other Now this was done some time before he Married with the Princess Elizabeth for as soon as this Act was made the Commons requested the King to marry Elizabeth the Daughter of King Edward the fourth that by God's Grace there might be Issue of the stock of their Kings as their own words were and that this was rather to preserve the Blood Royal than to give any new confirmation to his Title appears from hence that there was never any other Act after the Marriage to declare the right of the Crown to be in the King and Queen or so much as to entail it on the issue of their Bodies so that it is plain he enjoy'd it not in his Wives but in his own right since he held it after her death by vertue of this Statute which plainly shows that in the judgement of that Parliament the House of Lancaster was lookt upon to have the better Title And though it is true that the King procured the Pope's Bull now in the Cotton Library to strengthen his Title threatning all those with Excommunication that should offer to rebell against him yet even that Bull tho' his right by Inheritance and Conquest be first mentioned concludes with his Title by the Election of the Prelates Nobility and People of England and the Decree or Statute of the three Estates in their Convention call'd the Parliament as this Bull it self expresses it M. I must confess you have told me more of these matters than ever I heard of before for I always thought that there had been no Act of Settlement upon King Henry the VII th until after his Marriage with the Princess Elizabeth for till then I look upon him as an Usurper upon her right as he was also after her death upon his Sons successively so that if you will have my Opinion I conceive that this Statute being made before he had a lawfull right to the Crown is wholly void as is also that of the repeal of the attainder of King Henry the VI ths for the same reason But let his Title be what it will it is ceâ—â—ain his Son King Henry the VIII th Succeeded to the Crown as Heir rather to his Mother than his Father and so was in by remitter but as for King Edward the VI th he was undoubted Heir by right of blood as being the only Heir Male to his Father and though it is true that King Henry made divers Statutes whereby he alter'd the Succession of the Crown as to his two Daughters Mary and Elizabeth sometimes declaring them both illegitimate and then again giving them a right to Succeed by Act of Parliament yet these Acts of Succession were obtained purely by the King's Sollicitation and Command and tho' at last he got himself impower'd to make a Will whereby he might settle and entail the Crown on whom he pleas'd yet all these Acts of Parliament as also this will signifie just nothing after his death for tho' his said Daughters Queen Mary and Elizabeth did one after another succeed his Son King Edward the VI th yet was it not by vertue of any of these Acts of Parliament or by the aforesaid Will but by pure right of inheritance or colour of it at least and therefore in the first of Queen Mary there is an Act declaring the Queens Highness to have been born in most just and faithful Matrimony and also repealing all Acts of Parliament and Sentence of Divorce made or had to contrary Now certainly the intention of this Act was to declare her Succession to be Inheritance by right of blood so likewise in the first of Elizabeth the Lords Spiritual and Temporal and Commons do declare and confess that Queen Elizabeth is in very deed and of meer right by the Laws of God and by the Laws and Statutes of this Realm their most rightfull and lawfull Sovereign Queen and that she was rightly lineally and lawfully descended and come of the Blood-Royal of this Realm of England all which whether it were true or not in her yet the lineal and lawful descent of Queen Elizabeth was the ground upon which she was declar'd to be their Rightfull and Lawfull Queen And though I grant that King Henry the VIIIth had by his Last Will and Testament post poned all the Issue of his Sister Margaret Queen of Scots and preferred the Children of his younger Sister the Queen Dowager of France which she had by Charles Duke of Suffolke before them Yet was this Will afterward cancelled and torn off from the Rolls in Chancery where it was Recorded and that by order of Queen Mary as is supposed So that Iames the VIth King of Scotland was by Right of Blood Declared and Proclaimed King of England immediately upon the Death of Queen Elizabeth as right Heir of the Crown And in the first Parliament after his Coronation his Title is by them particularly recognized in the words which I desire you to read with me Where after setting forth his Pedigree as lineally descended from the Lady Margaret eldest Daughter of King Henry the VII th and Queen Elizabeth his Wiâ—e Daughter of King Edward the IV th they farther acknowledge King Iames their Lawful and rightful Leige Lord and Sovereign and farther say as being bound thereunto both by the Laws of God and Man that they do recognize and acknowledge that immediately upon the dissolution and decease of Elizabeth late Queen of England the Imperial Crown of the Realm of England and all Kingdoms Dominions belonging to the same did by inherent Birth-right and lawfull and undoubted Succession descend and come to his Most Excellent Majesty being lineally lawfully and justly next and sole Heir of the Blood Royal of this Realm and thereunto they do most humbly and faithfully submit and oblige themselves their Heirs and Posterities for ever until the last drop of their bloods be spent I have been the more particular in the recital of this Act because it stands not only as a perpetual Declaration of the sense of the Representatives of the whole Nation for an hereditary Succession of the Crown without any vacancie or election but also because it contains their solemn engagement for themselves and their posterities for ever to King Iames and his issue and consequently to his right Heirs for ever so that nothing can be more directly contrary than this Act to the late proceedings of the Convention first in declaring the Throne vacant and then placing the Prince and Princess of Orange therein F. I will not deny but that King Henry the VIII th and Edward the VI th both succeeded by right of inheritance but whether the former claim'd it as Heir to his Mother or his Father is much to be doubted since being Heir to both of them he never declar'd by what Title he held the Crown But as for his two Daughters Queen Mary and Queen Elizabeth it is certain their best Titles were from these Acts of
it were granted him by God F. I promise to give you full satisfaction to this question by and by but in the mean time pray let me make it a little more plain to you that this Power of Life and Death which may be exercised by Masters of separate Families over their Wives and Children in some cases is not by any Power they receive from God as Husbands or Fathers but only as Heads or Masters of such Families may by proved by this instance suppose a Master of a Family independant on any other as in the Indies hath neither Wife nor Children yet sure he hath notwithstanding the same Power of Life and Death over his Servants or Slaves for such great offences as you have mentioned in case there be no superiour Power over him to take Cognizance of such Crimes And to make this yet plainer suppose a Married Man having a Wife and Children will live together with them in the Family of such a Master as I have now described yet not aâ— a Servant but as an Inmate or Boarder and whilst he so continues his Wife Kills one of her Children or one of his Sons Murders his Brother who hath right to punish this offence but the Master in whose Family he is an Inmate And this follows from your own supposed for if every separate Family in the state of Nature be a distinct independant Government then all those that enter themselves as Members of such a Family must be subject to the Master or Governour of it Nor do you reduce me into any absurdity by your reply to my argument That if the Power of Life and Death were Originally in Fathers by the Law of Nature it could never be restrain'd nor taken from them without their consent that then this will make as much against the like Power of Masters of Families since I must grant this is taken away by Civil Laws And why not the other To this I reply that you do not observe the strength of these words Without their consent For I suppose that no Power whatever can take this out of the hands of such Fathers or Masters of Families in the state of Nature without they assign it to the Supream Powers of the Common-wealth upon its first Institution whereas you make this Power to be obtainable by Force as by Conquest or Usurpation not only over those that are not at their own disposal as Children and Servants but over their Fathers and Masters too without their consents which is contrary to the Law of Nature and Reason M. I see you take it for granted that I will admit your Instance of the Power of Life and Death to be in the Masters of Families and not as Fathers in the State of Nature But as plain as you think it since you question the Power of Life and Death which I suppose to be inherent in all Fathers I know not why I may not with more Reason question your allowing the like Power to Masters of separate Families since there is no reason in my Opinion which you can bring for such a Power in your Masters of Families which I cannot with like reason urge may be also exercised by Fathers and Husbands over their Wives and Children in case they deserve it For if it be for the good and preservation of mankind that great and enormous Crimes such as Murder and Adultery should be punished and that with Death Who is more fit to inflict these punishments or who can be supposed to judge more impartially of them than the Father or Husband himself Since he cannot put his Son or Wife to Death however they may deserve it without very great reluctancy since he aâ— it were thereby lops off a Limb from his own Body And therefore I cannot see any Reason why such a Married man as you describe should by coming under another Man's Rooâ— only as an Inmate or Boarder and not as a Slave which I grant would alter the Case should lose that Power of Life and Death which I suppose he hath by the Laws of God and Nature over his Wife and Children unless he had actually given it up to the Master of that Family with whom he came to Board And therefore as I do not deny but that a Master of a separate Family hath power of Life and Death and also of making Peace and War with other such Masters of Families nay with Princes themselves if there be occasion as we read in Genesis Chap. 14. That Abraham made War with the four Kings who had taken Lot Prisoner So likewise when Judah pronounced Sentence of Death against Thamar his Daughter-in-Law for playing the Harlot Bring her forth says he and let her be burnt Gen. 38. I own this was not done by the Authority of a Father alone she not being his own Daughter and his Son being then dead but as the Master of a separate Family who hath I grant power of Life and Death as he is Lord over the persons of his Children aâ— Servants and consequently over their Wives also for if he hath power over his Son he hath certainly the like over all that belong to him as long as they continue members of his Family and that he hath not thought fit to manumit or set them free But now I desire to know by what right these Patriarchâ— could exercise all these markâ— of Soveraignty especially this great Power of Life and Death unless it were derived from God at first since no Man hath any power to dispose of his own Life at his pleasure and therefore sure hath naturally no power over that of another man's So that not only this Power of the Patriarchs but also that of all Monarchs to this day must be derived from this Divine Original F. Well then I find you 're forced to quit the power of a Father as such by Generation since it plainly appears that this power of Life and Death which you affirm a Husband or Father may exercise over their Wives or Children in the state of Nature is not quatenus as a Father but Lord and Master over them which in the first place I cannot allow to be true in relation to the Wife nor that the submission of the Wife's Will to the Husband must imply a power of Life and Death over her for if she is not his Slave as certainly she is not for then a Man might sell his Wife when he pleased I cannot see how she her self could convey by force of the contract any such Power over her Life tho I grant indeed if she happen to commit Murder upon one of her Children or other Person of the Family he may proceed against her as an Enemy but not as a Subject and if it be for Adultery it self I cannot see that the Husband can by the Law of Nature punish her with Death for since that Crime doth really dissolve the bond of Matrimony Divorce or putting her away and deserting the Child born in Adultery
are they likewise obliged to maintain this Property when it is once Instituted and the People have as much Right to it as any King can have to his Crown viz. the Civil Law of that Country or Consent of the whole Nation And therefore if according to King Iames the First his Rule a King of a Setled or limited Kingdom will break all the Laws thereof and Degenerate into a Tyrant unless such Tyrant be the Ordinance of God he may certainly be so far Opposed for what can Pirates or Robbers do more than his Officers and Guards by his Commission The former can but Murder Men Ravish their Wives burn their Houses and take away their Estates and if the latter may do so too pray where is the Difference Or what satisfaction is it to me that I am Ruined by one Man having the King's Commission or by another that Ruins me without it Since I am sure God hath given the one no more Authority to do it than the other if then this unlimited Power be neither conferred by God nor Man upon the Civil Magistrates I would fain know any Reason why Thieves and Pirates may be Resisted but their Instruments may not that do the same things And why when Civil Authority exceeds its utmost Bounds the State of Nature or Self-defence may not take place Since the Civil Government is as much Dissolved by such Violent Actions as if a Forreign Enemy had broke in and Conquered the Country But to Answer your Query whether I think a Civil Government may not be where there is no Setled Property in Estates and whether the Eastern Monarchies are not Civil Governments To this I answer that I have Aristotle on my Side who not without Reason Affirms that the Government of one Man where there is no Civil Property and where all Men are Slaves is not Civil Government but that of a Master of a Great Family over his Slaves And tho' I grant that they may have some shew of Civil Government among them as in a Plantation where one of the Slaves may complain to the Master against another for any Injury or Wrong done him yet is not this Property Civil Government any more than that of the Master of a Separate Family who looks upon himself as Absolute Lord over all his Slaves and they allowed him by God only for his Benefit and Grandeur and not he instituted as all Civil Powers are for the Good and Preservation of the Subjects M. But methinks you seem herein to Condemn the Government of Gods own People the Iews which no doubt was an Absolute Monarchy And that restrained by no Laws except what God had expresly prescribed them And yet you see notwithstanding Samuel told them that their Kings should take away their Fields and their Vineyards and give them to his Servants and take their Sons and Daughters to be his Servants or Slaves Yet God leaves them no Power to Resist them for so doing But all the Remedy left them is that they should Cry out in that day because of the King which they had chosen and the Lord would not hear them that is there was no Remedy left them but Patience F. I have already given you my Sense of that Place and I shall speak more particularly to it when you shall come to those Texts of Scripture that you said you would produce for Absolute Subjâ—ction and Non-Resistance And therefore at present I shall only here shew you what the Earl of Clarendon in the above mentioned Survey of the Leviathan cap. 19. hath very prudently as well as honestly said concerning this Text They who will deduce the extent of the absolute and illimited Power of Kings from that Declaration by Samuel which indeed seems to leave neither Property nor Liberty to their Subjects and could be only intended by Samuel to terrifie them from that Mutinous and Seditious Clamor as it hath no Foundation from any other part of Scripture nor was ever practised or exercised by any Good King who succeeded over them and was blessed and approved by God So when those State Empiricks of what degree or Quality soever will take upon them to prescribe a new Dyet and Exercise to Soveraign Princes and invite them to assume new Powers and Prerogatives over the People by the Precepts Warrants and Prescriptions of the Scriptures they should not presume to make the Sacred Writ Subject to their own private Fancies So likewise in a Leaf or two before he speaks much to the same Purpose That what Samuel had said was rather to terrifie them from pursuing their foolish Demands than to Constitute such a Prerogative as the Kings should use whom God would appoint to go in and out before them which methinks is very manifest in that the worst Kings that ever reigned over them never challenged or assumed those Prerogatives Nor did the People conceive themselves liable to those impositions as appears by the application they made to Rehoboam upon the Death of Solomon that he would abate some of that Rigor his Father had exercised towards them the rough Rejection oâ— which request contrary to the Advice of his Wiâ—est Counsellours cost him the greater part of his Dominions And when Rehoboam would by Arms have reduc'd them to Obedience God would not suffer him because he had been in the fault himself From whence you may conclude that this Great Man did not think all Resistance unlawful in Case of General and Intolerable Oppressions M. I shall give you my Opinion farther of what you have now said when you have told me more plainly in what Cases you allow Resistance of the Supream Powers and in what not For till you have been more clear in this matter I cannot tell what Judgment to make of your Tenets F. I thank you for putting me upon so fair a Method And therefore that you may not mistake me and suppose that I would go about to allow Subjects to Resist and take up Arms against the Supream Power upon any less Occasion than an Absoluâ—â— Necessity and apparent Danger of being Destroyed and Ruined in their Lives Liberties and Estates first therefore considering that the Corruption of Humane Nature is such that no sort of Government whatsoever can continue long without some Inconveniences and Mischiefs to particular Men not that any Man either Prince or â—ubject was ever Master of such perfect Wisdom and Goodness as always to peform his Duty so exactly as never to Offend I do in the first place grant that it would be both Undutâ—ful as well as Unjust for Subjects to Rebell aâ—ainst their Prince for his Personal Failings or Vices Undutiful Since the Prince may be often times an ill Man in his private Capacity and yet a good Governour in respect of the Publick and also Unjust since neither do we our selves exactly perform our Duties toward the Supream Powers or to one another as we ought And therefore it is highly reasonable for Subjects to
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
Tenants by Knights service as also those aids they were to pay the King or any other Lord they held of towards making his eldest Son a Knight and Marrying his eldest Daughter were in use in England before the Conqueror came over But to observe your commands I shall now proceed to shew that by the Conquest the English for a time lost all their ancient Rights and Priviledges till they again obtained them either by their mixing with the Normans so that all distinction between them and the English were taken away or else they were restored by the Charters of K. Henry the first K. Iohn and K. Henry the third I shall therefore divide the priviledges of Englishmen into these three heads first Either such as concerned their Offices or Dignities Or secondly Such as concerned their Estates Or lastly Such as concerned the Tryal for their lives in every one of which if I can prove the English Natives as well of the Clergy and Nobility suffered confideracie lesses and abridgments of their ancient 〈…〉 liberties which they formerly enjoyed I think I shall sufficiently prove the point in hand As to the first head Ingâ—ph telâ—s us that the English were so hated by the Normans in his time that how well soever they deserved they were driven from their Dignities and strangers tho' much less fit of any Nation under Heaven were taken in their places and Malmesbury who lived and writ in the time of Henry the first says that England was then become the habitation of foreigners and the Rule and Government of strangers and that there was at that day no Englishman an Earl Bishop or Abbot but that strangers devoured the Riches and gnawed the Bowels of England neither is there any hope of ending this misery So that it is plain they were now totally deprived of all Offices and Dignities in the Common Weal and consequently could have then no place in the great Council the Parliament of the Nation both for the raising of Taxes and the making of Laws and tho' I grant Mr. Petyt and your self suppose you found a clause in the Conquerors Magna Charta whereby you would prove that all the Freemen of this Kingdom should hold their Lands and Possessions Well and in Peace free from all unjust Exactions and Taillage so as nothing be exacted or taken unless their Free-services which of right they ought and are bound to perform to us and as it was appointed to them and given and granted to them by us as a perpetual right of Inheritance by the Common Council of the whole Kingdom This Common Council will not help you for without doubt here were no Englishmen in it for certainly they would not grant away their own Lands to strangers These were the Saxon Lands which William had given in Fee to his Soldiers to hold them under such services as he had appointed them and that by right of Succession or Inheritance We will now come to the second point viz. the Priviledges the Englishmen lost as to their Estates for whereas before the Conquest you affirm the K. could nor make Laws nor raise Taxes without the Common Coâ—ncil of the Kingdom it is certain K. William and his immediate Successors did by their sole Authority exercise both these Prerogatives as for his Legislative power it appears from the words of his Coronation Oath as you your self have repeated it out of Florence of Worcester and Roger Hoveden the conclusion of which Oath is se velle reâ—â—am legem statuere tenere Rapinas Injustaque Iudicia penitus interdicire Now the Legislative power was then lodged in him why else did he swear to appoint right Laws For if the constitution had been setled as it is at present the Parliament could have hindered him from making any other and that he could do so appears by that yoak of servitude which Matthew Paris as well as other Authors tells us K. William by his own Authority imposed upon the Bishopricks and Abbies in England which held Baronies which they had hitherto enjoyed free from all secular servitude he now says he put under Military service sessing all those Bishopricks and Abbies according to his pleasure how many Knights or Souldiers each of them should find to the King and his Successors and putting the Rolls of this Ecclesiastical Service in his Treasury he caused to fly out of the Kingdom many Ecclesiasticks who opposed this wicked constitution now if he could do this upon so powerful a Body as the Bishops and Abbots were at this time he might certainly as well raise what Taxes he pleased upon all the People of England and therefore Henry of Huntington tells us that K. William upon his return out of Normandy into England Anglis importabile tributum imposuit Lib. 3. p. 278. And that his Son William Rufus imposed what Taxes he would upon the People without consent of the Parliament appears by that passage of William of Malmesbury which he relates in the Reign of this K. as also in his third book de Gestis Pontificâ—m concerning Ranulâ— whom from a very mean Clerk he made Bishop of Duâ—ham and Lord Treasurer the rest I will give you in Latine Isle siquando edictum regium processisset ut nominatum tributum Anglia penderet duplum adjiciâ—bat subinde idente Rege ac dicente solum esse hominem qui sciret sic agitare ingenium nec aliorum curares odium dummodo complaceret dominum So that you may here see that the Kings Edict or Proclamation did not only impose the Tax at his pleasure but his Treasurer could double it when he had a mind to it without consent of the great Council or Parliament as we now call it and this Prerogative was exercised by divers of his Successors till the Statute de Tallagiâ— non concedendo was made But to come to the last head concerning the alteration of Tryals for mens Lives and Estates by the Conqueror from what they were before it is certain that whereas before the Conquest there were no other Tryals for mens lives but by Juries or else by Fire or Water Ordeal which was brought in by the Danes the Conqueror tho' he did not take way these yet also added the law then in use in Normandy of Trying not only Criminal but Civil Causes by Duel or Combat all the difference was that in criminal cases where there was no other Proof the accuser and accused fought with their Swords and the party vanquished was to lose his Eyes and Stones but in civil causes they only fought with Basâ—oons headed with Horn and Bucklers and he or his Champion who was overcome lost the Land that was contended for from whence you may take notice also of a great alteration in the Law not only concerning Tryals but capital Punishments so that whereas before the Conquest all crimes even Man slaughter it self were either â—ineable according to the Quality of the Person and the Rates set upon
also to those of justice and right reason for an Usurper not only to seize the Throne by force but if he can once get himself solemnly Crown'd and then recogniz'd by an Act of Parliament of his own calling which your self cannot deny but to have been ever too obsequious to the will and power of Usurpers as appears by those instances you have given me in Henry the IVth Henry the VIth and Richard the IIId the consequence will then be that the whole Nation would not be only bound to swear Allegiance to him but would be also oblig'd by this Act to desend him in his Tyranny and Usurpation to the utmost of their power and it would also indemnifie them for so doing which would be to establish iniquity by a Law and would destroy all the setled foundations of right and wrong which I affirm God himself is not able to alter without departing from those great attributes of immutability and Justice so essential to his Divine Nature F. It will not be very difficult to reply to these Arguments since they are grounded on such false Principles as are already answer'd As first that this Kingdom is by the fundamental constitution of it an Hereditary Monarchy and that consequently none but he who has a right by inheritance can require our Allegiance but pray tell me where you can find this fundamental constitution for I think I have sufficiently prov'd that there never was any such thing known in England till between four and five hundred years since that King Edward the First succeeded to his Father Henry the Third without any Bequest of the Crown by his Testament and before any Election or Coronation since he was then in the Holy-Land But suppose it now to be an Hereditary Monarchy it doth not therefore follow that the Monarchy should continue always in such a Family for that may sail or may be changed by Conquest or Usurpation as has often been and the constitution continue So that the most that can be said is that when any particular Family by the Providence of God and the consent and submission of the People is placed in the Throne of right the Crown ought to descend to the Heir of that Family but suppose it does not must we pay Allegiance to no other person though pâ—ssessed of the Throne Pray Sir shew me that fundamental constiâ—ution for its being an Hereditary Monarchy does not prove it and according to the Judgement of the best Lawyers the Laws of the Land require the contrary viz. that we must pay our Allegiance to him who is actually King not to him who ought to have been King but is not and to think to confute this by pretending this fundamental constitution of an Hereditary Monarchy is to take that for granted which is still to be proved And therefore I am not at all frighted at the dreadful consequences which you suppose must follow if this Statute of Henry the VIIth should be Law viz. that it would be in the power of every Rebell and Usurper who could get himself Crown'd and then own'd to be King by a Parliament of his own calling to have a legal right to our Allegiance and that Cromwell if he could have got himself once Crown'd and recogniz'd might have been defended in his unjust Usurpation against King Charles the Second But admit this to have been so yet it is still to be understood that at this Coronation he had taken the Oath anciently taken by our Kings and that the Parliament he had summon'd to recognize his Title had consisted of the antient Lords and Commons consisting of Knights Citizens and Burgesses which never was observ'd in any of those Mock-Parliaments which Cromwell call'd had all these Conditions been observ'd I believe he would have been as legal a King within this Statute of Henry the VIIth as he himself ever was before he Married with the Princess Elizabeth which was not till near half a year after he had the Crown setled upon him by Act of Parliament So that though upon every translation of the Crown from one Family to another the first Prince of that Family could have no Hereditary Right to it yet we find such Princes to this day taken for Lawful Kings thus your William the Conquerour King Henry the IVth and King Henry the VIIth are each of them looked upon as true and lawful Kings according to our constitution as if they had been right Heirs of the Crown by lineal descent and though you may say that as to William I. he had a good right by Conquest that is only gratis dictum since I have already prov'd that he could be really no Conquerour And if the English Saxon Monarchy was hereditary before the Conquest as the Gentlemen of your opinion suppose he could be no other than an Usurper upon Edgar Athling the right Heir of the Crown by blood and as for Henry the IVth and Henry the VIIth though they both pretended a feigned Title to the Crown as Heirs by blood yet it is plain by the very Acts of Recognition I have cited that they durst not insist upon that Title since I have already prov'd there is no such thing mention'd in that Act of Parliament wherein the Estates of the Kingdom unanimously agreed that Henry Duke of Lancaster should Reign over them nor yet in the subsequent Act whereby the Crown was intail'd upon himself and his four Sons successively so likewise the Statute of the first of Henry the Seventh it is only drawn in general terms declaring that the Inheritance of the Crown of England c. shall rest remain and abide in the Person of King Henry the VIIth and the Heirs of his Body lawfully coming c. Nor is there indeed any breach made upon this Statute as you suppose nor yet upon the Act of Recognition of King Iames which you so much insist upon since the Crown is certainly setled upon two Princes who are not only lineally descended from them but who are also to be looked upon as right Heirs unto them since the Great Council of the Nation who are the Supream Judges have declar'd them to be so But as for the rest of your Speech whereby you would prove that this Act must needs be void because contrary to the Laws of Justice and right Reason this also depends upon your former errour in supposing that Princes have a Divine or Natural Right to their Crowns antecedent to the municipal Laws of their respective Kingdoms which is already sufficiently confuted so that tho' I grant it is not in the power of God himself to alter the natural foundations of right and wrong just and unjust yet it is likewise as certain that the Civil Rights of Princes as well as those of Subjects can no ways be accounted for according to those Natural Laws since all Civil property as well in Crowns as other Possessions must depend upon the particular Laws and Constitutions of each Kingdom and
Crown yet the pretended hereditary right of blood was the main ground of his Establishment But as for King Henry the VII th tho' he could claim the Crown by no true Right of Inheritance yet would he never own it to be an Election by Parliament for as soon as King Richard was slain in the Battle of Bosworth the Lord Stanley put his Crown upon Henry's head who immediately stiling himself King as well by right of Conquest as by being sole Heir Male of the House of Lancaster He as such caused himself to be Crowned King and though he afterwards call'd a Parliament in which he procured his Title to be recognised yet as my Lord Bacon very well observes he was afraid to take the Crown by his only true Title in right of the Lady Elizabeth his Queen for fear he should only be King by Courtesie and must upon the Queens death have resign'd it again and should he take it by Election he knew there was a very great difference between a King that holdeth his Crown by a Civil Act of the Estates and one mind that that holdeth it originally by the Law of Nature and descent of Blood and therefore upon these Considerations he resolved to rest upon the Title of the House of Lancaster as his main Right and thereupon he caus'd an Act of Parliament to pass wherein his Title was acknowledged as my Lord Bacon there tells us not by way of Declaration or Recognition of Right as on the other side he avoided to have it by a new Law of Ordinance but chose rather a kind of a middle way by way of establishment and that under covert and indifferent words that the inheritance of the Crown should rest remain and abide in the King c. which words might be equally applied that the Crown should continue to him but whether as having former right to it which was doubtful or having it then in fact or possession which no Man denied was left fair to interpretation either way I speak not this to justifie all his actions but to let you see that he chiefly insisted upon his right of inheritance and absolutely disown'd any Title by Election from the People F. I cannot deny the matter of fact concerning King Richard the III ds Deposing his Nephew and Usurping the Crown to have been very wicked and contrary to the received Law of England concerning the Succession at that time and likewise that by Bastardizing his Brother the late King's Issue without due course of Law and by attainting the blood of his other Brother the Duke of Clarence he would have made the World believe that he was Lawful Heir by right of blood yet you will not deny but that for all this he was so sensible of the weakness of his Title that though it is true his right by blood is declar'd in the first place in that Act of Recognition yet it is plain he would not rely upon that alone and therefore you see the Parliament there also insists upon his right by Election and Coronation which they would never have done had it not been that they looked upon it for good Law that whoever was Crowned King and call'd a Parliament and had his Title therein Recognized and Confirmed was thenceforth true and lawful King to all intents and purposes therefore though you have omitted it I shall proceed to shew you what this Statute also farther declares For after they had declar'd the said King's Title as grounded upon the Antient Laws and Laudable Customs of the Realm according to the Judgement of all such Persons as were learned in them they proceed thus Yet nevertheless for as much as it is consider'd that the most part of the People is not sufficiently learned in the aforesaid Laws and Customs whereby truth and right in his behalf of likelihood may be had and not clearly known to all People and thereupon put in doubt and question and over this how that the Court of Parliament is of such Authority that a Declaration made by the three Estates and by the Authority of the same maketh before all other things most faithful and certain quieting of Mens Minds and removeth the occasion of doubts and seditious Language therefore they also declare that he was the undoubted King Whence 't is evident that the reason of this Law supposeth that the Subjects in general are not capable of understanding the Laws and Customs upon which the Titles of our Kings depend and that the best satisfaction that the generality of the People can possibly have in those high Matters was to rest on the judgment and determination of the Kingdom declared by Act and Authority of Parliament and therein to acquiesce for the preventing Sedition so much as in Language therefore what I said before in the Case of King Stephen is also true in this quod fieri non debuit factum valet and all the Acts made in the Reign of this King Richard though â— horrid Usurper were never repeal'd but stand good at this day As to what you say concerning the manner of King Henry the VII ths coming to the Crown is also true but as for his Title to it by right of Succession that was certainly false for his Mother the Countess of Richmond was then alive by whom he Claim'd the Crown and liv'd divers years after he was King so that though I grant that it is recited in the Parliament Roll that he claim'd the Crown in Parliament tam per justum titulum haereditantiae quam per verum Dei judicium in tribuendo sibi victoriam de Inimico suo in campo tho' the latter of these Titles may be true Viz. the Conquest of King Richard especially when once he was confirm'd and recognized in Parliament yet that the former could not be so is plain from what I have now said so that it is certain that King Henry the VII ths best Title was neither by Inheritance nor Marriage with the Princess Elizabeth but by the Act of Parliament as appears by the unprinted Statute it self still upon the Roll which since you did not repeat I will the Title is Titulus Regis and it runs in these words To the Pleasure of Almighty God the Wealth Prosperity and Surety of this Realm of England to the singular comfort of all the Kings Subjects of the same and in avoiding of all ambiguities and questions be it Ordained Established and Enacted by Authority of this present Parliament that the inheritance of the Crowns of the Realms of England and of France with all the preeminence and dignity Royal to the same pertaining and all other Seignouries to the King belonging beyond the Sea with th' Appurtenances thereto in any wise due or pertaining be rest remain and abide in the Most Royal Person of our now Sovereign Lord King Henry the VII th and in the Heirs of his Body lawfully coming perpetually with the grace of God so to endure and in none