that they ever should desire this as a Priviledge and therefore it is onely since the neglect of this good old Law for Wages that so many Burroughs which Mr. Prin here mentions to have had Precepts again sent them of late Years to Elect Members after some Ages Intermission desired to have this Priviledge renewed to them as was done in the Case of those Burroughs he here mentions which yet certainly had been very gross and contrary to all common Right if the House of Commons had not then believed those Burroughs to have a had higher Right by Prescription than the Sheriffs Precepts gave them as for the last Rank viz. those Burroughs created by the Writs or Charters of our Kings I need say but little since this Author here grants such Creations to have been good before the Statute of 5th of Richard the 2d but not since tho I cannot see any Reason for it why he should give the Sheriffs such Power of making new Burroughs after this Statute in the time of Henry 6th as he does in the Case of Gatton and those other Burroughs he there mentions with it and yet deny this King the like Prerogative But yet for all this as I will not say there were none so are there but very few Examples of Charters that conferr upon any City or Burrough a Power to send Members to Parliament who had it not before by Prescription tho I grant that Priviledge may be mention'd in the Charter and so put it in the Power of the Major and Aldermen to Elect for the future when it was the whole Populace or all the Inhabitants of that Town that were to Elect before But to shew you from the very Statutes themselves that Mr. Prin has here cited that the Right of the Cities and Burroughs to appear in Parliament was not anciently looked upon to have had no other Original then the Favour of the Sheriffs Pray read these Clauses of the Statutes he has here quoted the first is that memorable Statute of the 5th of Richard 2d 2d Parl. c. 5. now mentioned and which I have already cited which expresly Enacts That all and singular Persons and Commonalties which from henceforth shall for time to come have Summons of Parliament shall come from henceforth as before to Parliaments in the manner as they be bound to do and hath been accustomed within the Realm of England of old time and whatever Person of the said Realm which from henceforth shall have the said Summons be he Archbishop Bishop Abbot Prior Duke Earl Baron Banneret Knight of Shire Citizen of City Burgess of Burgh or other singular Person or Commonalty do absent himself and come not at the said Summons except he may reasonably and lawfully excuse himself to our Soveraign Lord the King he shall be amerced and otherwise punished according as of old times hath been used to be done within the said Realm in the said Case and if any Sheriff of the Realm be henceforth negligent in making his returns of the Writs of the Parliaments or that he shall leave out of the said Returns any Cities or Burroughs which be bound and of old Times were wont to come to Parliament he shall be punished in the manner as was accustomed to be done in the said Case of Old Time in the French d' Anciente From which Statute we may draw these Conclusions First That the Knights Citizens and Burgesses are as supposed by this Statute to have a like Right to have Summons to Parliaments as hath been accustomed of Old Time as well as the Lords Spiritual and Temporal here mentioned Secondly That by these Words have been accustâ—med of Old Time or d' Anciente we are to understand a general Custom of the Realm Time out of Mind that is by Prescription so that if the Bishops Abbott and Temporal Lords are here acknowledged to have had a Right to sit in Parliament by Prescription so have the Commons likewise by the same Words equally applyed to all the Orders here mentioned Lastly That if the Sheriffs shall neglect in making Return to any such Cities and Burroughs which were thus bound to come to the Parliament of Old Time he shall be punished as hath been accustomed to be done in all time past or d' Anciente now pray tell with what colour of Justice the Sheriffs could be thus punisht if there had been no certain rule to know what Câ—ties and Burrough were bound to come to Parliament of Old Time but it had been wholy left at the Sheriffs Discretion which they should Summons and which they would omit let us next compare this with the Statute of 23d of Henry 6th c. 15. which Mr. Prin has here also given us reciting That divers Sheriffs of Counties have sometimes returned none of the Knights Citizens and Burgesses lawfully chosen to come to the Parliaments but such Knights Citizens and Burgesses have been returned which were never duely chosen and other Citizens and Burgesses than those which by the Mayors and Bailiffs were to the said Sheriffs returned and moreover by no Precepts to the Mayors and Bailifts or to the Bailiff or Bailiâ—â—i where no Mayor is for the Electing of Citizens and Burgesses to come to the Parliament and then appoints the Penalties for the said abuses and neglects Now pray let me ask you whether this bare Abuse of the Sheriffs and neglect of the duty of their Office here condemned by this Statute and for which the former Statute of Richard II. declares them punishable at Common law as this Act makes them liable to it by Statute Law could give them such an Arbitrary Power as this Author fancies much less can serve to corroborate his Opinion as he here supposes it does concerning the true original continuance discontinuance reviving and antiquating Parliamentary Cities and Burroughs not by Charters and Patents from the King or Prescription time out of mind but by the Sheriffs Arbitrary Power and Returns by the forecited general Clauses in the Writs But since I confess I have dwelt too long on my Answer to Mr. Prin's Arguments I shall conclude with only giving you one Record which I hope will sufficiently satisfie you that not only St. Albans but several other Antient Burroughs claimed to send Burgesses to Parliament by Prescription which appears by a Writ or Commission reciting a Peâ—ition of the Town of Barnstaple to King Edward the Third and his Council in Parliament which is to be found in the Patent-Rolls of the 17th of this King seting forth that the said Town had been a Free Burrough à tempore câ—jus contrarii memoria non exisâ—it and as such enjoyed divers Liberties and Free Customs by a Charter of King Athelstan and this among others ac quod ad singula Parliamenta nâ—stra dictorum Antecessorum nostrorum among which the said King Athelstan must certainly be reckoned for one duos Burgenses pro Communitate ejusdem Burgi mittere solebant and therefore
England and Scotland there was no difference in Point of Priviledges as to being taxed or having Voices in the great Council of the Kingdom between the higher Nobility such as had the Titles of Dukes Marquesses and Counts and simple Gentlemen whereas in England it has been always otherwise at least since the Conquest and the Earls and Barons had by 〈◊〉 Tenures Places as Lords or Peers in the great Council of the Kingdom and so made a distinct Body from the rest of the People whereas in other Countreys the higher Nobility and Gentry are reckon'd as all one Estate and therefore it was but Reason that the rest of the Inferior Nobility or Gentry should have their Representatives in this great Council or Parliament or otherwise they would have been as very Vassals as to their Estates to the great Barons and Tenants in Capite as the Boors in Germany or the Paisants in France were to their Lords by whom they were taxed aâ— their Pleasures which they never were in England as we can find either from History or Records So that tho I grant that it is the municipal Laws of each Kingdom or Nation that must determine what are the governing part of the People in those Countreys yet tho that was not absolutely the same in all of them as it is in England yet we find it so in the main and the Representatives of the Cities and Towns do sufficiently assert the Right of the Plebians or Common People who make the 3d Estate in those great Councils But I must here except Sweden in which it is certain that the meer Rusticks or Boors had always their own Deputies in their Dyets as well as the Cities and Towns and if Sweden had this priviledge I cannot see why the English Gentry and Yeomanry who make but one body of Commons might not have had the like till you can shew me more sufficient proofs to the contrary M Well Siâ— I shall consider of what you say but since it grows late that we may wind up this Conversation as fast as we can give me leave to tell you that tho' I should admit all that you have hitherto averred for truth and that we should grant the Commons of England to have been as ancient a part of the great Council or Parliaments as any of the other two what is that to the main Point in question between us viz that of Non-resisâ—ance of the King upon any account whatsoever or how can you justsfie those of the Clergy Nobility and Gentry of the Church of England for taking up Arms against the King and contributing so much as they have done to the driving him away and in bringing things to this confusion they are now in since let your Constitution of great Councils and Parliaments be never so ancient let us also for once suppose them as you do to have a share in the Legislative Power of the Nation yet how can this authorize them much less any private persons out of Parliament to take up Arms against the King or those commissioned by him since the whole current both of Common as well as Statute-Law runs directly against you and all with one consent assert that the disposal of the Militia or Military Force of the Kingdom has been even so absolutely in the King's power and at his disposal that no man can without being guilty of Treason take up Arms whether offensive or defensive without his Commission to authorize him to do it so that no Government in the World is more averse to all forcible Resistance than our own the King having been even from your time beyond memory so fully possest of the whole Militia or power of raising offensive or defensive Arms in this Kingdom that it is expresly forbid by the Statute of the 7th Ed. I. against coming to Parliaments and Treatises with force of Arms in which the King sets forth That in the last Parliament the Prelates Earls Barons and the Commonalry in Latine Communitas or Body of the Realm have said that to us i e. to the King it belongeth and our part it is through our Royal Seignâ—ury to defend that is in old French to forbid force of Armour and all other force against our Peace at all times when it shall please us and to punish them according to our Laws and Vsages of our Realm and hereunto they are bound to Aid us as their Soveraign Lord as oft as need shall be From whence you may observe that it is the King's Prerogative to forbid all manner of Arms or Armed force within the Realm so that no man can lawfully Arm himself without his Authority And this is further confirm'd by the Statute of 25 Ed. the Third concerning Treasons wherein it is declared without any excepted Cases to the contrary That to Levy War against our Lord the King in this Realm or to be adherent to the King's Enemies in his Realm giving them Aid or Comfort in the Realm or elsewhere is Treason And Sir Edward Coke upon this Statute saith thus That this was High Treason before by the Common Law for no Subject can Levy War within the Realm without Authority from the King and if any man Levy War to expulse Strangers to deliver men out of Prisons to remove wicked Councellors or against any Statute or to any other End pretending Reformation on their own heads without Warrant this is Levying of War against the King because they take upon them Royal Authority From which Statute as also from your own Oracles Sir Ed. Coke 's Interpretation of it you may observe that it is not only Treasâ—n to make War against the King's Person but to take Arms to make any Reformation or Alteration in Church or State without the King's Authority nor can any Subject of England justifie the taking Arms upon any account whatsoever unless it be by the King's Commission and therefore all the Judges of England in the Case of Dr. Story who was Executed for Treason in the Reign of Queen Elizabeth did with one consent agree that the very Consultation concerning making War against the Queen shall be interpreted a making War against her Person and supposes a design against her Life So that nothing seems plainer to me than that by the Ancient as well as Modern Laws of England all defensive as well as offensive Arms are expresly forbidden and condemned F. I think I shall be able to make out notwithstanding what you have now said that all Resistance of the King or those commissioned by â—im is so far from being Treason as you suppose that it is every mans duty to oppose him in case he goes about to set up instead of a Legal Monarchy a Tyrannical Arbitrary Power in this Nation since this is but to preserve the Original Constitution of Parliaments which in some cases cannot be maintained without such a Resistance be allowed But to proceed to the Authorities you bring from our Statutes as for the first you urge
his Father and to be Exiled from the Realm of England and that therefore the King that now is and the Queen his Mother being in so great Jeopardy in a strange Countrey and seeing the destructions and disinherisons which were notoriously done in England upon holy Church the Prelates Earls Barons and the Commonalty of the same by the said Spencers Robert Baldock and Edmund Earl of Arundel by the Encroachment of Royal Power to themselves and seeing they might not remedy the same unless they came into England with an Army of Men of War and have by the Grace of God with such puissance and the help of the great Men and Commons of the Realm vanquished and destroyed the said Spencers c. therefore our Soveraign Lord the King by the Common Council of the Prelates Earls Barons and other great Men and of the Commons of the Realm have provided and ordained c. as follows That no great Man nor other of what Estate Dignity or Condition soever he be that came in with the said King that now is and with the Queen in Aid of them to pursue their said Enemies and in which pursuit the King his Father was taken and put in Ward c. shall be impeached molested or grieved in person or in goods in any of the King's Courts c. for the pursuit and taking in hold the body of the said King Edward nor for the pursuit of any other persons not taking their goods nor for the death of any Man nor any other things perpetrated or committed in the said pursuit from the day of the King and Queens Arrival until the day of the Coronation of the said King This Act of Indemnity is so full a Justification of the necessity and lawfulness of the Resistance that was then made against King Edward the Second and his wicked Councellors the Spencers that it needs no Comment And tho' King Edward the Third took warning by the example of his Father and was too wise then to follow the like Arbitrary Courses yet Richard the Second his Grandson being a wilful hot headed young Prince fell into all the Errours of his great Grand-father and found the like if not greater Resistance from his Nobility and People for when he had highly mis-governed the Realm by the Advice of his favourites Alexander Arch-Bishop of York the Duke of Ireland and others a Parliament being called in the 10th Year of his Reign the Government of the Kingdom was taken out of their hands and committed to the Bishops of Canterbury and Ely with Thomas Duke of Gloucester the King's Uncle Richard Earl of Arundel and Thomas Earl of Warwick and nine or ten other Lords and Bishops but notwithstanding this the King being newly of Age refused to be governed by the said Duke and Earls but was carried about the Kingdom by the said Duke of Ireland and others to try what Forces they could raise and also to hinder the said Duke and Earls from having any Access to him But see what followed these violent and arbitrary courses as it is related by Henry de Knighton who lived and wrote in that very time and is more exact in this King's Reign than any other Historian he there tells us that when Thomas Duke of Gloucester and the other Bishops and Earls now mentioned sound they could not proceed in the Government of the King and Kingdom according to the Ordinance of the preceding Parliament through the hinderance of Mich. de la Poole Robert de Vere Duke of Ireland Nich. Brembar and Robert Tresillian Chief Justice and others who had seduced the King and made him alienate himself from the Council of the said Lords to the great damage of the Kingdom whereupon the said Duke of Gloucester and the Lords aforesaid with a great Guard of Knights Esquires and Archers came up towards London and quartered in the Villages adjacent and then the Arch-Bishop of Canterbury the Lord Lovat the Lord Cobham the Lord Eures with others went to the King in the name of the the Duke and Earls and demanded all the persons above-mentioned to be banished as Seducers and Traitors to the King and all the Lords then swore upon the Cross of the said Arch-Bishop not to desist till they had obtained what they came for the conclusion of this Meeting was that the King not being able to withstand them was forced immediately to call that remarkable Parliament of the 11th Year of his Reign in which Mich. de la Poole and the Duke of Ireland were attainted and Tresillian and divers other Judges sentenced to be hanged at Tyburn upon the Impeachment of the said Duke of Gloucester and the Earl of Arundel for delivering their Opinions contrary to Law and the Articles the King had not long before proposed to them at Nottingham I shall omit the Resistance which Henry Duke of Lancaster made after his Arrival by the Assistance of the Nobility and People of the North of England against the Arbitrary Government of this King being then in Ireland not only because it is notoriously known but because it was carried on farther than perhaps it needed to have been and ended in the Deposition of this King Only in the first Year of Henry the 4th there was the same Act of Indemnity almost word for word passed for all those that had come over with that King and had assisted him against Richard the Second and his evil Councellors as was passed before in primo of Edward the Third I shall not also insist upon the Resistance of Richard Duke of York in the Reign of King Henry the 6th who took up Arms against the Evil Government of the Queen and her Minion the Duke of Suffolk because you may say that this was justifiable by the Duke of York as right Heir of the Crown nor will I instance in the Resistance made by the Two Houses of Parliament during the late Civil Wars in the time of King Charles the First since it is disputed to this day who was in the fault and began this Civil War whether the King or the Parliament Only thus much I cannot omit to take notice of that the King in none of his Declarations ever denied but that the People had a right to Resist him in case he had made War upon them or had introduced Arbitrary Government and expresly owned in his Answer to one of the Parliaments Messages that they had a sufficient power to restrain Tyranny but denied himself to be guilty of it and still asserted that he took up Arms in defence of his just Right and Prerogative to the Command of the Militia of the Kingdom which they went about to take from him by force M. I have with the greater patience hearkened to your History of Resistance in all the Kings Reigns you have mentioned because I cannot desire any better Argument to prove the unlawfulness of such Resistance than those Acts of Pardon and Indemnity You cannot but confess have
still followed it even when the Barons proved most fortunate as in that of Henry the Third to the Earl of Gloucester and those of his Party and that of Edward the First to the Constable and Mareschal and their followers nay after the former Kings had been unjustly deposed we still find the Actors and Complices of such wicked Actions did not think themselves safe till they had an Act of Indemnity passed to them of all the Robberies and Murders they had committed in the War as your self have recited in the two Acts of Parliament in the Reigns of Edward the Third and Henry the Fourth Now if these Resistances had not been downright Rebellions in the Eye of the Law to what purpose were these Acts of Indemnity passed since no man needs a Pardon but rather merits a Reward for defending the Government Establisht according to Law F. In answer to this Objection for which I am already prepared since I foresaw you might make it pray give me leave to ask you whether you can find the words Treason Rebellion Robbery or Murder in any of these Acts of Pardon and if you cannot whether you think Treason or Murder could be pardon'd by general words or not and the reason why I ask this Question is because if they could not then the consequence will be that none of these Parliaments supposed that the Resistance that had been made or all the other Acts performed in pursuance of such Resistance were looked upon by those that had done them no nor by the Parliament it self to be Treason Rebellion or Murder since certainly those that were Actors in such Resistances and taking up of Arms having the power in their hands would not have fail'd to have had those words inserted into those Acts of Indemnity if they had supposed themselves guilty of those Crimes M. I cannot say that the words Treason and Rebellion or Murder are expresly mentioned in these Statutes since even the Actors in them did not think it for their Credits to own themselves to have been guilty of any such Crimes yet all the particular words and expressions in these Acts amount to the very same thing for the taking up Arms with one that is not King against him that is the actually seizing upon his Person and keeping him in hold was Treason at Common Law before the Statute of the 25th of Edward the Third and is not taking mens Goods by force and destroying their Persons in time of Peace Rebellion and Murder at Common Law So that if these were the Facts they had been guilty of and if these Acts were Treason Rebellion Robbery and Murder then certainly all Treasons Rebellions Robberies and Murders are likewise pardoned by those Statutes And tho' 't is true the Law is now that no pardon of Treason or Murder shall be good unless those Offences are particularly named yet this was so ordained by the Statute of the 13th of Richard the Second by which it is particularly provided that no pardon shall be allowed before any Justice for the death of a Man c. Treason c. unless the same Murder Treason c. be specified in the said Charter before which Statute Sir Edward Coke in his second Instit. tells us that by the pardon of all Felonies Treason was pardoned and so was Murder c. F. I cannot deny but that these Facts you mention were Treason in strictness of Law before the making that Statute yet does it not follow that even these may be in some cases justifiable as well as binding a King when he is out of his Wits if the publick Peace of the Kingdom and preservation of the Government according to the Fundamental Laws of the Kingdom require it Thus for example suppose King Iohn after he had made actual War upon his Barons and People had happened to have his Forces routed in the Field can any one believe that it had been unlawful for them to have secured his Person to prevent his making a new War upon them and yet this by the Letter of the Law had been Treason Now there are many actions which in strictness of Law are Treason yet being for the publick defence and security of the Nation deserve a pardon of course Thus if Forein Enemies should Land in England and a Neighbouring Nobleman or Gentleman who has no Command over the Militia of the Countrey should raise on the sudden such a Force of his Tenants and Neighbours as were sufficient to make ahead against them till the Militia of the Countrey could come in to their Assistance tho' this taking up of Arms without an Express Commission for it be a high Misdemeanour â—ay Treason according to your Principles yet I suppose you will not deny but that the persons engaged in it do not only deserve pardon but thanks for their Courage and so speedy Assistance of the Government And I remember I have read a famous Instance of this kind that when the Traytors concerned in the Powder-Plot found themselves discovered they fled into Warwickshire and thence into Worcestershire and were pursued and taken by the High Sheriff of that County in Staffordshire which tho' a great Misdemeanour since no Sheriff can justifie carrying the Posse Comitatus out of the County yet this was so well taken that King Iames the First rewarded him and as I take it Knighted him for his pains But to apply this to the matter in dispute tho' it is true taking and imprisoning the King's Person is Treason in the Eye of the Law yet as in the case of Edward the Second if the Government could not be restored to its pristine State without that extremity it must and will ever deserve a pardon and therefore you see the Parliament in the first of Edward the Third not only pardons but justifies the doing of it because done for that end So likewise the Statute of the 11th of Richard the Second Chap. 1. not only indemnifies but justifies the Duke of Gloucester the Earls Lords and all others of his Party for taking up Arms against the persons above-mentioned tho' maintain'd and back'd by the King himself as being done for the weal and safeguard of the Kingâ— the maintenance of the Crown and Salvation of the Realm So much for the Point of making War against the King and imprisoning his Person so that if taking up Arms for the safeguard of the King and Salvation of the Kingdom were just and necessary to be done the consequences of it viz. the taking of mens Goods and killing of these that resist them cannot be Robbery or Murder because done in a State of War which can never be carried on without such Acts of Hostility And therefore you see in the Act of Pardon to the Earl of Gloucester and to the Londoners granted in Parliament of the 51th of Henry the Third which I have now cited those that took part with thâ— King are as expresly pardoned as those that were with the
voluntate Regis teâ—â—ere praesumptum est sed quod consilio Magistratuum suoâ—an Rege Authoritatem praesâ—aâ—â—e babâ—â—a super hoâ— deliberatâ—one So that you see in the time when this Author Writ the King could do no more by his Prerogative then the Law allowed him to do and though it is true it is his Will and Authority that gives Vigour to the Law yet this only as it is declared in Parliament and in those Acts which had before received the Consent of his Great Council here called the Kings Magistrates And therefore you have done what you can to confound the difference between the Kings Declaration or Writs Explaining and Enforcing the Common Laws of England or else Interpreting former Acts of Parliament already made which was a Prerogative often exercised by the King and his Council in Parliament which then consisted of all or most of the Iudges and Great Officers of the Kingdom of which I shall speak more at large by and by And I confess we are much in the Dark because our Ancient Parliament-Rolls are almost all lost and consequently the Statutes therein contained So that we have almost nothing left of them but such Copies or Remains as were preserved by Iudges and Lawyers in those and Succeeding times whilst they were still in Being And therefore I think I may at present boldly affirm that if that which you call the Statute of Ireland was not founded upon some former Statute not now in being it was no Act of Parliament at all but only the King 's Writ to the Chief Justiciar of Ireland Commanding and Enforcing the Common Law of England in the Case of Coparceners to be observed in Ireland The like I may say to the Explanation of the Statute of Gloucester which might be no more than the Interpretation of the King and his Iustices of the Sense of some Articles in that Statute and this for its Greater Authority Exemplified under the Great Seal and so sent to all the Courts at Westminster and often to the Sheriffs of all the Counties in England yet without altering that Statute in some Points as you would have it The like I may say of the Statute of Acon Burnel and therefore it is very rashly done to conclude that though we have not the Original Acts and Records of Parliament of that time that therefore such Statutes were made by the King alone in his Privy Council So that I must still continue of the same Opinion with the Great Selden in this Point who in his Marâ— Clausum tells us It is most certain that according to Ancient Custom no Answer is given either by the King or in the King's Name to any Parliamentary Bill before that Bill whether it be brought in first by the Lords or by the Commons hath past both Houses as is known to all that are versed in Parliamentary Affairs Which if it hath bin the Fundamental Law of this Kingdom it signifies very little in what Form the Law is express't whether in the King's Name only as giving the last Assent thereto or else as his Concession to the Lords and Common's Petition as long as you grant that their Assent was necessary For sure whosoever Petitions another to do a thing which he cannot impose upon him without his Request must give his consent to the Doing it unless you can prove that it could be done whether the Petitioner would or not And this by the way will serve to answer an Objection which though you insist much upon it is scarce worth it viz. The King's Answer to the Lords and Commons Petition of Right which was indeed no Grant or Concession of any New Rights or Priviledges from the King to the People But only a Declaration of several Ancient Rights and Liberties of the Subjects which had been very much broken and infringed of late and therefore the King's Answer was very proper soit Droict faict comme est desire The next mistake you fall into proceeds from your confounding the King 's extraordinary Council in Parliament with the King 's Special or Privy Council and in a manner making this a fourth Estate by whom as well as by the Lords and Commons Laws are often made whereas indeed neither the one nor the other is true For tho I grant that there is often made mention in our Ancient Statutes or Records of the Kings Council yet this is not to be understood of his Privy Council but of a Special Council with whom our King 's formerly sate during the time of Parliament and before whom and to whom we find by divers Records that both the Lords and Commons did often Petition as you your self do truly affirm But that this was not the King 's Privy Council but another quite different from it And to which it seems to me that Fleâ—a refers in his 2d Book Cap. 2. Habet enim Rex curiam suam in Concilio suo in Parliamentis suis praesentibus Praelatis Comit. c. And this Council consisted of all the Great Officers of the Kingdom viz. The Lord Treasurer Chancellor and Keeper of the Privy Seal Master of the Wardrobe the Judges of the King's Bench Common Pleas Barons of the Exchequâ—r Justices Itinerant and Justices of Assizes with such of the Dignified Clergy as it pleased the King to call Which that they were altogether distinct from the King 's Privy Council appears plainly by this that the later never included all the Iudges nor did the Privy Council ever exercise any Iudicial Authority in Parliament as this Council did in those days but that this Council consisted of the Parties above mentioned see the Statute of Escheators made 29 Edw. I. and in the Placita Parliamentaria of that year the Statute runs thus Per Consilium Regis concordatum est coram Domino Rege ipso consentiente c. But in the Close Roll of this year it is clearly explained who were of this Council their Names being there particularly recited viz. all the Great Officers above-mentioned together with the Iudges of the King's Courts and Justices Itinerant c. Which is likewise explained by the Parliament Roll 9. Edw. 2. Rex voluit quod Dominus Cancellarius Thesaurarius Barones Soaccarii Iustiâ—iarii alii de Consilio Domini Regis Londin existente convenirent I could give you many more Examples of this kind but I shall give you but two more to prove that this Council in Parliament could not be the King 's Ordinary Privy Council The first is in Placit Parliament 2 Edw. 3. in a Cause betwixt Thomas Fitz-Peter and Alienora Wife of Iohn de Mowbray Coram Rege The Record is long but concludes thus to the Justices Et si difficultas aliqua subfuerit quare praemissa facere non possâ—tis tunâ— placitum illâ—â—d usque in Prox. Parliamentum nostrum udjornetis ut ibidem â—unc inde fieri valeat quod de Consilio nostro fuerit faciendum By which we may very
to the Pope But Anno 40 Edw. III. when the Pope demanded the Arrears of this Tribute from the King the Prelates Dukes Count Barons and Commons upon their full deliberation in Parliament resolved with one accord that neither the King nor any other could put the Realm nor People thereof into such subjection sanz assent de eux without their assent viz. as well of the Commons as of the Lords and that it appeared by many Evidences that if he had so done it was done sanz lour assent and contrary to his Coronation Oath c. Now what can be more plain than that above three hundred years ago there was not the least dispute that the Commons of England of which the Citizens and Burgesses were then undoubtedly a part ought to have been present in the Commune Concilium Regni or Parliament of King Iohn's Reign and to have assented to that King's Resignation to make it legal and valid as well as the Prelates Earls and Barons M. As for this Argument I need trouble my self no further than to give you the Dr's Answer in his own words viz. All that the Resolution of this Parliament in this case proves is that King Iohn could not subject himself his Realm or People without their Assent but proves not who they were that in such Cases at that time gave or denied their Assent or how they did it or whether 153 years before this Resolution the Commons were represented by Knights Citizens and Burgesâ—es as at this day The Prelates and Barons gave their Answer first that such a Subjection could not be made without their Assent and then the Commons were asked what their Thoughts were and they answered in the same manner and in the same Words the Barons had done and when they answer altogether They do it in the same form of Speech conceived first by the Barons without any Consideration whether the Commons were the same Body of Men at the time of Executing the Charter of King Iohns Subjection c. as at that present or no. F. I must freely tell you I am not at all satisfied with this Reply of the Drs. for if there is no heed to be taken of the House of Commons Answer to the Pope given in so solemn a manner as this was there is no Credit to be given to any thing they could say if they are once suppos'd to speak like Parrots by Roat and only as they were taught by the Lords without any Consideration of the Truth or Falshood of what they averred And tho the first Proposal of this matter was by the King to the Lords yet the Pope then threatning to Excommunicate the King and put the whole Realm under an Interdict it was certainly the Interest as well of the Commons as the Lords to avoid the blow by a wary and true Answer to the Popes demands for had their Answer been so idle and frivolous as you would make it it had been advantage enough for the Pope to have return'd in answer to this Letter had what the Dr. alledges been true that the upstart House of Commons had nothing to do to meddle or treat of any such matter since they were none of the parties to the agreement nor one of the Estates at that time when King Iohn resign'd his Crown and made himself and Kingdom Tributary to his Holinesses Predecessours nor was the space of an hundred fifty three years from the time of King Iohn to the 40th of Edward the 3d so far beyond the memory of man as that so memorable a Transaction could not be well known to the Pope as well as to the House of Commons then in being since the making them a 3d Estate fell out but in the time of all their Grandfathers at farthest so that it is scarce possible that the memory of so remarkable a Transaction of which the whole World then rang should be lost in two or three Generations But I shall now proceed to shew you that as it was the express Judgment both of the Lords and Commons that King Iohn could not make the Kingdom Tributary to the Pope without their Consent in Parliament so was it the Judgment also of the whole House of Commons in the 2d of Henry the 5th and admitted by that Noble Prince and the House of Lords that they had ever been a member of Parliament and that no Statute or Law could be made without their Assent as appears by a Petition or Protestation presented by the said Commons to the King in Parliament a Copy of which I shall now read to you as far as it concerns the matter in Question Our Soveraign Lord your humble and trewe Lieges that ben come for the Comune of your Lond bysechin unto your riht twissness that soo as hit hath ever be thair Libertie and Freedom that there should noo Statute noo Law be made of less than they yaf thereto their Assent considering that the Comune of your Lond the which that is and ever hath be a member of your Parlement been as well Aslentirs as Petitioâ—ers that fro this time forward by Compleint of the Comune of eny Mischâ—ef asking remedy by Mouth of their Speaker for the Commons outher else by Petition written that there never be no Law made thereupon and ingressed as Statute and Law neither by Additions neither by Diâ—â—inutions by no manner of Term â—e Terms the which that should change the Sentence and the intent asked by the Speakers Mouth or the Petitions by foresaid â—even up in 〈◊〉 by the foresaid without Assent of the foresaid Comune c. This Petition is so plain that it needs no Comment therefore pray tell me what you think of it M. In the first place give me leave to tell you that I do not find at all by the Kings Answer to this Petition that the King allowed the matter of Fact therein set forth to be true but rather the contrary as you may see by the Answer it self in these words the King of his Grace especial granteth that fro hensforth nothing be enacted to the Petâ—â—ions of his Comune that be contrary of their asking whereby they should be bound without their Assent saving alway to our Leige i. e. Royal Lord his Real Prerogatys to grant and deny what him lust of their Petitions and askings aforesaid And I shall farther give you the Drs. Answer to this Argument which is to this Effect The design of this Petition was not to set forth the Antiquity of their Existence but their Right that nothing might be enacted without their Assent contrary to their intent and liking and to shew that it was never done since the Commons were a third Estate or as they say a Member of Parliament therefore 't is needless to prove that which no Body denies that the Assent of the Commons was then and is now required to the making of all Statutes and Laws but pray give me leave to ask you with the Dr
since by the subsequent words in this Oath it is restrained to the taking Arms by his Authority against his Person or those Commissioned by him which shews that nothing here is intended to be forbidden but taking up offensive Arms upon popular pretences without and against the Authority of the Law which is further explained in another Test by the Authority of both Houses of Parliament Thirdly 'T is observable this is but a Test upon some that were to come into Offices and can by no means make any change in the Ancient Law which cannot be changed by Implication nor does this amount to so much the first part of this Oath requiring only that the party admitted into Office shall so declare and believe and tho' the second Clause call it a Traiterous Position yet this is restrained only to these two particulars That Arms may not be taken up by the King's Authority against his Person or those Commissioned by him which can have reference to nothing but that distinction taken up in the late Times of Civil War when the Parliament pretended to take Arms and grant Commissions in the Name of King and Parliament by vertue of that Authority which they supposed he left with them at Westminster so that this Clause can by no means exclude any Arms made use of for Legal defence according to Law Fourthly and lastly Tho' the words against those Commissioned by him may seem to extend the matter further and is mistaken by some as if â—t required at least Passive Obedience to all Commissions of the King tho' never so illegal yet there is not the least colour for it since nothing is a Commission but the King 's Legal Command or Authority pursuant to some Law and for putting the same in Execution which is the Legal definition of a Commission and when this Test was first brought in to the second Parliament of King Charles the 2d and that the word Legal was offered to be added to the Bill upon a long Debate it was only left out because it was declared by all the Lawyers in the House even by Sir Hen. Finch then the King's Sollicitor and agreed to by the whole House that it was clearly implied and could bear no other construction but that all Illegal Commissions were Null and void and in no Legal sense could be called Commissions so that taking up Arms in the defence of the Law and pursuant thereunto cannot in any wise be called a taking Arms against the King's Person or those Commissioned by him and farther that by the words in pursuance of such Military Commissions are meant such as are warranted by that Act such as the King may issue by his Royal Authority which is bounded by Law and consequently cannot grant any Commissions but what are according to Law so that if these Commissions are granted to persons utterly disabled by Law to take them as all are that will not take the Test appointed by the Act of the 25th of K. Charles the Second intituled An Act to prevent the dangers that may arise from Popish Recusants as also all Commissions to do any Illegal violent action are absolutely void and consequently may be resisted or else our Magna Charta with all the other Laws that establish Liberty and Property as also our very Religion it self Established by Law may be either undermined by the King 's new Dispensing Power or else subverted by open force and every Commission Officer in a Red Coat will be as sacred and irresistible as the King himself But to conclude That the Instances I have given that the King's Commission may be abused to the destruction of the Nation nay of the whole Parliament are not so unlikely and remote as you imagine Pray let me put you in 〈◊〉 that as for that pretended Commission to Sir Phelim Oneal tho' it is true it did prove afterwards to be forged yet was it not known to be so till long after and therefore having all the signs of a true Commission under the King 's great Seal the poor Protestants in Ireland were to have had their Throats cut according to this Oath before ever they could be satisfied whether it were true or not But that a Popish King persecuting and destroying his Protestant Subjects only for matters of Religion is not so improbable a thing as you would have it the French King 's late Dragooning Imprisoning and sending to the Gallies all that refused to renounce Heresie as they call it and subscribe to the Articles of the Romish Religion has given us but too sad and recent an example and how you can assure me that the King acting upon these very Principles and being governed by like Confessors will never do the same things I should be glad to receive some better satisfaction than his bare word to the contrary Nor yet is my other Instance of its being left according to your Doctrine in the King's power to make a violent assault upon the persons both of the Lords and Commons assembled in Parliament whenever he pleased without any Resistance whatsoever so remote and improbable as you are pleased to make it since you may find it still upon Record among the Articles exhibited in Parliament against Robert de Vere Duke of Ireland Robert Tresilian Chief Justice and Sir Nicholas Brembur in the Parliament of the 11th of Richard the Second which I have already mentioned the 15th Article of which was That they by their false Council had caused the King to command the said Nicholas being then Mayor of London suddenly to rise with a great power to kill and put to death the said Lords viz. Thomas Duke of Gloucester and the other Lords there named and the Commons viz. of the Parliament of the 10th of this King who were not of their Party and Conspiracy for the doing of which wickedness the said grand Traitors above-said were parties and presents to the destruction of the King and his Realm So that if this Treason had not been discovered and that no private persons might then resist those Commissioned by the King it would have been Treason according to your principles for the said Lords and Commons to have resisted those that were thus sent to assault them and take away their Lives and what hath once happened 't is not impossible but it may happen again And we may remember how about little more than 30 years since that the K. of Denmark shut up the Senators and Nobility of the great Council of that Kingdom in Coppenhagen and threatned them with Death or Imprisonment if they refused to give up all their Liberties and from an Elective King make him and his Successors absolute hereditary Monarchs as they are at this day by means of the Bishops and Clergy of that Kingdom who then basely gave up and betrayed the Liberty of their Countrey and what they have now got by it they best know therefore this is a thing to be considered as a
appears by the Title to the Latin Customs of Normandy which are at the End of the Old French Edition of the Constumiers de Normandy Printed at Râ—aâ— 1515. The Title of which is thuâ— Iura Consuetudines Ducatus Noâ—maniae The Prologue to which begins thus Quoniam Leges Instituta quae Normanorum Principes non sint magna provisionis Industria Praelatorum Comitum Baronum nec non Caeterorum virorum prudentum consilio Assensu ad salutem humani foederis Statuerunt Whereby it is apparent that the Antient Laws of Normandy were made by the Advice and Consent of the Estates for the Preservation of that humane Covenant they had formerly made with their first Duke Rollo when he had that Dutchy granted him by the King of France and whoever will consult the antient Histories and Laws of that Dutchy will find theâ—â— Dukes of Normandy no more absolute Monarchs there than the Kings of Norway from whence they came so that if their Duke should have gone about to take away their Estates or inslave the Persons of the Norman Nobility and People he might justly have been resisted by them and therefore their taking Lands from K. William after his pretended Conquest here must either have conferred an Estate upon them according to the Laws of England or Normandy not according to the former for you assert that Tenures in Capite and Knight's service were generally introduced by his coming so that if they were by the Normans Law as you suppose they were then no farther subjects to their Duke by that Tenure when made King of England than they were whilst he was Duke of Normandy viz. only according to the Laws and Customs by which they held these Estates so that if their Duke was not irresistible by them in case of Tyranny in his own Country so he was also here by the same reason since whatever he did in respect of the English he could acquire no new right over them And that an Oath of Homage alone doth not make the Person to whom it is taken irresistible if he makes an unjust War upon his Vassals appears by the Dukes of Normandy themselves who tho' they held that Dutchy by Homage to the King of France and took the same Oath to him upon every Kings Accession to the Crown of being his Liegeman and to be True and Faithful to his Lord the King of France for the said Dutchy of Normandy yet might the Dukes of Normandy without any Imputation of Rebellion have resisted the King of France in case he made an unjust War upon them nor were ever the Dukes of Normandy accused of Rebellion for so doing in all the Wars that they had with the Kings of France And therefore the holding of an Estate by Homage doth not suppose that the Lord of whom it is held was irresistible nor doth the word of Allegiance signifie any more than that duty which the Liegemen by the Old Norman Law owed to their Supream Lord of whom they held their Lands and therefore when the King or Supream Lord of the Fee did not perform his part of the Contract but went about to turn them out of their Estates or to invade any of their just rights by force it was usual for the Tenants to defie the Lords and renounce their Homage to them for which they used the Barbarous Latin word diffidare in French to defie that is to renounce that Faith and Allegiance which before they owed them and the supream Lords also oftentimes defied their Tenants thus Mat. Paris tells in Anno 1233. that K. Henry the Third by the Counsel of the Bishop of Winchester defied Richard the Earl Mareschal and the year following we find the Earl justifying himself in this manner being then in Ireland First I answer that I never acted Treasonably against the King for he has unjustly spoil'd me of my Office of Mareschal without the Judgment of my Peers and has Proclaim'd me banisht thorough all England he has burnt my Houses destroyed my Lands c. he has more than once defied me when I was always ready to stand to the Judgment of my Peers from which time said he I ceased to be the Kings Liegeman and was absolved from his Homage not by my self but by him and whereas you say that tho' the King or Supream Lord cannot forfeit his Right tho' he breaks his part of the Compact because of the inequality which there is between a King and a Subject then this Prerogative of Non-resistance doth not belong to the King as he is Supream Lord of the Land but as he is King and giveth Law to the Subjects which may have some colour of Truth in Absolute Monarchies but was of no Force either in the Government of Normandy or England where the Duke or King without the consent of his Estates never could alone make Laws but as I will not deny our Government to be a Monarchy so it is as certain that it is limited in the very constitution either by the Saxons or Normans begin where you please and therefore my conclusion still holds good that if the English have now succeeded to those very Lands and Priviledges which the Normans anciently enjoyed then whatsoever Right or Liberty the English Proprietors of Estates do at this day enjoy they do not only hold them as the Successors and Descendants of those Normans and Frenchmen but are also restored to them Iure postliminii as you Civilians Term it since they never submitted themselves or took an Oath of Allegiance to King William and his heirs but only to himself Personally there being no such clause in any Oath of Allegiance till it was so ordained many ages after in the Reign of K. Henry the fourth nor was this Oath ever taken by our English Ancestors to K. William as to a Conqueror but the lawful Successor of K. Edward the Confessor and K. Williams actual taking away the Estates of a great many of the English Nobility and Gentry contrary to his own Oath and without any just oâ—use could no more give him a right so to do than if Henry the fourth or Henry the seventh both which came to the Crown by the assistance of a Foreign force should upon a pretence of being Conquerors have govern'd by an Army and so have taken away whose Estate they pleased and given them to their followers that came over with them M. I shall not dispute this matter with you any further therefore pray proceed to the other Point you took upon you to prove that King William did not take away so great a share of the Lands of England as the Dr. and those of our Opinion affirm F. I shall observe your commands and therefore in the first place I desire you to take notice that according to the Doctors own shewing your Conqueror never took away the Lands of all the Bishops and Abbots of England much less those that belonged to Deans and Chapters or
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
the Prince had demanded This would have been not to have been parralel'd any where but in a Romance But as for those Officers and Souldiers who you say Deserted the King and went over to the Prince from Salisbury though I grant they make a great noise yet were they not a Thousand Men Soldiers Officers and all as I am Credibly inform'd which was but a small number in comparison with the Kings whole Army and yet these may very well be defended upon the same principles with the former for if the Violations of our Liberties were so great and dangerous as I have now set forth those Gentlemen were certainly oblig'd to prefer the common Good and Preservation of their Religion and Liberties before any private interests or Obligations whatsoever though it were to the King himself therefore it was more his than their fault if they Diserted him and as for their going away whilst they were his Souldiers and with their Commissions in their pockets I suppose you cannot expect that the King should have ever given them leave to have quitted his Service or have accepted of their Commissions if they would have surrender'd them unless at the same time he had clapt them up in prison for offering of it and if then they were perswaded that it was theiâ— Duty so to do it is but a Punctilio of Honour whether they went away with their Commissions in their pockets or had left them behind them since their going off was a Surrender of their Commissions and a sufficient Declaration â—â—at they could not with a safe Conscience serve the King any longer in this quarrel and you see that the going off of these few had such a fatal effect that it cast such a panick Terrour upon the King and the whole Popish Faction about him as to make him run away to London without striking a stroke But that the Prince of D. with the Dukes of Grafton and Ormond Lord Churchill were convinced of the danger this Kingdom was in both in respect of their Religion and Liberties appears by their leaving the King and going over to the Prince where they could never expect to be put into higher places of Honour or Trust than what they enjoyed already under the King and therefore that expression of the Lord Churchill's in his Letter to the King is very remarkable That he could no longer joyn with self-interested men who had framed designs against His Majesties true Interest and the Protestant Religion to give a pretence to Conquest to bring them to Effect And one would be very much inclin'd to believe so considering the great number of Irish Papists which have been brought over and listed here though with the turning out and disbanding of a great many English Officers and Souldiers out of several Companies But to come to the business of the Prince of Wales which you say was a meer calumny and an unjust suspition on the Princess side though I will not affirm any thing positively in so nice a matter since the Convention has not thought fit to meddle with it I shall only say this much that if there have been any jealousies and suspitions raised about it the King may thank those of his own Religion who were intrusted with the management of the Queens Lying-Inn For in the first place it looked very suspicious to us Protestants who do not put much faith in the Miracles of the Romish Church that immediately after the presenting of the Golden Angel to the Lady of Loretto and the Kings Pilgrimage to St. Winifreds Well the Queen after several years intermission should again be with Child and when she was so should have two different Reckonings Which though it may be forgiven Young Women of their first Children yet those who have born so many Children as Her Majesty are commonly more experienced in these matters M. What is all this to the purpose Was it not proved by many credible Witnesses and those of the Protestant Religion before the Privy-Council that they were not only present in the Room when the Queen was Delivered but that they had seen Milk upon Her Linnen before Her Delivery and that they had also felt Her Belly immediately before it and found that Her Majesty was Big with Child and ready to be Delivered And the Midwife Swears that she actually Delivered Her So that since every person is to be presum'd to be the true Son of those Parents that own him for theirs So nothing but a direct proof to the contray and that by undenyable Evividence ought to make any Man believe otherwise much more in the concern of the Heir apparent to the Crown and therefore I know not what you would have to been done which has not been observed in this nice matter F. And Sir let me tell you because it was so nice a matter and concerned no less than the Succession of Three Kingdoms therefore the whole Nation as well as the Prince and Princess of Orange were to be fully satisfied of the reality of the Princes Birth since they were all suffiâ—iently sensible that there wanted nothing but a Male Heir to entail Popery on us and our Posterity And therefore there ought to have been present such Persons as had no dependance upon the Court and who ought to have been deligated by the Prince and Princess of Orange since the Princess of Denmark could not be there in Person but instead of this the only two Ladies who as I am informed were trusted by the Princess to be present at the Queens Labour were never sent for till she was brought to Bed and the Child Drest And as for the rest of the Witnesses they were either Lords or other Persons who only Swear they stood in the Room at a distance and heard the Queen cry out and immmediately after the Child cry sometime before they saw it And as for the Ladies the greatest part of them Swore no further than the Lords So that notwithstanding all that they have Sworn in this matter there might have been a trick put upon them and they never the wiser Since you may Read in Siderfin's Reports of a Woman who pretended to have been delivered of a Child by a Mid-wife within the Bed and yet many years after this was proved to be a suposititious Birth by the Deposition of the Mid-wife and the poor Woman who was the real Mother of the Child and others that had been of the Conspiracy And what has been done once may be done again 'T is true the King himself with one or two Ladies Deposed something further as to Milk and the feeling of the Child immediately before the Birth but his Majesty if it be an Imposture is too deeply concerned in it to be admitted as a competent Witness And as for the rest of the Ladies they are likewise being as the Queens Servants and having an immediate dependance upon her to be excepted against and under too much awe to speak the whole Truth
President and Fellows of Magdalen Colledge and that Prosecution that was lately order'd against all those Bishops and inferior Clergy who had refused to distribute or read the King's Declaration though I confess there was a stop put to this upon re-calling this Commission Immediately before the Princes Arrival So likewise for the other Article of levying Money contrary to Law that was also without any opinion of the Judges at all demaâ—ded about it for the illegal collection of Chimny Money by making Cottages and Ovens pay that were exempted by the Acts concerning it and also the illegal levying of Excise by making Small-Beer pay the Duties of Strong were all of them acted and done by particular directions from the Treasury or by the private abuse of the Farmers of the Excise without any opinion of the Judges and of these Orders his Majesty could not chuse but be the Author or approver at least since 't is very well known he constantly satâ— there when any great Business was to bâ— transacted and the Lord Treasurer or Commissioners of the Treasury would certainly never have presum'd to have issued out their Orders in a Case of so great moment if they had not been very well satisfied that it was his Majesty's express Will and Pleasure to have iâ— so And I my self have now by me a Copy of the then Lord Treasurers Directions to the Officers appointed for the levying of Chimney-money commanding them to levy it upon all Cottages and Ovens whatsoever which was done accordingly with the utmost rigour which though it was a very great oppression yet since it chiefly concern'd the poor and ordinary sort of people who had not purses to go to law with the King or else such Gentlemen and others who though they were forced to pay for their poor Tenants yet did they not think it worth their while to bring iâ— before the Barons of the Exchequer where as things then went they could not expect to find much Justice I shall not insist upon the King 's taking the additional Customs contrary to the Act of Parliament by which they were granted to the late King Charles only for life and though in his last Sickness there was a Contract for the new farming of them by vertue of which I grant the King might have justified the taking of them till the end of the Farm yet since that Contract never passed the Seals during the King's life-time it was certainly against Law for the King to take them before they were re-granted by Act of Parliament I say I shall not insist upon this since the Parliament were so easy as to pass it by without declaring it to have been illegal only it sufficiently shows that from the very beginning of the King's Reign he was resolv'd to govern arbitrarily and to levy Money upon the Subject whether the Law gave him any Authority to do it or not But as to what you say concerning the Judges being wholly in fault for all the unjust and illegal Proceedings exercis'd in their Courts and that the King was wholly faultless I should be of your mind had I not seen that all those Judges who would not agree to the dispensing power and other illegal Judgments I could name were turn'd out and others either Papists or of less consciences than Papists were put in their places which were not conferr'd for any longer time than durante bene placito and therefore no wonder if such men were absolute slaves to the King's will and pleasure M. I had much more to say in defence of the King 's raising and keeping up a standing Army and his disarming Protestants in and after the Duke of Monmouth's Rebellion which are laid to his charge as endeavours to destroy the Rights and Liberties of this Kingdom But since it grows late I shall only now take notice of something which I forgot to insist upon concerning your Notion of the King 's obdicating the Crown by a wilful breach of the Laws which is quite different from the sense in which this Word is taken in Roman Authors as also in our Civil-Laws For when Cicero uses the Expression Itaque tutela me abdicare togito Brison tells us his meaning was se nolle esse tutorem But Pompenius in his Book De orig Iuris gives us the true sense of this Phrase Abdicare se Magistratu est ante tempuâ— Magistratum deponere which plainly shows the Romans had no notion of a Tacit or imply'd abdication of a charge or Majestracy without a man's express consent and therefore if the Kings bare desertion of the Kingdom was not an Abdication of the Throne as you your self are forced to grant I cannot imagine how the King's violation of the Laws or endeavouring to subvert the Government both which you lay to his charge can properly be call'd an Abdication of it so that indeed the King hath not abdicated the Government but your Convention hath abdicated him And tho we often read in our Civil-law That a Father might abdicare filium yet I never read or can you show me any Example that a Son might abdicate a Father or Subjects their Prince F. You discourse upon a wrong ground for I never affirmed That Subjects had any authority to abdicate or depose their Prince nor hath the Convention assum'd any such power to themselves what they have done in this affair hath not been authoritative or as taking â—pon them to call the King to an account for his actions or to depose him for his misgovernment but only declarative to pronounce and declare as the Representatives of the whole Nation that by endeavouring to extirpate the Protestant Religion and to subvert the Fundamental Laws and Liberties of the Kingdom he had wilfully I do not say willingly Abdicated the Government that is renounced to Govern this Kingdom any longer as a lawful King which I take to be a tacit or imply'd Abdication of it as I have already proved and to shew you farther that even Tully himself allows in our sense of an imply'd Abdication in his third Philippicks when he says thus concerning Mark Anthony that for his offering a Crown to Caesar Eoâ—die-non modo Consulatu sed etiam libertate se abâ—itavit c. where you see Mark Anthony is said to have Abdioned the Consulshâ—p without any express Renunciation of it for Caesar might have continued him in it after he had been declar'd Emperor M. I grant your Authority to be good yet even in this sense this Abdication of the Consulship could only take its effect from Anthony's owâ— Will for offering a Crown to Caesar if he did not expresly yet he effectually renounced his Consulship for had Caesar accepted in he could no longer have been the Consul of a Popular State but must thenceforth have acted by authority from Caesar or not at all but then this would not have agreed with your Noâ—on of a Forfeiture which always supposes a crime and a depriving the party
notwithstanding all you have alledg'd against it which yet is no more than what you said before that Duke Robert had an Hereditary Right and therefore he could not be put by which is to beg the Question for you cannot prove to me that he had this Right either by the Law of Nature the Law of England or the Law of Normandy not by the two former as I have already prov'd for your Conqueror himself being a Bastard had no better Title to the Dutchy of Normandy than his Father's last Will before he went to the Holy Land which was not good without the consents of the Nobility of that Dutchy as appears by the Historians of that time so that the greatest Objection you have to make against King Henry's being elected in a true Common-Council of all England is this that the time was so short between the Death of William Rufus and his Election that it was impossible for all the Parties that had Votes to be there present which is a very bold assertion for how can you or your Doctor tell that at the time when King William was kill'd he might not then have held a great Council at Winchester where he then Lay who might immediately upon his Death chuse his Brother Henry for their King for it is certain the Election was there the Day before his Coronation at London and therefore it is very rashly done to affirm that this Election was not in a Common-Council of the Kingdom when all the Historians and particularly W. Malmesbury tells us the manner of it and the Disputes there were about it viz. that Henry was elected King as soon as King William's Funerals were over Aliquantis tamen ante controversiis inter proceres agitatis c. and H. de Knyghton reciting the cause why Duke Robert was set aside viz. because he had been always contrary and unnatural to the Barons of England therefore quod plenario consensu consilio totius Communitatis Regni ipsum refutaverunt pro Rege omnino recusavâ—â—â—nt Henricum fratrem in Regem erexerunt which plainly shews that it was the opinion of all the Antient Writers out of whom Knyghton took this passage that this election was made by the free consent and in a full Council of all the whole Community of the Kingdom nor does the after claim of Duke Robert to the Crown at all alter the case for the reasons already given as also because the agreement that was made between them that he that surviv'd should succeed the other was never confirm'd or agreed to by the great Council of the Kingdom and therefore those Norman Lords that join'd with Duke Robert here in England are justly taxed by William of Malmesbury and the Saxon Chronicle with Infidelity and Rebellion and though I grant that Mat. Paris or rather Roger of Wendover whom he transcribes seems to condemn King Henry's taking the Crown as unjust and contrary to Right and that he therefore feared the Justice of God eò quod fratri suo primogenito cui jus Regni manifestè competebat temere usurpando injustè nimis abstulcrat yet this author writing about the middle of the Reign of King Henry III. who had succeeded his Father by a pretended right of Inheritance as well as Election it is no wonder if He who writ near a hundred years after this transaction should give his judgment in this matter according to the common opinion and prejudice of that age and must certainly speak by guess for how could he otherwise affirm unless he had been acquainted with that Kings thoughts as he doth in the same place that he felt conscientiam suam in obtentu Regni cauteriatam since no other Writer either of that time or after it does thus blame King Henry for taking the Crown But as for the account you give why Duke Robert never took upon him the Title of King if the Throne had not then been looked upon as vacant because of the agreement which he made with his Brothers by which he parted with his Right for a Pension during his Life is not at all satisfactory for in the first place neither of these agreements were made till above a year after his pretended Title did acrue to him by the Death of his Father and Brother and therefore he ought if he had look'd upon himself as true King to have immediately taken the Title upon him which he never did so likewise the agreement it self makes wholly against your notion of any hereditary succession to the Crown to be then setled since the main clause in both these agreements is that the survivor should be heir to him that died first unless he left Children of his own to succeed him which plainly shews that in the opinion of both those Princes and of the great men that swore on either side to see it observed they knew of no such setled Right of Succession in their Heirs which they themselves could not part with or else this Clause had been wholly in vain since both King William and King Henry's Children were to have succeeded to the Crown of England by vertue of both these agreements before the Sons of Duke Robert had his Son William who was only Earl of Flanders survived him But now if you please you may proceed with your other exceptions against the rest of the Instances I have here given you of the Vacancy of the Throne till such time as the Common Council of the Kingdom had agreed whom to place therein M. As to what you have said in defence of the Vacancy of the Throne after the death of King Henry I. carries less shew of Reason than what you urged in the former Cases since all Writers agree that this was a manifest Usurpation in Stephen who could pretend no sort of Title to the Crown himself as well as Perjury in the Bishops Lords and great Men of England who having sworn Fealty to King Henry's Daughter Maud in his life-time made Stephen Earl of Blois their King therefore William of Malmsbury and all the Writers of those Times do accuse Stephen of down-right Perjury and Usurpation and likewise relate that he was advanced to the Crown through the power of the Londoners and Citizens of Winchester but yet all these Endeavours had been in vain unless he had been assisted by his Brother Henry Bishop of that City and then the Popes Legate in England and favoured by the Arch-Bishop of Canterbury who Crowned him and yet for all this there was but a very small Faction of the Bishops and Lords who were for his Croonation for W. Malmsbury tells us Coronatus est ergo in Regem Angliae Stephanus tribus Episcopis praesentibus nullis Abbatibus paucissimis Optimatibus And many of the Nobility and great Men of England were so sensible of this that being headed by Robert Earl of Gloucester the Empresses base Brother they raised a War against Stephen which after her coming over hither was
was a man and better acquainted with England and having the Interest of the Arch-bishop of Canterbury and most of the great men were of his party and yet for all that Hoveden who was alive at this time speaks not a word of his being Elected but only that upon his coming into England he was received by the Nobility and Crown'd by Hubert Arch-bishop of Canterbury so that there is not one word there of any Election by but only a submission from the Lords Spiritual and Temporal to King Iohn and a recognition that he was their King nor indeed could he need it if it be true what the same Author tells us That when King Richard despar'd of Life he devised to Iohn his Brother the Kingdom of England and all his other Lands and caus'd all those that were present to do him Fealty and this is related by Hoveden in all probability an Eye Witness of these transactions So that the first Author we find to mention any thing of the particulars of this pretended Election is Mâ—tthew Paris who has given us the Speech which the Arch-bishop made at this supposed Election and also reciting the Arch-bishops Bishops Earls and Barons and all others who ought to be at his Coronation the Arch-bishop standing in the middle of them said thus Hear all of you your Discretion shall know that no man hath right to succeed in this Kingdom unless after seeking God he be unanimously chosen by the University of the Kingdom that is those that are here said to meet at London the rest of the Speech needs no repeating only he lays it down for Law which I think was never heard of before That if any of the Progeny of the dead King did excel others they ought more readily to consent to the Election of him and so upon this Speech made in behalf of Earl Iohn and full of a great deal of fulsom slattery he was declar'd King But to let you see what a sort of Man this Arch bishop Hubert was here see what the same Author tells us in the same place that being asked afterward why he said these things answer'd That he guested and was thought ascertained by certain Prophecies that Iohn would bring the Kingdom and Crown into great Confusion and therefore lest he he might have too much liberty in doing he affirmed he ought to come in by Election and not by Hereditary Succession Now though this Learned Doctrine of the Arch bishop asserts a right of Election in the Convention of Bishops Earls Barons c. yet by his own answer when he was asked why he said these things it clearly discovers it to be only a design and artifice in the Archbishop to cause them to set up and make Iohn King and in which also he denies any such right of Election but since Hoveden nor any other of our antient historians make mention of this Election but only of his Coronation and the Bishops Earls and Barons assisting at it not giving their consents to it it may very well be that that story of an Election and this Speech of Arch bishop Hubert might be only an invention of Matthew Paris or rather of Roger of Wendover from whom he took most of his History but that this doctrine of the Arch-bishop concerning the Election of our Kings if meant according to the modern understanding of it was then new Gervase a Monk of Canterbury in the year 1122. who also speaking of the Coronation of Henry the First says it was manifest and known almost to all men that the King 's of England were only obliged and bound to God for the possession of the Kingdom and to the Church of Canterbury for their Coronation manifestum est autem omnibus fire notum Reges Angliae soli Deo obligari teneri ex ipsius regni adeptione Ecclesiae Cantuariensi ex Coronatione But that King Iohn was looked upon as an Usurper is very certain since besides some of the honest English Nobility that took Duke Arthurs part the King of France did also make War upon King Iohn upon his Nephews account because he looked upon him as true Heir to the Crown and therefore when K. Iohn had privately made away his said Nephew in prison the K. of France summon'd him as Duke of Normandy and Peer of France to answer for the Murther in an Assembly of the Peers of France at Paris where for his refusing to appear he was condemn'd to death and his Dukedom of Normandy declar'd forâ—eited to the King of France F. I confess you have said as much as can be to prove that King Iohn had no Hereditary Right to the Crown nor was so solemnly Elected to it as Matthew Paris relates but yet for all this I think I may very justly oppose all that you have now said upon this Head for in the first place it was then very much disputed as it hath been also since that time if an Elder Brother died and left a Son a Mâ—nor whether his Younger Brother or the Son should succeed for though the People of Anjou and those of Guienne own'd Duke Arthur for their Prince yet the States of Normandy were of another mind and as well by vertue of King Richard's Testament he was immediately after his Death invested with that Dukedom nor was he then at all opposed in it by the King of France though Supreaâ— Lord of the Fee and as for England besides his Brothers Testament whereby he left him Heir of all his Territories it was also then generally held in England as most consonant to the Antient English Saxon Law of Succession that the Uncle should succeed to the Crown before the Nephew therefore it is no wonder if Duke Arthur found so small a party here not any Bishop Earl or Baron as I read of owning his Title and as for the King of France it is also as certain that he did at first own King Iohn for lawful King of England and Duke of Normandy and entred into a Treaty of Peace and made a League with him as such though it is true that afterwards when he had a mind to pick a quarrel with that King he then set up Duke Arthur's Title And though this Duke was made away in the beginning of King Iohn's Reign yet did not the King or Peers of France ever take any notice of it till about twelve or thirteen years after when he had now unjustly Conquered all Normandy and almost all that Kings other Territories in France and then wanting a Title to keep them he began this Prosecution you mention against him and upon his non appearance he was condemned unheard but that the King of France himself and all the great men of that Kingdom did look upon him to have been lawful King of England appears by that Speech which Matthew Paris relates to have been made after King Iohn's Deposition by the Barons of England by a Knight whom Prince Lewis
succeeding immediately upon his said Fathers resignation there could be no Vacancy of the Throne to which I answer that I do not deny that after this King was once setled in the Throne but that he might think it most to his honour and the independency of his Title to relye wholly upon his Right of Succession as Eldest Son and Heir without taking any notice of the Parliaments Election of him tho' this be also convertly expressed in these words which are in this Writ and Proclamation viz. ` That consenting to his said Fathers pleasure he had taken the Government de consilio advisamento Praelator Com. Baron Magnat Communitat praedict which though you translate by Council and Advice of the Prelats Earls Barons and Commonalty yet I do suppose that by consilio is here meane not Council but Consent as I have already proved the word consilium often signifies in our antient Statutes for otherwise if this word must here signifie Council it would be a plain Tautology for Advice and Council are the same thing But to shew you also that there must needs have been a vacancy of the Throne either upon the Deposition or Resignation of Edward the 2 d. take it which way you will appears from matter of Fact for it is plain that when Prince Edward refus'd the Crown upon the Parliaments Electing him unless his Father would willingly resign it he did at their request resign his Title to it by certain Commissioners sent down to him to Kenelworth Castle to take it now that place being at least two days Journey from London it is certain there must be as many days vacancy of the Throne if not more before the said Commissioners could get to London and that Prince Edward had agreed to take the Crown upon his Fathers Resignation for till then the Throne was Vacant since till the Prince had declared his assent to take it he might have chosen whether he would have accepted of it or not as not being satisfied whether his Fathers resignation were voluntary and not by constraint Now if there were a Vacancy of the Throne in this case though but for two or three days it serves to prove the matter in question as well as if it had been for two years So likewise let the Reign of King Henry the IVth begin either from the Resignation or Deposition of King Richard the II d. take it which way you please there must have been a Vacancy of the Throne as appears by the Parliament Roll still extant For it is there plain that after the instruments of King Richards Resignation and Deposition were solemnly read that the Throne continued Void for some space Till such time as Henry Duke of Lancaster stood up and made his Claim to it in that form of words which stands to this day to be seen upon the Parliament Roll and that the Arch Bishop of Canterbury taking the Duke by the hand had led him to the Throne and placed him therein M. I cannot deny but as you have set forth the matter of fact there must have been a Vacancy of the Throne in these two cases but since the depositions of both these Kings were contrary to Law and their resignations extorted from them by constraint whilst they were in prison they are neither of them looked upon as valid or to be urged as presidents in future times But however the Throne might seem then to be Vacant in point of fact yet in Law it was otherwise for Edmund Earl of March ought to have immediately Succeeded upon the Death or Resignation of King Richard as being Lineally descended from Philippa only Daughter and Heir to Lionel Duke of Clarence Third Son of King Edward the IIId But to let you see that Henry Duke of Lancaster as much an Usurper as he was yet was so sensible that the Crown could not be then enjoyed by Election but by Right of Blood and that the Parliament also thought themselves in duty bound to submit to him to whom by Right of Blood the Crown did belong Will appear from this Dukes manner of laying claim thereunto Which since you have not particularly mention'd I will For no sooner was the Throne Vacant by the pretended voluntary resignation of King Richard but Duke Henry having fortified himself with the sign of the Cross stood up and made his demand of the Crown in his Mother-Tongue in this form of words as I have extracted them out of the Parliament Roll. In the Name of the Father Son and Holy Ghost I Henry of Lancaster challenge this Reawme of Inglonde and the Corone withall the Members and appurtenances also that I am Descendit by Right Line of the Blode comyng fro the gude Lord King Henry the Third And thorghe that Right that God of his Grace hath sent me with the help of my Kyn and of my Friends to recover it The which Reawme was in poynt to be undon for default of Governance and undoyng of the gude Laws And after which Challenge and Claim says the Record which I render out of Latine as well the Lords Spiritual as Temporal and all the States there present being all severally interrogated what they thought of the aforesaid Challenge and Claim the above named States with all the Commonalty without any difficulty or delay unanimously agreed that the aforesaid Duke should Reign over them Where you may see that this whole Parliament admit the Dukes Claim for good without proceeding to any formal Election of him And by vertue of this pretended Right and Claiming as Heir of Earl Edmund Sirnamed Croutch-back Brother to King Edward the Ist. whom he falsly pretended to have been the Eldest Son to King Henry the IIId and put by for his Deformity did not only himself but also his Son Henry the IVth and his Grandson Henry the VIth though Usurpers Succeed as right Heirs to the Crown till the 39th year of Henry the VIth when Richard Duke of York did in a full parliament lay Claim thereunto in right of his Mother being only Sister and Heir of Edmund Earl of March. And because the Judgment of the Parliament in this case is very remarkable pray read this part of it as it stands recorded in the Parliament Roll. Whereupon consideration of the Answer and Claim of the Duke of York it was concluded and agreed by all the Lords that his Title could not be defeated And therefore for eschewing the great inconveniences that may ensue a mean was found to save the Kings Honour and Estate and to appease the said Duke if he would Which was That the King viz. Henry the VIth should enjoy the Crown during Life the Duke to be declared the true Heir and to possess it after his Death c. And note that all this was done after a solemn hearing of all that could be said on both sides F. I confess the matter of fact concerning King Henry the VIth coming to the Crown is truly recited
in Prison and the first Act this King did after his Restoration was to call a Parliament which revoked all the former Statutes and Declarations of the 39 th of Henry the 6 th and 1 st of Edward the 4 th and then entail'd the Crown anew upon the issue of King Henry the remainder to the Duke of Clarence who then took part with King Henry against his own Brother 'T is true indeed that King Edward the 4 th returning again not long after into England and regaining the Crown from King Henry the 6 th the said King was not only murther'd together with his Son Prince Henry but in the next Parliament was also attainted of Treason with all others of his Party and yet lot let you see that this very Act is now null and void against King Henry the 6 th and his Son Prince Edward see an Act of Parliament of the first of Henry the 7 th not Printed which because it is not commonly known I will read it almost verbatim The King our Sovereign remembring how against all rightwiseness honour nature and duty an inordinate seditious and slaunderous Act was made against the most famous Prince of blessed memory King Henry the sixth his Uncle at the Parliament holden at Westminstey the fourth day of November the first year of the Reign of Edward the 4 th Late King of England whereby his said Uncle contrary to the due Allegiance and all due order was attainted of High Treason wherefore our same Sovereign Lord by the Advice and Assent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled and by Authorities of the same ordaineth enacteth and establisheth that the same Act and all Acts of Attainder Forfailure or Disablement made or had in the said Parliament or else in any other Parliament of the said Late King Edward against the said most blessed Prince King Henry or against the right famous Princess Margaret Late Queen of England his Wife or the right Victorious Prince Edward Late Prince of Wales Son of the same blessed Prince K. Henry and Margaret c. are void annulled and repealed and of no force nor effect so that by vertue of this Act the Title of the House of Lancaster was again declared to be good But to conclude I cannot but take notice of one mistake you have fallen into by saying that all proceedings against King Richard the 2 d. are repeal'd by that Parliament of the first of Edward the 4 th which is not so for though I grant that the dealings of Henry Earl of Darby as he is there call'd in imprisoning the said King and Usurping the Royal Power is there expresly condemned and his Murthering of him said to be against Gods Law and his own Oath of Allegiance as certainly it was yet the Deposition of the said King Richard by Parliament is no ways repeal'd by this Act for then all the Records thereof would have been quite Cancell'd and taken off the Rolls whereas they still remain to be seen at this day and you see by this Act I now recited That the attainder of King Henry the 6 th is declar'd contrary to due Allegiance and all due order and all forfeitures and disablements of the said King and Prince are quite annull'd and made void M. I must confess you have so stagger'd me with this Act that I know not what to say to it but that it was made in the first Parliament of King Henry the 7 th and before he had married the Princess Elizabeth and consequently had no good Title to the Crown himself therefore till then I look upon him as an Usurper but I shall now proceed to shâ—w you that that very King nay even Richard the 3 d. himself chiefly relied not upon any Parliamentary Election but upon their own pretended Titles of being right Heirs by Blood for after the death of Edward the 4 th his Son Edward the 5 th was proclaim'd King and might have quietly enjoy'd it if his ambitious Uncle Richard Duke of Gloucester had not plotted to defeat him of it and knowing very well that he had no way to bring it about but by inciting a corrupt party of the Bishops and Lords together with the Lord Mayor of London and some of his Party in the City to set forth by way of Petition to the Duke then Protector of the King and Realm That all the Children of K. Edward the 4 th were Bastards supposing that King to have been Contracted with a certain Woman called Eleanor Boteler before he Married Queen Elizabeth moreover that the Blood of his Elder Brother George Duke of Clarence deceased was attainted so that none of the Lineal Blood of Richard Duke of York could be found uncorrupted but in himself and there was at the conclusion of that Roll an Address to him from the Lords and Commons of the Kingdom that he would take the Government upon himself this fine artifice assisted on one side with his feigned excuses which induced the less thinking sort of People to believe he desir'd not the Royalty and prompted on the other side with the fear of his power procured his accession to the Throne so that at last he and his Wife Anne were solemnly Crowned King and Queen at Westminster and by these steps did that inhumane Prince who had no Title to the Crown either by descent or by merit ascend the English Throne see you that not by Election but by pretence of blood and by bastardising and attainting his Nephews he set himself up for the only true Heir of the Crown and therefore in the Parliament he call'd immediately after his Coronation when they had declar'd almost the very same things as were before in the said Petition they proceed further To declare that the Right Title and Estate which King Richard the III d had to and in the Crown and Royal Dignity of the Realm of England with all things thereunto within the said Realm and without it annexed and appertaining was just and lawfull as grounded upon the Laws of God and Nature and also upon the antient Laws and laudable Customs of this said Realm as also taken and reputed by all such Persons as were learned in the above-said Laws and Customs and proceeds farther thus therefore at the request and by the assent of the three Estates of this Realm that is to say the Lords Spiritual and Temporal and Commons of this Land Assembled in this present Parliament and by the Authority of the same it is pronounced decreed and declared that our said Soveraign Lord the King was and is the very undoubted King of this Realm of England with all things thereunto belonging within the said Realm and without it united annexed and appertaining as well by right of Consanguinity and Inheritance as by lawfull Election Consecration and Coronation So that you see tho' they put in his Election as also his Coronation as means of obtaining the
Man hath in an Estate which is his Right let him be what he will or let him mannage it how he will Whereas in the Right to a Kingdom I take it to be a true Maxim That the Representatives of a Nation as the Convention was ought to have more regard to the happiness and safety of the whole People or Common-wealth than to the Dignity or Authority of any particular Person whosoever or howsoever nearly related to the Crown when it is evident that the advancement of such a Person to the Throne will prove destructive to our Religion Civil Liberties and Properties Now give me leave to apply what I have said to the Point now in question Let us therefore at the present suppose that your Prince of Wales is true and lawful Son to King Iames and Queen Mary and let me also farther suppose that in his late passage over Sea he was taken by the Pyrates of Argiers or Tunis and by them been carried to one of those places and been bred up in the Mahometan Religion and after he had been Circumcised and fully grounded in that abominable Superstition the Grand Seignior together with the Kings of Argier and Tunis should send this Nation word that if they would not admit him quietly for their King and allow him all those Priests he should bring with him a free exercise of their Religion in England they would then make War upon this Nation with all the Forces they could raise I ask you what we ought to do in this case whether we should receive him for our King or keep him out M. I must confess it is a nice Question and since it is a thing that never did yet nor I hope will ever come to pass I think I may freely Answer you That supposing this Prince could be proved to be the very same who was carried away so many years ago we ought notwithstanding his false Belief to receive him especially if he would solemnly Swear only to worship God in private after his own way and that he would Swear not to violate our Religion or invade our Liberties and Properties and this being done I think we ought then to admit him for our lawful Sovereign since as you your self have already acknowledged at our third Meeting the Supreme Powers are not to be resisted because they are of a different Religion from that of the People or Nation they Govern F. Very well But let me tell you In this you are much more kind to Mahometan and Heretical Princes than the Church of Rome who have decreed That no Prince ought to be received as right Heir to a Crown who is a Pagan Turk or Heretick and upon this ground it was that the States of France during the time of the League by the Pope's Decree refus'd to own Henry King of Navarre for their Sovereign and also that the Papists of the Nuntio Party in Ireland during the late Rebellion refused to own the late Duke of Ormond for Lord Lieutenant of that Kingdom because the King was a Protestant But pray answer me a Question or two further Suppose this Prince refus'd to promise these or such things or else if he did promise and Swear them pray tell me how could we be assured that according to the Principles of that Religion he had been bred under and those Arbitrary Notions he had learned concerning the Absolute Power of Kings in Barbary and which he would believe due to himself as being as Absolute a Monarch as any of them I say how such a Prince ever could be trusted Since if he had the whole Power of the Militia in his hands he might bring in what number of Turkish or Moorish Guards he should think fit who might easily set up that Religion and Government too in this Nation since according to your Principles of Passive Obedience and Non-resistance no Man ought to lift up so much as a Finger against him though he went about to make us all Turks and Slaves M. Well supposing all this as long as it is his Right he ought to have it let the consequence be what it will F. You have said enough I desire no more but I hope every true Protestant and English man will be of another mind if ever such a case should happen but indeed it appears very strange to me that a natural Disability such as Ideocy or Lunacy should be esteem'd sufficient in all Kingdoms to debarr the next Heir from the Government and yet that a Moral or a Religious Disability should not have the same effect and though I grant that a King ought not to be Rebelled against or resisted meerly because he is of a different Religion from that of his Subjects for I was never for resisting King Iames meerly upon that score yet it is another thing when a Prince is not actually possessed of the Throne but is to be admitted to it upon such Conditions as may appear safe for the Religion and Civil constitution of a Kingdom In this case if a Prince be certainly infected with such pernicious Principles either in relation to Religion or Civil Government it is much otherwise as for Example That no Faith is to be kept with Hereticks That his own Religion is to be propagated by Arms Blood or Persecution That no Government can be safe for the Prince or in which he can appear Great or Glorious but as an absolute Monarch let such a Prince be either a Christian or a Mahometan I think it would be a certain ruine to a Kingdom to be obliged to receive such a Prince when they were morally sure that he would not only subvert their Religion but destroy the very professors of it and not only those but alter the Civil constitution too by turning it from a limited Kingdom into an absolute despotick Tyranny To conclude I shall only desire you to consider into what a Country your Prince of Wales is carry'd and what Instructors he is like to have and what Principles he will receive from them and then pray tell me if he continues there till he is a Man what difference there will be between this young Prince bred up in such a Religion and such Principles and the same if he had been carried away by Pyrates to Argier as I at first suppos'd M. This is a very invidious Comparison for though I do not approve of the Roman-Catholick Religion yet sure there is a great deal of difference between that which professes all the Articles of our Creed and in which we of our Church own Salvation may be obtained and the Mahometan Superstition which denies that fundamental Article of our Creed viz. That Jesus Christ is the Son of God and as for Civil or Political Principles I hope the King his Father will take care to have him instructed by some of those English Noblemen or Gentlemen who are now with him in the Customs and Constitutions of the English Government and wherein it differs from the French
Act that it is Declaratory of the former Laws of England made in King Henry the VII th and VIII ths and other Kings Reigns whereby the Succession of the Crown had been frequently entail'd upon those who were not the next Heirs by Blood and tho' the Queen be only mentioned in it yet it certainly as much concerns her Successors as all future Parliaments as the Oath of Allegiance in which the Queen is only mentioned does all future Kings and Queens And it is not only made Treason during her Life but also there is a loss of Goods and Chattels to be inflicted on all those who shall maintain after her decease that the Queen and Parliament had not Power to Limit the Succession And if the Parliament in her Reign could do this I desire to know whence it is that the present Parliament may not have the like Power As to what you alledge concerning the Judgment against the two Spencers being revers'd in â—1 th of Richard II. because done whilst Edward II. was still alive I desire you would take notice that this Parliament of Richard the Second was wholly made and pact by King Richard after the Banishment of the Dukes of Lancaster and Norfolk and that as well the Lords as Commons were in such fear of the Arbitrary Power he then exercised that they past whatever he would And in this Parliament it was that the Proceedings against the Chief Justice Tresilian and his fellow Judges who had been Condemned and Executed by Judgment in Parliament in the 11 th of this King were reverst And no prove the Illegality of this Parliament you need but consult the Statute-Book in 1 st of Henry the IV th where you will find one of the first Statutes after his coming to the Crown is to repeal all Acts and Proceedings made in that last Parliament of Richard the II d. M. I doubt this will not do the business for we maintain that Henry the IV th also his Son and Grand-Son were Usurpers and consequently all the Acts made in their Reigns were null and void F. I will grant you for once that Henry the IV th was an Usurper and that Edward the III d. was so also during his Fathers Life-time but then it doth not follow that all the Laws and Statutes made during those Times were null and void since you must needs know the contrary for even in that Parliament of the 21 th of Richard the II d. though 't is true that Judgment against the Spencers was revers'd for the Reason you have given yet did that Repeal extend to no other Statutes but that tho' made in the same Parliament of Edward the III d. whilst his Father was yet living But they are all of them held for good at this day as are also all the Statutes of the three Henry's whom you suppose to be Usurpers which have not been repealed by any subsequent Statutes as I can assure you those of the first of Henry the IV th are not and therefore are good Laws at this day So that nothing can be a plainer proof than this that let the King's Title to the Crown have been it would yet Allegiance was due to them as long as they continued in the Throne Therefore to conclude let me tell you I think it behoves you if you mean to keep that Office you hold under the Government to take the Oath of Allegiance to their present Majesties since you owe your Protection to their Government which certainly deserves a Temporary Allegiance as long as you enjoy the benefit of it And indeed the Oath it self is so loosly worded that methinks any Man may take it without any scruple since it doth no ways declare that the present King and Queen have an Hereditary Right to the Crown but only the Person swears to bear true Allegiance to their Majesties King William and Queen Mary which I think even Strangers and Denizens are bound to take as long as they continue in the Kingdom M. I am sorry you should think me after so long an acquaintance capable of doing any thing against my Conscience for any Worldly advantage whatsoever and therefore I must freely tell you that as for the Imployment I hold I will rather part with it if it were never so great than do any thing against my Conscience and that reputation I have hitherto maintained in the World of being an Honest Man And therefore I cannot take the Oath as a meer Denizen that owes Protection to the present Government Not only because this Oath is inconsistent with that I have already taken but also there is much more required of those that owe a Natural Allegiance to their rightful King than can be required of Strangers till they become Naturaliz'd by Act of Parliament And therefore it is that when any War breaks out between Neighbouring Princes all such Denizens who do not become absolute Subjects of this Kingdom by Naturalization if they will act like Honest Men must look upon themselves as oblig'd either to quit the Kingdom in case a War be declar'd against their natural Prince or at least are oblig'd not to act any thing to his prejudice though they may still inhabit and Traffick here which is a quite different Case from those who are not only born the King's Subjects but have also taken the Oath of Allegiance to him And therefore I can by no means think it Lawful to take this New Oath to King William and Queen Mary though it were required in no higher a sense than as King and Queen de facto since it can no ways consist with that Oath which I have already taken to King Iames and his right Heirs as I shall prove to you another time since it is now very late from the true sense and meaning of those words I will be Faithful and bear true Allegiance c. which can only be sworn to such Kings and Queens who besides a bare Possession have also a Legal and Hereditary Right to the Crown F. I shall be very glad to hear you farther upon this Question for if that can be made out I fear too many of the Clergy as well as Laity by mistaking the true Sense of this Oath have been Forsworn But pray tell me when I shall wait on you and hear what you have further to say upon this Important Subject M. Pray let me see you two or three days hence and then I shall be at leisure in the mean time am your humble Servant F. And I am yours FINIS Bibliothera Politica OR A DISCOURSE By WAY of DIALOGUE On these following Questions I. Whether an Oath of Allegiance may be taken to a King or Queen de facto or for the time being II. What is the Obligation of such an Oath whether to an actual defence of their Title against all Persons whatsoever or else to a bare submission to their Power III. Whether the Bishops who refused to take the Oath of Allegiance
should be so for it is not meerly a legal Title by descent but a legal investitute and recognition by Parliament that makes a legal King or a King in Law as it makes a legal Magistrate and then all Kings de facto who are placed in the Throne by a Legal Authority and with all Legal and acustomed Ceremonies are legal Kings and as such may require a legal Allegiance so that all those hard words in the Statute of the first of Edward the IVth that call those Kings of the House of Lancaster Kings in Deed and not of Right or pretended Kings mean no more than this that they were Kings for the time being and according to the Laws which had made them so though not according to that hereditary Right of Succession which those Statutes require If you have any thing to reply to this tell me or else I will proceed to answer your two other Arguments M. I will not at present say more to this than I have done and therefore you may proceed if you please F. Your two next Arguments are from the attainders of Richard the IIId and his principle Assistants which were by Act of Parliament as to that Prince himself as also his adherents the attainders of Kings de facto and their Assistants in after Parliaments do not prove that Subjects cannot be guilty of Treason against a King in possession nor does the Statute of Treason relate to a King de jure only for that Statute was not made to secure Princes Titles but the quiet of their Government whilst they sate upon the Throne for though a King if he be an Usurper when ever the Rightful King regains the Possession of his Throne if he were a Subject before may be attainted of Treason for his Usurpation as was Richard the IIId for Treason against his own Nephew King Edward the Vth yet this does no way prove that Richard the IIId was no true King during his Usurpation but only shews the Parliaments abhorrence of his Treason and to deterr others from falling into the like attainted him and several of his Accomplices who had assisted him in his said Usurpation for that they were not barely attainted for defending King Richard's Title appears from this that the Earl of Surrey Son to the Duke of Norfolk and divers other Noblemen and Gentlemen who fought for King Richard at Bosworth-Field were never attainted at all But as for the Pardon that you say passed in that Parliament of the 1 st of Henry the VIIth you are very much mistaken in the purport of it for if you please to look upon it again you will find that it was not a General Pardon for the Common People who had fought on the behalf of Richard the Third but of all those who had come over with Henry the VIIth himself or who were with him in the Field against Richard the Third for all manner of Murthers Spoils and Trespasses committed by them in taking part with King Henry against his Enemies so that you see the assisting of a King de facto was not only justifiable but those that had fought against him thought themselves not safe till they had their Pardons Nay farther that Attainders passed in Parliament are no proof that the Princes against whom they were passed were not lawful Kings appears from hence that when Edward the Fourth was driven out of the Kingdom and dispossessed of the Throne the next Parliament under Henry the Sixth passed an Act of Attainder against him and his Adherents But as for the Attainder of Henry the Sixth you are very much mistaken to suppose that it was for any Treason committed against Edward the Fourth but it was for breach of the agreement made with his Father the Duke of York and in making War again upon him for had he not done this he had continued lawful King during his life by the Duke of Yorks own consent for in the Parliament Roll you your self have already cited it is thus expressed That considering the possession of the said King Henry the Sixth and that he had before this time been named taken and reputed King of England and France and Lord of Ireland the said Duke is content agreeth and consenteth that he be had reputed and taken for King of England and of France with the Royal Estate Dignity and Preheminence belonging thereto and Lord of Ireland during his life natural and for that time the said Duke without hurt or prejudice of his said Right and Title shall take worship and honour him for his Sovereign Lord So that you see that by the Judgement of the Parliament and by the express consent of the Right Heir of the Crown a King de facto was to be own'd by this Right Heir for his true and lawful Sovereign and therefore could not be attainted for detaining the Crown from him or his Son M. I will not dispute this point any further but yet methinks though Treason might be comitted against the King de facto whilst he continues King yet this is not for any Allegiance due to him but because such Treason being against the due order of Government and the common peace of the Nation such actions are therefore Treason from the presumed or tacit consent of the King de jure F. I grant indeed that such Acts are against the Order of Government and very destructive to it which is the only reason why they are made Treason by Law and this is as good a reason why the Law should make them Treason against a King de facto as against a King de jure for they ere equally against the order of Government and destructive to it whoever is King and that is the only reason why they made it Treason at all Now this presumed or tacit consent of the King de jure is a very pretty notion and serves you for a great many good turns it makes Laws and it makes Treason and gives Authority to the unauthoritative Acts of a King de facto that is to say or you say nothing that the presumed consent of a King de jure invests the King de facto at the time with his Authority for if he have no Authority of his own unless what the presumed consent of the King de jure give him that cannot make any Treasonable Act done against him to be Treason for it cannot alter the nature of things nor make a Man guilty of Treason against any person to whom he ows no duty of Allegiance And if the presumed consent of the King de jure can invest the King de facto with his Authority it must transfer the Allegiance of the Subjects too and then Subjects are as safe in Conscience as if the King de jure were on the Throne for it seems there is his Authority and tacit consent though not his person But indeed this is all meer trifling the King de facto has Authority or else none of his Acts
Act of Parliament and therefore I must still tell you that you go upon a wrong ground when you suppose that there can be now any dispute who is rightful King of England since I have often told you that he can neither abdicate or forfeit his Right to the Crown and that no Parliament whatever much less a Convention could have any power to declare he had abdicated the Government and that thereby the Throne was become vacant for though I grant the judgement of the Estates of the Kingdom when legally assembled ought to be received with great submission and respect yet must it be only in such matters which they have a legal cognizance of and which they are impower'd by the Laws and Constitutions of the Kingdom to determine but since their Voting him whom you your self cannot deny to have been their lawful King to have abdicated the Throne when indeed he had not and then not only to declare the Throne vacant but also to place those therein whom you your self dare not affirm to be the next Heirs by blood are things quite out of their Element and beyond the Sphere of their Authority and though I grant that they may sometimes judge concerning the Succession of the Crown and who is next heir to it yet is this only to be understood as far as they judge according to the Common Laws of the Succession already laid down at our last Meeting and not when they go quite contrary to them and therefore though I own the Parliament might justly declare Henry the VIth to be an Usurper and consequently might be deposed yet doth it not therefore follow that they had a like right to declare Edward the IVth an Usurper and to pass an Act of Attainder against him as I confess they did after that Prince had held the Crown for ten years together since that was beyond their power to enact or declare by the fundamental constitution of the Government F. I am sorry your answer can afford nothing new but only the repetitions of the same false Principles and Arguments that have been already so often answered in our former Conversations for in the first place I have sufficiently proved that neither the Laws of God nor Nature have ordain'd any such thing as a lineal Succession of Kings or any irresistible or unforfeitable power in them which they can never fall from let them act never so tyrannically for I think I have sufficiently prov'd that not only in absolute Monarchies but also in limited Kingdoms where the King has not the sole Supream power a King may not only be resisted but may be also declar'd to have abdicated or forfeited his right to Govern in case of any apparent obstinate violations of the fundamental Constitution in those great points that make that Government to differ from a despotick Monarchy and that if they had not this right all their liberties will signifie nothing and their Lives Liberties and Estates would lie wholly at the Kings mercy to be invaded and taken away when ever he pleas'd I am forced to repeat this to remind you of the Reasons upon which those Principles are founded and therefore you do but fall into your old mistake when you affirm that by the fundamental constitution of the Government the Great Council of the Nation which was but the same with our late Convention had no power to declare the King to have broken the Original Contract between him and his People Therefore what you say concerning the want of Authority in this Great Council to declare the Throne vacant is altogether precarious unless you could also prove that it is against the fundamental constitution so to do whereas I have so far proved the contrary that the Throne has been declared vacant no less than eight times since the Conquest which makes up almost a third part of the Successions of all the Kings and Queens that have Reigned since that time so that if the custom and practice of Great Councils or Conventions and those not condemn'd by any subsequent Statutes can be the only Rule or Guide for the Consciences of all the Subjects of this Nation we have certainly had that as solemnly declar'd now as in any other Great Council or Convention that has been ever held in this Kingdom but as to what you say concerning the want of power in those Councils to declare or recognize who are the right Heirs to the Crown but not to make them so is very pleasant since that were all one as if two Men who contended for an Estate should bring the matter before the House of Peers and when that was done and the Case solemnly heard by Council on both sides that party who had lost the Cause should declare that this Court tho' the highest in the Kingdom had no power to judge in prejudice of himself who had an undoubted right to the Estate which were only to give the Lords power to give judgment only for one side and why the other Party if the judgment had been given against him should not have made the like Plea I cannot understand So that such a Judgement would be altogether in vain Therefore to apply this to our purpose though the Parliament being prevail'd upon by the strength and faction of the Duke of York did as I granted at our last Meeting declare that his Title could in no wise be defeated yet Henry the VIth being then in the Throne they might have certainly given a contrary judgement if they had pleased and then I suppose the Title of the House of York might have been so defeated as that the Nation had never been troubled with it again and so also when by the power of Edward the IVth a Parliament met and declared him to be lawful King from the time of his Fathers death yet when the said King was driven out of the Kingdom by the Earl of Warwick and King Henry the VIth restored to the Throne a Parliament was summon'd in the 49th of this King wherein Edward the IVth was declared an Usurper and himself attainted and to which Parliament the Duke of Clarence Brother to King Edward the IVth is first Summoned as well as the Arch-Bishop of Canterbury with all the other Bishops Temporal Lords and Judges of whom Littleton the Authour of the Book of Tenures was one so likewise upon King Edwards recovery of the Crown the year following King Henry was again deposed and a Parliament called wherein all the Dukes Earls and Barons with the Arch-Bishops of Canterbury and York and most of the rest of the Bishops Swore to Prince Edward after called Edward the Vth as Right Heir of the Crown Now I desire to know what other Law or Rule there was then for the Subjects Allegiance but the solemn judgement or declaration of the Estates of the Kingdom assembled in Parliament since their Acts and Judgements were in this dispute directly contradictory to each other so that it is evident