being in the Negative If the Number was so sacred what was the Constitution it self The very same King executed another of his Judges for passing Sentence of Death upon an Ignoramus return'd by the Jury and a third for condemning a Man upon an Inquest taken ex officio when as the Delinquent had not put himself upon their Tryal More of his Justice might be mention'd even in this very Case There was also a Law made in the time of Aetheldred when the Brittains and Saxons began to grow tame to each other and intercommon amicably that saith Let there be Twelve men of Understanding c. six English and six Welsh and let them deal Justice both to English and Welch Also in those simpler times If a Crime extended but to some shameful Pennace as Pillary or Whipping the last whereof as usual as it may be with us was inflicted only upon their Bond-men then might the Pennance be reduc'd to a Ransom according to the Nature of the Fault but it must be so assest in the Presence of the Judge and by the Twelve that is the Jury of Frilingâ— or Free-men Hitherto Stories tell us of Tryals by Juries and those to have consisted in general Terms of Free-men but PER PARES came after occasion'd by the considerable Saxons neglecting that Service and leaving it to the inferior People who lost the Bench their ancient Right because they were not thought Company for a Judge or Sherif And from the growing Pride of the Danes who slighted such a Rural Judicature and despised the Fellowship of the mean Saxon Free-men in publick Service for the wise Saxon King perceiving the Dangerous Consequence of submitting the Lives and Liberties of the Inferiour but not less useful People to the Dictates of any such superb Humour and on the other hand of subjecting the Nobler Sort to the Suffrage of the Inferior Rank with the Advice of his Wittagenmote provides a third Way most Equal and Grateful and by Agreement with Gunthurne the Dane setled the Law of Peers or Equals which is the Envy of Nations but the famous Priviledge of our English People one of those three Pillars the Fabrick of this ancient and Free Government stands upon This Benefit gets Strength by Time and is receiv'd by the Norman-Duke and his Successors and not only confirm'd in the lump of other Priviledges but in one notable Case for all that might be brought to prove that the fundamental Priviledges mention'd in the Great Charter 9. Hen. 3. were before it The Story is more at large deliver'd by our Learned Selden But thus The Norman Duke having given his half Brother Odo a large Territory in Kent with the Earldom and he taking Advantage at the King 's being displeased with the Arch-Bishop of Canterbury to posses himself of some of the Lands of that See Landfrank that succeeded the Arch-Bishop inform'd hereof petition'd the King for Justice secundum legem terrae according to the Law of the Land upon which the King summon'd a County-Court the Debate lasted three Dayes before the Free-men of Kent in the Presence of Lords and Bishops and others skilful in the Law and the Judgment passed for the Arch-Bishop UPON THE VOTES OF THE FREE-MEN By all which it is I hope sufficiently and inoffensively manifested that these three Principles 1. English men have individually the alone Right of Possession and Disposition of what they have 2. That they are Parties to the Laws of their Country for the Maintenance of that great and just Law 3. That they have an Influence upon and a real Share in the Judicatory Power that shall apply those Laws made have been the ancient Rights of the Kingdom and common Basis of the Government that which Kings under the several Revolutions have sworn to maintain and History affords us so many Presidents to confirm So that the Great Charter made in the 9th of Henry the 3d was not the Nativity but Restoration of ancient Priviledges from Captivity No Grant of New Rights but a New Grant or Confirmation rather of Ancient Laws Liberties violated by King John and gain'd by his Successor at the Expence of a long and bloody War which shew'd them as resolute to keep as their Ancestors had been careful to enact those excellent Laws And so I am come to the Great Charter which is comprehensive and repetitious of what I have already been discoursing and which I shall briefly touch upon with those successive Statutes that have been made in Honour and Preservation of it I shall rehearse so much of it as falls within the Consideration of the foregoing Matter which is a great deal in a little with something of the Formality of Grant and Curse that this Age may see with what Reverence and Circumspection our Ancestors govern'd themselves in Confirming and Preserving it Henry by the Grace of God King of England c. To all Arch-Bishops Earls Barons Sheriffs Provoses Officers unto all Bailifs and our faithful Subjects who shall see this present Charter Greeting Know ye that we unto the Honour of Almighty God and for the Salvation of the Souls of our Progenitors and our Successors Kings of England to the Advancement of Holy Church and Amendment of our Realm of our meer and free Will have given and granted to all Arch-Bishops c. and to all Free-men of this our Realm these Liberties underwritten to be holden and kept in this our Realm of England for evermore Though in Honour to the King it is said to be out of his meer and free Will yet the Qualification of the Persons he is said to grant the ensuing Liberties to shew that they are Terms of Formality viz. To all Free-men of this Realm for they must be free because of these Laws and Liberties since 't was impossible they could be any Thing but Slaves without them Consequently this was not an Infranchising but confirming to Free-men their just Priviledges The Words of the Charter are these A Free-man shall not be amerced for a small Fault but after the Quantity of the Fault and for a great Fault after the Manner thereof saving to him his Contenements or Freehold And a Merchant likewise shall be amerced saving to him his Merchandize and none of the said Amercements shall be assessed but by the Oath of good and honest Men of the Vicinage No Free-man shall be taken or imprison'd nor be disseized of his free hold or Liberties or free Customs or be outlaw'd or exiled or any other wayes destroyed nor we shall not pass upon him nor condemn him but by Lawful Judgment of his Peers or by the Law of the Land we shall sell to no Man we shall deny or defer to no Man either Justice or Right I stand amazed how any Man can have the Confidence to say These Priviledges were extorted by the Barons Wars when the King declares that what he did herein was freely or that they were New
its Creator so can there be No Representative without a People nor that People free which all along is intended as inherent to and inseparable from the English People without Freedom nor can there be any Freedom without something be Fundamental In short I would fain know of any Man how the Branches can cut up the Root of the Tree that bears them How any Representative that is not only a meer Trust to preserve Fundamentals the Peoples Inheritance but that is a Representative that makes Laws by Virtue of this Fundamental Law that the People hath a Power in Legislation the 2d Principle prov'd by me can have Power to remove or destroy that Fundamental The Fundamental makes the People free this free People make a Representative Can this Creature unqualifie its Creator What Spring ever rose higher then its Head The Representative is at best but a true Copy an Exemplification the free People are the Original not cancellable by a Transcript And if that Fundamental that gives to the People a Power of Legislation be not annullable by that Representative because it makes it what it is much less can that Representative disseize Men of their Liberty and Property the first Great Fundamental that is the Parent of this other which intitles to a Share in making Laws for the Preservation of the first inviolably Nor is the third other then the necessary Production of the two first to intercept Arbitrary Designs and make Power legal for where the People have not a Share in Judgment that is in the Application as well as making of the Law the other two are imperfect open to daily Invasion should it be our Infelicity to have a violent Prince for as Property is every day expos'd where those that have it are destitute of Power to hedge it about by Law-making so those that have both if they have not the Application of the Law but the Creatures of another Part of the Government how easily is that Hedge broken down And indeed as it is a most just and necessary as well as ancient and honourable Custom so it is the Princes Interest for still the People are concern'd in the Inconveniencies with him and he is freed from the Temptation of doing arbitrary Things and their Importunities that might else have some Pretence for such Adresses as well as from the Mischiefs that might ensue such Actions It might be enough to say that here are above 50 Statutes now in Print beside its venerable Antiquity that warrant and confirm this Legale judicium parium suorum or the Tryal of English Men by their Equals But I shall hint at a few Instances The first is The Earl of Lancaster in the 14th of Edw. 2. adjudged to dye without Lawful Tryal of his Peers and afterwards Henry Earl of Lancaster his Brother was restored the Reasons given were two 1. Because the said Thomas was not arraign'd and put to Answer 2. That he was put to Death without Answer or Lawful Judgment of his Peers The like Proceedings were in the Case of John of Gaunt p. 39. coram Rege And in the Earl of Arundel's Case Rot. Parl. 4 Edw. 3. n. 13. And in Sr. John Alce's Case 4 Edw. 3. n. 2. Such was the Destruction committed on the â—d Hastings in the Tower of London by Richard the 3d. But above all that Attainder of Thomas Cromwel Earl of Essex who was attainted of high Treason as appears Rot. Parl 32. Hen. 8. of which saith Chief Justice Cook as I remember Let Oblivion take away the Memory of so foul a Fact if it can if not however let Silence cover it 'T is true there was a Statute obtained in the 11th of Henry the 7th in Defiance of the Great Charter which authoriz'd several Exactions contrary to the free Customs of this Realm particularly in the Case of Juries both sessing and punishing by Justices of Assize and of the Peace without the fining and Presentment of 12 Free-men Empson and Dudley were the great Actors of those Oppressions but they were hang'd for their Pains and that illegal Statute repealed in the 1st of Henry the 8th c. 6. The Consequence is plain That Fundamentals give Rule to Acts of Parliament else why was the Statute of the 8th Edw. 4. c. 2. of Liveries and Information by the Discretion of the Judges to stand as an Original and this of the 11th of Henry the 7th repealed as illegal for therefore any Thing is unlawful because it transgresseth a Law But what Law can an Act of Parliament transgress but that which is Fundamental Therefore Tryal by Juries or Lawful Judgment of Equals is by Acts of Parliament confest to be a Fundamental Part of our Government And because Chief Justice Cook is generally esteem'd a great Oracle of Law I shall in its proper Place present you with his Judgment upon the whole Matter 5. These Fundamentals are unalterable by a Representative which were the Result and Agreement of English Free-men individually the ancienter Times not being acquainted with Representatives for then the Free-men met in their own Persons In all the Saxons Story we find no Mention of any such Thing for it was the King Lords and Free-men the Elders and People and at the Counsel of Winton in 855. is reported to have been present the Great Men of the Kingdom and an INFINIT MULTITUDE of other faithful People Also that of King Ina the common Council of the Elders PEOPLE of the WHOLE Kingdom It is not to be doubted but this continued after the Norman Times and that at Running Mead by Staâ—â—s the Freemen of England were personally present at the Confirmation of that great Charter in the Reign of King John But as the Ages grew more human with respect to Villains and Retainers and the Number of Free-men encreased there was a Necessity for a Representative especially since Fundamentals were long ago agreed upon and those Capital Priviledges put out of the Reach and Power of any litle Number of Men to endanger And so careful were their Representatives in the time of Edward the Third of suffering their Liberties and free Customs to be infring'd that in Matters of extraordinary Weight they would not determin till they had first return'd and conferr'd with their several Counties or Burroughs that delegated them Several Authorities in Confirmation of the Reasons So indubitably are these Fundamentals the Peoples Right and so necessary to be preserved that Kings have successively known no other safe or legal Passage to their Crown Dignity then their solemn Obligation inviolably to maintain them So sacred were they reputed in the Dayes of Henry the 3d that not to continue or confirm them were to affront God and damn the Souls of his Progenitors and Successors to Depress the Church and Deprave the Realm That the Great Charter comprehensive of them should be allow'd as the common Law of the Land by all Officers of Justice that is
the lawful Inheritance of all Commoners That all Statute-Laws or Judgments whatsoever made in Opposition thereunto should be null and void That all the Ministers of State and Officers of the Realm should constantly be sworn to the Observation thereof and so deeply did after-Parliaments reverence it and so care ful were they to preserve it that they both confirm'd it by 32. several Acts and enacted Copies to be taken and lodg'd in each Cathedral of the Realm to be read four times a Year publickly before the People as if they would have them more oblig'd to their Ancestors for redeeming and transmitting those Priviledges then for begetting them And that Twice every Year the Bishops apparel'd in their Pontificials with Tapers burning and other Solemnities should pronounce the greater Excommunication against the Infringers of the Great Charter though it were but in Word or Counsel for so saith the Statute I shall for further Satisfaction repeat the Excommunication or Curse pronounced both in the Dayes of Henry the Third and Edward the First The Sentence of the Curse given by the Bishops with the King's Consent against the Breakers of the Great Charter IN the year of our Lord 1253. the third day of May in the great Hall of the King at Westminster in the Presence and by the Consent of the Lord Henry by the Grace of God King of England and the Lord Richard Earl of Cornwall his Brother Roger Bigot Earl of Norfolk Marshal of England Humphry Earl of Hereford Henry Earl of Oxford John Earl Warren and other Estates of the Realm of England We Boniface by the Mercy of God Arch-Bishop of Canterbury Primate of England F. of London H. of Ely S. of Worcester E. of Lincoln W. of Norwich P. of Hereford W. of Salisbury W. of Durham R. of Excester M. of Carlile W. of Bath E. of Rochester T. of St. Davids Bishop apparell'd in Pontificials with Tapers burning against the Breakers of the Churches Liberties and of the Liberties and other Customes of this Realm of England and namely these which are contained in the Charter of the Common Liberties of England and Charter of the Forrest have denounced Sentence of Excommunication in this Form By the Authority of Almighty God the Father the Son and the Holy Ghost c. of the blessed Apostle Peter and Paul and of all Apostles and of all Martyrs of blessed Edw. King of England and of all the Saints of Heaven We Excommunicate and Accurse and from the Benefit of our Holy Mother the Church we sequester all those that hereafter willingly and maliciously deprive or spoil the Church of her Right and all those that by any Craft or Willingness do violate break diminish or change the Churches Liberties and free Customs contained in the Charters of the Common Liberties of the Forrest granted by our Lord the King to Arch-Bishops Bishops and other Prelates of England and likewise to the Earls Barons Knights and other Free-holders of the Realm and all that secretly and openly by Deed Word or Counsel do make Statutes or observe them being made and that bring in Customs to keep them when they be brought in against the said Liberties or any of them all those that shall presume to judge against them and all and every such Person before-mention'd that wittingly shall commit any Thing of the Premises let them well know that they incur the aforesaid Sentence ipso facto The Sentence of the Clergy against the Breakers of the Articles above-mentioned IN the Name of the Father the Son and the Holy Ghost Amen Whereas our Soveraign Lord the King to the Honour of God and of holy Church and for the common Profit of the Realm hath granted for him and his Heirs for ever these Articles above-xwriten Robert Arch-Bishop of Canterbury Primate of all England admonished all his Province once twice and thrice because that Shortness will not suffer so much delay as to give knowledge to all the People of England of these Presents in writing We therefore enjoyn all Persons of what Estate soever they be that they and every of them as much as in them is shall uphold and maintain these Articles granted by our Soveraign Lord the King in all Points And all those that in any Point do resist or break or in any manner hereafter Procure Counsel or in any wise Assent to Testifie or Break those Ordinances or go about it by Word or Deed openly or privily by any manner of Pretence or Colour we the aforesaid Arch-Bishop by our Authority in this Writing expressed do Excommunicate and Accurse and from the Body of our Lord Jesus Christ and from all the Company of Heaven and from all the Sacraments of Holy Church do sequester and exclude We may here see that in the obscurest Time of Popery they were not left without a Sence of Justice and the Papists whom many think no Friends to Liberty and Property under dreadful Penalties injoyn an inviolable Observance of this great Charter by which they are confirm'd And though I am no Roman Catholick and as little value their other Curses pronounc'd upon Religious Dissents yet I declare ingenuously I would not for the World incur this Curse as every Man deservedly doth that offers Violence to the Fundamental Freedoms thereby repeated and confirmed And that any Church or Church Officers in our Age should have so little Reverence to Law Excommunication or Curse as to be the Men that either vote or countenance such Severities as bid Defiance to the Curse and rend this memorable Charter in pieces by disseizing Free-men of England of their Freeholds Libâ—â—ties Properties meerly for the Inoffensive Exercise of their Coâ—science to God in Matters of Worship is a Civil sort of Sacriledge I know it is usually objected That a great Part of the Charter is spent on the Behalf of the Roman Church and other Things now abolisht and if one Part of the great Charter may be repeal'd or invalidated why not the other To which I answer This renders nothing that is Fundamental in the Charter the less valuable for they do not stand upon the Legs of that Act though it was made in Honour of them but the Ancient and primitive Institution of the Kingdom If the Petition of Right were repeal'd the great Charter were never the less in Force it being not the Original Establishment but a Declaration and Confirmation of that Establishment But those Things that are abrogable or abrogated in the great Charter were never a Part of Fundamentals but hedg'd in then for present Emergency or Conveniency Besides that which I have hitherto maintained to be the Common and Fundamental Law of the Land is so reputed and further ratified by the Petition of Right 3 Car. 1. which was long since the Church of Rome lost her Share in the Great Charter Nor did it relate to Matters of Faith and Worship but-Temporalities only the Civil Interest or Propriety of the Church But with what
Relief and by their Help freed all their Cities from the sharp Bondage of their Natural Lords The State of Sparta was grown Powerful and opprest the Thebans they though but a weak People yet whetted the Despair and the Prospect of greater Miseries by the Athenians deliver'd themselves from the Spartan Yoak Nor is there any other considerable Reason given for the Ruin of the Carthagenian State then Avarice and Severity More of this is to be found in W. Raileigh's History of the World lib. 3. who hath this witty Expression in the same Story l. 5. of a severe Conduct When a forced Government saith he shall decay in Strength it will suffer as did the old Lion for the Oppression done in his Youth being pintcht by the Wolf goar'd by the Bull and kickt also by the Ass This lost Caesar Borgia his New and Great Conquests in Italy No better Success attended the severe Hand held over the People of Naples by Alphonso and Ferdinand 'T was the undue Severity of the Sicilian Governours that made the Syracusans Leontines and Messenians so easie a Conquest to the Romans An harsh Answer to a petitioning People lost Rehoboam Ten Tribes On the contrary in Livy Dec. 1 l. 3. we find that Petilia a City of the Brutians in Italy chose rather to endure all Extremity of War from Hannibal then upon any Condition to desert the Romans who had govern'd them moderately and by that gentle Conduct procur'd their Love even then when the Romans sent them Word they were not able to relieve them and wisht them to provide for their own Safety N. Machiavel in his Discourses upon Livy p. 542. tells us that one Act of Humanity was of more Force with the Conquer'd Falisci then many violent Acts of Hostility which makes good that Saying of Seneca Mitius imperanti melius paretur They are best obeyed that govern most mildly 9. And lastly If these ancient Fundamental Laws so agreeable with Nature so suited to the Disposition of our Nation so often defended with Blood and Treasure so carefully and frequently ratified shall not be to our great Pilots as Stars or Compass for them to steer the Vessel of this Kingdom by or Limits to their Legislation no Man can tell how long he shall be secure of his Coat enjoy his House have Bread to give his Children Liberty to work for Bread and Life to eat it Truly this is to justifie what we condemn in Roman-Catholiks It is one of our main Objections that their Church assumes a Power of assuring People what is Religion thereby denying Men the Liberty of walking by the Rules of their own Reason or Precepts of Holy Writ To which we oppose both We say the Church is tyed to act nothing contrary to Reason and that Holy Writ is the declar'd fundamental Law of Heaven to maintain and not to usurp upon which Power is given to the true Church Now let us apply this Argument to our Civil Affairs and it will certainly end in a reasonable Limitation of our Legislators that they should not impose that upon our Understandings which is inconsistent with them to embrace nor offer any the least Violation upon the Fundamental Law of the Land from whence they derive their Power to prosper such Attempts Do the Romanists say Believe as the Church Believes Do not the Protestants and which is harder Legislators say so too Do we say to the Romanists at this rate Your Obedience is blind and your Ignorance is the Mother of Devotion Is it not also true of our selves Do we object to them This makes your Religion sluid as the Rivers one Thing to Day and another to morrow any Thing the Church saith or doth Doth not our own Case submit us to the like Variation in Civils Have we not long told them that under Pretence of obeying the Church and not controling her Power she hath raised a Superstructure inconsistent with that Foundation she pretends to build upon And are not we the Men in Civils that make our grand Priviledges to depend upon Men not Laws as she doth upon Councils not Scripture If this be not Popery in Temporals what is It is humbly beseecht of those Superiours that it would please them to consider what Reflection such severity justly brings upon their Proceedings and remember that in their ancient Delegations it was not to define resolve and impose Matters of Religion and sacrifice Civil Priviledges for it but to maintain the Peoples Properties according to the ancient Fundamental Laws of the Land and to super-add such Statutes only as were consistent with and preservative of those Fundamental Laws To conclude this Head My plain and honest Drift has all along been neither more nor less then this to show that Church Government is no real Part of the old English Government and to disintangle Property from Opinion the untoward Knot the Clergy for several Ages have tyed the which it is not only the Peoples Right but our Superiours Interest to undo for it gauls both People and Prince For where Property is subjected to Opinion the Church interposes and makes something else requisite to enjoy Property then belongs to the Nature of Property and the Reason of our Possession is not our Right by Obedience to the common Law but Conformity to Church-Law a thing dangerous to Civil Government for 't is an Alteration of old English Tenure a suffering the Church to trip up supplant the State a making People to owe their Protection not to the Civil but Ecclesiastical Authority For let the Church be my Friend and all is well make her my Foc and I am made her Prey Let Magna Charta say what she will for me my Horses Cows Sheep Corn Goods go first my Person to Goal next and here 's some Church Trophys made at the Conquest of a peaceable Dissenter This is that anxious Thing May our Superiours please to weigh it in the equal Scale of Doing as they would be done by Let those Common Laws that fix and preserve Property be the Rule and Standard Make English Men's Rights as inviolable as English Church Rights Disintangle and distinguish them And let not Men sustain Civil Punishments for Ecclesiastical Faults but for Sins against the ancient establisht Civil Government only that the Natures of Acts and Rewards may not be confounded so shall the Civil Magistrate preserve Law secure his Civil Dignity and Empire and make himself Belov'd of English Men whose Cry is and the Cry of whose Laws has ever been Property more sacred then Opinion Civil Right not concerned with Ecclesiastical Discipline nor forfeitable for Religious Non-conformity But though an inviolable Preservation of English Rights of all things best secureth to our Superiours the Love and Allegiance of the People yet there is something further that with Submission I offer to their serious Consideration which in the second place concerns their Interest and the Peoples Felicity and that is their Discord about
things for their Country And if we had no other Instance then our own Intervals of Connivance they were enough to satisfie reasonable men how much more Moderation contributes to publick Good then the Prosecution of People for their Religious Dissent since the one hath ever produced Trade and Tranquillity the other greater Poverty and Dissension The second Objection and by far the more weighty runs thus Obj. The King and Parliament are sworn to maintain and protect the Church of England as establisht c. therefore to tolerate other Opinions is against their Oath Answ Were the Consequence true as it is extreamly false it were highly unreasonable to expect Impossibilities at their Hands Kings and Parliaments can no more make Brick without Straw then Captives They have not sworn to do things beyond their Ability Had it been in His and their Time and Choice when the Church of England had been first disturbed with dissenting Opinions it might have reflected more colourably a kind of Neglect upon them But since the Church of England was no sooner a Church then she found some sort of Dissenters and that the utmost Policy and Severity of Q. Elizabeth King James and King Charles the 1st were not successful towards an absolute Uniformity Why should it reflect upon them that the Church of England hath not yet rid her self of Dissenting Parties Besides it is Notorious that the late Wars gave that Opportunity to Differing Perswasions to spread that it was utterly impossible for them to hinder much less during the several Years of the King's Exile at what time the present Parliament was no Parliament nor the generality of the Members of it scarce of any Authority Let it be considered that 't was the Study of the Age to make People Anti-Papistical and Anti-Episcopal and that Power and Preferment went on that side Their Circumstances therefore and their Ancestors are not the same They find the Kingdom Divided into several Interests and it seems a Difficulty insurmountable to reduce them to any one Perswasion wherefore to render themselves Masters of their Affections they must necessarily govern themselves towards them on a Ballance as before exprest otherwise they are put upon the greatest Hazards and extreamest Difficulties to themselves and the Kingdom and all to perform the Uncharitable Office of suppressing many Thousands of Inoffensive Inhabitants for the different Exercise of their Conscience to God This is not to make them resemble Almighty God the Goodness of whose Nature extends it self universally thus to narrow his Bowels and confine his Clemency to one single Party of Men It ought to be remembred that Optimus went before Maximus of old and that Power without Goodness is a frightful Sort of a Thing But Secondly I deny the Consequence viz. That the King is therefore oblieged to persecute Dissenters because he or the Parliament hath taken an Oath to maintain the Church of England For it cannot be supposed or intended that by maintaining Her they are to destroy the Rest of the Inhabitants Is it impossible to protect her without knocking all the rest on the Head Do they allow any to Supplant her Officers Invade her Livings Possess her Emoluments Exercise her Authority What would she have Is she not Church of England still in the same Regency invested with the same Power bearing the same Character What Grandeur or Interest hath she lost by them Are they not manifestly her Protector Is she not National Church still And are not the greatest Offices Civil Military and Maritin conferr'd upon her Sons And can any of her Children be so insensible as either to challenge her Superiours with Want of Integrity because they had not performed Impossibilities or to excite them to that Harshness which is not only destructive of many Thousands of Inhabitants but altogether injurious to their own Interest and dishonourable to a Protestant Church Suppose Dissenters not to be of the visible Church are they therefore unfit to live Did the Jews treat Strangers so severely that had so much more to say then her self Is not the King Lord of Wastes and Commons as well as Inclosures Suppose God hath elected some to Salvation doth it therefore follow he hath reprobated all the rest And because he was God of the Jews was he not therefore God of the Gentiles or were not the Gentiles his People because the Jews were his peculiar People To be brief They have answer'd their Obligation consented to severe Laws and commanded their Execution in that they have still preferr'd her above Every Interest in England to render her more Powerful and Universal till they have good Reason to be tired with the Lamentable Consequences of those Endeavours and to conclude that the Uniformity thereby intended is a thing Impracticable And I wonder that these men should so easily forget that great Saying of King CHARLES the 1st whom they pretended so often and with so much Honour to remember in his Advice to the present King where he saith Beware of Exasperating any Factions by the Crossness and Asperity of some Mens Passions Humours or Private Opinions imployed by You grounded only upon their Differences in Lesser Matters which are but the Skirts and Suburbs of Religion wherein a Charitable Connivance and Christain Toleration often Dissipates their Strength whom Rougher Opposition Fortifieth and puts the Despised and Oppressed Party into such Combinations as may most Enable them to get a Full Revenge upon Those they count their Persecutors who are commonly Assisted with that Vulgar Commiseration which attends all that are said to Suffer under the Common Notion of Religion So that we have not only the King's Circumstances but his Father's Counsel who saw not the End of one half of them defending a Charitable Connivance and Christian Toleration of Dissenters Obj. 3. But it may be further alledged This makes way for Popery or Presbytery to undermine the Church of England and mount the Chair of Power and Preferment which is more then a Prudential Indulgence of Different Opinions And yet there is not any so probable an expedient to vanish those Fears and prevent any such Design as keeping all Interests upon the Ballance for so the Protestant makes at least six Parties against Popery and the Church of England at least five against Presbytery and how either of them should be able to turn the Scale against five or six as free and thriving Interests as either of them can pretend to be I confess I cannot understand But if one only Interest must be tolerated which implies a Resolution to suppress the Rest plain it is that the Church of England ventures her single Party against six growing Interest and thereby gives Preshytery and Popery by far an easier Access to Supremacy especially the latter for that it is the Religion of those Parts of Europ which neither want Inclination nor Ability to prosper it So that besides the Consistency of such an Indulgence with the Nature of a Christian-Church there
other ill then that for Non-conformity in Matters of Religion they bear Indignities patiently To be short If all the Interruptions Informations Fines Imprisonments Exiles and Blood the great Enemy of Nature as well as Grace hath excited man in all Ages to about Matters of Worship from Cain and Abel's time to ours could furnish us with sufficient Presidents that the Design proposed by the Inflictors of so much Severity was ever answered that they have smother'd Opinions and not Inflamed but Extinguisht Contest it might perhaps at least prudentially give Check to our Expectations and allay my just Confidence in this Address But since such Attempts have ever been found Improsperous as well as that they are too Costly and that they have procured the Judgments of God the Hatred of Men to the Sufferers Misery to their Countries Decay of People and Trade and to their own Consciences an infinite Guilt I fall to the Question and then the Solution of it in which as I declare I intend nothing that should in the least abate of that Love Honour and Service that are due to you so I beseech you do me that Justice as to make the fairest Interpretation of my Expressions for the whole of my Plain and Honest Design is to offer my Mite for the Increase of your True Honour and my dear Country's Felicity The QUESTION WHat is most Fit Easie and Safe at this Juncture of Affairs to be done for Composing at least Quieting Differences for Allaying the Heat of Contrary Interests and making them Subservient to the Interest of the Government and Consistent with the Prosperity of the Kingdom The ANSWER I. An Inviolable and Impartial Maintenance of English Rights II. Our Superiours governing themselves upon a Ballance as near as may be towards the several Religious Interests III. A sincere Promotion of General and Practical Religion I shall briefly discourse upon these Three Things and endeavour to prove them a sufficient if not the only best Answer that can be given to the Question propounded Of ENGLISH-RIGHT THere is no Government in the World but it musteither stand upon Will and Power or Condition and Contract The one rules by Men the other by Laws And above all Kingdoms under Heaven it is England's Felicity to have her Constitution so impartially Just and Free as there cannot well be any thing more remote from Arbitrariness and jealous of preserving her Laws by which all Right is maintain'd These Laws are either Fundamental and so immutable or more Superficial and Temporary and consequently alterable By Superficial Laws we understand such Acts Laws or Statutes as are suited to present Occurrences and Emergencies of State and which may as well be abrogated as they were first made for the Good of the Kingdom For Instance Those Statutes that relate to Victuals Cloaths Times and Places of Trade c. which have ever stood whilst the Reason of them was in Force but when that Benefit which once redounded fell by fresh Accidents they ended according to that old Maxim Cessante ratione legis cessat lâ—x By Fundamental Laws I do not only understand such as immediately spring from Synteresis that Eternal Principle of Truth and Sapience more orless disseminated through Mankind which are as the Corner Stones of Humane Structure the Basis of reasonable Societies without which all would run into Heaps and Confusion namely Honeste vivers alterum non loedere jus suum cuique tribuere that is To live Honestly not to Hurt another and to give every one their Right Excellent Principles and common to all Nations Though that it self were sufficient to our present purpose But those Rights and Priviledges which I call English and which are the proper Birth right of English men may be reduced to these Three First An Ownership and Undisturbed Possession That what they have is rightly theirs and no Body's else 2dly A Voting of every Law that is made whereby that Ownership or Propriety may be maintained 3dly An Influence upon and a real Share in that Judicatory Power that must apply every such Law which is the Ancient Necessary and Landable Use of Juries if not found among the Brittains to be sure practised by the Saxons and continued through the Normans to this very day That these have been the Ancient and Undoubted Rights of English men as three great Roots under whose spacious Branches the English People have been wont to shelter themselves against the Storms of Arbitrary Government I shall endeavour to prove 1. An Ownership and Undisturbed Possession This relates both to Title and Security of Estate and Liberty of Person from the Violence of Arbitrary Power 'T is true the Foot Steps of the Brittish Government are very much over-grown by Time There is scarcely any thing remarkable left us but what we are beholden to Strangers for either their own Unskilfulness in Letters or their Depopulations and Conquests by Invaders have deprived the World of a particular Story of their Laws and Customs in Peace or War However Caesar Tacitus and especially Dion say enough to prove their Nature and their Government to be as far from Slavish as their Breeding and Manners were remote from the Education and greater Skill of the Romans Beda and M. West minster say as much The Law of Property they observed and made those Laws that concern'd the Preservation of it The Saxons brought no Alteration to these two Fundamentals of our English Government for they were a Free People govern'd by Laws of which they themselves were the Makers that is There was no Law made without the Consent of the People de majoribus omnes as Tacitus observeth of the Germans in general They lost nothing by transporting of themselves hither and doubtless found a greater Consistency between their Laws then their Ambition For the Learned Collector of the Brittish Councils tells us That Ethelston the Saxon King pleading with the People told them Seeing I according to your Law allow what is yours do ye so with me Whence Three Things are observable 1st That something was theirs that no Body else could dispose of 2dly That they have Property by their own Law therefore they had a Share in making their own Laws 3dly That the Law was Umpier between King and People neither of them ought to infringe the Law limited them This Ina the Great Saxon King confirms There is no Great Man saith he nor any other in the whole Kingdom that may abolish written Laws It was also a great part of the Saxon Oath administred to the Kings at their Entrance upon the Government to Maintain and Rule according to the Laws of the Nation Their Parliament they called Micklemote or Wittangemote it consisted of King Lords and People before the Clergy interwove themselves with the Civil Government And Andrew Horn in his Miror of Justice tells us That the Grand Assembly of the Kingdom in the Saxon time was to confer of the Government of
God's People how they might be kept from Sin in quiet and have Right done them according to the Customs and Laws Nor did this Law end with the Saxon Race William the Conqueror as he is usually called quitting all claim by Conquest gladly stoopt to the Laws observed by the Saxon Kings and so became a King by Leave valuing a Title by Election before that which is founded in Power only He therefore at his Coronation made a solemn Covenant to maintain the good approv'd and ancient Laws of the Kingdom and to inhibit all Spoil and unjust Judgment And this Henry the first his third Son amongst others his Titles mentioned in his Charter to make Ely a Bishoprick calls himself Son of William the Great who by Hereditary Right succeeded King Edward call'd the Confessor in this Kingdom An ancient Chronicle of Leichfield speaks of a Council of Lords that advised William of Normandy To call together all the Nobles and Wise Men throughout their Counties of England that they might set down their own Laws and Customs which was about the fourth year of his Reign Which implies that they had Fundamental Laws and that he intended their Confirmation as followeth And one of the first Laws made by this King which as a notable Author saith may be called the first Magna Charta in the Norman Times by which he reserved to himself nothing of the Free-men of this Kingdom but their Free Service in the Conclusion of it saith that The Lands of the Inhabitants of this Kingdom were granted to them in Inheritance of the King and by the Common Council of the whole Kingdom which Law doth also provide That they shall hold their Lands and Tenements well or quietly and in Peace from all unjust Tax and Tillage which is further expounded in the Laws of Henry the first ch 4. That no Tribute or Tax should be taken but what was due in Edward the Confessor's Time So that the Norman Kings claim no other Right in the Lands and Possessions of any of their Subjects then according to English Law and Right And so tender were they of Property in those times that when Justice it self became importunate in a Case no Distress could issue without publick Warrant obtained nor that neither but upon Three Complaints first made Nay when Rape and Plunder was rife and men seem'd to have no more Right to their own then they had Power to maintain even then was this law sufficient Sanctuary to all Oppressed by being publickly pleaded at the Bar against all Usurpations though it were under the Pretence of their Conqueror's Right it self as by the Case of Edwin of Sharnbourn appears The like Obligation to maintain this Fundamental Law of Property with the appendent Rights of the People was taken by Rufus Henry the 1st Stephen Henry the 2d Richard the 1st John and Henry the 3d which brings me to that Famous Law called Magna Charta or The Great Charter of England of which more anon it being my Design to shew That nothing of the Essential Rights of English men was thereby de novo granted as in Civility to King Henry the third it is termed but that they are therein only repeated and confirmed Wherefore I shall return to antecedent Times tofetch down the remaining Rights The second part of this first Fundamental is Liberty of Person The Saxons were so tender in the point of Imprisonment that there was little or no use made of it nor would they so punish their Bond-men vinculis coercere rarum est In case of Debt or Dammage the Recovery thereof was either by a Delivery of the just Value in Goods or upon the Sheriffs Sale of the Goods in Money and if that satisfied not the Land was extended and when all was gone they were accustomed to make their last Seizure upon the Party's Arms and then he was reputed an Undone Man and cast upon the Charity of his Friends for Subsistence but his Person never imprison'd for the Dâ—bt no not in the King's Case And to the Honour of King Alfred be it spoaken He imprison'd one of his Judges for Imprisoning a Man in that Case And we find among his Laws this Passage Qui immerentem Paganum vinâ—ulâ—s 〈◊〉 striâ—xerâ—t decâ—m solidis noxam sarcito That if a Man should imprison a Pagan or Heathen unjustly his Purgation of that Offence should be no less then the Payment of Ten Shillings a Sum very considerable in those dayes Nor did the Revolution from Saxon to Norman drop this Priviledge for besides the general Confirmation of former Rights by William surnamed the Conqueror his Son Henry the first particularly took such Care of continuing this part of Property inviolable that in his Time no Person was to be imprison'd for committing of Mortal Crime it self unless he were first attainted by the Verdict of Twelve Men. Thus much for-the first of my Three Fundamentals Right of Estate and Liberty of Person that is to say I am no man's Bond-man and what I possess is inviolably mine own 2. A Voting of every Law that is made whereby that Ownership or Propriety may be maintained That the second Fundamental of our English Government was no Incroachment upon the Kings of more modern Ages but extant long before the great Charter made in the Reign of Hen. 3. even as early as the Brittains themselves and that it continued to the time of Hen. 3. I shall prove by several Instances Caesar in his Commentaries tells us That it was the Custom of the British Cities to Elect their General and if in War why not in Peace Dion assures us in the Life of Severus the Emperor That in Brittain the People held a Share in Power and Government which is the modestest Construction his words will bear And Tacitus saith They had a Common Council and that one great Reason of their Overthrow by the Romans was their not Consulting with and Relying upon their Common Council Again Both ad and Mat Westminster tell us That the Brittains summon'd a Synod chose their Moderator and expell'd the Pelagian Creed All which supposes popular assemblies with Power to order National Affairs And indeed the learned Author of the Brittish Councils gives some Hints to this Purpose That they had a Common Council and call'd it KYFR-Y-THEN The Saxons were not inferiour to the Brittains in this Point and Story furnisheth us with more and plainer Proofs They brought this Liberty along with them and it was not likely they should loose it by transporting themselves into a Country where they also found it Tacitus reports it to have been generally the German Liberty like unto the Concie of the Athenians and Lacedemonians They call their Free-men Frilingi and these had Votes in the Making and Executing the general Laws of the Kingdom In Ethelbert's time after Austin's Insinuations had made his Followers a Part of the Government the Commune Concilium was