath of Allegiance to King William and Queen Mary F. I cannot see any reason why you may not safely do it since our best Common Lawyers are of this Opinion for my Lord Coke in his Third institutes in his Notes upon the Statute of Treason the 25 th of Edward the III d gives it for Law that this Act is to be understood of a King in possession of the Crown and Kingdom for if there be a King Regnant in possession although he be Rex de Facto non de Iure yet is he Seignior Le Roy within the purview of that Statute and the other that hath Right and is out of possession is not within this Act c. And if it be Treason to Levy War against him or to Conspire his Death as long as he continues King it can only be so because the Subjects Allegiance is then due to him for that all Men have either taken the Oath of Allegiance or else are supposed to have done it M. I must beg your pardon if I cannot come over to your Opinion neither in point of Law or Reason for as long as I am perswaded in my Conscience that King Iames is King de Iure so long must the obligation of my former Oath last and I suppose that you will grant that it is as impossible to owe Allegiance to two Kings at once as it is to serve two Masters and therefore you must pardon me if I suppose that my Lord Coke depending too much upon the commonly received sence of the Statute of the Eleventh of Henry the VII th which he quotes in the Margin may be
mistaken in this Great Point and may have also given occasion to divers others of his profession to fall into the same Errour F. I doubt not but my Lord Coke and others of his profession who maintain the same Opinion may very well be defended as well from that Statute as other Authorities but to pass by that at present I shall first discourse with you upon this point of the lawfulness of taking this Oath to their present Majesties King William and Queen Mary and therefore you misunderstand me if you believe that I think this Oath doth require from you the performance of all those duties of Allegiance and Subjection which I my self am oblig'd to who am fully satisfied of their Title and therefore must venture my Life and Fortune in their quarrel to the utmost of my power against all Persons whatsoever but all that I think can be required of you is that whereas King William and Queen Mary are actually in possession of the Regal Power so long as they continue thus possessed of it you may I think Swear that you will be so far true and faithful to them as not to enterprize any thing against them but that you will pay them that obedience and submission which may be lawfully paid to an actual Sovereign not engaging hereby to uphold them in the possession of the Throne against King Iames and without debarring your self from exerting that Allegiance you have sworn to him upon any emergent safe opportunity for the recovery of his Right M. I must beg your pardon if I cannot assent to take this Oath in this low and qualified sence that you would now put upon it since besides the signification of the words themselves I am very well satisfied that the imposers of this Oath do intend something more than a bare negative obedience to the present Power since it is the only Oath which is required from those who take Imployments either Civil or Military and from whom certainly not only a passive Obedience or Submission but also an active obedience and assistance is required in defending the Crown and Dignity of the present King and Queen de facto with their Lives and Fortunes against all Persons whatsoever or else how could the present Government ever trust them and all this cannot be sworn to without a breach of that Oath they had formerly taken to King Iames and therefore if I should take it in this sense as the Oath itself seems to imploy I should be perjur'd besides by these words of being true and faithfull I should look upon my self as oblig'd to reveal all Plots and Conspiracies which I may any ways happen to know of against King William and Queen Mary which I think would be derogatory to my Allegiance to his Majesty since I should thereby discover and accuse such of his good Subjects as endeavour'd to restore him and should thereby hinder him as much as in me lay from being restor'd again to the Throne But if we consider the word Allegiance it is yet more strict and if I should Perform it to King William and Queen Mary according to the true intent and legal sence of that word I think it could no ways consist with that Oath of Allegiance I have already taken since Allegiance is thus explained in the next following words of the Oath I have already taken and him and them viz. the King and his Heirs I will defend to the utmost of my power against all Conspiracies and Attempts whatsoever that shall be made against his or their Persons Crown and Dignities Now what kind of assistance is here meant by the word defend may be understood from all the Writers of our feudal Laws who expound the jus defensorium by telling us that the word protegere implies a necessity of defending by Arms as due from the Supream Lord or Sovereign and further that Subjects are in the same sence reciprocally bound to defend the Honour and Dignity of their Sovereign and these words Allegiance and the defence that follows it may be likewise understood from our feudal Laws whereby the Vassals were bound by their Oath of Allegiance as also by vertue of the tenure of their Lands to a military defence of their Supream Lord the King from whom all the Lands in England are held and this is according to Glanvil and all our old Lawyers and though I grant that military tenures are all now taken away by a late Statute yet am I still obliged to the like defence of the King and his heirs not only from the words of this Oath but from the municipal Laws of this Kingdom also which oblige all the Subjects that are capable to take up Arms for the King when need shall require Which my be thus further proved first from the Antient Laws of Edward the Confessor and William the Conquerour by both which all the People or Freemen of the Kingdom were to affirm upon their Faith and Oath within the whole Kingdom and without that they will be faithful to to their Sovereign Lord King William and every where preserve his Lands and Honours with all fidelity and with him will defend them against all his Enemies To this succeeded that which the Lord Coke calls legal Ligeance or the Common-Law-Oath of Allegiance which he cites out of Britton who wrote under Edward I. which all the Subjects were oblig'd to take at twelve years of age at the Sheriffs-Court and at the Leete and without the taking of which they had no warrant to abide in the Kingdom and the form of it was this effect You shall Swear that from this day forward you shall be true and faithful to our Sovereign Lord the King and his Heirs and truth and faith shall bear of life and member and terrene honour and you shall neither know nor hear of any ill or dammage which you shall not defend that is oppose to the utmost of your power And my Lord Coke also here informs us that five things were observed by all the Judges from this Oath in the debate of Calvin's Case First that for the time of its obligation it is indefinite and without limit Secondly two excellent qualities were required that is to be true and faithful Thirdly to whom to our Sovereign Lord the King and his Heirs Fourthly in what manner and saith and troth shall bear of life and member that is untill the letting out the last drop of our dearest heart blood Fifthly where and in what place in all places whatsoever for you shall neither know nor hear of any ill which you shall not defend such is the Ligeance which the Law has prescribed in that antient Oath which is still in force it is neither circumscribed by time nor place it is unconditionate and unreserved it is not a lazy passive Allegiance requiring nothing but pure submission but an active and vigorous Loyalty exacting all that is in the sphere of moral possibility and engaging us to