the Aldermen or Burgesses of Towns Represent those which we now call the Commons And supposing that then there were no Knights of Shires yet these being then the only Proprietors of any considerable Estates of Land in the Nation might very well represent all their Vâ—ssals or Vnder-Tenents as Tenents for years and at Will are at this day by the Knights of Shires tho they have no Votes at their Elâ—ction To conclude tho I grant that the King 's of England are the Fountain of that Honour which we call Peerage Yet it is only in Pursuance of that Ancient Constitution which their Ancestors brought out of Old Saxony and Normandy along with them as the firmest defence of Kingly Power against the Insolency and Encroachments of the Common or Meaner sort of People as well as Tyranny in their Princes And therefore in all Monarchies where there is no Hereditary Nobility the Prince hath no surer â—ay to maintain his Power than by Standing Armies to whose Humours and Pactions he is more Subject and is also more liable to be Murdered or Deposed by them when discontented with him than ever any limited Prince yet was or can be by his Nobility or People As I could shew you from a multitude of Examples not only from the Roman but Moorish Arabick and Turkish Histories and therefore to constitute a lasting stable limited Monarchy as ours is it must be according to the Model I have here Proposed M. I shall not contradict the latter part of your Discourse but I must freely tell you that if as you your self grant there were no Knights of Shires in the Saxon times I cannot see how those we call the vulgar or Commons of England had then any Representatives in the Great Council since those Thanes or Lords of Mannors whom you suppose to have Represented their Tenants or Vassals were never chosen by them and consequently could not properly be their Representatives But I think it will be easy enough to prove that none of your Inferior or middle Thanes but only the Chiâ—f or Superior had places in those Assemblies So that these Feudal Thanes or such as held of the King in Chief by Military Service were of the sam Kind with them that were after the Norman times Honorary or Parliamentary Barons and their Thainlands alone were the Honorary Thainlands and such as were afterwards Parliamentary Baronies Nor can I find any Footsteps in our Ancient English Histories of Cities and Buroughs sending any Representatives to those Great Councils So that admit I should own at present that the Bishops and some Great Abbots had from the first Setling of Christianity in this Island an Indisputable place in the Great Councils and likewise that the Earls Aldermen or Great Nobility had also Votes in those Assemblies and that the Chief Thanes or less Nobles had also their places there by reason of the Tenure of their Estates yet certainly the House of Commons was of a much later Date and owed its being either to the Grace and Favour of our Kings of the Norman Race or else to those that had Vsurp't their Power And this I think Dr. Brady hath very well proved against Mr. Petyt and I think I could convince you also of the Truth of it by his as well as other Arguments were it not now too late to enter upon so long a Subject F. Therefore pray let us defer any further Discourse of this Question till the next time we meet wherein I hope I may shew you that if you owe that Opinion to the Doctors Arguments he hath led you into a very gross mistake And I shall only at present take my leave of you and bid you good night M. I wish you the like ADVERTISEMENT A Brief Discourse of the Law of Nature according to the Principles and Method laid down in the Reverend Dr. Cumberland's now Lord Bishop of Peterborough's Latin Treatise on that Subject As also his Confutations of Mr. Hobb's Principles put into another Method With the Right Reverend Author's Approbation FINIS Bibliotheca Politica Or A DISCOURSE By way of DIALOGUE WHETHER The Commons of England represented by Knights Citizens and Burgesses in Parliament were one of the Three Estates in Parliament before the 49th of Henry III. or 18th of Edw. I. Collected out of the most Approved Authors both Ancient and Modern Dialogue the Sixth LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford-Arms where also may be had the First Second Third Fourth and Fifth Dialogues 1693. Authors made use of and how denoted 1. Mr. Pettit's Ancient Right of the Commons of England Asserted P.R.C. 2. Dr. Brady's Answer thereunto Edit in Folio B. A. P. 3. The said Doctor 's Glossary at the end of it B. G. 4. Anamadversions upon Treatise Ianii Anglorum forces novo B. A. I. 5. The Author of Ianus c. his Confutation of the said Doctor entituled Ianus Anglorum ab Antique I. A. A. 6. Dr. Brady's Preface to his History B. P. H. 7. Dr. Iohnston's Excellency of Monarchical Government I. E. M. G. THE PREFACE TO THE READER HAving in my last Discourse treated of the Legislative Power of this Kingdom as also the Ancient Constitution of our English Government by great Councils or Parliaments the former of which questions I should scarce have dwelt so long upon had I then known of a Learned Treatise now 〈◊〉 to be publisht on that Subject I am at last arrived at the hardest and most important though perhaps in the Iudgment of some the driest and most unpleasant part of my Task viz. Who were anciently the constituent Parts or Orders of Men who made up thâ—se Assemblies That the Bishops Abbots Priors Earls and Chief Thanes or Barons were Principal Members is granted by all Parties but whether there were from the very Original of these Great Councils nay till long after the coming in of the Normans any Representatives for the Commons as we now call them in distinction from the Lords Spiritual and Temporal is a doubt which as it was for ought I can find first raised by an Italian who writ the History of England in the last Age so hath it been continued by some Antiquaries of our present Age though the first that ever appeared to prove the contrary was a Treatise published by James Howel in the Cottoni Posthuma under the Name of Sir Robert Cotton about 1654. but whether it was his or no I know not only it was supposed to be so by Mr. Pryn in his Preface to the Collection of Records which he published under the Name of the same Author in 1657. and after him this Notion of the Bishops Lords and other Tenants in Capite being the Sole Representative for the whole Nation in those Councils was next printed in the Second part of Sir Henry Spelman's Glossary Tit. Parliamentum where King John's Charter is made use of at the main Argument to prove that Assertion The next who appear'd in Prâ—nt on
why the Commons could not be represented in Parliament before the 49th of Hen. III. and 18th of Edw. I. M. I will proceed to do it and for this end shall reduce my Arguments to these three Heads the first is some Writs found out and produced by the Doctor whereby he proves that the Commons were not Summoned during the Reign of Hen. III. till the 49th secondly the general silence of all Statutes in Hâ—n III. Reign wherein is not one word mentioned of the Commons but rather to the contrary thirdly the critical Time viz. in the 49th of Hen. III. when the Commons were first called during Monsfords Rebellion fourthly their discontinuance from that time till the 18th of Edw. I. there being no mention made of them in all the rest of the Reign of Hen. III. nor yet of Ed. I. till the 18th in which the Doctor shews you a Writ not taken notice of before by which the Commons were Summoned a new to Parliament Lastly from the uncertainty of the manner of the Writs of Summons whether for one Knight or two Knights and sometimes no Citizens and Burgesses at all which sufficiently prove the Novelty of the Institution as also of some Parliamentary Forms relating to the Commons which shew that neither their number nor manner of Election was settled long after the Reign of Edw. I. To begin therefore with the first Head I know the Gentlemen of your opinion make a great Noise about the loss or rather defect of the Writs of Summons and Parliament Rolls of all the Kings till the 23d or 25th of Edw. I. So that we cannot be so well assured what was done in Parliaments of those times as we may be afterwards Yet there are still some Writs of Summons Extant upon the Close Rolls before and in those times by which the Bishops Earls and Barons were Summoned to Parliaments or great Councils And we have all the Close Rolls of King Iohn and Henry III. on the Dorseâ— of which anciently most of the Writs of Summons to the Commons in other King's Reigns are entred few on the Patent Rolls which we have likewise 'T is therefore very strange if the Commons were then represented by Knights Citizens and Burgesses and Summoned to Parliament as at this day that there cannot be found any Summons to them upon these Rolls as well as to the Lords But the Learned Doctor hath for our Satisfaction found out three Writs of Summons to the Lords one in King Iohn's Reign and two other of Hen III. The first is in the Close Roll 6th of King Iohn directed to the Bishop of Salisbury which is needless here to be repeated Verbatim only pray take notice of the material words of this Writ where after the Cause of the Summons particularly expres'd it concludes thus expedit habere vestrum Consilium aliorum Magnatum Terrae nostrae quos ad diem ilium Locum fecimus convocari The second is in the Close Roll of the 26th Hen. III directed to W. Arch-bishop of York wherein he is likewise Summoned ad tractandum Nobiscum una cum caeteris Magnatibus nostris quos similiter fecimus convocaâ—i de arduis Negotiis nostris statum nostrum totius Regni nostri specialiter tangentibus with this note underneath eodem modo Scribitur omnibus Episcopis Abbatibus Comitibus Baronibus The third is of the 38th of the same King directed to Boniface Arch-bishop of Canterbury whereby he is Summoned to be at Westminster within Fifteen days after Hillary next coming before the Queen and Richard Earl of Cornwail about the Affairs of Gascony and this very Council Mat. Paris Anno. Dom. 1254. calls a Parliament to which all the Magnates or great Men of England came together the Day of which Meeting he makes to have been the 6th of the Calends of February being St. Iulian's day and which fell one within Fifteen days after St. Hillary's Day which was that appointed for the Meeting of this Parliament by the aforesaid Writ of Summons and who were the Constituent parts of this Parliament may be be farther made out by a Letter of the Queen and Earl Richard to the King then in Gascony which is recited by Mat. Paris in his Additaments in these words Domino Regi Angliae c. Regina Richardus Comes Cornubiae Salutem Recipimus literas Vestras ad Natale Domini proximae praeteritum quod in Crastino Sancti Hillarii Convocaremus Archiepiscopos Episcopos Abbates Priores Comites Regni Angliae ad ostendendum c. Whereby it appears who were then the Constituent parts of Members of our English Parliaments viz. the Archbishops Bishops c. Earls and Barons of the Kingdom So that there is no such Universal silence concerning the Constituent Parts of our Parliaments as you and those of your Party suppose from the loss of the Parliament Rolls of those times most of which though I confess are lost yet there are enough left to satisfie any reasonable Person that there were then no Commons in Parliament in the sense they are now taken F. You cannot give me a better demonstration of the loss of the Parliament Rolls and Writs of Summons than what you now offer for if we have all the Close Rolls of King Iohn and Henry III. on the Dorses of which you tell me the Writs of Summons use to be entered then certainly those to the Lords were there entered also and if so how comes it to pass that in above Eighty Years time in which there must be above Eighty Parliaments you can shew me but three Writs of Summons and those only to as many Bishops and to no Temporal Lords at all If so be these were Parliaments and not great Councils of the Bishops Lords and Tenants in Capite only as I rather believe they were for you rely too much upon you Doctors credit when you alledge that we have all the Close Rolls of King Iohn and Henry III which is a great mistake for I have had a Friend who has given me a note of what Close Rolls are still Extant in those Reigns and what are lost which you may here see To begin with King Iohn pray observe that all the Close Rolls of the first Five years of his Reigns are gone and so they are in the 9th 10th 11th 12th and 13th for certainly there were some in those as well as in the succeeding years In the next place till the 18th there is but one Roll left of each year but then there are three and after that but one or two in a year to the very end now pray tell me how we can be assured that there was not more then one Roll in every precedent year as well as in the 15th the like I may say for the Reign of Hen. III. which though I grant are more entire then those of King Iohn there being some left us of every year but the 23d yet they are but
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
void Clause then how came it to be so afterwards pray say what alteration has been made in the Laws of England by Act of Parliament as to this point since the time that these Acts have been made for if not how comes a clause that had force in 23 Henry VI. to have none in a Henry VII could the Twelve Judges in the Exchequer Chamber by giving their Opinions destroy the force of an Act of Parliament M. I do not say they can only I affirm with my Lord Coke and all the Judges That no Act can bind the King from any Prerogative which is inseparable from his Royal Person but he may dispense with it by a new Obstante as a Sovereign power to command any of his Subjects to serve him for the publick-weal Nor can this Royal Power be restrain'd by any Act of Parliament And upon this ground it is that my Lord Coke in the 12th Report from whence I have taken this Conclusion maintains that such Dispensations made by Sheriffs are good and upon the same ground the Dispensation lately granted by the King to Sir Edward Hales and all other Popish Officers and Ministers as well Civil as Military must be also good F. But admit I shew you that there was never any such Judgment in the Exchequer Chamber in the 2 of Henry the VII as my Lord Coke and late Lord Chief-Justice Herbert supposes will it not then follow that all their Arguments that are wholly founded upon this Statute will fall to the ground M. Yes indeed that will be something but how will you prove that can you believe so many learned Judges should be mistaken in this matter and those of your opinion only should make this discovery F. I do not desire you should believe me but your own eyes and therefore look upon the Year Book it self here you see that it is indeed so far true that all the Justices were of opinion that the Grant of the Sheriffdom of the County of Northumberland to the E. of that County for Life was good but do not tell us all the reasons whereon their judgment was grounded tho it seems to have been because the Sheriffdom of that County had been commonly granted for life before this Statute of Henry the VI. was made as appears by these Words in the Year Book Iudgment for it is such a thing as may be well granted for Term of Life or Inheritance as divers Counties have Sheriffs by Inheritance which began by the King 's Grant then was shewn a Resumption I suppose it meant an Act of Resumption of the Sheriffalty as appears by the following Words and then was shewn a Proviso for it Count. de N. and if so the King had a right to grant it only for Life again but none save Radcliff one of the Barons of the Exchequer cites the Statutes of the 28 th and 42 d. of Edw. the III. against Sheriffs holding for above a year but doth not cite this Statute of the 23 d of Hen. the VI. at all nor doth he or any other of the Judges nor the Court ground their Opinion upon any Non-obstantes express'd in the said Acts for if you please to consult them you will find there is no Clause of Non obstante in any of them before the 23 d of Henry the VI. which is not at all mention'd here therefore I wonder how Fitz Herbert in his Abridgment comes to vary so far from the Year Book from whence he must have took it as to make the Judgment to have been grounded upon the Non obstante in that Statute of Henry VI. for none but Radcliff speaks any thing of the Patents being good with a Non-obstante to those Statutes and the Court in all the rest of the Case agree the Patent to be good by reason of the said Proviso in an Act of Resumption and then fall into debates concerning the other point how this Patent was to be understood M. I must confess if this be so as it seems to be prima facie I wonder my Lord Coke and other Learned Lawyers have laid so great a stress upon and drawn so many Arguments from this Judgment of the Judges tho I must needs also tell you that tho only Radcliff insists upon the Non-obstante yet since the rest of the Judges did not contradict him it seems to me that they all concurr'd with him since according to the Proverb Silence often gives consent But this much I suppose you cannot deny but that ever since Henry VIII time at least Sheriffs have been frequently continued for above a year and the Judges have been also dispenced with to go the Circuit in their own County and Welchmen have been commonly made Judges and other Officers in Wales by vertue of the King's Dispensations notwithstanding the particular Clauses of Non-obstante in the Statutes of Richard the II. Henry the IV. and Hen. the VI. by which they are expresly prohibited F. I do not deny what you have now said as to matter of Fact only let me tell you I conceive that the Reason why the King has taken upon him to dispence with those Statutes you mention was because that the Causes for which they were first made have long since ceased For when those Statutes against Judges going the Circuit in their own Counties and Sheriffs holding for above a year were made both the Judges and Sheriffs were found the one by going their Circuits in their own Counties where they had great Interest and Acquaintance to have too much awed the Common-juries and the other by their great Estates and Commands in the Country to have made partial returns of Jurys and also by their long continuance in their Office to have learnt a trade of oppressing the people so when by the stop that was put to those Abuses by these Statutes you have mentioned there was no need of a strict observation of these Laws and also when after the Civil Wars between York and Lancaster and all things became setled under King Henry the VII who was of a Welcâ—â— Family there was then no more need of observing the Statute of Henry the IV. against Welchmens beating Offices especially after the Stat. of the 27th of Henry the VIII when Walâ—s became incorporated with England and had by that Statute a right conferr'd upon it of sending Members to Parliament tho the Parliament might not think fit or at least forgot to repeal them and yet finding that the Kingdom received no prejudice but rather benefit by such Dispensations and not caring to quarrel with their Kings for sometimes using a Prerogative by which they were rather benefited than grieved those Dispensations have ever since passed without any complaint in Parliament which would certainly have been before this time had they sound the same Grievances and Reasons to have still continued for the strict observance of those Laws as there were at first for the making of them tho if they will have my private Opinion
make them the first breachers of it whereas you may find that it was the opinion of the whole Convocation for many years before ever those Divines or that Gentleman began to Preach or write upon this subject Nor were these the only men who maintained these Principles but Archbishop Usher and Bishop Sanderson whom I suppose you will not reckon among your flattering Court Bishops have as learnedly and fully asserted those Doctrines you so much condemn as any of that party you find fault with and have very well proved all resistance of the Supream Powers to be unlawful not only in absolute but limited Monarchies Of the Truth of which you may sufficiently satisfie your self if you will but take the Pains to read the Learned and Elaborate Treatises written by those good Bishops viz. The Lord Primate Usher's Power of the Prince and Obedience of the Subject and the Bishop of Lincoln's Preface before it as also the said Bishop's Treatise de Iura nouto written whilst he was Doctor of the Chair in Oxford F. I must beg your pardon Sir if I have never yet seen or heard of that Convocation Book you mention much less of the opinions therein contained since there is no mention made of their proceedings in any History or Record of those times either Ecclesiastical or Civil as I know of But this much I am certain of That these Determinations or Decrees you mention call them which you please never received the Royal Assent much less the confirmation of the King and Parliament one of which if not both is certainly requisite to make any opinion either in Doctrine or Discipline to be received by us Lay-men for the Doctrine of the Church of England otherwise the Canons made in 1640 would oblige us in Conscience tho' they stand at this day condemned by Act of Parliament so that however even according to your own Principles you cannot urge this Book as the Authoritative Doctrine of the Church of England unless their Determinations had received the Royal Assent which you your self do not affirm they had for you very well know that as in Civil Laws no Bill is any more than waste Parchment if once the King hath refused to give his Royal Assent to it so likewise in Spiritual or Ecclesiastical matters I think no Decrees or Determinations of Convocations are to be received as binding either in points of Faith or Manners by us Lay-men till they have received the confirmation of the King and the two Houses of Parliament or otherwise the consequence would be that if the King who hath the nomination of all the Bishopricks and Deaneries as also of most of the great Prebendaries in England of which the Convocation chiefly consists should nominate such men into those places which would agree with him to alter the present establisht Reformed Religion â—n Governmenâ— and to bring in Popery or Arbitrary Power the whole Kingdom would be obliged in Conscience to embrace it or at least to submit without any contraditioâ— to those Canons the King and Convocation should thus agree to make which of how fatal a consequence it might prove to the Reformed Religion in this Kingdom this Kings choice of Bishops and Deans such as he thought most fit for his turn would have taught â—s when it had been too late M. You very must mistake me Sir if you believe that I urge the Authority of this Book to you as containing any Ecclesiastical Canons which I grant must have the Royal Assent but whether that of the two Houses of Parliament I very much question since the King without the Parliament is Head of the Church and diverse Canons made under Queen Elizabeth and King Iames are good in Law at this day tho' they were never confirmed by Parliament But I only urge the Authority of this Book to you to let you see that these Doctrines are more Antient than the time you prescribe and also that the Major part of the Bishops and â—lergy of the Church of England held these Doctrines which you so much condemn long before those Court Bishops or Divines you mention medled with this controversie and I suppose we may as well quote such a Convocation Book as a Testimony of their sense upon these subjects as we do the French Helvetian or any other Protestant Churches Confessions of Faith drawn up and passed in Synod of their Divines tho' without any confirmation of the Civil Power F. If you urge this Convocation Book only as a Testimony and not Authority I shall not contend any further about it but then let me tell you that if the Canons or Decrees of a Convocation though never so much confirmed by King and Parliament do no further oblige in Conscience than as they are agreable to the Doctrine of the Holy Scriptures sure their determinations without any such Authority can only be look'd upon as the Opinions of so many particular private Men. And tho' I have a very great Reuerence for the Judgments of so many Learned Men yet granting those Doctrines you mention to be contained in this Book I think notwithstanding that we may justly examine them according to the Rules of Reason and express Testimonies of Scripture by either of which when I see you can convince me of the falshood of my Tenets I shall count my self happy to be beâ—â—er informed But as for those Treatises of Bishop Usâ—er and Bishop â—anderson which you now mentioned I must needs confess they are learnedly and elaborately writen and tho' I am against Rebellion as much as any man and do believe that subjects may too often be guilty of it yet am I not therefore convinced that it is absolutely unlawful in all cases whatsoever even in the most Absolute and Arbitrary sort of Civil Government for the People when violently and intolerably opprest to take up Arms and resist such unjust violence or to join with any Foraign Prince who will be so generous as to take upon him their deliverance So that though I freely acknowledge that those good Bishops you mention were very Pious and Learned men â—im â—hat I bear great reverence to their memories yet doth it not therefore follow that I must oâ—â— them to be Infallible or as great Polititians as they were Learned Divines or that they understood the Laws of England as well as they did the Scriptures or Fathers and perhaps there may be a great deal more said on their behalfe than can be for divers others who have since Wâ—â—een and Prâ—â— so much upon those subjects for if you please to consider the times of their writing those Treatises you will find them written about the beginning or middle of the late Civil Wars which they supposed to be begâ—n and carried on contrary to all Law and Justice under the pretenced Authority of the two Houses of Parliament against King Charles the First and therefore it is no wonder if they thought themselves obliged to Write very high for the Prerogatives
and Rights of Princes and the absolute obedience of Subjects when they saw even the Kings just and lawful Prerogatives in danger to be taken from him by force And altho' they may perhaps stretch several of these points too far yet this may be very excuseable since it is a hard matter to Write so exactly against any error as not to fall into the contrary Extream which nevertheless may sometimes prove useful enough As those who would set a stick straight are forced to bend it to the other side and so these Doctrines which might then be seasonable whilst the People carried on their animosities against the King farther than in Justice they ought have not now the same reason and cogency when this King hath so manifestly endeavoured to pull up the very foundations both of our Religion and Government So that I am perswaded could those good Bishops have lived by the course of Nature to our times and have seen the ill and fatal use hath been made of those Doctrines by those in Power they would either absolutely have renounc'd them or at least have been very cautious how they publish't such doubtful opinions to the World M. I must beg your pardon Sir if I am not of your Opinion for I look upon the absolute subjection of the subjects to the higher or supream Powers to be a thing of such constant and eternal Obligation that no change of times or circumstances can ever dispense with us in or discharge us from it and I am so far from believing that those good Bishops would ever have recanted their opinions in this particular that had thâ—y lived until this time I think they could not without the imputation of time servers have forborn publickly to declare and maintain them for sure we must not deny or lay aside true Principles because of some inconveniences or hardships that may thereby happen to our Religion Persons or Civil Liberties since that were the ready way to give a Licence to the rankest Rebellion and the highest disobedience to the Supream Powers for so the Primitive Christians might have claimed a right to Rebel against the Heathen Emperors pretending they were not bound to submit themselves unto them because they persecuted Gods Church and put the Christians to death for no other reason than that they were such Whereas we may plainly see St. Peter and St. Paul teach us another lesson and command absolute subjection without reserve to the higher Powers which were then the Tyrannical persecuting Emperours and that the Primitive Christians who immediately followed the Apostles understood them in this sense and altho' they had sufficient strength yet thought it unlawful to resist those â—eathen Emperor 's under which they liv'd I refer you to that vast Treasure of Quotations out of the Fathers and Antient Church Historians collected with such Learning and Industry by the Lord Primate Usher in the second Treatise F. It is not my intention Sir at present to fall into a severe examination of so many Texts of Scripture and Quotations of Fathers and other Authors as are made use of by those Learned Men you lately mentioned which require more consideration than our short time will now afford therefore the best method I can propose to you for the true stating and understanding this Noble Controversie were first to look into the Natural state of Mankind after the Fall of Adam and enquire First If God has appointed any kind of Government by Divine Institution before another Secondly If he has not how far Civil power may be lookt upon as from God and in what sense as deriv'd from the people Thirdly Whether Resistance by the Subjects in some Cases be incompatible and absolutely destructive to all Civil Government whatsoever Fourthly Whether such Resistance be absolutely contrary to the Doctrine of Christ contain'd in the Scriptures and that of the Primitive Church pursuant thereunto Fifthly Whether such Resistance be contrary to the Constitution of this Government and the express Laws of the Land Sixthly Whether what has been done by the Prince of Orange and those of the Nobility Gentry c. in pursuance of these Principles has been done according to the Law of Nature the Scriptures and Ancient Constitutions of this Kingdom which material Points if we can once suttle and discover where the Truth lyes it will prove the clearest Comment and best Interpretation of all those places of Scripture and Quotations of Fathers and other Authors which are Cited by Divines or other Writers for the Doctrines of the Divine Institution of Monarchy and the Absolute Subjection of Subjects without any Resistance For when we have once discovered what the Law of Nature or right Reason dictates I think we may rest satisfy'd that that is the true Sense of the Scripture God not having given us any Precept or Command in Moral or Practical things that can be contrary to the Law of Nature or Reason or incompatible with the happiness and welfare of Mankind in this Life as the Reveal'd Will of God does chiefly regard that which is to come M. I do very well approve of your Proposal and therefore pray give me first your Opinion on those Heads that I may see how far I may agree with you and wherein I must differ from you for I do assure you my Intention is not to argue with you meerly for disputes sake but that we may correct the Errors of each others understanding and discover if it be possible where the Truth lyes therefore pray Sir begin first with the Natural state of Mankind but remember to do it like a Christian and one that believes that we are all deriv'd from one first Parents and that we did not at first spring up out of the Earth like Mushrooms or as the Men whom Ovid â—eigns to have been produc'd of the Dragons Teeth Cadmus is feigned to have sown who as soon as they sprung out of the Earth immediately fell a Fighting and Killing each other F. I thank you Sir for your honest and kind advice and shall therefore in the first place suppose that the necessity as well as being of all Civil Government proceeded from the Fall of Adam since if that had not been we had still liv'd as the Poets fancy Men did under the Golden Age without any need of Kings or Common-wealths to make Laws against Oppression Theft Adultery Murder and those other Injuries which Men are now too apt in this lapsed corrupt state to commit against each other much less would there have been any need of Judges or Executioners either to sentence or punish Offenders for if Man had continued as free from Sin as he was in Paradise there could have been no need of a Supream Coercive Power since every Man would have perform'd his Duty towards God and his Neighbour without any punishment or constraint So that all the Authority that can be suppos'd could have been then necessary for the Good and Happiness of Mankind would
in all Democracies the People By the like reason in a Monarchy the King must of necessity be above the Laws there can be no Soveraign Majesty in him that is under them That which gives the very being to a King is the Power to give Laws without this Power he is but an Equivocal King And most part of what follows in this Treatise is only to prove that the Parliament or Assembly of Estates was a Creature wholy of the King's Creation and consequently that he alone makes the Laws in it And he hath also written a whole Treatise called The Free-holders Grand Inquest to prove that it is the King's Authority alone that makes the Laws and therefore that he can interpret and dispense with them at his pleasure So that Richard the Second had this Author lived in his time might have made him a Judge as weâ—l as Treâ—illian and Belknap since they all maintained the same Principles But lest we should mistake him see what he says at the conclusion of this Treatise For the confirmation of this Point Aristotle saith That a perfect Kingdom is that wherein the King Rules all things according to his own Will for he that is called a King according to the Law makes no kind of Kingdom at all This it sâ—ems also the Romans well understood to be most necessary in a Monarchy for 〈◊〉 thâ—y were a People most greedy of Liberty yet the Senate did free Augustus from all necessary of Laws that he might be free of his own Authority and of absolute Poâ—â—r over himself and over the Laws to do what he pleased and leave undone what he liâ—t and this Decree was made while Augustus was yet absent Accordingly we find that Ulpian the great Lawyer delivers it for a Rule of the Civil Law Princeps Legibus solutus est The Prince is not bound by the Laws So that upon these Principles all Kings are not only discharged from the Penalty but also the very Obligation of observing Laws farther than they shall think sit And indeed this Author carries this Prerogative beyond what the most moderate Roman Emperours ever pretended to as I can easily shew you from your own Civil Law-Books and therefore pray reach me down your Volume of the Code and fee here what the Emperour declares on this matter de Testamentis Ex imperfecto Testamento nec Imperatorem haereditatem vindicare posse sape constitutum est licet enim Lex Imperii Solennibus juris Imperatorem solverit Nihil tamen tam proprium Imperii est quà m Legibus vivere See likewise in the Theodosian Code these words Digna vox est Majestate Regnantis Legibus alligatum se Principis prositeri aded de Authoritate juris nosira pendet Authoritas re vera majus Imperio est submittere Legibus Principatum oraculo praesentis Edicti quod nobis licere non patimur aliis indicamuâ— viz. Successorâ—buâ— Theodosio Valentino So that you may here see that even the Roman Emperours were more modest than to declare themselves discharged by their Prerogative or thought of any of these subtile distinctions of this Author from their obligation to the Laws however they were from the Penalty which is the true sense of this phrase of being Legibus solutus But God be thanked most of our own Kings have been more conscientious than to maintain that they were not bound by their Coronation Oath farther than they pleased For you may see in the Preamble to the Statute of Provisours made in the 25th of Ed. 3d. where it is declared and acknowledged by the King himself and both Houses of Parliament that the Right of the Crown of England and the Law of the Realm is such that upon the Mischiefs and Damages which happen to the Realm he ought and was bound of his said People in his Parliament thereof to make Remedy and Law in voiding the Mischiefs which come thereof And the King seeing the Mischiefs and Damage aforesaid and having regard to the said Statute scil the former Statute of Provisours he here farther acknowledges that he is bound by his Oath to do the same to be kept as the Law of his Realm tho' by sufferance and negligence it hath been hitherto attempted to the contrary So likewise King Henry the fourth declares in full Parliament as appears by the Parliament Roll that whereas the Commons in Parliament had granted that the King should be in as great Liberty as any of his Noble Progenitors on which our said Lord of his Royal Grace and tender Conscience hath granted in full Parliament that it is not his intent nor will he alter the Laws Statutes and good Usages nor take any Advantages by the said Grant but will keep the ancient Laws and Statutes ordained and used in the times of his Noble Progenitors and do Right to all People in Mercy and Truth Selonâ— son Serment i. e. according to his Coronation Oath M. I will not affirm but Sir R F. observing how much the Kings Prerogative was run down by the long Parliament and how the least Slips and Miscarriages in Government were aggravated by the Demogogues that then Domineered as open and violent breaches of his Coronation Oath might be willing to make the best defence he could for such Miscarriages and this Treatise of Patriarcha being a Posthumous piece perhaps he would have altered many things in it had he lived to publish it himself but I doubt not but he was a very honest Man and meant well to the Kingdom for all that And therefore I hope you will not be too rigorous in your Censure of him F. I 'll assure you Sir I shall not because he hath been dead many years and therefore I had much rather censure his Writings than his Person which I never knew But if I may Judge from his Works he was certainly no Friend to Parliaments or the Power of the Laws above the Prerogative But that I may also shew you how dangerous and Derogatory his Opinions likewise are to the Titles of all Soveraign Princes and Monarchs now in the World however he may seem to write in their defence pray turn to his Patr. Chap. 1. Par. 9. and to a Question 〈◊〉 becomes of the Right of Fatherhood in case the Crown escheat for want of an Hâ—ir he thus replies which pray read It is but the Negligence or Ignorance of the People to lose the Knowledge of the true Heir For an Heir there always is If Adam himself were still living and now ready to dye it is certain there is oâ—â— Man and but one in the World who is next Heir altho' the Knowledge who should be that one man be quite lost The which he likewise repeats to the same Effect in his Treatise of the Anarchy of a limited or mixed Monarchy Pray see the place and read these words It is a truth undeniable that there cannot be a Multitude of Men whatsoever either great or small
Second He gives us in his Prologue to his Treatise of the Laws of England this Testimony Leges namque Anglicanas liceâ—â—on Scriptas Leges appellari non videtur absurdum cum boc ipsum Lex sit quod Principi placet Legis habet vigorem â—as Scilicet quas super dubljs in conâ—ilio definiendis Procerum quidem consilio Principis accadente Authoritate constat esse promulgatas So likewise Bracton in his very first Chapter speaks much to the same purpose Cum Legis vigorem habeat quicquid de Consilio de Consâ—nsu Magnatum Reipublicae commâ—ni Sponsione Authoritate Principis prâ—ceâ—â—nte justè fuerit definiâ—um approbatum And also in his third Book Chap. 2. When he speaks of the Antient manner of making Laws in England he says Quae quidem fuerint approbate concensu utentium Sacramento Râ—gum confirmaâ—ae non possunt mutari atâ— destrui fine communi consensu utentium consilio eorum quorum consilio Consensu fuerint promulgata Where you may see these Ancient Authors plainly declare that nothing hath the force of a Law in this Kingdom but what is approved of and consented to by all Orders of Men either by themselves or their Representatives And which is very Remarkable Bracton supposes the King's Authority or Royal Sanction of a Law may precede the Consent of the Great Council which quite destroys that Notion That it is the Kings giving his last Assent which gives it the Essence and Vigour of a Law And with these more Antient Sages of the Law Fortescue also agrees in his 9th Chap. Dâ— Laudibus Legum Angliae where he says Rex Angliae Populum gubernaâ— non mera potesâ—â— to Regid sed politica Populus enim ijs Legibâ— guberâ—â—tur quas ipse fert c. What follows is word for word the same with what Bracton had before in his first Chap and therefore needs not to be Repeated so likewise in the 18 Chap. speaking of the Absolute Legislative Power of Kings in some other Kingdoms he thus proceeds Sed non Sic Angliae Statuta oriri possunt dum nelum Principis voluntate sed toâ—ius Regni Assensu ipsa conduntur quo Populi laesuram nequiunt vel non eorum Commodum procurare But if they after prove inconvenient he immediately adds Concito reformari ipsa possunt sed non fine Communitatis Proterum Regni illius Assensu quali ipsa primitùs emanarunt To which I may also add an Authority out of that Learned Author St. German who in his Dialogue called the Dr. and Student written in Latin in the 10th Chap. Entituled de Sexto fundamento Legis Angliae The Student thus speaks Sexium Fundamentum Legis Angliae sâ—at in diversis Statutis per Dominum Regem Progenitores suos per Dominos spirituales Temporales per Communitatem totius Regni in Parliamentis Editis ubi Lex Rationis Lex Diviâ—a Consuetudines Maxima sive alia fundamenta Legis Anglia prià s Sufficere minimè videbantur Where you see the Legislative Power is here Attributed to the Lords and Commons joyntly with the King And therefore my Lord Coke in his Notes upon the Statute of Westminster I calls it a Compleat Parliament as consisting of all the Estates necessary thereunto for says he a Parliament concerning making or enacting Laws Consists of the King the Lords Spiritual and Temporal and Commons and 〈◊〉 is no Act of Parliament unless it be made by the King Lords and Commons M. I shall not much concern my self with what your Common Lawyers either Ancient or Modern have writ upon this matter much less what Sir Edward Coke a known Enemy to the Kings Prerogative doth maintain Since I have as good or a better Authority than he viz. that of the Year-Book of 22 Ed. 3. Wherein it is expresly declared by divers Earls and Barons and by all the Justices in the Case of one Headlow and his Wife who had a Suit with the King That the King makes the Laws by the Assent of the Lords and Commons and not the Lords and Commons and that He could have no Peer in his own Land and that the King ought not to be Judged by them So that it is I think evident that the Laws are primarily and properly made by the King and that the two Houses have a Cooperation but no Co-ordination of Power with him And though at this Day I grant that Custom hath made the Assent of the Lords and Commons necessary to the passing of all Laws yet it is still the King's word or le Royâ—le veulâ— that makes them so and I much doubt whether even this were part of the Ancient Constitution of this Kingdom or not or proceeded at first from the Gracious Favour and Permission of former Kings as I could shew by the whole Series of Councils in the Saxon times if it were not too tedious to mention them particularly therefore I shall only Select some of the most Remarkable For though I confess the English Saxon Kings performed all Great and Considerable things by the Counsel and Advice of their Bishoâ—s and Noblemen comprehended under the general names of Wits yet you will find by the Titles of almost all the Councils in Spellman Lambard and that these Kings alone made their Laws though by the Advice and Council of their Wittena Gemote which was then no other than the King 's Greater Council Since He called what Great Men and Bishops he pleased to it and omitted the rest And it is never mentioned that they were made by their Consent as necessary thereunto Nay sometimes we find that some of the Ancient Saxon Kings made Laws without the Assent of their Great Council Thus Offâ— King of the Mercians being at Rome out of his Royal Munificence gave to the Support of the People of his Kingdom that should come thither a penny to be paid Yearly for ever out of every Family by all whose Goods in the Fields exceeded the value of Thirty pence And this He made a perpetual Constitution throughout all his Dominions excepting the Lands Conferred upon the Monastery of St. Albans This Imposition and Law continued a long while in force though we find it not Confirmed by any great Councils in the time of his Successors only in the Laws of King Edgar and King Edward it is enjoyned to be paid as the King's Alms which implies it was the King's Gift and that Solely without the consent of a Great Council But to give you a more particular Proof of the Supream and Absolute Power of our Saxon Kings as well during the Heptarchy as afterwards in making ad establishing Laws I shall begin with the first we have extant which are those of Ina King of the West-Saxons who began his Reign Anno. 712. In the Preface to his Laws we find it thus express't which I shall render out of the Saxons Copy Published by
particularly to the 55 th Law of William the First part of which I have already cited it begins thus Volumus etiam ac firmiter praecipimus concedimus ut omnes liberi homines totius Monarchiae Regni nostri praedicti habeaâ—t teneant terras suas pâ—ssessiones suas bene in pace libere ab omni exactione injusta ab omni Tallagio ita quod nihil ab ois exigatur vel capiatur nisi Servitium suum liberum quod de jure nobis facere debent facere tenentur prout statutum est eis c. So that whatsoever was done at any time contrary to this Statute was illegal and consequently ought not to be quoted as any part of the King's Prerogative But that the Nobility and People of England had divers Rights and Liberties before the time of King Iohn and of his granting that Charter appears by its conclusion in these words Salvis Archiepiscopis Abbatibus Prioribus Templariis Hospitalarâ—is Comitibus Baronibus Militibus omnibus aliis tam Ecclesiasticis Personis quam secâ—laribus libertatibus quas prius habâ—erunt And as for the rest of the Liberties granted by this Charter tho they are said to have been granted from the King 's meer good will yet that is recited only to make it more strong against himself since the Nobility and People of England claimed those Liberties as their ancient undoubted Right And the same Author as I have already hinted expresly tells us that this Charter contained Maxima ex parte leges antiquas And a little lower he relates where those Liberties were to be found Capitula quoque legum libertatum quae ibi Magnates confirmari quaerebant partim in Charta Regis Henrici superius scripta sunt partimque ex Legibus Regis Edwardi aâ—â—iquis excerpta So that they were not only the effect of the King 's meer Grace and Favour as you suppose But if you please now to descend to the Reign of Henry the Third and so downward from which time our Eldest Printed Statutes bear Date let us see if I cannot answer all those Arguments which the Gentlemen of your opinion have thence brought for the King 's Sole Legislative Power M. Tho I do not allow of your notion of the Conqueror's not being properly and really so as I shall shew you another time when I shall more particularly consider that Argument of the Right of Conquest in King William and all his Successors therefore I do at present readily assent to your Proposal and it was the very thing I was coming to And therefore I shall begin with the Magna Charta of Henry the Third which begins thus Know ye that We of our Meer and Free Will have given these Liberties The Statute de Scaccario Anno 51 Hen. 3. begins thus The King commandeth that all manner of Bayliffs c. The Statute de Districtione Scaccarii made the same year runs thus It is Provided and Ordained The King willeth The Statute of Marlbridge 52 Hen. 3. And he i. e. the King hath appointed all these Acts Ordinances and Statutes to be observed of all his Subjects If we come to the Reign of his Son Edward I. and begin with the Statute of Westminster I. it is there said in the Preamble These are the Acts of King Edward I. made at his first Parliament by his Council and by the Assent of the Archbishops Bishops c. And in the first Chapter 't is said The King hath Ordained and Established these Acts. And tho I grant that in divers Statutes of this King at in this of Westminster it is recited that the King by the advice of his Counsel or Assent of the Archbishops Bishops Earls Barons c. have Made Provided Ordained or Establisht such and such Laws yet it is plain that the Enacting or Decreeing part is wholly ascribed to the King in all those Statutes wherein such words are found as I shall make it appear more plainly by the Statute of Act on Burnel made in 13 Edw. I. where it is said The King by himself and all his Council hath Ordained and Established And in the Statute of Westminster 3.18 Edw. I. Chap. I. Our Lord the King in his Parliament at Westminster at the Instance of the Great Men of the Realm hath Granted Provided and Ordained In the Statute De iis qui ponendi sunt in Assizes 21 Edw. I. Our Lord the King in his Parliament holden c. hath Ordained that c. The Statute of Quo Warranto 18. Edw. I. runs thus Our Lord the King at his Parliament holden at Westminster of his special Grace and for the Affection he beareth unto his Prelates Earls and Barons hath granted That c. I Edw. II. begins thus Our Lord the King hath Granted The Statute of Gavelet 10 Edw. II. begins thus It is provided by our Lord the King and his Iustices The Statute of Carlisle 15 Edw. II. begins thus The King unto the Iustices of his Bâ—nch sendeth Greeting Whereas of â—ate We have Ordained c. But if we come to the Reign of his Son Edw. 3d. The Prefaces to most of the Statutes made in his Reign run thus Our Lord the King by the Assent of the Prelates Earls c. and at the Request of his People hath granted and established or else at the Request of the Commonality hath ordained c. The like Stile continued during the Reigns of Richard the 2d Henry 4th and Henry 5th with very little Alteration only it was commonly at the Request of the Prelates Dâ—kes Earls and Barons and at the Instance and Special Request of the Commons the King hath Ordained c. Whereby we see a plain difference in the Phrases of the Statutes of those times for it is the Lords that give their Assent whereas the Commons only Petitioned but it is the King alone who Ordaineth and Establishes I confess indeed that under some Princes of bad Titles as in particular under the Minority of Henry 6th there began some Alteration in the form of penning the Enacting part of most Statutes that were then made and that unto those usual words which were inserted ordinarily into the Body of the Acts from the beginning of the Reign of that King viz. by the Advice and Assent of the Lords Spiritual and Tempâ—ral and at the Special Instance and Request of the Commons there was added by the Authority of the said Parliament But it is still to be observed that though these words were added to the former Clause yet the Power of Granting and Ordaining was still acknowledged to belong to the King alone as appears by these Acts of Parliament of that King viz. the 3d. Henry 6th Ch. 2. 8th Hen. 6. Chap. 3. Where it is said our Lord the King by the Advice and Assent and at the Request aforesaid hath ordained and granted or Ordained and Established by the Authority of this Parliament And thus it generally
you may remember by these words Cum Legis vigorem habeat quicquid de Câ—nsilio de consensu Magnatum Reipublicae communi Sponsione Authoritate Principis praecedente juste fueriâ— definitum But further to let you see how much you are out in your Argument whereby you would prove from the Form of our Indictments of Treason c. That the King hath the Sole Legislative Power of the Kingdom I shall shew you that all our Ancient Laws as well Common as Statute do declare the contrary Since divers Aâ—ts of Parliament have expresly affirmed that such and such Offences were Treaâ—on not only against the King but against the King and the whole Realm too Pray take these instances see the Statute 1 Edw. 3. c. 1. Wherein Hugh de Spencer both the Father and Son are by the King and Parliament declared Traitors and Enemies of the King and of his Realm See likewise 28 Hen. 8. c. 7. Wherein the Crown is setled by Act of Parliament on the Heirs of his Body begotten on Queen Jane or by any other after Marriage and that the Offenders that shall interrupt such Heirs in their Peaceable Succession they with their Abbeâ—tors Maintainers c. shall be declared and adjudged High Traytors to the Realm And therefore divers Ancient Indictments in Stanfords Pleas of the Crown are laid contra pacem Regis Regni And that the Parliament hath reserved to it self a Power by the Statute of the 25th of Edw. 3d. to Determine what Crime shall be Adjudged Treason besides Conspiring to kill the King and those other Offences specified in the same Statute you may Consult the Statute at large But that these Offences can be no other than an endeavour to alter the Government or Fundamental Laws of the Kingdom I think is evident since all Offences relating to the Lives or Honour of the King Queen and their Eldest Son are there particularly specified and it was by Virtue of this Statute that the Late unfortunate Earl of Strafford was first impeached by the Commons and afterwards Attainted by Act of Parliamenâ— in the Year 1641. but whether justly or not it is not my Business now to determine it is sufficient that it was then granted by the King himself that if the Earl was really Guilty of Destroying the Government and Introducing an Arbitrary Power he might have bin deservedly Condemned But that the Power of Making and Dispensing with Laws is particularly applyed not only to the King but to the Lords Spiritual Temporal and Commons pray remember the Preamble of the Statute I have already cited of the 25th Hen. 8. c. 21. wherein it is so expresly declared as also by the 24th of this King Chap. 12. the Preface of which Statute runs thus And whereas the Kings most Noble Progenitors and the Nobility and Commons of the said Realm at divers anâ— sundry Parliaments as well in the time of King Edward 1st Edward 3d. Richard 2d Henry 4th c. made sundry Ordinances Laws Statutes and Provisions for the entire and sure Conservation of the Prerogatives Liberties and Preheminences of the said Imperial Crown of this Realm c. where pray note that the making of all these Statutes is ascribed to the Lords and Commons as well as to the King Which is also farther acknowledged by the said King Henry when in a Set Speech to the Parliament Reported by Crompton in the Case of Errours he said these words We being informed by our Iudges that We at no time stand so highly in our Estate Royal as in the time of Parliament wherein we as Head and you as Members are Conjoyned and knit together into one Body Politick And sure then if the King's Simile be true whatsoever Functions are performed by the whole Body must be done by the Members as well as by the Head I shall Sum up all I have said into this Syllogism That Power which cannot make or Enact any new Law without the Advice and Consent of two other Bodies is not the Sole Legislative Power But the King is that Power which cannot c. Ergo the King is not the Sole Legislative Power M. I shall not longer Dispute this Question with you Since I own the two Houses have Claimed for some Ages past a Share in the Legislative tho' in a large and improper Sense as you your self do partly grant And though for the more just and equal Course our Kings have for a long time admitted the 3 Estates viz. the Lords Spiritual Temporal and Commons into a seeming Share of the Legislative Power Yet this was not by Constraint nor by any Fundamental Constitution of the Government as you suppose but only from their own meer Grace and Favour to make Laws by the Consent of the whole Realm because that no one part thereof should have any Cause to complain of partiality And though I grant the King is bound to observe these Laws when made by vertue of his Coronation-Oath so as that he cannot alter them without their Consent yet is he still above the Law by Virtue of his Absolute Monarchical Power and is not Subordinate to it or so bound by it as to be Responsible to the People for any Breach committed by him upon it for that were Derogatory to the Soveraign Power and inconsistent with the Nature of Monarchy and were to set up the Law which is but a Creature of the Prince's making above his Soveraign Authority And this would make our Monarchy a Kind of Government which would neither be Monarchical nor yet a Republic but some Mungrel thing made up of both So that I take the Notion of a mixt Monarchy to be a Contradiction in adjecto A limited Monarchy I confess there may be either by the Monarch's own Voluntary Grant or Consent as in this Kingdom or else on Conditions imposed upon a Prince by others either by a Foreign Power as in Tributary and Feudatary Kingdoms or else by the Natives of the same Country as in some Elective Kingdoms and Principalities but then such Limitations of Monarchical Power represent a Prince as it were fettered and who cannot Act as he would and ought for the Advantage and Wellfare of his People if he had his Liberty and the full Exercise of his Soveraign Power And therefore in most Governments limited after this manner the Soveraignty still remains in the Senate or Pâ—ople that Elected him which makes me think it Solecism in Politicks to affirm that a Monarch properly so called and still continuing so could be thus limited by Laws or Fundamental Constitutions as you call them at the first Institution of the Government For if he were thus limited that Power that could thus limit him must be either Superior or Inferior to him Superior it could not be because both the Prince and the People that could put those Conditions or Limitations upon him could not be his Superiors in the State of Nature before they made him King neither could they be
this Question was Sir Will. Dugdale in his Origines Juridiciales who though he Transcribed the same Notion and Arguments from the 〈◊〉 mentioned Glossary yet allows the Commons of England to have been always after some manner represented in Parliament though not by Representatives of their own chusing yet agrees with the Author of the passage in the Glossary that the Commons first began by Râ—bâ—llion in the 49th of Henry the Third Which Opinions being looke upon not only as Novel and Erronâ—ous but dangerous to the Parlamental Rights and Liberties of the People of this Nation were opposed by William Petyt Esq in his Treatise intituled The Rights of the Commons of England assertio which was also seconded by the Author of the Treatise called Jani Anglorum facies Nova but it was not long before both these Books were animadverted upon by Dr. Brady in two several Editions of his Answers to them and these were again vindicated by the Author of Jani Anglorum c. in another Treatise intituled Jus Anglorum ab Antiquo which hath not been yet answered I have been the more particular in giving an account of these Authors because the Controversie having been largely debated in them I have for the saving your trouble of reading so many several Books reduced all the material Arguments and Authorities man use of by both Parties in this weighty Controversie into this Dialogue and the next since so copious an Argument could not be dispatch'd in a less compasâ— And 〈◊〉 have not here given you all the Arguments and Authorities that are there made use of but only the most material and indisputable yet I hope I have used this Liberty with that sincerity and respect to those Learned Authors that none of them shall have any just caâ—â—t to complain of any Partiality And therefore I have as near as I could confined my self to the Words of those Authors as you will find by the Quotations in the Margin But I must own that having had the happiness of a long and familiar acquaintance with Mr. Petyt I have been furnished by him with divers Authorities both Manusâ—â—â—p and Printed not hitherto taken notice of by any on this Subject And had I the like opportunity of being personally known to the Dr I should have desired the same favour of 〈◊〉 for such Replies as he might perhaps make to them Therefore all I can now do in this Case is that if the Dr. or any Friend of his shall think it worth their while to peruse and impartially to consider these Discourses and shall then remain unsatisfied with any of the Authorities or Arguments here made use of if either he or they shall think fiâ— to mâ—â—â— any Observations on them and will communicate their Papers to the Publisher of these Dialogues I do here ingage to take care that they shall be fairly and truly published with Answers to them if they will admit of any in an Appendix at the end of the whole Work when it is finished I have little more to trouble you with than to assure you That all the Authorities here made use of from our English Historians and Records are truly cited without leaving out or concealing any thing that I thought made for or against either Opinion but as for the Records they are either such as having been sufficiently tried have passed for current between the Dr and his Antagonists or else such as I have seen and examined with my own Eyes and considered the purport of them But I hope you will pardon me if I seem too prolix in the beginning of this Disâ—â—â—se in the interpretation of divers Words and Phrases used by the Dr. and his Opponents in a quite different sense from our Ancient Historians Records and Statutes for if the â—â—â—ous use and equivocal meaning of those Expressions be truly stated and laid open according to the several Ages in which those Authors lived or such Laws were made I reckâ—â— this great Dispute as good as half ended All that I shall farther desire of you is carefully and diligently to peruse the Arguments and Authorities and to examine the truth of them your self if you doubt of any thing in them weighing and comparing Historian with Historian and Record with Record and sometimes both together as the Subject-Matter requires and then I kept you will be able to make a right and impartial Iudgment on the 〈◊〉 For as I have 〈◊〉 in my Province fairly to report other mens Arguments and Notions so it is yours to judge of them which I heartily desire may be without any unjust Byass or Partiality to 〈◊〉 Side THE Sixth Dialogue BETWEEN Mr. FREEMAN a Gentleman AND Mr. MEANWELL a Civilian M. SIR You are welcome and since you were pleased to send me word that you would come and sit with me this Evening I have been looking over all the Saxon Councils collected by Mr. Lambard and Sir H. Spelman and yet I cannot find in them any mention of Knights of Shires or Burgesses for Cities or Burroughs the only persons there mentioned as Members of those Great Councils being Archbishops Bishops Abbots and Great Lords and Iudges often called by the general 〈◊〉 Names of Magnates Principes Proceres Optimates or Primates Regni which were all comprehended under the Saxon Word VVites i. e. 〈◊〉 by whom as Sir H. Spelman shews us in his Glossary 〈◊〉 meant only Senators or Wise-men that is either Noblemen 〈◊〉 Great Lawyers VVite in Somner's Saxon Dictionary being first â—â—endred Optimas a Noble Man and then Sapiens a Wise-man So 〈◊〉 these VVites or Sapientes so often mentioned in our Ancient 〈◊〉 Laws when they are put alone signifie all the Ecclesiastic 〈◊〉 well as Lay-Members of the great Council such as Earls Alâ—â—â—men and Thanes and Judges as Dr. B. more particularly proves in his Glossary 〈◊〉 the end of his first Volume But by Principes and Optimates can only be meant Nobles or Chief Men as the Word Princeps Magnas and Optimas do alâ—â—ys signifie in the Latin Tongue That is to say such of the King 's great Officers Noblemen and Judges of the Kingdom as he pleased to chuse out and 〈◊〉 to his Great Councils either for their great Wisdom or Estates to make 〈◊〉 of their Advice and Assistance for the making of Laws Therefore pray shew me where there are any Commons once mentioned in any of these Councils or any that represented them Here are indeed particularly mentioned Arch-Bishops Bishops Abbots Aldermen Wites Great-men and Chief-men or Noblemen These were all the Orders of men that were then the constituent 〈◊〉 of those Great Councils Wittena-Gemotes And if the Commons as now taken and understood were then Members of them they must be comprehended amongst the Wites or Sapientes the Wise-men But that it cannot probably be so I shall prove 1. That most of the Saxon Laws in their Prefaces are said to be made and ordained by their Kings
farther confirmed by several undeniable Authorities wherein by the Communitas Populi must be understood not the Community of the People or Commons but the whole Body of the Less Tenants in Capite But to give you an answer why the Word Populus could not comprehend all sorts of people among the Saxons as it did among the Romans but only the Nobility who were then properly speaking the only Freemen is this that none but the Nobility possessed any Lands in Fee-simple all the rest of the meaner sort of people then called Cheorl Folk holding theirs in Villanage under their Lords or Thanes being no better than meer Villains or Costagers and who were all bound to the Good Behaviour every tenth Family being bound one for another in the Sheriff's Torne or Court of Franc-Pledge under their Head or Tenth Man called the Tything-man who was to answer for them So that the common People of England were not such a Free People nor had any share in the Government as some suppose there being I believe no such persons as our Yeomen or Faâ—â—â—ers in those days F. Tho perhaps this Law might very well be transcribed from some old Copâ—â— of King Aethelbert's Laws not now extant and in which there might be the Word Thanes instead of Baronibus which is but a Translation of it in the sense iâ— which it was used not long after the Conquest Nor is it true which you affirm that the Word Barones was never in use before the coming in of the Normans in ancient Charters as I shall prove to you by this Charter of King Edgar to the Abby of Westminster containing a confirmation of their ancient Charters and Priviledges collected 〈◊〉 the aforesaid Sulcardus a Monk of Westminster as it is to be found in the Cottonian Library the Charter it self is long but concludes thus In Concilio habito infra Basilicam Westmonast Praesidente 〈◊〉 Filio suo Edwardo Archiepo Dunstano universis Episcopâ—â— Baronibus suis where you may see that the Word was not unknown before the time of William I. and I could give you more Instances of other Kings Charters where the same Word is used before the Conquest were it worth the while to trouble you with them And so likewise Populus for People or Folk in the Saxon Yet take it as you suppose to have been writ not long before the time Hoveden writ his History which was above 80 years before the 49th of Hen. III. This Author or whoever else added this Passage to this Law about Tythes did then suppose that according to the custom then used the People had Representatives in those Assemblies which I shall prove from your own sense of these words for if the word Populus signifies here another sort of men different from the Lords then this word Populus must necessarily signifie some that were Commons and not Lords by your own concession and who also must represent others besides themselves but it is highly improbable that by this word Populus should be meant the Communitas Angliae or the Communitas Baronum for then since the word Baronum would have included all the Tenents in capite both Great and Small to what purpose should the word Populus have been added at all Therefore I am so far from believing this way of expressing the several Estates of the Kingdom to have been a Monkish Blunder as you suppose that â—t was rather a common and ordinary way of Expression among the Writers of those Timeâ— as well in Records as Histories who then very well knew the People or Commons to be an Estate or Constituent part of the Common Council of the Kingdom quite different from the Lords and in which sense it is recited in an ancient Charter of King Iohn That He being divorced the New Queen was crowned de communi assensu concordi Voluntate Archiepiscoporum Episcoporum Comitum Baronum Cleri Pâ—puli totius Regni Where by Clerus it is plain must be meant the Inferior Clergy represented by their Proxies in this Great Synod or Parliament and by Populus was understood the People or Commons likewise present by their Representatives or else the Words Clerus and Populus had been idle Tantologies in this Record And in the like sense it is also used by Matt. Paris in the 9th of Hen III. presentibus Clero Populo cum Magnatibus Regionis Where this Author makes a plain distinction between the Magnates and the Populus which had been altogether in vain if the Word Magnates would have comprehended all your Greater or Less Barons or Tenants in capite But I shall in the next place proceed to that Great Synod or Council that was called by King Edward the Elder Anno Dom. 905. and is mentioned by Simeon of Durham and other Authors quoted by Arch-Bishop Parker the Compiler of the British Antiquities in these Words Plegmundus Cantuariensis Archiepiscopus â—â—â— cum Rege Magnifico cognominato Edwardo seniore Consilium Magnum Episcoporum Abbatum Fidelium Procerum Populorum c. convocavit Which Synod or Council was called to divide the large Dioceses of Winchester and Sherbarn into five other as I have already told you where you may plainly see the Words Fidelium Populorum put distinct from the Word Proceres if we take that Word to signifie only the Greater Nobility I shall now conclude with a few Words in reply to your Answer why the Word Populus could not among the Saxons take in all sorts of People as well as amongst the Romans for I cannot take it as a satisfactory answer for these Reasons 1. Because tho I should grant that the Vulgar sort of People were greater Slaves than they are now and that they had no hereditary Properties in their Estates but at the will of their Lords yet does it therefore follow that all the Freemen of the Kingdom were Noblemen or Gentlemen or else Villains as now understood since Nitardus tells us in the place above mentioned that there were three sorts of people among the Saxons Edelingi Frilingâ— Lazzi i e. Gentlemen or Noblemen Freemen and Slaves or Villains and this middle sort of men might also possess Lands in Allodio or Free-Tenure tho they did also depend upon other greater men for Protection and seem to be those who were after the Conquest called in Doomsday Book Commendaâ—â— i. e. such who tho they lived under the Protection and within the District of some Great Men Lord or Patron yet as Sir Hen. Spelman tells us were free both as to their Persons and Estates not as sworn to or holding of any but the King And besides these there were also great Bodies of men in Cities and Burgh Towns and those very considerable for Estates and other Riches who tho not nobly born and yet being Freemen it was but reasonable that they should have their Representatives in Parliament as well as the former M. I shall not at present
errant Slaves and Vassals notwithstanding their Tenure in capite as the meanest person of the Kingdom who was taxed as you would have it at the Will of his Superior Lord which whether so great and powerful a Body of men would ever have sufferd I leave to any indifferent person to judge M. I grant this may now appear somewhat hard yet since it was the receiv'd Law and Custom of the Kingdom it was not then look'd upon as a grievance and it was then no more unjust than it is now that persons under forty Shillings a year tho of never so good Estates in Money or Stock or that Tenants for years or for the Life of another should at this day have no Votes at the Election of Knights of Shires and consequently be without any Representatives in Parliament of their own Choice and yet be subject to all Laws and Taxes tho never so great when made and imposed by the King in Parliament And I am able to give you divers good Authorities to prove that even London it self and all other Cities and Towns which held of the King in capite and were called his Demesnes were often taxed by the King and his Council out of Parliament before the Statute De Tallagio non concedendo And I think Dr. B. hath proved this beyond exception in his Animadversions upon Mr. A's Iani Anglorum facies noâ—e and he there gives us the Record it self of 39 Hen. III. now in the keeping of the King's Remembrancer of the Exchequer That the King did that year as he had divers times before Talliate or Tax all his Demesne Lands in England and then likewise demanded of the City of London the sum of 3000 Marks in name of the Talliage or Tax so laid And the Mayor and Citizens at last yielded after a great Contest It appearing upon search of the Rolls in the Ezchequer that the Citizens of London had been several times before so taxed in the Reigns of King Iohn and the King himself and so they payed at last the Sum which the King demanded By which you see that the greatest and richest Cities and Towns in England were taxed at the King's Will nay I think I am able to prove were it now necessary that the whole Kingdom was often taxed by the King and his Council only before the granting of King Iohn's Magna Charta and the Statute de Tallagio non concedendo above mentioned But to return to the Matter from which you forced me to digress I think nothing is more plain than that our Ancient Parliaments were only the King's Court Baron for the dispatch of the Publick Affairs of the Kingdom and in which as in the Lesser Courts Baroa or Courts of Mannor the Suitors or Tenents were together with the Lord or his Stewards the sole Judges So that at first after the Conquest it belong'd to the King alone as the Supreme Lord of the Kingdom to appoint or call which or what sort of those Tenants be pleased to attend him with their Aid and Advice at his Common Councils or Parliaments And I think nothing is more evident as I shall prove more at large from our Ancient Histories Records and Statutes then that before the 49th Hen. III. and some years also after that time none but the Bishops Abbots Earls and Greater Barons and some of the Less called in King Iohn's Charter the other Tenents in capite then constituted the whole Body of the Parliament under â—he Titles of Baronagium Angliae or Communitas or Universitas Baronagii Angliae And for this I can give you so good Authorities that nothing but more cogent and evident Proofs can bring me from this Opinion And therefore I must tell you I do not value those loose and inconsiderate Expressions of Historians either before or after that time F. I see the Testimonies of Historians are of no credit if they make against your Hypothesis but I shall show you your Mistakes about the King's Taxing anon but the main force of your Argument lies in the signification of those Latin Words you have last mentioned and which I must needs tell you I think you take in too strict a sense For first as to the Word Baro I grant it was not much in use before William I. obtained the English Diadem Baro says Camden Britanni pro suo non agnoscum in Anglo-Saxonicis legibus nusquam comparet nec in Aâ—frici Glossario Saxonico inter dignitatum vocabula habetur For the English Saxons called those in their own Language Aealdermen which in Latin were named Comites and by the Danes Earls but it was of so extensive an import in its signification that we read of Aldermani Regis Aldermani Comitatus c. as I have already shewed you So that according to the strict Sense of this Word we had whole Regiments of Earls whose Titles seldom if at all descended Hereditary till the Confessors Time and after William I. the Saxon Words Aealderman and Thegnes began to be changed and in the room of Aldermanni Thani we find Comites Barones as in all our Ancient Laws and Histories Nor was the Word Barones only taken in those days for Great Barons and Tenents in capite but also for the Inferior Barons or Free Tenents which held great Estates of other Mesne Lords as well as of the King by certain Services and to whom the Great Lords or Earls as Sir H. Spelman shews us in his Glossary Title Baro often directed their Charters Barombus Fidelibus nostris tam Francis quam Anglis and we there also read some Quotations from the old Book of Ramsey Abby wherein the Barons of the Church of Ramsey as also the Milites and Liberi homines thereof are particularly mentioned all which as this Learned Author tells us non de Magnatibus sunt intelligenda sid de Vassallis feodalibus note Scil melioris And the same Author says a little lower that Barons are often taken pro liberè Tenentibus in genere hoc est tam in Soccagio quam per servitium Militare M. What then do you suppose that all the Freeholders in England by whatsoever Tenure they held appeared in Person in Parliament before the time Sir H. Spelman in his Glossary and Dr. B. Assign for the summoning of the Commons to Parliament At this rate every Yeoman or Petty Freeholder was a Baron so that this Assembly might then consist of above 50 or 60 Thousand Persons Since Spot in his Chronicle tells us that William the Conqueror reserved to himself the service of about 60000 Knights Fees which by the time I suppose might have been divided into many more lesser ones by Co-heirship or by sale and otherwise parcelled out by the King's License into Half-Knighs-Fees Third Part of Fees Fourth Part of Fees Eight Parts Sixteen Twenty Thirty and Forty Parts of Fees and so have been increased into as many more And these besides the Tenants in
Soccage must needs have been so numerous that what Room nay what Field or Place was able to contain so great a Multitude Or how could any business have been transacted therein without the greatest confusion imaginable F. So then you your self must also grant that when all your Greater and Less Barons or Tenents in capite appeared in Person Parliaments were much more numerous than they are now since according to the Dr.'s Catalogue out of Dooms-Day-Book in his Appendix to the English History Vol. 1. of all the Tenants in capite or Serjeanty that held all the Lands in every County of King William they did besides the Bishops Abbots Earls and Barons altogether amount to about 700. and these in the 49th of Hen. III. by forfeiture and new Conveyances from the Crown or by those other ways you have now mentioned might be multiplied into twice as many more and those also of sufficient Estates to maintain the Port of a Member of Parliament or Knight Since 15 Pounds a year was in the Reign of King Iohn and Henry III. reckoned as a Knight's Fee and he that had it was liable to be Knighted And if so I pray according to your own Hypothesis how could so great an Assembly be managed as of about 3000 or 4000 Persons without strange confusion and disorder but upon our Principles there will follow no more Absurdities or Inconveniencies than in yours for either these Barons of Counties Burgesses and Inhabitants of Towns and Cities were always represented by Knights and Citizens as they are now or else these Barons of Counties appearing for themselves were Lords of Mannors or Freeholders of good Estates who were not so numerous or inconsiderable as you imagine the Freehold Lands in England being in those days but in a few hands in comparison to what they are now And for this Opinion I have Sir H. Spelman of my side who in the place already quoted under Barones Câ—â—itatus expresly tells us Hoc nomine contineri videtur antiquis paginis omnis 〈◊〉 â—eodalium specier in uno quovis Comitara degentium Proceres nempè 〈◊〉 Domini nèc non liberè quique Tenentes hoc est fundorum proprietarii Anglicè Freeholders ut Superiù◠dictum est Normidum autem est hoc liberè Tenentes nec tam â—iles 〈◊〉 fuisse nèc tam Vulgares ut hodiè deprehonduntur nam villas Dominia in 〈◊〉 Hareditates non dum distrahebant Nobiles sed ut vidimus in Hibernia penes se retinentes agros per precarios excolebant adscriptitios So that you see Sir H. Spelman then believed that the Mannors and Great Freehold in England were not then parcell'd out into so many small Shares as you imagine and that such Inferior Barons whether they held in caâ—â—â—e or not were also called Proceres see the Laws of Henry I. Chap. 25. the Title whereof is de Privilegits Procerum Angliae The law runs thus Si exurgat placitum inter homines allcusus Baronum foenam habentium tractâ—tur placitum in Curia Domini sui Now that this Socha was no more than Soc. in old Saxon see Spel. Gloss. Tit. Soc. i. e. secta de hominibus in curia Domini secundum consuetudinem so likewise in Titulo Socha vel dicitur Soc. a Saxon socâ— i. e libertas Franchesia vide manerium qd dicitur etiam Soca dictum est From all which we may observe that these Lords of Mannors here called Proceres Barones had Court Barons which took their Name from their Lords tho Feudatory Tenents or Vavaâ—ours But granting that about the end of King Iohn or beginning of the Reign of Hen. III. Supposing that these Lords of Mannors and Great Freeholders whether Tenents In capite or others might amount in all to 5 on 6000 persons I do not see why such an Assembly might not be as orderly and well managed as one of 1000. or 4000. supposing your Greater Barons and Less Tenants in capite to have than made about that number especially if we consider that most business or Acts of any consequence and for which Parliaments were called might be prepared and drawn up by the King and his Council before they met So that take it which way you will fewer Inconveniences and Improbabilities attend my Hypothesis than yours M. That the Earls and Greater Barons both Spiritual and Temporal together with the Tenants in capite then made the Body of the Baronage of England I have very good Authority on my side but that any Feudatory Barons or Tenants of a Lesser Degree ever had any Places or Votes in those Assemblies I think you can give me no sufficient Authority for it 'T is true Mr. P. in his Treatise of the Rights of the Commons asserted gives us two Modern Quotations the one out of Mr. Câ—â—den's Britannia the other out of Mr. Selden to prove it As for the former it is in the Introduction to the Britannia first published in Quarto The Words are these Verum Baro ex illis non imbus videatur qua tempus paulatim moliara molliora reddidit nam longo post tempore non Milites sed qui liberi erant Domini Thani Saxombus dicebantur Barones vocari caperunt nec dum magni honoris erat paulo autem postea meaning after the Normans entrance eò honoris pervenit ut nomine Baronagii Angliae omnes qâ—â—dammodo Regni ordines continerentur But he doth not tell us that this Learned Author in his last Edition of this Work in Folio being sensible of his mistake hath added the Word Superiores before Ordines whereby it is plain he now restrains it only to the Earls and Barons as they are now understood Mr. P's other Quotation is out of Mr. Selden's Notes upon Raâ—â—â—rus where commenting on the Word Barones he saith Vocabulum nempe alio notione usurpari quam vulgo neque eos duntaxat ut hodie significare quibus peculiaris ordinum Comitiis locus est but then conceals this that follows which makes directly against him Sed universos qui Regiae munificentiae ad formulam Iuris nostre Clientelaris quod nullius Villae Regiae glebam sed ipsum tantum modo Regem spectat Tenure en Chief Phrasi forensi dicimus sive Tenura in capite lati fundiâ— pessidebant whereby you may see that he expresly restrains this Word Barones to Tenents in capite only tho your Author takes no notice of it Nor indeed in his Title of Honour doth Mr. Selden give us any other Description of a Baron I mean such who had a Vote in Parliament but such in the Sense that is taken in Henry I. his Charter as it is recited in Matt. Paris Siquis Baronum meorum Comitum vel aliorm qui de me tenent mortuus fuerit i. e. One who was either one of the Earls or Greater Barons or otherwise held in capite F. Mr. P. is not at all to be blamed as you make him
in these two Quotations since in that out of Camden you cannot deny but he hath truly quoted that Author as it was in his First Edition and if he afterwares altered it it may very well be questioned whether he did not add the Word Superiores rather out of fear of displeasing the Greater Nobility whom that Quotation had before Shockt than out of any sense of his being in the Wrong as it appears by the Words immediately following when he tells us out of a nameless Manuscript Author That Henry III. out of so great a multitude of Barons which was seditious and turbulent called the best and chiefest of them only by Writ to Parliament By which it plainly appears that he supposed all those Less Barons or Tenants in capite tho no Lords as now understood who were thus excluded to have been only Nominal and not Real Barons and if so Commoners or else he must extend the Peerage of England to at least Three or Four Thousand Persons For so many Tenents in capite might very well be at that time The same I may likewise say as to the Quotation out of Mr. Selden for by the Words quibus peculiaris in ordinum Comitiis locus est 't is plain he supposed that all the rest of those Tenents in capite were but meer Commoners yet he no where affirms that none but these appeared in Parliament for all the Commons of England for he very well knew the unreasonableness of that Supposition Since besides these Barons or Tenants in capite Bracton in his first Book tells us of divers other Orders of Men of Great Dignity and Power in this Kingdom about the time when you suppose this marvellous Alteration to have happened His Words are these Et sub iis viz. Regibus Duces Comites Barones Magnates sive vavassores Milites etiam Liberi Villani deversa Potestates sub Rege constitutae and a little farther sunt alti Potentes sub Rege qui dicuntur Barones hoc est Robur belli sunt alii qui dicuntur Vavassores viri 〈◊〉 Dignitatis From which Words I desire you to observe that he here makes the Magnates and the Vavassores or Feudatory Tenants to be all one and also ranks them before the Milites Now whether these Vavassores and Milites who did not all hold of the King in capite were men of so great Dignity and Power as these whom he here reckons immediately after the Earls and Great Barons should have no Votes in Parliament neither by themselves nor their Representatives is altogether improbable And agreeable to this of Bracton Du Fresne in his Lexicon Tit. Vavasor tells us that Vavassorum duo erant ordines sub majorum apellatione implectuntur qui Barones apellantur sub â—norum vero quos vulgò Vavassores dicunt ut leges Henrici I. Reg. Ang. Thaines minores respectu Thainorum majorum qui Baronibus aequiparantur But that these Lesser Thanes or Vavassors were also stiled Barones Sir H. Spelman tells us expresly in his Glossary Tit. Baro etiam Barones Comitum Procer umque hoc est Barones subalterni Baronum Barones sâ—pissime leguntur and of this he gives us many Examples and particularly of the Chief Tenants of the Abby of Ramsey above mentioned So likewise the same Author a Leaf or two farther speaking of the Barones of London mentioned in the Charter of King Henry I. understands them pro civibus praestantioribus qui socnas suas consuetudines i. e. Curias habuerunt Privilegia eorum instar qui in Comitatu Barones Comitatus dicuntur c. Nor did this Title of Barones extend to London alone but he also immediately tells us in the same place Sic Barones de Ebaraco de Cestria de Warwico de Soe Feversham plurium Villaram Regiis Privilegiis insignium cum in Anglia tum in Gallia c. and that Barons of Counties were no more than Lords of Mannors I have just now proved for Socna means no more than a Court Baron or Court of a Mannor So that here arises a plain distinction between the Barones Regis the King 's Great Barons or Tenants in capite and these Lesser Barons we now are here speaking of called Medmesse Thegnes and Burgh Thegnes by the Saxons till they 〈◊〉 on the Word Parliamentum to signifie the Common Council of the Kingdom who tho no Peers yet were Barones Regni Barons or Noblemen of the Kingdom according to the general acceptation of the Word Nobiles in that Age and is such made up the Body of the Baronage called by Matt. Paris and other Authors Baronagium or Communitas Baronagit totius Angliae M. I see you do all you can from the equivocal use of the Word Barones to croud in new and unknown men into the Great Council of the Kingdom viz. your Barons of Counties Cities and Towns whom since you dare not affirm there were then any Knights of Shires you suppose to have served instead of them and these you would have to be not Barones Regis but Regni or Terrae forsooth i. e. of the Land or Kingdom whereas we never had any True Barones held by mean Tenures here in England this if you deny you must deny all History and all our Ancient Laws and Law-Books too and if you grant it you must confess that every Baron was a Tenant in capite and by your own Concession he must then be the King's Baron or Baro Regis I grant indeed there were Nominal or Titular Barons such as you mention many in those Times such as were Tenants to Great Lords Bishops or Abbots of whom we find frequent mention in our Ancient Histories Records and Charters But these are not the men who had ever any Place in our Great Councils and I desire you would prove to me that ever they appeared there before the Times I assign and I would also have you inform your self of the Gentlemen of whom you borrow this Notion if they can prove that there were any such kind of Tenure as Tenura de Terra or de Regno or whether there was ever any man that held an Estate de Regno Whether forfeitures or Escheats were to the Kingdom And whether Fealty was sworn or Homage done to the Kingdom Or whether an Earl was invested or Girt with the Sword of the County by the Kingdom Or whether the ancient Ceremonies used at the Creations of Earls and Barons were done by the Kingdom Thus all the Barons of England held of the King and thus all these things were performed and done to our Ancient Kings and by them which are most manifest Notes of the King 's immediate Jurisdiction over the Barons and that they were his Tenants in capite and by consequence his Barons only which you cannot deny and of which Tenants in capite the Earls and Greater Barons always created by Investiture of Robes or other Ceremonies were summoned by particular Write
refer but to this very Letter which was assented as well per procuratores Communitatis Regni as by your Barons here called Nobiles Regni And this Application thereof is given by Mr Pryn himself when he makes use of these Records But to let you see farther that the Lords and Commons for all this Author Opinion to the contrary might joyn in a Letter ro the Pope I shall shew you by that which was writ in the Name of the whole Parliament to the Pope in the 17 th of Edw. III. about the Provisions of Benefices which then grew so exorbitant that Walsingham tells us in his History Quod Rex tota Nobilitas Regni pati noluit c. which Phrase the Letter it self will best explain The beginning and conclusion of which I shall give you in English as you may find it in Mr. Fox's Book of Martyrs To the Most Holy Father in God Lord Clement by the Grace of God of the Holy Church of Rome and of the Universal Church Chief and High-Bishop His humble and devout Children the Princes Dukes Earls Barons Knights Citizens and Burgesses and all the Communalty of the Realm of England assembled at a Parliament holden at Westminster the 15 th Day of May last past c. In witness whereof we have hereunto set Our 〈◊〉 Given in the full Parliament at Westminst on the 18th Day of May Anno Drâ— 1343. And it still appears by the Parliament Roll of this Year viz. 17th Edw. III. n. 59. that the Commons petitioned the King that the Lords might stay at the Parliament till they had perfected and seal'd this Letter And that there was such a Letter then written by the Parliament appears by the King's Letter to the Pope about the same Matter still among the Tower Records In which he imitated his Grandfather Edw. I. and Great Grandfather Hen. III. who also seâ— Letters to the Pope on such like occasions but in those to excuse the Arch-Bishop of Canterbury from being the Author of those Complain he had this Passage that since it was the Judgment tam Procerum Nobilium quaâ— Communitatis Regni in ultimo Parliamento contra Provisorum Exercitum To conclude I think nothing is plainer than that under the Universitas Regâ—â— in the first Letter to the Pope 29th Hen. III. and under the Communitas Regni mentioned in the Letter of the 29th Edw. I. were meant the same Estates or Orders of Men as were more particularly recited in this present Letter viz. The 〈◊〉 Lords and Commons in Parliament assembled M. I must freely tell you I am not yet satisfied with the Sense you now put â—pon these Words Universitas and Communitas Regni before the Commons were summoned to Parliament for you your self must grant that as the word Universitas Regni takes in the whole Representative Body of the Kingdom so likewise the word Communitas signifies no more than the same whole Body or Community thereof Therefore if I prove to you that in those times this Universâ—â—y or Community consisted only of the Earls Barons and Tenants in capite that word Communitas Regni ought never to be interpreted by the English word Commoâ—â—lty or Commons of England till after the time that I allow the Commons were admitted to make a constituent part of the Great Council or Parliament nor always then neither And Mr. P. in his Book which we have so often cited hath done very unfairly to make the Universitas and Communitas Regni to comprehend the Commons of England before they everappeared in Parliament at all and so hath he likewise abused the Word Populus as I have already observed to signifie the Commons when indeed there is no more thereby meant than the whole Assembly of the Laity which at that time consisted of no more than the Earls Barons or other Tenants in Capite And tho I grant that by Communitas Praelatorum or Baronum are often understood the Body of the Prelates or greater Barons only called by way of Eminency Proceres Magnates yet most frequently these with all the other Tenants in capite did make the whole Body of the King 's immediate Tenants in Military Service and were altogether called the Baronage of England the Community of the Land or Community of the Kingdom and for this I think I shall give you undeniable proofs by and by F. I am very well aware that the Word Populus often signifies the whole Body of the Laity yet not excluding the Commons as I have already sufficiently proved For then the word must signifie quite contrary to its genuine Signification instead of People the Greater Nobility only yet that when it is put after as distinct from Magnates it must mean the Commons as now understood I shall shew you by and by But that this word Populus does not always signifie the whole Body of the Nobility only but takes in oftentimes the Commons too pray see Matt. VVest who tells us King Edw. I. in the 34th year of his Reign making his Son a Knight Pro hac melitia silii Regis concessus est Regi zomus Denarius a Populo Clero Mercatores vero vicesâ—mum concesserunt Upon which your Dr. in his Glossary very well remarks that it is evident upon Record who were the Populus meant by the Historian viz. the Comites Barones alii Magnates nec non Milites Comitatuum So that unless the Knights of Shires were Lords it is plain Populus takes in the Commonâ— too But Universitas Regni and Communitas Regni called in French le Communâ— Dangletterre is often taken for the whole Community or Body of the whole Parliament and this Sir Edward Coke owns expresly in his 2d Instit. upon these Words In Articulis supâ—â— Chartas Thus here Le Commune is taken for People so astout le Commune is here taken for all the People and this is proved by the Sense of the Words For Magna Charta was not granted to the Commons of the Realm but generally to all the Subjects of the Realm viz. to those of thâ— Clergy and to those of the Nobility and to the Commons also And this is a Rational as well as Grammatical Interpretation For as the Word Universitas is derived from the Adjective Universus which signifies the VVhole 〈◊〉 Universal So the Word Communitas is derived from the Adjective 〈◊〉 Common or General So that these two Words when used simply in a Political 〈◊〉 Legal Sense ought to take in the whole Body of the Kingdom or all sorts and conditions of Freemen appearing themselves or their Lawful Proxies or Representatives in Parliament But I have already sufficiently proved that under those General words used in our Historians and Records viz. Principes Proceres Nobiles Magnates Barones alii de Regno were then comprehended either all the considerable Freeholders oâ— Lords of Manners or else the Knights of Shires Citizens and Burgesses So
have already proved that the whole Parliament as well the Lords Spiritual and Temporal as Commons were both before and after this time comprehended under these words Nobilitas Angliae and if you yet doubt of it I can give you a plain Authority out of VValsingham for it is in his Life of Edw. II. Anno 1327. where relating the manner of that King's Deposition he tells us That when the Queen and Prince came to London there then met Tota Regni Nobilitas to depose the King and chuse his Son in his stead and then there was sent to the King being Prisoner in Kenelworth Castle on behalf of the whole Kingdom two Bishops two Earls two Abbots and of every County three Knights and also from London and other Cities and Great Towns especially the Cinque Ports a certain number of persons who informed him of the Election of his Son and that he should renounce the Crown and Royal Dignity c. This Proof is so plain it needs no Comment As for the rest of your Argument the strength of it chiefly consists in this that the Tax there mentioned is said to be granted à Militibus or Tenants in capite as you would have it of three Marks upon every Knight's Fee But in the first place I desire you to take notice that this Scutage is not Scutage Service but a general Land Tax or Manner of taxing according to Knights Fees and which was continued long after Hen. III. Reign as it appears by this Passage in Sir Henry Spelman's Glossary Tit. Scutagium Edwardus primus habuit 40 Soli de quolibet 〈◊〉 Anno Regni 13 Dom. 1285. pro expeditione contra VVallos And it was also granted by the Lords and Commons after the 18th of Edw. I. when you and the Dr. supposes the Commons to have then came to Parliament and if so I desire to know why a Militibus here mentioned by this Author must only signifie Tenants in capite by Knights Service and not the Knights of Shires since it is not here said a Militibus qui de Rege tenuerunt in capite And therefore it is a forced Interpretation of the Dr.'s and without any Authority to limit these words Militibus libere Tenentibus omnibus de Regno nostro which you omit with an c. as also the omnibus Hominibus Liberis Regni nostri only to the Arch-Bishops Bishops and other Prelates of England and to the Earls Barons Knights and Free Tenants or Tenants in Military or Knight's Service because they were only such as paid Scutage VVhereas you have already acknowledged that Magna Charta was granted to all the people of England who had all a benefit by it and who paid towards the aid there granted as well as the Tenants in capite But if Knights Fees alone were Taxed and that by the Tenants in capite only I desire to know by what Right all Tenants in Petit Serjeanty and by Burgoge oâ— Sâ—occage Tenure who made a greater Body of men in this Kingdom in those Times could pay this Scutage since they held not by Knights Service but by certain Rents or other Services and so not appearing in Person could have no Representatives in this or any other Parliament of those Times But if you will tell me they might pay according to the value that Knights Fees were then reckoned at viz. for every 20 l. a years Estate I desire to know how this could be called Scutage or how the Tenants in capite or other Lords from whom they held those Lands could give away their Money for them And in the next place I desire also to know how all the Cities and Burroughs in England could be charged with this Tax a great many of them is you your self grant holding of the King in capite or else of Bishops Abbots or other Mesâ—e Lords by Soccage or Bargage Tenure So that this Tax if granted only by the Tenants in capite by Knights Service could reach them and no other persons but if by this Word a Militibus may be understood Knights of Shires then the Tax was general as well upon Soccage Tenants as those by Knights Service But for the other Words you insist upon viz. the Liberi Tenentes which you translate Tenants by Military Service if that had been the meaning of these words then they had been altogether in vain since you have already told me that the â—â—lites were so called non a Militari Cingulo sed a Feodo and if it were no Name of Dignity then certainly the Word Milites would have served to comprehend all your Liberi Tenentes or Tenants in capite without any other addition But that these Words Laberi Tenentes do not here signifie Tenants by Military Service pray see Sir Henry Spelman's Glossary Tit. Liber Homo liber Tenens where he there gives us a more general Signification of thesewords thus Ad Nobilesolim spectabant isti 〈◊〉 à majoribus ortos omnino Liberis and then ends thus vide Ingenuus Legalis 〈◊〉 Francus Tenens Liberè alias Liber Tenent quo etiam sensu occurrit interdum Homo 〈◊〉 which upon every one of these Titles he makes to signifie all one â—â—d the same thing viz. an ordinary Freeholder And therefore it is a very forced Interpretation of yours to limit these Words Communitas Populi only to the Community or Body of the Earls Barons and Tenants in capite Tho I confess you are very kind in one main Point in únderstanding the Communitas Populi to mean the Community of the Lesser Tenants in capite that were no Barons and then do what you can these Words must here signifie Meer Commoners or Commons unless you can shew us a Third Sort of Men who tho neither Lords nor Commons yet had a place in Parliament So that these Gentlemen notwithstanding their Tenure were no more Noble than their Feudatory Tenants or Vavafors themselves my than the Knights of Shires are at this day And then granting as I doubt not but I shall be able to prove that the Cities and Boroughs had then also their Representatives there I pray tell me whether or no there were not Commons in Parliament before 49 Hen. III. or not which is contrary to your Dr.'s Assertion in divers places of his Answerâ— to Mr. P. And that the Word Populus must here signifie the Commons and not the whole Body of the Laity appears plainly by this place you have quoted since it is restrained by your self to mean not the whole Community of the Kingdom but only the Community of Lesser Tenants in capite who were not Lords But that Matt. Paris doth also in another place take the Word Populus for the Commoners and not for the whole Body of the Laity pray again remember what he says in Anno 1225. where relating the manner how Magna Charta came to be confirmed in 9th Hen. III. he tells us Rex Henricus ad Natale tenuit Curiam suam apud VVestm
continued on now the Doctor upon second thoughts in â—is Edition in Folio will have them never to be Summoned any more than that once because forsooth he cannot find them mentioned in such express words as that he cannot evade them by saying the sense is equivocal and if the Commons not being expressly mentioned in our Statutes were a sufficient reason to prove them not to have been there were the Writs of Summons lost as well after as they are before the 23â— of Edward the First you might as well have faced us down that there were none in all that time till the Statute de Tallagio non concedendo you now mentioned And for proof of this pray see the Statute called Articuli super Charâ—â—s made in the 28 th of this King which is said to be made and granted by the King at the Request of the Prelates Earls and Barons who are only mentioned in this Statute and yet certainly the Commons were then at this Parliament as appears by the Writs of Summons and Expences I but now mentioned and sure their assents were given to it as well as the Bishops and Lords I could shew you the like in many other Statutes of this King nor are the words Communitâ—s or Commonalty ever mentioned above twice in all the Statutes of this King's Reign viz. in that of Westminster the first and that against Bearing of Arms neither is the word Commons to be found above once or twice in all the Statutes of Edward the Second in the Statutes made at Lincoln in the 9 th of this King 't is said to be done by the King the Counts Barons and other Grands of the Kingdom now if these general words did comprehend the Commons in those times you grant they were constantly Summoned to Parliament I desire you would give me any good reason why the same words may not as well comprehend them long before and if the bare omission of the distinct Orders or States of Men that gave their assents to the making of any Statute and the different penning of Acts of Parliament were a sufficient reason to prove they had no hand in it I doubt two parts in three of the old Statutes of Henry the Third and Edward the First would have been made without the Consents either of the Bishops or Lords since in most of them there is no mention made of either and that what I say is true pray at your leisure peruse these Statutes following viz. de Districtionâ— Scacarti of the 51 of Henry the Third with other Statutes made in the latter end of that King's Reign as also that of Actoâ— Burnel made in the 11 th of Edward I. that of Winchester made in the 13 th of this King that of Merchants in the same year as also those of Circumspecte agatis and Quo Warranto and see if you can find any mention either of the Lords or Commons in them But to come to direct proofs tho I grant the words Knights Citizens and Burgesses was not expressly mentioned in our old Statutes yet I shall prove to you by other words of a much more comprehensive signification that they appeared in Parliament in the very beginning of Henry the Third's Reign for this we need go no farther than the old Manuscripts as well as Printed Copies of Magna Charta which was first Granted in the second year and again confirmed in the 9 th of Henry the Third both which conclude thus Pro hac autem Donatione Concessione Archiepiscopi Episcopi Abbates Priores Comites Barones Milites libere Tenentes omnes de Regno nostro dedâ—iunâ— quintâ—m decimam paâ—tem omnium mobilium suorum Now can any thing be more express than this Clause viz. That the Archbishops Bishops Abbots Priors Earls Barons for themselves and the inferior Orders viz. the Knights and Freeholders and all others of the Kingdom by their Lawful Representatives gave this 15 th of their Moveables at both those Parliaments in which this Charter was first made and afterwards confirmed M. I confess this Authority looks very plausible at first but if it be strictly looked into I believe it will prove nothing at all for as to your interpretation of these words I do not allow it for reasons I shall shew you by and by but in the first place give me leave to dispute the Antiquity of this Charter which I do not take to be so ancient as you make it for tho I grant there was such a Charter made in the 2d and again confirmed in the 9th of Hen. III. yet you have already had my thoughts of this Charter which you suppose to be Henry the Thirds viz. that this which we now have is not properly his but his Son Edw. I. since it concludes this His testibus Bonifacio-Cantuariâ—nâ—is Archiâ—piâ—copo E. Londinensi Episcopo c. Anno. Regni-nostri Scil. Henrici 3. nono whereas this Bonifac here mentioned was not Arch-bishop of Canterbury before the 27. Hen. III. nor was there any one whose name began with E. Bishop of London during the time that Boniface held the See of Cantâ—rbuâ—y F. I am very glad you have made these Objections against the Validity of this Charter for if I can prove to you that what you have now urged from your friend the Dr. is a meer Evasion against the Charter it self I think you have reason to be my Convert In the first place pray give me leave to confirm the Valiâ—ity of the Charter it self I therefore freely grant that the Original of this Charter is not to be found among the Statute Rolls in the Tâ—ner where there is nothing left of it on Record except this confirmation of it by a Charter of Impeximus of Edw. I. the Conclusion of which is as you have now given and I think there cannot be a greater Pâ—oof of the careless keeping or voluntary imâ—ezlement of the ancient Statutes and Records of the Kingdom than the loss of this great Charter which certainly must have been inrolled at the time when it was made as well as every common Grant made by the King to ordinary Persons of Markets and Pairs since we find Copies of it still Exâ—ant in the ancient Annals of divers Monasteries where they were formerly kept as in particular in the Annals of the Abby of Barton Published in the first Volum of ancient English Writers lately Printed at Oxford which fully answers your Objection for instead of Boniface it is there Witnessed by S. Archibis Cant. i. e. Stephen Langton who was then Arch-bishop of Canterbury near 20 Years before Boniface there is also an c. after the name of this Arch-bishop And the same Charter is likewise recited word for word with the former and hath the same Conclusion concerning the granting of this 15th by all the Parties above mentioned in the Chronicle of Walter Hemingford Published by the Learned Dr. Gâ—â—e in his 2d Volum of English Historians only it hath no Witnesses Names
without all the rest of their Peers divers of whom it seems the King had for some reasons then omitted to Summon But as for your instance of the Barons Peers or alios Magnates which were somtimes Summoned and sametimes omitted in the Reigns of our three Edwards You do well to put in that it was after the times that the Commons were a third Estate for indeed it was only after that the Tenants in Capite had left off making a distinct Council by themselve which I suppose was about the end of Henry III. Reign and then it is true the King called several of these Tenants in Capite as also others that were not so by Writ to the House of Lords as Pares Baronum i. e. not as real Barons but Barons-Peers since a baâ—e Summons by Writ did not as yet nor long after vest a Peerage in their Heirs so that upon the whole matter I see no reason from any thing you have urged from the example of Scotland to make me change my opinion that the Tenants in Capite were anciently the sole Representatives either of this or that whole Nation in Parliament for pray take Notice that I do not find the Tenants in Capite so much as mentioned in the ancient Statutes of that Kingdom or Charters of their Kings as the Common Council or Parliament of Scotland before the Reign of King Robert III. which was but late in Comparison of the antiquity of those Councils in that Kingdom M. I could say more as to the Antiquity of the Tenants in Capite their coming to Parliament as the sole Reprensentatives of the Nation before the time you mention but it grows late and therefore I shall wave it at present and so shall only proceed to remark that great part of the Errour of the Gentlemen of your Opinion proceeds from this false ground that you suppose that the Parliaments both of England and Scotland were a perfect Representative Body of all the Free-houlders and Freemen of those Kingdoms which is a meer Chymera for in the first place if we will consider it never was nor indeed is so at this day since you your self must acknowledge that all Copy-holders and Lease-holders under Forty Shilling a Year all Freemen in Towns Corporate where the Elections lies wholly in the Major and Aldermen or Common Council and lastly all that will not pay Scot and Lot in divers Burrough Towns are utterly excluded from giving their Votes in the choice of Parliament Men and consequently from having any Representatives in Parliament though sure as much Freemen as the rest of the Kingdom and this either by general Statutes or else by the particular Charters and Customs of those Cities Towns and Burroughs all which are lookt upon as good and lawful Representatives of those Cities and Burroughs so that I am clearly of the Doctor 's Opinion that the Tenants in Capite as well those who were Barons as those that were not only represented themselves and not the Commons as being as you truly observe never chosen by the People and as no Man can believe that a great Lord or Bishop could Represent his Mesne Tenants so neither could the smaller Tenants in Capite who were no Barons be properly said to represent theirs and yet these might according to the Custom of Feudal Tenures and the Power they then had over their Tenants Estates very well make Laws for them and Tax them at their pleasures because the main interest and strength of the Kingdom lay almost wholly in them and these as the Doctor very well observes having the Power of this or any other Nation de facto always did make Laws for and Tax the rest of the People But to say somewhat to the Authorities you have brought from the County Palatines of Chester and Durham I know not what old Priviledges they might pretend to of not being forced to give Voluntary Aids or Subsidies of their Moveable Goods without their consents yet this much I think may be made out that as for all Land Taxes and the general Laws and Statutes of the Kingdom they were as much bound by the one and as much liable to pay to the other as the rest of the Subjects of England or else how came they afterwards to be bound by our general Statutes at all as certainly they were from all times since the Conquest though Chester had no Representatives in Parliament till the Reign of Henry VIII and Durham had none till our times F. You Gentlemen who hold this general notion of Tenants in Capite are so intoxicated with it that you do not care what absurdities or contradictions you fall into provided you may maintain your dear opinion as I shall shew you by and by But first let me tell you your Reply to what I have now said is very fallacious and in some points mistaken as to the matter of Fact For in the first place I doubt not but our Common Councils or Parliament were in their first institution the main Body or Representative of all the Freemen of the Nation and though it may by long continuance of time to deviate from that Institution yet that it is to be attributed either to some prevailing Custom or else positive Law to the contrâ—ry for it is certain that in the Saxon times all the Free holders of England had a right of coming to Parliament in Person and hence it is that Liber Tenens Liber Homo Ingenuus were Synonimous and of the same signification as I have proved from Sir Henry Spelman's Comment in his Glossary upon those words and hence it is that the Members of those Councils were so numerous as they were in those times and long after till they became so vast and unmanageable that they were fain by degrees to pitch upon this method of sending Knights of Shires to represent them which is certainly a very ancient Institution since the Tenants in Ancient Demean claimed to be exempted from the Expences of Knights of the Shires by Pâ—escâ—iption as I shall shew you more particularly by and by and likewise since all Riches consisted in those days in Land or else in Stock or Trade therefore the Cities and Burroughs and Towns by reason of their Riches had always a share in the Legislative Power as well as in giving of Taxes and since all such Citizens and Burgesses not being able to come in Person as the Free-holders could were represented either by their chief Magistrates called their Aldermen or else by Burgesses of their own chusing as at this day so that all Freedom or Ingenuity being in this as in all other Common-wealths reckon per censum by the Estates of the owners our Common Councils were and that truly the Representatives not only of the Estates but Persons of all the Freemen of the Nation for I am so far of the Doctor 's Opinion that the Cheorl Folk as they were then termed were little better than the Scotch Vassals or
make use of into these three Heads First I shall give you divers Quotations out of the most Ancient Writers who lived in or nearest the time you prefix viz. the coming in of the Norman William and shall descend down in order of time as low as your Drs. 18th of Edward I. 2. I shall shew you from the Authorities and Testimonies of the Judges of almost all our Courts of the House of Commons nay of several whole Parliaments and the King himself that the Commons had an undoubted Right of Sâ—tting there by Prescription 3. From the Consent of all our Neighbouring Kingdoms who being governed by a King and a great Council or Assembly of the Estates according to the Gothick Model the Commons had always from the Institution of the Government their Representatives in those Assemblies M. I much doubt that but pray begin with your Ancient Historians for as for my own part I must freely tell you though I have looked them over very warily yet I can find nothing in them concerning the particular constituent parts or Members of our great or Common Councils but the Magnates Optimates or Principes Comites and Barones all which tho' you have at our last meeting shewed me from some Authorities that they may take in others tho' not Nobâ—â— by Birth yet since these words have been most commonly taken in another sense it needs some better proof than to say in general that meer Commoners were there because those general words may sometimes be taken in that sense and as for the words Clerus and Populus which I confess are often mentioned to be present at those Assemblies the Learned Dr. in several places of his Answer to Mr. P. as also in his Glossary hath plainly proved that as the word Clerus sometimes signifies the Bishops and sometimes the Inferiour Clergy so Populus does also neither great nor little People but only the Layety and therefore as it is used and restrained signifies the Lay Plebs or the Lay Magnates What I mean by Plebs I shall shew you by and by but that the word Populus does not signifie the Inferiour sort of people or such as were inferiour to Barons Tenants in Capite or Noble-men the Dr. has very well proved from that passage made use of by Mr. P. to prove the Commons to have been in that great Council which made Henry the first King because it is said by Mat. Paris that Congregato Clero Populo universo c. by which word Populus he would understand the Commons alone distinct from the great Lords But the Dr. very plainly shewâ— him the falseness of this Interpretation from the same Author within three lines of the place himself had cited where the same Body of Men which is but just before called Populus is presently after called Magnates ad haec Clero respondente Magnatibus cunctis not one word in this place of any Populus but the great or Noble-men that is the Tenants in Capite must be the People or Lay-men here mentioned and this same Clerus and Populus is by Eadmerus speaking of a great Council held at Westminster in the second Year of this King called Primates Regni uâ—riusque Ordinis or as Florence of Worcester words it the Orders of Men assembled in this very Council Omnes Principes Regni sui Ecclesiastici Secularis Ordinis the which the Dr. also proves from several like passages in Eadmerus in all which as also in all other Authors the Dr. hath there cited This Populus is explained to be the Earls Barons and great Men of the Kingdom only that is all the greater as well as smaller Tenants in Capite And tho' I confess at our last Meeting you brought very good proof that the word Populus was more comprehensive among the Romans yet tho' the Roman Populus comprehended all the People as well Nobility as Plebeians and that in Scotland it took in the Burgesses of the Royal Burroughs which hold immediately of the King yet does it not follow that this word must needs signifie so in this Kingdom too since in all Countreys not all the People but only the Governing part of it is used for the Populus in all Histories Publick Acts and Laws of those Kingdoms thus in Denmark formerly and still in Poland the Populus consisted solely of the great Councils of the Nobility and Senate in which there were no Plebeians at all F. I hoped we had done wrangling about this word Populus but since I see you are not yet satisfied I shall shew you more plainly that by this word used in our Ancient English Historians is not only meant the great Lords and Tenants in Capite but another larger and more comprehensive Body and whereas you say that the word Populus is still restrained by our Ancient Historians to the Magnates Primates Principes Regni all which words do in their genuine signification signifie Great or Noble-men and that tho' they are sometimes taken in a different acceptation yet that it lies upon me to prove that they are to be taken in my sense to this I must tell you that the proving part ought to lie wholly of your side for since the Commons of England have been for above these Four hundred years constituent Members of our Parliament as is agreed on all hands and that they also claim to be so by right of Prescription it lies still upon your door to prove the contrary and to shew at what time and upon what occasion they were first introduced which if you have not been able hitherto to perform so as to give me any tolerable satisfaction you cannot blame me if I still keep my own Opinion and believe them as Ancient as Kingly Government it self in this our Island But since I grant these words Clerus and Populus are of a general and equivocal signification their true sense and meaning is best to be understood from the subject matter that is treated of as I shall shew you first from the nature and signification of the words Clerus and Populus according to the Ancient Constitution of our Government that they must signifie many more than your Tenants in Capite alone and then I shall confirm my Interpretation by the Authority of such Ancient Historians as lived either in or very near the Times I mention And therefore I shall first prove it from the great Analogy there was between the Clerus and the Populus so that if the Clerus took in more than your Tenants in Capite in our Common Councils by the same reason the Populus must do so too Now that this word Clerus when used by it self does not originally signifie either the Bishops and Abbots alone or the Inferiour Clergy alone as your Dr. asserts is evident because Clerus is a general word and comprehends all the Clergy of whatsoever sort or degree Now that all the Clergy as well the Superiour as
Council of all the Layety were not summoned at all and so Vice versa the Common Council of the Kingdom often met when the Synod of the Clergy was not convened as appears by the most ancient Writs of Summons to the Bishops we have left us as particularly The first Writ of this kind that is upon the Rolls viz. That for the Bishops which Mr. Prin has Printed in the First Part of his Parliamentary Register in the 6th of K. Iohn and which I have cited from the Drs. Answer against Mr. P. at our last Meeting in which Writ tho' I grant there is a Clause for Summoning the Abbots and Conventual Priors yet there is none for the inferior Clergy But in the next Writ which the same Authors have likewise Published viz. That to the Archbishops of York there there is no Clause at all for Summoning any of the Clergy as such tho' it is true there is underneath an Eodem modo scribitur omnibus Episcopis Abbatibus c. Comitibus Baronibus which shews that this Writ was not to Summon them in their Spiritual but Temporal Capacities So likewise in the next Writ of Summons to Parliament we have left us on the Roll which is cited in Mr. Selden's Titles of Honour as also in the same Parliamentary Register and in Dr. B. against Mr. P. viz. That of the 49th of Henry the Third to the Bishop of Duresme without any Clause of Summons to the Clergy whether Abbots or others So likewise in the next Writ of Summons that is left us viz. That of the 23d of Edward the First Published also by Mr. Prin to the Archbishop of Canterbury in which there is no Clause of Summoning any of the Clergy and tho' there immediately follows another Writ of the 23d of this King in which I grant there is this Clause of Praemunientes Priorem c. viz. The Prior Chapter and other of the Clergy of his Diocess to appear in Parliament yet that they were no necessary part of it but only of the Convocation appears by the rest of the Writs of Summons to Bishops which Mr. Prin has also given us in that Chapter all which if you please to peruse you will find that in near 200 Writs to Parliaments or great Councils the Clause of Praemunientes Clerum is to be found in scarce half of them which shews that the summoning or omitting them depended wholly upon the King's Pleasure and so were no constituent part of the great Council or Parliament as you suppose they were under the first Norman Kings for then sure they would not have been omitted to have been constantly Summoned in all Parliaments as well as the Bishops and Abbots But to come to your next Argument from the numerousness of these Assemblies which you say could not be properly called Numerosa or Infinita Multitudo whereas all the Tenants in Capite as well Ecclesiasticks as Lay-men did not amount in all to 800 there may be an allowance made for this to the Monkish way of Writing of those times who might call such a great or more than ordinary Assembly of the Clergy and Tenants in Capite an innumerable or infinite Multitude when indeed they were but few more than our Lords and Commons are at this day F. I pray Sir give me leave to Answer what you already said before you proceed any farther because what I have to reply to it will be pretty long in the first place you cannot with any reason if you better consider of it deny that the Clergy as well the Superior as Inferior did before your Conquest as well as long after make but one Assembly or Body of a General Council tho' sitting in several Places as the Lords and Commons do at this day for the words in the Old Book of Ely are Adunato Concilio Cleri Populi which is to be rendred the Council of the Clergy and Layety being united and joyned together as I already shewed this word Adunato does always signifie as also by the Confirmation of that Charter of King William's to the Abby of Westminster and to which tho' a Matter of meer Temporal Concernment all the Clergy as well as Layety gave their joynt Consents as appears by the Conclusion of that Charter as also to that of K. Stephen but now cited which they could never have done had they not then made a part of the same General Council or Assembly Having proved to you that the inferior Clergy did anciently make a part of the General or Common Council of the whole Nation I shall now proceed to answer your Objection 'T is true that for a great part of some Kings Reigns for want of the Writs of Summons to the Superior as well as to the Inferior Clergy we cannot certainly tell tho' we may presume it from the general words of the Historians whether the Inferior Clergy were Summoned or not yet this I think I may boldly averâ— that wherever any ancient Author makes mention of the Clerus and Populus in general being present at any such Common Council it must necessarily mean not the Bishops and Abbots or the Superior Clergy alone or the great Lords and Tenants in Capite onely but those and the Representatives of the whole Nation both Clergy and Layety taken together as I think I have sufficiently made out Nor is your Objection considerable from that writ of the 6 th of King Iohn that no Inferiour Clergy were summoned because onely the Abbots and Priors are mentioned at the end of it to this I answer that granting it to be a writ of Summons to a Common Council of the Kingdom which is not yet proved the omission of the Inferiour Clergies being summoned is no cogent Argument to prove they were not there since for ought as you and I know there might be other writs issued to the Inferiour Clergy distinct from those to the Bishops and Abbots Which last used to have distinct writs to each by themselves and I may as well suppose these writs to be lost as you do that all the general writs to the smaller Tenants in Capite who were no Barons and yet were to be all summoned according to King Iohns Charter are all lost and as for the Abbots and Priors mentioned at the end of this writ of King Iohns they were such as held onely in Capite or else such as did not if the former this might be onely a Council of Tenants in Capite and none other of which I grant there were many held in those times upon occasion of Wars Scurages and other matters but if by these Conventual Abbots and Prioâ—â— summoned by this writ you will mean all Abbots and Priors of whatever Tenure then it appears plainly that this great Council consisted of many other Ecclesiasticks than what held in Capite and if so why might not the Inferiour Clergy as well make a part of it But as for your next Authority the writ
Camera tunc Circumstante petit etiam a Clero susidium Qui respondit se velle summo Pontifici Literas Supplicatorias dirigere pro Conferendi Licentia obtinenda So that the Plebs here mentioned by the Historian were only the Lay-Nobility that stood about the King in his Chamber Now pray consider that the Word Plebs is of a much more vulgar Signification than Populus so that if the former did not signifie the Commons as now understood the latter cannot do so And therefore I see no Reason to suppose that there Words must signifie the Commons The like Error I must tell you by the way the Gentlemen of your Opinion have fallen into concerning the Word Vulgus in the old Coronation Oath in Latine when they ignorantly translate these Words in the old French Oath les leys les quelles ly la commuante aura eleu leges Consuetudines quas vulgus elegerit to the great Confusion of this Nation in the beginning of the late troubles whereas the Community here understood in this Oath was the Community of the Bishops and Abbots Earls and Barons and great Men and the whole Body of Tenants in Capite expressed before in this Oath by Clerus and Populus for by them alone could these demands be made for the Vulgus i. e. the Multitude or Rabble could never come near to make these demands at so great and splendid a solemnity F. This is but to urge the same thing over and over again for that under the Word Populus were also comprehended the Commons I have already sufficiently proved and can yet prove it further from divers Historians and Records both of Henry the 3 d and Edward the 1 st and Edward the 2 ds Reign in the first place therefore I must still put you in mind of that Passage so often cited from Mat. Paris in 9 th of Henry where the Members of that Common Council in which Magna Charta was granted is said to be Clerus Populus cum Magnatibus Regionis or as Mat. Wistminster in the same year almost in the same Words Clerus Populus cum Regni Magnatibus with both which also agrees the Manuscript History of Walter of Coventry who speaking of this very Council of 9 th Henry the 3 d relates it thus at the Purification of the Virgin there assembled at London the Procâ—res Angliae ibique tractatu diffusiore habita cum Clero Populo the King then granted the Liberties of the great Charter and that of Forests and that there was granted a Comitions Baronibus Clero Populo ibidem Praesentibus quinta decima â—mniâ—m mobilium de Communi Assenâ—â—â— Whence pray observe what I before minded you of that this Tax as it was a general upon all the moveables of the Kingdom and took in all sorts of Persons and so could not never be given by the particular Order of the Drs. Tenants in Capite since it did not concern Tenures at all and was levied on those Knights Service as well as upon those that did But the Author of the Annals of the Abby of Burton is more full in this Point for in Ann. Dom. 1255. being the 39 th of Henry the 3 d he tells us a Parliament was held at Westminster Convocatis ibidem Episcopis Abbatibus Prioribus Comitibus Baronibus totius Regni Majoribus in quo petebat Rex a Clero Populo de Laicis feodis suis sibi suffragium exhiberi c. viz. For the Business of Sicily and then goes on thus disponens de suo iniquo Consilio Hoc prius a Clero postmodum a Popâ—lo Majori Minori extorqueri from which passage I shall observe first That all the Clergy in general as well the Bishops and Abbots as Inferior Clergy are here stiled Clerus Secondly That the Nobility and Commons or whole Body of the Laity are altogether called Populus Thirdly That this Populus is there also distinguisht into the Major and Minor now as by the Major can be meant none but the greater Nobility so the Populus Minor can signifie none but the Commons in general unless you will suppose that the Kings design was onely to extort Money from the Tenants in Capite and no others But to put it farther out of all dispute that this Word Populus when put after and distinct from Magnates Barones and the like in our ancient Historians and Records does signifie the Commons alone I shall prove to you by the Patent Roll of 19 th of Edward I. the Year after your Dr. supposes the Commons were called to Parliament where there is a Writ directed Baronibus Militibus Liberâ—s Hominibus de Wallia reciting that the Comites Barones Populus de Regno had lately freely granted a 15 th of all their Moveables and therefore desires like aid from the Welch now nothing can be plainer than that by Populus in this Record must be meant the Commons and yet it is also as evident from another Record now in the keeping of the Remembrancer of the Exchequer that this 15 th was granted the year before in the 18 th of this King for by this Writ or Commission he appoints Commissioners for the Collecting of that 15 th of all Moveables which the King thus recites the Archiepiscopi Episcopi Abbates Priores Comites Barones omnes alii de Regno nunc sicut alias de nobis Progenitoribus nostris liberaliter fecerunt to have lately freely granted him which can be no other than that mentioned in the Record of the 19 th unless you can suppose that there was a 15 th granted two years together which is very unlikely and more than the Nation could then well pay So likewise by the Parliament Roll of 1 Edward the 3 d appears that Hugh le Dispencer Jun. had been in the Reign of his Father Per Considerationem Parium Populi Regni per Assensum Domini Edwardi tune Regis Angl. exiled and Disinherited for ever as a Traytor to the King and Kingdom that is he was banish by the Joint Consent of King Lords and Commons now if Populus in these Records signifies the Commons after the time you own they appeared in Parliament I would be glad to see some better Reasons than you have hitherto given me to prove that it could not have the same signification before the 49 th of Henry the 3 d or 18 th of Edward I. yet that Populus does also sometimeâ— signifie both Lords and Commons appears from Mat. Westminster where relating how King Edward I. in the 34 th year of his Reign made his Son a Knight then he tells us Pro hac Militia filii Regis Concessus est Regi Trigesimus Denarius à Populo Clero Mercatores verò Vicesimum concesserunt Yet that the Commons had also a share in this Grant the Dr. himself acknowledges in his Glossary under the same Heads in these words
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
from that 7th Edward the First I think that can by no means do the business for which you design it for in the first place this is only Declaration of the Bishops Lords and Commons of the Land that it belongs to the King to defend i. e. forbid all force of Arms but mark Sir what force sure it is only meant of such Force as belongs to the King's Prerogative to forbid viz. force of Arms against the Publick Peace and such as he might punish according to the Laws and Usages of the Realm and therefore the Statute expresly declares that as Subjects they are hereunto bound Aid him their Soveraign Lord the King at all times when need shall be but does this Act any where say that he hath an Irresistible Power to disturb this Peace by his own private Illegal Commissions or that any men are bound to assist him in it or because for example he hath Authority to punish all men according to Law that shall come to Parliaments with force of Arms that therefore he hath an unlimited power of raising what Forces he would and in prisoning or destroying the whole Parliament if he pleased and that no bodâ— might resist him if he had gone about so to do The like may be said if the 〈◊〉 should notoriously and insupportably by force invade all the Civil Liberâ—â—â—â— and Properties of his Subjects by Levying Taxes and taking away theâ—r Estates by down-right Force contrary to Law now can any body in his senses believe that the Act of 25th of Ed. 3. was made to prevent all Resistance of suâ—h Tyrannical Violence and that the Resistance of those Forces whether forreign or domestick that might be sent by the King 's private Commissioners to murder or enslave us is making War against his Person or that it comes within any of the Cases expressed in that Statute and therefore cannot fall within the compass of Sir Edw. Coke's Comment upon this Staâ—ute all the offences therein specified being Treasâ—ns at Common Law before that Statute was made nor is the Reformation there mentioned to be understood of a just and necessary Defence of our Lives Liberties Religion and Properties as setled and established by the Laws of the Land to be looked upon as making War against a weak or seduced King but is rather in defence of him and the Government by opposing Tyranny which will certainly bring both him and us to Ruine at last so the Reformation he there mentions is only to be be understood of such Insurrections and Rebellions as have been made under the meer pretence of Religion or obtaining greater Liberties for the common sort of People than they had by the Law of the Land such as were the Rebellions of Wat Tyler in King Richard the Second and Mortimers in Hâ—â—ry the 6th Reigns not to mention the other Rebellions raised by the Papists in the times of King Henry the Eighth Edward the Sixth and Queen Elizabeth's Reigns all which being begun by Seditious or Superstitious men were certainly rank Rebellions and so are and ought to be esteem'd by all good Subjects M. I grant these pretences seem very fair and specious yet notwithstanding this your pretended right or a necessity of Resistance of the King or those commissioned by him in case of Tyranny has been still looked upon as Rebellion in all Ages and the Actors dealt with accordingly where ever they were taken F. I do not deny but as long as Arbitrary and Tyrannical Princes could get the better of it and keep the Power in their own hands they still Executed for Traytors whosoever opposed or resisted their wicked and unjust Actions tho' they were never so near Relations to them thus both Edward and Richard the Second put their Uncles the Dukes of Lancaster and Gloucester to death meerly because they joyned with the rest of the Nobility and People to prevent their designs So that it is not the Execution of the Man but the Cause that makes the Traytor since Princes are seldom without a sufficient number of Judges and Jury-men to condemn whomsoever they please to fall upon But that the Clergy Nobility and People of England have always asserted this right of Self-defence in case their Liberties and Properties were uniustly invaded by the Tyrannical or Arbitrary Practices of the King or those about him I think I can prove by giving you the History of it in so many Kings since your Conquest as will render it indisputable if you please to give me now the hearing or else to defer it till the next time we meet M. I confess I was so weary of sitting up so long at our last Conversation that I made a Resolution not to do so any more and therefore since it grows late let us leave off now and I promise to meet you here again within a night or two and then I will hear how well you can vindicate your right of Resistance from Law or History but if you have no better proofs for it than the Rebellion of the Barons in King Iohn and Henry the Third's Reigns you will scarce make me your Convet since Impunity does never sanctifie a wicked action or render it the more lawful and you have already given it me for an Axiom that a facto ad Ius non valet consequentia F. I accept of your Appointment with thanks but pray do not forâ—judge my Arguments till you hear them and as for the Axiom I allow it for good provided I may urge it in my turn but in the mean time I shall wish you good night M. And I the same to you FINIS Bibliotheca Politica OR A DISCOURSE By WAY of DIALOGUE Upon these Questions Whether by the ancient Laws and Constitutions of this Kingdom as well as by the Statutes of the 13th and 14th of King Charles the II. all Resistance of the King or of those commissioned by him are expresly forbid upon any pretence whatsoever And also Whether all those who assisted his present Majesty King William either before or after his coming over are guilty of the breach of this Law Collected out of the most Approved Authors both Antient and Modern Dialogue the Ninth LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford Arms where also may be had the First Second Third Fourth Fifth Sixth Seventh and Eighth Dialogues 1693. Authours chiefly made use of in this Dialogue and how denoted in the Margin Dr. Sherlocks case of Resistance S. C. R. Mr. Iohnsons Reflections upon it I. R. S. Dr. Hick's answer to Iulian Intituled Iovian H. I. I desire the Reader to remember that whenever I make use of the word People in this or the following Discourse I mean thereby the whole diffusive body of the Nation consisting of the Clergy Nobility and Commons The PREFACE TO THE READER I Must beg your pardon if I have exceeded my intended design in the Preface to the first of these Dialogues of reducing what I had to say on the
this Letter I now mentioned was writ to the Pope which transaction I shall give you almost verbatim out of Mat. of Westminster and Henry de Keyghton in Anno 1297. being the 26th of Edward the First when the King having extorted a great sum of Money from the Clergy and People contrary to Law and being then going into Flanders he called a Parliament at Westminster where most of the Earls and Barons refused to appear until such time as their Petitions for the ease of their Countrey were heard and that the King would again confirm Magna Charta Yet nevertheless the King upon his confession of his Male Administration which he made before all the People with Tears in his Eyes and promise of amendment then obtained of the Commons an Aid of the Eighth Penny of their Goods But as soon as the King was gone over the Constable and Earl Mareschal with other Earls and Barons went to the Exchequer and there forbad the Judges to levy the said Tax upon the People by the Sheriffs because it was done without their knowledge without whose consent no Tax ought to be exacted or imposed so that the said Earls and Barons being thus gathered together and the greater part of the People joyning with them at last Prince Edw. then Lieutenant of the Kingdom was forced to call a Parliament to which the Earls and Barons came attended with great multitudes both of Horse and Foot but would not enter the City of London till the Prince had in his Fathers name confirmed the great Charters and had passed the Statute de Tallagio non concedendo both which were afterwards again confirmed by the King his Father some time after his Return And this will serve to explain the last Article in this Statute which comprehends the King's Pardon or Remission to Humphrey Earl of Herâ—ford and Essâ—x then Constable and Roger Bigot Earl of Norfolk Mareschal of England the two principal Leaders in the late Resistance with all other Earls Barons Knights and Esquires of their Party all Leagues and Confederacies as also all Rancour and Ill-will with all other Transgressions against them And pray see Sir Edward Coke's Comment on these words you compare our English Histories with this Act of Parliament the Old saying shall be verified That Records of Parliamentâ— the truest Histories The King had conceived a deep displeasure against the Constable Mareschal and others of the Nobility Gentry and Commons of the Realm for denying that which he so much desired yet for that they stood in defence of their Laws Liberties and Free Customs c. I suppose he refers to the Resistance but now mentioned whereupon he did not only restore the same to them as aforesaid but granted special Pardon to those against whom he had conceived so heavy a displeasure c. and such a one as you will scarce read the like and after a short gloss upon the words Rancour and Ill-will he thus comments on these words etiam transgressiones si qâ—as fecâ—inâ— here the words si quaâ— sicâ—iâ—t were added lest by acceptance of a pardon they should confess they had transgressed So careful were the Lords and Commons to preserve their Ancient Laws Liberties and Customs of their Countrey so that it is plain that Sir Edward Coke then thought the Lords and Commons had not transgressed in thus standing up tho' with force of Arms for their just Rights and Liberties and which sufficiently proves that this Author did not conceive such a Resistance to be making War against the King and so Treason at that time at Common Law and consequently not to be afterwards Treason by the Statute of 25th of Edward the Third as you would have it since that Statute dâ—es not make any other Overt-acts to be Treason but what had been so by Common Law before this Statute was made But in the Reign of this King's Son Edward the Second there were much more pregnant and fatal proofs of the exercise of this Right of Resistance by the Earls Barons and People of England against Peirce Gaveston whom having been before for his Mis-government of the King banisht the Realm by Act of Parliament and coming over with the King's License but without any reverse of the said Act Thomas Earl of Lancaster the King's Uncle with the rest of the Earls Barons and Commons of the Land took up Arms against him And tho' he raised some Forces by the King's Commission yet they fought with him and took him Prisoner and beheaded him near Warwick Some years after which the said Thomas Earl of Lancaster with Humphrey de Bohun Earl of Hereford together with divers other Earls and Barons took Arms and spoiling the Lands of the two Spencers Father and Son came up to London where the King had called a Parliament in which the King was forced to banish the said Spencers out of the Kingdom tho' they quickly returned again against whom when the said Earls above mentioned and divers other Barons and Knights again took Arms but being fail'd by some of their Consederates were over-power'd by the King's Party and the Earl being taken Prisoner was attainted and beheaded at Portfract yet was the this Judgment against the Earl and those of his Party afterwards reversed in Parliament in 1 mo Edward the Third and their Heirs restored in blood as also to the Lands of their Fathers as besides the Act it still to be seen upon the Rolls appears more plainly by a Writ of this King 's reciting that whereas at a Parliament at Westminster among other things it was agreed by the King the Prelates Earls Barons and Commons of the Kingdom that all those who were in the Quarrel with Thomas E. of Lancaster against the Spencers should have their Lands and Goods restored because the said Quarrel was found and adjudged by the King and the whole Parliament to be good and just and that the Judgments given against them were null and void and therefore commands restitution of the Lands and Tenements now in the Crown to the Executors of the said Earl and the like Writs are found for the other Lords and Gentlemen that had been of his Party And further that not only this Resistance made by this Earl and the rest of his followers but also that which this King himself made together with Queen Isabel his Mother against the Mis-government of the King his Father through the evil Counsel of the two Spencers appears by the Act of Indemnity passed in the first Year of this King in the preamble of which there is recited a short History of the wicked Government and Banishment of the Spencers Father and Son and also how Thomas late Earl of Lancaster was by their procurement pursued taken executed disinherited and how the said Spencers and Robert Baldock and Edmund Earl of Arundel by the Royal Power they had usurped had caused the King that now is and the Queen his Mother to be utterly forsaken of the King
Earl and in the like pardon to the Constable and Mareschal in the time of Edward the First which I now also quoted those Lords would not own they had transgressed but the words are only etiam transgressiones si quas fecerit So that since such Reformations could not be brought about without violence and blood-shed and some Irregularities which in times of Peace could not be justified by the strict Letter of the Law it was but reason that for the quieting of mens minds and their future security they should be indemnified for what they had done with so good an intent and for the common good of the Kingdom But that such Acts of Pardon do not relate to the Titles such Kings had to the Crown but only to their being Kings in the Eye of the Law appears by a like Act of Pardon passed in Parliament in the first of Henry the Seventh to pardon and save harmless all those that came over with the King and all that helped him to recover his just Right to the Kingdom against King Richard the Third there called that Vsurper So that you may see such Acts of Pardon do not concern the just Titles of Princes nor the Justice of the War but are to quiet mens minds under the new Government whereas those that took part with the Usurper were not pardoned but left to the Law since the present Government would not take care for their security that had obstructed its settlement So the Act of Oblivion of the second of Charles the Second tho' it pardons Treasons expresly yet it as well pardons the Treasons of them that had Commissions from King Charles the First or Second as well as those that acted by Commissions from other pretended Authorities So that you see in the Judgment of this so modern a Parliament men might be supposed to be guilty of Treason tho' they had taken part with the King and had acted by â—is Commission if the things commanded were illegal M. I confess you have taken a great deal of pains to justifie taking up Arms against nay Imprisonment of our Kings when that which you call the preservation of the Government requires it that is when there is a â—action in the Kingdom strong enough to make a disturbance for it was very well said by Tacitus in the speech he makes for Otho to the Souldiers to take up Arms and kill Galba then Emperour that it was in vain to speak more for the justification of that Action quod Laudari non potest nisi peractum Treasons if successful have never wanted a sufficient Party in the Nation to make up a Parliament to countenance them and to pardon nay justifie all those that have been Actors in them as we may see by those Acts of Indemnity you mention and therefore I am not the more convinced that such Resistance was lawful notwithstanding those specious Declarations of Parliament of their being made for the publick good and preservation of the King and Kingdom But you have done very warily to pass by without any Justification the Deposition of King Edward the Second as also that of the Resistance as you call it of Henry Duke of Lancaster against King Richard the Second as also his Deposition tho' done in Parliament since all the proceedings against this King were repeal'd in Parliament in the first of Edward the 4th as appears by the Parliament Rolls of that King's Reign wherein the taking up Arms against King Richard by Henry Earl of Derby is said to be done contrary to his Faith and Legiance and his taking the Crown called Usurpation and the killing of King Richard his Soveraign Lord termed as it justly deserved Murder and Tyranny which does tho' not directly yet by consequence condemn his Deposition too since he is after that here called King and you do as warily pass by the late Rebellious War of the Long Parliament against King Charles the First as also his horrid Murder before his own Gates because you know cry well that this Doctrine of Resistance seldom stops with a bare Reformation of what is amiss but commonly ends with the Murder or Deposition of the King or else driving him from his Throne as we now find it by woful experience in the Person of our Unfortunate King who was so lately forced to quit this Kingdom for the security of his Person and therefore to put an end to this part of the Dispute the Parliament of the 13th of King Charles the Second were so sensible of the great Mischiefs that attended this Rebellious Doctrine as having been the destruction of one of the best Princes that ever Reigned and the occasion of the loss of so many brave Men besides the ruine of so many great and Noble Families that they were resolved to do their utmost to prevent it for the future and therefore the King and Parliament in the 13th and 14th of King Charles the Second passed those remarkable Acts concerning the Settlement of the Militia in the King and his Successors to take away all dispute about it tho' they declare it to have been his Ancient Right and therefore to take away all pretence for taking up Arms either by the Two Houses of Parliament or any other person whatsoever they in preamble to both these that these Acts thus expresly declare Forasmuch as within all His Majesties Realms and Dominions the sole Supreme Government Command and Disposition of the Militia and of all Forces by Sea and Land and of all Forts and Places of Strength is and by the Law of England over was the undoubted Right of His Majesties and His Royal Predecessors King and Queens of England and that both or either Houses of Parliament cannot nor ought to pretend to the same nor can lawfully raise or â—evy War offensive or defensive against His Majesty His Heirs or Lawful Successors and yet the contrary hereof hath of late been practised almost to the ruine and destruction of this Kingdom and during the late Usurped Governments many Evil and Rebellious Principles have been distilled into the minds of the People of this Kingdom which unless prevented may break â—orth to the disturbance of the Peace and Quiet thereof c. And in pursuance of this Statute it was likewise ordained by the Authority aforesaid in the 2d Statute for the Militia in the 14th year of the same King wherein not only the same preamble is recited verbatim as before in the former Statute but it is also Enacted That no person no not a Peer of the Realm shall be capable of acting as Lieutenant Deputy Lieutenant Officer or Souldier by vertue of this Act unless after the Oaths of Allegiance and Supremacy they take this Oath following viz. I A. B. do declare and believe that it is not lawful upon any pretence whatsoever to take Arms against the King and that I do abhor that Traitors Position that Arms may be taken by his Authority against his Person or
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
place as to the dispensing Power which the King has lately assumed to himself in matters of Religion and thereby putting into Offices and Commands persons uncapable by Law of bearing them without taking the Test as I shall not now dispute the Legality or Illegality of the Kings Declaration concerning it so as to that part of it that concerns Liberty of Conscience or dispensing with the Papists and Dissenters to meet in Assemblies for their Religious Worship notwithstanding all the Acts made against Mass and Conventicles it was no more than what King Charles the IId had done before with the Advice of his Privy-Council in which if it had been Rebellion to have opposed him sure it is the same crime in the Reign of his Brother 2. As for the Commission for causes Ecclesiastical F. Since I foresee your discourse upon this Subject is like to be long and to consist of many more heads than I doubt my memory will serve to bear away pray give me leave to answer all your instances one after another as you propose them First then as to the late Declaration concerning the Dispensing Power it was so far from being done by Law or so much as the Colour of it that besides its being against divers express Acts of Parliament which tye up the Kings hands from dispensing with the Act against publick Mass and Conventicles as also that disable all Persons whatever to act in any publick Imployments till they have taken the Test appointed by the said Act in which all non obstances are expresly barred But this Declaration was never so much as shewn to the Privy Council till it was ready to be published and then indeed the King caused it to be read in Council declaring that he would have it issued forth tho' without ever Putting it to the Vote or so much as asking the consents of the Privy Councellours there present though I grant the Title of it sets forth that it was done by his Majesty in Council to impose upon the Nation that stale cheat whereby this King as well as the last would have had us believe that their Declarations had been issued by the consent of the Council when God knows there was no such thing And as for any judgment or opinion of the Judges to support it and make it pass by colour of Law it was never as I can hear of so much as propos'd to them in their judicial capacities though perhaps it might be propos'd to the Lord Chancellor and some of the Judges who were of the Cabal which is nothing to the purpose all that I ever heard to have been brought judicially before them was the Case of Sir Edward Hales taking a Commission for a Collonel of a Regiment after he had openly declared himself a Papist in which great point though I grant the Major part of the Judges gave their opinion for the dispensing Power yet was it only in the case of Military commissions as several of them afterwards declared and not of all sorts of Imployments as well Civil as Military much less for Popish heads of Colledges Parsons and Bishops to hold their Livings Headships and Bishopricks if they pleased to turn to the Romish Religion or that the King should please to bestow them upon Popish Priests it would have been as legal in the one case as in the other Since as for Popish Heads of Colledges and Parsons we have had too many instances of it and if we had none for Bishops we must thank either the constancy of most or the timorousness of some of them if they have not openly declared for the Romish Religion and yet might have kept their Bishopricks notwithstanding but I do not at all doubt but that such a general dispensation for professed Papists to take and hold all sorts of Offices and places of Trust not only Military but Ecclesiastical and Civil would have in a little time brought all Offices and Imployments into their hands Nor is this dispensing power in matters of Religion the sole thing aimed at by this Declaration as appears by the very words and whole purport of it which is not confined to matters of Religion only but claims an unlimited power of dispensing with all sorts of Statutes in all cases whatever none excepted and if so pray tell me what Magna Charta or the Statute de Tallagio non concidendo or any other Law will signifie whenever the King pleases to dispense with them either as to raising Money or taking away mens Lives or Liberties or Estates contrary to Law nay the Papists already give out and that in Print that all Laws for taking away Religious Orders and Suppressures of Monasteries are against Magna Charta by which holy Church that is the Popish Religion then in being is to injoy all her ancient Rights and Liberties and the Abbots and Priors do thereby as well as the Bishops and Lay Lords reserve to themselves all their Ancient Rights and free Customs now whether this unbounded Prerogative would not quickly have destroyed not only the Ecclesiastical but Civil constitution of this Kingdom as they now stand establisht by Law and would have soon introduced both Popery and Arbitrary Government on this Nation I leave it to your self or any indifferent person to consider And though I do not say that the bare giving of Papists or Protestant Dissenters a Liberty of Religious Meetings or Assemblies for Mass or Preaching is an infringment of the free exercise of our Religion establisht by Law yet pray take one thing along with you which is a matter of great moment both to the Dissenters and to our selves that if the King can thus by his Prerogative give both Papists and Fanaticks a Liberty to meet publickly contrary to Law let the latter look to it for he may by the same Prerogative whenever he pleases dispense only with the Papists and keep the Laws still on foot against the Dissenters nay he may by the same unbounded Prerogative dispense with all the Laws for the publick exercise of our Religion and under pretence of dispensing with them only in some particular cases shut up our Church Doors one after another beginning with the Cathedrals and so proceeding by degrees to Parish Churches and though I grant King Charles the IId did assume a power of dispensing with all Statutes concerning Religious Meetings contrary to Law yet the Nation had not then any sufficient reason to rise in Arms against this Declaration since it did not extend the Kings Prerogative beyond those Acts concerning Religious Worship and farther the Nation was not out of all hopes of having it redressed by the next Parliament and so was not in that desperate condition in which it was lately before the Prince of Oranges coming over And you may remember that the Late King upon the joint Address of the Lords and Commons against that Declaration was forced to call it in and cancel it which certainly ought to have been better considered
to hinder Free Elections and due returns of Parliament Men by making either Popish or Fanatical Sheriffs and putting Mayors and other Officers of the like Principles into most of the Cities and Corporate Towns in England nor can I tell but that force would also have been used if they found they could not have compassed their designs without it in those places where Souldiers were Quarter'd since I am credibly inform'd that at the late intended Elections of Burgesses for Northampton and Brackly the Officers and Souldiers Quarter'd at those places declar'd that none of the Towns-men should be admitted to give Voices at the Election unless they would promise to Vote for those that the Court would set up and the like instances I beleive I might give you of other places had I time to enquire into it and as for the house of Peers pray consider how many of the Bishops and temporal Lords the King might have gain'd either by threats or fair promises to the Kings party or at least prevail'd upon to stand Neuters and not to oppose his designs and if these had fail'd it had been but calling up some Popish or high Tory or Fanatick Gentlemen to the House of Lords and to have sate their as Barons Peers pro tempore till this Jobb was done and I doubt not but there would have been enough found out of each sort for that purpose and that I do not speak without Book I have had it from persons of very good Intelligence that such a design was lately on foot and the Court party thought they had very good Authority for it since Mr. Pryn and Sr. Will. Dâ—dgdale pretended to show us several examples of this Kind as low as the Reign of King Henry the 4th and a great part of the design of your Dr. Bs. late Books seem to have been only to prove that the King might not only have Summon'd to Parliament what of the Commmons he pleased but what Lords too and have omitted the rest as I have already shown you at our two last meetings and sure if the King had such a prerogative two or three hundred years ago these Gentlemen would not have deny'd his Present Majesty the like Power Since they have in all their Writings and addresses declar'd him as absolute as any of his Predecessours But to make an end as for what you say of the Kings Redressing the Grievances of the Nation before the Prince of Orange came it is very true he did by the advice of some of the Bishops endeavour to put things into the same state they were in at his first coming to the Crown but I very much mistrust the sincerity of his Majesties intentions since it is plain he never offer'd to do it till the Prince of Orange was â—ust upon coming and that his Declaration had been spread about the Kingdom and then he did it so unwillingly that when the news came of part of the Princes Fleets being Shipwrack'd and that his design was quite put off the Bishop of Winchester who was then but newly gone down to restore the President and Fellows of Magdalen Colledge was immediately call'd back under pretence of being present as the Examination of the Birth of the Prince of Wales and did not return again to finish that business till such time as fresh News came that the Prince was certainly come notwithstanding his late disaster And which is also more remarkable His Majesty in none of His Declarations ever disowned his Dispensing Power or so much as put out Father Peters from the Council or Disbanded one Popish Officer or Souldier out of his Army which is another great Argument of the Sincerity of his intentions So that I think this was sufficient to convince any reasonable Man that there was no other means left us but Resistance and that by Force and a hearty Joyning with the Prince of Orange at his Landing Since this resistance was not made either in Opposition to the King or the Laws but for defence of both against a Standing Army kept up contrary to Law and headed by Officers the greatest part of which by not taking the Sacrament and Test according to the Act made for that purpose had render'd themselves wholy uncapable of holding those Commissions and consequently whilst in Arms were to be look'd upon as common Enemies to the Nation But as for his Majesties Gracious and mercifull disposition as I shall not make it my business personally to Reflect upon him so I must needs tell you the Execution of Mr. Cornish Mrs. Lisle Mrs. Gaunt for Treasons falsly alledg'd or else for such as Women could scarce be capable of knowing to be so were no great Evidences of such highly Merciful Inclinations M. I confess you have taken a great deal of pains not only to set forth the Late Miscarriages of the Government but also to prove that the Army which the King raised upon the Duke of Monmouth's Rebellion and which he hath since kept up to prevent either fresh Rebellions at home or Invasions from abroad has been meerly maintain'd to support all these Late breaches upon our Laws and Civil Liberties which you say were made upon them now this is very uncharitably done for as His Majesty was Forc'd to raise that Army at first because the Late Rebellion in the West was too powerfull to be quell'd by the ordinary Train'd Bands of the Kingdom whom he had too much reason to suspect by the running over of several of them to the Rebels not to be so Loyal as they ought to have been and if His Majesty had not had a small body of an Army on Foot the last Summer before the Prince of Orange came over he must upon his Landing have Yielded to his terms had they been never so unreasonable and though I will not defend the Listing of Popish or Irish Souldiers or the Granting Commissions to Popish Commanders yet it is very hard to prove this to be a making War upon the Nation unless you can suppose there may be War made without Fighting and as for those Violations of the Laws which you suppose were made only upon the presumption of this standing Army this is likewise very hard to affirm since how can you tell that the Judges and Ministers would not have given the same Opinions and advices concerning the Dispensing Power Chimney Money the Ecclesiastical Commission had there been no Army at all rais'd since they might for ought I know have presum'd that the People of this Nation had been sufficiently convinc'd of the truth of the Doctrines of Passive Obedience and Non-resistance as not to have needed a Standing Army to back what he had already done tho' contrary to Law but as for the latter part of your Dicourses say the People ought to have waited till the King had call'd a Parliament and then if they had betray'd their trust and given up our Religion and Liberties as you suppose they would have done it had been
M. OH Are you come at last I have looked for you these two Nights and now began to fear you were not well or else had distrusted your cause and declined another Conference F. I beg your Pardon for disappointing you which yet I had not done had noâ— some Business hindred me but however to let you see I do not decline another Conference with you upon this Subject pray let us go on where we left off and tell me freely your sense of my Notion of the Kings forfeiture or Abdication of the Government by his violation of the Fundamental Laws of the Kingdom and refusal to repair those Breaches when he might have done it M. In answer to your demand I will deal freely with you and must tell you that I have perused all Writers that have Writ any thing considerable concerning the Laws of Government or of Nations and cannot find in any of them any thing to countenance your Notion of forfeiture or Abdication of an absolute Sovereign Prince aâ— I must still take ours to be notwithstanding all you yet said to the contrary unless what you have cited at our third meeting out of Barclays third Book contra Monarches where he allows the Subjects to resist their Prince in case he go about to destroy the Body of the People or Common wealth whereof he is the Head To which I may also add another Case which you have omitted viz. if the Prince make over his Kingdom to another without the Consent of his People And I confess that both Grotius and Pufendorf agree with Barclay in this Notion Because they look upon both these Cases as their plain downright Renunciations of their Civil Authority over those whom they were obliged to Govern But indeed the first of these Cases is so improbable nay almost impossible to happen that were it not for the over-great niceness of these Writers it need not to have been so much as mentioned since none but a Mad-man can ever go about to destroy his whole People and therefore as a Man out of his Wits such a Prince may be Resisted and lockt up if ever it should so fall out as you your self have confessed it hath very rarely for a Nation to be so unhappy as to have such a Prince but as for the Second viz. the making over their Supream Power to a Foreign Prince that likewise so very rarely happens That it is scarce worth the while to make any dispute about it But in all other Cases they held the Supream Power of every Nation to be absolutely Irresistible in any case whatsoever and if irresistible then certainly uncapable of forfeiting their Right to govern by any pretended or real Violation of the Liberties and Priviledges of the People And Bodin in his first Book de Republica tho' he grant that absolute Princes are obliged in Conscience to keep and maintain all such Priviledges which have been granted to the People by either themselves or Predecessors which are for the good of the Common-wealth yet since the Prince is sole Judge whether these Priviledges are consistent with his Supream Right to Govern and Protect his People he may therefore have occasion sometimes not only to Detract from them or dispense with them in some Cases but may wholy break and lay them aside by turning Tyrant Yet nevertheless in all these Cases People are still bound not to resist them And that he looked upon the King of England as such an Absolute Monarch as well as others he there mentions pray read me the place I now Cited where after he has allowed Resistance to be lawful against those Princes who were not properly Monarchs as enjoying but a share of the Supream Power and among which he reckons the German Emperor and the Kings of Denmark Sweden and Poland But then when he comes to speak of Real and Absolute Monarchies his Sense is quite different as you may see by these words Quod si Monarchia quaedam est summâ unius potestate constituta qualis est Francorum Hispanorum Anglorum Scotorum c. I shall slip all the rest because not to our purpose ubi Reges sine controversia jura omnia Majestatis habent per se nec singulis civibus nec universis fas est summi Principis vitam famam Fortunas in discrimen vocare seu vi feu Iudice constituto id fiat etiamsi omnium scelerum ac Flagitiorum quae in Tyrannis convenire antea diximus turpitudine infamis esset where you may observe that Force or Resistance by which such an absolute Princes Life or Regal Power here called Fortunas are as much forbid as calling him in question by appointing Judges to sit upon him And he there gives us a very good reason for it because all Subjects of what degree soever cannot pretend to any Coercive Power over the Person of a Sovereign Prince F. We have discoursed enough concerning the Resistance of Absolute Monarchs at our third and fourth meeting and therefore I desire we may not fall into that Subject which can produce nothing but needless Repetitions and I have already proved at our 5th Conversation that the King is not an Absolute Despotick Monarch but is limited and tied up by the Fundamental Laws of the Kingdom from making of Laws or raising Taxes without the consent of his People in Parliament and that our Government is mixed and made up of Monarchy with an allay of Aristocracy and Democracy in the constitution the former in the House of Lords the latter in the House of Commons as K. Charles the First himself confesses in his Answer to the Parliaments 19 Propositions and I have farther inforced this from divers Authorities out of our Anâ—ient as well as Modern Lawyers viz. Glanvill Bracton Fortescue and Sir Edward Coke So that since we have such clear proof for our Constitution from our own Histories and Authors nay from the King himself besides the whole purporâ— and style of the very Laws and Statutes of the Kingdom I do not value the Authority of Bodin a Foreigner whose business it is to set up the Authority of the French King to the highest pitch he could and therefore being sensible that antiently the Government of France and England were much the same he could not with any face make his own an Absolute Despotick Monarchy unless he had made ours so too But this is not the only Errour he has been guilty of in our History and Constitution as I can shew you when there is occasion But Arnisaeus who as well as Bodin is so much for Absolute Monarchs yet does in his Treatise of Government called his confess that a Tyrant in an Hereditary Monarchy who violates all the Laws of Justice and Equity to the endangering the Ruine of the Common-wealth doth ixcidere Iure haereditario fall from or forfeit his Hereditary Right But pray make it out by some convincing proofs either from History or Law that our Kings are
was that of the free burrough or Tything wherein by the Laws of King Edward the Confessor the Tythingman or Head burrough was the Judge who as that Law tells us determined all suits and differences arising among Neighbours of the same Tything concerning petty Trespasses on one anothers grounds which if they could not be there determined might then be brought before the Court Baron which was incident to every Mannor and wherein the Suitors and not the Lord nor his Steward were the Judges and this as Sir Edward Coke tells us was first instituted for the ease of the Tenants and for the ending of Debts and Damages under Potty Shillings at home as it were at their own doors and let me tell you by the way that sorty Shillings was theo near as much as forty pound is now and if the business could not be ended here or was of too high a nature it was then brought into the Hundred Court where the Hundreder together with the Suitors were Judges and if they had not Justice there they might then remove it into the Court of Trithing or Lathe which was not the smaller Court of the Tithing mentioned nor yet the Court Leet but a particular Court consisting of three or four Hundreds which tho' now quite lost was in being at the time of the Statute of Merton as I shall shew you by and by and if the business could not be decided in the Trithing it was then removed to the Shire or County Court as Mr. Lambert shews in the Laws of King Edward which was then held as now from Month to Month and in which as well as in the Hundred Court the Suitors alone were Judges and tho' it can now only hold Pleas unless it be by Writ of Justices of any Debt or Damage to the value of Forty Shillings or above yet we â—ind from ancient Authors that this Court was so considerable that we have diverse examples of Causes between the greatest Persons of England and for Lands of great value begun and determined in this Court thus Eadmertes relates the great Trial at Pinnesden-heath between Odo Bishop of Bayenâ— half Brother to your Conqueror and by him created Earl of Kent and Lanfrank Archbishop of Canterbury concerning divers Mannors in Kent and other Counties whereof Earl Odo had diseized the See of Canterbury in the time of Arch-bishop Stigand his Predecessor whereupon the Arch-bishop Petitioned the King that Justice might be done him secundem Legem Terrae and the King thereupon sends forth a Writ to summon a County Court the debate lasted three days before the Freemen of the County of Kent in the presence of many Chiefmen Bishops and Lords and others skilful in the Laws and Judgment passed for the Arch-bishop Lanfrank by the Votes of the Freemen Or primorum or proboâ—â—â— hominum as the Historian calls them So that to conclude this head if no suit could be begun in those days but what was first commenced in the Hundred Court no distringas could issue forth till three demands were made in the Hundred and from thence to be removed to the County Court where regularly all civil causes were try'd by the Suitors as the only Judges as well as in the Hundred Court and Court Baron then it will necessarily follow that unless you can prove which I think is impossible that all the English were at that time Slaves and Villains and had no Free-hold of any sort left them that all Pleading and Proceedings in any of those Courts being before meer Englishmen must have been in English and no other Language so that after all this great cry nor a twentieth part of the Suits in England were brought to London And as for Criminal Causes unless in cases of Treason all Murthers and other Felonies were Tryed and Judged in the Country either within the particular Jurisdictions of Bishops Abbots or great Lords or else of such Cities and Towns who had the Priviledges of Infangthief and Outfangthief together with Fossa and Furca that is a Pit to drown and a Gallows to hang Malefactors and if the offence was done in the body of the County they were then tryed and condemned in the County Court Justices Itinerant not being in use till Henry the seconds Reign M I must confess you have given me a great deal of light in these matters more than I had before but as I shall not dispute whether in the lowest Courts such as the Tythings and Court Barons the smaller English Free-holders might not Judge of Petty causes amongst themselves yet that in those greater causes were brought in the Hundred and County Courts which only the greater Fleemen of the Hundred or County were Judges who these Freemen were Dr. B. hath sufficiently taught us in his Commenes upon the Conquerors Laws as also in his Glossary viz. That they were Tenants in Military Service who in those times were the only great Freemen of the Kingdom and quite different from our ordinary Free-holders at this day These were the Men the only legal Men that named and chose Juries and served on Juries themselves both in the County and Hundred Court and dispatched all Country business under the great Officers I do not deny but that there might be other lesser Freemen in those times but what their quality was farther than that their Persons and Blood was Free that is they were not Nativi or Bondmen it will give a knowing man trouble to discover it to us we find in every leaf of Doomesday Socmen liberi homines Possessors of small parcels of Land but what there quality was and of what interest in the Nation Dicat Apollo no Man yet hath made it out nor can it be done by the account we have of ordinary Free-men for a Century or two last past And for further proof of this That none but Tenants in Capite or Military Tenants at least could be Judges in the County Court appears by the Laws of King Henry the first wherein it is expresly said Regis Iudices Barones Comitatus qui liberas in t is terras habent per quos debent causae singulorum alterna prosecutione tractari c. So that these Barons of the County being certainly Feudal Tenants this service of being suitors to the County and Hundred Courts was a service incident to their Tenures and then it will also follow that those Primores and probi Viri who as you have now related tryed this Cause between Earl Odo and Archbishop Lanfranc and who let me tell you were not only of the County of Kent but of other Counties in England where the Mannors and Lands lay as Eadmerus shews us and who were the Jurors in this great Cause consisted of the great Military Tenants that were not Barons and the less which were the Probi Viri for it can be no ways probable that the ordinary Freemen which made the greatest number and were all bound to
Heirs within age of such Tenants but this extended not to the Tenures of the Subjects by Knights Service as it appeareth by Bracton Dicitur Regale seâ—vitium quia spectat ad dominum Regem non alium secundum quod in Conquestis fuit adinventum c. Whereupon Sir E. C. notes in the Margent the Tenure as before it appeareth was not then invented but the fruits of this Tenure of the K. viz. Wardship and Marriage which was Bracton's meaning so as the Conqueror provided for himself but other Lords at the first by special reservation since the Conquest provided upon gifts of Lands for themselves Regis ad exemplum totuâ— componitur orbis wherein that which we had from the Conqueror we freely confess F. I shall not dispute his matter since it is doubtful whether this custom of Wardship was Norman or whether it was derived from the Saxons who possibly might have some respect to Orphans in such cases to train them up for the publick Service in point of War especially being possessors of a known right of Relief as well as Alfred the Saxon King did undertake the work for the training of some particular persons in learning for the service of the publick in time of Peace and Civil Government and tho' Sir H. Spelman is of opinion in his Title de Wardiâ— that Wardship of the Heir came in with the Conqueror yet Sir Iohn his son who was also a learned Antiquary in his Epilogue to his second book of K. Alfred's Life Printed at Oxford speaking of Military Fees granted to the Kings Thanes has this passage Haec etiam Fioda baeredibus sub Hereoti siâ—e relevaminis cujus piam quod haeres in terrae redemptionem Regi solvere tenebatur conditione plerumque transibat si haeres minor natu à Patre moriente relinquebatur Regi educatio â—jus utpoâ—â— Regis Hominis committebatur in utilitatem etiam commodum ipsius Regis But whether the Wardship of the Body of the Heir was in use in K. William's time or before is uncertain for the land is in the Charter of Henry the first in Mat. Paris granted either to the Widdow or next heir But let these customs be derived from whence you please it is a plain case it could be no badge of Conquest upon the People of this Nation and that by the Doctors own shewing for were it a Norman custom never so much if your Conqueror first of all imposed it upon those he brought over along with him it could never be a badge of Slavery upon the English Nation but rather upon the Normans upon whom it was chiefly imposed and if they afterwards granted Lands to the English upon the same terms they held them themselves they were no more Slaves to whom they were granted than they were under whom they held them but indeed this was so far from being looked upon as my badge of servitude that if the Dr. himself is to be believed these were the only Freemen and their services Bracton says were so notoriously free that in Writs of Right it was never mentioned because so well known Notandum in servitio Militari non dicitur per Liberum servitium ideo quod Constat Quia tale Servitium Liberum est And hower Rigorous the Feudal Law might be at the beginning it was when your Conqueror came in so far mitigated as to the rigour of it that the Tenants by Knight Service were not only free by K. William's Law from all Arbitrary Taxes and Tallies but also obtained a setled Inheritance to them and their Heirs as appears by that clause in K. William's Charter and therefore in the Reign of Henry the Third when William of Warren Earl of Surrey was questioned after the Statute of Quo Warranto by the Kings Justices by what Warrant he held his Lands pulling out an old Sword he answered to this Effect behold my Lords here is my warranty my Ancestors came into this Land with William the Bastard and obtained those Lands by the Sword and I am resolved with this Sword to defend them against any whosoever shall go about to dispossess me for the K. did not himself alone Conquer the Land but our Progenitors were sharers with him and assistants therein As for what you say That the Laws in the Customary of Normandy are the same with the Laws of England It is no more than what divers French Writers have taken notice of but do not attribute their agreement to their being borrowed from the Normans but quite contrary for in the first place most of the Learned Men say That the first establishing of the Customary of Normandy was in Henry the first 's time and afterwards again about the beginning of Edward the seconds time when Normandy was not under the King of England and Sâ—querius a French Author relates that K. Henry I established the English Laws in Normandy and with him do also agree Gulielmus Brito Rutilarius and other French Writers who mention also that the Laws in the Customary of Normandy are the same with the Laws collected by our English K. Edward the Confessor who was before the Conqueror an additional Testimony hereof is out of William de Reville de Alenson who in his Latin Comment upon the Customary proves and demonstrates that the Laws and Customs of Normandy came from the English Laws and Nation either not long before or after Edward the Confessor's time In the Customary there is a Chapter of Nampes or Distresses and it is there decreed that one should not bring his action upon any seisure but from the time of the Coronation of K. Richard and this must be our K. Richard the first because no K. of France was ever of that name and the words Nampes and Withernams were Saxon words taken out of the English Laws signifying a Pawn or Distress and in the same sense are used in the Customary But if you have nothing more to object against what I have now said pray proceed to your last head and let me see how you will prove that the English lost all their antient Liberties and Priviledges which they enjoyed under the English Saxon Kings M. I never heard so much before concerning the Original use of the French Tongue in our Reports and Law Books but yet this much I think you will not deny first that the Norman French was never used in our Courts of Justice till after the Conquerors entrance Secondly That he did his endeavour totally to root out the English Tongue by ordering of Children to learn the first rudiments of their Grammer in French and as for what you have said concerning the Customary of Normandy being especially as to Tenures derived from the English Laws and Customs I do not deny but that it may be the opinion of some French Writers that it was so but I shall believe it when they can prove that the Wardships and Marriage of the Heir of the
as a wilful Forfeiture or Abdication of the Government and it is from this first going away that I suppose that the Convention dates his Abdication since though it is true after his return to London he took upon him to make an Order in Council to stop the further pulling down and plundering Popish Chappels and Papists Houses yet was it sign'd by very few of the Council and almost only by those who had been in some Office or Place of Trust so that though he was then own'd by them yet since that Order did only serve to shew his Zeal for the Popish Party and was never obey'd or taken notice of by those to whom it was directed and that neither the Prince nor the City of London owned him afterwards since it had already delivered it self up to the Prince and had as well as the Peers invited him to repair to that City I cannot see that so slight an act as this Order of Council should be counted a return to or a re-establishment in the Throne since the King had not only lost the Crown by his wilful departure without calling a Parliament or giving the P. any satisfaction in the great business of the pretended Prince of Wales or the Nation by repairing up those desperate breaches he had made upon our Fundamental Laws but had also lost his Title to the Crown by being Conquer'd by the Prince in open War as I shall prove more at large another time so that if you please better to consider this Vote of the Convention you will find that these words had Abdicated the Government do not only refer to the last clause of his having withdrawn himself out of the Kingdom but to everyone of the foregoing Clauses viz. His having endeavour'd to subvert the Constitution of this Kingdom his breaking the Original Contract and his having violated the Fundamental Laws so that it is plain their notion of Abdication was not fixt only in the Kings Desertion or bare withdrawing himself out of the Kingdom but from his renouncing the Legal Title by which he held the Crown and setting himself up as a Despotick Soveraign and ruling by a mercenary Army and therefore all that you have said about the Kings quitting the Government with a design to return to it again as soon as with safety he might is altogether vain for as he went away because he would not Govern any longer as a King by Law so hath he yet given us no satisfaction that he would not return again to Govern otherwise or rather worse than he did before had he an opportunity so to do that is as the Letter I cited but now phrases iâ— to return and have his ends of us so that this being indeed the case I think I can very well justifie the last clause in this Vote that the Throne was thereby vacant M. Sir you have spoke a considerable time and I doubt more than I can distinctly remember to answer as I should therefore before you proceed to this last Clause of the Vacancy of the Throne the dispute about which I foresee may hold longer than upon any of the former pray give me leave to reply to what you have already said in Justification of all the other parts of this Vote in the first place I will not deny but that if the King had once got the power of making what Mayors Aldermen and other Officers in Corporations at his pleasure it would have gone a great way towards the making the Majority of the Parliament-men nay I likewise grant that by his dispensing Power he might have made what Papists or other person he pleased Sheriffs in any County who would have made such return of Knights of Shires as he should have thought fit yet I suppose this would not have been to the subversion of the Constitution of the Kingdom which I think I have proved to consist originally in the K. alone before any great Councils or Parliaments were instituted And as for those violations of the Fundamental Laws and Liberties of this Kingdom the Declaration instances in I think several of them may very well be justified by antient Presidents and ad judged cases in Law and therefore were so far from being violations that they are no more than the Kings exercising of his due Prerogative and though at our ninth meeting I had not time so well to consider these matters as also because I was not then prepared to defend the Kings Proceedings I shall therefore make bold to examine the most considerable of those Articles which the Late Declaration supposes did so highly tend to subvert the Protestant Religion and the Laws and Liberties of this Kingdom I shall begin with the first viz. His assuming and exercising a power of Dispensing with and Suspending of Laws and the Execution of Laws without consent of Parliament which Power let me tell you by the way was not asserted to Dispence with all Laws or Statutes whatsoever but only such as the Subject has no particular cause of action in and where the damage that may arise by it doth not concerns the publick safety of which the K. is sole Judge and not any particular mans interest I suppose you cannot but have read that learned and short account of the Authorities in Law upon which Judgment was given in Sir Edw. Hales his Case written by Sir Edward Herbert Lord Chief Justice of the Common Pleas in vindication of himself wherein I think he proves beyond any possibility of a just answer that the dispensation granted to Sir Edward Hales to receive a commission and act as a Collonel of Foot was good notwithstanding his not having received the Sacrament and taken the Oaths and Test appointed by the Act of the Statute of the 25 of Charles II. where he first proves from my L. Cock's Authority that it belongs to the Kings Prerogative to Dispence with all Positive or Penal Laws the penalty thereof is only popular and given to the King and to shew you that my Lord Cook who was never counted any great friend to the Kings Prerogative was not single in this opinion he gives you also the authority of the year Book of Henry the VII where it was own'd by all the Judges That the King can Dispence with all things which are only Mala Prohibita and not Mala â—n se though expresly forbid by Act of Parliament for though says the Year Book before the Statute Coining of Money was Lawful but now it is not so yet the King can Dispence with it so that say I if he can dispence with that which is now made Treason by EÃ the III. he may certainly dispence with all other Penal Statutes of a less nature But because I grant there is some difference between Common Penal Laws which barely prohibit the doing of some things under a penalty and this Act in which there is also an express Clause of Non-obstante that all Licences or Dispensations contrary to this
Act are declared absolutely void yet the said Lord Chief Justice likewise proves that this Clause of Non-obstante is void and he makes this out not only from constant practice in other Statutes of like nature but also from the opinions of Plowden and the said Lord Cook first as to the Statutes there is a Statute of the 23. of Henry the VI. that no man shall be Sheriff for above a year 2. That all Letters Patents made for Years or Lives shall be void 3. That no Non-obstante shall make them good which shews that the Parliament thought the King could otherwise have dispenc'd with this act by a Non obstante there is likewise in this Act a Penalty of 200 l. and the party is also disabled from bearing the Office of Sheriff in any County of England and also every Pardon for such Offence shall be void so that in all respects this Statute answers that of King Charles the II. now in dispute only in this the Penalty to the Prosecutor is higher viz. 500 l. and the disability is not only from holding that Office but any other whatsoever for the future And yet it was resolved by all the Judges of England in the second of Henry the VII in the Exchequer Chamber upon the Kings Power of Dispensing with this Statute of the 23. of Henry the VI. that the Kings Dispensation with that Statute was good and so it hath been held ever since for it is very well known that the King hath not only exercised this Prerogative of Dispensing with this Statute for divers Sheriffs holding more than a year but hath also granted this Office for Life aâ— appears by the same case cited by Plowden in his Commentaries between Grendon and the Bishop of Lincoln where he expresly says That notwithstanding this Statute of Henry the VI. the Kings Grant to the Earl of Northumberland to be Sheriff during Life ought to have a Clause of Non-obstante because of the precise words of the Statute before mentioned and with such a Clause of Non-obstante the Patent to the Earl was good But yet my Lord Cook is more express in his opinion concerning these Dispensations for in his twelfth Report he has these words No act can bind the King from any Prerogative which is sole and inseparable to his Person but that he may Dispence with it by a Non-obstante as a Sovereign Power to command any of his Subjects to serve him for the publick Weal and this solely and inseparably is annext to his person and this Royal Power cannot be restrained by any Act of Parliament neither in Thesâ— nor in Hypothesi but that the King by his Royal Prerogative may Dispence with it for upon the commandment of the King and obedience of the Subject do's his Government consist and therefore for this reason he allows this Judgment of all the Justices in England in the second of Henry the VII to have been according to Law that Judg'd the Kings Dispensation with this Statute of Henry the VI. to be good and he also instances in another Statute in the fourth of Henry IV. in which it is ordain'd That no Welshman should be Justice Chamberlain c. nor any other Officer whatsoever in any part of Walts notwithstanding any Patent made to the contrary with Clause of Non-obstante licet sit Wallicus natus and yet without question the King may grant those now Offices to Welshmen with a Non obstante and the said Lord Cook in Calvin's case tells us That the same was resolved by all the Judges of England viz. in 2. of Hen. VII that every Subject is by his natural Allegiance bound to serve and obey his sovereign c. and he then proceeds to recite the Statute of the 23. of Henry the VI. and the opinion of the Judges above mentioned and gives us this reason for it for that the act could not barr the King of the service of his Subject which the Law of Nature did give unto him This is there reported as the sense of all the Judges of England in King Iames his time and therefore since this has been ever the opinion of the Judges and a constant Prerogative exercis'd by the King ever since I desire you would shew me any difference why the Kings Dispensation to a Sheriff should be good for the holding of his Office for above a year norwithstanding the Statute of Henry the VI. and yet a Dispensation for the taking or holding any Office or Command Civil or Military without taking the Oaths and Tests appointed by the 25. of Charles the II. should be declar'd a breach of our Fundamental Laws for I can see no manner of difference between them since their preambles set forth the designs of the Law much to the same purpose viz. That of making the Statute of Henry the VI. is the insupportable damage of the King and his People Perjury Man-slaughter and great Oppression and in the Statute of King Charles the II. the mischiefs recited are of a much less nature viz. for preventing dangers which may happen from Popish Recusants and quieting the minds of his Majesties good Subjects So that the Subject of neither of these Acts being Mala in se but only Mala prohibita if the King might Dispence with the one he may certainly do as much with the other for the same reasons Therefore if this be so I need not say much against the second Article in the Declaration of the Convention against the Kings proceedings viz. His committing and prosecuting divers worthy Prelates for humbly Petitioning to be excused from concurring to the said assumed Power for if by the opinion of all or most part of the then Judges the Kings Power of Dispensing with this Statute of King Charles the II. was good it was certainly much more lawful in Dispensing with all other Statutes against Papists and Non-conformists since they are no more than bire Penal Statutes without any Clauses of Non-obstante and though I grant that King Charles's Declaration giving a Toleration to Papists and Dissenters by Dispensing with all the Acts against Masses and Conventicles were declared Illegal by the House of Commons in the year 1672. and that the King to get a good lump of Money did recal that Declaration yet was it never declared by him to be Illegal only that it should not be drawn into consequence for the future and you know an Address or Declaration of the House of Commons alone was never looked upon as a Declaration of Parliament and the opinion of the Judges hath ever been that no Statute or Judgment of Parliament can bar the King of his Lawful Prerogatives of which this of Dispensing with such Penal Laws is one so that it was certainly very undutifully done of the Bishops not only to deny distributing his Majesties Late Declaration for Liberty of Conscience in their several Diocesses but also to have the confidence to give him a Petition wherein they desir'd
Statutes of Provisors and Praemunire and I could shew you from divers Records of Parliament in the Reign of Richard II. Henry IV. and Henry V. that they never intruâ—ed the Crown with an absolute power of Dispensing with those Statutes but only for a time as till the next Parliament or longer as they thought fit But since I have not now so much time to give you so many Presidents at length I shall only tell you that as to the main instance you relye upon viz. the Kings Dispensing with the Statute of Sheriffs that at first it was not taken for Law appears by several Acts of Parliament as in 28. of Henry the VI. whereby those Sheriffs that had held their Offices for more than a year are pardon'd likewise in the Act of Edw. IV. there is a like Statute pardoning those Sheriffs Who by reason of the late troubles in the Realm had held for above a year yet nevertheless confirms all former acts concerning Sheriffs for the time to come and this held as far as the sixth of Henry VIII which is long after the Judgment you mention in the Exchequer Chamber of all the Justices in England to the contrary for there was then an Act made which reciting all the former Statutes about Sheriffs as then in full force it Enacts that the Sheriffs and under Sheriffs of the City of Bristol may continue to occupy their Offices in like manner as the under Sheriffs and other Sheriffs Officers in London do without any Penalty or Forfeiture for the same the said Acts or any other Acts to the contrary notwithstanding From all which Statutes I think it sufficiently appears that neither the Sheriffs of those times nor the City of Bristol nor the whole Parliament when that Act was made did believe the King had Power to Dispense with the Act of the 25 of Henry the VI. concerning Sheriffs for if they had certainly it had been much easier and cheaper for them to have obtain'd the Kings Dispensation than to have got an Act of Parliament for it M. I believe you may have cited these Statutes right enough but yet I think they are not sufficient proof against so solemn an Opinion as that of all the Judges in the Exchequer Chamber 2 d of Henry the 7 th and whatever the Parliament might have declared in the Case of this or that Particular Statute I confess carries some Authority with it yet ought it not to be counterval'd by so solemn a Judgment as that of all the Judges and Lawyers of England together with the King 's constant Exercise of this Prerogative not only since but before that time and that without any question or dispute with the Parliament about it as in the Case I have already put of the Statute that forbids any Welchman being an Officer in Wales to which I may add divers other Cases of like nature such as the Statute against a Judges going the Circuit in his own Country as also those Statutes that prohibit the King from granting Pardons to Persons convict nay condemned for Murther with several other Penal Statutes I could name were though the King's hands are tied up by particular Clauses of Non-obstante yet has His Majesty and his Predecessors at all times exercised their Prerogative of dispensing in all those Cases notwithstanding those Acts of Parliament with Non-obstantes to the contrary And though I grant you have given me several Presidents of the Parliaments sometimes restraining the King in this Exercise of the Dispensing Power yet they are all or the greatest part of them before the beginning of Henry the VII th's Reign when I grant the Law first began to be setled in this matter and since the Judgment of all the Judges in the Exchequer Chamber is the only Rule of Law we can have in the Intervals of Parliament and that this case of Dispensations being by them adjudged and ever since setled and own'd for Law without the least dispute I can see no reason we have to question it now But as for the Statute of the 6 th of Henry the VIII which you urge as a President to the contrary since the Reign of Henry the VII I think it will not reach the Point in question for the Act you now cited seems to me no more than a private Act for the Sheriffs of Brestol alone who being it seems afraid to rely upon the King's Dispensations because they thought them too chargeable to be taken out as often as they should have need of them did think it a great deal less charge and trouble to pass an Act of Parliament to indemnify themselves which I grant put that matter beyond all dispute But since this Act of Henry the VIII I find no contest between the Parliament and the King about his Power of dispensing with Penal Laws till the Reign of King Charles the II. when I grant the House of Commons did address to His Majesty That Penal Statutes in matters Ecclesiastical cannot be suspended but by Act of Parliament as also the last Address of the House of Commons in 1685. against the King's dispensing with the Officers of the Army their holding Employments without taking the Oaths and Test according to the Act whereby they were appointed But these being only against the King's Power of dispensing with Laws Ecclesiastical as concerning Liberty of Conscience can no ways be extended to their excepting against the King's Power of dispensing with divers other Penal Laws I will not say all which have Non obstantes in them F. Since I see not only your Opinion but also that of most of the Judges and Lawyers of England concerning this matter of the King's Dispensations with Penal Laws has been chiefly if not only founded upon that Opinion of all the Judges in King Henry VII i me give me leave to examine the validity of that Judgment for if that can be proved not to have been according to Law or elâ—e never given at all I suppose you must grant that my Lord Coke and all others who have founded their Opinions upon this adjudged Cause of Hen. the VII were mistaken Now pray give me leave to argue a little with you in point of Reason If a Non obstante from the King be good when by Act of Parliament a Non-obstante is declar'd void what doth an Act of Parliament signifie in such a case must we say it is a void Clause But then to what purpose was it put in Did the Lords and Commons who drew this Act of the 23 d of Henry the VI. as also those Acts concerning Sheriffs understand this Clause of Non-obstante to be void when they put it in If it were so and contrary to the King's Prerogative why did the King pass this Act without any refusal or protestation against it certainly it was then thought otherwise and if so we have the Authority of the two Houses of Parliament against the Opinion of the Judges But if it were not a
without Children should be Heir to the Deceased And so far were they from thinking this Agreement stood in need of Ratification of a great Council that there was but twelve of the Principal Men on each side sworn to see it duly observed But if we come to consider the next putting by of Duke Robert from his Right to the Crown you will find it to have been done with a far less colour of Right than the former for he being then absent in the Holy Land at the time of Rufus's death Henry his Younger Brother laid hold of the opportunity and assembling divers of the great Men of the Kingdom he promised them to make a full Restitution of all their Antient Laws and Liberties and confirm them by his Charter and abrogate such severe ones as his Father had made thereupon they did unanimously consent to Crown him King Now I cannot see how this managed with so much Artifice corruption can properly be call'd an Election since that ought to be a deliberate sedate Action and at which all the persons concern'd ought to be present but this could not possibly be for King William was kill'd on the second of August and buried the next day and the day after that being Sunday this pretended Election was made and the Saxon Chronicle tells us That those great Men who were near at hand chose his Brother Henry King So that this looks more like the Combination of a Faction of Bishops Lords and great Men than the free Election of a King since it was impossible for all that were or ought to be present from all parts of the Kingdom to have notice to assemble and dispatch that great Business in two days time But to let you see that Duke Robert did not fit down contented with this Usurpation upon his Right for as soon as ever he came from the Holy Land he straight made War upon his Brother and many great Men of the Normans took his part and this War was eagerly carried on for some time and Duke Robert Landing in England with an Army K. Henry marcht against him with all his Forces but as the Saxon Chronicle also tells us some principal Men going between them brought them to an Agreement upon conditions that K. Henry should pay Duke Robert 3000 Marks Pension yearly and that he of the Brothers who surviv'd the other should be Heir of all England and Normandy unless the party deceas'd should have Children of his own so that though I grant King Henry recites in his Charter in Matthew Paris that he was Crowned King by the Common Council of the Barons of England yet his saying so could not give him a Right and he must say this or nothing for no other pretence or Title he could have and there never was any other Usurper in his circumstances but must say that or some such thing to make out a Title and therefore to answer your Question why Duke Robert took not upon himself the Title of King neither upon the death of his Father nor after that of his Elder Brother I think this may serve for an Answer that he parting with his Right to both his Brothers successively he then lookt upon it as needless to take the Title of King upon him as not looking upon himself then to be so F. I confess you have from your Dr. together with some assistance of your own made a very cunning gloss upon these two great Instances of Vacancy and Election to evade if it were possible that Right which the Common Council of the Kingdom then challeng'd to themselves and therefore I shall make bold strictly to examine what you have now said In the first place as to the Title of King William Rufus though I grant it was founded upon his Fathers Testament yet you see that this was not good alone without the consent and approbation of the Common Council of the Kingdom I think I have sufficiently prov'd at our last Meeting but one when we discourst of the Force of the like Testament made by King Edward the Confessor to King William the First which according to the English Saxon Law that â—as still observed was never valid until confirm'd by the consent of the Wittena Gemot or Great Council and he that had both these whether next Heir by Blood or not was always esteem'd as lawful King as I have also proved from the Testament of King Alfred and though you will take no notice of it yet was this Testament of King William I. then produced and read in the Common-Council of the Bishops Earls and Barons of the Kingdom as appears by all the Antient Historians who treat of this matter I shall only give you a taste of them Matthew Paris expresly relates the circumstances of it in these words Optimates frequenteâ— â—d Westmonasterium in concilium convenere ubi loci post long am consultationem Gulielmum Rusum Regem fecere and Abbot Brompton tells us that it was done in a full Council Convocatis Terrae magnatibus so that here was nothing wanting to a full Election or Confirmation at least of King William's Title and till this was done it is plain the Throne was Vacant But as for the claim that Duke Robert made to the Crown though I do not deny but he might think himself to have a just Title to it by a received custom among divers Nations by which the eldest Son is looked upon to have a right before the younger yet that this is no Law of Nature or Reason and consequently not Divine I think I have sufficiently prov'd at our second meeting But that this right of Succession of the eldest Son to be no fundamental Law of this Kingdom I think I can sufficiently prove from our English Saxon Histories as well as Laws and as for what you say concerning those Norman Lords and Bishops who joyn'd with Duke Robert after his Brother was Crown'd King it is call'd no better than Treason by all the Writers of those times for Florence of Worcester and Sim of Durham both tell us that the King thereupon call'd together the English and open'd unto them the Treason of the Normans and the Saxon Chronicleâ— who seem'd to have lived about that time compares the Treason of Bishop Odo to that of Iudas Iscariot against our Lord and though I grant King William might make such an agreement with his Brother Duke Robert as you mention yet as for the 3000 Marks Pension which you say he was to pay him I very much doubt it since no Historian but Matthew of Westminster who lived between two and three hundred years after makes mention of it and therefore I think it is to be referr'd to the following agreement betwixt this Duke and his Brother King Henry which the Saxon Chronicle expresly mentions Having now examin'd and clear'd the Title of King William Rufus I come next to justifie that of King Henry I. to the Crown
notwithstanding all you have alledg'd against it which yet is no more than what you said before that Duke Robert had an Hereditary Right and therefore he could not be put by which is to beg the Question for you cannot prove to me that he had this Right either by the Law of Nature the Law of England or the Law of Normandy not by the two former as I have already prov'd for your Conqueror himself being a Bastard had no better Title to the Dutchy of Normandy than his Father's last Will before he went to the Holy Land which was not good without the consents of the Nobility of that Dutchy as appears by the Historians of that time so that the greatest Objection you have to make against King Henry's being elected in a true Common-Council of all England is this that the time was so short between the Death of William Rufus and his Election that it was impossible for all the Parties that had Votes to be there present which is a very bold assertion for how can you or your Doctor tell that at the time when King William was kill'd he might not then have held a great Council at Winchester where he then Lay who might immediately upon his Death chuse his Brother Henry for their King for it is certain the Election was there the Day before his Coronation at London and therefore it is very rashly done to affirm that this Election was not in a Common-Council of the Kingdom when all the Historians and particularly W. Malmesbury tells us the manner of it and the Disputes there were about it viz. that Henry was elected King as soon as King William's Funerals were over Aliquantis tamen ante controversiis inter proceres agitatis c. and H. de Knyghton reciting the cause why Duke Robert was set aside viz. because he had been always contrary and unnatural to the Barons of England therefore quod plenario consensu consilio totius Communitatis Regni ipsum refutaverunt pro Rege omnino recusavâ—â—â—nt Henricum fratrem in Regem erexerunt which plainly shews that it was the opinion of all the Antient Writers out of whom Knyghton took this passage that this election was made by the free consent and in a full Council of all the whole Community of the Kingdom nor does the after claim of Duke Robert to the Crown at all alter the case for the reasons already given as also because the agreement that was made between them that he that surviv'd should succeed the other was never confirm'd or agreed to by the great Council of the Kingdom and therefore those Norman Lords that join'd with Duke Robert here in England are justly taxed by William of Malmesbury and the Saxon Chronicle with Infidelity and Rebellion and though I grant that Mat. Paris or rather Roger of Wendover whom he transcribes seems to condemn King Henry's taking the Crown as unjust and contrary to Right and that he therefore feared the Justice of God eò quod fratri suo primogenito cui jus Regni manifestè competebat temere usurpando injustè nimis abstulcrat yet this author writing about the middle of the Reign of King Henry III. who had succeeded his Father by a pretended right of Inheritance as well as Election it is no wonder if He who writ near a hundred years after this transaction should give his judgment in this matter according to the common opinion and prejudice of that age and must certainly speak by guess for how could he otherwise affirm unless he had been acquainted with that Kings thoughts as he doth in the same place that he felt conscientiam suam in obtentu Regni cauteriatam since no other Writer either of that time or after it does thus blame King Henry for taking the Crown But as for the account you give why Duke Robert never took upon him the Title of King if the Throne had not then been looked upon as vacant because of the agreement which he made with his Brothers by which he parted with his Right for a Pension during his Life is not at all satisfactory for in the first place neither of these agreements were made till above a year after his pretended Title did acrue to him by the Death of his Father and Brother and therefore he ought if he had look'd upon himself as true King to have immediately taken the Title upon him which he never did so likewise the agreement it self makes wholly against your notion of any hereditary succession to the Crown to be then setled since the main clause in both these agreements is that the survivor should be heir to him that died first unless he left Children of his own to succeed him which plainly shews that in the opinion of both those Princes and of the great men that swore on either side to see it observed they knew of no such setled Right of Succession in their Heirs which they themselves could not part with or else this Clause had been wholly in vain since both King William and King Henry's Children were to have succeeded to the Crown of England by vertue of both these agreements before the Sons of Duke Robert had his Son William who was only Earl of Flanders survived him But now if you please you may proceed with your other exceptions against the rest of the Instances I have here given you of the Vacancy of the Throne till such time as the Common Council of the Kingdom had agreed whom to place therein M. As to what you have said in defence of the Vacancy of the Throne after the death of King Henry I. carries less shew of Reason than what you urged in the former Cases since all Writers agree that this was a manifest Usurpation in Stephen who could pretend no sort of Title to the Crown himself as well as Perjury in the Bishops Lords and great Men of England who having sworn Fealty to King Henry's Daughter Maud in his life-time made Stephen Earl of Blois their King therefore William of Malmsbury and all the Writers of those Times do accuse Stephen of down-right Perjury and Usurpation and likewise relate that he was advanced to the Crown through the power of the Londoners and Citizens of Winchester but yet all these Endeavours had been in vain unless he had been assisted by his Brother Henry Bishop of that City and then the Popes Legate in England and favoured by the Arch-Bishop of Canterbury who Crowned him and yet for all this there was but a very small Faction of the Bishops and Lords who were for his Croonation for W. Malmsbury tells us Coronatus est ergo in Regem Angliae Stephanus tribus Episcopis praesentibus nullis Abbatibus paucissimis Optimatibus And many of the Nobility and great Men of England were so sensible of this that being headed by Robert Earl of Gloucester the Empresses base Brother they raised a War against Stephen which after her coming over hither was
ordered and disposed of all publick Affairs conferr'd Offices and Bishopricks as if they were lawful Kings before your pretended Election or the ceremony of their Coronation and also had Ambassadors sent to them from Foreign Princes as appears from your own Quotation out of Hoveden Of those that were sent by the King of Scots to King Iohn before he was crowned though it is true he there stiles him no more than Duke of Normandy And this also may further appear by that passage I have cited out of the same Author that King Richard had Fealty Sworn to him as King of England by all the Freemen of England before he was Crown'd and you your self acknowledge the same Oath to be taken by the same persons to King Iohn before he came over to take the Crown And Lastly To make it yet plainer that there was no Vacancy or Inter-regnum in all these Successions you have mention'd consult what Chronologer you please or look into the most ancient Tables of the Succession of our Kings of England or into our old Printed Statutes or Law Books and you will still find the Reign of the Suceeding Prince to commence from the Death of his next Predecessor without any Vacancy or Inter-regnum between And these I think to be a great deal surer marks of their succeeding to their Royal Dignity by a pretence at least of a right of Inheritance from their Father or Brother rather thau this fancy of yours that you lay so much stress upon That because of their not being stiled Kings by our Historians till their pretended Election and Coronation was over they were not so indeed And I hope this may serve to satisfie this mighty Objection F. I must beg your pardon if I still declare my self not satisfied with your answers for though I grant that if this Argument of the Historians not stiling them Kings had stood single without any thing else to support it that your answers might have signified something But if you please better to consider it you will find that of these Princes taking in William your Conqueror claimed as your self must acknowledge not by any Hereditary right but by the Testament of the deceased Predecessor and if so where was your setled right of Succession by right of Blood Secondly It is likewise as plain that these four were never admitted or acted in England as lawful Kings till those Testaments were confirmed by the Election of the Great Council before whom they declar'd their Rights And till this was done how the Throne could be otherwise than Vacant I cannot for my Life conceive But as for two of them whom you call downright Usurpers viz. Henry the I and King Stephen it is certain they could have no colour of a Title till their Elections and if not till then and that neither your next Heir of the Crown nor yet they themselves took upon them the Title of Kings Was not this a Vacancy of the Throne in the mean time Suppose that time to have been but for the space of three or four days as it was after the death of King William Rufus In the next place pray consider that upon the death of every one of these Princes we do not find the Great Council of the Kingdom which still assembled to Elect the Successor was ever call'd in their names but met by their own Inherent Authority for how could they be summon'd by the King before he took that Title upon him which as your self are forced to acknowledge he never did till after his Coronation Lastly Pray remember farther that whoever was thus Elected and Confirm'd by the Great Council whether he was next Heir by Blood or not was always looked upon as Lawful King and has always passed for such in all our Chronicles and Laws and not those that claimed as the right Heirs by Blood and if this be not sufficient to prove that these Princes had no true and compleat right to the Crown till this Election was past I desire you would shew me my mistake These things premis'd I think it will be very easie to reply to every one of those answers you pretend to have made to my Query Therefore as to your First That they were really Kings before their Election or Coronation because they order'd and dispos'd of all publick affairs I do not deny but that some of them who Succeeded either as Heirs by Testament or by right of Blood might do many publick Acts by reason that they looked upon themselves as Heirs Apparent to the Kingdom and whom the Great Council I grant could not without high Injustice set aside and upon this account they might also receive Ambassadors from Foreign Princes in Affairs relating to Peace or War that they might know how to deal with them or what to expect from them after they were setled in the Throne yet that they sent not to them by the Title of Kings appears by that passage I cited out of Hoveden but I defie you to shew me any one instance that any of these Princes above mention'd ever took upon them to exercise any of those Prerogatives of Sovereign Power such as making War or Peace Enacting Laws Coining of Money before their Election and Coronation which though in some of them was done both at once yet in others it appears plainly to have been at different times and not upon the same day as it happen'd in the case of Henry I. whose Election was at Winchester upon Saturday and his Coronation was not till the next day as also that of Henry the 3 d. whose Election was upon St. Simon and Iude's Day but his Coronation not till the day after But as for your next reply which I grant to have been the strongest you have made that King Richard I. and King Iohn had both of them Homage and Fealty sworn to them as Kings by all the Freemen of England before they were Crowned this were a material argument if it were made out as I think it cannot for in the first place the bare swearing of Homage and Fealty to a Prince doth not make him immediately King though I grant it might give him in that Age a right to be looked upon as Heir Apparent to the Crown thus Henry the I. made all the Lords and Great Men of England to swear Homage and Fealty to Prince William his Son and so after his being drown'd to the Empress Maud his Daughter which was the true reason why she looked upon her self afterwards as Heiress to the Crown so likewise King Stephen a little before his Death at the great Council I have mention'd caus'd all the great men of the Kingdom to Swear Homage and Fealty to Henry Duke of Anjou as his immediate Successour so that you see this swearing of Fealty was in those days often perform'd â—efore the persons that received it were Kings indeed and so I believe it was done in both those instances you now give me for though I
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
Rebellion for the Duke of Lancaster to take up Arms against King Richard the 2 d and to Depose him I cannot see why according to your own Principles it should not be the same crime in the Duke of York to take up Arms against King Henry the 6 th to whom he had more than once sworn Faith and Allegiance and having taken him Prisoner to call a Parliament whereby himself was declared Protector of the Kingdom and the Son of King Henry disinherited after a quiet possession in three descents during the space of above sixty years which if it will not give a thorough settlement after two Acts of Parliament to confirm it I know not what can M. I confess you have given me a more exact account of this transaction than ever I had yet and I should very much incline to be of your opinion were it not that I am satisfied that our Kings have a Right to the Crown by Gods Law as well as mans as also by the Law of Nature and that more than one Parliament have been of my opinion in this matter I shall shew you from several Statutes and Declarations of Parliament which though not Printed are yet to be seen at this day upon the Parliament Rolls for after that Henry the 6 th or rather his queen for him had broken the aforesaid solemn agreement made between this King and Duke in Parliament whereby it was accorded that if King Henry made War again upon the Duke of York he should then forfeit his present Right to the Kingdom during his Life whereupon Queen Margaret and her Son Prince Edward who would not submit to this agreement renewed the War and fighting another Battle at Wakefield the said Duke was slain but though he did not live to enjoy his right yet his Son Edward Earl of March again recovered it and having in the second Battle of St. Albans taken K. Henry Prisoner triumphantly Marching to London he there declar'd himself King and having immediately call'd a Parliament it was therein declar'd that all the proceedings against K. Richard the ad are repeal'd and the taking him Prisoner by Henry Earl of Darby was declared against his Faith and Allegiance and that with violence he had usurped upon the Royal Power and Dignity c. and that he had by cruel Tyranny Murther'd and Destroy'd the said King Richard his Liege and Soveraign Lord against Gods Law and his own Oath of Allegiance And then they proceed further to declare in these words That the Commons being of this present Parliament having sufficient and evident knowledge of the said unrightwise Usurpation and intrusion by the said Henry late Earl of Derby upon the said Crown of England knowing also certainly without doubt and ambiguity the Right and Title of our said Sovereign Lord viz. King Edward the 4 th thereunto true and that by Gods Law Mans Law and the Law of Nature he and none other is and ought to be their True Rightwise and Natural Leige and Sovereign Lord and that he was in Right from the death of the said noble and famous Prince his Father very just King of the said Realm of England and will for ever take accept and repute the said King Edward the â—ourth their Sovereign and Liege Lord and him and his Heirs to be Kings of England and none other according to the said Right and Title And that the same Henry unrightwisely against Law Conscience and the Customs of the said Realm of England Usurped upon the said Crown and that he and also Henry late call'd K. Henry the 5 th his Son and Henry Late called Henry the 6 th his Son occupy'd the Realm of England and Lordship of Ireland and exercised the Governance thereof by Unrightwise Intrusion Usurpation and no otherwise that the â—motion of Henry late called King Henry the 6 th from the Exercise Occupation Usurpation Intrusion Reign and Governance of the said Realm and Lordship done by our Sovereign Lord King Edward the 4 th was and is rightwise Lawful according to the Laws and Customs of the said Realm and so ought to be taken holden reputed and â—ccupied I have been the larger on this point because it is a full and free Declaration of the whole Parliament nor only against all past as well as future Parliaments having any thing to do in the disposal of the Crown but is also as express a Declaration as words can make against any Vacancy of the Throne upon the Death of the Predecessor and therefore I hope you will pardon me if I have been a little too tedious in reciting these Records F. I cannot blame you for being very exact in this point because the whole strength of your Cause depends upon it but yet I doubt not but to shew you that this Parliament was as much awed by King Edward's Power being now Conqueror as ever those Parliaments were that Depos'd Edward and Richard the 2 d for you your self have sufficiently set forth the manner of it that it was not till after a great Victory obtain'd against King Henry the 6 th and I never found in all my reading that a Victorious Prince ever wanted power enough to get a Parliament call'd to settle himself in the Throne and declare his Competitor an Usurper as I shall shew you more fully by and by but that this Act of Parliament which thus posiâ—ively declares Edward the 4 th to be their Sovereign Lord by God's Law Man's Law and the Law of Nature I think can no ways consist either with Scripture Reason or Matter of Fact for in first place I think I have sufficiently proved that there is no Divine Right of Succession for the Heirs of Crowns any more than of other Inheritances either by the Law of God or that of Nature and as for Man's Law I think I have here also proved that the Succession to the Crown by right of Blood alone was never establisht by any positive Law nor yet setled by any constant or interrupted Custom when this Declaration was made for the Crown had then never descended from Father to Son for above two Descents without a deposition or possessed by those who claim'd by Right of Blood without any other Title for as for the three Kings of the House of Lancaster I have already proved and your self must also own it that they could have no Title to the Crown but from the Acts of Entail of the 7 th and 8 th of Henry the 4 th above mention'd so that according to Man's Law that is Custom and also the Statute Law of this Kingdom the House of Lancaster had all that time the better Title But to shew you what uncertain things Parliaments are when King Edward the 4 th had Reign'd ten years he was driven out of the Kingdom by the Earl of Warwick's turning suddenly against him and in his absence he replaced King Henry the 6 th upon the Throne who had been all this while kept
Crown yet the pretended hereditary right of blood was the main ground of his Establishment But as for King Henry the VII th tho' he could claim the Crown by no true Right of Inheritance yet would he never own it to be an Election by Parliament for as soon as King Richard was slain in the Battle of Bosworth the Lord Stanley put his Crown upon Henry's head who immediately stiling himself King as well by right of Conquest as by being sole Heir Male of the House of Lancaster He as such caused himself to be Crowned King and though he afterwards call'd a Parliament in which he procured his Title to be recognised yet as my Lord Bacon very well observes he was afraid to take the Crown by his only true Title in right of the Lady Elizabeth his Queen for fear he should only be King by Courtesie and must upon the Queens death have resign'd it again and should he take it by Election he knew there was a very great difference between a King that holdeth his Crown by a Civil Act of the Estates and one mind that that holdeth it originally by the Law of Nature and descent of Blood and therefore upon these Considerations he resolved to rest upon the Title of the House of Lancaster as his main Right and thereupon he caus'd an Act of Parliament to pass wherein his Title was acknowledged as my Lord Bacon there tells us not by way of Declaration or Recognition of Right as on the other side he avoided to have it by a new Law of Ordinance but chose rather a kind of a middle way by way of establishment and that under covert and indifferent words that the inheritance of the Crown should rest remain and abide in the King c. which words might be equally applied that the Crown should continue to him but whether as having former right to it which was doubtful or having it then in fact or possession which no Man denied was left fair to interpretation either way I speak not this to justifie all his actions but to let you see that he chiefly insisted upon his right of inheritance and absolutely disown'd any Title by Election from the People F. I cannot deny the matter of fact concerning King Richard the III ds Deposing his Nephew and Usurping the Crown to have been very wicked and contrary to the received Law of England concerning the Succession at that time and likewise that by Bastardizing his Brother the late King's Issue without due course of Law and by attainting the blood of his other Brother the Duke of Clarence he would have made the World believe that he was Lawful Heir by right of blood yet you will not deny but that for all this he was so sensible of the weakness of his Title that though it is true his right by blood is declar'd in the first place in that Act of Recognition yet it is plain he would not rely upon that alone and therefore you see the Parliament there also insists upon his right by Election and Coronation which they would never have done had it not been that they looked upon it for good Law that whoever was Crowned King and call'd a Parliament and had his Title therein Recognized and Confirmed was thenceforth true and lawful King to all intents and purposes therefore though you have omitted it I shall proceed to shew you what this Statute also farther declares For after they had declar'd the said King's Title as grounded upon the Antient Laws and Laudable Customs of the Realm according to the Judgement of all such Persons as were learned in them they proceed thus Yet nevertheless for as much as it is consider'd that the most part of the People is not sufficiently learned in the aforesaid Laws and Customs whereby truth and right in his behalf of likelihood may be had and not clearly known to all People and thereupon put in doubt and question and over this how that the Court of Parliament is of such Authority that a Declaration made by the three Estates and by the Authority of the same maketh before all other things most faithful and certain quieting of Mens Minds and removeth the occasion of doubts and seditious Language therefore they also declare that he was the undoubted King Whence 't is evident that the reason of this Law supposeth that the Subjects in general are not capable of understanding the Laws and Customs upon which the Titles of our Kings depend and that the best satisfaction that the generality of the People can possibly have in those high Matters was to rest on the judgment and determination of the Kingdom declared by Act and Authority of Parliament and therein to acquiesce for the preventing Sedition so much as in Language therefore what I said before in the Case of King Stephen is also true in this quod fieri non debuit factum valet and all the Acts made in the Reign of this King Richard though â— horrid Usurper were never repeal'd but stand good at this day As to what you say concerning the manner of King Henry the VII ths coming to the Crown is also true but as for his Title to it by right of Succession that was certainly false for his Mother the Countess of Richmond was then alive by whom he Claim'd the Crown and liv'd divers years after he was King so that though I grant that it is recited in the Parliament Roll that he claim'd the Crown in Parliament tam per justum titulum haereditantiae quam per verum Dei judicium in tribuendo sibi victoriam de Inimico suo in campo tho' the latter of these Titles may be true Viz. the Conquest of King Richard especially when once he was confirm'd and recognized in Parliament yet that the former could not be so is plain from what I have now said so that it is certain that King Henry the VII ths best Title was neither by Inheritance nor Marriage with the Princess Elizabeth but by the Act of Parliament as appears by the unprinted Statute it self still upon the Roll which since you did not repeat I will the Title is Titulus Regis and it runs in these words To the Pleasure of Almighty God the Wealth Prosperity and Surety of this Realm of England to the singular comfort of all the Kings Subjects of the same and in avoiding of all ambiguities and questions be it Ordained Established and Enacted by Authority of this present Parliament that the inheritance of the Crowns of the Realms of England and of France with all the preeminence and dignity Royal to the same pertaining and all other Seignouries to the King belonging beyond the Sea with th' Appurtenances thereto in any wise due or pertaining be rest remain and abide in the Most Royal Person of our now Sovereign Lord King Henry the VII th and in the Heirs of his Body lawfully coming perpetually with the grace of God so to endure and in none
other Now this was done some time before he Married with the Princess Elizabeth for as soon as this Act was made the Commons requested the King to marry Elizabeth the Daughter of King Edward the fourth that by God's Grace there might be Issue of the stock of their Kings as their own words were and that this was rather to preserve the Blood Royal than to give any new confirmation to his Title appears from hence that there was never any other Act after the Marriage to declare the right of the Crown to be in the King and Queen or so much as to entail it on the issue of their Bodies so that it is plain he enjoy'd it not in his Wives but in his own right since he held it after her death by vertue of this Statute which plainly shows that in the judgement of that Parliament the House of Lancaster was lookt upon to have the better Title And though it is true that the King procured the Pope's Bull now in the Cotton Library to strengthen his Title threatning all those with Excommunication that should offer to rebell against him yet even that Bull tho' his right by Inheritance and Conquest be first mentioned concludes with his Title by the Election of the Prelates Nobility and People of England and the Decree or Statute of the three Estates in their Convention call'd the Parliament as this Bull it self expresses it M. I must confess you have told me more of these matters than ever I heard of before for I always thought that there had been no Act of Settlement upon King Henry the VII th until after his Marriage with the Princess Elizabeth for till then I look upon him as an Usurper upon her right as he was also after her death upon his Sons successively so that if you will have my Opinion I conceive that this Statute being made before he had a lawfull right to the Crown is wholly void as is also that of the repeal of the attainder of King Henry the VI ths for the same reason But let his Title be what it will it is ceâ—â—ain his Son King Henry the VIII th Succeeded to the Crown as Heir rather to his Mother than his Father and so was in by remitter but as for King Edward the VI th he was undoubted Heir by right of blood as being the only Heir Male to his Father and though it is true that King Henry made divers Statutes whereby he alter'd the Succession of the Crown as to his two Daughters Mary and Elizabeth sometimes declaring them both illegitimate and then again giving them a right to Succeed by Act of Parliament yet these Acts of Succession were obtained purely by the King's Sollicitation and Command and tho' at last he got himself impower'd to make a Will whereby he might settle and entail the Crown on whom he pleas'd yet all these Acts of Parliament as also this will signifie just nothing after his death for tho' his said Daughters Queen Mary and Elizabeth did one after another succeed his Son King Edward the VI th yet was it not by vertue of any of these Acts of Parliament or by the aforesaid Will but by pure right of inheritance or colour of it at least and therefore in the first of Queen Mary there is an Act declaring the Queens Highness to have been born in most just and faithful Matrimony and also repealing all Acts of Parliament and Sentence of Divorce made or had to contrary Now certainly the intention of this Act was to declare her Succession to be Inheritance by right of blood so likewise in the first of Elizabeth the Lords Spiritual and Temporal and Commons do declare and confess that Queen Elizabeth is in very deed and of meer right by the Laws of God and by the Laws and Statutes of this Realm their most rightfull and lawfull Sovereign Queen and that she was rightly lineally and lawfully descended and come of the Blood-Royal of this Realm of England all which whether it were true or not in her yet the lineal and lawful descent of Queen Elizabeth was the ground upon which she was declar'd to be their Rightfull and Lawfull Queen And though I grant that King Henry the VIIIth had by his Last Will and Testament post poned all the Issue of his Sister Margaret Queen of Scots and preferred the Children of his younger Sister the Queen Dowager of France which she had by Charles Duke of Suffolke before them Yet was this Will afterward cancelled and torn off from the Rolls in Chancery where it was Recorded and that by order of Queen Mary as is supposed So that Iames the VIth King of Scotland was by Right of Blood Declared and Proclaimed King of England immediately upon the Death of Queen Elizabeth as right Heir of the Crown And in the first Parliament after his Coronation his Title is by them particularly recognized in the words which I desire you to read with me Where after setting forth his Pedigree as lineally descended from the Lady Margaret eldest Daughter of King Henry the VII th and Queen Elizabeth his Wiâ—e Daughter of King Edward the IV th they farther acknowledge King Iames their Lawful and rightful Leige Lord and Sovereign and farther say as being bound thereunto both by the Laws of God and Man that they do recognize and acknowledge that immediately upon the dissolution and decease of Elizabeth late Queen of England the Imperial Crown of the Realm of England and all Kingdoms Dominions belonging to the same did by inherent Birth-right and lawfull and undoubted Succession descend and come to his Most Excellent Majesty being lineally lawfully and justly next and sole Heir of the Blood Royal of this Realm and thereunto they do most humbly and faithfully submit and oblige themselves their Heirs and Posterities for ever until the last drop of their bloods be spent I have been the more particular in the recital of this Act because it stands not only as a perpetual Declaration of the sense of the Representatives of the whole Nation for an hereditary Succession of the Crown without any vacancie or election but also because it contains their solemn engagement for themselves and their posterities for ever to King Iames and his issue and consequently to his right Heirs for ever so that nothing can be more directly contrary than this Act to the late proceedings of the Convention first in declaring the Throne vacant and then placing the Prince and Princess of Orange therein F. I will not deny but that King Henry the VIII th and Edward the VI th both succeeded by right of inheritance but whether the former claim'd it as Heir to his Mother or his Father is much to be doubted since being Heir to both of them he never declar'd by what Title he held the Crown But as for his two Daughters Queen Mary and Queen Elizabeth it is certain their best Titles were from these Acts of
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
spend our dearest blood in the defence of our Sovereigns Person and the preservation of his Crown and Dignity For it is to be observed that by the Law this Allegiance is due to the Kings Person so the same Author says it was then resolved by all the Judges that that Ligeance was due to the natural person of the King which is ever accompanied with the politick capacity and the politick capacity as it were appropriated to the natural and not due to the politick capacity only To conclude if my former Oath of Allegiance to King Iames doth still continue as I am satisfied in my Conscience it doth I cannot take a new Oath of Allegiance to King William and Queen Mary since I should thereby be obliged by the force of these words in the Oath viz. I will be faithful and bear true Allegiance to yield it as much to those that are not my Lawful Sovereigns as I am to those that are so which will be contrary to my first engagement for though I grant that there is no express Declaration of the Right of the present Possessors of the Throne and that I have heard that the word rightfull which was at first inserted into this Oath was struck out because as many as could be might be drawn in to take it yet as long as the words that remain import the very same thing it is all one as if the word rightfull were there for though the deliberate omission of the word rightfull does necessarily infer that we are not obliged in this Oath to a recognition of their right to the Crown yet it does not infer that we are not obliged to pay as high a degree of Allegiance as to any rightful King whatsoever that omission indeed is an Argument that the word King in the Oath does not necessarily signifie a King de jure but it is no argument that true allegiance does not signifie true Allegiance that is an obligation to adhere to the King against all his Enemies for there was no debate that we know of about the sense of the word Allegiance neither is there the least intimation given that they design'd to restrain it to a lower signification though it was plainly necessary to do it if they intended to alter the commonly received meaning of it wherefore as the striking out of the word rightfull would not have proved that they did not intend to oblige us to an active assistance of King William against all men living if those words had been expresly inserted in the Oath so neither will it prove that the same duty is not now required of us if the word Allegiance do as I have proved in terminis import it and that as fully as if it had been in express words requir'd in it And that this word Allegiance implies something more than a bare passive submission or neutrality from all Subjects as well as Magistrates and Officers appears by that passage in the Statute of the 11th of Henry the VIIth which you have now cited where 't is plainly and expresly declared that every Subject by the duty of his Allegiance is bound to serve and assist his Prince and Sovereign Lord at all seasons when need shall require this is so express and authentick a Declaration of the true duty of Allegiance that no Art or Sophistry can possibly evade it F. I confess you have argued this point of taking this new Oath of Allegiance not only like a Civilian but a common Lawyer also and I cannot deny the force of what you have said that this Oath must extend to an active obedience and defence of their present Majesties in their right to the Throne and not only to a bare sluggish submission or a luke-warm Neutrality And therefore I cannot say but you are justly scrupulous in not taking this new Oath untill you are satisfied of their Majesties Right as well as present Power but if you will please to observe the purport of this Act of the 11th of Henry the VIIth which you now mention'd you will there find it as good as expresly declar'd that Allegiance is due to him who is lawful Sovereign and the King for the time being is still to be looked upon as such for the words in the Statute are that no Man shall suffe for assisting the King for the time being without specifying by what Title he holds the Crown whether by an hereditary Right or by Conquest Election or the solemn recognition of his Title by all the Estates in Parliament so that by this Act all that Allegiance that was once due to the former King de Iure becomes thereby wholly transfer'd to the King de facto M. I grant what you now say would go a great way to satisfie me could you once prove that this Statute is now in force and is not now either abrogated or expired or else which I rather incline to believe is not absolutely void in it self In the first place therefore I hope to shew you that this was not Law before this Statute was made and therefore not declaratory of what was Law but endeavours to make that to be Law which was not so before so that the King for the time being there mention'd must be a King de jure or at least one that was presumed such because at that time the Constitution knew no other for that Possession was not a sufficient Title before the 11th of Henry the VIIth will evidently appear from these following Remarks First that all the Kings of the House of Lancaster are declared in the Statute of the first of Edward the IVth to be Kings in Deed but not of Right and pretended Kings and particularly Henry the VIth is said to be rightfully amoved from the Government and his Reign affirmed to be Intrusion and Usurpation and himself Attainted for being in Arms against Edward the IVth Secondly all Patents of Honour Charters and Priviledges which were granted by the House of Lancaster all Acts of Royal Authority which the Kings of England have a right to execute by vertue of their sole Prerogative nay Acts of Parliament themselves particularly those relating to Shrewsbury and some others which by parity of Reason supposes the rest in the same Condition all Acts of this nature were confirmed by the first of Edward the IVth which is a good Argument that this Parliament believed the Authority by which they were performed to be defective and illegal for we never find any such general confirmation as these pass upon the grants of the King de jure Thirdly in the first year of Henry the VIIth Richard the IIId was Attainted of High Treason in Parliament under the the name of Duke of Gloucester from whence 't is plain that as there was no Statute so neither was there any Common Law to support the Title of a King de facto for Treason is an attempt against the Kings Person his Crown and Dignity but no Man can commit Treason
against himself therefore if Richard the IIId had been a King in the sence of this Law we may be sure he would not have had such an infamous censure past upon him after his death Bradshaw and his High Court of Justice were the first that were so hardy as to pronounce a King of England guilty of Treason Fourthly If this notion of a King de facto had been allowed in the 11th of Henry the VIIth the Principal Assistants of Richard the IIId could not have been attainted for Richard being actually in the Throne he was according to your Modern way of arguing Rightful King and consequently the People ought to own him as such and defend him against all opposers and if so certainly they ought not to be condemned as Traytors for doing their duty as we find many of those were who fought for King Richard Fifthly at the end of this Parliament Henry the VIIth granted a General Pardon to the common people who had appeared against him in the behalf of Richard the IIId now Pardon supposes a fault and the breach of a Law which they could not have been charged with if the plea of a King de facto had been warranted by the Constitution F. I must freely tell you that you do not argue so much like a Lawyer in this Argument as you did in your former and you have in that forgot to what end those Statutes you mention were made and what is the purport of them or else some body hath misinformed you for though I grant that all those hard expressions you mention are given of the Kings of the Lancastrian Line in those Statutes of the 1 st of Edward the IVth yet do none of these expressions prove that they were not true and legal Kings in the eye of the Law all the while they Reign'd since divers Persons were attainted for High Treason against them whose attainders were never reversed but stand good to this day as in particular the attainder of the Earls of Kent Salisbury and of Huntingdon who were all attainted by Act of Parliament in the second of Henry the IVth and also the Earl of Northumberland and his Son the Lord Piercy attainted in the 5th of this King all which attainders were never reversed So likewise Richard Earl of Cambridge was found guilty of Treason by his Peers and his Attainder confirmed by Act of Parliament in the second of Henry the Vth and though it is true this Attainder was afterwards reversed in the first of Edward the IVth because the said Richard was not only his Grandfather but was also Condemned for endeavouring to make Edmund Earl of March his Brother-in-law King of England from whose Sister King Edward the IVth claimed the Crown yet the very reversing this Attainder by Act of Parliament declares it to have been good untill that Repeal since it was not declared void all which are plain and evident proofs that Treason may be committed against the King de facto and consequently that Allegiance is also due to him and not to the King de jure I have likewise also proved that all those Statutes which were made by those Kings and are not repealed stand good at this day without any confirmation by King Edward the IVth and this you have no way to answer but by instancing in Patents of Honour or Charters of Priviledges granted by those Kings and confirmed by Edward the IV th from whence you would inferr that some other Acts of like nature were in the same condition which let me tell you in no good argument against them for if you please to read that Statute of Edward the IVth you mention and you will there plainly see that the Grants Patents and other things there confirmed or either judicial Proceedings in the Courts of Justice or else such Charters or Patents which being thought to the prejudice of the Crown were ex abundanti cautela thought necessary to be confirmed by those particular Persons Religious Houses and Corporations who thought themselves concerned nor were all others of like nature who were not so confirmed thereby void since they hold good at this day and if you understand any thing of our Law you cannot but know that no Grants of the King can be made void by implication and to shew you farther that the Letters Patents made by Henry the VIth were looked upon as good in the Reign of Edward the IVth appears good from Bagot's Case in the Year-Book of the ninth of that King where a Patent of Naturalization granted by Henry the VIth though it were not confirmed by that Statute of Edward the IVth was by the greatest part of the Judges held to be good and the reasons there given for it are very remarkable since it was urged by the Council in behalf of the Plaintiff that King Henry was then King in Possession and it behoves that the Realm should have a King and that the Laws should be kept and maintain'd and therefore though he was in only by Usurpation nevertheless every judicial Act done by him concerning Royal Jurisdiction shall hold good and bind the King de jure when he returns c. So likewise a Charter of Pardon of Felony and Licenses of Mortmain shall be good and also the King that now is shall have the advantage of every forfeiture made to the said King Henry c. and mark this farther it is there also held that a Man shall be Arraigned for Treason done against the said King Henry in compassing his death and the reason is very remarkable because the said King indeed was not meerly a Usurper for the Crown was intail'd upon him by Parliament and this being not at all contradicted by the Court is still taken for Law and upon this report and not only upon the Statute of the 11th of Henry the VIIth did my Lord Coke found his Opinion I now mention'd that a King de facto was within the Statute of the 25th of Edward III. and though now it is true that the farther arguing of this Case of Bagots adjourned to a farther day when the Justices did not argue but the Serjeants and Apprentices at Law that is the Baristers as we now call them yet it seems to have been allowed by the whole Court that if King Edward who was then King had made his Charter before he was declared so it should be void at that time for every one who shall make a Charter of Pardon ought to be King in Deed at the time of the making thereof M. Pray Sir give me leave to reply to what you have now said against my first two Arguments before you go on to answer the rest for I confess the Authorities you bring seem so express against me that if I cannot take them off there will be no further need for your answering the rest I will not therefore deny but that all publick Acts and Proceedings at Law which are for the publick good and safety of the
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
of Government can have any for that which is done by a person who has no Authority can lay no obligation upon us whence then has he this Authority since he has no legal Right to the Throne not sure from the presumed consent of the King de jure which is nonsence to suppose but from the possession of the Throne to which the Law it self as well as the Principles of Reason have annexed the Authority of the Government M. I am so far of Bishop Sanderson's Opinion in his Case concerning taking the Engagement that when Usurpers or Kings de facto have taken upon them the Government they are obliged to administer it for the common good and safety of the People and as far as that comes to we are also obliged to live peaceable under them and to yield obedience to them in things absolutely necessary for the upholding civil Society within the Realm such as are the defence of the Nation against Foreigners the furtherance of publick Justice the maintenance of Trade and Commerce and the like But sure this is no argument for transferring our Allegiance from the lawful King and his Heirs whilst they are alive and therefore I must still suppose that this Statute of the 11th of Henry the VIIth can do no service to the present Government because it s vertually repeal'd by several Statutes as first by the 28th of Henry the VIIIth concerning the Succession of the Crown wherein it is expresly provided that if any of his Children should Usurp upon each other or if any of those to whom he should bequeath the Crown by his last Will or Letters Patents should take the Crown in any other manner than what should be thereby limited that such Children or others should be guilty of Treason for so doing Now it is plain such Treason must only have been committed against the right Heir and consequently the person so taking the Crown was not to be looked upon as King de facto It is also vertually repealed by the Statute of 1 o Elizabeth by which we are obliged to swear to be true to the Queen her Heirs and Lawful Successors i. e. those who have a right to the Crown by proximity of Blood as also by the Oath of Supremacy Enacted in the 4th of King Iames by which we are likewise sworn to bear true Allegiance to his Majesty his Heirs and Successors from which Oaths I argue first that if we are sworn by Act of Parliament to pay Allegiance to the Heirs of a King de fure who never were in possession than a fortiori to a King de jure who besides the legality of his Title had been actually recognized as Sovereign and enjoy'd an uncontested administration of the Regal Power Secondly If our Laws oblige us to swear subjection to the Heirs c. of a Rightful Prince than by undeniable consequence we are bound not to translate our Allegiance to those who are unjustly set up by the People for without all question the words Heirs and Lawful Successors were made use of on purpose to secure the hereditary Rights of the Monarchy and to prevent all Usurpations upon the direct Line And since by vertue of that Statute which framed the Oath of Allegiance and Supremacy we are not to acknowledge any pretended Governours to the prejudice or disinherison of the Heirs of the King de jure then most certainly we ought not to do this in opposition to the King de jure himself so that now we can have no pretence to make Right the necessary consequence of meer possession of the Crown any more than in private Estates F. In the first place I agree with you in what you have said that Kings de facto are to be obeyed in all things tending to the publick good of Society but then it will also follow that Allegiance is due to them from that great Law of prosecuting the same publick good since it were much better that Kings de jure should lose their Right than that a Nation should be involved in a long and cruel War to the weakning and impoverishing thereof and to the destruction of so many thousands of ordinary as well as Noble Families as was seen in the long Civil Wars between the Families of Lancaster and York so that I cannot but think it would have been much better for this Nation if that Family had continued to Govern us unto this day rather than that Edward the IVth should have obtained the Crown with so great a destruction of the People of this Nation and so great cruelty as was then exercised upon King Henry the VIth and the Prince his Son as you may read in the History of those times But I come now to answer the rest of your Arguments whereby you will prove this Statute of the 11th of Henry the VIIth to be vertually repeal'd and here by the way I must tell you Gentlemen of this Opinion that I cannot but admire your wondrous sagacity in discovering this Act to be repeal'd when my Lord Coke and all the rest of our Lawyers do still suppose it to be in force but indeed the reason you give for it is not urged like a Common Lawyer and therefore I think it will signifie little for though I grant that an Act of Parliament may be vertually repeal'd by a subsequent Act yet it is only in such Cases where they are absolutely contradictory and inconsistent with each other but if they are not so an Act of Parliament can never be said to be vertually repeal'd and therefore I shall now show you that notwithstanding the Statute of Henry the VIIIth and the Oaths of Supremacy and Allegiance you have now mention'd this Statute may very well continue in force and unrepeal'd First as to the Statute of Henry the Eighth whereby it was declar'd Treason for any one of his Children upon whom the Crown was setled to Usurp upon each other yet that part of the Statute which makes this Treason was repeal'd by the first of Edward the the Sixth and by the first of Queen Mary or admit it had not been so yet this Clause in the Statute of Henry the Eighth would haue been absolutely void in it self against any such Usurper when actually possessed of the Crown since it was held by all the Judges in the Case of Henry the Seventh who at the time of his coming into England stood attainted by Act of Parliament that this attainder need not be reversed since Possession of the Crown takes away all precedent defects But as to the Statutes of the first of Queen Elizabeth and the fourth of King Iames by which the Oaths of Allegiance and Supremacy were Enacted I conceive neither of these Oaths can amount to a vertual repeal of this Act for though I grant one end of these Oaths may be to secure the right of the King or Queens Heirs by lineal descent yet it will not therefore follow that a King de facto
the only Iudges of all Disputes about the Succession of the Crown D. 2. p. 891 to 892. D. 12. p. 893. D. 13. p. 917 to 919 921. Eve W. by being subject to Adam all her Posterity became so likewise D. 1. p. 14. to 25. F Fathers W. by right of generation or of education Lords over their Children in the state of Nature D. 1 p. 13 14. W. Any such power was given by Divine Grant to Adam and in him to all other Fathers Ib. p. 26 30 to 36. W. Fathers of Families have power of life and death over their Children by the Law of Nature Ib. 19. to 26. W. They may sell their Children Ib. 26. to 31. W. They may be resisted by their Children in case of any violent assaults upon their lives Ib. p. 41. W. Perpetual Masters over their Children as long as they live Ib p. 45. to 51. Fideles the signification of the word before the Conquest D. 6. p. 390 391. D. 7. p. 448. to 451. Sir R. Filmers Principles W. they do not rather encourage Tyranny than Fatherly affection in Princes towards their Subjects D. 2. p. 118. W. They do not also favour Vsurpers Ib. 125. to 128. G Common Good of Mankind the main design of all Government D. 1. p. 55. to 61. Civil Government the end of its Institution D. 1. p. 11. 19. 21. W. There had been any necessity of it if Man had never sinned Ib. p. 11. What it is and its Prerogative D. 3. p. 173. W. it can be setled without liberty and property in Estates Ib. 174. Government of Families and Kingdoms its Original and Necessity D. 1. p. 10. to 12. Supream Governours in what cases they cease to be Gods Ordinance D. 1. p. 41. Government among the ancient Germans and Saxons always by Common Councils D. 5. p. 365. to 369. Grands or Grants in Parliaments what those words signifie in ancient Statutes and Records W. The Lords alone or the Commons also D. 6. p. 369. vid. Append. Guards of the King when when first set up D. 9. p. 639. H K. Harold W. William of Normandy had a just cause of making War upon him D. 10 p. 718. What Title he had to the Crown Ib. p. 720. Haereditamentum its derivation Ib. p. 721. Hengist and all the rest of the Kings who founded the Saxon Heptarchy W. so by Election or Conquest D. 5. p. 357. to 362. King Henry the IVth W. his Title to the Crown were by right of blood or Election of the Estates in Parliament D. 12. p. 861. to 863. King Henry the VI. W. his Son were not unjustly disinherited by the Duke of York and himself unjustly deposed by Edward the IVth Ib. p. 863. to 867. King Henry the VIIth W. he had any Title to the Crown by right of Inheritance Ib. p. 868. to 870. King Henry the VIIIth W. the several alterations he made as to the the Succession were legal D. 12. p. 871 872. Homage W. it rendred the Prince or Lord irresistible D. 10. p. 727.728 Homines Liberi its signification in English Histories D. 6. p. 428. to 430. Homilies of our Church the the chief passages therein against all manner of Resistance of Governours considered D. 4. p. 287.288 W. It be Heresie or Schism to deny their Authority in any point there laid down Ib. 289.290 vid. Append. Mr. Hookers Opinion concerning the Original of Civil Government D. 12. p. 129.130 W. The two Houses of Parliament or the whole People of England have any coercive Power ove the King D. 9. p. 634. W. The Two Houses have on the behalf of the whole People renounced all right of self-defence in any case whatsoever Ib. p. 636. to 658. I King James the Firsts Speech in Parliament against Tyranny D. 3. p. 148. The Act of Recognition of K. James's Hereditary Right how far it obliges Posterity D. 12. p. 871 to 874. King James II. W. he violatid the fundamental constitution of the Government before his desertion D. 9. p. 673. to 685. Or W. he had amended all those violations before his departure p. 685. to 689. W. His setting up a standing Army and puting in Popish Officers and Souldiers were an actual making War upon the Nation Ib. p. 683.687 W. He abdicated the Government by his breach of the Original contract or else by his deserting it D. 11. p. 790. to 799. W. He might have been again safely restored to the Government upon reasonable terms Ib. p. 801. to 807. W. He really intended to redress all the violations he had made upon it p. 805. to 807. W. He resumed the Government upon his return to London from Feversham Ib. 802. to 806. Iesus Christ did not alter Civil Government neither by taking away the Prerogative of Princes nor yet by abridging the Civil Liberties of Subjects D. 4. p. 216. to 220. Jews often rebelled and sometimes killed their Kings D. 3. p. 203 to 205. Their resistance of Antiochus considered Ibid. p. 208. to the end Jewish Government before Saul W. Aristocratical or Monarchical D. p. 93. to 101. Judah and Thamar the History considered D. 1. p. 33. Iudges over Israel their Power W. Monarchical D. 2. p. 95 96. W. Some of them were not Iudges of some particular Tribes p. 96 97. Iudgements Divine W. they may be removed by humane means or force D. 4. p. 259 260. K Kings W. to be reputed Fathers of their People as the Heirs or Representatives of those who were once so D. 2. p. 65. W. They derive their Power from God or from the People and Laws D. 11. p. 773. to 780. D. 12. p. 936 to 938. Saxon Kings of England W. absolute or limited Princes D. 5. p. 349. W. They were endued with the sole Legislative Power Ib. p. 338 to 345. Kings of the English Saxons Elected and often deposed by the Great Council Ibid. p. 365. The same done also in other Kingdoms of the Gothic Model Ib. p. 365. Kings of England ever since King William I. W. they derive their Title to the Crown from Conquest or some other Title D. 10. p. 713. Their Concessions to Subjects do no ways derogate from Royal Prerogative D. 10. p. 715.716 Kings of the Roman Catholick Religion W. many of them have not observed Magna Charta and their Coronation Oath D. 12.882.888 King by Sir R. Filmer's Principles above all Laws and alone makes them D. 2. p. 123.124 In what sence he is head of the Politick Body of the Common-wealth D. 11. p. 803. to 805. W. He could have anciently by his Prerogative Taxed all the Tenants in Capite at his discretion D. 7. p. 495. to 499. W. He could call or omit to summon to Parliament what Earls Lords and Tenants he pleased Ibid. p. 505 to 511.523 W. He could also summon those Knights of Shires who served befere without any new Election Ib. 537. W. He could by his Prerogative discharge what Knights of Shires he pleased after they were chosen Ibid.
Latine Translation of the Old Coronation-Oath D. 8. p. 560. to 563. W Wales W. it s Titular Prince be really Son to King James the Second and Queen Mary D. 11. p. 784 to 789. W. He ought to have been received as the true Son and Heir of the said King D. 12. p. 875. to 877. and that let the consequences be what they will Ib. p. 879. to 881. Wardship Marriage and Relief W. wholly derived from the Normans D. 10. p. 750.751 Its advantages and inconveniencies considered Ib. A Wife W. she can ever be discharged from the Power her Husband hath over her in the state of Nature by any means but by his express consent D. 1. p. 43. King William the First why stiled the Conquerour D. 5. p. 325. W. He claimed to be King of England by Donation of King Edward the Confessor or by Conquest D. 10. p. 715.718 719. W. He was ever Elected and took the same Coronation-Oath as the English Saxon Kings had done before D. 10. p. 716.722 to 737. W. He might justly have seized all the Lands in England to his own use D. 2. p. 171. W. He gave most of the Lands of England to his followers Ibid. p. 721 to 729. and to 747. W. He alter'd any thing in the fundamental constitution of the Government D. 5. p. 320. to 322. W. He altered all the Old Laws of England or confirmed those of King Edward D. 10. p. 737. to 760. His Second Oath upon the Relicks of St. Alban Ib. 761 762. His Laws concerning all Freemens exemption from Taxes upon their finding Arms D. 6. p. 426 427. W. He and his Son William Rufus made Laws and imposed Taxes without the consent of the Great Council D 10. p. 744 755. King William the Third W. he hath any Title by Conquest over King James or else from his Marriage with the Princess and the Act of the Convention D. 12. p. 883. to 899. His Religion and Principles vindicated Ib. 886 887. Wites or Wise-Men in the English Saxon Councils the true signification of that term D. 6. p. 373. to 378. Wittena à Gemots or Great Councils among the English Saxons W. they consisted of more than the higher Nobility Ib. p. 381. Wives how far obliged to be obedient to the Commands of their Husbands D. 1. p. 40. Writ of Summons to the Commmons of the 49th of Henry the Third W it was the first of that kind D. 7. p. 519. to 521. W. Any Writs of Summons of Bishops or Lords to Parliament are to be found before that time Ib. p. 516. Writ of the 19th of Henry the Third to the Sâ—eriffs to levy two Marks Scutage upon Tenants by Knights Service holding of Tenants in Capite Ib. 445 Writ of the 24th of Henry the Third commanding all Men holding a whole Knights Fee of whatsoever Tenure to be Knighted D. 6. p. 432. Writs of Summons to Knights Citizens and Burgesses to Parliament at Shrewsbury in the 11th of Edward the First D. 8. p. 574. Writ of Summons to Knights of Shires cited by Dr. B. in the 18th of Edward the First W. it was to a Parliament D. 7. p. 530. to 536. Writ of the 22d of Edward the First W. a Summons to Parliament D. 7. p. 533 534. Writ of the 30th of Edward the First commanding the Levying of Forty Shillings upon each Knights Fee which had been granted ever since the Eighteenth Ibid. p. 479. W. The Commons Granted that Tax Ibid. Writs of the 28th of Edward the First and 45th of Edward the Third W. of Summons to Parliaments Ib. 537. Writs for Expences to Knights of Shires how ancient D. 8. p. 589. to 591. Y Duke of York Richard his Title declared in Parliament D. 12. p. 863. Edward Duke of York Recognized by Parliament to be lawful King from the Death of his Father Richard Duke of York Ib. p. 865. Duke of York James W. he was not intirely in the French Interest and Designs before he came to the Crown D. 11. p. 802. AN APPENDIX Containing some Authorities sit to be added for farther confirmation of some things laid down in the foregoing Dialogues TO be added to Dialogue the Fourth p. 290. at the end of F s Speech after these words no particular Church can read thus And that divers of the most Eminent Divines of our Church have used the same freedom with several other Doctrines contained in these Homilies may appear from Dr. Hammonds Dr. Heylins and Dr. Taylors with several other Eminent Writers expresly denying that the Church of Rome is guilty of Idolatry or that the Pope is Antichrist tho' both these Doctrines are as plainly laid down in the Homilies as the Doctrine of Non-Resistance And yet none of these Men are ever taxed by those of the Church of England for quitting her Ancient Orthodox Doctrines and I desire you to give me a good Reason if you can why it is more lawful and excusable to part with the former of these Doctrines than the latter The like I may say also for the Doctrine of Predestination which tho expresly asserted in the 36 Articles of the Church of England as interpreted by all the Bishops and Writers in the Reign of Queen Elizabeth and King Iames as also the Bishops and Divines sent as Delegates from our Church to the Synod of Dort who joyned in the interpretation of that Article in the strict Calvinistical sense you find in all the determinations of that Synod against the Doctrines of the Arminians which then began to prevail yet since the time that Arch-Bishop Laud had the nominating of what Persons he thought fit to be made Bishops Deans c. not one in ten of them but have been Arminians in all those Points wherein they wholly differ from the Doctrine of Calvin which is but the same with that of our 36 Articles so interpreted yet none of the Divines of our present Church who hold these Opinions are branded with Apostacy from its Ancient Doctrine but if any well meaning Divine out of love to his Country and to prevent Popery and Slavery from breaking in upon us have but Preach'd or Publish'd any thing in derogation to these Darling Doctrines of Passive Obedience and Non-Resistance he is straight branded with Apostacy from the Church in quitting its main distinguishing Character and we have lately seen Degrading nay the most cruel Whipping and Imprisonment thought too little for such a Man but one may say of some Men with truth enough Dat veniam Corvis vexat censura Columbis So Dialogue the Sixth p. 397. at the bottom after these words in those times read this But that the House of Commons were anciently often comprehended under the stile of Grantz which is the same with Magnates in Latine pray consult the Parliament Rolls of Edward the Third where you will find in the 4 th of that King this passage est assentu accorde per nostre Seigneur le Roy tous les Grantz
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
one thing more to add in relation to somewhat I promised at the end of the Preface to the last Dialogue concerning the late Revolutions being different from the last Civil War and Murther of King Charles the First which though I have finish'd and thought to have inserted into this Discouese yet since it proves rather too long without it and that the Bookseller urges for its speedy Publication I have thought fit to omit it since also the greatest part of it relates to matter of fact which is variously stated by those who write the History of those times yet I shall make bold to give you the heads of those inquiries I have made and shall leave you to satisfie your self in these Points following first if after King Charles the first had not only passed all Bills for redressing those Grievances the Nation lay under at the beginning of the Parliament in 1640. but had also passed the Bill to make it not to be Prorogued or Dissolved without their own consents I say whether there were then any such violations of our Religion and fundamental Laws which should require the Parliament and Nations puting themselves in a posture of defence against the King's Arbitrary Power Secondly whether the fears and jealousies of Popery and Arbitrary Government which notwithstanding all that the King had done still troubled many Mens minds were a sufficient ground for the two Houses to demand the putâ—ing the whole Militia of the Kingdom out of his own Power into such hands as they should nominate and appoint Thirdly whether upon his refusal of their Adresses for the Militia their going about to take it out of his hands by force and particularly their shutting him out of Hull was not an actual making War upon the King when he was as yet unâ—armed and had given out no Commissions to raise Men or Arms. Fourthly when the War was begun whether the King did not in all his Messages to and Treaties with the Parliament propose and seem to desire Peace upon equal and reasonable terms Fifthly Whether the two Houses did not instead of complying with those reasonable Proposals still insist upon higher Terms as their Victories and Successes over the King increased Sixthly when the King was deliver'd up by the Scots whether the Parliament and Army did not keep him as good as a close Prisoner and vote no more Addresses to be made to him meerly because he refused to pass whatever Bills they brought to him Seventhly When at last he was forced by necessity to grant them at the Isle of Wight almost whatever they demanded whether he was not hurried away from thence by Cromwell's Army and for the major part of the House of Commons who had Voted the King's Concessions satisfactory excluded the House by force till the far less Party had reversed all that the rest had done and then Voted the King should he called to an account for making War upon the Parliament and for Treason against the Kingdom Eighthly Whether in pursuance of this they did not appoint Iudges to Trie the King who upon his refusal to own their Authority Condemned him to death and cut off his head before the Gates of his own Palace Ninthly Whether this fag end of a Parliament did not alter the whole frame of the Government both in Church and State destroying both Monarchy and Episcopacy and Voting the House of Peers useless and dangerous and setting up a Democratical Commonwealth or rather an Oligarcy in their stead consisting of about fifty or sixty Men wholly governed and awed by Cromwell and the Officers of the Army Now let any Man but impartially consider all these Transactions with the late Revolution and read what hath been said in the three last Dialogues and then let him tell meingenuously whether he thinks this Revolution hath been begun upon the like grounds and carried on by the same violent Courses or has ended with the same direful effects as the late Civil War and Murther of King Charles the First I have no more to propose on this Subject but only to wish that these Discourses written with a real design for the publick good and peace of my Countrey may be read with the like affection with which they were written and may really promote that end for which they were designed but if not that they may at least serve as an Impartial History to Posterity of those Principles and Opinions on which this late great Revolution hath been brought about in England and also those on which it hath been so violently opposed by the dissenting Party THE Thirteenth Dialogue BETWEEN Mr. MEANWELL a Civilian AND Mr. FREEMAN a Gentleman F. SIR I hope I do not interrupt you by coming too soon for the truth is since I intend that this shall be the last Dispute I shall ever have with you upon this Subject I was very desirous to have it dispatched as soon as I could that when I have once discharged the duty of an old Friend and Acquaintance my mind may be at rest which side soever you take M. Dear Sir I thank you and though I intended to go abroad this Evening upon an Appointment yet I will not put it off that I may enjoy your better Conversation therefore pray begin where you left off and prove to me that I may lawfully take this new Oath of Allegiance to King William and Queen Mary F. I cannot see any reason why you may not safely do it since our best Common Lawyers are of this Opinion for my Lord Coke in his Third institutes in his Notes upon the Statute of Treason the 25 th of Edward the III d gives it for Law that this Act is to be understood of a King in possession of the Crown and Kingdom for if there be a King Regnant in possession although he be Rex de Facto non de Iure yet is he Seignior Le Roy within the purview of that Statute and the other that hath Right and is out of possession is not within this Act c. And if it be Treason to Levy War against him or to Conspire his Death as long as he continues King it can only be so because the Subjects Allegiance is then due to him for that all Men have either taken the Oath of Allegiance or else are supposed to have done it M. I must beg your pardon if I cannot come over to your Opinion neither in point of Law or Reason for as long as I am perswaded in my Conscience that King Iames is King de Iure so long must the obligation of my former Oath last and I suppose that you will grant that it is as impossible to owe Allegiance to two Kings at once as it is to serve two Masters and therefore you must pardon me if I suppose that my Lord Coke depending too much upon the commonly received sence of the Statute of the Eleventh of Henry the VII th which he quotes in the Margin may be
mistaken in this Great Point and may have also given occasion to divers others of his profession to fall into the same Errour F. I doubt not but my Lord Coke and others of his profession who maintain the same Opinion may very well be defended as well from that Statute as other Authorities but to pass by that at present I shall first discourse with you upon this point of the lawfulness of taking this Oath to their present Majesties King William and Queen Mary and therefore you misunderstand me if you believe that I think this Oath doth require from you the performance of all those duties of Allegiance and Subjection which I my self am oblig'd to who am fully satisfied of their Title and therefore must venture my Life and Fortune in their quarrel to the utmost of my power against all Persons whatsoever but all that I think can be required of you is that whereas King William and Queen Mary are actually in possession of the Regal Power so long as they continue thus possessed of it you may I think Swear that you will be so far true and faithful to them as not to enterprize any thing against them but that you will pay them that obedience and submission which may be lawfully paid to an actual Sovereign not engaging hereby to uphold them in the possession of the Throne against King Iames and without debarring your self from exerting that Allegiance you have sworn to him upon any emergent safe opportunity for the recovery of his Right M. I must beg your pardon if I cannot assent to take this Oath in this low and qualified sence that you would now put upon it since besides the signification of the words themselves I am very well satisfied that the imposers of this Oath do intend something more than a bare negative obedience to the present Power since it is the only Oath which is required from those who take Imployments either Civil or Military and from whom certainly not only a passive Obedience or Submission but also an active obedience and assistance is required in defending the Crown and Dignity of the present King and Queen de facto with their Lives and Fortunes against all Persons whatsoever or else how could the present Government ever trust them and all this cannot be sworn to without a breach of that Oath they had formerly taken to King Iames and therefore if I should take it in this sense as the Oath itself seems to imploy I should be perjur'd besides by these words of being true and faithfull I should look upon my self as oblig'd to reveal all Plots and Conspiracies which I may any ways happen to know of against King William and Queen Mary which I think would be derogatory to my Allegiance to his Majesty since I should thereby discover and accuse such of his good Subjects as endeavour'd to restore him and should thereby hinder him as much as in me lay from being restor'd again to the Throne But if we consider the word Allegiance it is yet more strict and if I should Perform it to King William and Queen Mary according to the true intent and legal sence of that word I think it could no ways consist with that Oath of Allegiance I have already taken since Allegiance is thus explained in the next following words of the Oath I have already taken and him and them viz. the King and his Heirs I will defend to the utmost of my power against all Conspiracies and Attempts whatsoever that shall be made against his or their Persons Crown and Dignities Now what kind of assistance is here meant by the word defend may be understood from all the Writers of our feudal Laws who expound the jus defensorium by telling us that the word protegere implies a necessity of defending by Arms as due from the Supream Lord or Sovereign and further that Subjects are in the same sence reciprocally bound to defend the Honour and Dignity of their Sovereign and these words Allegiance and the defence that follows it may be likewise understood from our feudal Laws whereby the Vassals were bound by their Oath of Allegiance as also by vertue of the tenure of their Lands to a military defence of their Supream Lord the King from whom all the Lands in England are held and this is according to Glanvil and all our old Lawyers and though I grant that military tenures are all now taken away by a late Statute yet am I still obliged to the like defence of the King and his heirs not only from the words of this Oath but from the municipal Laws of this Kingdom also which oblige all the Subjects that are capable to take up Arms for the King when need shall require Which my be thus further proved first from the Antient Laws of Edward the Confessor and William the Conquerour by both which all the People or Freemen of the Kingdom were to affirm upon their Faith and Oath within the whole Kingdom and without that they will be faithful to to their Sovereign Lord King William and every where preserve his Lands and Honours with all fidelity and with him will defend them against all his Enemies To this succeeded that which the Lord Coke calls legal Ligeance or the Common-Law-Oath of Allegiance which he cites out of Britton who wrote under Edward I. which all the Subjects were oblig'd to take at twelve years of age at the Sheriffs-Court and at the Leete and without the taking of which they had no warrant to abide in the Kingdom and the form of it was this effect You shall Swear that from this day forward you shall be true and faithful to our Sovereign Lord the King and his Heirs and truth and faith shall bear of life and member and terrene honour and you shall neither know nor hear of any ill or dammage which you shall not defend that is oppose to the utmost of your power And my Lord Coke also here informs us that five things were observed by all the Judges from this Oath in the debate of Calvin's Case First that for the time of its obligation it is indefinite and without limit Secondly two excellent qualities were required that is to be true and faithful Thirdly to whom to our Sovereign Lord the King and his Heirs Fourthly in what manner and saith and troth shall bear of life and member that is untill the letting out the last drop of our dearest heart blood Fifthly where and in what place in all places whatsoever for you shall neither know nor hear of any ill which you shall not defend such is the Ligeance which the Law has prescribed in that antient Oath which is still in force it is neither circumscribed by time nor place it is unconditionate and unreserved it is not a lazy passive Allegiance requiring nothing but pure submission but an active and vigorous Loyalty exacting all that is in the sphere of moral possibility and engaging us to