ordinationes totius Regni Angliae fuit mensura Domini Regis composita But farther to convince you that in the Opinion of the Lord Chancellour and those Learned Judges who framed the Writs that were issued out upon any of these Antient Statutes you will find that they who lived in those very times believed that those Statutes were made not by the K. alone but by him and the Common Council of the Kingdom which Writs as you may see in the Register of Writs run thus Rex Vicecom c. Salut Si A. fecerit c. tunc summonias c. B. quod sit coram Iusticiarijs c. Ostensuris quare cum de Communi Concilio Regni Nostri Angliae provisum sit c. as you may see in the Writs Granted upon the Statutes of Magna Charta Marlbridg Merton Glocester c. which have all of them this or the like Recitals cum de Statuto or juxia formam Statuti de Communi Concilio Regni nostri Ang. inde provisi The like Instance I could give you upon the Statute of Marlbridge and divers other Old Statutes in which the King by the Statute it self seems only to have Enacted it and yet you may see that our Sages of the Law were very well Convinced that those Statutes were made not by the King alone but by the whole Common Council of England So that there is no avoiding the Conclusion that the Great Council or Parliament had then a Great Share in the Legislative Power unless you can suppose the King alone to have bin the whole Common-Council of the Kingdom mentioned in these Writs But as for the rest of your Instances of Edw. 2d and Edw. 3ds times I think I can shew you that there is no General Rule to be drawn from some few Examples For though it is very true that the first of Edw. 2d begins thus Our Lord the King hath granted c. Yet it is plain by the Statute it self that it was made in and by Parliament The like I may say of the rest of the Statutes of this King's Reign though they do not all agree in Form as you may see by the Statute of Sheriffs 9th Edw. 2d Our Lord the King by the Assent of the Prelates Earls Barons and other Great Estates hath Ordained and Established And though you would fain draw some mighty Consequence from those Phrases in the Statutes of Edw. 3d. and many of his Successors by the Assent of the Lords and at the Request of the Commons as if the Consent of the latter were not as necessary as the former Yet indeed it is a meer difference in Form and proceeds only from hence that that Estate which found it self grieved always Petitioned the King for Redress and which amounted to as much as a Consent For you shall always find that the Petitioning Part still refers to that Body which was then oppressed without giving any other Assent For certainly their Requesting to have an Act made doth necessarily express their Consent And to prove what I have now said by Examples pray see the 8th of Hen. 6. c. 1. Where it is Recited in the Preamble that our Soveraign Lord the King Willing Graciously to provide for the Security and Quiet of the said Prelates and Clergy at the Supplication of the said Prelates c. and of the Assent of the Great Men and Commons aforesaid hath Ordained and Establishs't where you may see that the Assent of the Prelates is not here at all mentioned because it was needless as being made at their Request And if Praying and Requesting should destroy the Legislative Power I doubt whether Edw. 3d. did not give away his when in his 14th Year in a Statute concerning the Subsidy of Wools The Preamble runs thus nevertheless the King prayeth the Earls Barons and all the Commonalty for the Great Business which he hath in Hand c. that they would grant him some Aid upon Wools Leather c. Where upon Deliberation being bad the said Prelates Barons and Commons of the Kingdom have Granted him 40 Shillings to be taken on every Sack of Wooll But to return to the Matter to let you see that not only the Commons but also the Lords have bin oftentimes Petitioners as well as the Commons Pray see these Authorities The 1 is the Statute of Provisors 27 Edw. 3d. runs thus Our Soveraign Lord the King with the Assent and Prayers of the Great Men and the Commons of the Realm of England hath ordained c. And in the 4th of Ed. 4th i. e. It is Recited thus The King by the Assent Advice Request and Authority of his Lords Spiritual Temporal and Commons c. hath Ordain'd and Establisht in the Preamble of the Statute of 1. Edw. 6. c. 4. it is thus Wherefore the King our Soveraign Lord minding and entirely desiring at the Humble Petition and Suit of the Lords and Commons in this present Parliament Assembled doth Declare Ordain and Enact by the Assent of the Lords Spiritual and Temporal and the Commons in this present Parliament Assembled and by the Authority of the same And that the Assent of the Commons was always necessary to the making of Laws not as bare Petitioners but as Assenters too as well as the Lords appears by this Protestation or Declaration of the Commons to Edw. 3d. which is still to be found in the Parliament Rolls of 51. of that King which I shall read to you in English out of the Law-French which perhaps you are not used to Also the said Commons do Petition our Lord the King that no Statute or Ordinance may be made or Granted at the Petition of the Clergy unless it be by the Assent of the Commons Neither that the said Commons should be obliged by any Constitution which they may make for their Advantage without the Assent os the said Commons For they will not be obliged to any of your viz. the Kings Statutes or Ordinances made without their Assent M. I do not deny but that the Assent of the Commons as well as Lords hath bin allowed as necessary for a long time But whether the Consent of either at first was so is a great doubt since we find the first Ancient Statutes as I have already observed to have bin made wholy by the King alone And I think the most Ancient Laws are the best Interpreters of the Original Legislative Power And thence it appears that many Provisions Ordinances and Proclamations made heretofore out of Parliament have bin always acknowledged for Laws and Statutes We have among the Printed Statutes to this purpose one called the Statute of Ireland Dated at Westminster the 9th of February 14 Hen. 3d. Which is nothing but a Letter of the King to Gerard Fitz Maurice Justiciar of Ireland The Explanations of the Statute of Gloucester made by the King and his Iustices only were received always for Statutes and are still printed with them Also the Statute made
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
of this I shall proceed with the earliest Instances of this kind after the Conquest viz. in the Time of King Richard the First during whose absence in the holy Land he had committed the Government of his Kingdom to William Bishop of Ely who abused his Power by an Arbitrary and Insolent Carriage affronting and oppressing Iohn Earl of Morton the King 's own Brother and Geoffry Arch-Bishop of York the King 's base Brother whereupon they rose up against him and having the Bishops the Earls and Barons of their side appointed the said Bishop a day to answer to his Crimes in the King's Court or great Council of the Bishops Lords and Tenants in Capite then called Curia Regis where when he refused to appear they all with one consent came to London and fought with the Followers and Adherents of the said Chancellour by the way when they came to Town Earl Iohn with the Arch-Bishops of York and Rouen with all the Earls and Barons together with the Citizens of London met in St. Paul's Church-Yard and there it was proposed that the said Chancellour should for his Evil Government he deposed and banisht the Kingdom and so he immediately was by the general Consent of the Common Council of the Kingdom so that you see the Nobility Clergy and People had then no notion of an Irresistible Power in the King and those put in Commission by him when they found their Power to grow Tyrannical and Insupportable M. But if I forget not you omit one material Circumstance in this Affâ—ir which seems to make against you which is that Arch-Bishop of Rouen and William the Earl Mareschal did at that time produce the King's Letters signed with his 〈◊〉 wherein he had appointed that they two should be associated in the Government with the Bishop of Ely and that he should do nothing without their privity and consents and of those associated with him in the business of the Kingdom and that if he offered to do otherwise he should be deposed So that it seems what they now acted was not so muchin opposition to the King's Commission as to the Bishops who had refused to obey his Commands F. I confess it was as you set forth yet this makes nothing against my Opinion since it is apparent that Arms were taken and this Resistance made by the major part of the Bishops Earls and Barons together with the Londoners before ever it was known that such Letters were written by the King And so it seems they would have done much the same thing if there had been no such Letters sent by the King at all You may also rememâ—er that all these proceedings also were approved of and confirmed by the King himself But that I may proceed in my History of Non-Resistance I come to the Reign of King Iohn his Brother who when he had refused the Arch-Bishop of Canterbury and all the Bishops Earls and Barons of the Kingdom to confirm the great Charter of King Henry the First they together with the rest of the great Men and People of the Kingdom of all degrees and conditions took up Arms and made a vast Army resolving never to lay them down till he had new granted and confirmed the Charters of Liberties and Forrests till at last the King finding himself almost quite forsaken so that he had scarce five Knights left about him he was at last forced to meet the said Bishops Earls Barons and People at Runne-Mead and there to grant them that great Charter which has been the Subject of so much discourse between us so that you see here that the Church of England in those Times if the Bishops and Clergy are the Representatives of this Church had then no notion of this Doctrine of Passiâ—e Obedienâ—e to the King 's Absolute Will and Commands M. I cannot deny the matter of fact to be as you say but yet you may remember that the same Author tells us that the Pope thought the King hardly dealt withal in this matter so that he gave Audience to the King's Ambassadors concerning the Rebellions and Injuries which the Barons of England had committed against their King and that upon a solemn hearing of the whole business and after a consultation with his Cardinals he did as Supreme Lord of Engâ—and after King Iohn's Resignation of his Crown to him by his Bull then published make void the said great Charters of Liberties and Forrests and condemn all the Barons proceedings as against their Duty and Allegiance to the King their Soveraign Lord so that it seems this was not approved of any where but by the Actors the Pope thereupon Excommunicating the Barons and Suspending the Arch-Bishop of Caâ—terbury for joyning with them F. I believe you will make nothing of this Objection for it appears from the same Author that the Pope had before this Excommunicated the King and as far as lay in his power depriv'd him of his Kingdom and absolved all his Subjects of their Allegiance so that it is plaiâ— it was not out of any true Principle or hatred of Rebellion and Resistance in Subjects that the Pope had thus acted but purely to gratifie the King at this juncture of time and to defend him in his Tyranny and breach of his own Charters because he was then become his Vassal and so he cared not how much he oppressed his Subjects because he was thereby the more able to pay him the Tribute before promised and he could also expect the more securely to extort Money from the whole Kingdom But that this Bull of the Popes was contrary to the King 's own Express Act and Agreement appears plainly by that Clause which is still to be found in a Charter under the Seal of this King and which seems to have been the Heads of the great Charter according to which it was drawn into the Form we now find it in Mat. Paris in which it is expresly provided and granted by the said King that in case he should go about to break or infringe any Clause in the said Charter and shall not amend it within the space of forty days that then Iâ—li Barones cum Communia totius Terrae distringent gravabunt nos modis omnibus quibus pouerint aut scil per captionem Castrorum Terrarum possessionum aliis modis quibus potuerint donec fuerit emendatum secundum arbitrium eorum salva Persona nostra Reginâ—e nostra Liberorum nostrorum cum â—uerit emendatum intendent nobis sient prius fecerunt So that you see here in the Judgment even of the King himself they might freely resist and take up Arms against him till he made good every Article of these Charters if violated and were not to return to their Obedience till it was amended and the like Clause almost word for word is also to be found in the conclusion of the great Charters published in Mat. Paris M. I grant the Clause is there as
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
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
in Prison and the first Act this King did after his Restoration was to call a Parliament which revoked all the former Statutes and Declarations of the 39 th of Henry the 6 th and 1 st of Edward the 4 th and then entail'd the Crown anew upon the issue of King Henry the remainder to the Duke of Clarence who then took part with King Henry against his own Brother 'T is true indeed that King Edward the 4 th returning again not long after into England and regaining the Crown from King Henry the 6 th the said King was not only murther'd together with his Son Prince Henry but in the next Parliament was also attainted of Treason with all others of his Party and yet lot let you see that this very Act is now null and void against King Henry the 6 th and his Son Prince Edward see an Act of Parliament of the first of Henry the 7 th not Printed which because it is not commonly known I will read it almost verbatim The King our Sovereign remembring how against all rightwiseness honour nature and duty an inordinate seditious and slaunderous Act was made against the most famous Prince of blessed memory King Henry the sixth his Uncle at the Parliament holden at Westminstey the fourth day of November the first year of the Reign of Edward the 4 th Late King of England whereby his said Uncle contrary to the due Allegiance and all due order was attainted of High Treason wherefore our same Sovereign Lord by the Advice and Assent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled and by Authorities of the same ordaineth enacteth and establisheth that the same Act and all Acts of Attainder Forfailure or Disablement made or had in the said Parliament or else in any other Parliament of the said Late King Edward against the said most blessed Prince King Henry or against the right famous Princess Margaret Late Queen of England his Wife or the right Victorious Prince Edward Late Prince of Wales Son of the same blessed Prince K. Henry and Margaret c. are void annulled and repealed and of no force nor effect so that by vertue of this Act the Title of the House of Lancaster was again declared to be good But to conclude I cannot but take notice of one mistake you have fallen into by saying that all proceedings against King Richard the 2 d. are repeal'd by that Parliament of the first of Edward the 4 th which is not so for though I grant that the dealings of Henry Earl of Darby as he is there call'd in imprisoning the said King and Usurping the Royal Power is there expresly condemned and his Murthering of him said to be against Gods Law and his own Oath of Allegiance as certainly it was yet the Deposition of the said King Richard by Parliament is no ways repeal'd by this Act for then all the Records thereof would have been quite Cancell'd and taken off the Rolls whereas they still remain to be seen at this day and you see by this Act I now recited That the attainder of King Henry the 6 th is declar'd contrary to due Allegiance and all due order and all forfeitures and disablements of the said King and Prince are quite annull'd and made void M. I must confess you have so stagger'd me with this Act that I know not what to say to it but that it was made in the first Parliament of King Henry the 7 th and before he had married the Princess Elizabeth and consequently had no good Title to the Crown himself therefore till then I look upon him as an Usurper but I shall now proceed to shâ—w you that that very King nay even Richard the 3 d. himself chiefly relied not upon any Parliamentary Election but upon their own pretended Titles of being right Heirs by Blood for after the death of Edward the 4 th his Son Edward the 5 th was proclaim'd King and might have quietly enjoy'd it if his ambitious Uncle Richard Duke of Gloucester had not plotted to defeat him of it and knowing very well that he had no way to bring it about but by inciting a corrupt party of the Bishops and Lords together with the Lord Mayor of London and some of his Party in the City to set forth by way of Petition to the Duke then Protector of the King and Realm That all the Children of K. Edward the 4 th were Bastards supposing that King to have been Contracted with a certain Woman called Eleanor Boteler before he Married Queen Elizabeth moreover that the Blood of his Elder Brother George Duke of Clarence deceased was attainted so that none of the Lineal Blood of Richard Duke of York could be found uncorrupted but in himself and there was at the conclusion of that Roll an Address to him from the Lords and Commons of the Kingdom that he would take the Government upon himself this fine artifice assisted on one side with his feigned excuses which induced the less thinking sort of People to believe he desir'd not the Royalty and prompted on the other side with the fear of his power procured his accession to the Throne so that at last he and his Wife Anne were solemnly Crowned King and Queen at Westminster and by these steps did that inhumane Prince who had no Title to the Crown either by descent or by merit ascend the English Throne see you that not by Election but by pretence of blood and by bastardising and attainting his Nephews he set himself up for the only true Heir of the Crown and therefore in the Parliament he call'd immediately after his Coronation when they had declar'd almost the very same things as were before in the said Petition they proceed further To declare that the Right Title and Estate which King Richard the III d had to and in the Crown and Royal Dignity of the Realm of England with all things thereunto within the said Realm and without it annexed and appertaining was just and lawfull as grounded upon the Laws of God and Nature and also upon the antient Laws and laudable Customs of this said Realm as also taken and reputed by all such Persons as were learned in the above-said Laws and Customs and proceeds farther thus therefore at the request and by the assent of the three Estates of this Realm that is to say the Lords Spiritual and Temporal and Commons of this Land Assembled in this present Parliament and by the Authority of the same it is pronounced decreed and declared that our said Soveraign Lord the King was and is the very undoubted King of this Realm of England with all things thereunto belonging within the said Realm and without it united annexed and appertaining as well by right of Consanguinity and Inheritance as by lawfull Election Consecration and Coronation So that you see tho' they put in his Election as also his Coronation as means of obtaining the
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
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
they had brought with them out of the Land of Egypt and had sold the People or their Children for slaves to the Neighbouring Nations to inrich himself and his Family do you believe that the Children of Israel had been Obliged to have Obeyed such a Leader and not have resisted him and his party if there had been occasion So likewise if Ioshua instead of Leading Gods People into the Holy Land had taken upon him notwithstanding Gods Commands to have carried them again into Egypt can you think they had been bound to Obey him and might not Lawfully have resisted him if he had gone about by the assistance of his Accomplices to force them to it For I doubt not but if these Substitutes had acted contrary to that Commission God had given them they were no longer to be look'd upon as Gods Vicegerents no more than the now Lieutenant of Ireland the Lord Tyrconnel ought to be Obeyed and not resisted if he should go about by Vertue of that Commission which the King hath conferred upon him and by the help of the Rebellious Irish in that Kingdom to murder all the Protestants and set up for himself So likewise all this strict Obedience and submission that was to be paid to the Sentence of the High-Priest or Iudge was only in Relation to God himself whose Sentence it was and who always Revealed his Will either to the Iudge by particular Inspiration or to the High-Priest by the Ephod or Urim and Thummim And therefore we read in Iudges that Deborah tho' a Woman yet being a Prophetess inspir'd by God judged Israel Now suppose that this Iudge or High-Priest neglecting like Balaam the Divine Inspiration and the Dictates of that Sacred Oracle had instead of a Righteous Iudgment given a Sentence in a Cause that had come before them whereby Idolatry or breach of some great Point of the Law of Moses had been established do you think that God ever intended that this Sentence should have been Obeyed under Pain of Death And therefore you may find in the 2d Book of Maccabees that when Iason and Menelaus had by Bribery obtained the High-Priesthood tho' it was then the Chief Authority under the Kings of Syria both in Ecclesiastical and Civil matters yet when they went about to undermine the Iewish Religion and seduce the People to Idolatry they are not at all look'd upon as High-Priests but are there called Ungodly Wretches doing nothing worthy of the High-Priesthood but having the fury of a Cruel Tyrant and of a Savage Beast and were so far from being at all Obeyed by the Iews that Iason Menelaus and Alcimus who were successively High-Priests in the room of Onias were as far as the People were able opposed by them till at last Iudas Maccabeus taking Arms against Alcimus the High-Priest restored by force the true Worship of God So that you see that the Obedience was not pay'd to the Person of the High-Priests only as such by vertue of this Precept in Deuteronomy but only as far as they observed the Law of Moses and gave sentence or Judgment in all matters according to it And therefore it is no good Argument of yours because the People were bound to obey their sentence in doubtful cases therefore they had an absolute irresistible Power to give what Iudgments they pleased and that the People were obliged to observe them under pain of Death and being Guilty of Rebellion For that had been to have given the High-Priests and Iudges a Power to have altered the true Worship of God when ever they pleased and to have introduced Idolatry in the Room of it So that I think none of these places will prove any more but that God and his Lieutenants were to be Obeyed and that it was Rebellion to resist them under the Iewish Government as long as they did not force the People to Idolatry which I do not at all deny M. Tho you labour to wave these examples and Precepts which I have now cited and will not take them for convincing yet let me tell you your exceptions against them only tend to prove that Idolatrous Kings might be resisted under the Iewish Law which is directly contrary to the Sacred History as I shall prove very clearly to you by these following Testimonies I shall make use of yet I think it is much more plain that when the Iews would have a King their Kings were to be invested with a Supream and irresistible Power for when they desired a King of Samuel they did not desire a meer nominal and titular King but a King to Iudg them and go in and out before them and fight their Battles that is a King who had the Supream and Soveraign Authority a King who should have all that Power of Government excepting the peculiar Acts of the Priestly Office which either their High-Priest or their Iudge had before And therefore when Samuel tells them what shall be the manner of their King tho what he says doth necessarily suppose the translation of the Soveraign and Irresistible Power to the Person of their King yet it doth not suppose that their King had any new Power given him more than what was â—â—â—â—cised formerly by the Priest and Iudges He doth not deter them frâ—â— chusing a King because a King should have greater Power and â—e more uncontroulable and Irresistible than their other Rulers were for Samuel himself had before as Soveraign and Irresistible a Power as any King being the Supream Iudge of Israel whose sentence no Man could disobey or contradict but he incurred the penalty of Death according to the Mosaâ—cal Law But the reason why he distuades them from chusing a King was because the external Pomp and Magnificence of Kings was like to be very Chargeable and oppressive to them He 〈◊〉 your Sons and 〈◊〉 them for himself for his Chariots and to be his House Men and some shall ran before his Chariots And he will appoint him Captains over Thousands and Captains over Fifties and will set them to ear his Ground and to reap his Harvest And thus in several Particulars he shews them what burdens and exactions they will bring upon themselves by setting up a King which they were then free from and if any Prince should be excessive in such â—â—â—actions yet they had no way to help themselves they must not resist nor rebel against him nor expect that whatever inconvenience they might find in Kingly Government God would relieve and deliver them from it when once they had chosen a King Ye shall cry out in that day because of your King that you have chosen you and the Lord will not hear you in that day That is God will not alter the Government for you again how much soever you may complain of it This I say is a plain Proof that their Kings were to be invested with that Soveraign Power which must not be resisted tho' they oppress their Subjects
and irresistible the Persons and Authority of Kings were under the Iewish Government and there cannot be a plainer Example of this than in the Case of David He was himself anointed to be King after Sauls death but in the mean time he was grievously persecuted by Saul who pursued him from one place to another with a design to take away his Life How now doth David behave himself in this Extremity What Course doth he take to secure himself from Saul Why he takes the only Course that is left to a Subject he flies for it and hides himself from Saul in the Mountains and Caves of the Wilderness and when he found he was discovered in one place he removes to another He kept Spies upon Saul to observe his Motions not that he might meet him to give him Batâ—le or to take him at an Advantage but that he might keep out of his way and not fall unawares into his hands Well but this was no thanks to David you 'll say because he could not do otherwise He was too weak for Saul and not able to stand against him and therefore had no other Remedy but flight But yet we must consider that David was a Man of War he slew Goliah and fought the Battles of Israel with great success he was an admired and beloved Captain which made Saul so Jealous of him the Eyes of Israel were upon him for their next King and how easily might he have raised a Potent and formidable Rebellion against Saul But he was so far from this that he invites no Man to his Assistance and when some came uninvited he made no use of them in an Offensive or Defensive War against Saul Nay when God delivered Saul twice into David's hands that he could as easily have killed him as have Cut off the Skirts of his Garment at Engedi or as have taken That Spear away which stuck on the Ground as his Bolster as he did in the Hill of Hachilâ—h yet he would neither touch Saul himself nor suffer any of the People that were with him to do it tho' they were very importunate with him to let them kill Saul nay tho' they urged him with an Argument from Providence that it was a plain Evidence that it was the Will of God that he should kill him Because God had now delivered his Enemy into his Hands according to the Promise he had made to David we know what use some Men have made of this Argument of Providence to justifie all the Villanies they had a Mind to act But David it seems did not think that an opportunity of doing evil gave him a License and Authority to do it Opportunity we say makes a Thief and it makes a Rebel and a Murderer too No man can do any wickedness which he has no opportunity of doing and if the Providence of God which puts such opportunities into Mens hands might justifie the wickedness they commit no Man can be chargeable with any Guilt whatever he does and certainly Opportunity will as soon justifie any other Sin as Rebellion and the Murder of Princes We are to learn our Duty from the Law of God not from his Providence At least this must be a settled Principle that the Providence of God will never justifie any Action which his Law forbids And therefore notwithstanding this Opportunity which God has put into his hands to destroy his Enemy and to take the Crown for his Reward David considers his Duty remembers that tho' Saul were his Enemy and that very unjustly yet he was still the Lords anointed The Lord forbid says he That I should do this unto my Master the Lords anointed to stretch forth any Hand against him seeing he is the Lords anointed Nay he was so far from taking away his Life that his Heart smote him for cutting off the Skirt of his Garment And we ought to observe the Reason David gives why he durst not hurt Saul because he was the Lords anointed which is the very Reason the Apostle gives in the Romans because the Powers that are are ordained of God and he that resisteth the Power resisteth the Ordinance of God For to be anointed of God signifies no more than that he was made King or ordained by God For this external Unction was only a Visible Sign of Gods Designation of them to such an Office And it is certain they were as much Gods Anointed without this Visible Unction as with it Cyrus is called Gods Anointed tho' he never was Anointed by any Prophet but only designed for his Kingdom by Prophecy And we never read in Scripture that any Kings had this external Vnction who succeeded in the Kingdom by Right of Inheritance unless the Title and succession were doubtful and yet they were the Lords Anointed too that is were plac'd in the Throne by him So that this is an Eternal Reason against râ—sistiâ—g Soveraign Princes that they are Set up by God and invested with his Authority and therefore their Persons and their Authority are Sacred F. I am so far from differing with you in what you have said concerning this Example of David towards Saul tho' his Enemy that I think it ought to be a Pattern to every single Private Man tho never so great in a Kingdom or Common-Wealth how to comport himself towards the Supream Powers if he himself alone be unjustly persecuted by them either in his Life or Estate that is to fly if he can tho' with the loss of all his Estate rather than resist tho' there are some Circumstances in this Story of David that make it evident that he did not think a Defensive War against those Cut-throats that Saul might send to Kill him unlawful and so much Dr. Fearn himself in his first Discourse call'd resolving of Conscience c. against Resistance of the Higher Powers acknowledges For David when he fled from Saul made himself Captain of four hundred Men which number soon encreased to six hundred And still every day grew more by Additions Now why should he entertain those Men but to defend himself against the Forces of Saul that is to make a Defensive War when ever he was assaulted by him M. I think I can give you a sufficient answer to this and therefore you must observe that David invited none of these Men in to him but they came as Volunteers after a Beloved Captain and General which shews how formidable he could easily have made himself when such Numbers resorted to him of their own Accord When he had them he never used them for any Hostile Acts against Saul or any of his Forces he never stood his Ground when he heard Saul was coming but always fled and his Men with him Men who never were us'd to fly and were very ready to have served him against Saul himself would he have permitted them And I suppose you will not call it a defensive War to fly before an Enemy and to hide
been forc'd to fly into Scotland and 〈◊〉 to have defended himself with 1000 or 1500 of his Tenants and followers tho' without Fighting the Kings Forces that should have been seâ—â— against him but flying into the High-lands and had there maintain'd himself as David did by Free Quarters or Conâ—ribuâ—ion of the Inhabitants till his Father dyed would not this have been cryed out upon in all the Pulpits in England as a most Horrid Rebellion of a Son and a Subject against his King and Father tho' he had never done any Act of Hostility against his Forces but always 〈◊〉 from them And yet he being Heir Apparent to the Crown might have pleaded as well as David that he kept these Soldiers about him only to keep himself from being Murdered by those Officious Persons whom his Father or Uncle might send to apprehend him and to have such a Retinue of Valiant Men about him as might render his advancement to the Throne more easie when ever his Father should dye I shall not urge as a farther proof of the Lawfulness of Davids Resistance of Sauls Forces his Intention to have slay'd in Keilah and to have fortified it against Saul had not he been informed that the Men of that City would have saved themselves by delivering him up to Saul Since I confess it doth not certainly appear by the Text whether David would have stayed any longer there than till Saul had approach'd near to that place whether the Keilites would have delivered him up or not much less shall I urge that other example which some Men make use of of Davids going to the last Battle against Saul with Achish King of the Philistines For tho' it be plain he march'd with them as far as Apbek in the Tribe of Issachar yet I confess it is not certain whether he really intended to have assisted them or not in this War against his Country since he might either have gone over to Saul at the beginning of the Battle or else have stood neuter tho' neither of them would have been very Honourable or Consonant with Davids Character therefore I shall say nothing of this since the Lords of the Philistines for fear he should prove aâ— adversary to them in the Battle made him retire again into the Land of the Philistines tho' he seemed to be very much troubled to be so distrusted that he might not fight against the Enemies of that King who had so good an Opinion of him And therefore I pray will you proceed to those other Exâ—mples you have to produce out of the Old Testament M. Well since you are not fully satisfied with this Instance of David tho' I am glad you allow the Persons even of Tyrannical Princes to be Sacred therefore to proceed in the story Solomon who succeeded David in his Kingdom did all those things which God had expresly forbid the King to do He sent into Egypt for Horses He multiplied Wives and loved many strange Women together with the Daughter of Pharaoh VVomen of the Moabites Ammonites c. He Multiplied Silver and Gold For this God who is the only Iudge of Soveraign Princes was very angry with him and threatens to rend the Kingdom from him which was afterwards accomplish'd in the Days of Rehoboam but yet this did not give Authority to his Subjects to Rebel If to be under the Direction and Obligation of Laws makes a Limited Monarchy it is certain the Kingdom of Israel was so There were some things which the King was expresly forbid to do as you have already heard and the Law of Moses was to be the Rule of his Government the standing Law of his Kingdom And therefore he was Commanded when he came to the Throne to write a Copy of the Law with his own hand and to read in it all his Days that he might learn to fear the Lord his God and to keep all the Words of this Law and these Statutes to do them and yet being a Soveraign Prince if he broke these Laws God was his Iudge and Avenger but he was accountable to no earthly Tribunal nor do we find tho' there were so many wicked and Idolatrous Kings of Iudah who broke all the Laws of God given them by Moses that ever any of the Priests or Prophets stirred up the People to Rebel against them for it F. Neither of these Instances do reach the Case in hand For I grant that neither the Breach or non-observance of these Precepts enjoyned the Kings of Israel by God Nor yet their open Idolatry were a sufficient Cause for their taking up Arms or resisting their Kings in so doing since those were offences only against God and in which the People had nothing to do those being no part of that Tacit or implicit Compact of Protection and Preservation that goeth along with all Kingdoms and Supream Powers whatsoever And I have already excepted out of the Causes of Resistance or taking up Arms the Princes being of a different Religion from that of his Subject And tho' I must own that the Kings of Israel were under the direction or Obligation of the Law of Moses and so were limited Monarchs yet this limitation was not from the People but from God whose business it was to revenge the breach of it as often as they offended and if they broke those Laws God only was their Judge and Avenger as you your self very well observe who never failed severely to punish this breach of his Laws Nor yet were the People of the Iews always so nice and temperate as you make them For besides the example of Rehoboam which I have formerly made use of you will find in the 2d of Chronicles concerning Amaziah who when he turned away from following the Lord They viz. the People made a Conspiracy against him in Jerusalem and he fled to Lachish but they sent to Lachish after him and slew him there and made his Son Vzziah King in his stead nor do we read that any were punish'd for killing him as Amâ—ziab put to Death the Servants of his Father King Ioash for conspiring against him as it is related in the 10th Chap. of the 2d of Kings and you 'l find in the same Book that the City of Libna revolted which sure is the highest degree of Resistance from that wicked King Iehoram who had slain all his Brethren with the Sword and walked in the way of the Kings of Israel as did the house of Ahab and wrought that which was evil in the sight of the Lord c. And therefore it is said expresly in the Text that the City of Libna revolted from his hand because he had forsaken the God of his Fathers I bring not these Instances to Iustifie Rebellion but to let you see that it was sometimes practised amongst the Iews tho' you affirm to the contrary But much more lawful was the Resistance which Azariah and the 80 Priests that were with him
Laws were made by the Title of them which runs thus Haec sunt judicia quae Sapientes Exoniae Consilio Adelâ—â—â—i Regis instituerunt iterum apud Feuresham tertia vice apud Thundresfeldium ubi hoc definitum simul confirmatum est So also King Ethelred held at London a Great Council and made Laws Consilio Iussuque Regis Anglorum Aethelredi Procerumque suorum de tota Anglia c. Look also into the Title of King Ethelred's Laws in Bromptons Chronicle where you will read these words hoc est Concilium quod Ethelredus Rex Sapientes sui condixerunt ad Emendationem augmentum pacis omni populo apud Wodestocam in Mircena Landa id est in terra Mircenorum c. Where by Concilium must be understood Law or Decree To Instance in one more out of the same Author still from the Title to another Set of Laws made by the same King Hae sunt Leges quas Ethelredus Rex sapientes sui constituerunt apud Venetyngum ad Emendationem pacis felicitatis Incrementum See likewise in Monasticon Anglicanum the first Volum Anno Dom. 1024. where Canuâ—us Rex Angliae cum Consilio Decreto Archiepiscoporum Episcoporum Primatum Suorum expulit Clericos inhonesâ—e viventes ab Ecclesia Sancti Edmundi Monachos in illâ constituit And the same King Câ—â—te bestowed divers Lands and other Priviledges on the Monastery then called Briadricesworth afterwards St. Edmunds Bury cum consilio Decreto Archiepiscoporum Episcoporum Abbatum Comitum aliorumque omnium Fidelium The like we find in a Charter of King Edward the Confessor by which He granted divers Lands and Priviledges to the Abby of Westminster Cum Consilio Decreto Archiepiscoporum Episcoporum Comitum aliorumque Optimatum From all which it manifestly appears that under the English Saxon Kings the Legislative or Enacting Power was in the Council of the Sapientes or Wites Conjunctly with the King and that none of these Saxon Kings could pass any Laws or make any considerable Alteration in the State without not only the Advice but Consent of their Great Council which then consisted of their Bishops Great Lords principal Freeholders and the Representatives of Cities and Towns as I shall prove another time and was not left to the King ad libitum to call whom he pleased thereunto And as the word Decretum signifies Decree or Order So likewise may the word Consilium here signifie something more than bare advice viz. Agreement or Appointment which if you please to peruse any ordinary Dictionary you may presently satisfie your self in But before I Dismiss this Argument I cannot but Remark upon your instance of King Edmunds making Laws alone because he there speaks in the first Person plural whereas if you will but Consult the Proem to those Laws once again you will I doubt not be satisfied of the contrary for the words are that having aske advice of the Council or Assembly of Clergy and Laicks that is seemed good to them all as well as to the King and therefore we thus Ordain by which it appears that the last words wherein the Ordaining part Resides refer as well to the whole Assembly as to the King M The Government of our English Saxon Kings is I confess very dark and obscure for according to our Ancient Historians they seem to have bin very absolute though when we come to look in oâ— the Lâ—ws themselves I confess they seem rather to have bin limited Kings than abâ—oliâ—â—e Monarchs though whether that Limitation proceeded from the Original Constitution of the Government or their own free consent and Concessions is a very great question though I rather enâ—line to the former and shall give you my Reasons for it when we come to Discourse on that Subject but in the mean time I must tell you in Reply to what you have said that if we consider the time not long after the Conquest you will find the Supream Legislative Power to have bin then whâ—ly in the King as it is so still notwithstanding some Ambiguous expressions to the Contrary or else our Kings would not be what I think they really are Absolute Monarchs But to descend to times less obscure it is certain that when the Norman Conqueror first came in as he Won the Kingdom by the Sword so did he Govern it by his Sole Power His Sword was then the Scâ—pter and his Will the Law There was no need on his part of an Act of Parliament much less of calling all the Estates together to know of them after what Form and by what Laws they would be governed It might as well be said of him as in the flourishing and best times of the Roman Emperors Quod Principi placuit lâ—gis habet Vigorem that whatsoever the King Willed did pass for Law This King and some of his Successors being then 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and having a Despotical Power on the Lives and Fortunes of their Subjects which they disposed of for the benefit of their Friends and Followers Norman French and Flemings as to them seem'd best But as the Subjects found the Yoke to be too heavy and insupportable so they addressed themselves in their Petitions to the Kings their Soveraigns to have that Yoke made easier and their burden lighter especially in such particulars of which they were most sensible at the present time By this means they obtained first to have the Laws of Edward the Confessor and by the same that is to say by pouring out their Prayers and Desires unto them did they obtain most of the Laws and Statutes which are now remaining of the time of K. Henry the Third and K. Ed. I. From whom aâ— also from Hen. I. and K. Iohn we may derive all those Priviledges we now enjoy most of which as they were issued at the first either in form of Charters under the Great Seal or else as Proclamations of Grace and Favour So do they carry still this mark of their first procuring by these Expressions the King willeth the King commandeth the King ordaineth the King provideth the King grants c. And when the Kings were pleased to call their Estates together it was not out of an opinion that they could not part with their Power or dispense their Favours as they thought good or abate any thing of the Soverity of their former Government without the approbation and consent of their People but out of a just Fear least any one of the three Estates 〈◊〉 mean the Clergy Nobility and the Commons should insist on any thing which might be prejudicial to the other two The Commons being always on the Craving Part and Suffering as much perhaps from their immediate Lords as from their King might possibly have asked Something 's which were as much derogatory to the Lord under whom they held as of their Soveraign Liege the King the chief Lord of all In this respect
which will scarce be able to hold long together without falling into perpetual quarrels and disputes about the Encroachments upon each other's Power and Priviledges But it appears as well by the whole Tenor of our Laws as also by divers Express Statutes that the King is the Sole Supream or consequently the Sole Legislative Power The first of these I shall prove from the common Indictments of Treason Murder Felony c. Which run always Encounter la Corone la dignitie de Roy and the Process against such Offences are called the Pleas of the Crown because they are against the Crown and Dignity of the King So that it is not the Dignity and Authority of the Lords and Commons which is Violated but the Dignity and Authority of the King In the next place this Opinion is contrary to the express Declaration of divers of those very Parliaments which you pretend have Exercised a Share in the Legislative For you cannot deny that many of our Ancient as well as Modern Statutes were made and drawn up in the Form of a Petition from the Lords and Commons or both of them to the King And it is very strange that one Fellow in the Supream Power should so humbly Petition the other But 2. Though time hath altered the Form of Petitioning into Bills yet both Lords and Commons have bin often used to call the King Our Dread Soveraign Our Soveraign Lord Our Liege Lord and the like and to Stile themselves We your Majesty's most Humble and Faithful Subjects or most Dutiful and Obedient Subjects and in that Humble Stile to beseech him to Enact such and such things which sure they could have done alone had they bin Co-ordinate with him in Law-making Lastly if they were Co-partners with him in the Supream Power how came they to declare as they did in the Preamble to the Statute of the 25th Hen. 8. which you your self have quoted that the Realm of England is an Empire Governed by one Supream Head and King unto whom the Body Politick of the Nation Compacted of several Sorts and Degrees of People divided in Terms of Temporality and Spirituality owe and bear next unto God a Natural and Humble Obedience Now how came they here farther to declare this Supream Head of the Clergy and Laity to be furnished with Plenary Whole and Enâ—ire Power by the Goodness and Sufferance of Almighty God Certainly they can have no share in it if it be Plenary Wholy and Entirely in him or how came they in the 1st Statute of Queen Eliz. c. 7. being a Recognition of the Queens Sâ—premacy to acknowledge that all Power Temporal and Spiritual was Deducted from her as the Supream Head and that they were her most Faithful and Obedient Subjects and that they did in Parliament Represent the Three Estates of this Realm and that She was the only Supream Governour thereof Which was pursuant to a Statute to the same purpose in the 2d Ed. 6. c. 2. wherein it is declared That all Authority of Iurisdiction Spiritual and Temporal is divided and Deducted from the Kings Majesty as Supream Head of these Churches and Realms Not to mention the Oath of Supremacy it self That the King or Queen's Highness is the only Supream Governour of this Realm Which these Statutes would never have acknowledged had it not bin Consonant to our Ancient Common Law by which it is expresly declared in that Old Law-Book written as it is supposed by Bishop Breâ—ton in the very first Leaf whereof it is thus expressed in the Name of King Edw. 1st himself We Will that our Iurisdiction be above all other Iurisdictions which had been spoken in vain if all other Powers had not bin Derived from and so Subordinate to the Kings Besides I could prove this farther from History and matter of Fact F. I thank you Sir and I desire I may answer what you have now said before you pass to another Head for I doubt the time will not give us leave to Discourse much further on this Subject to Night In the first place therefore I must tell you that the main Foundation of your last Arguments is founded upon a Supposition which I altogether disown viz. Co-ordination or Division of the Soveraign Power between the King and the Two Houses For I have always supposed that the King continues still Supream and that as the Modus tenendi Parliamentum declares He is Principium Caput Finis Parliamenti that is he can call and Dissolve Parliaments when he pleases and likewise that the Executivâ— part of the Government rests solely in Him as also the Power of making War and Peace And even in the Legislative it self that the King hath more eminently though together with the Parliament a Supream Enacting Power without which it cannot be a Law This being considered you will find that here is no Division of the Legislative Power Since neither the King nor the Two Houses have it Solely and Compleatly in themselves but it is joyntly Executed by them all three as one Entire Politick Body or Person So that neither can they make any Law without him nor He Enact any without their Consent and he by giving his Consent last gives it the Force and Sanction of a Law and he is therein the Supream i. e. the Last or Vltimate Power in the true Sense of that word nay the only Supream Power unless you could suppose two Supreams that is two Highest Powers at once in the same Kingdom But that for all this the Two Houses are not Subject to the King in matters relating to Legislature may hence farther appear that the King cannot Command them to give him what Mony or to pass what Laws he pleases Since if he should go about to do so they might as I suppose you your self will grant Lawfully Disobey him which they could not do without Apparent Disloyalty and High Disobedience were they in this as they are in other indifferent things Subject to his Commands when Legally issued But to return you a more particular Answer to what you have said to prove the King to have the Sole Legislative Power As to what you pretended I have quoted out of Glanville if you please better to consider of it you will not find that he gives the King any more than an Enacting Power together with his Great Council For though he tells us quod Principi placet Legis habet vigorem yet mark what follows eas Scilicet quas super dubijs in consilio definiendis Procerum quidem consilio Principis antecedente Aâ—thoritate constaâ— esse promulgatas Where by the last consilio is meant some what more than meer Advice as I have already proved But as for Bracton it is true he agrees with Glanville in making the Kings Authority necessary to the Essence of a Law Yet he is more express than the other in making the Advice and Consent of the Great Council or Common-wealth also necessary to its being as
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 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
his Father and to be Exiled from the Realm of England and that therefore the King that now is and the Queen his Mother being in so great Jeopardy in a strange Countrey and seeing the destructions and disinherisons which were notoriously done in England upon holy Church the Prelates Earls Barons and the Commonalty of the same by the said Spencers Robert Baldock and Edmund Earl of Arundel by the Encroachment of Royal Power to themselves and seeing they might not remedy the same unless they came into England with an Army of Men of War and have by the Grace of God with such puissance and the help of the great Men and Commons of the Realm vanquished and destroyed the said Spencers c. therefore our Soveraign Lord the King by the Common Council of the Prelates Earls Barons and other great Men and of the Commons of the Realm have provided and ordained c. as follows That no great Man nor other of what Estate Dignity or Condition soever he be that came in with the said King that now is and with the Queen in Aid of them to pursue their said Enemies and in which pursuit the King his Father was taken and put in Ward c. shall be impeached molested or grieved in person or in goods in any of the King's Courts c. for the pursuit and taking in hold the body of the said King Edward nor for the pursuit of any other persons not taking their goods nor for the death of any Man nor any other things perpetrated or committed in the said pursuit from the day of the King and Queens Arrival until the day of the Coronation of the said King This Act of Indemnity is so full a Justification of the necessity and lawfulness of the Resistance that was then made against King Edward the Second and his wicked Councellors the Spencers that it needs no Comment And tho' King Edward the Third took warning by the example of his Father and was too wise then to follow the like Arbitrary Courses yet Richard the Second his Grandson being a wilful hot headed young Prince fell into all the Errours of his great Grand-father and found the like if not greater Resistance from his Nobility and People for when he had highly mis-governed the Realm by the Advice of his favourites Alexander Arch-Bishop of York the Duke of Ireland and others a Parliament being called in the 10th Year of his Reign the Government of the Kingdom was taken out of their hands and committed to the Bishops of Canterbury and Ely with Thomas Duke of Gloucester the King's Uncle Richard Earl of Arundel and Thomas Earl of Warwick and nine or ten other Lords and Bishops but notwithstanding this the King being newly of Age refused to be governed by the said Duke and Earls but was carried about the Kingdom by the said Duke of Ireland and others to try what Forces they could raise and also to hinder the said Duke and Earls from having any Access to him But see what followed these violent and arbitrary courses as it is related by Henry de Knighton who lived and wrote in that very time and is more exact in this King's Reign than any other Historian he there tells us that when Thomas Duke of Gloucester and the other Bishops and Earls now mentioned sound they could not proceed in the Government of the King and Kingdom according to the Ordinance of the preceding Parliament through the hinderance of Mich. de la Poole Robert de Vere Duke of Ireland Nich. Brembar and Robert Tresillian Chief Justice and others who had seduced the King and made him alienate himself from the Council of the said Lords to the great damage of the Kingdom whereupon the said Duke of Gloucester and the Lords aforesaid with a great Guard of Knights Esquires and Archers came up towards London and quartered in the Villages adjacent and then the Arch-Bishop of Canterbury the Lord Lovat the Lord Cobham the Lord Eures with others went to the King in the name of the the Duke and Earls and demanded all the persons above-mentioned to be banished as Seducers and Traitors to the King and all the Lords then swore upon the Cross of the said Arch-Bishop not to desist till they had obtained what they came for the conclusion of this Meeting was that the King not being able to withstand them was forced immediately to call that remarkable Parliament of the 11th Year of his Reign in which Mich. de la Poole and the Duke of Ireland were attainted and Tresillian and divers other Judges sentenced to be hanged at Tyburn upon the Impeachment of the said Duke of Gloucester and the Earl of Arundel for delivering their Opinions contrary to Law and the Articles the King had not long before proposed to them at Nottingham I shall omit the Resistance which Henry Duke of Lancaster made after his Arrival by the Assistance of the Nobility and People of the North of England against the Arbitrary Government of this King being then in Ireland not only because it is notoriously known but because it was carried on farther than perhaps it needed to have been and ended in the Deposition of this King Only in the first Year of Henry the 4th there was the same Act of Indemnity almost word for word passed for all those that had come over with that King and had assisted him against Richard the Second and his evil Councellors as was passed before in primo of Edward the Third I shall not also insist upon the Resistance of Richard Duke of York in the Reign of King Henry the 6th who took up Arms against the Evil Government of the Queen and her Minion the Duke of Suffolk because you may say that this was justifiable by the Duke of York as right Heir of the Crown nor will I instance in the Resistance made by the Two Houses of Parliament during the late Civil Wars in the time of King Charles the First since it is disputed to this day who was in the fault and began this Civil War whether the King or the Parliament Only thus much I cannot omit to take notice of that the King in none of his Declarations ever denied but that the People had a right to Resist him in case he had made War upon them or had introduced Arbitrary Government and expresly owned in his Answer to one of the Parliaments Messages that they had a sufficient power to restrain Tyranny but denied himself to be guilty of it and still asserted that he took up Arms in defence of his just Right and Prerogative to the Command of the Militia of the Kingdom which they went about to take from him by force M. I have with the greater patience hearkened to your History of Resistance in all the Kings Reigns you have mentioned because I cannot desire any better Argument to prove the unlawfulness of such Resistance than those Acts of Pardon and Indemnity You cannot but confess have
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
together with the Bishops of Winchester and Ely with divers other Earls Bishops and Lords then in Town had sent an Address to the Prince immediately upon the Kings departure and sent three Lords and one Bishop with it desiring his Highness to come speedily to London and to take the Government upon him and having before declar'd that they would with their utmost endeavours Assist his Highness for the obtaining of a Free Parliament so that the Prince had no reason upon the Kings return to Surrender that Power which the Nation as far as it was able to do without a Parliament had put into his Hands and that to a King whom he had very little reason to believe would use it any better than he had done before But I see you wilfully decline entring into the Merits of the Cause and arguing the main point in the Controversy viz. whether the King was in a State of War or Peace with the Prince upon his return for if he were still in a State of War the Prince might certainly very well justifie his clapping up the Earl of Feversham his Late Majesties General for offering to come within the Limits of the Princes Quarters without his leave especially since he was still answerable for doing his endeavour to Disband an Army a great part of which consisted of Papists and Forreigners with their Arms in their hands whereby they might have robb'd and spoyl'd the Countries or at least have kept those Arms to renew the War again with the first Opportunity so that certainly it could not be so slight a thing as a bare Invitation to St. Iames's whither the Prince could have gone without his leave being now Master of the City which could so far efâ—ace all the Princes just Resentments and make him so far confide in the Kings Word as to come to London whilst he remained there with his Guards and all those Papists and Tories in and about London ready to take his part and Rallie again into a new Army upon the first Signal But as for any Proposals of Peace or Accommodation which you say the Lord Feversham brought with him I neither know nor have heard of any such thing 't is true the King says in the said Paper he left behind him that he had writ to the Prince of Orange by the Lord Feversham and also mentions some Instructions he had given him but what they were he does not tell us but sure they were not Propositions of Peace since it is to be supposed that the King would not have sent any thing of that Consequence without first acquainting the Privy Council with it before it was sent But since we hear of nothing concerning them we may very well suppose there was no such thing or if there were his Highness was the fittest judge whether they were reasonable or not and if the King had any desire to propose any Just or Reasonable Terms whereupon he might have hoped to have been restored again to his Royal Dignity he had a very â—air Opportunity for it when a great Council of the Nobility were met at St. Iames's in Order to Sign an Association to stand by the Prince in the Calling of a Free Parliament for the King might then if he had pleased have made his Proposals by such of the Lords and Bishops as he could most confide in and have Conjured all the Peers there Assembled to have interceeded with the Prince of Orange to renew their Treaty with the King which had been before unhappily broken off and then if either the Peers had refused to do this or the Prince had refused to hear them the King might then I grant have had sufficient reason to declare to all the World that he was not fairly dealt with but for him again to go away only upon pretence that his Person was under restraint when really it was not plainly shew'd that he had no real design of making an amicable end of those differences or really desir'd to be restored to his Throne by the general consent of the Nation but either hoped for it from those Civil Dissentions he expected we should fall into upon his departure or else to the Arms of France and this being the Case I think nothing is plainer than that the King both by his first and second departure hath obstinately refused all those means whereby the Nation might have been setled with a due consideration of his Person and Authority whilst he lived and of the Prince when his Legitimacy shall be sufficiently proved and made out before a Free Parliament So that since I have already proved that the King had before the Princes Arrival committed so many Violations upon the whole Constitution of the Government and that these Violations if wilfully and obstinately persisted in do at last produce an absolute loss and forfeiture of the Crown it self I think the late King has done all that could be required to make it so But I have forgot to answer one Objection you made viz. that the Peers and Bishops when they invited the King to return to White-Hall had no Notion of this forfeiture nor the people of London who you say received him with great Joy and Acclamations and that therefore it is wholly a new invention To this I Answer that if the Lords you mention did send this message to the King it might be because they were surprised with his unexpected return and had not well considered all the Circumstances of the Case and thereby did more then they could well justifie having before declaed they would stand by his Highness in procuring a Free Parliament which must certainly be without the King since he was then gone away and they had also invited him to come to London as well as the City and how that could consist with their inviting the King thither without the Princes consent I do not well understand but it seems they quickly altered their Sentiments as appears by their presently after Subscribing a paper in the nature of an Association to stand by the Prince without taking any notice at all of the King and the very day of the Kings departure they met to consider upon the Princes Speech he had a day or two before made to them desiring them to advise on the best means how to pursue the ends of his Declaration in Calling a Free Parliament and within two days after they presented the Prince with their Advice to call a Convention on the 22th of Ianuary which was also the next day agreed to by one hundred and sixty Persons who had served as Knights Citizens and Burgesses in any of the last Parliaments in the time of King Charles the Second without taking any notice at all of the King for though it is true he was then gone away when the Commons and City two or three days after made their Addresses to the Prince Yet when the Peers met both the first and second time on the 21st and 22d of December he was
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
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
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
Kingdom do hold good though made under Usurpers and that for this Reason because such Acts being for the publick benefit it is to be suppos'd that the King de jure did give his tacit consent to them for as it is well observed in the Case you have now cited that it behoves the Realm should have a King that is some Civil Government and that the Laws should be kept and maintain'd but then those Laws can extend only to such things as are for the publick good and do not tend to the disinheriting of the King de jure or barring him or his Heirs of their Right as did that Act of the 7th of Henry the IVth whereby the Crown was intail'd upon himself and his Sons which was declar'd to be void by the 39th of Henry the VIth so likewise this Act is void for the same reason since it would give a Right to the Subjects to defend the King for the time being though an Usurper against the true and lawful King who would be thereby not only defeated of his Right himself but also his right Heirs would be so too which would be directly contrary to the intent of the said Statutes of the 39th of Hen. VI and 1 st of Edw. IVth but now mention'd but also to the Act of Recognition of King Iames the Firsts Title And therefore I must still maintain that my Lord Coke is mistaken in supposing a King de facto to be within the intent of the Statute of the 25th of Edw. the IIId for sure it would seem a very odd question for any one to ask touching the Laws that are made in any setled Monarchy for the defence of the Kings Person Crown and Dignity who is meant by the King in those Laws whether the Lawful and Rightful King of that Realm or any one that gets into the possession of the Throne though he be not a Rightful King but an Usurper So likewise as to that Clause in this Statute which makes it Treason to Conspire the Death of the Kings Eldest Son and Heir it could be never intended for the Son of a King de facto since that would be to own him for right Heir of the Crown for ever and thereby intail it upon his Family to the prejudice of the Right Heir of the King de jure and therefore though I grant some of the Judges and Lawyers held the Law to be so as you have cited it in Bagot's Case and that a King de facto may enjoy those Prerogatives in some respects yet cannot this be extended to the prejudice of the King de jure and his Right Heirs and though I also grant that divers Acts of Parliament made by Kings de facto have for the most part held good without being confirm'd by any subsequent Statute of the King de jure yet have they been also repeal'd sometimes meerly because made whilst the King de jure was alive as I shall prove more at large by and by F. I shall also take the boldness to reply to these answers of yours before I proceed to answer the rest of your Arguments in the first place let me tell you that this notion of a tacit consent in the King de jure suppos'd to be given to all Statutes made for the publick good is to serve upon all occasions when those of your Party cannot tell how otherwise to answer the Arguments that are brought against them and you may as well tell me that they do also give their tacit consents to all other Acts that Usurpers may do and I may as well suppose that Queen Elizabeth the Wife of Henry the VIIth the Lawful Heiress of the Crown did in the person of her Husband give her tacit consent that this Act of the 11th of Henry the VIIth should hold good for ever since it is so much for the publick good and peace of the Nation that the Statute declares it to be against Law Reason and good Conscience that Subjects should suffer for fighting for the King for the time being but I very much wonder if this suppos'd tacit consent were given to all Acts of Parliament by the Kings de jure why upon their return to the Government he did not also express this consent by confirming all those Acts which were made by his Predecessors the Kings de facto or else declare them void but since they neither did the one nor the other it is plain it was because even they themselves looked upon it as altogether needless Nor is your reason at all satisfactory why a King de facto cannot be intended by the Statute of the 25th of Edward the IIId because that maketh it Treason to Conspire the death of the King 's Eldest Son and Heir which say you can only be meant of the Eldest Son of a King de â—urâ— which is to beg the question for though it is true this Clause in the Act was intended for the preservation of the King 's Eldest Son yet it doth no where determine that this must be the Eldest Son of a King de jure for though I own this Clause was made to preserve the Crown in the Right Line from Father to Son yet does it make no difference between the Son and Heir of a King de facto and one de jure nor have you yet answer'd the Authorities I have brought from the Acts of attainder of those Lords who Conspired against the three Kings of the House of Lancaster which stand unreversed unto this day and which also confirm the Opinion given in Bagot's Case where it is said expresly that a Man may be arraigned for Treason committed against the King de facto by the King de jure and therefore I think my Lord Coke may very well be justified in his Opinion notwithstanding the question you put whether the Statute could mean him who is lawful and rightful King or any other who gets into the possession of the Throne Now this seems to me no such odd question for when the Law only mentions the King and the Law-Makers certainly knew that Kings without an hereditary right had often ascended the Throne if they had intended to except all such Usurpers they should have expresly said so But indeed that distinction of a King de facto and a King de jure was not known 'till many years after being first heard of in the Reign of Edward the IVth for a King de facto as the late Chief Justice rightly asserts is Seignior Le Roy within that Statute and there is no other King but he whilst he continues so For King signifies that person who has the Supream Government in the Nation and a King de jure is he who should have the Government but has it not that is who of right should be King but is not and the Statute of Treason tells us what is Treason against him who is King not against him who should be but is not King and reason good it
fifty years ago but I do not look upon them as the Antient Establisht Doctrine of our Church because these Canons are not confirmed but condemned by two Acts of Parliaments and consequently never legally Established as they ought to be by the publick Saction of the King and Nation Our Old Queen Elix Divines such as Bishop Bilson and Mr. Hooker being wholly ignorant of these Doctrines nay teaching in several places of their Writings the quite contrary Noâ— was this Doctrine of absolute Subjection and Non-Resistance ever generally maintained until about the middle of King Iame's Reign when some Court Bishops and Divines began to make new Discoveries in Politicks as well as Divinity and did by their Preaching and Writings affirm that the King had an absolute Power over Mens Estates So that it was unlawful in any Case to disobey or resist his Personal Commandâ— if they were not directly contrary to the Law of God as may appear by Dr. Harsâ—et then Bishop of Chichester his Sermon upon this Text Give unto Caesar the things that are Caesar's wherein he maintained That all the Subjects Goods and Money were Caesar's that is the Kings and therefore were not to be denied him if he demanded them for the publick use which Sermon thô order'd by the Lords and Commons to be Burnt by the Hangman yet was so grateful to the Court that he was so far from being out of Favour for it that he was not long after Translated to Norwich and from thence to the Archbishoprick of York So likewise about the beginning of the Reign of King Charles the First Dr. Manwaring preached before him the substance of whose Sermon was somewhat higher than the former viz. That the King was not bound by the Laws of the Land not to impose Taxes or Subsidies without the Consent of Parliament and that when they were so imposed the Subjects were oblieged in Conscience and upon pain of Damnation to pay them which if they refused to do they were guilty of Disloyalty and Rebelion For which Sermon he was Impeacht by the Commons in Parliament 4. Car. I and thereupon Sentenced by the House of Lords to be Disabled to hold or receve any Ecclesiastical Living or Secular Office whatever and also to be Imprisoned and Fined a Thousand Pound Notwithstanding all which we find him presently after the Parliament was disolved not only at Liberty but also presented by the King to a Rich Benefice in Essex and not long after made Bishop of St. Davids So likewise one Dr. Sibthorp about the same time preached an Asâ—ize Sermon at Northamtâ—n on Rom. 13.7 wherein he maintained much the like Doctrines as that it was the King alone that made the laws and that nothing could excuse from an active Obedience to his Commands but what is against the Law of God and Nature And that Kings had Power to lay Pole Money upon their Subject Heads But this much I have read that this Sermon was Licensed by Dr. Laud then Bishop of St. Davids because Archbishop Abbot had refused to do it as contrary to Law for which he was very much frwoned upon at Court and it is supposed to have been one of the main causes of his Suspension from his Arch-Episcopal Jurisdiction which not long after happened But as for this Siothâ—rp tho he lived long after even till the Kings Return yet being as Archbishop Abbot describes him a man of but small Learning I cannot learn that he was ever preferred higher than the Parsonages of Barchley and in Northamptonshire But I find a New Doctrine broach'd by some Modern Bishops and Divines about the middle of the Reign of King Iames the first That Monarchy was of Divine Right or Institution at least so that any other Government was scarce warrantable or lawful and of this New Sect we must more especially take notice of Sir R. F. who hath written several Treatises to prove this Doctrine and which is worse That all Monarchs being Absolute they cannot be limited or obliged either by Oaths Laws or Contracts with their People farther than they themselves shall think fit or consistent with their supposed Prerogatives of which they only are to be the Sole Judges So that whoever will but consider from the Reign of our four last Kings what strong inclinations they had to render themselves Absolute and that few Divines or Common or Civil Lawyers were preferr'd in their Reigns to any considerable Place either in Church or State who did not maintain these New Opinions both on the Bench and in the Pulpit You need not wonder when the Stream of Court Preferment ran so strong that way if so many were carried away with it since it was but to expose themselves to certain misery if not to utter ruin to oppugn it All who offered by Speaking or Writing to maintain the contrary being branded with the odious Names of Puritans Common-wealths-men Whigs c. Some of whom you may remember were not long since imprisoned Fined nay Whipt for so doing So that it was no wonder if there were but very few to be found who durst with so great hazard speak what they thought nor could any thing but the imminent danger upon our Laws Religion and Properties proceeding from the Kings illegal practices have opened the Eyes of a great many Noblemen Gentlemen and Clergy who contrary to the Opinions so much lately in vogue did generously venture both their Lives and Estates to joyn their Arms with the Prince of Orange against the King's unjust and violent Proceedings M. I do not doubt notwithstanding all you have said to prove before I have done these Doctrines of Non-Resistance and of the Divine institution of Monarchy to be most consonant to the Word of God and to the Doctrine of the Primitive Church and also to that of our Reformed Church of England Nor were those Divines you mention in K. Iames the First 's time the Authors or inventers of these Doctrines which were publickly received and Decreed by both Houses of that Convocation which began in the first Year of K. Iames and continued till the Year 1610. as appears by divers Manuscript Copies of the Acts or Decrees of this Convocation the Original of which was lately in the Library founded by Dr. Cousins late Bishop of Durham besides a very fair Copy now to be seen in the Archbishops Library at Lambeth which if you please to peruse you may be quickly satisfied that the Church of England long before ever Sir R. F. writ thoses Treatises you mention held that Civil Power was given by God to Adam and Noah and their Descendants as also that absolute subjection and obedience was due to all Soveraign Powers without any resistance as claiming under those Original Charters These Doctrines being there fully and plainly laid down and asserted as the Doctrines of our Church So that you deal very unjustly with the memory of those Divines as also of Sir R. F. to
Subjection to Adam since they could never have quitted his Family without his consent and when they did quit it unless he pleased to manumit them they their Wives and Children were still as much Subject as they were before Since I do not see if they were once Subjects to him how any thing but his express will and consent could ever discharge them from it Nor was that Authority which every one of these Sons of Adam might Exercise over their Wives and Children though they were not freed from the power of their Father any more inconsistent with that Subjection and Obedience they owed him as their Prince than in an absolute Monarchy the power of Fathers and Husbands over their Wives and Children as to the things relating to the well-ordering and governing their Families is inconsistent with that supreme predominant power which the Monarch hath over the Father himself and all his Family or than the power of a Master of a Family in the Isle of Barbadoes over his Slaves that are Married and have Children is inconsistent with that Marital and Paternal power which such a Slave may exercise over his Wife and Children within his own Family though still subordinate to the will of the Master who may forbid any such Slaves or their Children to Marry but where he hath a mind they should and may likewise hinder them from correcting or putting to Death their Wives and Children without his consent Though such Subjects in an absolute Monarchy or Slaves in a Plantation cannot have or enjoy any Property in Lande or Goods but at the Monarchs or Masters will And so likewise at first none of these Sons of Adam though they set up distinct Families from their Fathers could enjoy or inclose any part of the Earth without his Grant or Assignment to whom the whole was given by God before It seems likewise to be a great mistake when you at first affirmed that all Civil Government was Ordained by God for the benefit and advantage of the Subjects rather than the Governours Whereas from the first and most Natural Government it appears that Children who were the Subjects were Ordained as much for the benefit and help of their Parents who were the first Monarchs as their Parents for them From all which we may draw these Conclusions First that from Gen. 3. v. 6. already Cited we have the Original Charter of Government and the Fountain of all Civil Power derived from Adam as the Father of all Mankind So that not only the Constitution of power in general but the special limitation of it to one kind viz. Monarchy and the determination of it to the individual person of Adam are all Ordinances of God Neither had Eve or her Children any Right to limit Adam'â— Power or joyn themselves with him in the Government Now if this Supreme Power was setled and sounded by God himself in Fatherhood how is it possible for the people to have any Right to alter or dispose of it otherwise it being God's Ordinance that this Supremacy should be unlimited in Adam and as large as any Acts of his Will So that he was not only a Father but a King and absolute Lord over his Family a Son a Subject and a Servant or Slave being one and the same thing at first the Father having power to dispose of or sell his Children or Servants at his pleasure and though perhaps he might deal too severely or cruelly in so doing yet there was none above him except God in the state of Nature who could call him to an account much less resist or punish him for so doing F. You have Sir made a very long Speech upon the Monarchical power of Adam which you have made of so large an Extent that this imaginary Kingship will swallow up all the other more dear and tender Relations both of a Husband and of a Father So that were I not satisfied you were a very good natured Man and spoke more the sense of others than from your own Natural Inclinations I should be apt to believe that if you had sufficient Power you would prove as great a Tyrant over your Wife Children and all that should be under your Command as such Arbitrary Tenets would give you leave but since I hope your Errour lyes rather in your Understanding than in your Natureâ— I shall make bold to shew you the mistakes you have committed in those Principles you here lay down I might first begin with the place of Scripture you farther insist upon for Eve's absolute Subjection to Adam from the like Expression used by God to Cain concerning his ruling over his Brother Abel as is us'd here to Eve and tho' you are pleased to think my exposition of this place so ridiculous yet I doubt not but I be able to prove when I come to speak of this pretended Divine Author of Elder Brothers over this younger that this place cannot be understood in any such sense according to the best Interpretation that both the reason of the Subject and the sense the best Commentators put upon it can allow but I shall defer this till we come to discourse concerning the successors of Adam in this Monarchical Power you suppose And therefore I shall only at present pursue that absolute Power which you suppose Adam to have had not only over Eve but all her descendants So that your Argument of Eve's and consequently all her Childrens absolute Subjection to Adam depends upon a very false supposition For if the Subjection of Eve to Adam and of all Wives to their Husbands is not servile or absolute neither can that of the Children be so since according to your own simile if the streams are of the same nature of the Fountain they can never rise higher than it and tho' I grant Adam might in some cases have put his Wife or Children to death for any enormous crime against the Law of Nature yet I allow him that power not as a Husband or Father but only as a Lord or Master of a separate Family who having no Superiour in the state of Nature I grant it is endued by God with this Prerogative for the good of his Family and preservation of Mankind lest such horrid crimes so much to its prejudice should pass unpunisht But that the Husband or Father doth not act thus in either of these two capacities I can easily prove First Because the Scripture tells us the Husband and Wife are one Flesh and that no man ever yet hated his own Flesh so that it is impossible for a Husband to put his Wife to death till by the greatness of her Crimes she becomes no longer worthy of that tender affection he ought to bear her Then as to the Father he as a Father ought not to desire to put his Son to death whose being he hath been the cause of and who is principally made out of his own substance and on whom he hath bestowed nourishment and education for
three times your self do not deny that the Iews also had it in use among them appears first by the story of the poor Woman the Widdow of one of the Sons of the Prophets who complained to Elisha in the second of Kings telling him that her Husband is dead and the Creditor is come to take her two Sons to be Bond-men And so likewise in the New Testament our Saviour in St. Matthew supposes it as a thing commonly practised in those parts of the World where he lived For in the Parable of the King who would take account of his Servants amongst whom one owed him Ten thousand Talents But for as much as he had nothing to pay his Lord commanded him to be sold and his Wife and Children and all that he had and payment to be made Which was founded upon that Law amongst the Jews that Fathers might sell their Children for Bond-servants until the year of Iubilee as appears by Nehemiah Chap. 5. where he relates the Complaint of those poor Jews who had been forced for want to bring their Sons and their Daughters into Bondage Neither was it in their power to redeem them for other Men had their Lands and their Vineyards And amongst the Romans this Power of selling their Children continued till it was forbidden by the Emperour Iustinian And as for the Grecians Plutarch in his Life of Solon relates that till his time it was lawful amongst the Athenians for Fathers to sell their Children to pay their own Debts And I suppose it was upon this account that Cymon the Son of the great General Miltiades was kept in Prison by the Athenians till he had paid the Fine of ten Thousand Talents which his Father died indebted to the Common-wealth And Philostratus in his Life of Apollonius Thyanaus relates that it was common amongst the Phrygians to sell their own Sons And to come to more Modern Times a Son amongst the Muscovites may by sold four times but after the fourth Sale the Eather hath no longer a Right in him as the Baron of Heberâ—lein tells us in his Relation of Muscovy and it is not only in use amongst them but also amongst the Tartars East-Indians Chineses and the People of Japan not only to sell their Children themselves but also that they are liable to be sold by the Prince or his Officers for their Fathers Debts or Offences So that you see here is the Consent of most of the Civiliz'd Nations in the World who sure in this follow the Dictates of Nature and Reason in the exercise of a full and absolute Propriety and Dominion in and over the Persons of their Children so that if it be a received Custom or Law amongst most Nations it is also from Reason too since the Law of Nations is only that which receives its obligation from the Consent of many Nations as Grotius well observes And Aristotle lays it down as one of the strongest proofs when all men agree in any thing And Cicero tells us That the Consent of most Nations is to be looked upon as a Law of Nature and therefore these Customs are to be esteemed as obligatory amongst all Civiliz'd Nations where the Municipal Laws of those Countreys have not restrained or altered this Natural Power and Interest which Fathers had originally over the Persons of their Children But as for what you say that according to my Principles no other Government can be Lawful besides Monarchy I shall give you the same Answer that some of the most Moderate of our Divines have given to those who would make the like Objection against us of the Church of England thaâ— believe Episcopacy to be Iure Divinâ— viz. That God may for the necessity of some Ecclesiastical Order and Government in a Church allow that Form of Government to be Lawful which himself never Instituted Nay which perhaps was unlawful to have been set up in the Church at all and so likewise in Civil Governments I will not deny that those Forms may be lawfully obeyed as the Ordinance of God which he never Instituâ—ed but have wholly proceeded from the Rebellions or Inventions of Men. F. I must confess Sir I cannot see how any Law of Nations can be supposed to lay any Obligation upon Mankind different from the Law of Nature and Reason or the revealed Law of God in Scripture And tho' I confess there is some division amongst Learned Men about this matter yet I think it is far more rational to suppose that there are but two Law that can be Rules of Humane Actions the Natural Law and the Divine And of this Opinion is the Learned Grotius himself in the place you but now cited where he says he added the words many Nations because there can scarce be found any Natural Law which is also wont to be called the Law of Nations that is common to all Nations Yea that is often lookt upon as a Law of Nations in one Country which is not so any where else as says he we shall shew in its due place concerning Captivity and Postluminium And for a farther confirmation of this I will make bold to read to you in English some part of what thâ— Excellent Puâ—endof hath written upon this Subject in his Learned Work De Jure Naturae Gentium Lib. 2. Cap. 3. which you may here read with me The Law of Nature and the Law of Nations is accounted by many one and the same which only differ by an extrinsick denomination And form hence Hobbs De Cive C. 14. § 4. Divides the Law of Nature into the Natural Law of Men and the Natural Law of Common Wealths which is commonly called Jus Gentium And then adds that the Precepts of both are the same but because Common-Wealths when once instituted do put on the personal properties of Men that Law which speaking of the duty of particular men we call Natural being applied to all Common-Wealths or Nations is called Jus Gentium to which opinion we do likewise subscribe neither do we think there can be any other voluntary or positive Law of Nations which can have the power of a Law properly so called and which may oblige all Nations as proceeding from a Superiour But most of those things which amongst the Roman Civil Lawyers and others are referred to the Law of Nations as suppose about the manner of acquiring of Contracts and the like do either belong to the Law of Nature or else to the Civil Laws of particular Nations which agree together for the most part in these things yet from which nâ— new or distinct sort of Law is Rightly constituted because those Laws are common to Nations not from any Agreement or Mutual Obligation but in that they do by accident agree from the peculiar Will of the Law-givers in each particular Common-Wealth from whence the same things may be changed by one People or Nation without consulting the rest and often times are found to be so changed
it would be left in her Power not only to govern her self but by marrying to chuse a King for her Subjects whom they do not approve of And therefore we read that in diverse of the Antient Kingdoms of the World Women were excluded from the Succession Nor are these the only questions that either might then or else have in latter Ages been started concerning Succession in Kingdoms and Principalities and have been the cause of great disputes between Pretenders to Crowns where a King Dies without Lawful Issue as whether a Grandson by a Younger Daughter shall inherit before a Grand-daughter by an Elder Daughter Whether the Elder Son by a Concubine before the Younger Son by a Wife From whence also will arise many Questions concerning Legitimation and what by the Laws of Nature is the difference betwixt a Wife and a Concubine All which can no ways be decided but by the Municipal or Positive Laws of those Kingdoms or Principalities It may further be enquired whether the eldest Son being a Fool or Madman shall inherit this Paternal Power before the Younger a Wise Man And what degree of â—olly or madness it must be that shall exclude him and who shall be the Judges of it Also whether the Son of a Fool so excluded for his Folly shall succeed before the Son of his Wiser Brother who last Reigned Who shall have the regal Power whilst a Widdow Queen is with Child by the Deceased King until she be brought to Bed These and many more such difficulties might be proposed about the Title of Succession and the Right of Inheritance to Kingdoms and that not as idle speculations but such as in History we shall frequently find examples of not only in our own but likewise other Kingdoms From all which we may gather that if the Laws of God or Nature had prescribed any set rules of Succession they would have gone farther than one or two cases as concerning the Succession of Elder Sons or Brothers where an Elder Son dies without Issue and would also have given certain infallible rules in all other Cases of Succession besides these and not have left it to the Will or particular Laws of diverse Nations to have established the succession so many several ways as I am able to shew have been practised in the World M. I must confess you have taken a great deal of pains to perplex the Succession to Adam which seems designed for nothing else but to make me believe that if Adam or any of his Sons were Kings or Princes it must have been by the Consent or Election of their Children or Descendants which is all one as to say that those Antient Princes derived their Titles from the Iudgment or Consent of the People the contrary to which is evident as well out of Sacred as Civil History F. Since you appeal to History to History you shall go and to let you see that I have not invented these doubts about Succession of my own Head and that there might have very well been a real dispute about the Succession to Adam in the Cases I have put may appear by the many disputes and quarrels that have been in several Nations concerning the Right of Succession between the Uncle and the Nephew of which Grotius is so sensible that he confesses in the latter end of the Chapter last cited that where it could not be decided by the Peoples Iudgment it was fain to be so by Civil Wars as well as private Combats and therefore he is forced ingenuously to confess that this hath been practised divers ways according to the different Laws and Customs of Nations and he gives us here a distinction between a direct Lineal Succession and a transversed and acknowledges that amongst the Germans as also the Goths and Vandales Nephews were not admitted to the Succession of the Crown before their Uncles the like may be said of the Saxons and Normans and therefore we find in our Antient English History that before the Conquest the Uncle if he were Older always enjoyed the Crown before the Nephew which I can more particularly shew you if you think fit to question it The like manner of succession was also amongst the Irish-Scotch for above 200 years after â—â—rgus their first King The like Custom was also observed among the Irish as long as they had any Kings amongst them and is called the Law of Tanistry The same was also observed in the Kingdom of â—astile where after the death of Alphonso the fifth the States of that Kingdom admitted his Younger Son Sancho to be King putting by Ferdinand de la Cerda the Grand-Son to the late King by his Eldest Son tho' he had the Crown left him by his Grand-Father's Will So likewise in Sicily upon the Death of Charles the Second who left a Grand Son behind him by his Eldest Son as also a Younger Son named Robert between whom a difference arising concerning the Succession it being referred to Pope Clement V. He gave Judgment for Robert the Younger Son of Charles who was thereupon Crowned King of Sicily and for this reason it was that Earl Iohn Brother to King Richard the second was declared King of England by the Estates before Arthur Earl of Brittain Son of Ieoffrey the Elder Brother and Glanvil who was Lord Chief Justice under Henry the second in that little Treatise we have of his makes it a great question who should be preferred to an Inheritance the Uncle or Nephew But as for Daughters whether they shall inherit at all or not or at least be preferred before their Uncles is much more doubtfull since not only France but most of the Kingdoms of the East at this day from Turkey to Iapan do exclude Women from the Throne And it was likewise as much against the Grain of the Antient Northern Nations and hence it is that we find no mention of any Queen to have reigned amongst the Antient Germans or Irish-Scots and never but two among the English-Saxons and those by Murder or Usurpation and not by Election as they ought to have done And upon this Ground it was that the Nobility and People of England put by Maud the Emperess and preferred Stephen Earl of Blois to the Crown before her for tho' he derived his affinity to the Crown by a Woman yet as being a Man he thought himself to be preferred before her So likewise in the Kingdom of Aragon Mariana in his History tells us that Antiently the Brother of the King was to inherit before the Daughter examples may also be given of divers of the other instances but these may suffice M. I Pray give me leave to interrupt you a little for by these examples you would seem to infer that these Laws about setling the succession of Crowns in several Kingdoms depended upon the Will of the People whereas I may with better reason suppose that if such Laws and Alterations have been in such successions they were made by
care of them chose Moses and Ioshuah successively to Govern as Princes in the Place and â—â—ead of the Supreme Fathers And after them likewise for a time he raised up Judges to defend his People in time of Peril Yet that all these were endued with Regal Authority may appear in that Moses is called in Deuteronomy a King in Ieshurun that is over Israel And when Moses saw that he was to die he besought God to set a Man over the Congregation that the Congregation of the Lord be not as Sheep which have no Shepherd And as for the Judges it is apparent from the Book that bears their Name that they had Power of making Peace and War and of Judging in all Cases of Appeal insomuch that whosoever would not hearken to the Priest or to the Iudge even that Man should die But when God gave the Israelites Kings F. I pray give me leave to interrupt you a little for I have a great â—eal to say against your Notion of the Government of the Israelites before they had Kings actually nominated by God for notwithstanding all you have said it doth not appear to me that either Moses Ioshuah or the Judges were any more than figuratively or in a larger sense to be stiled Kings For as for Moses his being called King in Ieshurun he only calls himself so Poetically in that excellent Hymn of Blessing which he bestoweth upon the Twelve Tribes For certainly God did not suppose him to have been a King when in Deut. 17.14 he speaks of the Children of Israel setting a King over them as a thing that was to happen many years after and there lays down Rules how he should Govern himself which had been needless if they had had a King already And that Moses was not a King Iosephus himself shews us in his Antiquities Lib. 4. where he makes Moses to have instructed the Children of Israel at the time of his Death to this purpose Aristocracy is the best Form of Government and the life that is led under it the most happy and therefore let not the desire of any other sort of Government take Possession of you owning no other Master than the Laws and doing every thing according to it For God is your King and that is sufficient for you and if Moses was no King then certainly Ioshua was none neither M. Pray give me leave to answer what you have now said against the Kingly Power of Moses and Ioshua for if you will please to remember that tho' the Sanhedrim had been constituted before this time yet Moses esteemed them as Sheep without a Shepherd if a Man was not set over them which might go out before them and which might lead them out and bring them in and God approved his desires and appointed Ioshua to succeed him and the People received him accordingly and told him All that thou commandest us we will do and whithersoever thou sendest us we will go according as we hearkened unto Moses in all things so will we hearken unto thee If this were not Kingly Power then is there no such thing So that this Discourse which Iosephus puts into Moses his Mouth seems directly contrary to Moses his Thoughts and Practice And whereas he makes Moses to have opposed Obedience to the Laws to Kingly Government it is a pure Greek Notion For whilst the Grecians lived under Kings they had â—ew or no Laws but when they set up Common-Wealths they then found the necessity of having Laws and then the Dominion of Laws was opposed to the Government of Princes But this was contrary to the Practice of Israel for they were to live according to their Laws as well under Kings as without them in all Estates and Conditions and their Kings were bound to Govern them by the Law and not by their Wills contrary to the Law So that in this Iosephus clearly made the Antient Customs of his Country to comply with a Greek Notion that had no being for some hundreds of years after Moses was dead And as for the time of the Judges even in the Intervals between them when every one did that which was right in his own Eyes even then the Israelites were under the Kingly Government of the Fathers of the particular Families over whom the Prince or Head of it had likewise a Supreme Power F. But pray give me leave to speak a little farther Let me ask you what is an Aristocracâ— if this be not viz. an Assembly of the Elders or Chief Fathers of Families of each Tribe meeting consulting and resolving of the Publick Affairs of the Common-Wealth under their Head or President the Chief of the Tribe and this is the Government for which Iosephus makes Samuel so much afflicted when the People would quit it for a Monarchy M. I think you are much mistaken in this Point for it is no where declared that these Fathers of Families Governed their own Families independently for then there would have been no Publick Government at all Nor yet is it said that these Fathers Governed by Majority of Voices chosen out of themselves for then I grant it would have been a Democracy nor yet doth it appear that a few of the better sort of Fathers of every Tribe Governed it by a Counsel and Magistrates or that there was such Counsel of the several Tribes but on the contrary every Tribe was Governed by the Prince or Head of it and these Princes Moses calls the Heads of the House of their Fathers in Numb 7.2 and who were over those that were numbered and made their Offerings And Moses tells us particularly what every Man's Name was as Nashon the Son of Aminadab of the Tribe of Judah and Nathaniel the Son of Zuar Prince of Issachar c. Now if there was in those days any Government at all in Israel then were these Princes the Governours of the several Tribes and so every Tribe was under a Monarch tho' the whole State of Israel was not under any one Person or constant standing Council and consequently was a System of little Monarchies F. I am not at all better satisfied with your last Reply For in the first place I have Iosephus on my side who must needs know what the Government of his Country had been better than you or I and he expresly calls it an Aristocracy in which the Judge when there was one was only in the nature of a General or Statholder to whom the last Appeal was to be made in all Causes and it is also as plain that neither Moses Ioshua nor the Judges had Monarchical Authority Fâ—r tho' it be true the two first could make War and Peace yet this was also with the Consent of the Princes of the Congregation as plainly appears by the Story of the Peace made with the Gibeonites which the Princes of the Congregation confirmed by an Oath Neither could they raise Taxes upon the People or take any thing from them
without their Consent and therefore Samuel appeals to them how little he had opprest them whose Ox or whose Ass have I taken whom have I defrauded whom have I opprest Neither could they nor the Judges their Successors make any new Laws for the People God himself being their King and Legislator and therefore what you urge as to the Regal Power of Moses and Ioshua after the Sanhedrin had been constituted amounts to no more but that both of them were Heads or Captains of the People to lead them out to War and bring them back again which is exprest by going in and out before them and their Obedience to their Military Orders as also to such things which God hath expresly commanded is understood by these words All that thou commandest us we will do and whithersoever thou sendest us we will go Yet still this was with respect to their obtaining the Land of Canaan for otherwise if either Moses or Ioshua should have gone about of their own Heads to have Led them again into Egypt I suppose you will not say the Israelites were bound either to have followed them or submitted to them but rather might have resisted them in such cases And therefore Iosephus his Speech which he makes Moses to deliver is not so ridiculous as you are pleased to make it for the Laws here mentioned by him and here set in opposition to Monarchy were not such Laws as were made by the Greek Common-Wealth as you suppose but the Law given from God by his hand and these he might well think were sufficient with such Power as he and Ioshua enjoyed without having any recourse to a Human Monarchical Government since God himself was their King and as for the Judges that succeeded them they had much less Power than either Moses or Ioshua Since it is apparent by the Story of Deborah and Barak Iudges the 4th who were the Princes or Generals of the Tribes of Zebulun and Naphtali that they had no power to force the People to go out to fight against the Canaanites whether they would or no. And therefore you will find in the next Chapter in the Song of Victory which they sung that many of the Tribes came not in to their Assistance therefore it is there said That for the Divisions of Reuben there were great thoughts of heart therefore they ask Why abidest thou among the Sheepfolds c. And presently after it is said Gilead abode beyond Jordan and why did Dan remain in the Ships Asher continued on the Seashore and abode in his breaches And so they conclude with Curse ye Meroz curse ye bitterly the Inhabitants thereof because they came not to the help of the Lord against the Mighty So that I am perswaded it was the want of this Power in the Judges of making Laws of imposing Tributes or Taxes and of forcing Men to serve in the Wars against their Enemies which they did before only as Volunteers that made the Israelites the more desirous to have a King over them like those of other Nations who were endued with these Prerogatives And therefore the best Commentators do interpret the Prediction of Samuel concerning the manner of the King that should Reign over them and would take their Sons for his Chariots and his Horse men and to be Captains over thousands c. to relate to his Royal Power of enrolling and making them serve in his Army either as Officers or Souldiers and the taking of their Fields and their Vineyards and the Tenth of their Seeds c. to give his Officers and Servants to signifie no more than his Power of imposing Publick Tribute and Impositions on the People to maintain his Royal Splendor the Necessities of the State as other neighbouring-Neighbouring-Kings were wont to do all which they not being used to before they should cry unto the Lord by reason of them as a great oppression And that Saul when he came to be King used this Prerogative of forcing the People to come and serve in the War in a higher manner than Samuel or the Judges had done before appears by the 11th Chapter of this Book when Nahash the Ammonite came to make War against Iabesh Saul took a Yoke of Oxen and hewed them in pieces and sent them throughout all the Coasts of Israel by the hands of Messengers saying Whosoever cometh not forth after Saul and after Samuel so shall it be done unto his Oxen and the fear of the Lord fell on the People and they came out with one Consent And it seems evident to me that the Power which Samuel had before the Children of Israel desired a King was not Monarchical but mixt of Aristocracy and Monarchy together in which Samuel as Judge had a Judicial Authority and likewise a Supream Military Power of leading them out to War against the Philistines and other Enemies and yet notwithstanding the Supreme Power in all other things remained wholly in the Principal Heads or Fathers of the Tribes which whether they were chosen by the People or enjoyed it by Right of Inheritance I confess the Scripture is silent and therefore I am not at all satisfied with your Notion that the Government of these People when they had no Judges consisted of Twelve petty Monarchies under the Heads or Princes of the Tribes for there is no Authority in Scripture to countenance any such opinion the place you bring for it out of the 1st and 7th of Numbers not at all proving it For tho' I grant there were twelve Princes of the Tribes whose names are there set down and who are called Heads of the Houses of their Fathers yet is it no where said that these were endued with Civil Power or were Chief Rulers over the Tribes for it is apparent all Civil Power remained then in Moses and the Sanhedrim who under him decided all controversies So that it is most natural to suppose that these Heads of the Tribes were not Civil Magistrates but the Military Leaders or Captains of each Tribe when they went out to War and are the same who in this Chapter are called the renowned of the Congregation c. and Heads of the Thousands of Israel Nor doth it follow that because there were such Officers in Moses his time that they must continue the same after under the Judges so many Slaveries and oppressions that this People had undergone or that if they did still continue that their Power was Monarchical or that they could do any thing without the consent of the Heads or Fathers of Families of each Tribe in whom I suppose the Supream Authority was in the Intervals of the Judges and therefore we find in the ninth of Iudges that the men of Shechem and all the House of Millo made Abimelech King that is not over all the Tribes of Israel but over Ephraim and half Manasses only which is to be understood by Israel in this Chapter where it is said v. 18. by Iotham the Son of
usurped by any other so that any other man can become my Father or I owe him that Filial Duty and Respect as to him that begot me and brought me up And tho' I grant that God may confer a Regal Power on whom he pleases either by his express Will or the ordinary course of his Providence yet when such a person who was not a King before doth become so I utterly deny that the Power he hath then conferred upon him is a Paternal Power in relation to his Subjects which is evident from your own Instance of Saul's becoming a King over his Father Kish For tho' you say that God then conferred a Fatherly Power on Saul over his own Father this is a great mistake For then Saul would have been immediately discharged from all the Duties of Piety and Gratitude which he owed his Father and they were all transferred from Kish to Saul so that after he became King he might have treated his Father with no more Respect or Deference than any other Subject which is contrary to God's Commandment that bids all Men Honour their Father and Mother And I know not how Kings can be excepted out of this Precept So that your mistake arises from this preposterous confounding of Paternal Authority with Regal Power And because Adam Noah or any other Father of a separate Family may be a Prince over it in the State of Nature that therefore every Monarch in the World is also endued with this Paternal Power Which that they are distinct may farther appear from your own supposed Monarchical Power of Adam who tho' granting him to have been a Prince over his Posterity yet did not this discharge any of his Descendants from their Duty and Obedience to their own Father And tho' I confess you talked at our last meeting of a Fatherly Power to be exercised in subordination to the Supreme Fatherly Power of Adam yet this is a meer Chimera for Filial Honour and Obedience being due by the Commandment only to a Man 's own Natural Father can never be due to two different persons at once since they may command contradictory things and then the Commandment of Honour that is obey thy Father cannot be observed in respect of both of them and therefore granting Adam or Noah to have exercised a Monarchical Power over their Children and Descendants it could not be as they were Fathers or Grand-fathers when their Sons or Grand-children were separated from them and were Heads of Families of their own for the reasons already given so that if they were Princes in their own Families whilst their Sons or Grand-children continued part of them it was only as Heads or Masters of their own Families but not by any such Patriarchal or Paternal Authority as you suppose But as for the Conclusion of your Discourse it being all built upon this false Foundation that all Power on Earth is derived or usurped from the Fatherly Power I need say no more to it For if that be false all that you argue from thence concerning the subordination of all other Powers to this will signifie nothing M. I think I can yet make out my Hypothesis notwithstanding all you have said against it For tho' I grant the Paternal Relation it self can never be usurped or transferred yet you may remember I at first affirmed that Adam was not only a Father but a King and Lord over his Family and a Son a Subject a Servant or a Slave were one and the same thing at first and the Father had power to dispose of sell or Alien his Children to any other whence we find the Sale and Gift of Children to have been much in use in the beginning of the World when Men had their Servants for a Possession and an Inheritance as well as other goods whereupon we find the Power of Castrating or making Eunuchs much in use in old times And as the Power of the Father may be lawfully transferred or aliened so it may be unjustly usurped And tho' I confess no Father or Master of a Family ought to use his Children thus Cruelly and Severely and that he sins mortally if he doth so yet neither they nor any Power under Heaven can call such an Independant Father or Monarch to an account or punish him for so doing F. I am glad at last we are come to an Issue of this doughty controversie and tho I forced you at our last meeting to confess that Fatherly Power was not despotical nor that Fathers upon any account Whatsoever were absolute Lords over their Children and all their Descendants in the State of Nature Yet now I see to preserve your Hypothesis You are fain to recur to this Despotical Power of Fathers in the State of Nature Because without supposing it and that it may be transferred or usurped Princes at this day whom without any cause you suppose to be endued with this Paternal Despotick Power could never claim any Title to their Subjects Allegiance And then much good may do you with your and Sr. R F's excellent discovery For if as you your self acknowledge Princes are no longer related in Blood to their Subjects any nearer than as we all proceed from Adam our Common Ancestor that relation being now so remote signifies little or nothing so that the true Paternal Authority being lost as you confess the Despotick Power of a Lord over his Servants or his Slaves only remains since therefore you make no difference in Nature between Subjects and Slaves then all Subjects Lye at the mercy of their Kings to be treated in all things like Slaves when ever they please And they may exercise an absolute Despotick Power over their Lives and Estates as they think fit So that I can see nothing that can hinder them from selling their Subjects or castrating them as the King of Mingrâ—lia doth his Subjects at this day and as the Great Turk and Persian Monarchs do use those Christian Children whom they take away from their Parents to make Eunuchs for their Sâ—raglio's and then I think you have brought Mankind to a very fine pass to be all created for the Will and Lust of so many single Men which if it ever could be the Ordinance of God I leave it to your self to judge M. I was prepared for this objection before and therefore I think it will make nothing against this Absolute Power with which I suppose God to have endued Adam and all other Monarchs at the first So that I am so far from thinking that this Doctrine will teach Princes Cruelty towards their Subjects that on the contrary nothing can better inculcate their Duty towards them For as God is the Author of a Paternal Monarchy so he is the Author of no other He introduced all but the first Man into the World under the Subjection of a Supream Father and by so doing hath shewn that he never intended there should be any other Power in the World and whatever Authority shall be
no Exorbitant heighth I think I am able to prove from many passages in his Patriarcha as well as other Works that no Author hath made bolder Assertions to render all Mankind Slaves instead of Subjects and all Princes Tyrants instead of Kings and that his Principles are so far from being safe that if they are duly lookt into and weighed they will prove destructive as well to the Rights of Princes as to the Liberties of the People M. I should be very glad to see that proved for I must always believe till you shew me to the contrary that this Excellent Author lays it down for a Ground that Princes being as Fathers to their People are bound to treat their Subjects as Children and not as Slaves and therefore waving this last Controversie which we have argued as far as it will go pray make out what you say from his own words and I will give up the Cause F. I wonder how you can be so partially blind as not to see this since you your self have already made use not only of a great deal of his Doctrins but also of his very words And therefore pray see his Obedience to Government in doubtful times as also in his Preface to the Observations upon Aristotle's Politicks where you will find he asserts That Adam was the Father King and Lord over his Family a Son a Subject and a Servant or a Slave were one and the same thing at first The Father had power to dispose of or sell his Children or Servants Whence we find that at the first reckoning of Goods in Scripture the Man-servant and the Maid-servant are number'd among the Possessions and Substance of the Owner as other Goods were So that then if the Power of a Father and of a Monarch be all one and that all Monarchical Power is Despotical the Consequence is also as evident that all Subjects are also naturally Slaves unless their Princes shall please to lay an easier Yoke upon them M. Perhaps Sir R. F. may have carried this matter a little too far yet if you please to look into his Patriarcha Chap. 3. Par. 1. you will find that he hath this passage which plainly speaks the contrary The Father of a Family Governs by no other Law than by his own Will not by the Laws and Wills of his Sons and Servants There is no Nation that allows Children any Action or Remedy for being unjustly Governed and yet for all this every Father is bound by the Law of Nature to do his best for the preservation of his Family but much more is a King always tyed by the same Law of Nature to keep this general Ground That the Safety of his Kingdom be his Chief Law Whence you may observe that tho' he takes away all Remedy from Children against their Parents for being ill Governed yet doth he not set the Father free from all Obligation to preserve the Good of his Family of which sure a Man's Children are a principal part And if you please to look back to the second Chapter Par. 3. you will find these words To answer in particular to the first Text it may be said the sense of these words By the Law of Nature all Men are born free must needs mean a Freedom only that is opposite to such a Subjection as is between Father and Son This is made manifest by the Text of the Law For Ulpian in this place speaketh only of Manumission which is a setting at Liberty of Servants from Servitude and not of Emancipation which is the freeing of Children from the Fathers Tuition Servitude as the Law teacheth is a Constitution of the Law of Nations by which a Man is subject to the Dominion of any other Man against Nature So not every Subjection is Servitude but Subjection contrary to the Law of Nature Yet every Man is born subject to the Power of a Father This the Law it self saith In Potestate nostra Liberi nostri sunt So that you see here be maketh a difference between Servitude and that Subjection that is due to Fathers F. Give me leave to answer these two Instances before you proceed any farther and I shall in the first place make bold to answer your last Instance first because I shall be much shorter upon it But pray take notice by the way that this Author is very high and rigorous for the Absolute Power of Life and Death in all Fathers over their Children in the State of Nature and that they may exercise it for very slight Offences and therefore in this Chapter you have last quoted he seems very well satisfied with the Example of Cassius who threw his Son out of the Consistory for publishing the Agrarian Law for the Division of Lands and I think this was no such great Crime for which a Father might justifie the putting his Son to Death And in the Section before this he justifieth the Power of Fathers amongst the Romans as being ratified and amplified by the Laws of the XII Tables enabling Parents to sell their Children two or three times over So that these things considered I cannot see how this Distinction of Sir R. F. out of the Civil Law will do him any service For tho' I grant indeed that Manumission and Emancipation are two different words yet do they both signifie the same thing and tho' for the greater respect which they would shew to the Condition of Children above that of Slaves they were pleased to make use of different expressions yet whoever will look more closely into the Nature of the Subjection that Children were in under their Parents by the Roman Law will find that the Condition of Children was no better than that of Slaves For First The Father had such an Absolute Power over the Person of the Son that he could sell him three times whereas he could sell a Slave but once Secondly He had such an Absolute Power over his Life that he could take it away whenever he pleased Lastly A Son could have no Property in any Goods without his Fathers Consent till he was emancipated or made free So that if his Father were harsh and ill natured the Condition of a Son was worse than that of a Slave as long as his Father lived And therefore I am still of the Opinion of the Antient Civil Lawyers which assert the Natural Freedom of Mankind according to the Maxim you have now cited And they acknowledge that the Servitude or Absolute-Subjection of Children to their Fathers was not by the Law of Nature but by the Civil or Roman Law peculiar to themselves as I have already proved at our last meeting But to come to your first Quotation whereby you would justifie Sir R. F. for maintaining any unjust Severity in Fathers or Tyranny in Princes because they are both to endeavour the Common Good of the Family and Kingdom t is very true he says so but of this Common Good they themselves are the sole Iudges So that if
those Laws had any thing to do in England before but always supposed the Politick Laws of our Country to be the only measure of the King's Prerogative as also of the Subject's Obedience and Subjection Nor do your own Civil Laws by as much as I know of them make any difference between the Imperial and Political Laws of the Empire for by the one as well as the Other the Civilians understand such Laws or Ediâ—ts of the Emperours which with the Approbation of the Senate were made for the Peace and Well government of the Common-Wealth but I never yet heard of any Imperial Laws whereby the Emperour declared that he had a Right to plunder or murder all the Citizens of Rome or that they believed they were obliged to Suffer by your Imperial Laws without any Resistance I am sure the Senate and People did not believe that the Emperour had any such Authority when they declared Nero and Maximin for their intolerable Cruelty not only Enemies of the Common-Wealth but of Mankind But if by these Imperial Laws of Non-resistance you mean no more than what you laid down in your Syllogism That it is an inseparable Right or Prerogative of Soveraign Powers not to be resisted by their Subjects when you have proved this Proposition by the Laws of Nature and Reason I shall then believe it But as for your Conclusion it being founded upon these Premises it needs no Confutation for if the Imperial Laws of Government do not require your Passive Obedience then Subjects are not bound to perform it And to shew you the Falseness and absurdity of this Assertion that Whatsoever the Imperial Laws of any Government require of its Subjects if it be not contrary to God's Laws they are bound to perform it In stead of Passive Obedience or Patient Suffering of Injuries let us insert to give up to the Soveraign all our Civil Properties and Estates if demanded by him is not forbid by God's Laws and therefore Subjects are bound to perform it when ever it is required by the Imperial Laws For certainly the absolute disposal of the Estates of the Subjects is as unseparable a Prerogative of Soveraign Power as Irresistibility it self as I think I am able to prove if you think fit to dispute that Question But at present I shall only confine my self to confute the Major in your Syllogism In the first place therefore tho' I do grant what you lay down for a Ground to be true That it belongs to Soveraign Powers to be accountable to or punishable by none but God Yet I suppose Resistance of their Violence and Tyranny may very well be perform'd by the People without calling them to a Iudicial Account or erecting a Tribunal for that purpose Calling to an Account and Punishment are acts of Authority of Superiours over Inferiours But Resistance for self-defence is a Right of Nature and which no Man by entering into Civil Government ever parted withal but out of Consideration of a Greater Good to be obtained thereby viz. his own greater Security together with the Common Good of that Civil Society whereof he is a Member which when by the Prince's violence it is once like to be wholly lost his Natural Right of Self-defence for the Preservation of himself and Family again takes place Nor doth he then resist the Supreme Powers as such but as Murderers and Cut-throats who by going about to destroy the People have already loft all that Right they formerly had And of this opinion is that moderate Romish Author Barclay before cited Who in the 16 Chap. of the Book last quoted hath this Remarkable passage What then Can there no Cases happen in which it may be lawful for the People by their own Authority to rise up and resist a King governing Tyrannically His Answer to this Question is there are certainly none as long as he continues King for the Scriptures forbid it which say Honour the King and he who resisteth the Power resisteth the Ordinance of God Therefore the People can have no Power against him unless he committeth something by which he may cease to be King for then he himself abdicates his Kingship and becomes a private Man and by this means the People being made Free that Right returns to them which they had before the King was made But there are but few Facts of that Nature which can produce Such effects And I cannot when I think of it find more than two Cases in which a King doth ipso facto make himself no King and thereby depriveth himself of all Honour Regal Dignity and Power which also Winzerus takes notice of One of these is if he destroys his Kingdom and then gives us the Examples of Nero and Caligula as I have already done And next proceeds to this purpose that when any King designs and doth seriously endeavour to put this in practice he casts off all care and desire of Governing And therefore thereby loses his Empire over his Subjects as a Lord of a Servant loses his Dominion over him by giving up all Care and Government of him And of this Opinion likewise are Grotius and Pâ—ffendorf the two best and most learned Writers on this Subject Who do not think it inconsistent with the Rules of the Gospel for Subjects to resist the King if with a Hostile mind He seeks the Destruction of his People for says the former the Will of commanding and destroying cannot consist together And therefore he who professes himself an Enemy of the whole People does thereby abdicate the Kingdom but that can Scarce seem to happen in a King in his right Witts and who commands only one Kingdom But if he commands more Kingdoms it may so happen that he would destroy the People of one Nation to gratifie the other that he may there make Colonies of them And this I suppose Grotius spoke in relation to the King of Spain who they say had declared that if he overcame the Dutch then in Arms against him he would fell the People for Slaves into America and people the Country with Spaniards M. You very much mistake me if you think by Imperial I meant the Roman Laws but only the Common Laws of Soveraignty which tho' they destroy no Man's Natural or Civil Rights Yet both grant and confirm unto the Legal Soveraign in every Government the Essential Rights of Soveraignty of which I take Non-resistance not only for Wrath but Conscience lake to be one of the Chief And therefore it were much better to venture the utmost that a Tyrant can do towards his People by destroying them than to give the least inlet to Rebellion by Supposing the People may in any case whatsoever resist their Prince For granting the worst that may happen that a Prince once in 1000 years to be so wicked and Malicious as to go about to destroy his People yet he could scarce find means and hands enough to bring it about and admit he should destroy by
are they likewise obliged to maintain this Property when it is once Instituted and the People have as much Right to it as any King can have to his Crown viz. the Civil Law of that Country or Consent of the whole Nation And therefore if according to King Iames the First his Rule a King of a Setled or limited Kingdom will break all the Laws thereof and Degenerate into a Tyrant unless such Tyrant be the Ordinance of God he may certainly be so far Opposed for what can Pirates or Robbers do more than his Officers and Guards by his Commission The former can but Murder Men Ravish their Wives burn their Houses and take away their Estates and if the latter may do so too pray where is the Difference Or what satisfaction is it to me that I am Ruined by one Man having the King's Commission or by another that Ruins me without it Since I am sure God hath given the one no more Authority to do it than the other if then this unlimited Power be neither conferred by God nor Man upon the Civil Magistrates I would fain know any Reason why Thieves and Pirates may be Resisted but their Instruments may not that do the same things And why when Civil Authority exceeds its utmost Bounds the State of Nature or Self-defence may not take place Since the Civil Government is as much Dissolved by such Violent Actions as if a Forreign Enemy had broke in and Conquered the Country But to Answer your Query whether I think a Civil Government may not be where there is no Setled Property in Estates and whether the Eastern Monarchies are not Civil Governments To this I answer that I have Aristotle on my Side who not without Reason Affirms that the Government of one Man where there is no Civil Property and where all Men are Slaves is not Civil Government but that of a Master of a Great Family over his Slaves And tho' I grant that they may have some shew of Civil Government among them as in a Plantation where one of the Slaves may complain to the Master against another for any Injury or Wrong done him yet is not this Property Civil Government any more than that of the Master of a Separate Family who looks upon himself as Absolute Lord over all his Slaves and they allowed him by God only for his Benefit and Grandeur and not he instituted as all Civil Powers are for the Good and Preservation of the Subjects M. But methinks you seem herein to Condemn the Government of Gods own People the Iews which no doubt was an Absolute Monarchy And that restrained by no Laws except what God had expresly prescribed them And yet you see notwithstanding Samuel told them that their Kings should take away their Fields and their Vineyards and give them to his Servants and take their Sons and Daughters to be his Servants or Slaves Yet God leaves them no Power to Resist them for so doing But all the Remedy left them is that they should Cry out in that day because of the King which they had chosen and the Lord would not hear them that is there was no Remedy left them but Patience F. I have already given you my Sense of that Place and I shall speak more particularly to it when you shall come to those Texts of Scripture that you said you would produce for Absolute Subjâ—ction and Non-Resistance And therefore at present I shall only here shew you what the Earl of Clarendon in the above mentioned Survey of the Leviathan cap. 19. hath very prudently as well as honestly said concerning this Text They who will deduce the extent of the absolute and illimited Power of Kings from that Declaration by Samuel which indeed seems to leave neither Property nor Liberty to their Subjects and could be only intended by Samuel to terrifie them from that Mutinous and Seditious Clamor as it hath no Foundation from any other part of Scripture nor was ever practised or exercised by any Good King who succeeded over them and was blessed and approved by God So when those State Empiricks of what degree or Quality soever will take upon them to prescribe a new Dyet and Exercise to Soveraign Princes and invite them to assume new Powers and Prerogatives over the People by the Precepts Warrants and Prescriptions of the Scriptures they should not presume to make the Sacred Writ Subject to their own private Fancies So likewise in a Leaf or two before he speaks much to the same Purpose That what Samuel had said was rather to terrifie them from pursuing their foolish Demands than to Constitute such a Prerogative as the Kings should use whom God would appoint to go in and out before them which methinks is very manifest in that the worst Kings that ever reigned over them never challenged or assumed those Prerogatives Nor did the People conceive themselves liable to those impositions as appears by the application they made to Rehoboam upon the Death of Solomon that he would abate some of that Rigor his Father had exercised towards them the rough Rejection oâ— which request contrary to the Advice of his Wiâ—est Counsellours cost him the greater part of his Dominions And when Rehoboam would by Arms have reduc'd them to Obedience God would not suffer him because he had been in the fault himself From whence you may conclude that this Great Man did not think all Resistance unlawful in Case of General and Intolerable Oppressions M. I shall give you my Opinion farther of what you have now said when you have told me more plainly in what Cases you allow Resistance of the Supream Powers and in what not For till you have been more clear in this matter I cannot tell what Judgment to make of your Tenets F. I thank you for putting me upon so fair a Method And therefore that you may not mistake me and suppose that I would go about to allow Subjects to Resist and take up Arms against the Supream Power upon any less Occasion than an Absoluâ—â— Necessity and apparent Danger of being Destroyed and Ruined in their Lives Liberties and Estates first therefore considering that the Corruption of Humane Nature is such that no sort of Government whatsoever can continue long without some Inconveniences and Mischiefs to particular Men not that any Man either Prince or â—ubject was ever Master of such perfect Wisdom and Goodness as always to peform his Duty so exactly as never to Offend I do in the first place grant that it would be both Undutâ—ful as well as Unjust for Subjects to Rebell aâ—ainst their Prince for his Personal Failings or Vices Undutiful Since the Prince may be often times an ill Man in his private Capacity and yet a good Governour in respect of the Publick and also Unjust since neither do we our selves exactly perform our Duties toward the Supream Powers or to one another as we ought And therefore it is highly reasonable for Subjects to
to maintain their own State and Grandeur and Magnificence of their Kingdoms But I cannot think that these words contain the Original Grant and Charter of Regal Power but only the Translation that was formerly in their High-Priests or Iudges to Kings Kings had no more Power than their other Governours had for there can be no Power greater than that which is irresistible but this Power in the hands of Kings was likely to be more burdensome and oppressive to them than it was in the hands of their Priests and Iudges by reason of their different way of living which is the only Argument Samuel makes use of to dissuade them from transferring the Supream and Soveraign Power to a King And therefore I rather Chuse to translate Mishpat as our Translators do by the manner of the King than with some learned Men by the Right of the King thereby understanding the Original Charter of Kingly Power for it is not the Regal Power which Samuel here blames which was much like that which he himself â—ad exercised while he was Supream Iudge of Israel but their Pompous way of living which would prove very oppressive and burdensome to them and be apt to make them complain who had not been used to such Exactions F. You have I must confess made a much fairer exposition of this out of Samuel than divers of our Hot and Giddy Divines who would render this Mishpat as it is in the Hebrew i. e. the manner of the King by Right of the King whereby they would entitle all Kings whatsoever to an absolute Right to all their Subjects Estates when ever they would take them away not taking notice that this word Mishpat is sometimes used not only in a good but a bad sense not for Right or Power but for an evil Custom or Abuse and therefore you may find in the second Chapter of this Book of Samuel that speaking of the Sons of Eli who were Sons of Belial they knew not the Lord that the Priests viz. their Custom with the People was that when any man offered Sacrifice the Priests servant came whilst the Flesh was in seething with a Flesh-Hook of three teeth in his hand and he strook it into the Pan or Kettle or Caldron or Pot all that the Flâ—sh book brought up the Priest took for himself so they did in Shiloh unto all the Israelites that came thither Where I desire you to observe that that which is rendred in our Translation the Priests Custom is in the Hebrew Mishpat which you render Right so that if this word would do it these wicked Priests had also a Right to take away as much of every Man's Sacrifice as they pleased for themselves nay to take it before God himself was served and the Fat burnt according to the rites of Sacrificing and by the same Rule Kings also by this word Mishpat should have a Right to take what they pleas'd of the Subjects Estates I do like wise also so far agree with you that Samuel does not here describe a a Tyrant but one of those absolute Eastern Princes who made use of a great part of their Subjects Estates as they do at this day to maintain their standing Armies and Royal Pomp and Magnificence so that I grant in short Samuel meant no more when he thus spake to them but since you will have a King he must be maintained like a King and very great Taxes will be laid upon you for this End of which Burden if you shall hereafter be weary or would cast it off agaiâ— you shall by no means do it for since this King shall obtain the Crown not only by Gods appointment but by your own Choice or Election it shall not be in your Power again to depose him since it is your own Act and therefore Samuel tells them That when they should cry unto the Lord in that day because of the King which they had chosen the Lord would not hear them and as long as this King kept himself within these bounds I grant he was not to be resisted Yet nevertheless this place you have now cited as it is very far from Patronising Tyranny or all the abuses of Regal Power so neither do I think it was Samuel's meaning to make the Kings of Israel so absolute or irresistible as that upon no account whatsoever the People might disobey or resist them let them use this Power never so wickedly nay contrary to Gods express commands and the Ends of all Civil Government and therefore pray tell me Suppose instead of these necessary burdens which they should be Subject to when they had a King Samuel had spoke thus to them This King whom you desire shall prove an Idolater and as cruel a Tyrant as Pharaoh or any of the Kings of the Philistines Canaanites or any other Nations who so long Tyrannized over you and shall take away all your Estates and Lives too at his Good Pleasure without any Crime or Legal Trial and in short will not only Himself use you for Slaves but sell you and your Children for Bondmen to the Egyptians and other Nations and shall lay such Grievous Tributes and Burthens upon you that you shall be scarce able to live under them Now can any Man think if the Israelites had been really persuaded that their King must have such an Absolute and Arbitrary Power as a necessary and Inseparable Prerogative of his Crown they would ever have been so fond of such a Government as to have cried out with one Consent Nay but we will have a King over us that we may be like other Nations But sure not to Tyrannize over and enslave us but that he may Iudge us and go out before us and fight our Battels Or do you think if they had had such a King as this they would ever have long endured him for that the Children of Israel did not conceive that their Kings had such an Absolute and Arbitrary Power over them as to oppress them with Taxes and to make their Yoke more grievous to them than they were able to bear or to Tyrannize over them at his good Pleasure appears plainly by the Story in the first of Kings concerning the Children of Israels assembling together at Sichem to make Rehoboam King and you 'll find the Preliminary Conditions of his Government were these All the Congregation of Israel came and spake unto Rehoboam saying Thy Father made our Yoke grievous Now therefore make thou the grievous Service of thy Father and his heavy Yoke which he put upon us Lighter and we will serve thee But see the Answer that Rehoboam made them according to the Wisdom of his Young Counsellours My little Finger Shall be Thicker than my Fathers Loyns And whereas my Father did lade you with a heavy Yoke I will add to your Yoke My Father has chastised you with Whips but I will chastize you with Scorpions And mark what follows upon this Answer So when
all Israel saw that the King hearkened not unto them the People answered the King saying What Portion have we in David Neither have we inheritance in the Son of Jesse To your tents O Israel Now see to thine own House David So Israel dâ—parted unto their Tents And it is farther said So Israel rebelled against the House of David unto this day Nor is this action at all blamed or disapproved by the Scripture or rebuked by any Prophet at that time for tho' the Word is here translated they rebelled yet in the Hebrew it signifies no more than fell away from or Revolted and it is said before that the King hearkened not to the People For the 〈◊〉 which may be also translated REVOLUTION was from the Lord that he might perform his saying which he spake by Ahijah thâ— Sâ—ilonite unto Jeroboam when in the Chapter before the Prophet promis'd him the Kingdom of the Tâ—n Tribes and that God would rend them out of the hand of Solomon i. e. his Posterity and give them unto him who thereupon had a Right to them and that upon his being made King by the People he had also a Right to their Obedience is as evident Since to continue in a State of Rebellion towards one King and an Obligation to obey another are absolutely inconsistent in the same Subject as I have already proved at our second Conference And therefore I cannot but here take notice of that rational Account which the Earl of Clarendon in his Survey of the Leviathan which you before quoted gives of this Revolution Nor did the People viz. of Israel conceive themselves liable to those impositions as appears by the Application they made to Rehoboam upon the death of Solomon that he would abate some of that rigour his Father had exercised towards them the rough Rejection of which contrary to the advice of his wisest Counâ—ellours cost him the greatest part of his Dominions and when Rehoboam would by Arms have reduced them to obedience God would not suffer him because he had been in the fault himself M. After this extravagant way of Arguing when ever the Subjects of any Nation shall think themselves too much oppress'd with Taxes or other Grievances above what they are able to bear if they are not eas'd by the King or Supream Magistrates upon the first Petition they may presently cast off that Power they were under and set up another that would govern them upon Cheaper Terms for if the People of Israel had this Right why may not all other Nations claim the same and this Doctrine however comfortable it might be to the People I am sure it would be very Mischievous to all the Monarchies and Commonwealths in the World and it is likely that the Subjects of the French King nay States of Holland and other Princes would quickly take the first opportunity either to make their Princes and States to â—ax them no more than they please themselves or else they may presently cry with the Israelites To thy Tents O Israel nor can I see how the King and Parliament in England would be in a much better Conâ—ition in Relation to the People they represent should they impose greater Taxes than they thought they could afford to pay and this Priviledge you give the Israelites seems to be clean contrary to what you laid down at our last Conference wherein you excepted great Taxes and Tributes to Princes or States as no just Cause of Resistance or taking up Arms And therefore I think I may very well maintain the old Doctrine about this Matter and that tho' God did rend the Kingdom from Rehoboam and bestow it upon the Son of Nebat whom also when the People had made him King they were obliged to obey because it was Gods will it should be so who gives and takes away Kingdoms from whomsoever he pleases Yet doth not this at all justifie the Rebellion of the Israelites or Iereboam's â—suâ—pation of his Masters Kingdom since God oftentimes makes use of this Rebellion of the People to execute his Iudgment upon a sinful Prince and Nation And therefore it is very remarkable that after this Rebellion of the Israelites from the house of David they never prospered but by their Kings still falling one after another into the same Idolatry till God at last was so highly provoked against them that he suffered them to be carried away Captives into a strange Land near two hundred Years before the Tribes of Iudah and Benjamin underwent the same fate for the like Crime F. I hope you will not be in a Passion because I have brought this Instance of the Israelites Defection from Rehoboam as an Example of the Right that Subjects may have in those Cases I have put to resist or cast off those Supream Powers that God had once set over them For I do confess Divines and other Authors are much divided about this Action of the Israelites some maintaining it to be well done and in Pursuance to God's Will and others holding it to be Down-right Rebellion And therefore I shall not positively assert either the one or the other much less that Subjects may rebel whensoever they conceive themselves overtax't but thus much I think I may safely affirm that if the Israelites had no Right upon any score whatsoever to resist I cannot see why Rehoboam might not have made them if he had pleas'd as Arrant Slaves as ever their Ancestors were in Egypt and what he else meant by saying instead of Whips to chastise them with Scorpions which were a sort of thorny rods with which the Iews corrected their Slaves and Malefactors I cannot understand and as for Taxes tho I confess there is no setting any positive measure to them since no man can positively define what the Exigences of a State may require and I think no good Subjects ought to deny to contribute as much as ever they are able to afford to maintain the Government they live under as long as they receive the Protection of it So on the other side should the Supream Power of any Nation where the People are not meer Slaves under the Pretence of laying necessary Taxes for the Maintenance or Preservation of the Government be constantly exacting from the People more than they were able to pay as if for Example they should out of every Mans Estate take Nineteen parts and leave but the Twentieth for the Subsistance of those that own it I do not think in that Case the People were obliged in Conscience to pay it and might in such Case Lawfully resist those Officers that should come to levy it by force M. I could have argued farther against what you have now said concerning this Right of the People of resisting in case of extravagant or intolerable Taxes but since it is not to the Subject in hand I shall refer it to another time And therefore to return where I left off I shall in the next place shew you how sacred
themselves in Caves and Mountains and yet this was the only defensive War which David made with all his Men about him nay all that he would make and all that he could make according to his Professed Principles that it was not Lawful to stretch out his hand against the Lords Anointed And when these Men are pursued as David was by an enraged and Jealous Prince I will not charge them of Rebellion tho' they fly before him by thousands in a Company Yet there was sufficient Reason why David should entertain these Men who voluntarily resorted to him tho' he never intended to use them against Saul for some of them served for Spies to watch Sauls Motions that he might not be surprised by him but have timely notice to make his Escape And the very presence of such a number of Men about him without any Hostile Act preserved him from being seiz'd on by some Officious Persons who otherwise might have delivered him into Sauls hands And he being Anointed by Samuel to be King after Sauls Death this was the first step to his Kingdom to have such a Retinue of Valiant Men about him which made his Advancement to the Throne more easie and discouraged any Oppositions which might otherwise have been made against him as we see it proved in the event and have reason to believe that it was thus ordered by God for that very End It is certain that Gad the Prophet and Abiathar the Priest who was the only Man who escaped the Fury of Saul when he destroyed the Priests of the Lord were in Davidâ— Retinue and that David enterpriz'd nothing without first asking Counsel of God But he who had Anointed him to be King now draws Forces after him which after Saul's Death should facilitate his Advancement to the Kingdom F. I cannot think your Answer to this Objection satisfactory for first it is evident that when David was at the Cave of Adullam his Brethren and all his Fathers House as soon as they heard it went down thither to him and tho' it be not expresly said that he sent for any to come to his Assistance yet it is plain he refused none that came and to what purpose should he make use of so many as 400 or 600 Men unless it were to defend himself against those Men that Saul might send against him since half a score or twenty Persons had been enough to have served for Spies and if he had thought himself obliged only to run away three or four Servants had been enough in conscience to have Waired on him in any Neighbouring Country but that David thought it no Sin to defend himself from the Violence of those which Saul should send to Kill him is plain from what he says to Abiathar upon his flight unto him after the Death of his Father Abide thou with me fear not for he that seeketh my Life seeketh thy Life but with me thou shalt be in safeguard And if David had not meant by these Words to have defended Abiathar's as well as his own Life if assaulted and without a Possibility of escaping it had been very cold comfort for David to have only assur'd him that he should be in safe-guard with him till the first assault that should be made upon them but that then he should shift for himself for as for his own part he would rather permit his Throat to be cut by the Kings Officers or Souldiers than resist them And therefore tho' I own that it was not Lawful for him to stretch out his hand against the Lords Anointed Since I do not allow any Private Subject to Kill even Tyrants unless a in State of actual War or Battle wherein they are Aggressors nor then neither if it can possibly be avoided Yet do I not find it at all unlawful for David or any other private Man to defend his own Life against such Assassinates as his Prince may send against him So it may be done without a Civil War or endangering the Peace of the Common-Wealth And so much you your self tho' Coldly seem to yield when you say that the very Presence of such a number of Men about David without any Hostile Act preserved him from being seiz'd on by some Officious Persons who otherwise might have delivered him into Sauls Hands For I cannot think that David would have been at the trouble of keeping so many Men only for shew and a Terrour to those Officious Persons you mention without resisting of them if there had been occasion And tho' you tell me that his being Anointed by Samuel to be King after Sauls Death was the first step to the Kingdom to have such a Retinue of Valiant Men about him which made his Advancement to thoâ—punc Throne so much the â—aster and discouraged any Opposition which might have been made against him and that we see it proved so in the Event and therefore have Reason to believe that it was thus ordered by God to that very End I must take the Liberty so far to differ from you For first I desire to know by what Authority David could List 600 or 700 Men in Arms in Sauls Territories and whether according to your Doctrine they were not Rebels for joyning themselves with one who was declared a Traytor by the King And tho' you say it was thus ordered by God I grant indeed it was yet doth it not appear that it was done by any Divine Revelation to Nathan or Abiathar but only by the Ordinary Course of his Providence like other things in the World and therefore it is no fair way of Arguing for you to affirm that what ever David did in the matter of his own Defence contrary to your Principles he must needs do it by express order from God of which the Scripture is wholy silent much less doth it appear from the Story that these Men whom David kept with him were only to facilitate his attaining the Kingdom as you affirm since the Scripture mentions no such thing only that after Saul's Death he went up by Gods Command to Hehron with the Men that were with him and thither the Men of Iudah came and there they Anointed David King over the House of Judah but 't is no where mention'd that these Men were of any use to David for the Obtaining of the Crown since the Tribe of Iudah would have made him King tho' these Men had not been with him for what could 600 or 1000 Men do against so vast a Multitude as the whole Tribe of Iudah And therefore it is evident that these Forces were for no other End than his own defence And tho' you make very light of this State of War in which David was in relation to Saul yet pray tell me supposing that the Duke of Monmouth had really been as he Pretended the Legitimate Son of King Charles the II. but by some Particular Disgust of his Father or by the Intrigues of his Competitor the Duke of York had
made against King Vzziah when he would have burnt Incense in the Temple pray turn with me to the Place and read what is there said And they viz. the Priests withstood Uzziah the King and said unto him It appertaineth not unto thee Uzziah to burn incense unto the Lord but to the Priests the Sons of Aaron that are consecrated to burn Incense go out of the Sanctuary for thou hast trespassed neither shall it be for thine Honour c. And when he persisted therein and took the Censer in his hand to Burn Incense and that thereupon the Leprosy arose in his Forehead the Priests thrust him out of the Temple The LXX render it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. they resisted him Iosephus says they drove him out in haste so that you see they went somewhat farther than Solomons Question Who may say to a King what doest thou And which is more remarkable they withstood him before the Leprosy rose upon his Forehead and no doubt but they would have done the same to him whether that Judgment had happened or not since he went about to Vsurp the Priests Office it not being so much as Lawful for him that was no Priest to set his foot within the Temple But if you look into the History of the Kings of Israel after their Division from Iudah they are so far from teaching us these Lessons of Passive Obedience and Non-resistance that you will scarce find any other manner of Succession amongst them but the Killing of one King and the setting up another and Iehu for Rebelling against and destroying the house of Ahab had the Crown entailed by Gods Promise to his Posterity unto the fourth Generation And tho' I do not produce any of these Examples as fit for our Imitation at this day since what Iehu did was done by Gods express Warrant and Command yet I think they are sufficient Evidences that neither the Person or Power of the Kings of Iudah or Israel were always look'd upon as so Sacred and Irresistible by their Subjects as you suppose M. I am glad you are so ingenuous to confess that most of these Examples you have brought of the Resistance and Murders committed by the Iews and Israelites upon their Kings were not Lawful or can be proposed for the Imitation of Christian Subjects and if so pray make what other use of them you please since à facto ad Ius non valet Consequentia I cannnot deny but that the Succession of the Kings of Israel after Nadab the Son of Ieroboam was very confused God stirring up some or other to Rebel against them and make them away as a Punishment for their former Rebellion and Idolatry Thus Baasha killed Nadab the Son of Ieroboam and Reigned in his stead and for this and his other Sins God threatned Evil against Baasha and against his House Zimri slew Elah the Son of Baasha but he did not long enjoy the Kingdom which he had Vsurped by Treason and Murder for he Reigning but seven days in Tirza which being Besieged and taken by Omri he went to the Palace and burned the Kings House over him with fire and died This Example Iezebel threatned Iehu with Had Zimri Peace who slew his Master And yet Nadab and Elah were both of them very wicked Princes And if that would Justifie Treason and Murder both Baasha and Zimri had been very Innocent but as for the example of Iehu's killing his Master King Ioram you say it was by the particular Command of God and is no more to be produced as an Example for Rebellion and the murder of Princes by the General of their Armies than that because the Children of Israel had a Power given them by God to extirpate and destroy those seven Nations whose Countreys God had given them to Inherit therefore they had a like Right to destroy all other Nations whatsoever that lay near them And therefore those Actions in Scripture which are sometimes Commanded by God for the bringing about the great Designs of his Providence by those Human means that may seem unjust to us are not to be produced for Authorities nor alledged as Examples F. I so far agree with you and I do by no means allow that particular Private Men of what condition soever they are should disturb the Common Wealth and Murder their Lawful Princes tho' wicked or Idolatrous only to satisfy their own private Zeal or Ambition and to set up themselves who perhaps are altogether as oâ—d or worse than him they depose or make away But yet I think I might very well produce these to convince you that there were no better Examples for Loyalty or Passive Obedience among the Iews than other Nations And therefore that your Examples out of the Scripture do hitherto prove insignificant Yet I cannot but take notice of one passage wherein by following the ordinary English translation you fall into a great mistake where you make Baasha to be slain by Zimri because he killed Nadab which as it is there rendered in the English is false for the Words in 〈◊〉 Translation are because he killed him viz. Ieroboam to whom it there immediatelâ— relates which is false for Baasha did not kill Ieroboam but Nadab his Son Neither was it suitable to Gods Justice to destroy Baasha for that which he himself had ordained him to do For God by Iehu the Prophet said to Baasha for as much as I exalted thee out of the Dust and made thee Prince over my People Israel and thou hast walked in the way of Jeroboam and hast made my People Israel to Sin to provoke me to anger by their Sins And therefore the Text concludes this Narration with there words that the Word of the Lord came against Baasha and against his House even for all the Evil which he did in the sight of the Lord in provoking him to anger with the work of his Hands in being like the Housâ— of Jeroboam but the words which immediately follow and because he killed him i. e. Ieroboam cannot be truly rendred in our English Translation for the Reason already given and therefore the best Criticks upon this place Translate it thus leaving out and therefore He viz. the Lord smote him i. e. Nadab by the hand of Baasha Whereas our Translation makes the Scripture to contradict it self I have no more to observe from this History of the Kings and Chron. and therefore I pray proceed to what other Testimonies you have to produce M. Well I think I can make it much more plain from other Examples and Precepts out of Scripture that the Iews were not only under high Obligations to be Subject to the Higher Powers after they were carried Captives to Babylon but also not to resist them tho' they went about to exercise their Power never so cruelly and Tyrannically even to the Destruction of the whole Nation Now the Prophet Ieremiah had given them an express Command Seek the Peace
of Extremity I have already put than to let those who have got the Power over us in their Hands do whatsoever they please with it to our ruine without any controul And also I desire you to consider whether the Fear of such resistance from Subjects when thus outraged and oppress 't may not often be a more Powerful State 's Spell or Charm as you call it to keep the Supream Powers in their Duty than those many Sermons and other Discourses that have been lately preached and publish't that their Power is irresistible and that therefore all their Subjects are bound to endure whatsoever Tyranny they have a mind to exercise upon them In short I absolutely agree with you that as our Saviour never usurpt any Civil Power or Authority and therefore did not new model the Governments of the World so hath he also given Subjects a Right to maintain whatsoever Models or Forms of Government God hath been pleased to establish among them when they are in danger to be altered or invaded either by a Domestick Tyranny or Forreign Force And without this Right of Resistance for you to tell us That Iesus Christ hath given very good Laws and threatned those that break them with Eternal Punishments and that as the Laws and Religion of our Saviour prevail that so the Government of the World will mend without any more ado is altogether as reasonable as to preach that because Christ hath given us good Laws and threatens Everlasting Punishments to those that break them therefore they are sufficient to keep Men from Robbing and Murdering their Neighbours and that all men giving up their Natural Rights of resisting such Robbers and defending themselves against them should wholy relie upon the Effiâ—acy of the Commandment against Stealing or else on the more Powerful Motive with such People of a Judge and a Gallows should let them do with us what they please whenever we fall under their Power And therefore I desire you would give me some better proofs that our Saviour hath enjoyned all Mankind an absolute Subjection to the Supream Powers under pain of Damnation without any Resistance in any Case whatsoever but I pray pardon this Digression which your own long Preface extorted from me M. I shall not now dispute this matter with you and therefore to observe your Commands I shall begin with that Divine Answer of our Saviour to the Pharisees and Herodians when they consulted together to entangle him in his Talk They came to him with great Ceremony and Address saying Master we know that thou art true and teachest the way of God in Truth neither carest thou for any Man for thou regardest not the Person of Man Tell us therefore what thinkest thou Is it lawful to give Tribute to Caesar or not They thought it impossible that he should give any Answer to this which would not make him obnoxious either to the Roman Emperours if he denied that the Iews might Lawfully pay Tribute to Caesar or to the Pharisees and People if he affirmed that they might for there was a very potent Faction among them who thought it unlawful for the Iews to own the Authority or Usurpations of any Foreign Prince or to pay Tribute to him as to their King They being expresly forbidden by the Law To set a Stranger over them for their King who was not their Brother that is who was not a Natural Iew. And it seems they could not distinguish between their own Voluntary Act in chusing a Stranger for their King which was indeed forbid by their Law and their submitting to a Foreign Prince when they were conquered by him Our Saviour who knew their Wicked Intention in all this that they did not come with an honest Design to be instructed in their Duty but to seek an Advantage against him expresses some Indignation at it Why tempt ye me ye Hypocrites but yet to return them an Answer to their Question he bids them shew him the Tribute Money that is the Money in which they us'd to pay Tribute and enquired whose Image and Superscription it had For Coining of Money was then as certain a mark of Soveraignty as making Laws or the Power of the Sword Well they acknowledge that the Image and Superscription on the Tribute-Money was Caesars upon which he replies Render therefore unto Caesar the things that are Caesar 's and unto God the things that are Gods The plain meaning of which Answer is this that since by the very Impression on their Money it is evident that Caesar is the Soveraign Lord they must render unto him all the Rights of Soveraignty among which Tribute is one as St. Paul tells us Render therefore unto all their Dues Tribute to whom Tribute is due Custom to whom Custom Fear to whom Fear Honour to whom Honour Whatever then is due to Soveraign Princes and doth not interfere with their Duty to God that they must give to Caesar who at this time was their Soveraign And tho' our Saviour commands us only in general to render to Caesar the things that are Caesars without telling us what Caesar's things are this is so far from making his Answer Ambiguous and of no use in this present Controversie that it suggests to us three plain and natural Consequences which are sufficient to end this whole dispute First That our Saviour did not intend to make any Alteration in the Rights of Soveraignty but what Rights he found Soveraign Princes possest of he leaves them in the quiet Possession of for had he intended to make any change in this matter he would not have given such a general Rule to render to Caesar the things that are Caesars without specifying what these things are Secondly And therefore he leaves them to the known Laws of the Empire to determine what is Caesars Right What ever is essential to the Notion of Soveraign Power whatever the Laws and Customs of Nations determine to be Caesar's Right that they must render to him for he would make no alteration in this matter So that Subjection to Princes and Non Resistance is as plainly determined by our Saviour in this Law of paying Tribute for Subjection and Non-Resistance is as essential a Right of Soveraign Power and as inseparable from the Notion of it as any thing can be and so it is acknowledged by the Laws and Customs of Nations and is so determin'd by the Apostle St. Paul as I shall shew hereafter Thirdly I observe farther that when our Saviour joyns our Duty to our Prince with our Duty to our God Render to Caeâ—ar the things that are Caesars and to God the things that are Gods he excepts nothing from Caesars Right which by the Laws of Nations is due to Soveraign Princes but what is a Violation of and an encroachment on God's Right and Soveraignty that is we must pay all that Obedience and Subjection to Princes which is consistent with our Duty to God This is the only
to consider the force of your own Comparison for you say he who Resisteth any Subordinate Magistrates Resists the Princâ— from whom they receive their Authority and Commission yet it is only in such things which the Prince hath given them Authority or a Commission to do as for Example a Bayliff may Arrest me for Debt by vertue of the King 's Writ yet if he goeth about to Rob or Kill me I may lawfully Resist him and if I kill him it is no murder The same may be said of all other Subordinate Ministers how great soever they are therefore to carry on your Parallel the same that Subordinate Magistrates are in Relation to Princes the same are Princes in respect of God Therefore if they never received any Commission or Authority from God to destroy and enslave their People they so far cease to be the Powers ordained by God and sure may then be Resisted by their opprest people As for the rest of your Speech as far as Earthly Princes are placed in the Throne by God and Govern there like his Vicegerents I own they are not to be Opposed but since you will have them to be submitted to because they may be Ordained by God for a Punishment for a Wicked People I thank you for putting me in mind to answer what you have before said upon that Subject I do not deny but God may often for the Punishment as you say of a sinful Nation give them a wicked or Tyrannical Prince and likewise that such a Prince when thus Imposed by God is to be born without Resistance as far as is possible or that may consist with their being a People and with those Enjoyments of Life which are necessary to their being Subjects and Freemen and not Slaves And tho' I grant that God doth likewise sometimes punish a wicked Nation by appointing Conquerours such as the King of Assyria to carry them away captive and to reduce them to the Lowest Condition of Poverty and Slavery as in this Case of the Iews by the King of Babylon who was then the Rod of Gâ—d's Anger and whom he raised up for the punishment of an Hypocritical Nation Yet when he doth so excluding all farther Resistance in the People it can only be known by Dâ—vine Revelation and cannot extend to all Conquerours whatever whether by Right or Wrong And therefore as God doth often in his Arger deliver the People up to the Power of some Cruel Conquerour or Tyrant so likewise will he in his good time and upon their Repentance deliver them from it again Now this Deliverance must be performed either by Miracles or Human Means Now Miracles are ceased and therefore since only Human Means remain these must be either 1 st by changing the Hearts of such Tyrannical Princes into a better and more merciful Temper towards their Subjects as Solomon says The King 's Heart is in the Hand of the Lord as the Rivers of Water he turneth it whithersoevâ—r he will Or else 2 dly by taking away such a Tyrannical Prince out of the World and putting another in his stead who may Govern the People more mercifully and who will not any more destroy or oppress them as his Predecessors did Or 3 dly by stirring up some Neighbour Prince to revenge the Injuries and Oppressions done unto such a persecuted and almost ruined People and to restore them to the Enjoyment of their former Liberties Religion and Estates Or lastly by stirring up the People themselves to Rise and Resist those Oppressions they lie under by their own single Forces or by imploring the Assistance of some Powerful Neighbouring Prince or State Now I suppose you will not deny but that the first of these ways does never happen the second very rarely and as for the 3 d. we seldom find that when a former Prince is taken out of the way his Successor grows so sensible of the Tyranny and Misgovernment of his Predecessors as to let go any of that Arbitrary Power which he hath usurped or to remit any of those intolerable Taxes and Oppressions which He hath laid upon them but are commonly like Rehoboam when they come to the Crown so far from making their People's yoak more easie that they rather lay it more heavy upon their Necks as we may see in the Kingdom of France in these three last descents where every Prince hath been still more severe and Tyrannical than his Predecessor for finding himself invested in this Absolute and Despotick Power without any unjust Act of his own he will exercise it as he found it and will think himself not at all obliged in Conscience to restore any of those just Rights his Predecessors had formerly usurpt upon the People since we find Princes seldom lose any thing they have once got and this may continue to all generations for ought we know which is much too long for a punishment unless some extraordinary Accident fall out as we now see by the Example of the Greek Christians who having lain divers Ages under the Mahometan Yoak are now restored to the Liberty of their Religion by the Arms of the German Emperour and Venetians and are so far from being blamed for joyning themselves to their Deliverers that they are rather commended by all Christendom for so doing And I see no Reason why all good French men as well Protestants as others may not as justly joyn themselves to the Prince of Orange or any other Foreign Prince who will be so generous as to undertake their Deliverance from that Cruel Yoak they lie under and will restore them to their Antiens Liberties and the Protestants to the Free Exercise of their Religion Nor can I see any Reason why God should deliver a People into Servitude when ever a Tyrannical Prince hath sufficient Power to oppress them and why God may not be as well said to deliver them as often as the People find fit means and opportunity so to set themselves free For doth such a Tyrant derive his Power from God to oppress only because he hath Power And may not the People likewise from the same Original derive a Right to defend themselves against such an intolerable Oppression Otherwise God would chiefly regard and provide for this destructive Tyrannical Power of Princes as the chief end of all Civil Society and make the Good and Happiness of the People as subordinate to that or rather only by the by which is contrary to Reason 'T is true the Prophet Amos saith That there is no Evil in a City which God hath not sent So likewise are all Natural Evils such as Famine Pestilence Inundations and Foreign Enemies and yet have not the People in these Cases a Power to rid themselves of them if they can by all natural human means and yet they may be likewise Punishments sent from God And if they may Resist and decline such common and natural Iudgments without staying for an express Revelation for that purpose why
may they not for the same Reason rid themselves of such a Iudgment as Intolerable Tyranny when they are able and have an Opportunity to do it since they proceed from the like Common Dispensations of God's Providence or else we must believe that the Wickedness of one or more persons for the Destruction of Civil Society the is more particularly derived from God than the Power of the whole People for their own Preservation and the common Good and Happiness of the Common-wealth By which means Princes would have the same Power and Right over their Subjects Bodies and Estates as they have over those of their Beasts to sell kill and devour them at their Pleasure M. Tho' I grant it may be lawful for a People to remove Natural Iudgments by human Means yet doth it not follow that they may therefore remove by Force such Punishments as God pleases to lay upon them from the Abuse of Civil Authority by the Supream Powers since He hath particularly enjoyned them to bear such Punishments patiently without any Resistance because they are inflicted by those whom God hath Ordained for our Temporal Governours and Masters and whose Violences and Oppressions as long as they continue in their Sins God hath very good reason to continue upon them and if they Repent they may be assured that in his good time he will either remove them or turn them to the best For all things even Afflictions work for the good of them that fear him And God will not suffer those that trust in him to be afflicted beyond what they are able to â—ear And if this Doctrine of yours might take place both Servants and Children in the State of Nature might upon the like Pretence both Resist and turn their Father and Master out of doors because forsooth their Government was so severe and Tyrannical that it was not any longer to be endured by them And tho' such severe Fathers or Masters may be Ordained by God for the Punishment of such wicked Children and Servants yet that being no more than other natural Iudgments they may be without any Sin removed by Force or Resistance when ever they thought themselves strong enough to do it And if this Doctrine be wicked and absurd in private Families then is it much more so in Kingdoms for certainly there is as perfect a Subjection due to a Soveraign Prince as to a Father or Mâ—ster for he is more Eminently the Minister of God and Acts by a more Sacred and inviolable Authority And notwithstanding what you have said to the contrary that the Precep given to Servants by St. Peter doth not concern Subjects I think I can very well prove that it doth as appears from the Example of Christ which the Apostle there recommended to our Imitation who was the most innocent person in the World and yet suffered the most barbarous Usage not from the hands of a private Master but of the Supream Powers And therefore when he commands in the same Chapter to submit to Governours as to those who are for the punishment of Evil doers and the praise of them that do well it is evident that he did not intend this as a Limitation of our Subjection or as if we were not bound to be subject in other Cases since in the very same Chapter he requires Subjection not only to the Good and Gentle Masters but also to the froward in Imitation of the Example of our Lord who suffered patiently under unjust and Tyrannical Powers I observe therefore that the Apostle doth not alledge this as the Reason of our Subjection but as a Motive or Argument to reconcile us to the practice of it The Reason of our Submission to Princes is that they are advanced by God that they are his Ministers that those who Resist them Râ—sist the Ordinance of God and therefore we must submit for God's sake out of Reverence to his Authority But it is only an Encouragement to Subjection to consider the great Advantages of Government that Rulers are not a Terrour to good Works but to the Evil. But tho' this Motive should fail in some Instances yet whilst the Reason of the Subjection lasts and that can never fail whilst we own the Soveraign Authority of God so long it is our Duty to be subject whether our Prince do his Duty or not F. Altho' what you have now replyed is no more in effect than â— Repetition of what hath been said before yet I forgive it since your Cause will admit no other nor can I see any Reason why Natural Iudgments may 〈◊〉 removed by Force or Natural Means but not Moral or Civil ones unless you could also prove that it is God's Express Command that we may remove the one but not the other nor have you proved it otherwise than by telling me that Princes are God's Ordinance and are endued with Irresistible Power all which hath been already considered And I have already shewn you it is neither Commanded by God nor yet Ordained for the Common Good of Mankind And tho' I own that Afflictions may sometimes serve for a Punishment of a sinful Nation yet it is as likely that such a great and lasting Punishment as a mercilesâ— Tyrant may as well bring the People to Repentance and when they are sâ—fficiently amended they may very well enjoy the Benefits of it and they may as well expect that God will bless all Lawful Means for that end whereof I take Resistance or self-defence to be the Principal since Miracles are ceased And of this we have an Example in the 2 d. of Kings chap. 18. For tho' Ahaz the Father of Ezekiah had submitted himself and become Tributary to the King of Assyria yet when Hâ—zekâ—ah his Son turned to the Lord it is said that he was with him and that he rebelled against the King of Assyria and served him not and yet he was then as much subject to him as Iehoiachin or Zedekiah were afterwards to Nebuchadnezzar So that all that is new in this Answer of yours is only the fatal Consequences that it would bring upon all Families in the State of Nature for then forsooth Children and Servants might likewise pretend that the Government of their Fathers and Masters were so insupportable that it was no longer to be endured and so might Rebel against them and depose them which doth by no means follow for I have already proved at our first Conversation that some sort of Resistance for the Preservation of Life and Limbs may be lawful against the Outrages or Violence of a Father or Master of a Family Yet do I by no means allow that they should Resist them for any other Correction or severe Usage which they shall inflict upon them since Servants or Slaves whilst they continue under their Masters Power can have no Liberty or Property of their own to defend and a Son whilst he remains part of his Fathers Family I grant differs not from a Servant so that all that
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
auire homme de People Mes Ed. Roy son fils ordeign que home sueroit vers Roy per Peticion Mos unques Roys ne seront adjugez Si non per euâ— melmes lour Iustices So that if the former part of it â—e Law the latter must be so too and then it will directly contradict what you have quoted before out of Bracton That in the time of Henry the 3d in which he lived there lay no Remedy against the King but only by Petition Whereas this Opinion makes him before the time of Edward the First to have been liable to the same Legal Process with other Men. But notwithstanding this Passage in the Year-Book may very well bear a legal Interpretation only by supplying what is indeed to be understood after the Words non pas les Peers le Commune viz. Sans assent du Roy which as it was then true So I hope it will ever be so But I think I can give you a much better Authority than this Year-Book to prove where the Power of Making and Dispensing with Laws doth truly reside viz. The Solemn Declaration of the King Lords and Commons in the 25th Henry 8. a Prince as Jealous of â—is Prerogative as any of his Predecessors where in the Preamble read these words It standeth therefore with Natural Equity and good Reason that in all and every such Human Laws made within this Realm or induced into this Realm by the said Sufferance Consents and Custom your Royal Majesty and your Lords Spiritual and Temporal and Commons Representing the whole State of your Realm in this your High Court of Parliament have full Power and Authority not only to dispense with those and all other Humane Laws of this your Realm as the Quality of the persons and matter shall require And also the said Laws and every of them to Abrogate Annull Amplifie and Diminish as it shall seem to your Majesty and the Nobles and Commons of your Realm present in your Parliament Meet and Convenient for the Wealth of your Realm c. Whereby you may plainly see that the Power of Making Abrogating and also Dispensing with Laws is by this Act ascribed joyntly to the King and the Two Houses of Parliament But though I do not affirm that they have a Co-ordinate Power with the King in making Laws yet they have a Co-operative Power therein which yet is no more than your Co-operation for what is a Co-operation but a Power of working together and how can three Distinct Bodies work together without each contribute their share to produce the Intended effect M. Perhaps I may have bin too unwary in my expression but pray answer the Authorities I have brought from our Ancient English Saxon Laws Wherein it seems plain to me that the King had then the Sole Legislative Power F. I grant he had a chief share in the Legislative Power but not the Sole Power that is He could make no Laws but in the Great Council and by their Consent And this you might have seen as well as I if you had not slyly past by what made against you and therefore in the first place to begin with your Instance of Offa's giving that Boon to the Roman School I think the Authority you bring for it is very Slight for though I own that Matthew Paris who writes his Life Relates this Donation to have been made at Rome without mentioning any Consent or Confirmation of his Great Council Yet this seems but an imperfect account of the matter and according to the usual way of the Writers of those times who are not so exact in such matters as they should be And therefore though Offa did give or vow these Pence at Rome yet the Gift might receive its force from the Consent of his Great Council after he came home Since all his Laws and the Acts of his Councils are lost unless it be one which Sir H. Spelman hath given us from such Remains as have bin saved out of the Libraries of several Monasteries at their Dissolution And this contains no less than the Consent and Confirmation of his Great Council Assembled at Calcuith Anno 940. for the Foundation and Endowment of the Abby of St. Albans as also that of another Council at Verulam for the Conferring of divers other Lands of his own to that Monastery Now I leave it to any indifferent Man to judge Whether that King who could not bestow his own Demesnes upon the Church without the Consent of the Common-Council of the Kingdom could give away at once the 30th Peny of all his Subjects Estates for ever without their Consents I am sure the Donation of the same sort of Pence by King Edward the Confessor which is now to be found among the Laws of King William the First is said to be granted Communi Confilio Regni and that the Saxon Kings could not bestow their Lands upon Religious Uses See Sir H. Spelmans Councils where Baldred King of Kent is an evident Example who though he had given the Mannour of Mallings in Sussex to Christ-Church in Canterbury Yet because his Principes and Great Men that is his Great Council consented not thereto it was revoked untill King Egbert and his son Ethelwulf did afterwards renew the said Grant with the Consent of a Great Council held at Kingston An. 840. as you may see in the same Volume last cited And I am sure after the Heptarchy when our Kings were more Powerful the same King Ethelwulf could not by his meer Prerogative Grant the Tythes of his Subjects Estates to the Clergy without the Consent of a Great Council of his Bishops and Principal Men held at Winchester An. Gratia 855. and Intituled thus Celebris ilâ— donatio Ethelwulfi Regis decimae manfionis omnium benorum per terram suam Deo Ecclesiae factae confirmaâ—â—â— M. I Grant that perhaps these Kings could not dispose of their own Lands or the Estates of their Subjects without the Consent of their Great Council any more than the Kings of France could formerly yet I hope they were Absolute Monarchs for all that F. I beg your pardon if I have bin somewhat long in answering your Example of King Offa. But I will now shew you that they could no more make Laws than dispose of their own or their Subjects Estates without their Consent and which you your self might easily have seen if you had pleased to have Consulted Sir Henry Spelman as Diligently as you have done Mr. Lambard for there you might have found that about the Year 712. King Ina Assembled a Great Council or Parliament wherein he made Ecclesiastical Laws concerning Marriages c. and did other things ad concordiam publicam promovendam peâ— commune Consilium Assensum Episcoporum Priâ—cipum Procerum Comitum omnium Sapientum Seâ—iorum Popillorum totius Regni So likewise if you will please to look into the Decem-Scripâ—ores you will find how Althesian's
and all along the Authoritative parts are expressed by Statuimus volumus interdicimus probibemus praecipimus So that by these Expressions in his Laws the absolute soveraignty of the Conqueror in the point of Law-giving is manifest I shall content my self with a very few Authorities because the matter is so plain Ordoricus Vitalis saith thus Eamque i. e. England Gulielmus Rex suis Legibus commodò subegit And Eadmâ—r Contemporary with the Conquerour in his History thus Vsus atque leges quas patres sui ipse in Normannia solebâ—nt in Anglia scribere volens Cuncta divina simul humana ejus nutum expectabant From whence you may see that all matters as well Spiritual as Temporal depended upon his sole will And tho we have no particular account of what Laws his Son William Rufus made yet we may presume according to the Testimony of Historians that he was altogether as absolute in those Councils he called as his Father as may be seen in Eadmerus his account of his Transactions with Archbishop Anselm So that it is certain he governed by his own absolute Authority raising what money he pleased upon his Subjects 'T is true that in the Reign of his Successor Henry the First the People found some little relaxation by reason of the Charter he made them containing several mitigations of the severity of the Feudal Laws as also those of Forests yet even these are said to be made by his own single Grant and Authority tho I confess it was granted in a great Council So likewise in Florence of Worcester we find that in 28 th of Hen. I. That King confirmed the Acts of a Synod or Council of the Clergy of the Province of Canterbury and gave his Royal Assent to them As for King Stephen tho he was a Notorious Vsurper and Set up and Crown'd by a Faction of Bishops and some few Temporal Lords and that not long after his Coronation he in a Great Council at Oxford granted to all his Subjects another Charter of divers Priviledges and Freedoms from the former Exactions yet the words of the Charter are in his own name and by his own authority solely as appears by these words Observari praecipio constituo But Richard Prior of Hexham alias Hagulstad in his Chronicle closes his Charter thus Haec omnia concedo confirmo salva Regia justa Dignitate mea From which words it is plain that he never meant to part with any of the just and necessary Prerogatives of his Crown So likewise King Henry the Second in a Great or General Council held at London confirmed the Great Charter granted by King Henry the First his Grand-father but this Charter also runs wholly in the King 's own name without any mention of its being assented to either by the Bishops or Nobles And as for the Constitutions made at the Great Council of Clarendon tho that King made the Archbishops Bishops with all the Clergy as also the Earls Barons and Nobility all swear to observe them yet the Enacting part proceeded only from the King as appears by their very Title thus Assissae Henrici Regis factae apud Clarendon c. And Mat. Paris concludes these Constitutions with Decrevit enim Rex From whence it appears that it was the King alone that decreed and Constituted those Laws I shall not say much of the Great Councils in Richard the First 's time since he did not reign long enough to call many but in that held at Notingham we find that the King diseized Gerard de Canville and others and that the King appointed to be given him two Shillings on every Carucate of Land throughout England c. From whence I shall observe that the words Rex praecepit constiâ—uit c. as they are in this Historian shew that the King then had solely the Authoritative Power of passing all Consultations of these Councils into binding Laws even where money was to be levied on the Subjects and that seisure was to be made of their Estates But to come to the more troublesome and perplext Reign of King Iohn in which there were many Great Councils holden yet I shall instance but in some few of them mentioned in Mat. Paris as that of St. Albans held by Ieffery Fitzpeter and the Bishop of Winchester in this King's Absence where ex parte Regis it was firmly enjoyn'd under penalty of Life and Limb that the Laws of King Henry his Grandfather should be kept by all in his Kingdom From whence we may observe that the Laws had their force only from the King's Authority as appears by this expression ex parte Regis firmiâ—er est praeceptum And when afterwards at Runningmead he was compelled to sign the first Magna Charta I own it was done in a Great Council of Bishops Earls and Barons as well those who stood for him as against him Yet that it proceeded wholly from his own good will is plain from the Charta de Foresta of this King as appears by these words Ad emendationem Regui nostri spontanea bona voluntate nostra dedianus concessimus pro nobis haredibus nostris has libertates subscriptas From all which Charters of Liberties we may conclude that the Petitions of the People were drawn into the form of a Charter and passed under the King's Seal as his meer voluntary free Grants and Concessions without their Votes Suffrages and Authority And sometimes such Rights or Liberties have been bestowed and declared by our Kings by way of answer to the Petitions of the Lords and Commons and that this custom is not yet discontinued appears by the Answer of K. Charles the first to the Petition of Right when no other answer would please the Commons but the King 's expressed Assent to their Petition in these words Sole Droâ—â—t faict comme esâ— dâ—sire But to return to the Reign of Henry the Third F. I beseech you Sir give me leave now to answer what you have already alledged out of our Hiâ—â—oâ—iâ—ns for the Supreme and Absolute Power of our Kings before we proceed further to less obscure times And therefore I must tell you that you have in this long speech of yours made use of all the Artifice of an Advocate for a Party viz. in urging all that can any way make for you and slyly passing over whatsoever may make against you And to begin with your story of King William the First I shall not now dispute whether there were any Englishmen in those Great Councils or whether they consisted only of Tenants in Capite since I shall defer that Question till anon But as for the English you have put upon the French Title of the Laws of this King it is not fairly rendred for in the French it is Apres le Conquest dâ— la â—erre which doth not always signifie a subduing by force but by any other ways of acquisition different
particularly to the 55 th Law of William the First part of which I have already cited it begins thus Volumus etiam ac firmiter praecipimus concedimus ut omnes liberi homines totius Monarchiae Regni nostri praedicti habeaâ—t teneant terras suas pâ—ssessiones suas bene in pace libere ab omni exactione injusta ab omni Tallagio ita quod nihil ab ois exigatur vel capiatur nisi Servitium suum liberum quod de jure nobis facere debent facere tenentur prout statutum est eis c. So that whatsoever was done at any time contrary to this Statute was illegal and consequently ought not to be quoted as any part of the King's Prerogative But that the Nobility and People of England had divers Rights and Liberties before the time of King Iohn and of his granting that Charter appears by its conclusion in these words Salvis Archiepiscopis Abbatibus Prioribus Templariis Hospitalarâ—is Comitibus Baronibus Militibus omnibus aliis tam Ecclesiasticis Personis quam secâ—laribus libertatibus quas prius habâ—erunt And as for the rest of the Liberties granted by this Charter tho they are said to have been granted from the King 's meer good will yet that is recited only to make it more strong against himself since the Nobility and People of England claimed those Liberties as their ancient undoubted Right And the same Author as I have already hinted expresly tells us that this Charter contained Maxima ex parte leges antiquas And a little lower he relates where those Liberties were to be found Capitula quoque legum libertatum quae ibi Magnates confirmari quaerebant partim in Charta Regis Henrici superius scripta sunt partimque ex Legibus Regis Edwardi aâ—â—iquis excerpta So that they were not only the effect of the King 's meer Grace and Favour as you suppose But if you please now to descend to the Reign of Henry the Third and so downward from which time our Eldest Printed Statutes bear Date let us see if I cannot answer all those Arguments which the Gentlemen of your opinion have thence brought for the King 's Sole Legislative Power M. Tho I do not allow of your notion of the Conqueror's not being properly and really so as I shall shew you another time when I shall more particularly consider that Argument of the Right of Conquest in King William and all his Successors therefore I do at present readily assent to your Proposal and it was the very thing I was coming to And therefore I shall begin with the Magna Charta of Henry the Third which begins thus Know ye that We of our Meer and Free Will have given these Liberties The Statute de Scaccario Anno 51 Hen. 3. begins thus The King commandeth that all manner of Bayliffs c. The Statute de Districtione Scaccarii made the same year runs thus It is Provided and Ordained The King willeth The Statute of Marlbridge 52 Hen. 3. And he i. e. the King hath appointed all these Acts Ordinances and Statutes to be observed of all his Subjects If we come to the Reign of his Son Edward I. and begin with the Statute of Westminster I. it is there said in the Preamble These are the Acts of King Edward I. made at his first Parliament by his Council and by the Assent of the Archbishops Bishops c. And in the first Chapter 't is said The King hath Ordained and Established these Acts. And tho I grant that in divers Statutes of this King at in this of Westminster it is recited that the King by the advice of his Counsel or Assent of the Archbishops Bishops Earls Barons c. have Made Provided Ordained or Establisht such and such Laws yet it is plain that the Enacting or Decreeing part is wholly ascribed to the King in all those Statutes wherein such words are found as I shall make it appear more plainly by the Statute of Act on Burnel made in 13 Edw. I. where it is said The King by himself and all his Council hath Ordained and Established And in the Statute of Westminster 3.18 Edw. I. Chap. I. Our Lord the King in his Parliament at Westminster at the Instance of the Great Men of the Realm hath Granted Provided and Ordained In the Statute De iis qui ponendi sunt in Assizes 21 Edw. I. Our Lord the King in his Parliament holden c. hath Ordained that c. The Statute of Quo Warranto 18. Edw. I. runs thus Our Lord the King at his Parliament holden at Westminster of his special Grace and for the Affection he beareth unto his Prelates Earls and Barons hath granted That c. I Edw. II. begins thus Our Lord the King hath Granted The Statute of Gavelet 10 Edw. II. begins thus It is provided by our Lord the King and his Iustices The Statute of Carlisle 15 Edw. II. begins thus The King unto the Iustices of his Bâ—nch sendeth Greeting Whereas of â—ate We have Ordained c. But if we come to the Reign of his Son Edw. 3d. The Prefaces to most of the Statutes made in his Reign run thus Our Lord the King by the Assent of the Prelates Earls c. and at the Request of his People hath granted and established or else at the Request of the Commonality hath ordained c. The like Stile continued during the Reigns of Richard the 2d Henry 4th and Henry 5th with very little Alteration only it was commonly at the Request of the Prelates Dâ—kes Earls and Barons and at the Instance and Special Request of the Commons the King hath Ordained c. Whereby we see a plain difference in the Phrases of the Statutes of those times for it is the Lords that give their Assent whereas the Commons only Petitioned but it is the King alone who Ordaineth and Establishes I confess indeed that under some Princes of bad Titles as in particular under the Minority of Henry 6th there began some Alteration in the form of penning the Enacting part of most Statutes that were then made and that unto those usual words which were inserted ordinarily into the Body of the Acts from the beginning of the Reign of that King viz. by the Advice and Assent of the Lords Spiritual and Tempâ—ral and at the Special Instance and Request of the Commons there was added by the Authority of the said Parliament But it is still to be observed that though these words were added to the former Clause yet the Power of Granting and Ordaining was still acknowledged to belong to the King alone as appears by these Acts of Parliament of that King viz. the 3d. Henry 6th Ch. 2. 8th Hen. 6. Chap. 3. Where it is said our Lord the King by the Advice and Assent and at the Request aforesaid hath ordained and granted or Ordained and Established by the Authority of this Parliament And thus it generally
stood but every General Rule may have some Exceptions till the beginning of the Reign of Henry 7th about which time that usual Clause at the Special Instance or Request of the Commons began by little and little to be laiâ— aside and that of their Advice or Assent to be inserted in the place thereof For which I do refer you to the Statute-Book at large which Form I confess continues to this day yet even in Hen. 7ths time in the first of that King and the 7th Chap. it runs in this Stile The King our Soveraign Lord of his Noble and Abundant Grace by the Advice and Assent of the Lords Spiritual and Temporal at the Supplication of the Commons in the said Parliament Assembled and by Authority of the same Ordaineth And though the Statutes of Hen. 8th do generally agree in their Style with those of his Father Yet in his time also many Acts were drawn up in Form of Petitions as 3 Hen. 8th c. 14. Prayen your Highness the Commons in this present Parliament Assembled and 5 Hen. 8. c. 4. Prayen the Commons in this present Parliament And in the Reign of his Son â—d 6th tho' I grant that most of his Acts do run in the usual Form yet this one is very Remarkable I Edw. 6. c. 4. Wherefore the King our Soveraign Lord c. At the Humble Petition and Suit of the Lords and Commons in this present Parliament Assembled doth Declare Ordain and Enact by the Assent of the Lords Spiritual and Temporal and the Commons in this present Parliament Assembled and by the Authority of the same Which last words though they may seem to refer to the Parliament and may make Men think that the Lords and Commons did then pretend some Title unto the Power of making Laws Yet neither Adviseing nor Assenting are so Opperative in the present Case as to Transfer the Power of making Laws to such as do advise about them or assent unto them nor can the Alteration of the Forms and Styles used in Ancient times import an Alteration of the Form of Government unless it can be shewed as I think it cannot that any of our Kings did Renounce that power which properly and solely did belong unto them or did by any Solemn Act of Communication confer the same upon the Lords and Commons convened in Parliament And therefore upon the whole matter since in almost all our most Antient Statutes it is precisely express't that they were made by the King himself the meaning of those general words used in latter times that the Statutes are made by Authority of Parliament are particularly explained in former Statutes viz. that the King Ordaineth the Lords Advise the Commons Consent as by comparing the Writs with the Statutes that expound the Writs will evidently appear F. In answer to those Authorities you have now brought I doubt not but I shall give you others of as great weight that prove the direct contrary to what you now Assert To begin with your Instance of Magna Charta I shall shew that those Charters that were granted and confirmed by Henry 3d. were not his Acts or Grants alone but the Grants also of the whole Kingdom Represented in Parliament We have two Express Declarations for the one in the 25th of King Edw. 〈◊〉 Where is to be found in the Parliament Roll of that Year a Confirmation of the Great Charter of Liberties and Forests in these Words which I shall render to you in English out of the Old French for your better understanding Know ye that the Honour of God and Holy Church and for the profit of our whole Realm We have granted for us and to our Heirs that the Great Charter of Franchises and Forests which were made by the Common Assent of the whole Realm in the time of King Henry our Father should be held in all Points without any Blemishment So likewise we find another Confirmation of those Charters in the Parliament Rolls of the 15th of Edw. 3d. which being in Old French I shall render it into English Imprimiâ— it is Accorded and Assented that the Franchise of Holy Church and the Great Charter of Forest and the other Statutes made by our said Lord the King and his Progenitors the Peers and the Commons of the Land for the Common profit of the People shall be firmly kept and maintained in all Points So that you may hence plainly see that the King himself with the whole Parliament declare and that in two several King's Reigns that the Great Charters were not only the Free Grants of King Henry but also the Ioynt Acts of the Common Council of the whole Kingdom and why King Iohn's Charter should not be made by the like Authority being one of his Progenitors I see no reason especially if we consider that that Charter was first drawn up by the Barons in the Form in which we find it and was past by that King under his Great Seal in that vast General Council or Assembly at Running-Mead And certainly whoever can draw up a Law and can offer it to a Prince to Confirm and without which consent of theirs it would not be good must necessarily have a share in the making of it As for your other Instances of those Old Statutes made in the Reign of Heâ— 3d. though I grant they begin as you say in the Kings Name Yet if you would but have read a little further you would have found that in divers of them the Bishops Earls and Barons gave their Consents to them And for the Proof of this I shall begin with one of the Antientest Statutes we have left us viz. that of Merton in the Preamble of which it is recited Provisum est in Curia Domini Regis apud Merton where after the parties that were present at the making of the Laws it concludes thus in the Latin Copies ita provisum est Concessum tam a praedictis Archiepiscopis Episcopis Comitibus Baronibus quam ab ipso Rege aliis where you see the Providing and Enacting Part is Ascribed to the Bishops Earls and Barons as well as to the King who is here mentioned almost last of all And though I confess that there was then no Set Form of Penning of Statutes in that honest and plain Age when Parliaments did not last so many Days as they do now Weeks and that the King's Judges and Council drew up the Acts after the Parliament was up in what Form they pleased sometimes leaving out any mention of the Bishops sometimes of the Temporal Lords and most commonly of the Commons Yet that they did all give their Consents to such Acts appears by the Statute of Westminster the 1st which you have already Cited where the Assent of the Arch-Bishops Bishops c. Counts Earls Barons and all the Commonalty of the Land is expresly mentioned So likewise the Statute of 51. of King H. 3d. concerning Measures begins thus Per
for the Correction of the 12th Ch. of the Statute of Gloucester was Signed under the Great Seal and sent to the Iustices of the Bench after the manner of a Writ Patent with a Certain Writ closed Dated by the King's Hand at Westminster 2 Maiâ— 9 Edw. I. Requiring that they should do and Execute all and every thing contained in it though the same doth not accord with the Statute of Gloucester in all things 19 Hen. 3d. a Provision was made de assisa praesentationis which was continued and allowed for a Law until the Statute of Westminster 2 which provides the contrary in express words So that in the Old Statutes it is hard to Distinguish what Laws were made by Kings in Parliament and what out of Parliament especially when Kings called the Peers only to Parliament and of those how many or whom they pleased as it appears Anciently they did it was no easy matter to put a Difference between a Council-Table and a Parliament or between a Proclamation and a Statute Not but that I own in Old Times there was a Distinction between the Kings Special or Privy Council and the Common-Council of the Kingdom and yet his Special Council did Sit with the Peers in Parliament and were as part thereof and were of Great and Extraordinary Authority there as may appear by divers Acts of Parliament some of which I have already Recited as the Statute of Westminster I. Where it is said These are the Acts of Edward made at his I. Parliament by his Council The Statute of Acton Burnel 13 Ed. 1st hath these words The King for himself and by his Council hath Ordained and Established And in Articulis Super Chartas there are these Provisions Nevertheless the King and his Council do not intend And both the King and his Council and all they tâ—at were present Will and Intend that the Right and Prerogative of his Crown shall be saved to him in all things And before these the Commons often Petitioned the King As 1 Edw. 3d. where Magna Charta was confirmed the Preamble is thus At the Request of the Commonalty by their Petition made before the King and his Council in Parliament by the Assent of the Prelates Earls and Barons c. I could give you many more Examples of this Kind but that it is needless only these may suffice to let you see That the King's Council had a Great Authority in those times and perhaps was more Ancient than the Great Council it self Yet I cannot forbear to give you one or two Authorâ—tâ—es more to prove that the King with the Advice and Consent of a Council of his Earls Barons and other Wise Men hath sometimes taken upon him to Repâ—â—â— aâ— the Statutes made in a Precedent Parliament as contrary to the Laws and Customs of this Realm and to his Prerogatives and Rights Royal though Granted by him in manner of a Statute And for this you may see the Statute of 15th Edward the 3d. at large in Pulton's Collection So likewise in the Preface of the Statute of Westminster 20 E. 3. that We viz. The King by the Assent of our Great Men and other Wise Men of our Council have Ordained c. Where you may observe that here is no mention either of Lords Temporal or Commons I could give you more Examples of this kind were it not too tedious From which statutes it seems plain to me that this King did sometimes Exercise a Prerogative of Making and Repealing Laws without Consent of Parliament In the next place I desire you to take notice that these words you so much rely upon viz. by the Authority of this present Parliament and be it Enacted by the King Lords and Commons as if they were three Co-ordinate Estates was never in use till the Reign of Hen. 6th and Hen. 7th two Notorious Vsurpers And that the King 's Single Answer to the Lords and Commons Request is a Sufficient Act of Parliament without any mention of the Concurrent Authority of the Lords and Commons Enacting the same the President I gave you of King Charles's Answer to the Petition of Right may suffice though you have not vouchsafed to give me any Return to it So that I think these Instances may serve instead of many Arguments for the proof of this Truth that the Legislative Power as We Phrase it now is wholy and solely in the King although Restrained in the Exercise and vse thereof by constant Custom unto the Counsel and Consent of the Lords and Commons For Le Roy le veult or the King will have it so is the Imperative Phrase by which the Propositions of the Lords and Commons are made Acts of Parliament And let the Lords and Commons Agitate and propound what Laws they please for their Ease and Benefit as generally all Laws and Statutes are more for the Ease and Benefit of the Subject than the Advantages of the King yet as well now as formerly in the time of the Roman Emperors only quod Principi placet Legis habet Vigorem nothing but that which the King pleases to allow of is to pass for Law The Laws not taking their Coercive force as Judicious Hookeâ— well observes from the Quality of such as Devise them but from the Power that giveth them the Strength of Laws So that to Determine the matter Logically The Legislative Power is either largely and improperly or Strictly and Properly taken Largely taken it signifies any Power which hath the Authority to provide the Materials of a Law and to Judge what is Iust Convenient or Necessary to be Enacted and to declare when any Matters duly prepared are made and granted into a Law and this Ministerial sort of Legislative Power improperly so called the two Houses have and Exercise yet by Authority front the Grown But then the Legislative Power is Strictly and Properly taken for the Power of Sanction or for that Commanding Ordaining Power which gives Life and Being to the Law and force to oblige the Conscience of the Subject and this is radically and Incommunicably in the King as Soveraign And therefore as I have already said all the Ancient Acts run in the King's Name alone And from the Legislative Power thus properly taken the Laws are properly called the King's Laws and the Violation of them is punishable as such F. You have made a very long Speech and taken a great deal of pains to perplex a Question in it self very easy to be Resolved and to which I need return you no other Answer then what Bracton tells us in his 3 d. Book cap. 9. de actionibus Nibil aliud potest Rex in terris suâ—â— cum sit Dei minister vicarius nisi id solum quod de Iure potest nâ—â— oâ—staâ— quod dicitur quod Principi places legis habet vigorem quia sequâ—â—uâ— in fine legis cum Bege regâ—a quae de Imperio ejus laâ—a est i. e. non quiâ—quid de
voluntate Regis teâ—â—ere praesumptum est sed quod consilio Magistratuum suoâ—an Rege Authoritatem praesâ—aâ—â—e babâ—â—a super hoâ— deliberatâ—one So that you see in the time when this Author Writ the King could do no more by his Prerogative then the Law allowed him to do and though it is true it is his Will and Authority that gives Vigour to the Law yet this only as it is declared in Parliament and in those Acts which had before received the Consent of his Great Council here called the Kings Magistrates And therefore you have done what you can to confound the difference between the Kings Declaration or Writs Explaining and Enforcing the Common Laws of England or else Interpreting former Acts of Parliament already made which was a Prerogative often exercised by the King and his Council in Parliament which then consisted of all or most of the Iudges and Great Officers of the Kingdom of which I shall speak more at large by and by And I confess we are much in the Dark because our Ancient Parliament-Rolls are almost all lost and consequently the Statutes therein contained So that we have almost nothing left of them but such Copies or Remains as were preserved by Iudges and Lawyers in those and Succeeding times whilst they were still in Being And therefore I think I may at present boldly affirm that if that which you call the Statute of Ireland was not founded upon some former Statute not now in being it was no Act of Parliament at all but only the King 's Writ to the Chief Justiciar of Ireland Commanding and Enforcing the Common Law of England in the Case of Coparceners to be observed in Ireland The like I may say to the Explanation of the Statute of Gloucester which might be no more than the Interpretation of the King and his Iustices of the Sense of some Articles in that Statute and this for its Greater Authority Exemplified under the Great Seal and so sent to all the Courts at Westminster and often to the Sheriffs of all the Counties in England yet without altering that Statute in some Points as you would have it The like I may say of the Statute of Acon Burnel and therefore it is very rashly done to conclude that though we have not the Original Acts and Records of Parliament of that time that therefore such Statutes were made by the King alone in his Privy Council So that I must still continue of the same Opinion with the Great Selden in this Point who in his Marâ— Clausum tells us It is most certain that according to Ancient Custom no Answer is given either by the King or in the King's Name to any Parliamentary Bill before that Bill whether it be brought in first by the Lords or by the Commons hath past both Houses as is known to all that are versed in Parliamentary Affairs Which if it hath bin the Fundamental Law of this Kingdom it signifies very little in what Form the Law is express't whether in the King's Name only as giving the last Assent thereto or else as his Concession to the Lords and Common's Petition as long as you grant that their Assent was necessary For sure whosoever Petitions another to do a thing which he cannot impose upon him without his Request must give his consent to the Doing it unless you can prove that it could be done whether the Petitioner would or not And this by the way will serve to answer an Objection which though you insist much upon it is scarce worth it viz. The King's Answer to the Lords and Commons Petition of Right which was indeed no Grant or Concession of any New Rights or Priviledges from the King to the People But only a Declaration of several Ancient Rights and Liberties of the Subjects which had been very much broken and infringed of late and therefore the King's Answer was very proper soit Droict faict comme est desire The next mistake you fall into proceeds from your confounding the King 's extraordinary Council in Parliament with the King 's Special or Privy Council and in a manner making this a fourth Estate by whom as well as by the Lords and Commons Laws are often made whereas indeed neither the one nor the other is true For tho I grant that there is often made mention in our Ancient Statutes or Records of the Kings Council yet this is not to be understood of his Privy Council but of a Special Council with whom our King 's formerly sate during the time of Parliament and before whom and to whom we find by divers Records that both the Lords and Commons did often Petition as you your self do truly affirm But that this was not the King 's Privy Council but another quite different from it And to which it seems to me that Fleâ—a refers in his 2d Book Cap. 2. Habet enim Rex curiam suam in Concilio suo in Parliamentis suis praesentibus Praelatis Comit. c. And this Council consisted of all the Great Officers of the Kingdom viz. The Lord Treasurer Chancellor and Keeper of the Privy Seal Master of the Wardrobe the Judges of the King's Bench Common Pleas Barons of the Exchequâ—r Justices Itinerant and Justices of Assizes with such of the Dignified Clergy as it pleased the King to call Which that they were altogether distinct from the King 's Privy Council appears plainly by this that the later never included all the Iudges nor did the Privy Council ever exercise any Iudicial Authority in Parliament as this Council did in those days but that this Council consisted of the Parties above mentioned see the Statute of Escheators made 29 Edw. I. and in the Placita Parliamentaria of that year the Statute runs thus Per Consilium Regis concordatum est coram Domino Rege ipso consentiente c. But in the Close Roll of this year it is clearly explained who were of this Council their Names being there particularly recited viz. all the Great Officers above-mentioned together with the Iudges of the King's Courts and Justices Itinerant c. Which is likewise explained by the Parliament Roll 9. Edw. 2. Rex voluit quod Dominus Cancellarius Thesaurarius Barones Soaccarii Iustiâ—iarii alii de Consilio Domini Regis Londin existente convenirent I could give you many more Examples of this kind but I shall give you but two more to prove that this Council in Parliament could not be the King 's Ordinary Privy Council The first is in Placit Parliament 2 Edw. 3. in a Cause betwixt Thomas Fitz-Peter and Alienora Wife of Iohn de Mowbray Coram Rege The Record is long but concludes thus to the Justices Et si difficultas aliqua subfuerit quare praemissa facere non possâ—tis tunâ— placitum illâ—â—d usque in Prox. Parliamentum nostrum udjornetis ut ibidem â—unc inde fieri valeat quod de Consilio nostro fuerit faciendum By which we may very
well gather that this was none of the King 's Ordinary or Privy Council or else to what purpose was this Cause adjourned to the meeting of the next Parliament Since if it had been to be determined by the Privy Council it might have been done forthwith I shall give you but one Instance more out of the Close Roll of the 41 of this King wherein a Cause between Elizabeth Wife of Nicholas D'Audley and Iames D'Audley in a Controversie between them touching certain Lands contained in in the Covenants of her Marriage is said to have been adjudged Devant Son Conseil c'est a scavoir Chanceller Thresorier Iustices Aâ—ires Sages assemblez en la Chambre des Etoiles i. e. Before his Council viz. the Chancellor Treasurer Justices and other wise men assembled in the Star-Chamber So that when any thing in our old Statutes is said to be Ordained by the King and his Council it is always to be understood not as if this Council were a fourth Estate whose Assâ—nt or Advice was as necessary to the making of Laws as that of the Lordi Spiritual Temporal and Commons for then they would have had the same Power still but only according to the Custom of those times when most Acts of Parliament were drawn by them and that the King past none without their advice it was then said to be done by the King and his Council viz. in Parliament and I conceive the Power of this Council continued till the beginning of the Reign of Henry the Seventh when this Court being by Act of Parliament annexed to that of the Star-Chamber where also this Council of the King used to meet before as appears by the Case I have last cited and having afterwards only to do with Criminal Causes and that as well out of as in Parliament and that King Hen. 7 th not caring to exercise his Iudicial Power in private Causes as his Predecessors had done or to make use of their advice either in the drawing or passing of Bills which now began to be drawn by Committees in either house wherein those Bills were preferred this Council came by degrees to grow quite out of use as it is at this day I hope you will pardon this long digression which I have been drawn into to rectifie a Common mistake of the Gentlemen of your opinion who when they find any thing in our ancient Statutes or Records wherein the King's Council is mentioned presently entertain strange fancies of the Antiquity and Authority of the Privy Council M. I am so far from thinking this Discourse you have now made to be at all tedious that I give you many thanks for it since it gives me a light into many things which I confess I did not know before and I shall better consider the Authorities you have now given me and if I find they will hold shall come over to your opinion in that point tho I am not as yet satisfied as to the Legistative Power of the two Houses and therefore pray proceed to answer the rest of the Presidents I have brought on that Subject F. I shall readily comply with your Commands and therefore to come to those Statutes of the 15 th and 20 th of Edw. 3. which you suppose to have been repealed by that King without the Consent of the Lords and Commonâ— I grant indeed that the Statutes you mention were intended to be repealâ—d by the King without Assent of Parliament Yet was this not done by himself and his Council alone as you suppose but by a Council of Earls Barons and Commons which the Kings of England in those days were wont to call upon emergent occasions and for the doing of that which they thought Parliaments could not so speedily perform as in this pretended repeal of the Statute you mention And tho I grant this was a great brâ—â—ch upon the fundamental Constitutions of the Kingdom yet that it was done in such a Great Council as I have now mentioned I refer you to this pretended Statute its self and to your recital of it And that the King often called such Great Councils appears by an agreement of Exchange made for the Castle of Berwick between King Hen. IV. in the fifth year of his Reign and the Earl of Northumberland where the King promiseth to deliver to the Earl Lands and Tenements to the value of the Castle by these words which I shall render out of French from the Original which remains in the Tower By the advice and â—ssent of the Estates of the Realm and of his Parliament so that the Parliamâ—nt happen before the Feast of St. Lucie otherwise by the Assent of his Great Council and other Estates of his said Realm which the King will cause to be assembled before the said Feast in case the Parliament do not happen c. And yet notwithstanding this high strain of Prerogative King Edw. III. himself was not satisfied with this repeal of those Statutes you have mentioned but in the next Parliament held in his 17 th year he procured a formal and Legal repeal of them as by the Parliament Rolls of that year remaining in the Tower doth plainly appear And which I could give you at large did I not fear to be too tedâ—ous But I think it fit to let you know this because most ordinary Readers seeing no more appear in Print in our Statute Books are apt to imagin that the Kings of England in those days did often take upon them without Authority of Parliament to make and repeal Laws But as for your next Instance of the Statute of Edw. III. it is much weaker since tho I confess that in the Preface to these Acts there is only mention of the Great Men or Grantz as it is in our old French and other wise Men of our Council yet I shall prove at another time that under this word Grantz were meant the Lords in Parliament as by the wise men of our Council are understood the Commons And therefore it seems most reasonable to interpret the sense of many ancient Statutes wherein the King alone is said to make and ordain Laws by those later or more modern ones wherein the King by the Consent of the Lords and Commons or by Authority of Parliament is said to have Ordained them Since the true Stile and Meaning of ancient Laws which were penned with the greatest brevity ought to be still Interpreted by the Modern ones and not the Modern ones by the Ancient So that I am of the Learned Mr. Lambardâ— opinion who in his Arcbâ—ion or Discourse upon the High Courts of Justice in England expressly tells us That whether the Laws are said to be made by the King and his Wise Men or by the King and his Council or his Common Council or by the King his Earls Barons and other Wise Men or after such other like Phrases whereof you meet with many in the Volumes of Parliaments It comes all to this one
Point namely That the King his Nobility and Commons did Ordain and Enact the same And which is more if you shall find any Acts of Parliament seeming to pass under the Name and Authority of the King only as there be some that have that shew indeed yet you must not by and by judge that it was established without the Assent of the other Estates As for the rest of your Insinuations rather than Arguments against the Antiquity of those Expressions Be it Enacted by Authority of Parliament or Be it Enacted by the King Lords and Commons which bear so hard upon you to prove that these last have a share in the Legislative that they were introduced in the Reigns of Henry VI. and VII two Usurpers and but in the Nonage of the former I think I shall be able to shew you that you are very much out in your account for I will shew you much ancienter Authorities wherein the same words or others equivalent have been used in our ancient Statutes And first pray call to mind the Statute of Measures already recited where it is said That by the Consent of the whole Realm of England the Measure of our Soveraign Lord the King was thus made c. which certainly must mean the Assent of all the Estates assembled in Parliament And my Lord Coâ—e tells us in his Third Institutes of an ancienter Record that he had seen of the 7 th of this King wherein it was Enacted by the King the Lords Spiritual Temporal and Commons But since I have given you Presidents enough of Statutes which are said to be made or ordained by the King with the Assent of Lords Spiritual and Temporal and Commons I will shew you one where the King is not at all mentioned and that is in Rastal's Statutes 4 Hen. 4 cap. 24. concerning Aulnage of Clothes wherein it is said to be ordained and accorded by the said Parliament without any mention at all of the King And to let you see that these fatal words you except against were in use before the Reign of Hen. 6. pray see 9 Hen. 5. cap. 4. concerning the Misprision of Clerkâ— in writing which runs thus The King hath now declared and ordained by Authority of this Present Parliament that the Iustices c. which must certainly refer to the Lords and Commons unless you can make the King alone to carry the whole Parliament in his own person But whereas that Phrase had began from Vsurpation it would have been first found in the Statutes of Henry the 4 th But to let you see that Edward the 4 th tho no Usurper yet did not think that these words did abate any thing of his Royal Prerogative pray see in the 4 th of that King Cap. 1. wherein it is recited That the King by the advice assenâ— request and authority of the Lords Spiritual and Temporall and Commons in Parliament assembled hath ordained and established But that by Assent of Parliament and by Authority of Parliament is all one and the same since the Assent of Parliament makes its Authority Pray see the express Judgment in this point of the Lord Chief Justice Crew and Justice Doderidge given in the Great case of the Earldom of Oxford reported in Judge Iokes's Reports To conclude tho I do not deny His Majesties Negative Vote to all Acts of Parliament yet this Prerogative can be concluded only from his giving his last Assent to a Law for when a Bill begins from himself the two Houses have likewise a Negative upon him which is evident in an Act of Pardon which proceeds from the King first and sent down to the Parliament this neither the Lords nor Commons can add or alter one tittlâ— to yet may they notwithstanding his prior Asent refuse the whole Bill if they please tho already past under the Great Seal And tho I likewise grant that it is the Le Roy le Veult that by yielding the highest and last Assent gives the Enacting force to the Law and thus the King may in a Logical sense be said thereby to make the Laws according to that known Maxim Quod dat formam dat esse â—ei Yet this does not hinder but in a Legal sense according to the express declaration of our old Lawyers and Acts of Parliament the Laws owe their obligation to the joint consent of King and Parliament and his giving his last assent or form to the Law no more proves his sole Legislative Power than it would do that of the Lords or Commons if either of them by the Constitution of the Government were to give their Asents last thereunto So that I think upon the whole matter no man can reasonably deny but that Legally the Two Houses of Parliament have also their share not only in framing but Enacting of all Bills that shall pass for otherwise they would signifie no more than the Committee of Estates in Scotland or the King and Council of England in relation to Ireland the former of which draws up all Bills that are to pass in the Parliament of that Kingdom and the latter must approve or reject all Bills that shall pass in the Parliament of Ireland Whereas the Authority of our Parliament consists in their consenting to and Enacting together with the King all Statutes whatsoever And this Distinction I think may very well reconcile Bracton with Fortescue the former of which says Quod leges ligant suum Lâ—torem meaning the King and the latter in the place I have already cited affirms that the People are governed by those Laws quas ipse feâ—t which they themselves make and this I think is to ascribe to the King as much Power as is requisite to a Civil Soveraign and yet to leave a sufficient share to the People to secure themselves from Tyranny M. I must beg your pardon if I cannot be satisfied with your division of the Legislative Power beiween the King and the Two Houses of Parliament since it is against the sense of our old Lawyers Glanville and Bracton who as you your self confess make the King the Sole Legislator And tho I confess Fortescue gives the People a share in it yet he is but a Modern Author in comparison of the other two and writ to support the Vsurped Title of Henry the Sixth So that I cannot comprehend how the Two Houses can have any share properly speaking in the Legislative Power without falling into that old error of making the King one of the three Estates and so co-ordinate with the other two whereas if the King be a Monarch that signifies in Greek the Government of one person whereas by giving the Two Houses a part in the Legislative you divide it into three several shares Whereas there is so close a conjunction between all the Parts of Soveraign Power that the one cannot be separated from the other but it will destroy the form of the Government and only set up an Irregular Commonwealth in its place
Dissolving of the Assembly of the Estates was a Power of Great Trust it was put into the Prince's Hands by Writ to Convocate as also to Prorogue or Dissolve such meetings But in Process of time some Princes not caring much to have their Government lookt into or to have any Power in Being but their own taking Advantage of this Power of Assembling these Estates did more seldom then need Required make use of it Whereupon provision was made and a time set by New Statutes within which an Assembly of Parliament was to be held Now when you have made these true Suppositions in your Mind you have the very Model and History of this Monarchy and we shall easily find what to answer to the Arguments before produced on either side For first it is his Parliament because an Assembly of his Subjects Convocated by his Writ to be his Council and to assist him in making Laws for him to govern by Yet not his as other Courts are as deriving their whole Authority from the King So likewise his Power of Assembling and Dissolving them proves him thus far above them because though as to the time of their meeting it depends on him Yet their Power and Authority quoad Specificationem i. e. the Being Kind and Exercise of it is from the Original Constitution For as to that they expect no Commission and Authority from him but only for their meeting to proceed to Act but when met they Acts according to the Original Rights of their Constitution and those Acts proceed from their Conjunct Authority with not from their Subordination to the King in the Legislative as also in laying of Taxes c. on the People The Oath of Allegiance indeed binds them as his Subjects to obey him governing according to Establisht Laws But yet it supposes them to be built upon the Foundations of his Legal Government and must not be interpreted to Vndermine and Destroy it He is hereby acknowledged to be Supream so far as to Rule them by Laws already made or to be made but not without them So that this is no Derogation to the Legislative Power of Parliament And I believe of these things no unprejudic'd Man can make any Question And herein consists the accurate Judgment of the Contrivers of this Form that they have given so much into the Hands of the Soveraign as to make him truly a Monarch Yet have reserved so much in the hands of the People as to enable them to preserve their Laws and Liberties M. I confess you have given a long and plausible account of the Original and Form of our Government though if it come to be examined I doubt it will prove a meer Romance and not at all agreeable to true History or Matter of Fact Since if we look to the Eldest times either after the Saxon or Norman Conquests We shall find the Power of our Kings to have bin still more Absolute then they are now And I think I could easily trace the Steps by which the People have attained to all the Power and Priviledges they now enjoy which as I do not grudge the Nobility and People of this Nation Yet they ought to exercise it with a due respect and Subordination to that Power from which they were all at first derived least if they should ascribe them to themselves the King should be tempted to destroy those Great Priviledges and taking away the very Being of Parliaments to make Laws without them But to shew you farther that this Notion of an independent Power in the two Houses by the Original Constitution of the Government is altogether inconsistent with the King's Prerogative appears from clear Matter of Fact even as you your self have put it For when Kings thought fit not to have their Power Controuled you acknowledge they called Parliaments less frequently than usual and that thereupon there were divers Laws made appointing certain times for their meeting from whence it appears that before this the times of their meeting were wholy left to his Discretion Nay farther that the King's Prerogative of Assembling them or omitting it when he pleases cannot be limited by any Act himself can make appears from hence that notwithstanding all those Laws that have bin made for Annual and Triennual Parliaments our Kings have never thought themselves obliged to call Parliaments ofâ—ner than they saw their own occasions or the necessities of the People which they themselves were Sole Iudges of required Nor did any Parliaments ever find fault with this till that Rebellious one in 1641. which had the confidence to present to the King a Bill to be past whereby it was not only Enacted that there should be a Parliament every third Year but that upon the King 's omitting to issue forth Writs of Summons the Sheriffs nay Constables might Summon the Free-holders and proceed to Election and that the Lords might also meet without any Writs from the King which was quite contrary to the Original Constitution by which as you your self grant there could be no Parliaments without his Summons he being Principium Capus finis Parliament And if so it seems wholy improbable nay impossible to me that your Two Houses should have by the Original Constitution any Power of meeting or doing any thing without his Majesties Consent and Allowance and we know that at this day the Spâ—aker in the Name of the House of Commons desires of the King Liberty of Spâ—ech And King Henry 8th and Queen Elizabeth did sometimes Rebuke the House of Commons and sent to them to Desist when they were about to pass any Bill they did not approve of or to meddle with those things which did not belong to them Which plainly declares that contrary to your Affection neither of the Two Houses have any Power to proceed upon any Business or to pass any Bill which the King disapproves of And though I grant that they do not ask the Kings leave for the bringing in or Passing of all Bills whatsoever in either House or that the King can command them to give him what Money or pass what Bills he pleases Yet this Priviledge must needs proceed from his Grant or Concession to the contrary Whereby though he hath discharged them from an Active Obedience to such Commands Yet hath he not thereby divested himself of any of the Essential Rights of Soveraignty or at all discharged them from a Passive Obedience or Submission to his Power supposing the worst that can happen that he should take away what share he pleased of the Subjects Estates without their Consent or make his own Edicts and Proclamations to be observed for Laws Since the King's Authority is prior to all others and that as the Statutes of Edward the 6th and Queen Elizabeth which I have already quoted expresly declare All Power Authority and Iurisdiction Spiritual and Temporal is derived wholy from the King so that unless your Legislative Power of Parliament be somewhat that is neither an Authority
will not affirm that the Ecclesiastical Authority of Bishops as to their Right of meeting in publick Synods or Councils is derived from the Crown But the Truth is the Sense of this Statute is no more then that all such Iurisdiction is immediately derived from the King though Originally from the People which Fortesoue calls Potestatem à Populo effuxiam and by them intrusted with him as the Supream Magistrate to Distribute it to all Inferior Courts which yet he cannot at this Day Create anew without an Act of Parliament so that this will not extend to the whole Assembly of the Estates themselves Since I doubt not but to prove by undeniable Testimony that that Constitution is as Ancient as the English Nation it self M. I see you have a mind to wrest the true sense of this Statute by a forced Interpretation but I hope at our next meeting to prove to you that our first Saxon and Norman Kings were Absolute Monarchs and that not only all the Liberties and Priviledges we enjoy but also our Civil Properties were wholy derived from him and if so it will also necessarily follow that all Difference and Distinction in Honour or Power by which the Bishops and Temporal Lords can claim to Sit in Parliament is wholy derived from those Kings For as to the Commons I need not go so high for their Original since it is the Opinion of our best Antiquaries and I think the Learned Dr. Brady hath sufficiently proved it against Mr. Petyt that they are no Ancienter than the latter end of Henry the 3ds or perhaps the 18th of Edw. the 1sts Reign Nor do the Authors you have quoted for the Independant Authority of Parliaments viz. â—â—acton and the Mirrour mention any other than the Curia Baronum or that of Counts or Earls as the Author of the Mirrour hath worded it by which can be meant no other than the House of Lords for as to that of the Commons had they bin then in Being or had they had any thing to do in the Government it is not likely these Ancient Authors as well as our Acts of Parliament of those times would have omitted particularly to mention them So that the higher I go and the more I look on the History of our Ancient English Kings the more Absolute I find their Power and the less dependant upon the People Therefore I have very great reason to believe that our first Kings were Absolute Monarchs not only by the Original Constitution of Parliaments but also that our very Liberties and Properties proceeded at first from their meer Grace and Pavour F. I know you have Asserted the same things more than once All the Difficulty lies in the Proof And therefore I would not have you be too positive or rely too much upon the conciseness or Silence of the Ancient Monkish Writers of those first times For since as I own they have never given us any exact account of our Ancient Civil Government nor yet of the History of their own times We are forced for the most part to pick out the Truth from other Circumstancâ—s or such Passages as we can meet withal in their Ancient Laws and Customs nay sometimes from those of their Neighbours who lived under the same kind of Government and Laws with our Saxon Ancestors as proceeding from one Common Stock or Original as I shall shew you before we have done But since we are already in Possession of our Ancient Laws and Liberties and of a Right to Parliaments once every Year or oftner if need be by two Ancient Statutes yet in force at farthest once every three Years by a late Act of Parliament it ought to be your Task to prove to me the Absolute Power of our first English Monarchs and by what Steps and Degrees they came to part with their Power and to be thus limited as we now find them and when you can shew me this I do assure you I will come over to your Opinion M. I shall observe the Method you prescribe And therefore to begin with the first Entrance of the English Saxons into this Island I suppose you are not Ignorant of so Common a piece of History that all the Title they had to this Island was by the Sword or Conquest of their first Princes or Generals who being sent by Lot together with the Armies that followed them out of their own Country because it was too narrow or barren to sustain such great Multitudes they came over hither to seek new Dwellings Now whether these Princes were made Kings before they came over or that they made themselves so immediately after their Conquest will be all one since if we consider them as Military Captains or Leaders of Armies their Power was Absolute as that of all Generals ever was and must be by the necessary Laws of Military Discipline If we look upon them as Kings or Princes as it is very likely they were also before they came over since they were certainly of the Blood Royal all of them deriving their Pedegree from Woden their God as well as first King being thus made Kings by their Fathers or other near Relations there is no Ground to believe they owed their Titles to the Votes or Suffrages of their followers But after they had Setled a Heptarchy or Seven Kingdoms in this Part of Britain called England We find them Governing and Leading their People like Absolute Kings and Monarchs over their little Principalities And since each Kingdom was Conquered from the Britains under the Conduct according to the Laws of Nations and Right of Conquest all the Lands of each Kingdom belonged to the Conquerors who though they cantoned them out into shares to their Captains and Souldiers according to each Man's Valour or Desert Yet did this wholy proceed from their Bounty and Favour who might have kept the whole to themselves if they had pleased and hence it is that not only since the Norman Conquest but also long before all the Lands of England were holden of the King as the Supream Lord And if so I suppose you will not deny but that according to your own Principle all our other Priviledges and Liberties must have been derived from him since you have already Asserted that whoever is Lord of the Soil of a Country he is so also over the Persons of the People F. Before you proceed any farther I pray give me leave to answer what you have now said I doubt with greater shew and appearance of Truth than the matter will justly bear when well canvassed But since I grant our earliest Writers are very short in giving us the true Form or Original Constitutions of our Ancient Saxon Government it is necessary we look into the Roman Authors who treat of the Laws and Customs of the Ancient German Nations a Stirp of whom our Ancient English Saxons certainly were and in those Authors you will find that they as well as other Nations of the Gothic Original were
Constitution to have bin in all the Neighbouring Kingdoms in Europe which have bin raised according to the Gothic Model of Government upon the Ruins of the Roman Empire now let us look into Scotland and there we shall find this Institution as Ancient as any History or Record they have If we pass into France we shall find their Assembly of Estates or Great Council to have bin as Ancient as their first Kings and to have had as much Power as any where else in Europe Since they not only frequently Elected but also Deposed their Kings of the first Race and disposed of the Succession of the Crown as they thought fit If we look into Spain we shall find in the two greatest and most Considerable Kingdoms viz. Castile and Arragon the like Assemblies the Power of which was so great in the latter that they could even Depose the King himself if he Tyranniz'd over or Oppress 't them If we go more Northward we shall find in the Ancient Kingdoms of Denmark and Sweden and Norway that their Assembly of Estates or Dyets Elected their Kings and could likewise Depose them till those Kingdoms became Hereditary which was but of modern times I shall omit Poland because perhaps you may dispute whether it is a Kingdom or a Commonwealth But if we pass into Hungary which was Instituted by the Huns a Nation of Gothic Original we shall find not only the like Assembly of Estates as in the other Kingdoms but also that they had a Magistrate called the Palatine who was as it were the Conservator of the People's Liberties and who could Resist even the King himself if he invaded them and which is also very remarkable in all these Kingdoms except Denmark the Representatives of the Cities or Principal Towns which constituted the third Estate or Commons in those Kingdoms had always a place in those Great Councils So that to conclude it is almost impossible to conceive how these Kingdoms I have now mentioned could all agree to fall into the same sort of Government about the same time unless it had proceeded from the particular temper and Genius of the Germane and Gothick Nations from which they were derived Or who can believe that all these Nations and their Kings finding the like Conveniences from these Great Councils and Inconveniences by the want of them should all Conspire to set them up in each of these particular Kingdoms M. I will not deny but that the Institution of Great Councils or Assemblies of the Estates might be as Ancient as the Government it self in several of those Kingdoms you mention which were at first Elective but what is that to England where our Monarchy hath bin by Succession from the first Institution of it and not Elective as you suppose Nor do I much value the Authority of the Mirrour as to the Great Antiquity he Ascribes to this Assembly of Counts or Comites as Bracton calls them and in which by the way no Commons are mentioned And tho I grant the Iudicial Power of the House of Peers is very Ancient Yet that it wholy proceeded at first from the Indulgence of our Kings appears from hence that there was always a necessity of the King's Presence in Parliaments which is very well proved by Sir Robert Cotton in a Learned Treatise written on that Subject wherein he proves that in all Consultations of State and Decisions of private Plaints it is clear from all times the King was not only present to Advise but also to Determine And whensoever the King is present all Power of Iudging which is derived from his ceaseth the Votes of the Lords may serve for matter of Advice the Final Iudgment is only the Kings But indeed of late years Queen Mary and Queen Elizabeth by reason of their Sex being not so fit for publick Assemblies have brought it out of use by which means it is come to pass that many things which were in former times acted by Kings themselves have of late bin left to the Iudgment of the Peers who in quality of Iudges Extraordinary are permitted for the Ease of the King and in his Absence to determine such matters as were Anciently brought before the King himself sitting in Person attended by his Great Council of Prelates and Peers And the Ordinances that are made there receive their Establishment either from the King's Presence in Parliament where his Chair of State is constantly placed or at least from his Confirmation of them who in all Courts and in all Causes is Supream Iudge All Judgments are by or under him and cannot be without much less against his Approbation The King only and none but He if He were able should judge all Causes saith Bracton so that nothing seems plainer to me than that the Iurisdiction which the House of Peers have hitherto exercised for the Hearing and Determining all Causes as well Civil as Criminal by way of Appeal not only between Subjects but also in all Accusations against the Lords themselves proceeds wholy from the Kings which may appear by an Ancient Precedent mentioned by Abbot Brampton in his History It is the Case between King Edw. the Confessor and Godwin Earl of Kent whom the King accused for the Death of his Brother Prince Alfred before the House of Peers and there you will find that after the Earl had put himself upon the Iudgment of the Kings Court the King thereupon said You Noble Lords Earls and Barons i. e. Thanes of the Land who are my Liege-Men now gathered here together and have heard my Appeal and Godwin's Answer I will that in this Appeal between us ye Decree Right Iudgment and do true Iustice And upon their Judgment that the Earl should make the King sufficient Satisfaction in Gold and Silver for the Death of his Brother the King being thereof informed and not willing to contradict it the Historian there sayeth He ratified all they had judged I could give you many other Precedents of latter Date were it not too tedious But this is sufficient to shew that what the Pâ—ers acted in this matter was by the King 's Sole Will and Permission I shall only conclude with one Precedent more in Case of some what alike Nature It is that of Hen. Spencer Bishop of Norwich 7 Rich. 2d who was accused foâ— joyning with the French The Bishop complained what was done against him did not pass by the Assent and Knowledge of the Peers whereupon it was said in Parliament that the Cognisance and Punishment of his Offence did of Câ—mmon Right and Ancient Custom of the Realm of England solely and wholy belong to our Lord the King and no other From all which I infer that the Iudicial Power exercised by the House of Peers is meerly derivative from and Subservient to the Supream Power resiâ—â—ing in the King From whence it also follows that if the Peers have no Power nor Honour but what proceeds from the Prince and that the Commons
were of a much later Date then both the Being and Priviledges of both Houses had but one and the Self-same Original viz. nothing else but the meer Grace or Favour of our Kings I have only added this the better to enforce my former Argument And therefore I desire you would now answer them both together F. I am very glad your last Argument doth not prove so formidable as you suppose for to remove that out of the way I must tell you that you now very much mistake the Question which is not only concerning the Iudicial power of the Peers alone but the Legislative Power of the House of Peers and Commons taken together which is the Subject of our present Dispute And therefore if I should grant you that the Iudicial Power of the Peers is derived wholy from the King Yet would it not at all â—mpaiâ— the Legislative Power of either of the Houses which no Historian or Law-book that I know of that is of any Credit or Antiquity ascribes to the King's Favour as you suppose Nor is it true that the House of Peers can give no Iudgment either Civil or Criminal without the King's Consent or Approbation which is never so much as askt let the Cause be what it will nor is his Presence at such Judgments at all 〈◊〉 but indeed you confound the King's Council in Parliament where I have shewed you already he sat and dispatched divers Causes in a Room or Chambeâ— distinct from that of the Peers with the House of Lords But to come to your main Argument that our Parliament must owe its Original to the King because each of the Estates of which it consists doth so This I hope will prove as weak when throughly considered For first of all I could shew you that those Councils could not owe their Original to the K. since the Saxon Kings rather owed their Original to them by whom they were most commonly Elected as I could shew you out of our Ancient Historians if it were now a proper time for it But as for our Bishops and Abbots c. which anciently made so great a figure in our Saxon Great Councils which I can shew you were then both Civil and Ecâ—lâ—siasticâ—l Assemblies I have already proved out of Tacitus that among the Ancient Germans a part of whom our Ancient English Saxons were their Priests who were their Clergy had a Considerable Authority in their Common Councils And can any body believe that a sort of People so Powerful and Subâ—ile as the Priests then were would lose their Power after they came over into England And we find in Bede that Edwin King of Northumberland consulted with a Council of his Great Mâ—n and Priests concerning his embracing the Christian Râ—ligiâ—n and when it was generally received can any body think that the Christian Bishâ—ps and Clergy would not expect to Succeed in the same Station which the Heathen Priests before held in their Councils And that they enjoyed this Power very early appears from hence that the same Ethelbert could not endow the Church and Monastery of Canterbury Sine Assensu Magnatum Principum tam Cleri quam Populi But indeed you are as much mistaken in the manner of the Ancient Elections of Bishops and Abbots in England For tho I own that at the time of the Conquest and somewhat before there might be no such Elections of them as the Ancient Canons required Yet that this was not so at the first you may see in Bede's Ecclesiastical History and other Historians where it is often mentioned that Bishops were chosen according to the Canons by the Archbishops and Bishops of the Province and Abbots by their Convent Nor was the Kings investing of them per annulum Bacculum then lookt upon as any Derogation to their Canonical Election that being no more than either a Ceremony of investing them with their Temporalities or a token of the King's Confirmation of the Election And that this was so appears by King Edgars Charter to the Abby of Glastenbury wherein he retains to himself and his Heirs jus tribuendi fratri Electo baculum pastoralem But that which so much Scandalized both Ingulf and Malmsbury was a Custom then in use as also long before the Conquest of confirming the Bishop Elect in a full Synod or Parliament And to this Custom Ingulf refers when he tells us A multis annis retroactis nulla eras Electio Prelatorum merè Libera Canonica Sed omnes Dignitates tam Episcoporum quam Abbatum Regis Curia pro suâ— complacentia conferebat Where by Curia Regis you must not understand the King's Court in the Sense it is commonly taken but for the Great Council or Mikel Synod as it was then called and which dispatched Ecclesiastical as well as Civil Affairs in the same Sense as Curia Regis is used by Brompton in the Case of King Edw. and Earl Godwin which you but now cited And in which Sense it is always used by Ingulph when he speaks of the Great Councils under the two Williams I will not be very tedious on this Subject and shall therefore give you but one Authority on this Head and it is that of Walslan who was made Bishop of Worcester in the time of Edw. the Confessor and that as Mat. Paris tells us Vnanimi consensu tam Clâ—ri quam totius Plebis Rege ut quem vellent sibi eligerent praesulem annuente in Episcopum ejusdem loci eligitur And then he goes on thus Nam licet fratrum non deesset electio Yet that there concurred to it Plebis petitio Voluntas Episcoporum Gratia Procerum Regis Authoritas All which amounts to no more than that he was Elected Chosen and Confirmed by the King and all the Three Estates For here is the Petition of the Commons joyned with the Good-will of the Lords and both backt by the Kings Authority Yet that all this did not hinder him from being invested per Baculum Annulum as the Custom then was may appear by the Speech this Bishop Wulstan made at the Tomb of Edward the Confessor whither he went to resign his Pastoral Staff after his being deprived of his Bishoprick by Arch-Bishop Lanfrank and the Synod And the Conclusion of this Speech is remarkable Tibi Scil. Edwardo Baculum resigno qui dâ—disti Curam â—orum dimitto quos mihi commendasti A like Example I could give you of the Election of this Arch-Bishop Lanfrank himself in the Kings Curia or Great Council not long after the Entrance of K. William but for this I refer you to Eadmerus But admitting that the King alone had in those days conferred all Bishopricks does it therefore follow that his Nomination of Bishops in the Pursuance of that Trust which the Kingdom reposed in him did likewise make them to derive all the Right they had to sit in the Great Council from the King 's Sole Authority you might indeed with as much Reason urge
that because the Emperour Theodosius as likewise divers of his Predecessours did Nominate Bishops to Sees therefore they did likewise receive from them all the Authority they had of appearing and acting in General Councils which I am sure you are too good a Church of England Men to affirm M. I must confess I never did so closely examine the Ancient Form of conferring of Bishopricks before the Conquest as I find you have done and I will better Examine your Authorities and if I find this Custom to have been constant and uniform I shall come over to your opinion tho' I doubt it will not prove to have been so general as you would make it since by the Authority you have now brought out of Mat. Paris it appears that it was the King who gave leave to this Election of Bishop Wulstan in the Great Council which I am not yet convinc'd did then take upon them to meddle in Ecclesiastical matters without the Kings Consent but since you have spoken enough concerning the Right and Antiquity of the Bishops sitting in our Great Councils it is time you now speak of the Right of the Peers or Temporal Lords which certainly could have no place there but from the Favour and Concession of our Kings So that whether we consider those Lords in the Saxon time as Rulers of Counties called in old English Earls or Aldermen in Latin Duces or Comites or else as Judges or Counsellors called in old Saxon Wites or Wisemen in Latin Sapientes or lastly as Thanes in Latin Ministri who were either Military Tenants or Civil Ministers or else Officers of the King in his Court or other Employments none of them were Hereditary in those times but all of them either depended upon the King's VVill or else owed their Honours and â—states to his Favour F. I hope notwithstanding the Confidence you put in this part of the Argument that it hath no more weight in it than the former For tho' I grant there was no such thing as Hereditary Earldoms before the coming in of the Normans so that tho both the Earls and Aldermen might have places in the Great Councils ratione officii as the Earl Mareschal of England has at this day and not by Tenure as they did after that time Yet I very much doubt whether they sate there only ratione officii and not as Thanes or by reason of their great Lordships or Estates in Lands but if they sate there as Earls or Aldermâ—n yet might they not be the only Persons that sate in those Councils by that Title For there were besides these Aldermen of Cities and Burrougâ—s who were Elected by those Places and who it is very likely appeared for them as their Representatives in those Councils until by Succession of time those Towns began to send two Burgesses in their stead some Footsteps of which still remain in London where the Aldermen of every Ward are first proposed to be Elected Parliament Men before any other and it is certain that these Aldermen in the most Ancient Cities as London York Lincoln â— are not Elected by any Grant or Charter from the Crown but by an immemoâ—ial Right of Prescription But admitting that these Earls or Aldermen appeared in these Councils by reason of their Offices or Dignities which the King conferred upon them yet doth it not prove that the very Office it self proceeded 〈◊〉 from him since we find the Authority of those chief Men whom 〈◊〉 calls Princes and which Answer these Earls to have been used among the Ancient Germans long before when he tells us in the same Chapter where we cited the rest Iura per Pagâ—â— Viâ—osque Principes reddunt â—enteni Singulis ex plebe Comites Consilium simul auctoritas adsunt Which exactly answers our County and Hundred Courts under the Saxon Kings wherein the Alderman of the County or his Deputy the Sheriff preâ—ided and the Free Men of the County or Hundred were the Iudges of all matters of Fact So that tho the King might appoint these Princes or Governours of Provinces or Counties yet doth it no more follow that they owed their Being and Place in the great Council wholy to his Will than as I said before supposing that the King had Anciently the Nomâ—nation of all the Bishops and Abbots in England that therefore they must also owe their Place in our great Councils or Synods wholy to them since the King performed both of them as a Publick Trust committed to him by the Common Weal in the one case as much as in the other But indeed I think the greatest part of the Members of this Assembly besides Aldermen and Burgesses for Cities and Towns consisted of those Thanes whose Names are often found in the Subscription of the Anâ—ient Charters of our Saxon Kings after the Principes Duces and Comâ—â—â—s and that tho many of them might be the Kings Feudal Thanes or 〈◊〉 Grand Serjeanty or Knights Sâ—rvice in Chief as Mr. Sâ—lden tells us in his Titles of Honour yet that Author no where excludes the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. middle or less Thanes from having Voices in those Assemblies who were afterward Stiled Vavissours or Lords of Townships afterwards called Maunors with Courts annexed to them under the Names of Sac Soc which were the same with our Court 〈◊〉 and Court-Baron Especially if you please farther to consider what a vast nâ—mber of Alâ—dariâ— or Free Tenants there were then who held their Lands Discharged of all Services but the Common Burthens and Taxes of the Nation none but the Lands of the Kings Thanes being held by Military Sâ—rvices before the Entrance of the Normans So that whoever will but consider the Nature of our Saxon Councils will find that the Greatest part of the Persons that appeared there did not owe their 〈◊〉 to their being the King's Ministers or Officers as you suppose but to their holding such Lands and Possâ—ssions as Capacitated them and gave them a Right to have places in those Great Councils And that this was 〈◊〉 we need go no further than the Laws of King Athelâ—â—an where you will find Gâ—mility it self annexed to an Estate in Land For if you will but be pleased to Consult King Athelston's Laws you will there find that if a Villaâ—aus or Câ—eorl could so thrive as to get an Estate of five Hides in Lands he was reckon'd a Thane i. e. a Gentleman or Nobleman as they were promiscuoully reckoned at that time So that tho I suppose there might not be in those times that exact distinction between Peers and Commons as there hath bin established since the coming in of the Normans Yet was it the same thing in effect since the Bishops Earls or Aldermen of Shires tho not enjoyed as Hereditary Honours might make then the Greater Nobility or Peers as the Thanes were the Less Nobility Gentlemen or Freeholders who all appearing in person might together with
prolix already which the abuse your Dr. hath put upon these words would not permit me to avoid But now we have cleared most of the Terms in dispute between us I hope we may proceed with greater Certainty M. Though your Discourse hath been long yet since it is so essentially necessâ—ry to the right understanding the matter in hand I am well satisfied and I shall more fully consider the account you give of these words another time but a present give me leave to tell you That suppose I should admit that those words on which you have now given Interpretation of divers Authors may sometimes be taken in the sense you have now put upon them and that consequently the Commons might be represented under some of those general Names Yet am I not satisfied how the Aldermen and Magistrates of Cities and Boroughs could be included under this word VVites since in the Auctuary to the 35 Law of Edw. the Confessor 't is said Erant aliae potestates dignitates per Provincias Patrias universas per singulos Comitatus totius Regni constitutae qui Heretoches apud Anglos vocabantur Scilicet Barones Nobiles insignes Sapientes c. And Gregory of Tours Rodovicus and many of the foreign ancient Historians mention Sapientes only as Lawyers Counsellors Judges and among the modern foreign Lawyers Hottomon and Calvin say expresly they were such But perhaps not of the Inferior Ranâ— no more than the Saxons Sapientes were of which their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 only consisted And we have at this day the Iudges and King's Council and other great Lawyers that sit in the Lord's House and are assistant to the Parliament when there is occasion Nor have you yet brought any proof that the Cities or Towns then sent their Representatives to the great Councils in the Saxon times by this or any other Title But as for the Knights of Shires though I grant the Treatise called Modus tenendi Parliamentum mentions such Persons to have been present in Parliament in the time of K. Ethelred yet by that word Parliament so often used by the Author of that Treatise and divers other Circumstances it may be easily perceived that the Author lived but about the time of Edw. 3. or Rich. 2. as Mr. Selden in his Titles of Honour and Mr. Pryn in his Animadversions to Sir E. Cook 's 4th Institutes have very fully proved so that admitting that your Thanes or Lords of Towns did then appear in those Councils for themselves and their Tenants yet could they not be properly said to be their Representatives because as I told you before they were never chosen by them whereas now the ordinary Freeholders of forty Shillings a Year and the Freemen and Inhabitants in Cities and Towns have the grâ—â—test share in the Election of Knights Citizens and Burgesses And as for those Thanes you mention they or those under whom they claimed owed their Estates wholly to the Grants of former Kings and held their Possessions from them by some Tenure or other And by virtue of this Tenure it was that all the Lands of England were liable even those that belonged to the Church to those three Services anciently called Trinoda Necessitas viz. Expediâ—â—â— Castelli Pontis extructio that is Military Service against a Foreign Enemy and the Repair of Castles and Bridges and subject to the common Services of the Kingdom And that the Earls and Chief Thanes did hold their Lands by Knights or Military Service appears by the reliefs of the Earls and Thanes exâ—â—rest in the Laws of King Cnut in Sir H. Spelman's Councils So that if all the persons who held those Lands owed them wholly to the King's bounty it seems plain to me that they must likewise owe their places in the great Council to the same Original F. I think what you have now farther urged will be of no great moment against my Opinion for as to the Authority you bring from the Addition to that Law of Edw. the Confessor it is plain by the word Barones that it was added long since that time that word not being commonly in use till some time after the Norman Conquest But letting that pass it is plain by the rest of the Law if you would have been pleased to have read it out that these Heretoches here called Barons were no other than ordinary Gentlemen or Thanes which then answered the word Barones And these as this Law it self expresly tells us were chosen by all the Freemen in the Folemote or County-Court And therefore tho I grant they might be men of Estates yet there was no necessity of their being Lords or Noble by Birth nor is it likely that the people would have chosen their Earls or any other of the like Order to command them when they had sufficient choice of Thanes or Gentlemen in their own Countrey to command the Military Forces of it And tho it is true these Gentlemen are called Nobles and remarkable Wise Men yet this according to your own shewing doth not exclude others and those of a far different Profession viz. Counsellors Lawyers and Iudges all which you suppose had then Places in the Great Council as they have now in the Lordâ— House And if this Word might comprehend both Sword-men and Lawyers I cannot see why it may not also take in the better and richer sort of Citizens and Magistrates who in that Age as was notorious were elected by their respective Corporations And I have already proved that these were called Sapientes in other Countries and I see no reason why they â—ny not have been called so here too But that the King's Judges and Counsellors could have no Votes in the Saxon Great Councils I have already given a sufficient Reason to the contrary But I shall now farther shew you That the Cities and Boroughs in the Saxon times being so much more numerous and considerable than they are now must needs have had according to the custom of those Times a considerable share in those Great Councils since in them consisted a great part of the Strength and Riches of the Kingdom and were many more than they are at this day for Bede 〈◊〉 in the beginning of his History That there were in England long before his time 28 Famous Cities besides innumerable Castles and walled Towns of note many of which tho now extremely decayed or quite mined were then very considerable the greatest and richest part of the Nation inhabiting in those times for the most part in Cities or great Towns for their greater benefit or security and the greater part of the Lands of England in the Saxon times and long after â—y incultivated and over run with Forâ—sts and Bogâ— so that the Inhabitants of those Cities and Boroughs being them so considerable for Estates in Lands as well as other Richâ—â— could not â—e excluded from having Places both in the Brittish or Saxon Great Councils what man of Sense can
believe that the Ancient and Potent Cities of London Tâ—â— Câ—nterbury Lincoln c. Should ever be excluded from having any hand in the Great Consultation of giving Money and making Laws and for the publick defence of the Kingdom in the Saxon times any more than they are now And therefore we find that in all the Kingdom of the German or Gothick original the chief Cities and Towns have still sent Deputies to the Diets or Assemblies of Estates as I said but now In the next place tho I do not positively assert that there were Knights of Shires before the Conquest yet am I not convinced that there were none For tho I confess the Treatise you mention appears to have been written since the coming in of the Normans yet might the Substance of it have been much older than the times of Edw III. and Rich. II. or else certainly King Hen. IV. or his Chancellor for him would never have been at the trouble of transmitting a Copy of this said Modus into Ireland under the Great Seal which is thought to incroach so much on the Prerogative had he not been very well informed of the Antiquity as well as Authority thereof And therefore it might very well be written about the Time of Hen. III. from some Ancient Historians and Records not now extant tho the Copies we have of it may be of no longer standing than the time Mr Selden mentions But admitting that there were no Knights of Shires before the Conquest and tho the Thanes who I suppose made the greatest Figure in the Wittena Geâ—â—â—er were not Earls or chief Thanes that is of the Greater Nobility yet they were great Freeholders and tho Commoners yet Gentlemen and of the Lesser Nobility in the same sense as Gentlemen or Knights of Shires are now And the not elected by the Countries yet might be as well esteemed their Representatives as they are now of Freeholders under 40 s. per Annum Lease-holders and Copy-holders for years who have no Votes at the Election of Parliament men whereas these Thanes were then the chief if not the only Possessors of all the Freehold Estates in the Kingdom Nor is it any material Objection to say that these Thanes might at first owe those Estates to the Grant of the First Saxon Kings and might also after a sort hold their Estates of them as Heads of the Commonwealth by such Services as were setled by Publick Laws yet does it not therefore follow that they owed their very right of coming to the Great Council wholly to the Kings Favour For in the first place it is to be considered that tho the First Saxon Kings conquered this Island from the Brittains yet those that assisted them being only Voluntiers the chief Officers or Commanders of them might not only deserve but also capitulate for their Shares in the Land so conquered And these being given out by the King according to each mans quality condition or desert might constitute those who were called the King's Thanes as those who held likewise under them were the Middle Thanes or Vavassors Supposing till you can prove the contrary that these had Places in the Great Council as well as the other and you might as well argue that they could have no Places there but by the favour of their Lords Whereas I have already proved that an Estate of Five Hides in Land of whomsoever holden made a Thane or Nobleman of the Inferior Rank And we find by the same Laws of King Athelstan his Weregild or Price of his Head was valued but equal with that of a Mass Thanes or Priest viz. at 2000 Thrymsas So that a sufficient Estate in Land did not only make a man a Gentleman but also give him a place in the Great Council And there were besides all these several Alodoril who held their Lands discharged from all Services and could sell or dispose of them without the consent of the King or any other inferior Lord and are those mentioned in Domes-day Book qui potuit ire cum terra que â—â—but Nor is your Argument conclusive That because in those times as well as now all Lands were held either mediately or immediately of the King and were chargeable with those three general Services you mention for the publick safety and good of the Kingdom that therefore not only all mens civil properties but also their right of coming to the Great Councils must wholly depend upon the King's will Since I have already proved that the first Saxon Kings by their conquest of the Kingdom could not acquire the sole property of all the Lands thereof to themselves tho they might be made use of as publick Trustees to distribute them according to those mens qualities and deserts who had helped them in the Conquest So that when they were once possessed of such Estates they had immediately thereupon a right to a place in the Great Council the burthen of the Government lying chiefly on such as had Estates in Land And that many others besides the Kings Thanes or Great Lords had places in the Great Council of those times appears as well by the name of Mycel Synods â—â— Wittena-Gemots which are rendred by our Ancient Glossarists Numerosa or Popuâ—â—sa Conventio as also the Titles and Conclusions to divers of the Titles of those Great Councils in the Saxon Times where are often mentioned after the Comites Proceres Terrae aliorum fidelium infinita multitudo which must certainly take in many more than the Kings Thanes Judges or other of his Great Men who were then but a few in comparison of all the rest of the Freeholders of England M. I will not longer dispute the probability of what you say all the difficulty lies in the proof of the matter of Fact For in the first place I deny that any other of a less Degree than the King's Thanes of chief Tenents had any Places or Voices in the old English Councils Nor can you find as you your self are forced to confess in our Saxon Laws or Ancient Historians of those times any Representatives of the common people mentioned such as are now much less Citizens or Burgesses for any City or Burrough in England And therefore what you say concerning the Riches or Power of the Cities and Towns before the Conquest tho perhaps it might be true yet doth it not therefore follow that they must then send their Representatives to the Great Councils Nor is it any Argument to prove that they did because great Cities and Towns do or did lately send Deputies to the like Assemblies in other Countries since our Government might not only originally differ in that from theirs but that also the sending of those Deputies might be granted by some later Princes long since the time of the first beginning of those Kingdoms and I do believe will prove so if closely look'd into And in Denmark which you know was an Elective Kingdom the Cities and great Towns never sent any
Deputies to their Great Councils at all and since the Government of England as you your self grant did very much resemble that why might it not be so here too F. I think your Reply hath no more weight in it than what you have already urged For in the first place it lies upon your side to prove that none but the King 's or chief Thanes had any Places in the Great Councils of those times and wheâ—â— you can prove that you may do something But what I have now brought to prove the great Antiquity of our Cities and Burroughs in England is not so little to the purpose as you would make it since it confirms that Right of Prescription which all ancient Cities and Burroughs is England do claim of senâ—ing Members to Parliament and therefore pray 〈◊〉 what Mr. Lambard a Person whom all the Learned own extremely knowing in the English Saxon Government tells us on this Subject in his Archeion in these Words That whereas in the beginning of the Law viz. those made by the Saxon Kings he there mentions all the Acts are said to pass from the King and â—is Wisemen both of the Clergy and Laity in the Body of the Laws each Statute being thus And it is the advice of our Lord and his Wisemen So as it appears that it was then a received Form of Speech to signifie both the Spirituality and Laity that is to say the Greater Nobility and the Less or Commons by this one Word Witena i. e. Wisemen Now as these written Authorities do undoubtedly confirm our Assertion of the continuance of this manner of Parliament so is there also unwritten Law or Prescription 〈◊〉 doth no less infallibly uphold the same For it is well known that in every Quarter of the Realm a great many Burroughs do yet send Burgesses to the Parliament which are nevertheless so ancient and so long since decayed and gone to nought that it cannot be shewed that they have been of any reputation at any time since the Conquest and much lesâ— than they have obtained this Priviledge by the Grant of any King succeeding the same So that the Interest which they have in Parliament groweth by an ancient usage before the Conquest whereof they cannot shew any beginning Which thing is also confirmed by a contrary usage in the self same thing for it is likewise known that they of ancient demesne do prescribe in not sending to the Parliament for which reason also they are neither contributers to the VVages of the Knights of Shires neither are they bound by sundry Acts of Parliament tho the same be generally penned and do make no exceptions of them But there is no ancient Demesne saving that only which is described in the Book of Dooms-day under the Title of Terra Regis which of necessity must be such as either was in the hands of the Conqueror himself who made the Book or of Edward the Confessor that was before him And so again if they of ancient Demesnes have ever since the Conquest prescribed not to elect Burgesses to the Parliament then no doubt there was a Parliament before the Conquest to the which they of other Places did send their Burgesses From whence we may conclude that the Learned Author did not only believe that the Lords but that also the Inferior Nobility and Representatives of Cities and Towns were included under the Word VVites and also that these Placeâ— claimed that Priviledge by Prescription and not by Grant of any King since the Conquest or before M. I shall not deny but Mr. Lambard was a Learned Antiquary yet there are others more in number and perhaps of greater Learning who do suppose that no Cities or Burroughs sent Burgesses to Parliament but since the Conquest the I confess the time is not exactly agreed on but whenever they began to appeaâ—â— there it is certain they could have no right of coming but from the King's Summons or Grants since none but such Cities or Towns that held of thâ— King in Capite had anciently any place in those Assemblies noâ— of them neither any other but those whom the King pleased to call And from thence proceeds that great Variety we find in the List of those Towns which send Members to Parliament But I shall omit speaking any thing farther of this at present But as for those middle inferior Thanes or Vavassours as they were afterwards called whom you suppose to have made so great a Figure in the Saxon Great Councils I do not believe that they had any Votes there and I hope I shall be able to prove to you by and by that none but the King's Tenants in Capite appeared in those Meetings from the time of William the Conqueror to the 49 Hen. III. Now if it be true as you suppose King William made no alterations in the constituent parts of the Great Council of the Kingdom after his conquest of it it will likewise follow that the same sort of persons viz. Tenants by Knights Service were the only Members of it before the conquest too But if you have any express Authorities out of our Ancient Saxon Laws or Histories to prove that the Commons appeared at the Wittena Gemotes in the Saxon times pray let us see them F. I shall perform your Command immediately but in the first place give me leave to tell you that what you have said concerning Cities and Towns not sending Burgesses to Parliament till after the Conquest is a great mistake built upon a false and precarious Hypothesis that they all held in Capite of the King the contrary of which I shall make out when I come to treat of that Question So likewise is it as precarious that none but the King's Tenants in Capite had any Votes in our Great Councils in the times immediately succeeding your Conquest till the 49th of Hen III. and that therefore it must have been so before the Conquest For as I own that King VVilliam made no material alteration in the Government of the Kingdom after his entrance so I likewise affirm that as well after as before that time if not Knights of Shires yet all Thanes the or Barons i. e. great Freeholders of England had Places in that Assembly before 49th of Hen. III. But to proceed to the Authorities you desire I shall begin with the first and most ancient General Council we have left us in the Saxon times viz. that which was held at Canterbury A. D. 605. by King Ethelbert not long after the settlement of Christianity in this Island which is recorded by Sir H. Spelman in his Brittish Councils in these Words An. Incarnationis Dominicae 685. Aethelbertus Rex in fide Roboratus Catholica una cum Beria Regina silioque ipso Eadbaldo ac reverendissimo praesule Augustino caeterisque optimatibus Terrâ— Solenitatem Natalis Domini Celebrant Cantuariae Convocato igitâ—r ibidem Communi Consilio tam Cleri quam Populi Whence you may observe that
the people then made a considerable part of the Great Council from the very beginning of the Saxon times M. Pray Sir will you give me leave to answer your Questions one by one as you go for fear I should not only forget them but also tire you with too long a Speech In the first place therefore give me leave to tell you that you are very much mistaken to suppose that by the Word Populus is here meant the common People or Vulgar Whereas when Clerus and Populus are used together in our Ancient Writers of those times it signifies no more than a Common Council of the Clergy and People or Laity and not the Common People for then the Lords or Great Men would have been quite left out of this Council as certainly they were not and so when Clerus and Populus are used together and thus contradistinguished then they are expressive of two different Estates or Conditions of Men or Christians the Clergy and Laity or secular Men and those were the Optimates Terrae the chief Men of the Land before expressed Neither was this Council held under a sole Saxon Monarch but under Ethelbert King of Kent only and that but eight years after Augustin's coming hither and above two hundred years before the Seven Kingdoms were united into one Monarchy F. I am not at all concerned at this Answer since I can prove that by the Word Populus must be here understood somewhat more than Kings Noblemen and Iudges viz. the Representatives of the Commons likewise or else the Saxon Witena-Gemotes were not what their Titles speak them to be Common or General Councils of the whole Kingdom that is of all the Estates or Orders of it there but only a Convention of the Bishops and Great Lords And therefore if the Word Clerus did then comprehend all the Clergy both Superior and Inferior i e. as well the Bishops as Abbots Priors Deans and Clerks for the Secular Clergy and Cathederal Chapters c. I pray give me a Reason why the Word Populus when put alone must be wholly confined to your Earls or chief Thanes and may not also take in the Middle or Less Thanes Freeholders or Lords of Townships and the Representatives of Cities and Burrough Towns and why not with as much reason as that the Word Populus amongst the Romans took in the whole Body of the People of Rome both Patricians and Plebâ—ians when assembled in their Comitiis Centuriatis to make Laws or create Magistrates The rest of your Argument is not very material for tho I grant this Council was held before the Heptarchy was united into a Monarchy yet I think it is very easie to prove that as all the Saxon Kingdoms consisted of several Nations of the same Language and Original so were they likewise under the same Form of Government And that Councils consisted of the same constituent Members 〈◊〉 I shall prove to you from the Kingdom of the West-Saxons from which was the Foundation of our present English Monarchy And for this I shall give you the Authority of Will of Malmesbury and H. Huntingdon who 't is highly probable had seen the ancient Histories and Records of those times and they both agree in the Relation of the Deposition of Sigebert King of the West-Saxons for Tyranny and Cruelty Anno. 754. the Words are remarkable which pray read Unde in Anno secundo ipsius Regni congregati sunt Proceres Populi Totius Regni provida deliberatione unanimi consensu omnium expulsus est a Regno Kinewulfus satus ex Regio sanguine electus est in Regem where you may observe a plain difference made between the Higher Nobility here called Proceres and the Representatives of the People here stiled Populi as also from another Authority of a Great Council held under the same King Aethelbert as it is mentioned by Roger Hoveden Domestick to King Hen. II. in the 2d Part of his Annals where among the Laws of King Edw. the Confessor and which he writes to have been confirmed by King William I. you will find under the Title de Aptbâ—â—s de aliis minutis Decimis which are there said to be given to the Clergy by former Kings and particularly by this King Ethelbert these Words Haec entâ—n Sanctus 〈◊〉 praedicavit docuâ—t haec concessa sunt a Rege Baronibus Populo So that it Populus â—ere doth not signifie an Order of Men contradistinct from the Barons or Great Lords it would have been a Tautology with a witness M. I must confess if this Authority you now urge had been as ancient as the time to which it is ascribed it would be of some weight but it appears by this Word Baronibus not used in England till after the Conquest that it was added long after that time by some ignorant Monk to the Confessor's Laws and therefore will not prove that for which you bring it viz. That the Vulâ—â—â— understood for the People or Commons in the sense they are now taken had any Place in the Saxon Great Councils But make the most of it this was but the confirmation of a Law made by King Aethelbert but how and by what Words the Legislators were expressed near 500 years after the Law was made or how they were rendred in Latin after the coming of the Normans transiently and without design to give an account of them cannot be of much Validity to prove who they were and that the Laws of King Edw. were made or at least translated into Norman Latin after the Norman Conquest appears by the Word Comites besides Barones already mentioned Militeâ— Servientes c. all Norman Words and not known here till their coming hither He that will assert any thing from a single uncouth Expression in one Case and upon one occasion only brings but a slender Proof for that he says so will any man think because 't is said in one of King Edward's Laws and perhaps no where else concerning this King's Coronation quod debet in propria persona â—â—am Regno Sacerdotio Clero jurare ante quam ab Archiepiscopis Episcopis Regni coronetur That the Priests were not Clergy-men nor the Clergy-men Priests and that the Arch-Bishops and Bishops were neither Many other uncoath Expressions do often occur in the old Monks which are to be interpreted according to the common usage and practice of the times in which they are delivered And therefore seeing before the time of the Conquest and for two or near three Centuries of years afterward the Commons as at this day understood were not called nor did come to Great Councils or Parliaments as I shall prove when I come to speak of those times So that by Barones must be here meant the Great Barons and by Populus the Communitas Angliae or which was then all one the Communitas Baronum the Less Barons or Tenents in Capite and the sense of the Words is
Lords or Peers of Parliament and that the rest being the lesser or lower Tenants in capite sometimes stiled Barones minores were for some time before this summoned by general Writs directed to the Sheriffs or Bayliffs as appears by King Iohn's Magna Charta Now whether these men were ever really Peers or not I have reason to doubt since I do not find but it was they alone who for some years after the Conquest served upon Juries in County Courts and dispatched all the publick business of the Country which was then as at this day a drudgery beneath the Peers to perform and therefore I shall not insist upon it But thus much I think is certain That they were a sort of persons much above any other Lay-men of the Kingdom since they held their Estates immediately from the King and were so considerable as that by the Constitutions of Clarendon they were not to be Excommunicated without the King's leave and so were then in some sort of the same Order ratione Tenurae with the great Barons or Peers being commonly stiled Barones and made up but one Estate or Order of Lay-men in Parliament And from thence I suppose proceeds that common Error of Sir Ed. Coke that the Lords and Commons did anciently sit together and made but one House Now if you have any thing to object against this Notion pray let me hear it F. I think you and I are come pretty near an issue in this question for you confess that these lesser Tenents in capite and whom you comprise under the word Barones were not truly and properly Barons and so far you are in the Right but yet you will have them to be somewhat more than mere Commoners as if there had been some Degree or Order of men in England in those times who were neither Lords nor Commons but an Amphibious Race between both But to prove that they were indeed no more than Commoners and not Lords nor Peeâ—s at all nor equal with them we need go no farther than their way of Trial in cases of Treason or Felony which was by mere Commoners who were not Tenants in capite as well as those that were so that a person who was no Tenant in Capite and might serve upon a Jury of Life and Death upon them and as well as the Dr. in his Answer to Mr. P. as you asserted that they only served in the Country upon all Iuries and that before the time of King Iohn So after all this noise of none but Lords and Tenants in capite appearing for the whole Commons of England we find by your own showing that three parts in four of the Lay Members of that Council were as meer Commoners as our Knights of Shires and Barons of the Five Ports at this day nor can I see any reason why these latter might not be as well comprehended under the Word Barones as the former who were meer Commoners likewise if we consider that it was neither Nobility nor Birth nor the King's Writs of Summons but only the meer Tenure of their Lands that gave them a particular right to a Place in that Assembly in those Ages or if a meer Citizen could get Money enough to purchase such an Estate in capite he was as good a Member of Parllament as the best of them all So that the Question then amounts to no more than this Whether the Commons of England were then represented by Tenants in Capite or by Knights of Shires and others as they are now But since you will have none Commoners but Tenants in capite to have had places therein pray tell me whether you allow that Priviledge to all who held in capite or not M. Yes I allow it to all who held in capite by Knights Service and who also enjoyed a whole Knight's Fee or so much as was sufficient to render them able to sustain the Dignity of that Place not but that the King had also a prerogative of summoning or omitting whom of them he pleased to his Great Council or Parliament till the Less Tenants in capite thinking it a wrong to them it was provided by King Iohn's Charter that all of them should be summoned by one General Writ of Summons directed to the Sheriff But I exclude from this Concil all Tenants by Petit Serjeanty who tho 't is true held of the King in capite yet was it not by Knights Service So likewise I exclude all Cities and Towns tho the Citizens or Burgesses of divers of them held their Lands and Tenements by that Tenure since being neither noble by Blood nor having Estates sufficient to maintain the Port of a Gentleman or Knight they had no Right to appear there in Person among the other Tenants who were owners of one or more Knights Fees Yet do I not affirm that the Commons were not after some sort represented in Parliament by their Superior Lords tho not as Commoners since the Bishops Abbots and other Barons did then make Laws and give Taxes not only for themselves but their Feudatory Tenents also tho of never so great Estates and Tenure in capite was then looked upon as the only true Freehold of the Kingdom and the Tenents by it as the only true Freeholders F. I shall shew you by and by the falsity of this Notion but in the mean time pray tell me when a Great Council or Parliament was called who represented those Persons who you say did not appear there and made General Laws and granted General Taxes for themselves and the whole Kingdom when there was occasion For I see you shut out the greater part even of these your true Freeholders from this Assembly M. As for the Tenents in Petit Serjeanty I at present conceive tho I am not sure of it that many of them might hold Lands and perhaps divers Knights Fees by Grand Serjeanty or Knights Service also since those Estates which were given by the Conqueror to his Servants to be held of him by such and such Petit Services might in process of time fall by Purchase or Descent into the hands of such Great Tenents in capite as had sufficient Estates to maintain that Dignity and as for the rest they might for ought as I know before the Statute de Tallagio non concedendo have been taxed by the Kings Writs according to the proportion of the Knights Fees or parts of Knights Fees which they then held and according to the Rate of the Sums imposed in Parliament either by way of Aids upon every Knights Fee or else by way of Subsidy by so much a yard or Plow Land throughout all England which has been the only way of taxing ever since that of Knights Fees hath been disused F. Then I find after all you have said that scarce half your Tenents in capite had any Votes in Prrliament either by themselves or their Representatives and so having Laws made for them and being taxed at the King's Will were as
errant Slaves and Vassals notwithstanding their Tenure in capite as the meanest person of the Kingdom who was taxed as you would have it at the Will of his Superior Lord which whether so great and powerful a Body of men would ever have sufferd I leave to any indifferent person to judge M. I grant this may now appear somewhat hard yet since it was the receiv'd Law and Custom of the Kingdom it was not then look'd upon as a grievance and it was then no more unjust than it is now that persons under forty Shillings a year tho of never so good Estates in Money or Stock or that Tenants for years or for the Life of another should at this day have no Votes at the Election of Knights of Shires and consequently be without any Representatives in Parliament of their own Choice and yet be subject to all Laws and Taxes tho never so great when made and imposed by the King in Parliament And I am able to give you divers good Authorities to prove that even London it self and all other Cities and Towns which held of the King in capite and were called his Demesnes were often taxed by the King and his Council out of Parliament before the Statute De Tallagio non concedendo And I think Dr. B. hath proved this beyond exception in his Animadversions upon Mr. A's Iani Anglorum facies noâ—e and he there gives us the Record it self of 39 Hen. III. now in the keeping of the King's Remembrancer of the Exchequer That the King did that year as he had divers times before Talliate or Tax all his Demesne Lands in England and then likewise demanded of the City of London the sum of 3000 Marks in name of the Talliage or Tax so laid And the Mayor and Citizens at last yielded after a great Contest It appearing upon search of the Rolls in the Ezchequer that the Citizens of London had been several times before so taxed in the Reigns of King Iohn and the King himself and so they payed at last the Sum which the King demanded By which you see that the greatest and richest Cities and Towns in England were taxed at the King's Will nay I think I am able to prove were it now necessary that the whole Kingdom was often taxed by the King and his Council only before the granting of King Iohn's Magna Charta and the Statute de Tallagio non concedendo above mentioned But to return to the Matter from which you forced me to digress I think nothing is more plain than that our Ancient Parliaments were only the King's Court Baron for the dispatch of the Publick Affairs of the Kingdom and in which as in the Lesser Courts Baroa or Courts of Mannor the Suitors or Tenents were together with the Lord or his Stewards the sole Judges So that at first after the Conquest it belong'd to the King alone as the Supreme Lord of the Kingdom to appoint or call which or what sort of those Tenants be pleased to attend him with their Aid and Advice at his Common Councils or Parliaments And I think nothing is more evident as I shall prove more at large from our Ancient Histories Records and Statutes then that before the 49th Hen. III. and some years also after that time none but the Bishops Abbots Earls and Greater Barons and some of the Less called in King Iohn's Charter the other Tenents in capite then constituted the whole Body of the Parliament under â—he Titles of Baronagium Angliae or Communitas or Universitas Baronagii Angliae And for this I can give you so good Authorities that nothing but more cogent and evident Proofs can bring me from this Opinion And therefore I must tell you I do not value those loose and inconsiderate Expressions of Historians either before or after that time F. I see the Testimonies of Historians are of no credit if they make against your Hypothesis but I shall show you your Mistakes about the King's Taxing anon but the main force of your Argument lies in the signification of those Latin Words you have last mentioned and which I must needs tell you I think you take in too strict a sense For first as to the Word Baro I grant it was not much in use before William I. obtained the English Diadem Baro says Camden Britanni pro suo non agnoscum in Anglo-Saxonicis legibus nusquam comparet nec in Aâ—frici Glossario Saxonico inter dignitatum vocabula habetur For the English Saxons called those in their own Language Aealdermen which in Latin were named Comites and by the Danes Earls but it was of so extensive an import in its signification that we read of Aldermani Regis Aldermani Comitatus c. as I have already shewed you So that according to the strict Sense of this Word we had whole Regiments of Earls whose Titles seldom if at all descended Hereditary till the Confessors Time and after William I. the Saxon Words Aealderman and Thegnes began to be changed and in the room of Aldermanni Thani we find Comites Barones as in all our Ancient Laws and Histories Nor was the Word Barones only taken in those days for Great Barons and Tenents in capite but also for the Inferior Barons or Free Tenents which held great Estates of other Mesne Lords as well as of the King by certain Services and to whom the Great Lords or Earls as Sir H. Spelman shews us in his Glossary Title Baro often directed their Charters Barombus Fidelibus nostris tam Francis quam Anglis and we there also read some Quotations from the old Book of Ramsey Abby wherein the Barons of the Church of Ramsey as also the Milites and Liberi homines thereof are particularly mentioned all which as this Learned Author tells us non de Magnatibus sunt intelligenda sid de Vassallis feodalibus note Scil melioris And the same Author says a little lower that Barons are often taken pro liberè Tenentibus in genere hoc est tam in Soccagio quam per servitium Militare M. What then do you suppose that all the Freeholders in England by whatsoever Tenure they held appeared in Person in Parliament before the time Sir H. Spelman in his Glossary and Dr. B. Assign for the summoning of the Commons to Parliament At this rate every Yeoman or Petty Freeholder was a Baron so that this Assembly might then consist of above 50 or 60 Thousand Persons Since Spot in his Chronicle tells us that William the Conqueror reserved to himself the service of about 60000 Knights Fees which by the time I suppose might have been divided into many more lesser ones by Co-heirship or by sale and otherwise parcelled out by the King's License into Half-Knighs-Fees Third Part of Fees Fourth Part of Fees Eight Parts Sixteen Twenty Thirty and Forty Parts of Fees and so have been increased into as many more And these besides the Tenants in
Soccage must needs have been so numerous that what Room nay what Field or Place was able to contain so great a Multitude Or how could any business have been transacted therein without the greatest confusion imaginable F. So then you your self must also grant that when all your Greater and Less Barons or Tenents in capite appeared in Person Parliaments were much more numerous than they are now since according to the Dr.'s Catalogue out of Dooms-Day-Book in his Appendix to the English History Vol. 1. of all the Tenants in capite or Serjeanty that held all the Lands in every County of King William they did besides the Bishops Abbots Earls and Barons altogether amount to about 700. and these in the 49th of Hen. III. by forfeiture and new Conveyances from the Crown or by those other ways you have now mentioned might be multiplied into twice as many more and those also of sufficient Estates to maintain the Port of a Member of Parliament or Knight Since 15 Pounds a year was in the Reign of King Iohn and Henry III. reckoned as a Knight's Fee and he that had it was liable to be Knighted And if so I pray according to your own Hypothesis how could so great an Assembly be managed as of about 3000 or 4000 Persons without strange confusion and disorder but upon our Principles there will follow no more Absurdities or Inconveniencies than in yours for either these Barons of Counties Burgesses and Inhabitants of Towns and Cities were always represented by Knights and Citizens as they are now or else these Barons of Counties appearing for themselves were Lords of Mannors or Freeholders of good Estates who were not so numerous or inconsiderable as you imagine the Freehold Lands in England being in those days but in a few hands in comparison to what they are now And for this Opinion I have Sir H. Spelman of my side who in the place already quoted under Barones Câ—â—itatus expresly tells us Hoc nomine contineri videtur antiquis paginis omnis 〈◊〉 â—eodalium specier in uno quovis Comitara degentium Proceres nempè 〈◊〉 Domini nèc non liberè quique Tenentes hoc est fundorum proprietarii Anglicè Freeholders ut Superiù◠dictum est Normidum autem est hoc liberè Tenentes nec tam â—iles 〈◊〉 fuisse nèc tam Vulgares ut hodiè deprehonduntur nam villas Dominia in 〈◊〉 Hareditates non dum distrahebant Nobiles sed ut vidimus in Hibernia penes se retinentes agros per precarios excolebant adscriptitios So that you see Sir H. Spelman then believed that the Mannors and Great Freehold in England were not then parcell'd out into so many small Shares as you imagine and that such Inferior Barons whether they held in caâ—â—â—e or not were also called Proceres see the Laws of Henry I. Chap. 25. the Title whereof is de Privilegits Procerum Angliae The law runs thus Si exurgat placitum inter homines allcusus Baronum foenam habentium tractâ—tur placitum in Curia Domini sui Now that this Socha was no more than Soc. in old Saxon see Spel. Gloss. Tit. Soc. i. e. secta de hominibus in curia Domini secundum consuetudinem so likewise in Titulo Socha vel dicitur Soc. a Saxon socâ— i. e libertas Franchesia vide manerium qd dicitur etiam Soca dictum est From all which we may observe that these Lords of Mannors here called Proceres Barones had Court Barons which took their Name from their Lords tho Feudatory Tenents or Vavaâ—ours But granting that about the end of King Iohn or beginning of the Reign of Hen. III. Supposing that these Lords of Mannors and Great Freeholders whether Tenents In capite or others might amount in all to 5 on 6000 persons I do not see why such an Assembly might not be as orderly and well managed as one of 1000. or 4000. supposing your Greater Barons and Less Tenants in capite to have than made about that number especially if we consider that most business or Acts of any consequence and for which Parliaments were called might be prepared and drawn up by the King and his Council before they met So that take it which way you will fewer Inconveniences and Improbabilities attend my Hypothesis than yours M. That the Earls and Greater Barons both Spiritual and Temporal together with the Tenants in capite then made the Body of the Baronage of England I have very good Authority on my side but that any Feudatory Barons or Tenants of a Lesser Degree ever had any Places or Votes in those Assemblies I think you can give me no sufficient Authority for it 'T is true Mr. P. in his Treatise of the Rights of the Commons asserted gives us two Modern Quotations the one out of Mr. Câ—â—den's Britannia the other out of Mr. Selden to prove it As for the former it is in the Introduction to the Britannia first published in Quarto The Words are these Verum Baro ex illis non imbus videatur qua tempus paulatim moliara molliora reddidit nam longo post tempore non Milites sed qui liberi erant Domini Thani Saxombus dicebantur Barones vocari caperunt nec dum magni honoris erat paulo autem postea meaning after the Normans entrance eò honoris pervenit ut nomine Baronagii Angliae omnes qâ—â—dammodo Regni ordines continerentur But he doth not tell us that this Learned Author in his last Edition of this Work in Folio being sensible of his mistake hath added the Word Superiores before Ordines whereby it is plain he now restrains it only to the Earls and Barons as they are now understood Mr. P's other Quotation is out of Mr. Selden's Notes upon Raâ—â—â—rus where commenting on the Word Barones he saith Vocabulum nempe alio notione usurpari quam vulgo neque eos duntaxat ut hodie significare quibus peculiaris ordinum Comitiis locus est but then conceals this that follows which makes directly against him Sed universos qui Regiae munificentiae ad formulam Iuris nostre Clientelaris quod nullius Villae Regiae glebam sed ipsum tantum modo Regem spectat Tenure en Chief Phrasi forensi dicimus sive Tenura in capite lati fundiâ— pessidebant whereby you may see that he expresly restrains this Word Barones to Tenents in capite only tho your Author takes no notice of it Nor indeed in his Title of Honour doth Mr. Selden give us any other Description of a Baron I mean such who had a Vote in Parliament but such in the Sense that is taken in Henry I. his Charter as it is recited in Matt. Paris Siquis Baronum meorum Comitum vel aliorm qui de me tenent mortuus fuerit i. e. One who was either one of the Earls or Greater Barons or otherwise held in capite F. Mr. P. is not at all to be blamed as you make him
in these two Quotations since in that out of Camden you cannot deny but he hath truly quoted that Author as it was in his First Edition and if he afterwares altered it it may very well be questioned whether he did not add the Word Superiores rather out of fear of displeasing the Greater Nobility whom that Quotation had before Shockt than out of any sense of his being in the Wrong as it appears by the Words immediately following when he tells us out of a nameless Manuscript Author That Henry III. out of so great a multitude of Barons which was seditious and turbulent called the best and chiefest of them only by Writ to Parliament By which it plainly appears that he supposed all those Less Barons or Tenants in capite tho no Lords as now understood who were thus excluded to have been only Nominal and not Real Barons and if so Commoners or else he must extend the Peerage of England to at least Three or Four Thousand Persons For so many Tenents in capite might very well be at that time The same I may likewise say as to the Quotation out of Mr. Selden for by the Words quibus peculiaris in ordinum Comitiis locus est 't is plain he supposed that all the rest of those Tenents in capite were but meer Commoners yet he no where affirms that none but these appeared in Parliament for all the Commons of England for he very well knew the unreasonableness of that Supposition Since besides these Barons or Tenants in capite Bracton in his first Book tells us of divers other Orders of Men of Great Dignity and Power in this Kingdom about the time when you suppose this marvellous Alteration to have happened His Words are these Et sub iis viz. Regibus Duces Comites Barones Magnates sive vavassores Milites etiam Liberi Villani deversa Potestates sub Rege constitutae and a little farther sunt alti Potentes sub Rege qui dicuntur Barones hoc est Robur belli sunt alii qui dicuntur Vavassores viri 〈◊〉 Dignitatis From which Words I desire you to observe that he here makes the Magnates and the Vavassores or Feudatory Tenants to be all one and also ranks them before the Milites Now whether these Vavassores and Milites who did not all hold of the King in capite were men of so great Dignity and Power as these whom he here reckons immediately after the Earls and Great Barons should have no Votes in Parliament neither by themselves nor their Representatives is altogether improbable And agreeable to this of Bracton Du Fresne in his Lexicon Tit. Vavasor tells us that Vavassorum duo erant ordines sub majorum apellatione implectuntur qui Barones apellantur sub â—norum vero quos vulgò Vavassores dicunt ut leges Henrici I. Reg. Ang. Thaines minores respectu Thainorum majorum qui Baronibus aequiparantur But that these Lesser Thanes or Vavassors were also stiled Barones Sir H. Spelman tells us expresly in his Glossary Tit. Baro etiam Barones Comitum Procer umque hoc est Barones subalterni Baronum Barones sâ—pissime leguntur and of this he gives us many Examples and particularly of the Chief Tenants of the Abby of Ramsey above mentioned So likewise the same Author a Leaf or two farther speaking of the Barones of London mentioned in the Charter of King Henry I. understands them pro civibus praestantioribus qui socnas suas consuetudines i. e. Curias habuerunt Privilegia eorum instar qui in Comitatu Barones Comitatus dicuntur c. Nor did this Title of Barones extend to London alone but he also immediately tells us in the same place Sic Barones de Ebaraco de Cestria de Warwico de Soe Feversham plurium Villaram Regiis Privilegiis insignium cum in Anglia tum in Gallia c. and that Barons of Counties were no more than Lords of Mannors I have just now proved for Socna means no more than a Court Baron or Court of a Mannor So that here arises a plain distinction between the Barones Regis the King 's Great Barons or Tenants in capite and these Lesser Barons we now are here speaking of called Medmesse Thegnes and Burgh Thegnes by the Saxons till they 〈◊〉 on the Word Parliamentum to signifie the Common Council of the Kingdom who tho no Peers yet were Barones Regni Barons or Noblemen of the Kingdom according to the general acceptation of the Word Nobiles in that Age and is such made up the Body of the Baronage called by Matt. Paris and other Authors Baronagium or Communitas Baronagit totius Angliae M. I see you do all you can from the equivocal use of the Word Barones to croud in new and unknown men into the Great Council of the Kingdom viz. your Barons of Counties Cities and Towns whom since you dare not affirm there were then any Knights of Shires you suppose to have served instead of them and these you would have to be not Barones Regis but Regni or Terrae forsooth i. e. of the Land or Kingdom whereas we never had any True Barones held by mean Tenures here in England this if you deny you must deny all History and all our Ancient Laws and Law-Books too and if you grant it you must confess that every Baron was a Tenant in capite and by your own Concession he must then be the King's Baron or Baro Regis I grant indeed there were Nominal or Titular Barons such as you mention many in those Times such as were Tenants to Great Lords Bishops or Abbots of whom we find frequent mention in our Ancient Histories Records and Charters But these are not the men who had ever any Place in our Great Councils and I desire you would prove to me that ever they appeared there before the Times I assign and I would also have you inform your self of the Gentlemen of whom you borrow this Notion if they can prove that there were any such kind of Tenure as Tenura de Terra or de Regno or whether there was ever any man that held an Estate de Regno Whether forfeitures or Escheats were to the Kingdom And whether Fealty was sworn or Homage done to the Kingdom Or whether an Earl was invested or Girt with the Sword of the County by the Kingdom Or whether the ancient Ceremonies used at the Creations of Earls and Barons were done by the Kingdom Thus all the Barons of England held of the King and thus all these things were performed and done to our Ancient Kings and by them which are most manifest Notes of the King 's immediate Jurisdiction over the Barons and that they were his Tenants in capite and by consequence his Barons only which you cannot deny and of which Tenants in capite the Earls and Greater Barons always created by Investiture of Robes or other Ceremonies were summoned by particular Write
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
Praesentibus Clero Populo cum Magnatibus Regionis which pray let us put into English and see if it will not prove what I say viz. the Clergy and People being present with the Great Men of the Kingdom Now if the Word Magnates as you affirm did then comprehend all the Barons and Tenants in capite to what purpose is the Word People put here as a distinct Member of this Parliament But to shew you father that this Word Populus is not always to be understood for the whole Body of the Laicks but Lords and Knights of Shires 〈◊〉 shall shew you out of Walsingham Anno 1297. 24th Edw. I. where he mentions a Parliament held at St. Edmundsbury In quo a Civitatibus Burgis concessa est Regâ— Octava a Populo vero reliquo duodecima pars Bonorum Where by Populus 〈◊〉 not only meant the Peers but Knights of Shires or Grands des 〈◊〉 also M. I am not prepared at present to answer all the Queries and Difficulties that you can make or raise against the Dr.'s Arguments yet I think I am able to give you a very satisfactory answer why all Tenants in Soccage should be bounâ— by the Acts of those of whom they held their Estates For since as I have a ready proved all the Land in England except what belong to Religious Houses was granted out by King William the Conqueror to be held in capite by Knights Service and was again granted out by these Head-Tenants to their Feudatory oâ— Mesne Tenants by the like Services there being very few Lands granted in Free Soccage at the first And tho it is true that in process of time maâ— of those Estates and Lands became Free Tenements or were holde in Soccage that is were Freeholds yet the Lords still retaiâ— the Homage which in the Times we speak of was no idle insignificant Word and by that a Dominion over the Estate whereby upon Disobedience Treachery or Injury done to the Lords the Lands were forfeited to them and theâ— neither the Lands nor the Tenants to them which were termed Freeholderâ— were subject to any base Services or servile Works yet the Lords had still great power over these Tenants by reason of their doing Homage to them 〈◊〉 â—o nominè their Lands were many ways liable to forfeiture and therefore it waâ— but reason that the Chief Lords being Tenants in capite should conclude that Tenants in Soccage also and both make Laws and give Taxes for them without their being at all privy to it But admitting I grant that before 49th 〈◊〉 there were in some sense Commons in Parliament tho not as Knights Citizen and Burgesses chosen by the Common People as their Representatives Yet 〈◊〉 it not destroy mine or the Dr.'s Assertion who in the Introduction before the Answer to Mr. P. only affirms That before the 49th aforesaid the Body of the Commons of England or Ordinary Freemen as now understood or as we now call them collectively taken c. had any share or Votes in making Laws unless as they were 〈◊〉 presented by the Tenants in capite F. Be it so But I am sure in many places of the Dr's Booâ— he absolutely denies that there were any Commons in Parliament till the Time he Assigns But as for what you alledge in answer to my Queries how Tenants in Soccage could have Laws made for them and Taxes laid upon them 〈◊〉 â—heir Lords or Tenants in capite your answer is wholly grounded upon mistakes For in the first place King VVilliam did not grant all the Lands in England to be held of him by Knight's Service since as I shall prove hereafter there were many subordinate Tenants to Bishops Abbots and other Great Lords who never forfeited their Estates at all nor were disseiz'd of them by your Conqueror â—ad who had also great numbers of considerable Freeholders under them as in 〈◊〉 at the greatest part of the Land was Gavelkind which was Soccage Teâ—re In the next place neither were all the Lands he bestowed upon his Followers granted to be held by Knight's Service since you your seâ—f own that a great deal â—land was given by him to his Inferior Servants to be held by Petit Serjeanty and besides this a great deal of other Lands was regranted by that King himself 〈◊〉 some of those old Proprietors who had been dispossessed to be held in Soccage is appears from Fleta who speaking of these sort of men says expresly In 〈◊〉 maneriis seilicet Regis erant liberi Hemines Labâ—ri Tenentes quorum quidaâ—i 〈◊〉 per Potentiores a Tenementis fuerant ejecti eadem post modum in Villenagium tenenâ—â— resempserunt quia hujusmodi Tenentes cultores Regis esse dâ—gnoscuntur provisa 〈◊〉 quiet ne sectas facerent ad Comitatum Vel hundredum c quorâ—m â—â—gregationem tunc Soccam appellarent hinc est quod Sokemanni bodie dicunâ—â— c. Where you may see that these Socmen or Soccagers were then created by a â—ew Tenure from this King Nor did all the Tenants in capite grant their Lands â—o others to be held by Knights Service since they as well as the King did at first 〈◊〉 also in process of time grant Lands to the Old English Proprietors to be held of â—â—em in Soccage nor was Homage the proper or only Badge of Soccage Tenure but â—ealty unless the Land had been held by Knights Service at first as you may see in Littleton's 2d Book Sect. 118. Nor did this Soccage Tenure give the Lord any more right over his Tenants Estate to tax him de alto bâ—sso at his Will by â—eason of the subjection he was in to the Lord in respect of Forfeiture since â—hen the King should have had for the same reason the same Rights over all his 〈◊〉 in capite to tax them likewise at his pleasure and this Right of Forfeiâ—â—â— in case of Felony or for want of Heirs continued to the Lords as well of Soccage Tenants as others long after the time you assign for the coming of the Commons to Parliament even to our own Times and yet for all that those Lords could not give taxes for such Tenants in Soccage at their pleasure But that we may proceed pray consider also the form of the Peace agreed upon between the King the Prince his Son and the whole Body of the Kingdom assembled in Parliament to compose all Differences between the King and the â—arons The Title of which in the Record is thus Haec est forma 〈◊〉 a Domino Rege Domino Edwardo filio suo Praelatis Proceriâ—â—â—â—â—â—â—ibus cum Communitate totâ Regni Angliae Communitèr Conâ—â—â—ditèr approbata Which Articles were signed by the Bishop of Lincoln the Bishop of Ely Earl of Norf. Earl of Oxon Humphry Bohun William de Monte Canisio Majore London in Parliamento London Mense Iunii Anno Domini 1264. Haec autem â—rimatio facta est London de Consensu
confer any new Right or Priviledge upon Freeholders of 40 s. per Annum to give their Voices at such Election as you suppose but only takes away the Right which the smaller Freeholders of under 40 s per Annum whether Tenants in capite or not had before and restrains it only to such as shall have Lands or Tenements to the vaâ—â— of 40 s. by year above all charges And it is yet a much greater mistake to suppose as your Dr. doth that this Statute of 8 th Hen. VI. was at all altered by that of the 10 th of this King which is no more than an Explanation of it viz. that by 40 s. per Annum was meant 40 s. Freehold and that of Lands lying within the County where the Election should be made So that nothing can prove more expresly that all Freeholders as well Tenants in capite as by any other Tenure were all alike capable of Elections and being elected by the Ancient Law and Custom of England long before those Statutes and consequently were all alike Freeholders in the Eye of the Law But if you have nothing at present to object against what I have now said pray pursue the Method you have undertaken and let me see those convincing Proofs you so much rely upon and which you hope may also serve to convert me M. Before I undertake this Task pray permit me to give you my Opinion in answer to the Difficulty you have now proposed which I confess seems to carry some weight with it but those Prejudices will soon vanish when we consider that the first time this Alteration was practised it was done in the King's Name tho by the absolute power of Simon Mountfort in the 49th Hen III. and after a discontinuance of above twenty years was again renewed by Edw. I. at the desire of the Earls and Barons as I hope I shall shew you before we have finished our Conversation And therefore it being first done by the King 's absolute Power and after with the general consent of the Lords there needed no Statute to introduce it any more than there was in the Reign of VVilliam the Conqueror to give the Bishops and Abbots that held by Knight's Service places in Parliament among the Temporal Lords and to bring their Lands which were held before in Franc Almoigne under the Yoak of Military Service But to proceed in the Design I have undertaken it is necessary that I shew you first of all who were those Freemen or Freeholders properly so called upon whom the whole burden of the subordinate Government of the Kingdom chiefly relied and who then constituted the Legal University or Community thereof immediately after the Norman Conquest and during many King's Reigns after that time I suppose you are not ignorant that King VVilliam the Conqueror having outed all the English Nobility and Gentry of their Estates gave them away to his French and Norman Followers to be held of him and his Successors in capite either by Knights Service or Petit Serjeanty reserving to himself the Ancient Demesnes of the Crown and adding more thereunto for the maintenance of the Royal Dignity and for this I need refer you to no better Author than Doomsday's Book it self And then after he had thus distributed the Lands of England as aforesaid he composed a Body of Laws still extant and which are in great part Addition to the Ancient Laws of King Edward and his Predecessors I shall give you three or four of these new Laws and then I shall leave you to judge who were the true Freemen or Freeholders of the whole Kingdom The first is the 52 d Law of this King Tit. De Fide obsequio ergo Regem Statuâ—mus etiam ut omnes Liberi Homines faedere Sacramento affirmarent quod intra extra Regnum Angliae quod olim vocabâ—o Regnum Britannie VVilâ—ielmo Regi Domino suo Fideles esse volunt Tâ—ras Honores illius omni fidelitate servare cum eo contra inimicos alienigenar difendere Now who these Freemen were that were thus to maintain the King in his Lands and Honours we shall see in the 55th Law following Tit. De Clienteleri seu Feudorum Iure Ingenuòrum immunitate Volumus etiam ac firmiter praecipimus concedimus ut omnes Liberi Homines totius Monarchiae Regni nostri praedicti habeant â—â— meant terras suas Póssessiones sâ—â—s benè in pace libere ab omni Exactione injusto ab omni Tallagio it a quod nihil ab eis exigatur vel capiatur nisi servitium suum liberum quod de jùre nobis facere debent facere tenentur prout Statutum est in allis a Nobis Datum Concessum jure Hereditario imperpetuum per Commune Consilium votius Regni nostri Whereby you may see that all the Freemen here mentioned who were to hold their Lands and Possessions in Peace and free from all unjâ— Exaction and Taillage were only such who were to perform Free Service i. e. Knight's Service which was before appointed and granted them in Hereditary Right by the King in the Common Council of the Kingdom So that none were properly Freemen or exempt from Tax or Talliage but such as held by Military Tenure tho not Knighted And pray also by the way take notice that by this Commune Consilium Regni you are not to understand a Council of English men or of English and French together but one wholly made up of Frenchmen or Normans who as well Bishops and Abbots as Temporal Earls and Barons held almost all the Lands in the Kingdom by Knights Service Which is also farther made out by the 58 th Law Tit. De Clientum seu Vassallorem prastationibus Statuimus etiam firmiter praecipimus ut omnes Comites Bermes Milites Servientes Universi Liberi Homines totius Regni nostri prâ—â—â—â—tihabeant teneant se semper benè in Armis in equis ut decet oportet qud sint semper prompti benè parati ad servitium suum integrum nobis explendum pâ—â—â—gendum cum semper opus adfuerit secundum quod Nobis debent de Feodis Teneâ—â—â—tis suis de Iure facere sicut illis statuimus per Commune Consilium totius Regni nostri praedicti illis dedimus Concessimus in Feodo Iure Haereditario hoc praeceptum non sit violatum ullo modo super foris facturam nostram plenam So that here all the Freemen of his Kingdom were to perform their Military Services with Horse and Arms according to their Fees and Tenures Therefore they were Tenants in Military Service onely which in those times were the only great Freemen and that Service the only Free Service which were meant in this Law And â—ow different they were from our ordinary Freeholders at this day for whom neither of these Laws were made I dare leave it
the most part signifie the King's or any other Lord 's immediate Tenants by Knights Service for you may consult Spelman's Glossary and Du Fresue's Lexicon under these Titles But farther to confirm who were then the Constituent Members of our Great Councils pray see the Title to the Assize of Forests under King Richard the I. which Hoveden recites in these Words Haec est Assiza Dom. Regis haec sunt praecepta de Forestis suis in Angliae facta per assensum Consilium Archiepiscoporum Episcoporum Abbatum Comitum Baronum Militum totius Regni Where by Militum is to be understood not only those Tenants in capite that were Knighted but also all other Tenants in capite and if the Word ever signifies any other persons they were not ordinary Freeholders but Liberè Tenentes in servitio Militari Freeholders in Military Service as you may find in the Dr.'s Glossary Tit. Probi Homines Milites c. But pray remember also what Sir H. Spelman tells us in his Glossary Tit. Miles that these Milites when put alone were properly the Liberi Tenentes or Tenants in capite Qui non à Militari Cingulo sed a Frodo nomen sumpserunt So that I think no ingenious man but will confess that all these Councils were General Councils or Parliaments of the whole Kingdom consisting of no other persons than Tenants in capite F. To return an Answer to all your Authorities together I must now repeat what I often said that there are no firm Arguments to be drawn from the doubtful Words and general Expressions of our Ancient Historians and I doubt not but to shew you that all the whole strength of your Reasons consists in this alone But since I have already spoken so much of the various signification of the Word Barones Regis Regni I shall omit that and now proceed to the rest of the Words which you think make so plain for you and shall only observe at present that these Words Barones and Milites are always stretch'd or contracted according as the Gentlemen of your Opinion find it best to suit with their Hypothesis As for Example If the Word Barones is put alone then it must signifie none but Great Barons and Tenants in capite if it be joined with Milites then by Barones must be only meant the Great Barons or Peers and by Milites those Tenants in capite who were not Lords If any other words follow Milites then this Word must signifie only such Tenants in capite as were Knighted So likewise you deal with all other Words tho of never so comprehensive a Signification But why may not I with as much Reason affirm That by Barones mentioned in these Authorities is to be understood the Barones properly so called and by the Milites the Knights of Shires whether they were Tenants in capite or Feudatories to others For Radulphus de Diceto in Anno 1040. in the Laws of Malcolm the Second King of Scots mentions Milites Vavasores qui tenent de Baronibus tetras suas and that not only Tenants in capite but all others of whomsoever they held who were able to maintain themselves like Knights might be then forced to receive Knighthood appears by two Writs of 24 th and 26 th H. III. as they are found in the Close Rolls under this Title Forma de Molitibus faciendis and I desire you would read the Writ it self Rex Vicecomiti Northampton Salutem Praecipimus tibi quod per totam Ballivam tuam in Singulis bonis Villis similiter in pleno Comitatu tuo clamari facias quod omnes illi de Comitatu tuo qui tenent Feodum Militis integrum vel etiam minus quam Feodum integrum dum tamen de Tenemento Suo tam Militari quam Socagio pâ—ssint sustentari Milites non sunt Sicut Tenementa sua deligunt citra festum omnium Sanctorum Anno Regni Nostri 25. Arma capiant se Milites fieri faciant Et si qui fuerint tales qui citra Terminum illum se Milites fieri non fecerint Omnia Nomina eorum Statim à Termino illo quantitatem Valorem tenementorum suorum nobit scire facias Teste Rege apud Lewes 25 die Iulii Similiter Scribitur omnibus Vicecomitibus And as for the Words Homines Sui which you will have only to mean the King's Tenants in capite those Words have so equivocal a Signification that there is no Argument to be drawn from them for they may as well signifie all the King's Subjects sworn to him by Fealty and Allegiance as Tenants by Homage or Knights Service only as Sir H. Spelman in his Glossary observes upon the Word Homo dicitur de quovis Praediorum Tenente sive Socmanno sive Militari And for this he cites the Book of Ramsey and if Suus be added to Homo it doth much alter the Case as appears by the words following in the same place Dicitur Praeterca de Quovis Ministro Subdito saepe occurrit hoc modo in Antiquis Privilegiis non Solum Vassalos Tenentes sed Famulos Subditos quoslibet Significans and for this he gives us several Authorities So that you see these Words do not only signifie Tenants in capite but also any other Subjects and so might take in the Knights of Shires with the Citizens and Burgesses likewise at least the Representatives of such Cities and Burroughs as held of the King in capite by your own Sense of these Words But I shall however say something of the rest of the Words you insist upon out of Abbot Benedict viz. Barones terrae suae which means no more than Regni sui before mentioned and then it will signifie no more than that all the Barons of his Kingdom were summon'd to this Assembly which Word Tenents in capite I can give Mr. Selden's Authority for who in his First Edition 2 d Part hath his remarkable Passage speaking of the several kinds of Barons he says That besides the Barones Regis there were Barons of Subjects holding not of the King but by Mesnalty who made a third Rank of such as were Lords of Mannors c. Out of this may be understood why and in what sense Baronagium Angliae Rex Baronagium suum sine Assensu Baronagii sui so often occur in our old Stories taken as well for the King and the whole State sometimes as for the Greater Nobility But if your Dr. had been pleased to have compared the Authors he quotes with others nay with the Title to the very Constitutions of Clarendâ—n themselves as he hath given them as in his Appendix to his History out of Quadrilogus this Objection would have been needless for if you consult Gervase of Canterbury he stiles the Parties to this Council Praesules and Proceres Anglicani Regni And as for Matt. Paris pray observe that after the
welcome Sir but I did not expect to see you again so soon M. I beg your pardon if I come unseasonably but the truth is I have so great a desire to conclude what we began upon that important Subject we last discoursed of that I could not be at ease till I had done my endeavour to give you Satisfaction therein if it be possible But to come to the matter that we now meet about I must now tell you again that tho' this your gloss upon King Iohn's Charter seems plausible at first sight nay is agreeable to the Dr's own way of dividing and reading the several Articles of this Charter yet upon better consideration I can see no good reason for making a full or at least a half stop in the 16 th Article after these words omnes liberas consuetudines suas adding the rest that follows ad habendum Commune Concilium c. to the following Clause de seutagiis assidendis c. much lest for supposing as you do without any ground that there were two sorts of Common Councils one for Assessing Escuage and the other for Granting all other Aids and Taxes and then if read otherwise it will plainly appear that it was one and the same Council of the Kingdom that did then both grant Aids to the Crown and Assess Escuage ratione tenurae which I am the more inclined to believe from the fourteenth Clause here cited which says That no Scutage or Aids shall be imposed unless by the common Council of the Kingdom Now to what purpose is this so-express'd if there was to be one Council for the granting of Aids and another for the Assessing of Escuage So that if this Common Council of the Tenants in Capite might grant Aids and Assess Escuage upon the Subjects unless in the case before excepted I see no reason why they should not be the only Council for the giving their Assent to Laws also and consequently of concluding not only their own Tenants but the King's Tenants in Petty Sergeanty and Socage nay the Tenants of any other Persons whatsoever And though I have seriously considered Mr. P's Appendâ—x to the Rights of the Commons asserted and Dr. b's Answer to it as also his Animadversions upon Iani Anglorum c. Yet can I not see any colour of an Argument for making any distinction between the King 's Curia of his Great Lords and Tenants in Capite and the Great or Common Council of the Kingdom but that they were then all one and the same It would be tedious to me as well as you to run over all the particular Authorities and Examples which have been urged pro and con in this Question But I desire you or your Friend Mr. P. to shew me that there was any Bishops Earls Barons or other Members of Parliament in the times we now treat of that had any place or Vote therein but according to their Tenure and the ancient Custom of all Feudal Tenants who by the German Gothic and Lombard Feudal Laws which in substance were the same with ours were always summoned to the Court of the King their Supreme Lord. But farther to prove that this Council for Assessing Escuage was no other then the great Council or Parliament of those Tenents in Capite appears from Liâ—tleton's â—enures where in his second Book Sect. 97. he tells us That after an Expedition Royal into Scotland Escuage shall be Assessed in Parliament upon all those who failed to do their Service in that Expedition so that if the Parliament did then Assess Escuage I desire to know why they might not do it in the Reign of King Iohn iâ— this great Council of the Arch bishops Bishops great Lords and Tenants in Capite were not the Common Council of the whole Kingdom in those Times yet that Escuage was not always Assessed in Parliament after this Charter of King Iohn but that the King by his own Prerogative did often grant his Tenants in Capite a Power to take Scutage of their Tenants without any Assent in Parliament the Dr. hath given you above a dozen Examples in the Reigns of Hen. III. and King Iohn Thus it was for Aids and Scutage Service but if it was for Scutage imposed in Parliament as a Tax upon Land by the Common Council of the Nation then the Tenants in Capite were not only the sole Grantors but the Collectors of that Scutage too from their Mesne Tenants And the Writs to the Sheriff was different from these in Scutage Service though the same in Substance as likewise appears by those Records the Dr. hath there given us F. I doubt not but I shall make good my Assertion and shall be able to defend what Mr. P. hath in his Learned Treatise asserted concerning this matter In the first place I must stick to that way of reading and pointing of this Clause in dispute since it is not only agreeable to the Dr's Manuscript Copy but also to the old French Copy published by Father D'achery in his Spicilegium vol. 13. which is written in the French of thaâ— time but to answer your Objection against this Interpretation you your self have in great part helped me to do it by that true distinction you have now made between a Scutage as an Aid or Tax and as a Service the latter of which you assert might be granted to the King to be raised by his Tenants in Capite upon their under-Tenants whereas the former was only grantable in Parliament by the Common Council of the whole Nation Which Tax I Affirm was always granted to the King and imposed by the Common Council of the Kingdom only and not by the Tenants in Capite alone before the Expedition was undertaken Whereas Scutage Service considered as a payment of so much Money was never due or payable till the Expedition was ended and then only upon such as had failed to serve in Person or by sufficient Deputies and was then to be Assessed by the Tenants in Capite alone And though I grant it may seem to have been a Prerogative as you call it exercised by some of our Kings sometimes to grant his Tenants in Capite a License to take Scutage of their Tenants without the Assent of the Great Council of the Kingdom yet such Payments or Assessments were either according to Law and the express Grant of this Charter it self as is that Writ of King Iohn to the Sheriff of Glocestershire for the Assessing of an Aid or Scutage Service of three Marks on each Scute upon the Tenants of Saber Earl of Winchester for making his Eldest Son a Knight and which the said Earl might have claimed of his Tenants by the Common Law as also by the 20 th Article of that Charter but for Scutage Tax Littleton tells us Lib. 2. Sect. 101. That because such Tenements came at first from the Lords it is Reason they should have Escuage of their Tenants and the Lords in such case might
destrain for the Escuage so Assessed by Parliament or in some Cases they may have the King 's Writ directed to the Sheriffs of the same County c. to Lâ—vy such Escuages for them as appears by the Register But if either King Iohn or King Hen. III. granted Writs to levy Escuage upon the under-Tenants of the great Lords and Tenants in Capite without their own Consent in Parliament this ought to be no more cited as a Precedent than any other illegal Acts committed by those Kings since as our Records and Histories tell us it was such illegal Proceedings which were the cause of the Barons Wars And it is expresly against the words of this Charter of King Iohn which you have now quoted viz. nullum Seâ—â—agium vel Auxilium pâ—nam in Regno nostro nisi per Commune Consilium Regni nostri So that notwithstanding all you have yet said it doth not appear to me how Scutage when given as a Tax upon Knights â—ees alone and to be levyed not only from the Tenants in Capite themselves but their under-Tenants as also from the Tenants of them who though they held in Capite yet held not by Knights Service such as were the Tenants in Peâ—â—y Serjeanty and those who held of the King in Chief as of several Honors and not of hiâ— Crown as in Capite could ever charge such Tenants without their Consentâ— given either by themselves or their lawful Representatives much less could your Tenants in Capite Tax or Charge such as did not hold in Capite themselves viz. Those Abbots and Priors who held Lands in Right of their Monasteries in Franc Almâ—igne and who together with their Tenants made at least two third parts of all the Abby-Lands in England as also Tax'd those who not holding by Knights Service at all but by Tenure in Socage or Fee Farm did not hold their Lands as Knights Fees and therefore could never be Taxed by your Tenants in Capite for so many Knights Fees or parts thereof And Braecton who lived at this very time has distinguish'd to no purpose between those Common Services which all Tenants owe their Lords and the general Taxes or Charges imposed by the Common Consent of the whole Kingdom The words are very remarkable pray read them Sunt quaedam Communâ—s praestationes quae servâ—cis non diâ—uâ—iâ—â— nec de consuâ—tudine venâ—um nisi cum necessitaâ— intervenerit vel cum Rex venorit sicut sunt Hidagia Corraagâ—â— Carvagia alia plura de necessitate ex consensu Communi torius Regni introducta quae ad Dominum feâ—di non pertinent And therefore I cannot see any Reason why the great Lords and Tenants in Capite should ever have Power to lay a general Tax upon the whole Kingdom not the tenth part of which did then hold of them by Knights Service So that nothing seems plainer to me than that there was us our ancient Historians tell us a distinct Court which was held anciently three times every year viz. at Easter Whitsuntide and Christmas and then the King was attended by all the Bishops great Lords and other Tenants in Capite and this was called Curis or Concilium Regis and if any difference of Right did arise between the King and his Tenants or between Tenant and Tenant here it was to be heard and determined and many other things were there uâ—ted and done in relation to the King's Barons or Tenants in Capite only But under Favour this was not the Commune Consillum Regni or Parliament as we now call it for the King held this Court ex More or by Custom without any Summons as Simon of Durham and Florence of Worcester and divers other Writers of the Lives of our first Norman Kings do shew us But when they take notice of the meeting of the Commune Consilium totius Regni their Expressions after and then they say that Rex ascivi as it is in Ordericus Vitalis Ex praecepro Regn convenerunt or as Eâ—â—merus Rex Sanctione sua adunavit And Mat. Westminster of later times takes notice of this Union or Meeting of this Câ—ria or Assembly of Tenants in Capit together with the Great Council or Parliament in his History of Hen. III. Where relating how the King again confirmed the Great Charter in a Parliament Anno Domini 1252. being the 37 th of his Reign He hath these words In quindenâ— Paschae Adunato Magno Parliamento c. So that it seems plain to me that this uniting of the great or whole Parliament must be understood the Conjunction of both Councils together and therefore when this Council of Tenants in Capite that thus met ex more took upon them assess Escuage and transact other matters of consequence without the consent of the major part of the Tenants in Capite who often failed to appear at these Courts or Assemblâ—es held ex more it was then and not before expresly provided by this Charter of King Iohn that Escuage should not be assessed for the future without Summons or Notice given of it to all the Tenants in Capite who had right to be there M. I see you would fain prove that there was a Council or Assembly of great Lords and Tenants in Capite distinct from the Parliament and which met ex more and that these were the Persons who were by this Charter to Assemble for the Assessing of Escuage which is a meer precarious Hypothesis nor can you or those from whom you borrow this Notion make it out from any good Authority for I have already proved that the Barones Regis Regni were the same Persons and that usually the Barons or Tenants in Capite of what Quality soever did repair to the King's Court at Christmas Easter and Whitsunday doth appear to have been the Custom of those times from the Testimonies of our ancient Historians But to prove by examples out of the Authors you your self have made use of that the Bishops great Barons and Tenants in Capite were then alone the great Council of the Kingdom pray read Eadmerus speaking thus Celebratum est Concilium in Ecclesiâ Beati Peiri in occidentali parâ—e juxta Lâ—nâ—inum sita Communi Consensâ—â— Episcoporum Abbatum Principum totius Regni buiâ— Conventui assuerunt Primates Regni utriuâ—que ondinis And at this Meeting were present the Prime Men of the whole Kingdom of both Orders in this Council the Bishops and Barons are called the Principal or Chief Men of the Kingdom yet these were all the King's Barons they all held of him in Capite and so did all the Chief Men of the Kingdom So likewise in another Meeting under this King Hen. â— when Arch-Bishop Anselm was to give his Answer to the King according â—o the Advice of the Bishops and chief Men of the Kingdom The same Author tells us of Anselm that in Pascha ad Curiam venit Communis Concilii vocem unam
accepit c. Now pray tell me what Common Council was this Of the Bishops and chief Men of the Kingdom that Anselm referred himself to Was it not ex more by Custom You cannot find in Eadmer any Summons to it neither Rex asâ—ivit nor praecepâ—o Regis convenerunt nor Rex sanctione suâ adunavit In short not to multiply Examples look where you will in Eadmerus or any other of the ancient Historians you have cited and you will still find that the Persons who met ex more and without any Summons were the same who Assembled by the Kings Summons at other times that is the Principes and Episcoâ—i Regni or Terrae or called more generally Priâ—ates utriusque ordinis or the Barones or Majores Regni who did at these great â—easts pro more go to Court and hold a solemn Curia or great Council there And that these made up the Vniversity or whole Body of the Kingdom pray see what Matt. Paris says In die Pentecostes Dominus Rex Anglorum Loâ—dini Festum tenens Magnum serenissimum â—unc compositâ per Regni Vniversitatem Eleganti Epistolâ c. This was about the Pope's Exactions as hath been before delivered And Hen. III. in his Letter to the Pope calls the same Persons Magnates Angliae which in his Letter to the Cardinals about the same matter he calls Magnates Nostri as you may see in the former Citations of them F. But pray give me leave to ask you this question might not our first Norman Kings often Summon the Common Council of the Kingdom at one of the said usual Feasts since it was so much for the conveniency of the Bishops great Lords and Tenants in Capite who I grant were then all Members of the Great Council to meet all the rest of the Kingdom or Representatives of the Commons at the same time Though the Writers you have quoted may not mention their being Summoned at all And as for the Writs of Summons those of much later Parliaments being lost how can it be expected we should now prove their being Summoned so many Year before M. I confess it might be so that upon extraordinary business and when the occasion was great and the King desired a great and full appearance they might also receive an express Summons at those times But then I must desire you to shew us any mention of a Summons to any of these Common Councils which when called at other times are most constantly mentioned in this Author And I desire to know of you what you will say to those words pro more convenit which is spoken of the most general Councils when the Community of the Kingdom met at the King's Court You cannot deny but that the Tenants in Capite were the Kings Barones Milites Magnates c. Upon this we will joyn issue And I affirm without bringing Proofs which are infinite in this Case that all the Bishops Earls and Barons of England did hold their Lands Earldoms and Baronies of the Crown or which is all one of the King as of his Person and that was in Capite William the Conqueror as I said before divided most of the Lands in England amongst his great followers to hold of him he made Earls and Barons such as he pleased They and their Descendants held upon the same Terms with the first grantors which was to find so many Horse and Arms and do such and such Services both Titles and Lands were Forfeitable for Treason or Felony to the King did Homage for them and every Bishop Earl and Baron of England was in those circumstances and held of the King after this manner Other Lands were given to other Persons for meaner Services as to his Woodwards Foresters Hunts-men Faulconers Cooks Chamberlains Gouldsinlibs Bayliffs of Mannours in his own hands and many other Officers which in Doomsday-Book are called Terrae Thanorum Regis and sometimes servientium Regis And I doubt not whatever the Notion of Petyt Sergeanty now is but that originally this holding of Lands was the true Tenure not but presenting the Lord with a Bow an Arrow a pair of Spurs every Year c. might also be called Petyt Serjeanty though not so properly as the other F. Not to multiply words to no purpose I think your Reply is far from being Satisfactory for in the first place it is very unreasonable to demand that we should now shew the express Summons to these common Councils which were not held de more since you know that all antient Records of that kind are destroyed and lost for if we could produce them at this day the difference between us and those of your Opinion would quickly be at an end as appears by those great Councils which are said expresly by the Historians I have cited to have been summoned and yet no such Writs of Summons are to be found nor is it any good Argument that because our ancient Historians mention no distinct Summons to the great Councils when met at the usual times of the meeting of the Tenants in Capite that therefore there were none such since we find they often pass by much more material Matters than this And though I grant that the Tenants in Capite were then part of the great Council of the Barones Milites Magnates Regni yet does it not follow for all this that none but the Kings Barons and Tenants in Capite were Members of this great Council since there might be in those times other Barons or great Freeholders who though they held their Lands of the Tenants in Capite yet might be there as Knights of Shires or else appear in Person at those Assemblies as well as the other and besides there were others who though they did not hold of the King in Capite but of some great Honor or Castle or else of some Abbot or Prior yet were Men of very great Estates and very numerous all which must otherwise have had their Estates tax'd and Laws made for them without nay against the consent of themselves or any to represent them Nor is your Assertion at all true That William the Conqueror divided most of the Lands in England to be held of him in Capite For besides those Servants and Officers you last mentioned above two third parts of the Lands of the Abbies and Priories in England were not held as also much other Lands in Kent and other Countries per Baroniam or Knights Service but in libera Elecmosina only or Socage as I have already prov'd and consequently neither they nor their Tenants could according to your Hypothesis have any Representatives in Parliament And farther you your self grant that those Lands you mention which were given out by your Conqueror to his Woodwards Foresters c. did not capacitate them to appear in Parliament since their Tenure was only by Petyt Serjeanty and not by Knights Service Nor could they become the King's Tenants in ancient Demesne because such Tenants
held wholly by Socage Tenure whereas it appears plainly by Littleton that Tenants in Petyt Serjeanty were subject to Wardship Marriage and Relief So that whoever will but consider that near half the Lands in England were held by Bishops Abbots Priors c. and of whom not a third part held by Knights Service of the Crown and will then likewise consider what a vast number of Tenants those Abbots Priors Deans and Chapters who were not Tenants in Capite at all must have had and who either held Estates in Fee or else for Life under them in Socage as well as by Knights Service as also all the other sorts of Tenures I have already mentioned which either held of the King as of some Honor or Castle or else of other Mesne Lords by other Tenures than Knights Service must certainly conclude that not above one half of the Lands of the whole Kingdom was held either immediately of the King or else of other Mesne Lords by that Tenure So that if all these Persons which were far the greater Number of the Free-holders in England should have been thus excluded from having any thing to do in our Great Councils I doubt not but we should have found sufficient Clamour in our Histories against so unjust a Constitution and when the whole Body of the Kingdom was in Arms against King Iohn at Running-Mead they would likewise have inserted a Clause for themselves if they had not had their Suffrages there before either by themselves in their own Persons or by their lawful Representatives And therefore upon the whole matter I durst leave it to the Consideration of any unprejudiced Man whether it is not much more probable that the Constitution of Knights of Shires Citizens and Burgesses appearing in Parliament should be much more antient then the time you assign than that so small a Body of Men as the Bishops Lords and Tenants in Capite should represent all the Freeholders and People of England who never held of them by Knights Service at all Nor have you yet answered the Quotation I have brought out of Bracton in my last Discourse to the contrary And whoever will but consult that Author in his Chapter of Tenures will find that the Tenants in Capite were so far from having a Power of charging all the Mesne Tenants at their Pleasure that in his Chapter de Tenuris it appears that a Mesne Tenant in Capite having purchased an Estate for a valuable Consideration was lyable to no other Services and Conditions than what his Tenure express'd which once performed the Lord had no more to say to him and if so be he laid any further Burthens upon him he might have had a Writ of acquital out of the King's Court against him directed to the Sheriffs several Forms of which you may see in Glanville and in the old Register M. We are not to rest upon meer Probabilities for some things that now appear to us unreasonable at this instant of time might then be very just for if the Feudatary Tenants of the Bishops Barons and other Tenants in Capite were well enough contented with the Constitution of the Kingdom as it then was and that it plainly appears by matter of fact that there was but one Common Council for the whole Kingdom and that of the Bishops Abbots Great Lords and less Tenants in Capite only it is in vain to argue of any unreasonableness in or Inconveniencies that might arise from such a Constitution though perhaps a great part of the Kingdom did not hold in Capite nor yet by Knights Service and therefore though the Feudatary Tenants of the Tenants in Capite were upon the performance of their Services acquitted of all other Charges yet this was still to be understood only of such ordinary Services as those Tenants were to perform by virtue of their Tenures such as was Scutage Service or the attending upon their Lords when they went out to War along with the King but did not extend to such Scutages as were granted in Parliament or as a Tax upon Land by the common consent of the Nation for then the Tenants in Capite were not only the Grantors but the Collectors too of such Scutage Tax from their Military Tenants and the Writs to the Sheriffs were different from those for Scutage Service and for proof of this I desire you would peruâ—e that Writ which the Dr. Quotes of the 19th of Hen. III. which is still to be seen in the close Roll of that Year Rex Vice Comiti Sussex salutem Scias quod Archiepiscopi Episcopi Abbates Priâ—reâ— Comites Barones omnes alii de Regno nostro Angliae qui de nobis tenent in Capite spontanea voluâ—â—â—te suâ— sine Conâ—uetudine concesserunt nobis Efficax Auxilium ad magna Negotia nostra Expedienda unde provisum 〈◊〉 de Consilâ—o illorum quod habeamus de feodis Militum Wardis quae de nobis Tenent in Gapite duâ—s Marcas ad predictum Auxilium faciendum unde proviâ—erint reddere nobis unam medietatem ante Festum sancti Micâ—aelis Anno Regni 19. aliam Medictatem ad Pasche Anno Regni â—osirâ— 20. Ideo tibi precipimus quod ad Mandatum venerabilis Patris R. Cicestren Episcopi Cancellarii nostri sine dilatione Distringas omnes Milites liberos Tenentes qui de eo Tenent per Servitium Militare in Balliva tua ad redlendum ei de singulis feotis militum Wardis duas Marcas ad predictum Auxilium nobis per manum suam Reddendum in Terminis predictis Sic scribitur pro aliis Episcopis Abbatibus Prioribus Magnatibus Now I desire you to tell me whether any thing can be more plain than that this Tax was granted by a Common Council of the Kingdom according to that Clause of King Iohn's Charter I have now cited Wherein it is first especially provided that no Aid or Scutage shall be imposed upon the Kingdom unless by the Common Council thereof and yet you see by this Writ that the Archbishops c. with the Barons there mentioned together with the other Tenants in Capite alone granted an Aid or Scutage Tax of two Marks for every Knights Fee which they held of the King and that by virtue thereof not only those Knights Fees they held in their hands but also all those Subseudatary Tenants called here Freeholders who held of them by Knights Service were likewise charged for every Knights Fee so held the like Summ of two Marks Now I think nothing can be more plain from this Record than that this was a Common Council of the whole Kingdom and yet consisted of Tenants in Capite only and therefore I desire you to shew me some better Proofs than you yet have done that these Tenants in Capite ever made a distinct Council different from the Common Council of the whole Kingdom F. I grant this seems at first sight to be a good Authority for
you but I doubt not for all that to prove that it makes wholly against you and will together with those Proofs I shall urge make out this difference between the two sorts of Councils I have already asserted and therefore I must tell you that there is no necessity of understanding the words de Consilio illorum mentioned in this Record to refer to the Common Council of the whole Kingdom It not being here said to be granted per Commune Concilium Regni and then there can no more be proved from this Record than that a Common Council of the Tenants in Capite took upon themselves an unusual Power sine consuetudine as the Writ here mentions in those times to charge not only themselves but their Under-tenants also and that even this was an encroachment appears by the Statute De â—â—lagio non conâ—edendo made 25th of Ed. 1. whereby it is expresly forbid that any Talliage or subsidy should be laid upon the Kingdom sine volunâ—aâ—e â—ssenâ—â— Archiepiscorum Episcoporum Comitum Baronum Militum Burgensium aliorum liberorum hominum de Regno nostro Now pray read my Lord Cooks Reason in his 2d Inst. why this Statute was made The 2d Cause says he was that the King the Year before had taken a Talliage of all Cities and Burroughs without assent of Parliament whereupon arose a great Murmuring and discontent among the Commons for pacifying which discord between the King and his Nobles and for the quieting of the Commons and for a perpetual and constant Law for ever after both in this and other-like Cases this Act was made c. being no other then as the same Author tells us in the Conclusion of this comment on this Statute then a restitution general to the Subjects of all their Laws Liberties and free Customs as freely and wholly as at any time before in better and fuller manner than they used to have the same But yet that this was no general Scutage or Tax upon the whole Kingdom but only upon the Tenants in Capite and their Tenants by Knights service appears by the Writ it self So that not only all the Persons I have already mentioned who being Tenants to Monasteries and Priories did not hold by Knights service and all Tenants in Petys Sergeanty and all Cities and Burroughs who did not hold in Capite who if they had not then Representatives in the great Council were wholly Free from this Tax and not only these but all Tenants in Fee Socage whether holding of the King or of other Mesne Lords were wholly exempt from this Scutage So that nothing seems plainer to me than that this Assembly that gave the King this Tax for themselves and their Tenants was a Common Council only of Tenants in Capite charging themselves and their Tenants only and not the whole Kingdom and that done in a Case of great necessity sine consuetudine For if it had included all the rest of the Kingdom there would certainly have been some mention made how all the rest of the Kingdom which did not hold by Knights service should be Taxed And that this was a Council consisting of the Tenants in Capite only may appear by a Record of the 42d of this King which I pray read Rex Bar. c. Quia per Commune Concilium Com. Baronum aliorum Magnatum nobiscum in Walliâ nuper existentium provisum est quod nos ipsi qui servitium nobis fecerunt ibidem habeamus Scutagium nostrum viz. De Scuto 40 Sol. pro Exercitu nostro Wall Anno Regni 41. Vobis mandamus quod de omnibus feodis Militum quae tenentur de Nobis in Capite vel de Wardia in manu nostra existentibus exceptis Feod illorum qui brevia nostra habuerunt de Scutag suo babendo lâ—vari fac Scutag nostrum From which Record it appears that this was only a Common Council of Tenants in Capite who had attended on the King and done their Service in this Welsh Expedition and concerned none else but such Tenants by Knights Service and their Tenants who had fail'd to do their Service and is just such a Tax as is expresly reserved by the last Clause of King Iohn's Charter which you have before cited whereby Scutage is to be assessed by all the Tenants in Capite And that not only the Spiritual and Temporal Barons and Tenants in Capite did thus meet and hold distinct Councils or Assemblies for the granting of Scutage but also that the Spiritual Barons and Tenants in Capite did also sometimes hold separate Assemblies appears by the Patent Roll of the 15. of this King thus Cum peteremus à Praelatis Angliae quod nobis Auxilium facerent pro Magnâ necessitate nostrâ de quâ cis conflabat viz. Epis. Abbatibus Abbatissis Prioribus Priorissi qui de nobis Tenent in Capite ipsi Nobis liberaliter concesserunt Auxilium tale viz. De singulis Feodis Militum suorum 40â— de tos Feodis de quot ipsi tenentur nobis respondere quando nobis faciunt Servitium Militare Where you see not only the Bishops and Abbots but the Abbesses and Prioresses granted a Scutage of 40 â— upon every Knight's Fee not which was held of them but for which they were answerable to the King before and though I do not suppose that these Women left their Nunneries and appear'd in Person at such Meetings yet they might very well do it by their Oeconomy or Stewards as their Lawful Proxies for Assemblys of that Nature But when a general Tax or Subsidy was granted by the whole Kingdom the Stile of these Councils runs much otherwise as appears by the Close Roll of the 4th of this King where it is recited in the Record that Omnes Magâ—ates Fideles totius Regni nostri granted de qualibet carucatâ duos solidas Now it hence appears that this was a grant of Caruage which not being a Scutage service nor yet a Tax by way of Scutage and was therefore to be granted by the Common Council of the whole Kingdom assessed not only upon Tenants in Capite and their Feudatory Tenants but upon each Plough-Land of the whole Kingdom must have bin granted as I have already proved out of Bracton speaking of this Caruage de consensu Communi consilio totiut Regni for otherwise these Tenants in Capite could never have charged all the Lands of England of which not half was held by Knights service And to make it yet plainer by other Records pray see another of the 16th of this King in these words Rex Vice-comiti Devon salutem sciatis quod Archiepiscopi Episc. Abbates Priores Clerici tâ—ras habentâ—s quae ad Ecclesias suas non pertinent Comites Barones Milites Liberi homines Villani de Regno Nostro concesserunt nobis in auxilium quadragessmam pariem omnium mâ—bilium suorum So that it is plain here who made the Commune
Concilium Regni and gave this aid of a 40th part of their Goods viz. The Arch-bishops Bishops Abbots Priors Inferiour Landed Clergymen the Earls Barons Knights Freemen c. it being a Subsidy granted upon Goods and not laid upon Land and that it may fully express all the Parties to the Grant the Record tells us there were also the Villani the Inhabitants of every Village or Burrough Town And to let you see that our Ancient Manuscript Chronicles of this Age give the same sense to the expressions of this Record and that in the same Terms Pray Read this Quotation which a Friend of mine took out of an Ancient Manuscript called Chronica Monasterii de Hageny in the Cottonian â— Library as Ancient as the times are we are now treating on the words are these Anno 17. Henrici Regis 4 ti where note that the year is mistaken for 16. but the King is the same Henry the Third being often in that Age called the Fourth in respect to King Henry Son to Henry the Second Idem Rex accepit ab Archiepis Epis. Abbatibus Prioribus Clericiâ— terras habentibus quae ad Eccles. sua non pertinent ab Comitibus Baronibus Militibus Liberis hominibus villanis de Regno Angliae in Auxilium quadragesimam partem omnium mobilium suorum And to let you see that this Author makes a plain distinction between the Tenants in Capite and the rest of the Kingdom pray observe what immediately follows in the same place ut Anno. viz. 8vo A quo communi Assensu voluntate Magnatum suorum quam aliorum laicorum totius Regni quintam decimam Catalorum suorum universaliter accepit Where note by accepit is still to be understood he received it after the Peoples grant of it as before in the Record of the 16. and that by Magnatum suorum is meant the great Lords and Tenants in Capite and by aliorum Laicorum put here as distinct from them all other Orders or Degrees of men Now pray how could these Taxes upon the Goods of the whole Kingdom have ever been given but by the general Representatives thereof since all could not be there in Person unless you can shew me that men in those days held their Goods and Chatels by Tenure in Capite M. I think you and I may so far agree that this Council I instanced in consisted of Tenants in Capite only and likewise that they imposed Scutage upon no others than their Tenants by Knight-service yet doth it not therefore follow that they were not the Common Council of the Kingdom or might not have Tax'd all others though they were not their immediate Tenants as well as they did those that were And therefore I am not convinc'd but that these Persons mentioned in the Records you have cited which you grant constituted a Common Council of the Kingdom were no other than the same Tenants in Capite already mentioned for as for the Fideles mentioned in the Record of 4 th Hen. 3. I think the Dr. hath very well proved both in his answer to Mr. P. as also in his Glossary that they were no other than the King's Tenants in Capite and for this pray consider the Authorities he there gives us For though I agree with you that the word Fideles doth sometimes signifie generally all those who are under the Power or Subjection of their Prince Yet Hottoman also tells us That Fideles interdum specialiter dicuntur iidem qui Vassalli Qui Feudo accepto in Patroni Fide Clientelâ— sunt vicissimque suam ei certi obsequii nomine Fidem astrinxerunt and in this sense I suppose this word is to be taken in most of our Histories and Records I shall therefore give you one which will sufficiently clear the true signification not only of the word Fideles but of Liberi Homines too It is in William Malmâ—bury in these words Williâ—mo Filio suo Cum vix 12. Annorum esset omnes Liberi Homines c. Cujuscunque ordinis Dignitatis cujuscunque Domini Fideles Manibus Sacramento se dedere coacti sunt By which you may see that by the words Liberi Homines Fideles are here meant only the Feudal or Military Tenants either of the King or of any other Lord And to prove it farther by Records pray see here â—hose that the Dr. hath given us in the same place The first is that of the Patent Rolls of the 15. of King Iohn Rex Baronibus Militibus omnibus Fidelibus totius Angliae Salutem They were to hear what the Bishop of Winchester was to say to them about the Releasing the Interdict and that these Milites and Fideles were only the King's Tenants in Capite is clear from the latter part of this Record Vnicuique vestrum si fieri potest Literas nostras super hoc transmissemus sed Negotium majori Festiâ—atione c. Teste Meipso apud Rupel c. The King had writ to them all particularly but that the business required greater haste It seems before the granting of Magna Charta this King sent special Summons and particular Letters to his Barons and other Tenants in Capite to meet upon any occasion So likewise in these Writs there mentioned to the Tenants in Capite of several Counties as they are found in the close Roll there cited Rex omnibus Comitibus Baronibus Militibus aliis fidelibus suiâ— de Com. Ebor. Northumbr Cumbr. c. Vobis mandamus quod Prompti sitis Parâ—ti cum Equis Armis c. These were the Feudataries and Tenants in Military Service But to speak somewhat of the Clerici Terras habentes c. as also of the Liberi Homines Villani mentioned in the Record of 16 Hen. 3. you have now cited 1. I cannot allow your Version of those words Clerici Terras habentes qua ad Ecclesias suas non pertinent by Inferior Landed Clergy-men since 't is more than you can make out for I take them to be such Clerks as had Mannors and Free or Military Fees belonging to their Benefices and that held of the King in Capite the Fee whereof was in the Crown and not in the church and therefore did not belong to it But Mat. Paris fol. 377. informs us better who they were that gave this Tax when he speaks concerning this very Council ad Coloquium coram Rege convenerunt Episcopi aliarum Ecclesiarum Praelati cum Proceribus Regni concessa est Regi quadragesima pars honorum Now what the Liberi Homines were in this Record you have cited we may easily guess from the other Records I have made use of in 19 Hen. 3. viz. such of those Omnes alii qui de nobis Tenent in Capite which were not Milites in a strict sense or had not received the Order of Knighthood And I shall make out this sense of the words as also of
the true meaning of these Villani by another Record dated but two years after this of yours viz. 21 Hen. 3. Rex Vic. Kant Salut Sciâ—s cum octavis Sancti Hillarii c. ad mandatum nostrum convenirent apud Westm ' Archiepiscopi Episcopi Abbates Priores Comites Barones totius Regni nostri ut tractatum haberent nobiscum de statu nostro Regni nostri iidem Archiepiscopi Episcopi Abbates Priores Clerici Terras habentes quae ad Ecclesias non pertinent Comites Barones Milites Liberi Homines pro se suis Villanis nobis concesserunt in Auxilium Tricessimam partem honorum From this Record we may observe 1. That the King's Writ was only issued to the Arch-bishops Bishops c. Earls Barons of the whole Kingdom 2. That in the recital of this Tax the Sheriff is told first that the Arch-bishops Bishops c. and the Clergy which had Land not belonging to their Churches a certain sign that they granted by themselves and out of nothing else but that and then that the Earls Barons Knights and Free men for themselves and their Villains granted a thirtieth part of their moveables And from this Record it is also manifest these Liberi Homines had Villanos if not Bondmen Villagars or Rusticks Colonos or Husbandmen at least of whose Estates by publick Assent and for the publick benefit they might in part dispose of which Liberi Homines according to the Tenor of all our Records and Histories were Tenants in Capite and that the Villani mentioned in the other Record of 16. Hen. 3. to have given a fortieth part of their Moveables did grant by their Lords that is their Lords Paramount that were Tenants in Capite did grant for them though they held it not immediately of them but of other Tenants in Military Service which immediately held of the Tenants in Capite who did charge them by publick Taxes hath been shewn from divers Records So that it was frequent in those times to say such and such concesserunt granted such a Taxe that is by those who had Power and Authority to do it for them and without their consent too when those for whom they granted were not capable of being Members of Parliament themselves I could give you more Examples of the like Nature but I will not tire you F. I pray Sir give me leave to answer this long speech and to begin with your Interpretation of this word Fideles First then we are so far agreed that the word Fideles had two or three different Significations First it signified all the Subjects in general in the next place all Vassals or Feudatary Tenants whatever whether of the King or any other Lord as appears by the Passage you have cited out of William of Malmsbury as also divers antient Charters particularly those of King William I. and Maud the Emperess and King Stephen which are divers of them directed Fidelibus suis Francis Anglâ— which cannot mean Tenants in Capite since the Doctor and your self will scarce allow any English Men to have then held Lands in Capite of the Crown Lastly I grant this word Fideles may sometimes signifie the Tenants in Capite of the King all which being so I think you cannot deny that it is not the bare word but the sense it bears in the Places where it is used that must direct us to its true Signification and that the fideles there mentioned to have granted Caruage in the 4 th of Hen. 3. could not be the King's Tenants in Capite only I have given you a sufficient reason which you do not think fit to answer viz. That Caruage was a general Tax imposed upon all the Lands of the Kingdom as well what was held by Knights Service as what was not and how your Tenants in Capite could Tax those Lands which were never held by Knights Service I desire you would resolve me And therefore by the Fideles here mentioned in this and many other Records are not to be understood the Tenants in Capite only but all other Subjects who did Fealty who though they could not all appear in Person in our great Councils or Parliaments yet were there by their Representatives the great Freeholders Lords of Mannors or else by the Knights Citizens and Burgesses But I must now make some Remarks upon your Interpretation of â—he Writs of the 16 th and 21 th of Hen. 3. wherein you have certainly very much mistaken the sense of all the main Words For in the first place as for the Clerici terras habentes non ad Ecclesias pertinentes which you interpret to have been Clerks having Mannors and Military Fees not belonging to their â—enefices but held of the King in Capite seems to be altogether forced For whoever heard of Clerks that is inferior Clergy Men Parsons or Vicars of Churches who held Benefices of the King in Capite and not in Franc Almoigne or if they had any such that therefore those Lands so held should be called Lands not belonging to their Churches for at this rate the Lands of Bishops all Abbots Priors c. which held of the King in Capite would have been in your sense Lands not belonging to the Church but who but you and your Doctor ever gave such an unreasonable Comment on those words Nor will that Passage you cite out of Mat. Paris at all favour your Interpretation for either these Bishops and Prelates there mentioned gave this sortieth part of their Moveables in Parliament with the rest of the Kingdom or else as Clergy men in Convocation If the former then these Clerici could have no Votes there in Person for I believe it would puzzle you to prove that at this time any Ecclesiastical Person below the degree of an Abbot or Prior had any place in Parliament by reason of his Tenure by Knights Service in Capite for those Lands he held in Right of his Church but if you 'll have this Tax to be granted by the whole Clergy in Convocation then such Clerks as you mention could not be there in Person First because they are said to be such as had Lands quâ—e ad Ecclesias suas non pertinent and so could not have any place there as Clergy-men nor could they be included under the Praelati since that word takes in none beneath the degree of a Dean And therefore if these Clerks gave any thing in Parliament they must do it by their lawful Representatives the Knights of Shires or if in Convocation by their Clerks of the lower House then called Procuratores Cleri So that take it which way you will those Clerks could not be present themselves at these Parliaments when those Taxes of the 30th and 40th part of their Moveables were given to the King and therefore either as Lay-men or Clergy-men must be Taxed by their Representatives but in deed the words Proceree Regni which immediately come after Episcopi Pralati in
other Weapons And the 2d Article of King Iohn's Charter says expresly Concessimus etiam omnibut Liberis Hominibus Nostris Regui Anglia pro Nobis Haeâ—elibus Nostris in perpetuum omnes Liberates subscriptas â—abeâ—das â—enandas eis haeredibus â—uit de Nobia Hâ—rodibus nostris Which the Dr. himself renders thus We have also granted to all our Freemen of the Kingdom of England c. And sure then this Charter could not be made to none but Tenants in Capite unless you will suppose that none but they were Freemen and all the rest Slaves Nor was this Charter only made to relax the severity of the Feudal Tenures as you suppose since there are divers other Clauses in it which concern all the rest of the Freemen and Free holders in England as well as they for besides the first and second Chapters of this Charter which grants and confirms to the Church of England and to all the Freemen of the Nation their Rights and Liberties If you please better to consider it you will find that there are several other Chapters in this Charter which all other Freemen as well as the Tenants in Capite have thereby an Interest in as you may see by the 10 11 12 13. 15 16. 22 23 24 25. and above 30 other Chapters or Clauses therein exprest which are granted not to Tenants in Capite alone but either to Ecclesiasticks or other Lay Freemen of the whole Kingdom But to prove this a little further I shall give you but one or two instances out of this Magna Charta and that too in the Drs. own Translation Article 48. No Freman shall be taken or imprisoned or disseised of his Free Tenement or Liberties or Free Customs or Out-Lawed or Banished or any ways dâ—stroyed nor will we pass upon him or commit him to Prison unless by the Legal Judgment of his Peers or by the Law of the Land i. e. by Legal Process The other is the 49. Article of this Charter that we will not sell to any Man we will not deny any maâ— or delay Right or Justice Now Judge your self whether these two Articles were made to the Tenents in Capite alone or to all the Freemen of the whole Kingdom And hence it also plainly appears that the same Body of Freemen to whom this Charter was made were likewise present and gave their Assents to the making of it Nor were Vavasors or Fendatary Tenâ—nts of the Bishops Abbots great Lords and other Tenants in Capite Persons so inconsiderable as you would make them that they only should come hither but as followers to augment the Noise since I have already proved from Bracton that there were divers of them Men of great Estates and Power in their Countries besides the Tenants of those Abbots and Priors who as I have already mentioned did not hold in Capite of the King at all and yet made a great Part of the Kingdom besides Tenants in Petyâ— Serjeanty and those that held of great Honours who could never be represented by the Tenants in Capite at all And therefore I must notwithstanding what you affirm to the contrary look upâ— on all these Persons for as good Law-makers as the greatest Lords or Tâ—nants in Capite of them all since the main force of the Nation did not lye in them but in their Feudatary Tenants who would never have followed their Lords in this Assembly if they had not look'd upon themselve as having as good an interest in the Rights and Liberties they demanded as appears by this Silvo of all their Liberties as their Lords themselves and also as good a Right as they in giving their Assent to them when they were to be pass'd into a Law as they were by this Charter since these Feudatary Tenants were not at all obliged by their Tenure to obey their Lords Summons at any other Warlike expeditions but where the King or his Lieutenants went out in Person M. I am very well satisfied that this could be no Parliament for the reasons already given and tho I grant that these Charters were made to and in the Presence of the greatest part of the Clergy Earls Barons and Freemen of the Kingdom yet this proves not that they had any Vote or Suffrage in making of them nor indeed could they for the great Charters were only the Petitions of the People drawn into the Form of a Charter and passed under the King's Seal as his meer voluntary Free Grants and Concessions without any Votes or Authority from the People And therefore the great Charters of Henry III. recites them to have bin made of his meer Grace and Free Will as it is in the Preface to it But pray answer me a few plain Questions concerning King Iohn's Charter which if you can resolve I may be inclined to believe there might be some other great Council besides that of Tenants in Capite The first is if this Common Council of Tenants in Capite were for Assessing of Aids and Escuage only as you suppose it is provided by the last Clâ—use of this Charter why was the Cause of the Meeting to be declared in every Writ of Summons to the great Barons and Tenants in Capite if they were only Summoned about Aids and Escuage or other ordinary business of Course sure then the Cause of Summons need not to have been declared as it is here provided In omnibus Litâ—er is Submonitionis causam Submonitionis illius exponemus F. I will give you an answer to this Question immediatly but before I do it let me tell you that you are much mistaken in saying that the great Charters because they were the Kings Free Concessions were therefore passed without any Votes Suffrages or Authority of the People of England Since I have already proved in our discourse concerning the legis â—â—tive Power that the matter of those Charters was no more then an affirmative of the Common Law of England long before your Conquest and that the Peoples consent and Suffrage was sufficiently given in their drawing them up and offering them to the King to be Sealed and accepting them from him when he had done it And therefore that the great Charters are always called Statutes in our Ancient Records and Aâ—â—s of Parliament But to answer your Question I suppose that the King besides the ordinary business of their Assessing Escuage had often other affairs of great moment to be transacted with and Communicated to his Bishops great Lords and Tenants in Capite in which the rest of the Kingdom were not at all concern'd such as giving the King their Advice as a great Council concerning divers weighty Affairs as in the business of Sicily mentioned in the first Record I have cited as also about undertaking Forraign Wars against France Scotland Wales c. in which they were bound to follow and assist him together with their under-Tenants according to their respective Tenures and therefore it was but reason
been known who had a right to come to this Council if these words had not bin inserted so that this seems to me to make a plain distinction between these Liberos homines qui de nobis Tenent in Capite and the rest of the Freemen of the whole Kingdom But when Eadmerus and other ancient Historians mention the great or Common Council of the whole Kingdom afterwards called the Parliament then their expressions are more general and comprehensive for proof of which pray consult the Old English Saxon Annals continued down to the time of Henry I. wherein Anno. Dom. 1085. being the last Year of William I. there is a remakable passage which I shall here give you in English At Christmas the King viz. William I. was at Gloucester with his Nobles and there held his Curia or Court in Saxon his Hired Five days and immediately after it follows thus After this he held a great Council in Saxon Mycel Getheat where he had many great Discourses with the Nobles c. Now it seems plain to me that this Court here called his Hired could not be the great Council of the Kingdom for to what purpose should it meet again so quickly if it had the great Council of the whole Kingdom or why are they here called by different Titles the one his Hired or Court and the other the Mycel Gatheaâ— the great Council which is also called commune Concilium totius Regni in Sir Henry Spellmans Councils in this very Year And to shew you more plainly the difference between this great Council of the whole Kingdom and the lesser Council of the Kings Barons and Tenants in Capite Pray see Eadmerus who relating what was done in a great Council held at Easter immediately before the Invasion of Robert Duke of Normandy in the 2d Year of Henry I. says there met tota Angliae Nobilitas cum Populi numerositate and then Arch-bishop Anselm engaged for the King that he should Govern the Kingdom according to the just Laws thereof where you see that besides the Noble men and Gentlemen here called Regni Nobilitas there was also a great number of the Commons here termed in the Barbarous Latin of that Age Populi numerositas But when the King held his Curia of the great Lords and Tenants in Capite alone the expressions are more particular as may appear by many Charters of our first Norman Kings to several Abbeys of their own Foundation which are said to be made Consilio Assensu Baronum nostrorum tam presulum quam Laicorum as you will for example find it in the Charter of Hen. I. to the Abby of Abington as it is exemplifyed in the ancient Manuscript Register of that Abbey now in the Cottonian Library in which Book you will find more of the like Nature which plainly make out this difference between this less Council of the Kings Barons and Tenants in Capite and the great Council of the Kingdom And for further proof of this pay see the Instrument of King Iohn's resignation of his Crown to the Pope as you will find it at the end of Dr. B's compleat History which is recited to have been done Communi Concilio Baronum Noâ—troâ—um that is by the Common Council of the Kings Barons and Tenants in Capite who were all there present in Arms against the Landing of the French King then expected And yet this was never looked upon to have been done per Commune Concilium Ragni since this Resignation was declared void by the Bishops Lords and Commons in full Parliament in the 40th of Edward III. because done saâ—z lour Assent as it is in the Parliament Roll of that Year But when ever the whole great Council or Parliament was summoned to assemble then this lesser Council of the Tenants in Capite must needs meet also as being a principal part of it And then the expressions were more comprehensive as I have already noted and our ancient Historians do in my Opinion by their Expressions plainly signifie an Union of both these Councils to make up the Common-Council of the Kingdom as appears by the Letters which the Priory of Canterbury wrote to the Pope upon the Election of Ralph Bishop of Rochester in the 14th of Hen. 1. to the See of Cantebury as you will find them in Eadmerus Lib. 5. fol. 111. and which is there said to have been made adunato conventu totius Angliae that is in the united Assembly of all England viz. the Episcopi Abbates Principes Regni itgens Populi Multitudo So likewise Hovelen in his History fol. 273. Anu 1121 being the 18th of Hen. 1. relates the Kings Marriage with the Lady Adeliza Daughter to the Duke of Lovain to have been celebrated at Windsor adunato Concilio totius Regni i. e. in the united Council of the whole Kingdom M. I am not yet satisfied with your proofs and I doubt not but to shew you that this distinction of your Friends Mr. P. and Mr. A. his second between the Common Council of the Kingdom and the Council of the great Lords and Tenants in Capite will prove but a meer Chymra of those Gentlemen from whom you have borrowed it for there was indeed but one Common Council of the Kingdom in those times viz. that of the Bishops Earls Barons and other Tenants in Capite And therefore in answer to your first Authority from the Saxon Chronicle I shall shew you another of the same King's Reign which will shew the different expressions of this great Council by Hired and Mycel Getheat to have been the particular Fancy of that Monkish Writer and it is from Gervas Doâ—â—bornensis de Actis Pontisicum Cantuarens Ecclesiae where you may see in the Decem Scriptores this passage Anno. 4. Regis Wilhelmi I. Anno. Dom. 1070. Lanfrancus Cadomensis Ahlu electus fuit Archiâ—piscopus Cantuariensis a Senioribus ejusdem Ecclesiae cum Episcopit Principibus clero populo Angliae in Curia Regis in Assumptione Sanctae Mariae where you may see that this confirmation of the Arch-bishop was made in the great Council of the Kingdom which is here called collectively or altogether and not one part of it only Curia Regis As for the words which make up the constituent parts of this Council we have sufficiently debated them and therefore I need say nothing more concerning them But tho the Dr. has given us more Authorities to prove this yet I shall make use of but one more from Badmerus it is in the Reign of Henry I. thus in subsequenti Nativitate Dom. Christi Regnum Angliae ad Curiam Regis Lundoniae pro more convenit magna Solemnitate habita est c. This instance is full in all points here is the whole Kingdom that is the whole Baronage or University of England for Bracton tells us the whole Kingdom consisted of Earldoms and Baronies who met according to Custom at the Kings Court and hence
it is manifest that at those times the Common Council of the Kingdom was held and from this also as from the former instances that the Barones Principes Optimates Mayres Regni did at those great Feasts pro more according to the Custom frequent the Kings Court and were the only Persons that constituted that great Assembly F. But pray give me leave to interrupt you a little did not I tell you but now that the King did often convene the Common Council of the whole Kingdom to meet the Bishops great Lords and Tenants in Capite at one of these Feasts and so it might be an Assembly ex more in respect of them but extraordinary to all the rest of the Kingdom and this often happened at other times as well as at these feasts according as the Kings occasions required when all the others were Summoned on purpose M. I have already answered that Objection and granting it might be so it does not prove it was so But I desire you to tell me what you can say to this expression in the Authority I have now made use of from Eadmerus Regnumâ—ombre convenit which is spoken of the most general Council when the Kingdom of England then met at the Kings Court So that your small Criticism upon the Words adunato Conventu or Concilio as if they signified this Union or Conjunction of two Councils into one is but a meer Pancy of your Authors those words signifying no more than a gathering or meeting together of all the Persons that constituted that Assembly as appears by these words in Eadmerus Adlinatis without either Praecepto or Sanctione Regis ad Curiam eâ—us in pascha Terrae Principibus i. e. the chief Men of the Nation being at his Court at â—aster But as for your main instance of King Iohn's Resigning his Crown to the â—ope in a Common Council of the great Lords and Tenants in Capite but not of the Common Council of the Kingdom I confess it were very considerable if it were true for tho I grant that in all the Charters of this Kings resignation the words you mention viz. Communi concitio Baronum nostrorum â—re inserted yet it could not be a great Council since tho I grant that all the Tenants in Capite were at that time Summoned to appear in Arms against the King of France yet it being a Military Summons for the gathering together of an Army and not for the meeting o a great Council and the five proscribed Bishops being in France and the Barons that sided with them fled beyond Sea and not darâ—ng to appear so that this resignation having been Executed before so small â— number of Barons as appears by the Witnesses to it viz. but two Bishops the chief Justidiary seven Earls and three Barons without subjoyning aliu Episcopis Comitibus Baronibus or Communitate or â—ota Communitate it does not appear that there were any more present so that this could not be such a Council as was constituted by King Iohn's Charter that is it was not a Parliamentary Council or general Representative of the whole Nation and therefore the Parliament in the 40th of Edw. III might very well say the resignation was made without their Assent and so I think this great Argument of yours comes to nothing F. Pray do not Triumph before the Victory For I doubt not but to prove notwithstanding what you have said that this was a real Common Council of the Barons and Tenants in Capite in which King Iohn resigned his Crown tho not of the Kingdom Which I prove thus First it appears by all our Historians that King Iohn had just before Summoned all the Earls Barons Knights and Freemen of the Kingdom whoever they were and of whomsoever they held to appear in Arms which made so vast an Army that after all the ordinary Rabble were sent home Matt. Parls tells us that the Knights Esquires and Freemen that stayed behind made an Army of 60 Thousand Men who were Encamped at Barham Down not far from Dover where this resignation was Executed So that this being almost as great a Meeting as that at Runne Mead not long after the King might very well have Summoned at least a great Council of all his Tenants in Capite to countenance this resignation and that he did do so the Charter it self says expresly which had it been otherwise would have appeared a notorious Lye to the whole World Nor do your Objections to the contrary prove considerable First you say this was only a Military Summons and not to a Common Council yet such a one as was constituted by this Kings Charter which sure could not be at this time when that Charter was not yet made till the Year after before which you grant that the great Councils might have met without the 40 days Summons expressing the cause of their Meeting and if they could meet ex more as you grant this Council did at the great Feasts of the Year without any Summons at all sure they might as well meet now on such an exigency The King had 't is true Summoned them at first upon another occasion but say you there was so small a number of Barons at this Meeting that it could not be a Common Council of the Kingdom neither do I say it was but the contrary but how does it appear it was not Why say you Five of the Bishops were then fled into France and a great many of the Barons of their Party The latter is not true in Fact few or none of the Barons siding with these Bishops but as for the Bishops what if Five were absent Were there not enough left to have made a Common Council of the rest of the Tenants in Capite Well but there were but Two Bishops present and Seven Earls and Three Barons as apPears by their Names at the end of this Charter without any mention of more or of the whole Communities being there a special reason as if no more could be present at this Assembly than whose Names are to it by this Rule the great Charters of King Iohn and 9 th of Hen. 3. were not made in a great Council of the whole Kingdom for there are no Witnesses Names expressed at the end of them it is true at the beginning of these Charters it is said they were done by the Council of certain Bishops Earls and Barons which yet were but a very few more of all sorts then there are mentioned at the end of this Charter of King Iohn's Resignation So that this appearance of the Bishops Earls Barons and Tenants in Capite is meerly precarious for if more might very well have been there it is most certain they were notwithstanding the paucity of the Witnesses to this Charter since those were added only for form sake and were commonly those who were nearest the Throne when the Seal was put to it I confess your first Objection is
of the great Council and the common University of the whole Kingdom for it is obvious that when all the Lay Lords Earls and Barons to whom you may also add your Tenants in Capite if you please being met together were asked by the Bishops Abbots and Priors then present whether they would agree with them or not the Eaâ—ls and Barons answered for themselves that they would do nothing without the Common Vniversity which could not possibly be only the Lords Spiritual and Temporal and Tenants in Capite since it is plain they were now all here and referred themselves to another distinct order of Men different from themselves who were not there present as also from the Bishops Abbots and Priors who demanded there Consents to what they had agreed upon Now if the Temporal Lords and Tenants in Capite had concurred here had been the consent of the Common Vniversity of Lords and Tenants in Capite but besides the consent of all these there was notwistanding it seems required the Consent of another body of Men called here the Communis Vniversitas by which must be meant the Commons or no body since otherwise they might have all agreed together without any more ado M. I confess this Story out of Mat. Paris looks somewhat plausible at the first on your side but I doubt not if it be better considered it will do you little Service for what if by this Common Vniversity is to be understood the whole body of lesser Tenants in Capite who not â—itting with the Lords at that time they would do nothing without their Consents till it was proposes to them but that they did afterwards all agree pray read the rest of this Narration and it will make it clear enough that this Common Vniversity of Tenants in Capite did also agree with the Lords Bishops and Abbots the words immediately following in Mat. Paris are these Tunc de communi assensu electi fuerunt ex parte cleri Blectus Cantuariensis Wintoniensis Lincolniensis Wigoriensis Episcopi ex parte Laicorum Richardus Comes Frater Domini Regâ—â— Comes Bigod Comes Legr S. de Monteforti Comes Maresâ—ballus ex parte vero Baronum Richardus de Montfiâ—hes Iohannes de Baliol de Sancto Edmundo Rameseit Abbates ut quod isli duodecim providerâ—nt in communi recitaretur nec aliqua forma Domino Regi ostenderetur Authoritate duodecim nisi omnium communis assensus interveniret from which last passage it appears plain to me that in this Parliament the several Orders of men that were the constituent parts of it were only the Bishops Abbots Priors Earls and Barons and that all these put together were termed the Common Vniversity which is more comprehensive then University simply taken now if the Commons as at this day represented had been there we must have had some mention of them one way or other as well as of the Committees of the other Orders which made up the general Committee of Twelve so that it is plain beyond doubt that the Commons were not part of the Common Vniversity F. Then pray tell me who they were for the Historian tells that when all these Bishops Abbots Priors had now met together with the Earls and Barons yet these last â—ell them that without the Common University they could do nothing which had been nonsense if as your Doctor supposes the whole University or Community of the Kingdom had been all present M. I must confess this is a material Objection but what if to help him out I should tell you that by the Common University here mentioned is to be understood the body of the inferior Tenants in Capite under the degree of Barons and this Common University of Tenants in Capite might not have been present and sat with the Earls and Barons at that time when the Bishops and Abbots made this Proposal therefore the Lords might very well answer that till they had consulted the Common Universty or Body of Tenants in Capite they could do nothâ—ng and though this Body of Tenants in Capite did not then actually sit with the Earls and Barons yet doth it not follow that they made a distinct Estate by themselves different from that of the Lords or greater Tenants in Capite for then the Arch-bishops Bishops Abbots c. who are here expresly said to have consulted by themselves must have done so likewise therefore though our Author is not so particular as he might have been yet certainly this Common University were thereupon consulted and gave their Assents to the choice of this Committee of Twelve who were to draw up their answer to the King for the words are tunc ex communi assensu electi fuerunt which seem to refer to the Common University or Body of Tenants in Capite or else the Lords Excuse as well as the Election of these Persons by the Bishops Earls c. had been very insignificant F. This seems to me to be a precarious assertion and without any due proof for tho the words are Tunc ex Communi Assensu yet I very much doubt whether these words do refer to the Common Vniversity of the whole Kingdom or not for your self confess that Mat. Paris is short in this point and that it was not so seems most likely to me by this material circumstance that not one Person of the Twelve but was either a Bishop Earl or great Baron For that Richard de Monâ—sichet and Iohn de Baliot were so Sir William Dugdale hath proved in his Baronage of England Whereas if the University or Body of the Tenants in Capite had joyned in this Election it is not likely but they would have chosen some of their own Body to represent them in this Committee who were not Earls or Barons Since your self must confess that they then were a great Body of Men who were not Lords nor did at this time Sit or Act Joyntly with the Lords or greater Barons in this Assembly and likewise it farther seems highly probable that this Common Vniversity of Tenants in Capite take it in your sense did not give any Resolution in this matter since we do not find any Mony given in answer to the King's Request but only Complaints of and orders about Redressing of Grievances which was in those days often done in a great Council of the Bishops Lords and Tenants in Capite But I shall shew you now by some other Records which the Dr. himself hath made use of that there often was a distinct Assembly or Council of the Lords and Tenants in Capite different from that of the Commons or Commonalty of the whole Kingdom The first Record is to be found among the Patent Rolls of the 42. Hen. III. beginning thus Rex omnibus c. cum negotiis nostris arduis nos Râ—gnum nostrum contingentibus Proceres Fideles Regni nostri ad nos London in Quindena Paschae proximae praeterita faceremus convocari
cum de Negoâ—iis supra dictis maxime de prosecutione Negotii Siciliâ—e diligenter cum iisdem tractaremus ac ipsi nobis responderum quod si statum Regni nostri per Concilium Fidelium Nostrorum ratificandum duxerimus Dominus Papa Conditiones cirea factum Siciliae appositas melioraverit per quod Nigeâ—ium illud prosequi possâ—mus cum effectu ipsi diligentiam fideliter apponent erga Communitatem Regni nostri quod nobis Commune Auxilium ad hoc praestetur c. The rest I shall not trouble you with because it is not to our present purpose But you may here see that taking the Words Proceres and Fideles in your own sense the former for the Bishops and Lords c. and the latter for the Tenants in Capite who were called to consult about the business of Sicily which Kingdom the King had before too rashly accepted of from the Pope Yet tho they were all met they could do nothing but give him advice and could give him no Commune Auxilium i. e. common Aids or Subsidies without the consent of the Commonalty of the Kingdom Now what can this Community signifie but the Commons for your Lords and Tenants in Capite were all met already and if they alone made up the Common Vniversity or Body of the Kingdom as you suppose why could they not have immediately granted the King the Assistance he desired if they had a sufficient Power so to do without putting him off with a Promise that they would use their endeavour with the Community of the Kingdom as a distinct order or Body of Men That this Aid or Subsidy should be given him and upon this condition it is that at the end of this Record the King Promises them that before Christmas He would mend the State of the Kingdom per Consilium Proborum Fidelium Hominum nostrorum which can mean nothing less than a Parliament which the next Record in the same Roll recites was to meet at Oxford after the Feast of Penâ—icost which Record since it not only recites the King's Oath whereby he had bound himself to observe the Direction of a Committee of 24â— Fideles i. e. Faithful or Loyal Man 12 of which were to be chosen out of the Kings Council and the other 12. by the Procoreâ— or Magnates Regni which as I have already proved may take in the Commons as well as the Lords but whether by these wordâ— were meant the Lords or Commons The conclusion of this Record sufficiently confirms my Argument from the precedent Record that the Lords and Tenants in Capite could not then Tax the whole Kingdom at their Pleasure without the consent of the Commons or else to what purpose are these words in the conclusion of this last Record Promiserunâ— etiam nobis Comites Barones Memoraâ—i quod expleris Negotiis superius tactiâ— bonâ— fide laboraâ—unt ad hoc quod Auxilium nobis Communâ— praestâ—â—ur à Communitate Regni nostri in cujus rei c. Dat 2. die Maeii And it appears by the Date as also by the entry on the Roll that both these Records were perfected at once and concerning the same business and further to prove that the Parties appointed in the Record to be chosen ex partâ— Procerum were not chosen by the great Lords or Peers only may be seen from a Patent Roll of the same 42. Hen. III. whereby Henry de Wengham Dean of St. Martin le Grand and then Keeper of the Great Seal and Iohn Manseâ— Provost of Beverlay were two of the said Commissioners tho they were neither Barons nor Tenants in Capite as I know of hue only Eminent Lawyers and Men of great Abilities and so meer Commoners Yet Mat. Westminster calls these Men Proceres as you may see by this Passage speaking of this whole Committee Videntes ergo Proceres antedicti viginti quatuor ad Regis Regni regimen 〈◊〉 Electi c. I shall only now conclude with a French Record which the Dr. himself hath also given us at large and which refers to the said Committee of 24. above mentioned it begins thus Henry par la Grace de Dieu Roy d' Engleterre c. a touz ceus c. Sachiez ce pur le profit de nostre Reâ—ume é a la Requeste de nos â—auz Homes é Prodes Homes é du Commun de nostre Râ—aume Otreyames es vinc quatre Homes eusâ—ent pâ—â—r perqâ— tous ce quil ordencirent del Estat de nostre Reaume fust serm é Stable the rest being very long you may read at your leasure only I shall take notice of the date of this Letter to which the King also put to his Seal The conclusion being thus Coste chose feu feite a Lundre landemaigne prochein apros la Gaule bauâ—â—l'an de nostre corronement quarente secundo and tho the Dr. caâ— make nothing of the words Gaule baut this happened I suppose either from the bad Writing of the Record or from the Ignorance or Mistake of the Transcriber for it should be Gaeule d' Aut that is the Gula of August which is a great Holy Day in the Church of Rome upon the First of August called also St. Petri ad Vincula in the Memory of St. Peter's Chains curing of a Roman Virgin by her Kissing them I shall only observe from this Record that the Hauz or Prodes Homes mentioned in this Record being taken in the Drâ— own sense for High and Wise Men that is the Earls and Barons yet the words è du Commune that immediately follow them must needs signifie some Body of Men different from the former or else it had been a notorious piece of Nonsense since if the former words had taken in all the Lords and Tenants in Capite that is in your sense the whole Community of the Kingdom to what purpose are these words è du Commune that are immediately subjoyned since the hauz Prodes Homes would have served to express all the Lords and Tenants in Capite whether taken as Great or as Wise Men. M. I confess what you have now said would carry some weight with it were I not very well satisfied that you impose upon your self by taking as I told you at our last Meeting these words Communitas le Commune Communalti in a wrong sense for the Commons as they are now when indeed these words before the 49th of Hen. III. nay the 18th of Edw. I. as the Learned Dr. shews us in his 2d Edition against Mr. P. are always to be understood either of the whole Representative Body of the Kingdom in general consisting of the Bishops Abbots Earls and Barons together with all the Tenants in Capite called by Mat. Paris and other Historians Communitas Baronagii or else for the Community of the Tenants in Capite alone Stiled Communitas Regni in our ancient Records And this I think I can prove to
Citizen of London was de Assensu Praelatorum Comitum totius Communitatis Regni pardoned all Homicides The very like words are also used in the same Roll in the Act of Pardon granted to the City of London I shall trouble you but with one mâ—re in this Kings Reign but it is so remarkable I cannot omit it of the 34 th of this King and is to be found in the old Edition of Statutes Printed in French the Title begins thus Ceux sont les choses queux nostre Seigneur le Roy Prelats Seigneurs la Commune ount ordaines establéâ—s To conclude with the Reign of Richard the Second the like expression is found in the Parliament Roll of 5 th of Richard the Second where the Statutes begins thus Pur Commune prosit du Râ—yalmâ— d' Angleterre cient faiâ—es per nostre Seigneur le Roy Prelats Seigneurs la Commune de le Royalme esteantes en cest Parliament from the Titles to which two last Statutes I pray observe that the word le Commune is not only used for the Commons in the same sense as it was in the fâ—rmer Kings Reigns but also that these Statutes were made by the joint Assents of the King Lords and Commons So likewise in the same Roll are recited Concordiae sive Ordinationes factae de Communi Assâ—â—su Regis Procerum Magnatum Communitatis Regni Angliae which I give you to shew that the words Communitas le Commune always signifie the same thing in our Statuâ—es and Records viz. the Commons as now understood different from your great Lords and Tenants and if they are to be taken in this sense after the 18 th of Edward the First I would be glad if you could shew me any sufficient reason why they should not be so understood aâ— along before that time as well as in the 49 th of Henry the Third only M. Tho I grant that these words you mention are to be understood for the Commons as now taken in many Records and Acts of Parliament after the 18 th of Edward the First and therefore you need not to have taken the paâ—ns to have gone beyond that time yet notwithstanding I think I can prove to you by very good Authorities that the word Communitas which I grant is the same thing with le Commune in French tho put after the words Comites Barones does not signifie the Commons of England in general but the Community of the Tenant in Capite alone or at least the Community of all Tenants by Military Service and that as low as the Reign of Edward the Third but for proof of thiâ— I pray peruâ—e this Writ which the Doctor hath given us in his Answer to Mr. P. Rex Archiepiscopis Episcopis Abbatibus Priotibus Comitibus Baronibus Militibus omnibus aliâ—s de Comitatu Cantiae Salutem Sciatis quâ—d cum pâ—â—mo die Junii Anno Regni nostri Decimo octavo Praelati Comites Barones caeteri Magnâ—tes de Regno nostro concorditer pâ—o se pro tota Communitate ejusdem Regni in pleno Parliamento nostro nobis concesse unt Quadraginta solidos de singulis Feodis Militum in dicto Regno in Auxilium ad Primogenitam Filiam nostram Mariâ—andam c. Cujus quidem auxilii levationi faciendae pro Dictae Communitatis aisimento hucusque supersedimus gratioâ—è c. By this Record it is clear that such as pâ—id Scutage that is Forty Shiâ—â—ings for a Knights Fee were then the tota Regni Communitas and no others and of these the Tenants in Capite granted and paid it first for themselves and Tenants and then their Tenants in Military Service by vertue of the Kings Precept paid it to them again for so many Fees as they held of them so that this Tax being raised wholly upon Knights Fees must be granted only by those that held by Knights Service But further that the Communalte de Royaume the Community of the Kingdom as represented by the Tenants in Capite did still so continue as above mention'd till almost the middle of King Edward the Third's Reign is as clearly proved by this Record of that King Rex dilectis fidelibus â—uis Vicecomiti Wygorniae â—homae Bâ—ttâ—ler de Upton supeâ—â—abrinam Militi Thomae Cassy de Wych salutem â—â—â—atis quod cum in pleno Parliamento nostro apud Westmonasterium ad Diem Lunae proximo post Vestum Nativitatis Beatae Mariae Virginis proximo praeteritum tento Praelati Comites Barones Magnates de Regno nostro Angliae c. pâ—o se to a Communita e ejaâ—dem Regni nobis concesseâ—unt quadraginta solidos de singulâ—s â—eodiâ— Militum in Diâ—â—â— Regno Angliae c. so that the whole Community of England in this Record were Military Men such as held Knights Fees or parts of Knights Fees and such as paid Scutage and they were neither the ordinary Freemen or Free-holders nor the Multitude nor Rabâ—le F. I pray Sir give me leave to answer your Arguments from these Records as you â—ut them least I forget what you have said in the first place as to this Record of the 30th of Edw. I. which relates to a Tax given in the 18th Year of his Reign and recites an Aid of 40 s. upon every Knights Fee through the whole Kingdom to have been given by the Bâ—shops Earls Barons and other Magnates or great Men of the Kingdom in full Parliament for themselves and the whole Community thereof to Marry the King's Daughter and which Subsidy he had deferred to Levy till now and therefore because this was a Tax granted only upon Knights Fees that those only who payed this Scutage were then the Communitas or whole Body of the Kingdom which is no Argument at all since from this we may plainly collect the clean contrary for if none had been to pay to this Tax but those that held by Knights Service in Capite then the King would have had no need to have had it granted in Parliament since by the 14th Article of King Iohn's Charter he might have Taxed his Tenants in Capite for the Knighting of his Eldest Son and the Marriage of his Eldest Daughter without the Assent of the Common Council of the Kingdom and according to your Hypothesis and the Authorities you have brought to prove it these Tenants in Capite might also by the like reason have made their Tenants by Knights Service have Contributed to this Tax which yet you see they could not do without the consent of Parliament and therefore this Aid or Subsidy being granted in Parliament must needs extend to all the Lands in the whole Kingdom as well those that held by Knights Service as well as those that did not for it is not here said as in the Writ to the Sheriff of Sussex qui de nobis Tenent in Capite and then the words pro se â—ota
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
Indeed if the words had been Milites libere Tâ—nâ—ntes qui de Rege tenuerunt in Capite you had said somewhat but otherwise it is all meer supposition without any ground But pray go on to the last woâ—ds in this Charter omnes de Regno nostro what can they mean â—ut that all the Freemen of the Kingdom gave this Fifteenth by their Lawful Representative M. If you do not like our sense of these words Milites and Libere Terentes I cannot help it nor shall I dispute them longer with you but as for this last Clause in the Charter omnes de Regno it only means all these who were Tenants in Capite in general in the same sense as when our ancient Historians mention Regnum Sâ—cerdotium by Regnum is to be understood both the Temporal and Spiritual Barons great and small the Kings Justices or any other that exercited any share or Ministerial part of the Government as perhaps all those diâ— one way or other by coming to our great Councils or Parliaments c. all which is evident from the words of the Quadri partiâ—e History concerning Thomâ—s Becket thus Rex apud Clarendun Regnum convo aâ— universum Quò com venisâ— ut Prasules Proceres c. i. e. the whole Baronage called together by the Kings Writ or a full meeting of the Spiritual and Temporal Barons both great and small I pray also remember that passage you your self made use of but now out of Mat. Paris whereby you would prove that the Common Council of the whole Kingdom was distinct from that of the Tenants in Capite because that after the Curia held at Christmass the King immediately issued out his Writs commanding omnibus ad Regnum spectantibus to appear at London and yet you see there are no more mentioned to be Summoned than the Archbishops Bishops Abbots Priors Earls and Barons So that we may hence learn the true meaning of these words omnes de Regno at the end of this Charter for these omnes de Regno were the same with the omnes ad Regnum spectantes in Mat. Paris the Regnum or Government the Communitas Regni the totalis Regni universitas the insluita nobilium multitudo and also gives us the meaning of those words omnes alii de Regno in the close Roll of the 19 th Henry the Third to the Sheriff of Somersershie Scias quod Comites Barones omnes alii de toto Regno nostro c. Concesserunt c. Which are further explained by a Writ in the same Roll about the same business directed to the Sheriff of Sussex which you have likewise cited beginning thus Sciatis quod Arohiepiscopi Episcopi Abbates Priores Comites Barones omnes alii de Regno nostro Angliae qui de nobis tenent in Capire nobis concesserunt c. Here the omnes alii de Regno were the omnes qui de nobis tâ—nent in Capite which were then all the Regnum or Communitas Regni So likewise it may be farther proved from a Record of the 48 th of Henry the Third Rex omnibus c. cum venerabiles Patres G. E. Eborum Archiepiscopus c. alii Praelati Magnates Milites libere Tenentes omnes alii de Regno nobis nuper in Articulo necessitatiâ— servitium fecerunt sulisidium c. And I may also put you in mind of the Writ I cited but now directed Archiepiscopis Episcopis c. Comitibus Baronibus Militibus omnibus aliis de Comiâ—aru Kanciae c. for the Levving of forty Shillings upon every Knights hee in that Country Now this Writ could not be directed to all the Men in Kent but to all such as paid Scutage for not a fortieth part of them were Tenants in Capite or Military Service So that these omnes alii de Regno and Omnes alii Comitatus were the same one with the other and otherwise it could not be for by Omnes de Regno or Omnes alii de Regno the Inhabitants in general could not be understood for they never were Summoned no not the Hundredth part of them to meet in Great Councils for 't was impossible they should and perhaps not above a fourth part of the Kingdom paid to this Fifteenth if we consider how many Servants Villainâ— Bondmen and many such People there were than in the Nation that paid nothing F. You have taken a great deal of pains to perplex and darken words in themselves very clear and perspicuous for methinks it is a strange piece of confidence in your Doctor when the Charter says expresily That Omnes dâ— Regno all the Freemen of the Kingdom gave this 15th to restrain this Act only to the Tenants in Capite who were but a few in comparison to the whole Kingdom this is indeed to make words signifie any thing he fancies But to answer your Authorities which are founded all upon false suppositions without any proof As to your Authority from the Quadrilogus History of Thomas Bâ—ecket it is true that the Praesules and Prâ—ceres are there called Regnum the Kingdom but I have already proved at our last Meeting that this word Proceres was of so comprehensive signification that it took in all the Principal Men of the Kingdom as well those that were Lords as those that were not so that the chief Citizens and Magistrates of our Cities and great Towns are often stiled Proceres Magnates Civitatum in our ancient Historians and Records and certainly the great Free-holders or Knights of Shires did much more justly deserve that Title As for the other passage out of Mat. Paris where the Bishops Abbots Earls and Barons are called omnes ad Regnum spectantes this is but a general way of expression in this Author and proves nothing For either the word Barones takes in all the smaller Tenants in Capite or it does not if the latter then this Author does not exactly recite all the Orders of Men whom your self must acknowledge to have appeared there since the great Barons alone could never make this infinita Nobilium multitudo mentioned in this Author if the former then it is plain that he thereby comprehended more then those who were really Barons Since it is certain that the smaller Tenants in Capite were not so nor are so much as called so in King Iohn's Charter and then make the most of this word Barones it may in a large and common acceptation take in all the chief Free-holders or Lords of Mannors which as I have already proved were often called Barons in our ancient Historians and Laws of the first Norman Kings and Mr. Cambden tells us that under the word Baronagium omnes Regni ordines continarentur This I say supposing that by this infinita Nobilium multitudo is to be understood all the cheif Gentry or Free-holders of England called often Nobilitas Angliae as I have already made
will not affirm But least I tire you as well as my self in dwelling so long upon things so plain and obvious were not they by too much industry rendred obscure I come at last to the conclusion of your discourse which is no more then a repetition of what you had said at first that because all the Kingdom could not be Summoned to appear in Parliament and that Villains and Servants c. never paid to this Tax that therefore the words omnes de Regno are not to be understood literally a doughty discovery and therefore you have found an expedient to help this contradiction by your Tenants in Capite and Thy Knights Citizens and Burgesses for the Laity and by the Procuratores Cleri for the Inferiour Clergy whose Interpretation is most agreeable to truth I durst leave to any indifferent Judge for I must needs tell you once again I cannot see any manner of reason either from Authorities or from the Nature of the thing that your Tenants in Capite could be the omnes de Regno in a legal sense and as such did represent all the Freemen of Estates in the whole Kingdom therefore if you can prove this it may go far to convince me otherwise not M. Since you will not rest satisfied with those Authorities I have already produced to prove it pray let me discourse with you a little more particularly of the nature of Tenures by Knights Service I therefore suppose that the Dr. hath very well prove by several Records as also the two Writs of 19th Hen. III. to the Sheriffs of Somerset and Sussex that the King anciently by his Prerogative and his original Power and Right reserved upon Knights Fee did Tax the Military Tenants of his Tenants in Capite and their other ordinary Free Tenants and by his Writs caused them to pay both â—cutage Tax and Scutage Service and other reasonable Aids as often as necessity required F. I grant indeed the matter of fact to have been sometimes as you say since there is no averring against express Records but I say likewise that as for those Writs the Dr. has given us concerning the Kings Ordering the Sheriffs to distrain the Mesne Tenants of the Tenants in Capite for Scutage Service as to Marry their Daughters or for the finding of Men in any Warlike Expedition it was no more then those Mesne Tenants were bound to do by the Tenures of their Estates if they had failed to serve their Lords in Person or by sufficient Deputies and therefore the King might legally grant them Scutage upon such Tenants and perhaps might also change their Service in Person into a pecuniary Aid as appears by some of those Writs the Dr. has given us and this not by his Prerogative but by Law so likewise tho your Tenants in Capite could Tax themselves in their distinct Council or else in the Common Council of the whole Kingdom at what rate they pleased for the Knights Fees they held of the King and tho the King might sometimes undertake by this pretence to I evy a Scutage of two Marks on their Under-Tenants also yet does it not appear by either of those Records you have now cited that they gave for more then themselves alone the words in the Writs being only that they had given the King Esseâ—ax Auxilium of two Marks upon every Knights Fee as well Wards as others who held of him in Capite without any mention of their Mesne Tenants so that if the Sheriff was afterwards ordered to distrain these Mesne Tenants also for two Marks for each Knights Fee they held of their Lords this was straining a point of Prerogative and was expresly against Law for at this rate the King might by the lâ—ke Prerogative have Taxed all the Bishops Abbots great Lords and all other Tenants in Capite without their consents as well as their Mesne Tenants tho it was contrary to the express words of the Charters of King William I. and King Iohn which you your self cited at our former Meeting so that granting the matter of fact to have been practised sometimes as your Records make out this is no proof that this was a constant Law or settled Custom much less that the King had a right so to do M. I do not doubt but that I can prove to you that what this King then did in charging these mesne Tenants was according to his ancient Prerogative and what himself and his Predecessors had frequently done both before and after the Clause in King Iohn's Charter of Nullum Scutâ—gium vel Auxilium ponam in Regno meo â— was granted nay after it was granted Hen. 3. and Edw. 1. taxed their Demeasns through England tho not the whole Kingdom by the advice of their Privy Council until the Statute de Tallagio non concedendo was made in 34 Eâ—w 1. and both Rich. 1. and K. Iohn had taxed the whole Kingdom without common assent before the Grant of Magna Charta as also in the Reign of Rich. 1. as you may find in Hoveden who lived at that time the passage is long and therefore I shall only give you the beginning of it viz. that this King Anno 1198 Regno 9. accepit de unaquaque Carucata terrae totius Angliae V. solidos de Auxilio c. and then goes on to shew us the manner how it was raised and collected and 't is observable that he uses these words Auxilium and Tallagium for the same Tax so we find in Mat. Paris that King Iohn took a seventh part of all Moveables without common Assent and another time a Thirtieth the great Men and Clergy grumbling at it K. Hen. 3. also taxed all his Demeasn in the 33 d year of his Reign as appears by a Writ in the close Roll of this year whereby he also commands the Sheriff of Buâ—ks that he make Philip Basseâ— a Ratiâ—nabilâ— Tallagium de hominibus suis de eo tenentilus in Mannerio de Wycumb quod aliquando suit Dominicum Praedecâ—ssorum Râ—gis c. In the 39 th year this King as the Doctor shews us at large by a Recoâ—d in the keeping of the Remembrancer of the Exchequer he taxed all his Demeasn and among the rest the City of London at 3000 Marks which tho with some contest mentioned in this Record they were at last forced to pay because it was found upon Record that this King and his Father had several times â—alliated or Taxed the saiâ— City in like manner at the sums therein mentioned so that at last the Mayor and Citizens were fain to acknowledg themselves thâ—s Talliable by the King So in the 52. year of his Reign he Taxed all his Demeasn Lands beyond Trenâ— by his Escheators and this Right was acknowledged by all the Bishops Earls and Barons in the 33 d year of Edw. I. as appâ—aâ—s by their Petition to him in Parliament in these words Al Pâ—tiâ—ionem Arcâ—iepiscoporum Episporum
to the like Exactions of his Son Hâ—n the Third which are branded by all Writers as horrible and illegal oppressionâ— nay are owned to be so by this Kings frequent Confirmations of Magna Charta and Acknowledgments of his breach of them and promised to observe them better for the future But I am sorry to find your Doctor whom you follow both in his Answers to Mr. P. and Mr. A. as also in his compleat History still to cite the most violent and illegal Actions nay the very perjuries for â—lowers of the Crown and Royal Prerogatives But as for the Authorities you urge for this Kings Talliating his Demesnes without consent of Parliament you your self grant that this Talliage was not general upon the whole Kingdom and if so could only concern his own Tenants in ancient Demesn and none else who were always exempted from being taxed with the rest of the Nation because they were lyable to yield the King a reasonable Talliage ratione Tenurae whensoever he needed it yet this was counted rather a priviledge than otherwise since they were not only free from all other burthens and Parliamentary attendance but were also Taxed much less than the rest of the Nation in regard of their Tilling the Kings Lands but when this reasonable Prerogative grew to be abused and the Exactions levyed upon them became intollerable then they would no longer suffer it but got it taken away by the Statute de Tallagio non concedendo after which we find the Tenants in ancient Demesne frequently giving their shares of Aides and Subsidies in Parliament by Delegates of their own as in the Record of the 35 th of Edward the First which you have now cited till at last they came to be resolved into the common body of the Kingdom but aâ— for the City of London it was never taken for part of the Kings Demeans and so is not to be found in Dooms day Book but as appears by Record held of the King in Capite and therefore could be no otherwise Taxed then as the rest of the Tenants in Capite that is by the Common Council of the Kingdom And this made the Londoners deny to be otherwise Talliated as appears by this Record of Henry the Third which you have now cited But the truth is they had this Exaction first laid upon them in the exorbitant Reign of King Iohn and this was afterwards trumped again upon them in all the ill part of his Sons Government because his Father had done it before and I doubt not but if Ship-mony had passed unquestioned and been as often paid in the Reign of K. Charles the First but that it would have been urged as a Precedent in the Reign of Charles the Second But as for your last Authority of the 33 d. of Edward the First pray take notice that it is before the Statute de Tallagio non concedendo and extends only to such Estates in ancient Demesn as were held of the King by Noblemen or Gentlemen either by Gift or Purchase and which for all that still kept the ancient custom of being Talliated by the King as their under Tenants were by them to enable the Lords to pay the Kings Talliage and in this sense I understand these words in this Record unde sunt in Tenantia i. e. of which they are in Tenancy to the King Nor does the Record call them Dominica sua as it does the Kings Demesns that follow so that this could not be a Tax upon all under Tenants by Knights Service as you suppose sinâ—e their Estates were never called Antiqua Dominica and therefore I think after all you cannot shew me any legal Precedent that our Kings claimed a Right under colour of their Prerogative of Taxing the whole Nation de Alto â—â—sso at their pleasure M. I shall not now dispute it longer with you whether the Kings of England had not anciently a power of Taxing the Lands held of them without the consent of their Great Council but thus much I think I may safely aver that when this Great Charter was made the Tenants in Capite as the Common Council of the Kingdom gave Taxes and made Laws not only for themselves but their Mesne Tenants and the whole Nation also Nor was this at all unreasonable that those who thus held Estates by Mesne Tenure under the Tenants in Capite should be bound by the Acts of those of whom they held them since we see in Scotland that at this day none sit there either as Commissioners of Shires or Burgesses for the Royal Buroughs but such as hold in Capite of the King for anciently before the Law for excusing the smaller Barons and free Tenants in Capite and sending Commissioners of Shires in their stead was introduced by a Statuâ—e made in the Seventh Parliament of K. Iam. 1. A. Dom. 1420 it consisted all of Tenants in Capite viz. of the Bishops Abbots Priors Earls Barons Libere Tenentibus qui de Râ—ge tâ—nent in Capite as appears by the very words in the Latine Titles to divers of those Statutes as you may find them in Slenes Collection of Scotch Laws Now if this Law did anciently and does still prevail in Scotland that the Tenants in Capite should be the sole Representatives of that whole Kingdom I cannot see any Reason why it might not have been so anciently in Englâ—nd also especially since I can give you so good Reasons to back this opinion M. I will answer your Argument from Scotland by and by but in the mean time give me leave to tell you why I think it could never have been the custom in England and that for two Reasons first because it was against Reason and 2 ly because it was against the known Law of the Kingdom that it was against Reason is apparent since what reason was there that if a Man in those times purchased an Estate for a valuable consideration of a Lord or any other Tenant in Capite as certainly thousands did to be held either by Knights Service or in Socage that such a Tenant should lye at the Mercy of his Lord to dispose of his Estate in Taxes and make Laws for him at his pleasure however exorbitant those Taxes were or inconvenient those Laws might prove the Lord being no Representative of his own choice or appointment In the next place that this was contrary to the received Law and Custom of the Kingdom in those times I can prove by two very sufficient Authorities the one of the Earl of Chester the other of the Bishop of Durham Now it is certain that both this Earl and Bishop helâ— their County Palatines in Capite immediately of the King nor had those Counties any Representatives in Parliament till long after that they had Knights of Shires and Burgesses granted them by particular Statutes made for that purpose now according to your Hypothesis all the Freeholders and Inhabitants of those County-Palatines should have been bound by all Acts
him and Tax him as he pleased then by the same Rule the King as Supream Lord over all his Tenants in Capite should have had the like Power over them of making what Laws for them and imposing what Taxes he pleased upon them without their consents and so there would have been no need of Common Councils or Parliaments at all since upon your Hypothesis the Tenants in Capite were the only Persons that had any right to appear there But if neither the Wardship Marriage nor Relief of the Heir could give the King such a Power over his Tenants in Capite much less could they attain the like right over all their Mesne Tenants by Knights Service for that would have given them a greater Power over their Tenants then the King himself had over them therefore if those great Tyes of Wardship Marriage and Relief of the Heir could neither give the King nor yet any Tenant in Capite power over the Estate or Liberty of his Tenants by Knights Service much less over their Tenants by Socage Tenure who were not under this subjection and farther if a right of Forfeiture alone in some Cases could have given the Lords a Power of making Laws and granting Taxes for his Tenants in Socage then they should have kept that right by this Rule since all Lords had a right of Forfeiture even upon their Tenants in Socage in some Cases before the Statute of taking away Knights Service and the Court of Wards and Liveries in the second year of King Charles the Second as I could prove were it worth while As to Scotland I shall not deny the matter of fact to be as you say that it hath at this day no other Representatives in their Parliament but the Tenants in Capite yet whether it was so or not anciently I very much doubt since I find the very same words and Phrases made use of in the Titles of their old Statutes as also in their Records to express the Constituent parts of the great Council of that Kingdom as were used in England to express those of England at the same time For proof of which pray see the old Charters of King Malcolme III. and David I. as you may find them at the end of the 2d Vol. in Mr. Dugdales Monâ—st Angliâ— and you will see the former to have bin made by the Assent of the Comites Barones Regni Clero adquie cent que Populo c. and as I shall also shew you from Sir Iohn Skenes Collection of Scotish Laws to begin with the most ancient there Extant viz. an Assize or Statute made in the time of King William Sir named the Lyon who began his Reign Anno. Dom. 1105. in the Fifth of our Hen. I. to the observance whereof it is there expressed that the Epiâ—copi Abbates Comites Barones Thani tota Communitas Regni tenere firmiter juraverunt so likewise King Alexander II. who began to Reign Anno. 1214. which was the Sixteenth year of our King Iohn and he made his Laws de confilio assensu venerabilium Patrum Episcoporum Abbâ—tum Baronum ac proborum hominum suorum Scotiae and who these were may also farther appear by the begining of certain Statutes made by the said King Alexander in the same Year which begin thus Statuit Rex per consilium assensum totius communitatis suae c. I shall next produce the Title of a Parliament holden the 13th of Rob. I. who began his Reign Anno. Dom. 1306. the 3d. of our Edward I. In Dei nomine Amen Roberâ—us Dei Gratia Rex Scotorum Anno Regni suo Decimo tertio die Dominica proxima c. habito solenni tractatiâ— cum Episcopis Abbatibus Prioribus Comitibus Baronibus aliis Magnatibus de Communitate totius Regni ibidem congregatis and which Title concludes thus de Communi consilio exprâ—sso conâ—ensu omnium Prelatorum libere Tenentium predictorum ac totius Communitatis predicte ordinavit condidit c. Statuta infra Scripta c. So likewise in an ancient Manuscript called Scoto-Chronicon formerly in the Possession of the Right Learned and Honourable Arthur Earle of Anglesey and now in the Herald Office you will find the Entail of the Crown of Scotland to have been made by this King Robert Anno. Dom. 1315. in a general Council or Assembly of the whole Kingdom of Scotland as well Clergy as Laity which as this Author tells us who lived within Sixty Years after was held Dominica proxima ante festum Apostolorum Congregati apud Aere in Ecclesia Parochiali ejusdem Laici Episcopi Abbates Priores Archidiaconi nec non Diaceni caeteri Ecclesiarum Praelati Comites Barones Milites caeteri de Communitate Regni Scotiae tam Cleri quam Laici c. from which it is apparent There was a great Council of the whole Kingdom as in England more comprehensive then that of Tenants in Capite alone And that our English Records also agree with these Scotch Statutes you may see by 2 Records which Mr. Pryn has given us in his History of Papal Vsurpations out of the Rolls of the 17th of Edw. I. it is a Letter to Eric King of Norway concerning the Marriage of his Son Edward with his Grand-daughter then Heiress of Scotland and Norway reciting that the Custodes Scil. Regni Scotlae Magnates Praelati ac tota Communitas predicti Regni Scotiae unanimi expresso consensu had agreed to the said Marriage So likewise in another Letter of this King Edwards about the same Marriage he declares that he had by his Procurators therein named treated and agreed with the Custodibus Episcopis Abbatibus Comitibus Baronibus tota Communitate ejusdem Regni and it presently follows ac praedicti nobiles tota Communitas Regni Scotiae praedicti Now whom can this word Communitas signifie put here distinct from the Earls Barons and Nobles but the Commons of that Kingdom So likewise in the 14th year of King Robert I. there was a Letter sent from the Parliament of Scotland to the Pope complaining against the violence of the King of England which is to be seen in Manuscript and is also Printed by Dr. Burnet in his History of the Reformation and by which it plainly appears that the Comites Barones Libere Tenentes tota Communitas Scotiae agreed to this Letter And that the Cities and Burrough Towns were at that time part of this Communitas appears by the League made betwen this King Robert and the King of France in the 28th year of our Edw. I. which is to be seen in a Roll of this year still Extant in the Tower which League was ratified and confirmed in their Parliament by King Iohn de Bayliol ac Praelatos nobiles Vniversitates Communitates civitatum villarum praedicti Regni Scotiae and I suppose you will not deny that in Scotland the Cities
and Burroughs from times beyond all Memory sent their Proxyes and Representatives to the Parliament in Scotland and that each Citizen and Burgess so sent had as good a Vote in their Parliament as the greatest Bishop or Earl of them all M. I desire no better proofs then what your self have now brought to make out that the Tenants in Capite are not only at this day but have been from the very beginning of Parliaments in that Nation For I shall appeal to those very Statutes and Records you have now cited which compared with divers subsequent Statutes of that Kingdom will make the matter plain enough that the Communitas and these probi homines mentioned in these Laws you have cited were the Community of the Tenants in Capite only In the first place therefore let me observe from that very Law of King Alexanders the Title of which you have but now quoted that these words per essenssum Communitatis cannot here signifie the Commons since they alone could neither advise nor give their consent to make Laws and therefore they must needs refer to the whole Community or Assembly of Estates consisting of Tenants in Capite only as I shall prove by a Parliament of King Rob. III. who began to Reign Anno. Dom 1400. in the 10th year of our Richard II the Title is thus Parliamentum Domini nostri Roberti III. Scotoâ—um Regis c. vocatis summonitis more solito Episcopis Prioribus Duâ—ibus Commitibus Baronibus Liberis Teâ—entibus Burgensibus qui de Domino Rege tenent in Capite and this is also confirmed from the Title to a Parliament held at Perth Anno. Dom. 1427. being the 23d of King Iames I. Summâ—nitis voâ—atis mâ—re solito Episcopis Abbatibus Prioribus Comitibus Baronibus Liberi Tâ—nentibus qui de nobis tenent in Capite de quolibet Burgo certis Buâ—genfibus so that I think nothing can be plainer from these ancient Statutes then that the Scottish Parliaments did anciently consist of no other Members then the Bishops Abbots and Priors Dukes and Earls Barons Free-holders and Burgesses which held of the King in Capite Having thus shewn the ancient Costitution of the Scotish Parliaments for your satisfaction I shall farther shew when and how it was altered In the Seventh Parliament of King Iames the First held at Perth A. Dom. 1420 there was a Law made which I shall contract That the small Barons and Freeholders need not to come to Parliaments and that for the future out of each Schirefdome there should be sent two or more wise men after the largeness of the Schirefdome the which shall be called Commissaries of the Shire and that these should have full power finally to hear and determine all causes to be proposed in the Great Council or Parliament and that the said Commissaries should have Costage of them of each Shire that ought to appear in Parliament or Council I have only given you an Abstract of this Statute because it is pretty long and pen'd in old Scotish English but you may consult it at your leisure And this is farther confirm'd by a subsequent Act of Parliament of King Iames the Sixth holden at Edinburgh Iuly the 29 th 1587 wherein after a repetition of the former Act of King Iames the First and a Confirmation of the same it follows thus And that all Freeholders of the King under the degree of Prelates and Lords of Parliament be warned by Proclamation to be present at the choosing of the said Commissioners and none to have voit in their Election but sik as hes Fourtie Shillings Land in free tenandrie halden of the King and hes their actual dwelling and residence within the same Schire c. I need give you no more of this Act but I think it is most clear from this as well as the former Act of Parliament that the Commons in Scotland were only the Kings Tenants in Capite and are so at this day since none but they can either choose or be chosen Commissioners for the Shires but as to the Buroughs who do each of them send but one Commissioner or Burgess except the City of Edinburgh which sends two all which are chosen by the Common Council of the Towns Now there are in Scotland three sorts of these Burghs that is to say Royal Burghs Burghs of Regality and Burghs of Barony but only the Royal Burroughs the Burgi Dominici Regis or qui de Rege Tenent in Capite send Commissioners to Parliament and are in number Sixty To conclude that I may apply what hath been said concerning the Constituent parts of the Scotish Parliament to ours anciently it seems to me that from the great affinity there was between ours and theirs 't is certain that our and their Communitas Regni was the same that is they were the small Barons and Tenants in Capite F. I cannot deny but that the Parliament of Scotland hath for above these two hundred years consisted of the Bishops Abbots and Temporal Lords together with the lesser Tenants in Capite or their Representatives the Commissioners for Shires and Burgesses of Cities and Towns till the Reformation that the Bishops and Abbots were quite taken away tho the former were restored to their places in Parliament by a Statute made in the latter end of King Iames the First yet I cannot allow that from the beginning of that Government the Scotch Parliaments have consisted of no other Members than those since the word Communitas coming as it does in these old Statutes and Records I have now cited immediately after the Praelati Comites Barones Milites c. must signifie a distinct order of men from the Tenants in Capite called in the Statute of King Iames the First the small Barons and since the Citizens and Burgesses though none of those Barons were also comprehended under this Communitas and whom you grant to make the third Estate why this word might not comprehend all the other great Freeholders I can see no reason to the contrary And therefore I suppose that in the Reigns of K. David 2 d. or Robert the 2 d. or else the beginning of Robert the 3 d. there was a great alteration in the constituent parts or Members of the Scottish Parliament and about that time the chief Freeholders or Lords of Mannors who held of Bishops Abbots and other Temporal Lords as well as of the Tenants in Capite or else of the King by petty Serjeantry or Socage Tenure as also many of the small Towns or Baronies might either forbear coming at all or else desire to be excused because of the great trouble and charge of attendance as you see the smaller Tenants in Capite afterwards did when Commissioners for Shires were appointed in their steads and so might by degrees leave off coming or be excluded by some Law not now extant and thus the Tenants in Capite might become the sole Representatives of the
whole Nation in Parliament and I am of this opinion because in many of the old Statutes before the time of Robert the 2 d. we find the Communitas totius Regni coming immediately after the Earls and Barons as in our own ancient Statutes and Records but after those Reigns we find no more mention of this Communitas but only of the Dukes Earls Barons Liberi Tenentibus Burgensibus qui de Rege tenent in Capite as in the Titles to those Statutes of K. Robert the 3 d and Iames the 5 th you have now cited And yet that Liber Tenens was not anciently taken for a Tenant in Capite only pray see the 14 th Chap. of the Laws of K. Alexander the 2 d. made Anno Dom. 1214. with your Doctors comment upon them Statutum est quod nec Episcopi nec Abbates nec Comites nec aliqui liberi Tenentes tenebunt curias suas nisi Vicecomes Regis vel servientes Vicecomitis ibidem fuerant upon which words the Doctor in his answer to Mr. P. hath this remark viz. this again shews us that the Freeholders were Lords of Mannors at least So that unless you will suppose that none but Tenants in Capite were Lords of Mannors or held Courts as certainly very many of the Mesne Tenants did this word Liber Tenens must extend to any other great Freeholder or Lord of a Mannor of whatsoever Lord he held it and as such might anciently have had a Vote in that Parliament so that if I have as I think sufficiently proved that the word Communitas coming after the Earls and Barons in our ancient Statutes and Records did certainly signifie another order of men distinct from the Tenants in Capite I I have the same reason to believe it was so in Scotland too not only because these general words Communitas totius Regni must needs be more comprehensive than to express the Tenants in Capite only who could never Represent all the great Freeholders in Scotland any more than they did in England but also because it is acknowledged by the Scotch Lawyers that the Fundamental Laws and Constitutions are the same in both Kingdomâ— for Sir Iohn Skene in his Epistle to K. Iames before his Scottish Laws says thus Intelligo tuas tuorumque Majorum leges cum legibus Regni tui Angliae magna ex parte consentiunt which is also acknowledged by the King himself in the Speech he made in Parliament concerning the Union of both Kingdoms To conclude I cannot but admire your Doctors strange partiality who does allow the Commons of Scotland to have even been a third Estate when he expressly grants that the Commons of Scotland were and are at this day the Kings Tenents in Capite and that the Kings Royal Burroughs were such as ever did and do at this day in Scotland only send Burgesses to Parliament Now why the Cities and Burroughs in England should not have always had the like Priviledge as well as in Scotland I wish you could give me any sufficient reason M. Since you own that the Tenants Capite or else Commissioners in their stead have been the sole Representatives for the whole Kingdom of Scotland for above 200 years I doubt not but they were so long before that time since you confess you cannot shew any Law by which this ancient Custom came to be changed though I grant that the Statutes before K. David and Robert the 2 d are said to be made by the Communitas totius Regni yet you must not suppose that Constitution of the Kingdom altered when the Clerks altered their phrases in penning their Statutes and Records so that this Communitas was the Community of the Tenants in Capite only and not of the Freeholders or of the Citizens and Burgesses of the whole Kingdom since as for the former you cannot say that all the People in Scotland had ever a right to chuse the Commissioners for the Shires for then 't is most likely they would have kept to this day whereas we see that none but Tenants in Coplie have Votes at such Elections And as for Cities and Burroughs I cannot find nor do I believe you can shew me any instance of a City or Burrough-Town in Scotland that ever sent Deputies to Parliament but what held in Capite of the King For though there are at I said already besides the Royal Burghs two other sorts viz. Burroughs of Regality and Burroughs of Barony who hold of the King but not in Capite or else of some Bishop or Temporal Lord and though divers of these are considerable for Trade and Riches yet none of them send any Burgesses to Parliament so that though I confess there are three Estates in the Scotch Parliament called in the Statutes of K. David and Robert the 2 d the Treâ— Communitates Regni yet did these always consist of the Tenants in Capite only who therefore sit together and make but one Assembly Now that we may apply what hath been said to England I desire you to take notice that the Doctor and we that are of his opinion do not positively affirm that that the Commons of England were not at all represented before 49 Hen. 4. but that they were not represented in Parliament by Knights Citizens and Burgesses of their own choice but by the greater and lesser Tenants in Capite the greatest part of which I grant were not Lords and admit that I should grant you that some Cities and Burroughs sent Members to Parliament before the 49 th of Henry the Third yet were they only such as held in Capite and no other as the Doctor has very well observ'd in his Answer to Mr. P's argument from the Petition of the Town of St. Albans so that upon the whole matter there will be no more gain'd by you in this Controversie than that perhaps some Citizens and Burgesses appear'd in Parliament and constituted a third sort of men which you may call the Commons if you please though I cannot find they were so called till after the time of Edward the First but supposing this to be so it is very far from your Republican levelling opinion who do suppose that all the Freeholders of England had an ancient indisputable right of appearing in Parliament by reason of their propriety in Lands or other Estates whereas by our Hypothesis we suppose the great Council or Parliament to have anciently been the Kings Court-Baron consisting of his immediate Tenants call'd thither by him their Supreme Lord to advertise him of the Grievances of the Nation and to propose what new Laws were necessary for the publick good of the Commonweal and together with him to raise such publick Taxes both upon themselves and their Tenants as the necessities of the State requir'd yet notwithstanding there is a vast difference between your notion and mine concerning the Rights which such Tenants in Capite might claim of coming to Parliament since before King Iohn's Charter whereby
I grant all the lesser Barons or Tenants in Capite were to be Summonld by the Sheriff to come to the Common Council of the Kingdom the King might have only call'd some of the greatest and wisest of them and such as he thought most fit to advise him in making Laws and imposing Taxes upon the Nation And the like Prerogative his Son Henry the Third resumed during the greater part of his Reign as I shall shew you from divers old Statutes by and by And that our Kings did often take upon them to call whom they pleased and omit whom they pleased of these Tenants in Capite may appear by those who were called Pares Baronum or alios Magnates who are put after the Barons and of these there are many instances of their being called to Parliament and again omitted in several Kings Reigns after the Commons were a third Estate as represented as at this day F. I must beg your pardon if I cannot come over to your opinion notwithstanding what you now have said since I do not find your reason to come up to what you intend therein for you only suppose but without any proof that the words Populus and Communitas must signifie only Tenants in Capite in the ancient Scotish Charters and Statutes All the Argument you bring to the contrary is that I cannot shew you any Law by which it was altered to what it is now and therefore that the Constitution has been always the same as at this day Now pray consider whether this will not press altogether as hard upon you in relation to England for you cannot shew me any Law whereby the Tenants in Capite were excluded here and Knights of Shires introduced in their fleads and therefore by the same Rule let the Scottish Parliaments have been of what they will yet ours have been still the same they are now But if you say that this contrary usage hath been introduced either by the Kings Prerogative or by the silent consent of the People or by some Law that is now lost are not all the same Arguments to be made use of in the case of the Scotish Parliaments which I may upon as good Grounds suppose to have deviated from their original Constitution as you do that our English Parliaments have done it So that if those Arguments are of any weight they will serve for England as well as Scotland but if they are not it is in vain to make use of them at all The like I may say as to Burroughs in Scotland since it is as easie to suppose that divers Burroughs in Scotland might voluntarily desist from sending their Deputies to Parliament that did not hold of the King in Capite as it is that divers Burroughs in England did Petition to be exempted from sending Burgesses to Parliament by reason of their inability to pay the Expences of their Burgesses as I could shew you by divers Precedents some of which are in Print had I now time As for the rest of your Discourse I cannot imagin to what it tends for if the Tenants in Capite had any place in or right to come to Parliament how came they to have it but by reason of the great Freehold Estates they held of the King and if so I can see no reason why those that had as good or better Freehold Estates than they should be all excluded Or why a small Tenant in Capite of but one Knights Fee held of the King in Capite should give him a right to a place in Parliament and get that a Mesne Tenant or Vavasour as he was then called who held ten Knights Fees of some Bishop or Abbot who perhaps did not hold in Capite at all should have no right of appearing there nor of choosing any Representative for him since notwithstanding all you have now said the Doctor either contradicts himself or you when he tells us expressly in his Answer to Mr. P. That the Tenants in Capite who were no Barons represented only themselves and not the Commons but how this will agree with what he says in his Introduction that the Body of the Commons had no share in making Laws c. before 49 th of Henry the Third unless they were represented by thd Tenants in Capite and if so must then certainly represent those that he here calls the Body of the Commons of England Collectively taken But as for your notion of the Parliament's being the King's Court Baron tho you have borrowed it of a Learned Scotch Lawyer Sir George Meâ—â—ensy yet let me tell you it was never true for it is well known that the Great or Common Councils both in England and Scotland are much more ancient than the Tennres of Lands by Knights Service or then the very Institution of Mannors in this Kingdom which the Doctor tells us are of no higher an original than the Norman Conquest But admit I should allow your notion of the Parliaments being anciently the Kings Court Baron then certainly all the Tenants in Capite had a right to appear there and to be not only Suitoâ—s but Judges of all differences arising among the Tenants in the Lords Court where neither the Lord himself nor his Steward were Judges and that of right and not by savour whereas you suppose such a Court-Baron as was never heard of where the Lord could admit or exclude whom of his Tenants he pleased to which if they had a right ratione Tenurae certainly he could never do So that instead of a Court-Baron and a Common Council according to King Iohn's Charter whereby all the Tenants in Capite were to be Summoned to this Council or pretended Court Baron you suppose the King still retained a Prerogative of calling or omitting whom he pleased which instead of confirming the validity of the Charter and that it was to be a Rule how such Councils should be called for the future you make to signifie just nothing and that no Common Council was ever called according to that Model But pray shew me a Court-Baron wherein the Tenants ever took upon themselves a Power of giving Taxes out of their Estates that did not hold of the mannour though they were resident within it But indeed you are out in the whole matter for the Doctor himself grants in his answer to Mr. P. when he gives us King Iohn's Letters of Summons to a Council directed to the Barons and Knights and as he translates Eidelibus Feudatories or Vassals of all England wherein he lets them know that he had sent his Letters to every one of them if it might have been done Now what reason had he to write thus if these Gentlemen had no right to be consulted or that the King might have called or left out whom of them he pleased But the Barons and Tenants in Capite were in another mind when in the 37th of King Hen. III. as Mar. Paris tells us they refused to Act or Proceed upon any thing
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
French Peasants at this day and so were not Reckoned among the Freemen all Freedom consisting then in so much Freehold Lands held in a Man 's own right or being Freemen of some City or Burrough Town and this gives us a reason why Copy-holders and Tenants for years have no Vote in Parliament at this day since it is certain and all our Law Books allow it that at the first all Copy-hold Estates were held by Villenage and the owners of them at first the Villani or Tillers of the Demefnes of the Lord of that Town there being at first no Free-hold less then that of a whole Township since a Mannour and therefore all Copy-holders and Tenants for years or at Will though Freemen are not admitted to have Votes at this day because as I said before Freedom anciently consisted in the Inheritance or Free-hold Estate of Land or in Riches in Trade or Traffick Leases for Life and Years being not known or at least not commonly in Use in those days and hence it is that when Estates of Free-hold came to be divided into small Parcels all Free-holders till the Statutes of Henry IV. and VI. which we have before cited were as much capable of giving their Votes at the Election of Knights of Shires as the best and greatest Tenant in Capite in England till it was reduced by those Statutes to 40 s. Freehold per Annum these Freeholders and Burgesses of Towns being anciently looked upon in the Eye of the Law as the only Freemen and it was these Freeholders alone who owed Suit and Service to the County Court and were amerced if they did not appear This being premised and sufficiently understood will give us a very good account why Copy-holder and Lease-holders for years do not give any Votes at Elections of Knights of Shires and yet the Parliament may still continue the Representative of all the Freemen of the Nation as the People of Rome and the Territories about it were of all the Romans though there were a great many Liberti and in Inqui lini who sure were Freemen and not Slaves and yet had no Votes in theirs Comitiis Centuriatis or general Assemblies of all the Roman Citizens But that the Liberi homines Libere Tenentes de Regno must take in more than your Tenants in Capite the Doctor himself is at last forced to confess in his Glossary notwithstanding his maintaining the contrary in the body of his Book viz. that the Liberi Homines Libere Tenentes mentioned in Iohn's Magna Charta were not only the Tenants in Capite but their Retinue and Tenants in Military Service also and whom he there supposes to have been then the only men of Honour Faith and Reputation in the Kingdom and if so might certainly have been chosen Knights of Shires as well as any of the Tenants in Capite though this is but Argumentum ad Hominem for the truth is that the Mesne Tenants by Military Service were not the only men of Faith and Honour in those times since it is certain the Kings Tenants in Peâ—yt Serjeantry and of some Honour or Castle or else his Tenants in Socage besides those who held of other Mesne Lords and the Tenants of those Abbots and Priors who did not hold in Capite and yet were very numerous were men of as much Faith and Honour as those that did since many of them possest as good if not better Estates than the Tenants in Capite themselves so that you are certainly mistaken in matter of Fact when you say the whole force and strength of the Nation lay in their hands for if you mean Legal force I have already proved that the Tenants in Capite had no Legal right to give away the Estates of their Mesne Tenants or to make Laws for them without their consents who were altogether as free as themselves Servitiis suis debitis solum-modo exceptis as Bracton tells us much less for so great a Body of Men as I now mentioned who never held of them at all and consequently could not upon your own Hypothesis be ever represented by them but if you mean a Physical strength or force though this can give no Natural much less Legal right for one Man to Lord it over another yet even this was much farther from truth since the Mesne Tenants of all sorts as well by Military Service as in Socage together with those above mentioned who never held of the Tenants in Capite at all made six times a greater Body of Men both for numbers as well as Estates then all the Tenants in Capite taken together But to conclude neither is your remark upon my Authorities from Gheller and Durham at all to the purpose for I have sufficiently proved that those County Palatines were not at first concluded within the general Laws and Taxes of the Kingdom since they had their particular Councils for both within themselves as the Supplication of the Estates of the County Palatine of Chester sufficiently declares and certainly Durham had the like Priviledges since I never heard that the Men in that County were more Slaves to their Bishop then the Cheshire Men to their Earl and tho I grant that about the confused Times of King Hen. VI. there was a great breach made on the ancient Liberties of these two Counties Palatines and if the King and Parliament made Laws for and Levyed Taxes upon them though they had no Representatives therein this proceeded partly from their being over-powered by the rest of the Nation and partly by the ease they found in being excused from the Expences of Knights of Shires and Burgesses which all the rest of the Kingdom was at that time liable to and which came to a great deal of Money Four shillings per diem being in those days more then Forty Shillings now and yet you see at last they were aware of their Errour and at their request got the Priviledge of having Representatives in Parliament of their own choosing as well as the rest of the Kingdom and if this had not been a certain right of English Subjects how came the Welsh Counties which were anciently no part of the Kingdom of England to have been admitted to choose one Knight for each County and Burgesses for each Burrough Town as well in North Wales as South Wales though both these were Conquered Countries at the first and incorporated to England by particular Statutes and therefore we have no reason to deny the Truth of Bracton's and Fortescue's assertion that no Laws are made nor Taxes imposed in England sine consensu communi â—uius Regni or as the latter truly adds in Parliamento and certainly this word common Assent must take in all their Assents who had Estates either in Land or other Riches at that time when this Law was Established But leaving this dispute about Scotland and the County Palatines pray make an end for it grows late and give me the rest of your Reasons
why the Commons could not be represented in Parliament before the 49th of Hen. III. and 18th of Edw. I. M. I will proceed to do it and for this end shall reduce my Arguments to these three Heads the first is some Writs found out and produced by the Doctor whereby he proves that the Commons were not Summoned during the Reign of Hen. III. till the 49th secondly the general silence of all Statutes in Hâ—n III. Reign wherein is not one word mentioned of the Commons but rather to the contrary thirdly the critical Time viz. in the 49th of Hen. III. when the Commons were first called during Monsfords Rebellion fourthly their discontinuance from that time till the 18th of Edw. I. there being no mention made of them in all the rest of the Reign of Hen. III. nor yet of Ed. I. till the 18th in which the Doctor shews you a Writ not taken notice of before by which the Commons were Summoned a new to Parliament Lastly from the uncertainty of the manner of the Writs of Summons whether for one Knight or two Knights and sometimes no Citizens and Burgesses at all which sufficiently prove the Novelty of the Institution as also of some Parliamentary Forms relating to the Commons which shew that neither their number nor manner of Election was settled long after the Reign of Edw. I. To begin therefore with the first Head I know the Gentlemen of your opinion make a great Noise about the loss or rather defect of the Writs of Summons and Parliament Rolls of all the Kings till the 23d or 25th of Edw. I. So that we cannot be so well assured what was done in Parliaments of those times as we may be afterwards Yet there are still some Writs of Summons Extant upon the Close Rolls before and in those times by which the Bishops Earls and Barons were Summoned to Parliaments or great Councils And we have all the Close Rolls of King Iohn and Henry III. on the Dorseâ— of which anciently most of the Writs of Summons to the Commons in other King's Reigns are entred few on the Patent Rolls which we have likewise 'T is therefore very strange if the Commons were then represented by Knights Citizens and Burgesses and Summoned to Parliament as at this day that there cannot be found any Summons to them upon these Rolls as well as to the Lords But the Learned Doctor hath for our Satisfaction found out three Writs of Summons to the Lords one in King Iohn's Reign and two other of Hen III. The first is in the Close Roll 6th of King Iohn directed to the Bishop of Salisbury which is needless here to be repeated Verbatim only pray take notice of the material words of this Writ where after the Cause of the Summons particularly expres'd it concludes thus expedit habere vestrum Consilium aliorum Magnatum Terrae nostrae quos ad diem ilium Locum fecimus convocari The second is in the Close Roll of the 26th Hen. III directed to W. Arch-bishop of York wherein he is likewise Summoned ad tractandum Nobiscum una cum caeteris Magnatibus nostris quos similiter fecimus convocaâ—i de arduis Negotiis nostris statum nostrum totius Regni nostri specialiter tangentibus with this note underneath eodem modo Scribitur omnibus Episcopis Abbatibus Comitibus Baronibus The third is of the 38th of the same King directed to Boniface Arch-bishop of Canterbury whereby he is Summoned to be at Westminster within Fifteen days after Hillary next coming before the Queen and Richard Earl of Cornwail about the Affairs of Gascony and this very Council Mat. Paris Anno. Dom. 1254. calls a Parliament to which all the Magnates or great Men of England came together the Day of which Meeting he makes to have been the 6th of the Calends of February being St. Iulian's day and which fell one within Fifteen days after St. Hillary's Day which was that appointed for the Meeting of this Parliament by the aforesaid Writ of Summons and who were the Constituent parts of this Parliament may be be farther made out by a Letter of the Queen and Earl Richard to the King then in Gascony which is recited by Mat. Paris in his Additaments in these words Domino Regi Angliae c. Regina Richardus Comes Cornubiae Salutem Recipimus literas Vestras ad Natale Domini proximae praeteritum quod in Crastino Sancti Hillarii Convocaremus Archiepiscopos Episcopos Abbates Priores Comites Regni Angliae ad ostendendum c. Whereby it appears who were then the Constituent parts of Members of our English Parliaments viz. the Archbishops Bishops c. Earls and Barons of the Kingdom So that there is no such Universal silence concerning the Constituent Parts of our Parliaments as you and those of your Party suppose from the loss of the Parliament Rolls of those times most of which though I confess are lost yet there are enough left to satisfie any reasonable Person that there were then no Commons in Parliament in the sense they are now taken F. You cannot give me a better demonstration of the loss of the Parliament Rolls and Writs of Summons than what you now offer for if we have all the Close Rolls of King Iohn and Henry III. on the Dorses of which you tell me the Writs of Summons use to be entered then certainly those to the Lords were there entered also and if so how comes it to pass that in above Eighty Years time in which there must be above Eighty Parliaments you can shew me but three Writs of Summons and those only to as many Bishops and to no Temporal Lords at all If so be these were Parliaments and not great Councils of the Bishops Lords and Tenants in Capite only as I rather believe they were for you rely too much upon you Doctors credit when you alledge that we have all the Close Rolls of King Iohn and Henry III which is a great mistake for I have had a Friend who has given me a note of what Close Rolls are still Extant in those Reigns and what are lost which you may here see To begin with King Iohn pray observe that all the Close Rolls of the first Five years of his Reigns are gone and so they are in the 9th 10th 11th 12th and 13th for certainly there were some in those as well as in the succeeding years In the next place till the 18th there is but one Roll left of each year but then there are three and after that but one or two in a year to the very end now pray tell me how we can be assured that there was not more then one Roll in every precedent year as well as in the 15th the like I may say for the Reign of Hen. III. which though I grant are more entire then those of King Iohn there being some left us of every year but the 23d yet they are but
a few and for the greatest part but one in each year never but two in any year in all this long Reign unless it be the 39th in which there are four which is very strange that in so busie a time as most of this Kings Reign was there should be no more Rolls left and therefore it seems very probable that at least half are lost and in which might be many Summons as well to the Commons as to the Lords and if they are not lost pray tell me what is become of all the Writs of Summons to your lesser Tenants in Capite who certainly often met in this long Reign according to King Iohn's Charter but if you will tell me they are lost or omitted to be entred upon the Close Rolls I may with like reason and certainty affirm the same of the Writs of Summons to the Knights Citizens and Burgesses for if the one may be lost sure the other may be so too But what if after all these Writs you have produced were not any Summons to a Common Council or Parliament at all but only to a great Council of the Tenants in Capite which I have great reason to believe not only because the Title to the last Writ is only Summonitio ad Concilium and not Commune Concilium Regni but also because Mr. Selden and Mr. Pryn who certainly must have seen all these Writs as well as the Doctor and were as able to Judge of them never cite them for Summons to Parliament and Mr. Pryn observes of several Writs in which the like words of Summoning the Lords to give their advice are likewise found that they were only to such Councils or Treatises which were frequently used as Low as the Reign of Richard II. but if these Writs had been Summons to Parliament sure Mr. Selden and Mr. Pryn had no reason to bewail as they so often do the loss of not only of Parliament Rolls but of all Writs of Summons both to Lords and Commons except those of 49th Hen. III. till the 23d of Edw. I. But pray go on if you please to make good the rest of the positions you have now laid down M. I doubt not but in the next place to shew you though 't is true most of our Parliament Rolls are lost both from our ancient Historians and Statutes that there were no Commons in any Parliament during all the long Reign of King Hen. III. except in the 49th of that King I shall begin with the first Act of Parliament we have of the time of Henry III. which was made in the 20th of this King at Merton where though it is said to be provided and granted as well by the Arch-bishops Bishops Earls Barons as others yet the words Aliis and others are to be understood of the Tenants in Capite distinct from the Earls and Barons as I have already proved F. I shall answer your Authorities as you go you may say you have proved it but I know not when and why may not I with as good a Face maintain that these words Aliis do here signifie the Commons if the word Barons must take in all the great Lords and lesser Tenants in Capite as sometimes you suppose it doth when no other Lay-Members are mentioned but I have already observed that this Barones is a Cheveral word and to be stretch'd or contracted as best suits with your Hypothesis So I think I may with greater reason suppose the Earls and Barons to be all comprehended under the word Barones and the Commons under Aliis as I have already proved and which is also most suitable to the last Clause of Magna Charta of King Henry III. But you forget that I have I think sufficiently made out that the Commons had their Representatives both at the making and confirming of Magna Charta in 2d and 9th of Henry III. and therefore whatever proofs you bring to the contrary will come to late though I shall patiently hear what you have to say but if you have no more Authorities to produce from Statutes and Records which have not been already considered Pray proceede to the 49th of this Kings Reign and give me some reasons why the Commons were called in that year and never before nor after till the 18th of Edw. I. for they both seem to me very improbable suppositions M. I shall observe your Commands and shall give you as short an account as I can of this transaction First therefore I desire you to take notice that after Simon Monâ—fort and the rest of the Barons of his Faction had taken King Hen. III. and Richard Earl of Cornwall the King's Brother with many other of the Nobility Prisoners at the Battle of Lewes He carried them about with Him till they had taken in all the strong Forts and Castles of the Land and when this was done Mat. Paris tells us that calling together at London the Bishops Earls and Barons of that Faction which so seditiously held their King Prisoner they began to set up a Committee for the Government of the Kingdom consisting of Twelve Lords who were chosen out of the whole Community or Body of the Baronage without whose advice and consent or at least of Three of them no affairs in the King's Houshould or in the Kingdom should be transacted and to these Ordinances the King and his Son were forced to agree and though the Record of this Agreement recites that this Ordinance was made at London by the consent goodâ—liking and Command of the King and also of the Prelates Barons and of the Community there present yet I am not yet convinc'd that by the word Communitas in the Latin Record is to be understood the Commons but the Community of the whole Kingdom since this Agreement is Signed only by some great Earls and Barons and no Commoner witness to it but the Mayor of London whom your self will grant was no Parliament Man After which Simon Montfort the better to settle himself in his Usurpt Power and in those Lands and Castles which himself and those of his Faction had unjustly wrested from Prince Edward who was now also a Prisoner having delivered himself as a Hostage for the Performance of this forc'd Peace they in the first place sent out Writs in the King's Name unto divers Bishops Abbots and Priors and to such of the Noblemen as were of their own Party to appear at Westminster on the Octaves of St. Hillary next ensuing and the Doctor hath given us a Copy of the Writ of Summons to the Bishop of Durham as it is found in the Close Rolls of the 49th of this King and at the end of it it is thus recited â—eodem moâ—o Mandatum est Episcopo Carleol As also to divers Bishops and Abbots all of their own Party and Faction there being above an Hundred Abbots and Priors then Summoned more than ever were I believe before or since and then follows a short
Writ to the Sheriffs of Counties to Summon two Knights de Legalioribus Discretoribus singulorum Comitatuum â— though it doth not appear by the Writ whether the Sheriffs of the Counties were to Elect and send these Knights the Sheriffs being then of the Faction and made by them for 't is there said only quod venire faciarâ— There are also other Writs recited to have been directed to all the great Cities and Towns of England as also to the Cinque Ports to send two of the most Legal and Discreet of each of the said Cities Burroughs Towns and Cinque Ports to the said Parliament at Westminster at the time aforesaid So that without the History of this Niâ—k of time these Writs which are said to be for the Delivery of the Prince out of Prison and for the settling of tranquility and Peace in the Nation cannot be understood But Prince Edward's Release could not be agreed upon in this Parliament whatever other Business might be dispatched So that things still remained in this uncertain condition the King being all this time a meer Shadow until such time as Simon Montfort and Gilbert de Clare Earl of Glocester falling out the latter at last took up Arms and joyning with the Earles of Surry and Pembroke to whom also came Prince Edward after he had made his Escape from Hereford they altogether raised considerable Forces against Monfort who meeting them and joyning Battle near Evesham Monfort with one of his Sons and many other Lords and Knights were Slain and all his Party routed Now pray tell me if this is not a very clear account from the History of the matter of Fact why the Commons were first called to Parliament by Monfort during his Rebellion and I think I can also give you very good reasons and Authorities to back them why they were again discontinued all the rest of this Kings Reign untill the 18th of Edward I. F. I shall tell you my opinion of your Narrative by and by but in the mean time pray satisfie me in one or two Questions pray Sir what may be the reason that we can find but twenty three Earls and Barons Summoned of that great number there was then and only to thirteen Bishops in this Parliament and yet at the same time there should be summoned above an hundred Abbots and Priors and but five Deans of Cathedral Churches pray why might not these numerous Barons be trusted as well as all the Abbots and Priors M. As for his not Summoning all the the Earls Barons and Tenants in Capite but putting Knights of Shires and Burgesses in their rooms there may be a very good reason given for it viz. the danger that Simon Monford and his Privado's apprehended from the too great Concourse of the Nobility and their great Retinueâ— and the Example of his own and the Barons Practices at Oxford in the Parliament of 42 d. of Henry the Third might be the cause why they altered the ancient Usage and of their sending Writs out commanding the Sheriffs of each County as also the Cities and Burghs to send two Knights Citizens and Burgesses respectively But the Reason why there was so many Abbots and Priors Summoned was because Simon Monfort thought himself sure of them He was a great Zealot and a Godly Man in those times and a great Minion of these Religious men as then called as also of the Bishops and Clergy and they were at least seemingly Great Favourites of his F. I must confess there is some colour of Reason why Simon Monfort should Summon so many Abbots and Priors to this Parliament if he were sure of all their Votes before hand but there is no certainty of this for if he had been so sure of them there was as much reason why he should have called them all likewise to the Parliament at London which you say he Summoned the year before when with the Consents of the Bishops Barons and others he made the new Ordinances you mention but you cannot find in any Historian or Record that he then Summoned so many of them and it seems pretty strange that all these Abbots and Priors and Deans not a fourth part of which were Tenants in Capite should all take the trouble to come to this Parliament without any scruple if neither they nor their Predecessors had ever been Summoned before But the other reason you give why so many Earls and Barons should be omitted is much more unlikely for if the numerous Barons Factious Practices at Oxford had before frustrated Monfort's designs there had been indeed some reason why he should have done all he could to have hindered their coming again whereas on the contrary the Earls and Barons at the Parliament at Oxford though they came thither with Arms and great Retinues yet it was only to joyn with him and to force the King to agree to the Oxford Provisions But if the Commons were now Summon'd as you suppose to curb the extravagant Power of the Lords yet it could not be his Interest or indeed in his Power so to do not the latter because the Earls Barons and Tenants in Capite were too powerful and numerous a body to have suffered such an affront and breach on their Right as this was Nor could he and his two and twenty Companions have ever dared to have displeased so great and powerful a body of men as you must allow your great Barons and Tenants in Capite both great and small then were and who made such a powerful opposition for their Liberties in King Iohn's time or that they would have thus tamely permitted men wholly of the Sheriffs choice to have thus taken away their places in Parliament and made Laws for them much less the Citizens and Burgesses most of whom were certainly not Noble by Birth nor yet held Lands in Capite nor could it be for Monfort's Interest so to do for the greatest part of the Earls and Barons were of his side already and thus to â—â—clude them had been the only way to disoblige them and make them leave him and go over to the King's side So that I must needs tell you upon the whole matter granting Monfort to have been such a Knave and Hypocrite as you make him yet certainly he was no Fool but a great Politician and I leave it to your self or any indifferent person to judge whether it was possible for him to do so silly and unpolitick a thing as this For granting all the Abbots and Priors to have been of his side as you suppose they could no way counterballance the great Power of those Earls and Barons and numerous Tenants in Capite that were all hereby excluded So that let the Commons have been Summoned when you will it was certainly before this 49 â—h of Henry the Third or not at all But to give you my opinion why so few Earls and Barons are mentioned in this Record of the 49 of Hen. 3 d to have been Summon'd
to this Parliament I conceive it was not out of any jealousie or suspition in Simon Monfort of those who were then his fast Friends but out of pure carelesness or omission of the Clerks who I suppose through hast inadvertency or multiplicity of business omitted to enter the names of all the rest of the Earls Bishops and Barons to whom Writs of Summons were likewise sent and that I do not speak without Book I appeal to the Record it self where there is a blank space left unfill'd of about four Inches breadth which could be left for no other end than to add the names of all the rest of the Earls and Barons who were certainly Summoned to that Parliament as well as those whose names are there expressed M. I shall not longer dispute this point but I think you must grant that the Commons are never mentioned in any Record or Statute of this King for after his Victory at Evesham he called a Parliament at Winchester whereto we do not find any Commons Summoned as before but the King by the advice of his Magnates alone Seised the Liberties of the City of London and also they gave Him all the Lands of the late Rebels And then there was after this a Parliament Summoned at Kenelworth in the 50 th of this King where it was agreed by the common assent of the Bishops Abbots Priors Earls Barons and all others that six Persons who were all except one either Bishops or Barons should chuse six others and the whole twelve were to judge concerning those who were disinherited for their late Rebellion and their Determination or Award is call'd Dictum de Kenelworth and was made to better the condition of the disinherited and to turn the Forfeitures and Loss of their Estates into a Composition for them after the value of five years Purchase to be paid at two or three short payments yet we do not find that to this Parliament the Commons were at all Summoned but to the contrary for though it is true that the Statute gives us all their Names Yet the Doctor further proves to you from Sir William Dugdale's Baronage that there was not one of them but what was either a Bishop or a great Baron of the Kingdom whereas had there been any Commons in this Parliament they would certainly have had Commissioners of their own order as well as the Bishops and Lords F. I shall give you a short answer to your Authorities from the Parliaments of Winchester and Kenelworth as for the former you must own that all the Rolls of it are lost and that there is no more left of it on Record than that Writ or Commission which the Doctor has given us which recites that by the unanimous consent of all the Magnatum or great Men as the Doctor renders it the King had the seisin and possession of all the Rebels Estates given to him which is no argument to prove that no Commons were there since I have so often made out that under this wordâ— Magnatum not only the Knights of Shires but Citizens and Burgesses were often comprehended 'T is true there are no Writs extant to prove the Commons were now Summoned neither is there any reason to believe the contrary since if it were a cunning invention of Montfort to Summon the Knights Citizens and Burgesses to abate the power of the Tenants in Capite it was sure as good policy for this King to continue so politick an Institution which would for the future serve for so good a ballance not only against his Tenants in Capite but his great Lords also as for the Parliament at Kenelworth I shall admit all the matter of Fact to be true as you have related it from Mat. Westminster who says that the Twelve Commissioners appointed to draw up the Statute of Kenelworth were chosen de Potentioribus Procerum Prudentioribus Praelatorum and also that the French Record cited by the Doctor together with Sir William Dugdale's Comment upon it make it out plain enough that the Lay Commissioners who were chosen by all the parties there named to make this Statute were all great Earls and Barons though in the Record it self only stil'd Knights Well what follows from all this that the Commons could have no hand in this choice because the tous Autres or omnes Alii mentioned in this and other Records must needs always signifie the smaller sort of Tenants in Capite and I say it signifies the Commons as now taken whether you have made good your Interpretation by any cogent proofs I must leave to your own ingenuity for to tell you the truth I think your Doctor has led you astray in this point and till you can make it out better than you have done I must beg your pardon if I keep my old opinion and if your Argument be good that no Commoners were there because none of them were chosen Commissioners then by the same Argument none of the small Tenants in Capite were there neither because none under the degree of an Earl or Baron were Elected As for the want of Writs of Summons to these Parliaments if that were to be the rule that makes as much against the rest of the Tenants in Capite who were no Barons nay the very Bishops and Abbots and Lords since there is no Writs of Summons found for their appearance at either of these Parliaments and so the King might call whom he pleased M. In the first place it does not follow that because Montfort had Summoned some of the Tenants in Capite to appear for all the rest and that he also called some Citizens and Burgesses to this Parliament of the 49 th yet the King might have very good reasons though we cannot now positively tell what they were nor to follow this new Invention of Monforts however it might then serve the turn for perhaps the King did not like it because introduced by a Rebel And he had also by his Victory at Evesham so quelled the power of the great Lords and Tenants in Capite that I believe he was afterwards able to call or omit whom of them he pleased according to the Testimony of Mr. Cambden's Nameless Manuscript Author cited in his Brittania that after the horrid troubles and confusions of the Barons Wars only those Earls and Barons Quibus Rex dignatus est brevia Summonitionis dirigere venirent ad Parliamentum suum non Alii And that this was true in matter of Fact I shall prove from the next Statute of Hen. 3. which is extant viz. that of Maâ—lâ—bridge made in the 52 d. year of this King to which there were no more Summoned than some of the more Discrâ—â—t of the Greater and Lessâ—r Barons as appears by these words in the Preface to that Statute Convocatis Discretioribus ejusdem Regni tam Majoribus quam Minoribus Brovisum est Statutum ac concordatum c. which seems to have been done by the King
's particular direction since by the general Writ of Summons provided by King Iohn's Charter the Sheriff of each County was to Summon all the Minor Barons and Tenants in Capite which could not be if only the more Discreet were then Summoned nor is there in this Preamble the least Hint or Intimation of any Writs directed to Counties Cities or Burghs for the Choice of Members I desire you in the next place to take notice that Britton who lived about that time supposes this Statute to have been made Per la Purveance de Robert Walerand per Commune Assent des Graunts Seigneurs du Realme By the Procurement or Forecast of Robert Walerand and by common assent of the Great Lords of the Realm without any mention of the Commons I have a great many more such Statutes to instance in which are said by M. Paris to have been made in several Parliaments of this King by the Community or Common Vniversity or Baronage of the whole Kingdom but I pass them by because we have sufficiently debated most of them already F. If only some of your Great Lords and Tenants in Capite could thus meet and make Laws to bind all the rest and they so tamely put up this strange Infringement of their Priviledges as you suppose it seems their Power was much abated since the 37 th year of this King when as I said Mat. Paris tells us that the Barons would do nothing without the rest of their Peers whom it seems the King had then omitted to Summon and therefore I must needs tell you that I am not of your Doctors opinion nor yet of Cambden's nameless Author that this King after his victory over Montfort and his Adherents could by his Prerogative call or omit what Peers he pleased since it is contrary to the Declaration of all the Bishops Abbots and Priors in Full Parliament 2 Rich. 2. wherein they claimed That holding per Baronium it did belong to them de Iure consuetudine Râ—gni Angliae that is by Rights of Prescription to be present in all Parliaments as Peers of the Realm and to treat consult and ordain concerning the Affairs of the Kingdom and if the Spiritual Lords claimed this Priviledge sure the Temporal Barons might with the like right have made the like claim and I am sure it is highly derogatory to the Rights of the Peerage of England to maintain that the King either hath or ever had the power of calling and leaving out what Lords he pleased and so to make pack'd Parliaments to serve a turn when ever he pleases But to come to the main strength of your Argument that because the more Discreet men of the Kingdom of the Greater as well of the lessâ—r are only mentioned in this Statute that therefore there were only called to it such Lords and Tenants in Capite as the King pleased to Summon and that all the rest were left out which is a very idle Supposition for at this rate may as well say that there were no Temporal Barons there at all and that by the Greater discreet mâ—n are to be understood some of the Bishops and Judges who tho no Peers yet were then the most Learned in the Laws and Customs of the Kingdom of any persons at that time and consequently the most wise and discreet to draw up Laws and by the lesser sort of discreet men shall be understood such Great Clerks and Lawyers tho not Tenants in Capite as the King pleased to chuse as being likewise most able to advise him But if you tell me that this Interpretation is forced I may as well say the same of yours and that with greater reason Yet I shall prove that this Parliament was Summoned in no other manner and consisted of no other persons than those that used to appear in all other preceding Great Councils or Parliaments In the first place therefore I must put you in mind of what I have already said that there is no conclusion to be drawn from the bare penning of the different Forms of ancient Statutes who were Summoned to the making of them nor by what power they were Enacted some of them it is true being drawn in the form of the Kings Charters or Writs without any mention of the Assent either of the Lords or Commons and others are said to be Enacted by the whole Realm without any mention of the King at all and I have given you a List of divers old Statutes from the Reign of King Henry III. to the time of King Edward III. in which there is no mention at all made either of the King or any other of the three Estates and yet no Man I think but will grant that these Statutes were all made and agreed to by them according to the usual Forms tho it be not particulaly expressed and therefore to give a better account of this Law it is fit we consider that these words convocatis Discretioribus Regni are no more restrictive to some particular Persons then if it had been in the Superlative Degree and instead of Discretioribus it had bin Discretissimis or Sapientissimis Regni which no Man would interpret to mean only a few of those whom the King should judge the wisest and most discret Men of the whole Kingdom and therefore we must not mind the Grammatical but Legal sence of these words and then it amounts to no more than this that by the Greater discreet Men were meant the Lords Spiritual and Temporal as under the lesser Discreet Men were included the Commons But that these Minores Descreti cannot be understood of the Tenants in Capite only appears by the conclusion of the Preface to this Statute of Marle-bridge in these words Provisiones Ordinationes Statuta subscripta â—b omnibus Regni ipsius incalis tam majoribus quam Minoribus firmiter inviolabiliter temporibus perpetuis Staâ—neriâ— observari so that if by the Majores Iâ—colae who were to observe these Statutes the Lords Spiritual and Temporal are meant then by the Minores Incolae Regni must be understood by the same reason the whole Commons of England and so likewise for Parity of reason by the Minores Discreti mentioned before in the Preface must be also meant the Representatives of the Commons in Parliament And that this alone can be the genuine sense of these Words may appear by comparing this Statute with another made at Gloucester the 6th of Edward I. where in the Preface it is recited in these words purvenant mâ—sm le Roy pur Amendement de son Royalme pur pluis plenier exhibicion de droit sicome le profit d'office demande appelles les pluis Discretes de son Royalme auxibien des Greindres come des meindres establie est acordan'ment ordeine So that if the Commons were there called to this Parliament and if by the Greindres Discretes were understood the Lords then by the like reason under Meindres Discretes must be meant the
Citizens or Burgesses nor were several strict Forms and Usages now Practiced ever then thought of nor some Legal niceties and Punctilio's now in use then judged absolutely necessary F. Pray give me leave to answer what you have now said from this Writ before you proceed to any other Record First as to your Argument from the variety or uncertainty of the number of Knights of Shires which you at first suppose to have been Summoned to Parliament that I doubt will prove a gross mistake for if we closlely consider the Writ it self it will prove no more then a Summons of these Knights to a great Council Colloquy or Treatise as the Writ here cal'â— it and not to a Parliament the words Colloquium Tractatum mentioned in the Writ not then signifying a Parliament but such a Collequy Treatise or great Council as is mentioned iâ— the Statute of the 7th of this King forbiding all Men coming with Arms to such Assemblies wherein there is also a plain difference made between Parliaments and such Treatises as I have already proved from the Statute of the Staple of the 27th of Edward III. which was first made in such a Treatise or Council as appears by the Title to the said Statutes and was afterwards confirmed by the next Parliament in the 28th year of the same King Cap. 1. whereby Magna Charta and all other Statutes before made are also confirmed for had this Summons been to a Parliament sure there would have bin also Writs of Summons found for the Electing and returning of Citizens and Burgesses as well as Knights of Shires to this Assembly and these Writs of Summons would have been entered on the Dorse of the Close Rolls according to the Rules your self have laid down whereas this Writ is only found in a loose Bundle of Writs of divers other Matters neither is there any title in the Margin of the Record as is usual in Writs of Summons to Parliament whereby it may appear what kind of Assembly this was to which these Knights were Summoned nor is your Argument from the date of the Writs of Summons any convincing proof that the Commons were not in this Parliament at the time of the Writ Issued since during the Session of this Parliament the Earls and Barons might make this Request for calling of those Knights out of the Counties to give their Opinions and Advice in the matters to be proposed to them by the King and that thereupon the King at their Request thought fit to Summon two or three more of the Knights of Shires to have their advice also And as for your last Argument that the same Parliament which gave the Tax above mentioned on the first of Iune must be sitting even to the very time of the return of the Writ because the Statute of Westminster the third was mane on the Quindene of St. Iohn Baptist viz. the 8th of Iuly So that the King and the Barons without the Commons made this Statute and that these Knights were Summoned after the act was passed There is no necessity of making these Consequences for this Parliament might very well be dissolved that very day this Act passed and this Council or Colloquy might be Summoned to Meet within three Weeks after Mid-Summer i. e. about the 16th of Iuly according to the Writ you have cited And so I believe it would appear were the Rolls of that Parliament now Extant as thâ—y are lost as well as those of divers succeeding Parliaments M. Well then you are forced to confess that this Writ was Issued whilst the Parliament was still sitting and if so I cannot see any need there was of another less Council or Colloquy to meet after the Parliament was ended since as long as it was sitting that could have much better dispatch'd all such business as the King had to do and how the King could foresee that he should have need of another Council before he had any business for it seems very improbable and therefore I think I may very well suppose with the Doctor that this Writ was a Summons to Parliament though it does not I grant expresly call it so but your Argument is of no weight that because this Writ was not entred upon the Close Roll that therefore it is not to be look'd upon as a Summons to Parliament as also because the Title to it is only Summonitio ad Consilium since the Doctor in his answer to Mr. P. gives us several Parliament Writs upon the Close Rolls with this Title ad Consilium which proves that the King had in those days a larger Power of calling what number of Knights of Shires he pleased to Parliaments as appears by two other Writs he there gives us of the 22d of Edward I. which are entred in the Close Rolls to the Sheriff of Northumberland to cause two Knights to be Elected for that County bearing Date the 8th of October and the next day after the King as appears by another Writ to the same Sheriff ordered him to cause to be chosen two other Knights besides the former and to cause them to appear at Westminster the morrow after St. Martin's Day to hear and do such things as the King should more fully enjoyn The like Writs with botâ— the former were sent to all the Sheriffs in England Now though it is true that the Title to the first of these Writs is only de Melitibus Eligendis Mittendis ad Concilium yet these words well considered must certainly here mean a Parliament both these Writs being entred upon the Close Rolls where all Writs of this kind are wont to be found as I have already observed and besides the words in the first Writ are the same with those which are found in several other Writs of Summons to Parliament viz. ad Consuleâ—dum Consentiend pro se Commâ—nitate illà biis qua Comites Barones Proceres prâ—dictâ— concorditer ordinaverint in praemissis F. I confess we are at a loss in this affair for want of the Records of this Parliament which if we had I doubt not but there would appear very good reasons why the Lords did then desire the King should consult more of the Knights of the Shires then what had appeared at this Parliament as that Lords might refuse to give their Advice in the matters proposed by the King without he would also consult more of the best and ablest Knights of Counties who were to come up with fresh Power and further Instructions what answer to give the King in the matters he should propose which that it was neither to give Money nor make Laws is plain since you say the Tax of 40s on even Knights Fee was given and the Statute of Westminster 3d. made before they came up to Parliament but indeed the words in the Writ plainly prove that this was no Parliamentary Meeting since they are here only Summoned ad Con ulendum Consâ—â—iendum whereas in all Writs of Summons to
future Parliaments the words are ad faciâ—ndum quod â—unc de Communi Consilio ordinabitur or the like as appears by the Writ of Summons of the 23d of this King which the Doctor has printed whereas the words in this Writ are ad consentiendum c. â—iis qua Comites Barones Proceres â—radicti rune duxerint concordanda c. And if this had been done at the request of all the Tenants in Capite as you suppose how come the Bishops Abbots and Priors who held also in Capite to be omitted and not mentioned in this Writ to have joyned in this request as well as the Earls Barons and great Men But as for the Doctors next precedent viz. a Writ to the Sheriff of Northumberland to return two Knights of the Shire and then the next day after other two for the same County I am not at all satisfied that those Writs were a Summons to a Parliament and not to a great Council for besides the Title of the Writ is de Militibus Eligendis Miâ—tendis ad Consilium and the words in the Writ are not the same with those which were commonly used in Writs of Summons to Parliament as I have already shewn ' you in this Writ of Summons we are now upon Whereas in the Summons to Parliaments of the 23d of this King the ordaining part doth as much refer to the Commons as to the Lords the Commune Consilium consisting of both whereas in these Writs you have cited they were to consent to such things which the Earls Barons and great Men should think fit to agree to but that I may shew you a little more plainly the absurdity of this fancy of your Doctors that these Knights of Shires were now Summoned the Parliament sitting pray let me ask you one or two Questions concerning this business pray who were these Gentlemen that the King you say thus Summoned to Parliament M. According to the Doctors account they must have been all Tenants iâ— Capite since he often tells us that out of these alone the Knights of Shires were chosen at the first F. Well but then who were these Magnates and Alii Proceres mentioned in the Statute of Westminster and in this Writ of the 18th of Edward I. M. I must own my self at a loss certainly to define who they were for if I say they were the smaller Tenants in Capite who are here put as a distinct order from the Comites Barones immediately foregoing I foresee you will ask me how these Gentlemen could be â—ummoned since all the Tenants in Capite were at this Parliament already therefore I must tell you I think there were only some of the greatest and wisest of the Tenants in Capite who were no Barons now Summoned and whom the Doctor tells us were often called to great Councils as Barons Peers and who though sometimes called to sit among the Lords were often again omitted in several Kings Reigns so that this Parliament was composed as those of Marlbridg and Gloucesâ—er not of all but only of the more discreet of these lesser Barons or Tenants in Capite F. If this be all you have to say to extricate your self out of this difficulty I think it will not amount to much for in the first place all you have here said is meer conjecture without any proof since this Statute of Westminster 3d. says only in general that it was made at the Instance of the Magnates under which Title your Doctor when he explains the Writ of Summons to the Arch. bishops of Canterbury tells us were frequently comprehended the Barones Majores the Earls and Barons as under Minores the lesser Tenants in Capite which when the Statute of Westmister the first was made he will have to be the whole Commonalty of the Land therein mentioned and why this Parliament of Westminster the 3 d. should not consist of the same Members now needs some better reasons than your bare affirmation to the contrary Besides this Prerogative of calling these Barons Peers to Parliament did not only extend to Tenants in Capite but to other Mesn Tenants also if the King thought them considerable enough for Estates or wisdom to do them that Honour and so was not confined to Summon none but Tenants in Capite who according to your Interpretation of K. Iohn's Charter had all a right to appear by General Wrâ—ts at the Common Council of the Kingdom but you may put what sense you please on these words Magnates Proceres yet I am sure your Doctor can take them in no other sense than for the Community of all the Tenants in Capite both great and small and so he tells us in his Glossary when he Comments upon the Writ of the 30 Edw. 1. which you now mentioned and which refers to this very Parliament of the 18 th when Forty Shillings was granted on every Knights Fee to Marry the Kings Daughter and there the Doctor immediately tells us that such as payed that Scutage were Tota Communitas Regni and no others and of these the Tenants in Capite granted and payed it first for themselves and Tenants c. and which must certainly relate to this very Parliament of the 18 Edw. 1. or none at all M. I confess I do not see how the Doctor can solve this difficulty but by denying what he has already said and affirming as I do now that all the lesser Tenants in Capite were not Summoned to this Parliament but only some of them at last ordered by this Writ to be chosen and returned by the Counties F. Yes he might do it if bare affirming were to pass for proof but I shall not give up my reason upon no better Grounds either to him or you not to mention the improbability of the thing that the King should be now over-perswaded by the Earls Barons and other Great Men to call these Knights of Sâ—ires which had been now omitted ever since the 49 Hen. 3. for above twenty yearâ— when he had no need at all of them but rather the contrary advantage of Governing without them since it is the Policy of Princes rather to diminish than increase the number of the Members of their great at well as private Councils who certainly are most easily managed when they are a few than a great many M. But what if we should go from the Doctors Position and say that perhaps these Knights were chosen out of the Mesn Tenants of the Tenants in Capite many of whom I grant might be considerable for Interest as well as prudence and with whom the King at their request might desire to treat of certain matters which had been before moved and propounded by him F. This is all that can be said and yet is much more unlikely then the other since to believe that the Earls Barons and Tenants in Capite should be now grown so weary of their Power of imposing Taxes and making Lawâ— for the
make use of into these three Heads First I shall give you divers Quotations out of the most Ancient Writers who lived in or nearest the time you prefix viz. the coming in of the Norman William and shall descend down in order of time as low as your Drs. 18th of Edward I. 2. I shall shew you from the Authorities and Testimonies of the Judges of almost all our Courts of the House of Commons nay of several whole Parliaments and the King himself that the Commons had an undoubted Right of Sâ—tting there by Prescription 3. From the Consent of all our Neighbouring Kingdoms who being governed by a King and a great Council or Assembly of the Estates according to the Gothick Model the Commons had always from the Institution of the Government their Representatives in those Assemblies M. I much doubt that but pray begin with your Ancient Historians for as for my own part I must freely tell you though I have looked them over very warily yet I can find nothing in them concerning the particular constituent parts or Members of our great or Common Councils but the Magnates Optimates or Principes Comites and Barones all which tho' you have at our last meeting shewed me from some Authorities that they may take in others tho' not Nobâ—â— by Birth yet since these words have been most commonly taken in another sense it needs some better proof than to say in general that meer Commoners were there because those general words may sometimes be taken in that sense and as for the words Clerus and Populus which I confess are often mentioned to be present at those Assemblies the Learned Dr. in several places of his Answer to Mr. P. as also in his Glossary hath plainly proved that as the word Clerus sometimes signifies the Bishops and sometimes the Inferiour Clergy so Populus does also neither great nor little People but only the Layety and therefore as it is used and restrained signifies the Lay Plebs or the Lay Magnates What I mean by Plebs I shall shew you by and by but that the word Populus does not signifie the Inferiour sort of people or such as were inferiour to Barons Tenants in Capite or Noble-men the Dr. has very well proved from that passage made use of by Mr. P. to prove the Commons to have been in that great Council which made Henry the first King because it is said by Mat. Paris that Congregato Clero Populo universo c. by which word Populus he would understand the Commons alone distinct from the great Lords But the Dr. very plainly shewâ— him the falseness of this Interpretation from the same Author within three lines of the place himself had cited where the same Body of Men which is but just before called Populus is presently after called Magnates ad haec Clero respondente Magnatibus cunctis not one word in this place of any Populus but the great or Noble-men that is the Tenants in Capite must be the People or Lay-men here mentioned and this same Clerus and Populus is by Eadmerus speaking of a great Council held at Westminster in the second Year of this King called Primates Regni uâ—riusque Ordinis or as Florence of Worcester words it the Orders of Men assembled in this very Council Omnes Principes Regni sui Ecclesiastici Secularis Ordinis the which the Dr. also proves from several like passages in Eadmerus in all which as also in all other Authors the Dr. hath there cited This Populus is explained to be the Earls Barons and great Men of the Kingdom only that is all the greater as well as smaller Tenants in Capite And tho' I confess at our last Meeting you brought very good proof that the word Populus was more comprehensive among the Romans yet tho' the Roman Populus comprehended all the People as well Nobility as Plebeians and that in Scotland it took in the Burgesses of the Royal Burroughs which hold immediately of the King yet does it not follow that this word must needs signifie so in this Kingdom too since in all Countreys not all the People but only the Governing part of it is used for the Populus in all Histories Publick Acts and Laws of those Kingdoms thus in Denmark formerly and still in Poland the Populus consisted solely of the great Councils of the Nobility and Senate in which there were no Plebeians at all F. I hoped we had done wrangling about this word Populus but since I see you are not yet satisfied I shall shew you more plainly that by this word used in our Ancient English Historians is not only meant the great Lords and Tenants in Capite but another larger and more comprehensive Body and whereas you say that the word Populus is still restrained by our Ancient Historians to the Magnates Primates Principes Regni all which words do in their genuine signification signifie Great or Noble-men and that tho' they are sometimes taken in a different acceptation yet that it lies upon me to prove that they are to be taken in my sense to this I must tell you that the proving part ought to lie wholly of your side for since the Commons of England have been for above these Four hundred years constituent Members of our Parliament as is agreed on all hands and that they also claim to be so by right of Prescription it lies still upon your door to prove the contrary and to shew at what time and upon what occasion they were first introduced which if you have not been able hitherto to perform so as to give me any tolerable satisfaction you cannot blame me if I still keep my own Opinion and believe them as Ancient as Kingly Government it self in this our Island But since I grant these words Clerus and Populus are of a general and equivocal signification their true sense and meaning is best to be understood from the subject matter that is treated of as I shall shew you first from the nature and signification of the words Clerus and Populus according to the Ancient Constitution of our Government that they must signifie many more than your Tenants in Capite alone and then I shall confirm my Interpretation by the Authority of such Ancient Historians as lived either in or very near the Times I mention And therefore I shall first prove it from the great Analogy there was between the Clerus and the Populus so that if the Clerus took in more than your Tenants in Capite in our Common Councils by the same reason the Populus must do so too Now that this word Clerus when used by it self does not originally signifie either the Bishops and Abbots alone or the Inferiour Clergy alone as your Dr. asserts is evident because Clerus is a general word and comprehends all the Clergy of whatsoever sort or degree Now that all the Clergy as well the Superiour as
Inferiour had either themselves in person or else by their Representatives a place in the Saxon Witten Gemots or Mycel Synods and made together with the Laity one entire Council or general Assembly without the joynt consent of both which no Laws or Constitutions whether Ecclesiastical or Civil could be enacted for proof of this we need go no farther than Sir H. Spelman's first Volume of Saxon Councils and particularly in the Councils or Synods of Clovesho first and second that of Kingston A. D. 838. that held under King Egbert and Withlafe King of the Mercians and that of Winchester under the same King Egbert in which Tithes were first granted in all which you will find that both the Clergy as well the Inferiour below the degree of Bishops and Abbots as also the Laity below your Earls and great Aldermen and Wites had a share And that this continued so both in and after the Norman Times appears by the first great Councils we have left us that were held under the first Kings of the Norman Race M. I should be very glad to see that proved for I always hitherto believed that none of the Clergy had then any Votes in the Great or Common Council of the Kingdom but those Bishops Abbots and Priors who all held in Capite of the King alone and tho' it is true there was also a Synod or Convocation of the Clergy often held at the same time when the Common Council of the Kingdom was assembled yet was it no part of that Council and as the Clergy had nothing to do in the making of Temporal Laws so had the Laity no hand in the making of Ecclesiastical Canons or Constitutions for the Popes Legate or Arch-Bishop of Canterbury often held these Synods at other times when the Common Council of the Kingdom was not assembled at all and thus it continued till the 25th and 26th of Henry the 8th when the King was first by the Clergy in Convocation and afterwards by the whole Parliament recognized and declared Supreme Head of the Church of England under Christ and from that time the King reassumed the Power which the Pope had before usurped and his consent alone under the great Seal is the only Ratification of all Canons or Ecclesiastical Constitutions passed in either of the Convocations of Canterbury or York at this day F. I grant that for between three hundred and four hundred years the matter of fact hath been as you say but that it was not so from the beginning is also as certain for first in the Saxon times before the Popes Usurpation came in it is evident from the Councils or Synods I have now cited that the King had no more power to make or confirm any general Ecclesiastical Laws or Constitutions without the consent of the Wittena Gemot or Mycel Synod consisting of the Clergy as well as Laity than he had to make Temporal Laws without it So far were they in those times from having any notion of any personal Supremacy in the King in Spiritual more than in Temporal matters and that this continued so till the Pope did not only usurp upon the King 's Right but that of the whole Kingdom in general may appear by those Memorialâ— we have left us of such common Councils or Synods in the Reigns of our first Norman Kings For the Proof of which I shall begin with the Reign of William l. in whose 14 th Year the Priviledges of the Abby of Westminster were Confirmed by that King in a Common Council as well of all the Clergy as Laity of the whole Kingdom as may be proved by a Charter still to be sound at large in the Old Charâ—ulary of the Abby of Westminster now in the Corronian Library Collected by Sulcardus an ancient Monk of that Abby the Conclusion of which Charter of Priviledges makes it very plain of what Members this Council then consisted and who gave their Consents to the Acts of it which pray read In solemnitate Pentecostâ— haebito consilio in celeberrino loco praescripti Westmonast a nostra regia Majâ—sâ—ate Conventis in unum cunctis Regni nostri Primatibus ad audiendes confirmandas quosdam Synodalis decreti causas necessarias communi consensu maxime Episcoporum Abbatum alioâ—um insignium Procerum c. Scripta est haec Charta sigillata ab ipso Regâ— supradicâ—is personis testificata confirmat auctorizata in Dei nomine c. This being one of the first and most remarkable Councils of this Kings Reign I cannot let it pass without observing First That all the chief men of the Kingdom were there as well of the Clergy as of the Laity and that the Words Primates and Proceres here mentioned are very Comprehensive and may take in many others besides your great Lords and Tenants in Capite I have already proved at our last Meeting but one Secondly Pray observe that this Charter of Priviledges tho' all of them concern meer Temporal Things is authorised Confirmed by the common Consent and Subscriptions of all the chief men as well of the Clergy as Laity from all which nothing can appear more plain to me than that in the Reign of this King the Clergy and Laity made one Common Council without whose joynt Consents nothing could be transacted in the Legislative Whether of Ecclesiastical or Civil Concernment I could give you more Instances of this kind in this King's Reign but I make haste to that of his Son William II. in whose 7th Year Eadmeâ—â—s tells us there was a Common-Council held at Rockingham about the difference between Archbishop Anselme and the King at which were present Episcopi Abbates Principes ac Clericorum ac Laicorum numerosa multitudo noâ— that by Principes or Chief Men may be here meant many more than your Tenants in Capite I have already sufficiently proved and that this Numerosa multitudo must mean somewhat more than those I shall prove fâ—rther by and by In the long Reign of Henry I. I could give you many Instances of this kind buâ— let these suffiâ—e In the 7th Year of this King Bromton tells us in his History speaking of the Council in which this King gave up his Right of Investituâ—es Clero Populo ad Concilium Londoniae congregato and who this Clerus and Populus then were he immediately explains himself thus Astantibus Archiepiscopis Episcopis caeteraq multitudine maxima Procerum Magnatum under which words I have already proved that divers others besides your Tenants in Capite might be comprehended and their great number shews them to have been more than those But tho' this Author does not here expresly say it yet that the Inferiour Clergy were likewise at these Councils appears from Sim. of Durham and the Câ—ntinuator of Florence of Worcester A. D. 1126. being the 25. of this King where they both make mention of a Synod or Council held at London at which were
and had they been always a part of this Council pray tell me how they came to lose this Right since the Clergy in those days were not wont to lose any Right or Priviledge they enjoyed F. I have already granted that tho the Inferior Clergy have been no necessary Constituent part of Parliament for divers Ages last past yet does it not follow that therefore they never were so since they have lost this Right by Degrees and I shall now shew you by what steps it happen'd First therefore pray observe that anciently all Abbots and Priors whatever as well those that held in Capite as those that held in Frank Almoign were all summoned alike to the general Councils of the Kingdom as appears by the first Councils after your Conquest that we have any Monuments of nay it also appears from that very Writ of the 6 th of King Iohn if it were a Writ of Summons to Parliament which as I have already proved at our last Meeting it is most likely it was not whereby the Bishop is to summon all the Abbots and Priors of his Diocess none excepted and tho I grant that in the next Writ of Summons of the 26 th of Henry the 3 d to the Archbishop of York there is no Clause expressed of summoning the Abbots and Priors and other Clergy of his Diocess yet it is much to be doubted whether this were a Summons to Parliament or notâ— being without any Title of ad Parliamentum or Concilium But that the Abbots and Priors as well those that held in Capite as those that held in Frank Almoign were summoned to the great Parliament of the 49 th of Henry the 3 d appears by that List of their Names which both Mr. Pryn and the Dr. have Printed from the Roll nor ' do I believe that this was the first time that all these Abbots and Priors being 101 in all were summoned to Parliament notwithstanding your Drs. fancy that Simon Montsert summoned so many of them onely because he was sure of them since if we had the Rolls of the foregoing years as well as of this we should no doubt find little or no difference for by another List of the Abbots and Priors which the Dr. himself has given us of the 23 d of Edward the I. to the same Parliament above mentioned when the Inferior Clergy were likewise summoned there appears to have been seventy Abbots and Priors summoned to this Parliament of which not a third part ever held in Capite and tho divers of them then pleaded exemptions yet they were many of them such as held in Capite as well as those that did not as the Abbots of St. Edmunds Bury Waltham St. Albans Evesham c. all which as it is notoriously known held in Capite and were commonly summoned to all Parliaments afterwards now pray see how all this numerous Train of Abbots and Priors which Mr. Pryn confesses to have sometimes amounted to 122. who were summoned to some Parliaments and great Councils came to be omitted is to be ascribed chiefly to their own Petition and Desire when their constant attendance in Parliament when held every year and frequently oftâ—er was counted a burthen rather than an advantage by Reason of the great charge and trouble of coming to those Assemblies and their being bound to contribute to the general Aids that were then given the King and thence it is we find on the Rolls so many discharges upon their Petitions in Parliament that they did not hold of the King by Barony nor in Capite nay the Abbot of Leycester after serving in no less than 50 Parliaments yet in the 25 th of Edward the 3 d procured a writ of Exemption from the King Quod non compellatur venire ad Parliamentum the Lords in Parliament easily giving way to it since they knew that the fewer hands the Legislative Power was reduced to the greater still was theirs that remained to which may be added the Kings Pleasure who by degrees began to omit summoning of divers of the smaller Abbots and Priors before summoned since it has been the policy of our Kings to reduce their great Councils or Parliaments especially the Peers into as few hands as they could because they are then most easily managed and the Abbots and Priors never complained of it for the Reasons already given thus most of these came to be struck off by degrees till at last of all this numerous company of Abbots and Priors there were in the Reigns of Edward the 3 d. Richard 2 d. and Edward the 4 th and even to the dissolution of Monasteries under Henry the 8 th no more than 25 Abbots and two Priors viz. the Prior of Coventry and of St. Iohn of Ierusalem summoned to Parliament I have dwelt the longer on the History of these Abbots and Priors because it sufficiently confutes your Drs. Notion of none but Tenants in Capite appearing in Parliament But to give you some account of the Inferiour Clergy how they likewise might come to be often omitted out of the Writs of Summons to great Councils and not to make a constant part of the Parliament but onely of the Convocation this might happen two or three ways and that without any positive Law for it As in the first place pray consider the vast increase of Power which fell to the Bishops after King Henry the first had given up his Right of Investitures to the Pope by which means they depended not at all on the State and so took upon themselves a greater Power of imposing upon and making Temporal Laws for the Inferior Clergy in Parliament as if they had been their Representatives yet they could never represent all the Abbots and Priors who held in Frank Almoign for the Reasons already given as also because most of them were exempted from their Jurisdiction But that the Bishops could never impose Taxes upon the Inferior Clergy at their Pleasure without their express consents in Parliament or Convocation appears by this memorable Writ of 9 th of Edward 2 d to the Archbishop of Canterbury which Mr. Pryn has likewise given us by which it appears that divers of the Clergy had consented to grant the King a subsidy in the precedent Parliament but onely by Reason of the absence of the said Archbishops and others of the Prelates and Clergy it could not then be done and therefore the Archbishop is thereby ordered to call a Convocation for that purpose which had been needless if the Bishops alone could have Taxed the Inferior Clergy in Parliament or Convocation without their express Consents so that it is plain that in that Age they still retained a great share of the Supream Power viz. of not being taxed unless by Representatives of their own either in Convocation or Parliament as it continues to this day But to shew you further how the Presence of the Inferior Clergy and consequently their summoning to Parliament
became less necessary we must have recourse to the Bull of Popâ— Boniface the 8 th in the 24 th of Edward I. by which he forbad all the Clergy of the Western Church as well Superior as Inferior to give any more Taxes of Subsidies to Temporal Princes without his Holinesses Licence whereupon the King summoned the Bishops and Clergy to Parliament at St. Edmunds-Bury in the 24 th of â—is Reign where when they then reâ—used to grant him any supplies he then as all the Historians tell us held his Parliaments at Westminister Cum Baronibus suis excluso Clero without either Bishops Abbots or Inferior Clergy which was the first Precedent of this kind that we ever read of in this Parliament the King with the consent of the Lay Lords and Commons seized all the Temporalities of the Clergy as well Bishops as others and put them out of his Protection untill they were forced to redeem themselves by paying a 5 th part of their Moveables for doing of which they were afterward forced to procure the Popes Absolutions some of which Mr. Pryn has given us in this said Register and yet for all this the Pope maintain'd this Power over the Clergy for the future so that they could not be taxed without his express License which since it could not always be obtained no wonder if our Kings did more frequently omit summoning any more than the Bishops and Abbots who were bound to appear in Parliament by their Tenures and so left out all the Inferior Clergy as useless the main business and cause of their summoning to Parliament viz. giving of Money being now taken away by the Popes usurped Power tho whenever his Licence was obtain'd yet that their own express Consents in Parliaments or Convocation was necessary appears by that Passage in the Annals of Burton in Anno 1255. already cited when the Inferior Clergy being extravagantly opprest between the Pope and King they sent express Messengers when they met in Parliament who were to set forth their greivances to his Holiness I have given you as good an account as I am able how the Inferior Clergy which as well as the Superior did once make a Constituent part of our great Councils before the Conquest nay for above 200 Years after did at last cease to be so partly by the prevailing Power of the Bishops partly by the Usurpation of the Pope tho chiefly by their own silence and consent not complaining of their want of Summons to Parliament as long as they could 'scape scot free and all the rest of the Kingdom pay Taxes notwithstanding which the clause of their Acting and Consulting with all the rest of the Estates in Parliament still remaining in the Writs of Summons is a sufficient Monument to Posterity to prove their ancient Right And the Clergy of the lower House of Convocation was so sensible of this that among certain Petitions by them made to Dr. Cranmer then Archbishop of Canterbury and the rest of the Prelates in the higher House of Convocation in the Reign of King Edward the 6th the 2 d Article of which runs thus Also that according to the ancient Custom of the Realm and the Tenor of the Kings Writ for summoning of the Parliament which now and ever have been directed to the Bishop of every Diocess the Clergy of the lower House of Convocation may be adjoyned and associate with the lower House of Parliament or else that all such Statutes and Ordinances as shall be made concerning all matters of Religion and causes Ecclesiastical may not pass without the sight and assent of the Clergy and there is in the same place a second Petition as also a Paper of Reasons offered to Queen Elizabeth and after to King Iames to the same effect And lastly to shew you that the Government of the Church and State of Scotland was anciently all one and the same in respect of their Clergy as well as Laity with that of England in their great Councils or Parliaments appears by the Agreement between King Edward the â— and the States of Scotland concerning the Marriage of his Son Prince Edward with the Princess of Norway then Heiress of Scotland which is publisht at large in Mr. Pryns 1 st Vol. of the Popes Usurpation where you will find this Agreement to have been made between the said King Edward ex una parte venerabiles Patres custodes scil Scotiae Episcopos Abbates totum Clerum nobiles viros Comites Barones totamque communitatem Regni Scotiae ex altera de matrimonio contrabendo c. From whence you may observe that as the same stile was observed there in the Titles of their general Councils or Parliaments as with us and as the Inferior Clergy there put after the Bishops and Abbots did not hold in Capite but frank Abnoign in that Kingdom So likewise by the same Analogy between the lowest Temporal State with the Spiritual the Commonalty of Scotland here stiled Communitas Scotiae could not then consist onely of Tenants in Capite as your Dr. and those of this Opinion suppose it did M. I must confess you have shewn me more for the Inferior Clergies being once a Constituent part of the Parliament than ever I knew before I will take time farther to consider them but that the word Populus must needs then take in any more than the Tenants in Capite I much doubt since the other word Plebs which you so much insist upon from the old Book of Ely signifies no more than Populus which as the Dr. shews us in his Glossary In it self signifies neither Great nor little People but only Laity and therefore as it is used and restrained signifies either the Lay Plebs or the Lay Magnates as I can shew you by several Examples as particularly out of Mat. Westminster Ann. Dom. 1295. 23 d Edward I. where speaking how the Popes Legates were received in England who came to make up the differences between England and France He thus relates their Reception Quos in Regnâ— Angliae applicatos excepit Plebs debito honore accita per Regem apud Westmonasterium Primatum Optimatum suorum Caterva Here the Plebs were the Kings Great or Chief Men that is the Earls and Barons which he had called to Westminster who so honourably received these two Cardinals So likewise the same Author Ann. Dom. 1297. 25. Edward I. The King and Barons being at some difference about the Observation of Magna Charta and the Charter of Forrest speaking how the King declared that he intended to observe those Charters after this he relateâ— that the King thereupon required to be given him by the Incolae or Inhabitants the eighth Penny and says thus Articulos in praedictis Chartis Contentos innovari insuper observari Rex Mandavit exigendo pro hac Concessione ab Incolis Octavum denarium sibi dari qui mox Concessus est a Plebe in sua
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
It is evident from this Record meaning that of the 34th of Edw. I. abovementioned who were the Populus or People intended by the Historian in this place to wit the Comites Barones alii Magnates nec non Milites Comitatuum Now I desire to know whether the Knights of the Shires were not then Commoners as well as now tho' reckoned among the Magnates and as a Superiour Order to the Citizens and Burgesses here called by a general word Mercatores who then gave a 20th part of their Moveables by themselves But that the word Plebs does not only signifie the Lay Nobility but the Commons too in both the Quotations you have made use of out of Mat. Westminster is also as plain for in the first Instance concerning the Reception of the Legates is it to be imagined that none but Earls and great Lords accompanied them and that there were no Knights or Gentlemen amongst them and as for the words Primates and Optimates I think I have sufficiently proved that those do not only signifie the Lords or Greater Nobility but the lesser also Nay the Chief Citizens and Magistrates of Cities and great Towns As for the next Authority concerning the Plebs that Granted the Eigth Penny it is much more evident that the Commons as well as the Lords must be comprehended under that Term And that this is so I need go no further than the Dr's own Concession in the same place a little farther which you may read in these words And that the Agreement for the Confirmation of the Charters here mentioned was made and the Eighth Penny granted by the Earls and Barons and perhaps the Knights of Shires and that they were the Plebs that stood about the King in his Chamber is clear from the Writ of Summons of Parliament for two Knights in every County dated Septemb. the 15 th immediately following to come and receive the Confirmation of the Charters and his Letters that the paying of this Eighth Penny should not prejudice the Commons for the Future and to do further what by his Son and his Council should be Ordained So that the Dr. himself is forced to confess tho' sparingly that the Knights of Shires were likewise there and comprehended under the word Plebs at the time of this Grant The King held this Parliament at his Pallace of Westminster in some of the Halls or great Rooms and the Commons might very well sit in the now Court of Requests then called the Alba Aula or White Hall where Parliaments have been frequently held and from thence be sent for by the King into the Painted Chamber or now House of Lords where the King then sate and which might in respect of the Hall from whence they came be very well called Camera Regis for none can imagine his Presence Chamber or Bed-Chamber could hold all that Company and in that Room the King might make that Speech to them which this Author mentions and then upon his promising to renew the Charters followed the Granting of the Eighth Peny ab Incolis by the whole People immediately granted the said Subsidy Now the Dr. grants in this place That the Incolae here meant by the Historian were the Incolae Regni such Inhabitants as used to Pay Subsidies and Aids only the Plebs must here signifie the Lay Nobility Now if the Incolae Regni were such us used to Pay Aids and Subsidies who made this Concession can any Man doubt but that this Grant was made by their Representatives of the Knights Citizens and Burgesses for if the Tax was general upon the whole Kingdom as it appears it was can you imagine that the Citizens and Burgesses were not there present when this Tax was given as well as the Knights of the Shires since it was to be levied upon all alike Nor is the Dr's Objection of any weight That because the King not long after Summoned another Parliament when he was beyond Sea to meet his Son Prince Edw. at Westminster That therefore it was not probable that if the Commons had been at the Agreement and granting of the Eighth Penny in the King's Chamber they would have been dismissed and called again about the same business in so short a time seeing the Confirmation of the Charters was dispatched in Six Days when the Parliamement â—et October the Sixth For the Dr. is very much mistaken to imagine that this was the same Business they met about before when the very Writ of Summons shews the contrary For the Tax was given already and therefore they could not meet about that but the Truth was the King went away in haste into Flanders without Confirming the Charters So that before the People would give any more Money his Son Prince Edward was forced to confirm them as the Dr. himself confesses in the same place After the Confirmation of these Charters and that the Earls and Barons were satisfied But as for the Dr's wondrous discovery of the false bad Translation of the old French Coronation Oath I do so far indeed agree with him that the words le Commune aura elu are not to be translated which the Commons or Vulgar People but the whole Community shall chuse rendered here by the word Vulgus by the Old Monkish Translator yet this can by no means signifie only the Bishops Abbots Lords and Tenants in Capite for who ever knew the word Vulgus to signifie the Superior Clergy and Nobility and so to exclude the whole Body of the People in general But Mat. Westm. tells us Concessus esâ— viz. to Eâ— I Novenarius Denaâ—ius à Vulgo à Clero vero Denus ad Scotorum Pâ—rtinaciam reprimendam who had then invaded Northumberland and harrassed the other Northern Countries Now pray read the Dr's Comment upon these words in his Glossary Here Vulgus is the same with Populus and Plebs when opposed to Clerus or joyned with it as a Distinct Body of Men and Clerus Populus Clerus Plebs Clerus Vulgus are the Clergy and Layety in the meaning of this Historian whether the Earls and Barons alone or the Temporal Earls and Barons with the Commons were understood by them that is the Commons represented in Parliament and not the Multitude or Rabble Which indeed is a worthy discovery of the Dr's Nor do I know any body so mad as so to render it in the Coronation Oath but that this word Vulgus when put for the whole Layety of the Kingdom is very ancient in that Oath See the Old Coronation Oath in Toâ—tle's Collection of old Statutes who transcribed it out of some ancient Latine Copy of that Oath or else from that Clause in the Coronation Oath of R. Richard II. which is still to be seen upon record I beg your Pardon for speaking these so long upon the true signification of these words Clerus and Populus Plebs and Vulgus since there was a necessity for it by reason of those false glosses
what'were the Commons of England as now represented by Knights and Citizens and Burgesses ever an Essential Constituent part of the Parliament from Eternity before man was created Or have they been so ever since Adam Or ever since England was Peopled Or ever since the Britains Romans and Saxons inhabited this Island Certainly there was a time when they began to be so represented and that is the Question between us concerning which whether you or my self be in the Right I durst leave to any impartial Judge F. But notwithstanding your Drs. Answer I think under favour the King and Lords did here allow the Substance of this Petition or Claim as the main Ground and Foundation on which it was built viz. That the Commons had ever been Members of Parliament and therefore that no Law or Statute should be made without their Assents which encroachment upon their Liberties 〈◊〉 seems had been before endeavoured by the King and Lords and therefore let me tell you that the Answer of the King in Parliament is rather a full Concession of the Truth of the Commons claim otherwise it is not to be imagin'd that the King and Lords would have left such a Claim as of ancient Right without any denial or Protestation against it but instead of this the Kings and Lords allow the whole to be true onely the King reserved to himself his Negative Voice of granting or denying what he pleased which the Commons themselves do also allow him in the Conclusion to the Petition it self as you may see if you please to read it at large And father that this Affirmation of the Commons was no other then a Renovation or Memorial of the Ancient Law of the Land in that Point is more fully explained and Confirmed by a Petition to King Edward 2d in Parliament of all the Bishops Prelates Counts Barons and others of the Commonalty in the 18th of his Reign about an 10◠years before this of 9th Henry the 5th setting forth that they held their Mannours of the King Capite as well within the Forests as without to which Mannours they held Gasz i. e. Wast Appendant and of which the Seignories had been rented out by the Acre half Acre and Rude in improving their said Mannours and that thereupon the Officers of the King had made Seisure thereof because they had not the Kings License so to do and therefore pray that they may improve their said Mannours c. to which Petition it was answered by the King and his learned Council in Parliament that this could not be done without a new Law to do which the Commonalty of the Land will never Assent and concludes Infra coram Rege from whence I make these Observations that the King and his Council do here declare it as the ancient Custom of England that no new Law could then be without the Assent of the Commons or Commonalty of the Land and also that this Commonalty was a distinct Body from the Commonalty of the Tenants in Capite before mentioned And besides this I can shew you divers precedents to the same purpose and particularly a Declaration or Protestation to Edward 3d. by the Commons in Parliament that they would not be obliged to any Statutes or Ordinances without the Assent of the said Commons which is also farther confirmed by another Petition of right or a Protestation of the Commons to King Richard the 2d as it is to be found in the Parliament Rolls of 6th Richard 2d Pt. 1. m. 52. wherein they pray against a pretended Statute made by the King and the Lords against those who in the Statute of Henry the 4th are called Lollards in which they set forth that the said Statute was never assented to by the Commons and therefore pray that it be annulled and pray observe the Reason for that it was not their intent to be justified nor to oblige themselves or their Successors to the Prelates more than their Ancestors have been in times pass'd From all which we may observe that the Commons do by all these Petitions and Protestations make as strong a claim by Prescription for themselves and their Ancestors not being bound by the Acts of the Bishops and Lords as the King could make for himself and his Ancestors touching his own Prerogative by Prescription But as for your Queries on this Petition since they are not your own give me leave to tell you I look upon them as impertinent for who ever suppos'd that the Commons claim'd a right by Prescription ever since the Creation or ever since the first Peopleing of this Island since any Body may see that this Word ever is to be understood according to the Nature of the Subject in hand viz. from the first Institution of the Saxon Government in this Island now pray give me leave to put you a Case suppose you should affirm that the Crown of England hath ever been Successive and not Elective wou'd it not be meer Cavilling to ask you Whither it was so pure Divino ever since Adam but as you will leave it to any impartial judge who is in the Right you or I so shall I likewise leave it to them to consider which is most likely that your Self your Dr. and some of our Modern Antiquaries should make the House of Commons no ancienter than about the latter end of Henry the 3d or middle of Edward the 1st Reign or the constant Judgment of both Houses of Parliament with the Assent of the King and his Learned Council who have insisted upon the Consent of the Commons as their ancient and undoubted Right beyond all time of Memory M. I must confess you have proved it plain enough that it was the constant opinion of more than one Parliament that the Commons had been before the 49th of Henry the 3d Members of the great Council of the Nation But how long before that they do not set forth but since Parliaments are no more infallible than general Councils I hope you will pardon me if I do not give absolute Credit to their Testimony since in an illiterate Age as that was in which the Commons make this Petition it might happen that not onely they but the King Himself and his Council at that time might not certainly know how long or how little a time the Commons had been summoned to Parliament therefore since all the Writs of summons to them before the 49th of Henry the 3d are lost I pray shew me from this general Right of Prescription you so much talk of that there must have been any Commons summoned to Parliament before that time for I have now somewhat very Material out of Mr. Prins Parliamentary Register to Object against Mr. Lambard's Argument from the Plea of the Tenants in ancient demesne being exempted by Prescription from paying to the wages of Knights of the Shires as you told me at our last Meeting but one but first let me hear the rest of your Arguments from this
are the Bishops the Nobility and Civitatum delegati the Deputies or Commissioners of Towns and Cities For Sweden it comes near the Government and forms of Danemark and hath the same Estates and degrees of People as amongst the Danes that is to say Proceres Nobiles the greater and the less Nobility Episcopi Ecclesiastici the Bishops and inferiour Clergy Civitates Vniversitates the Cities and Towns Corporate for so I think he means by Vniversitates as Tâ—uanus mustereth them To which we may also add tho here omitted by this Author the Delegates of the Rusticks or Husbandmen who make a fourth Estate in the Assembly of Estates of this Kingdom And in this Realm the Bishops and Clergy enjoy the place and priviledges of the third Estate notwithstanding the Alteration of Religion to this very day the Bishops in their own Persons and a certain number of the Clergy out of every Sochen a Division like our Rural Deanries in the name of the rest having a necessary Vote in all their Parliaments And this Swedish great Council is the more remarkable because it comes very near our Constitution in England in which I proved the Inferior Clergy and the Commons not excepting the meanest Freeholders anciently had their Representatives So that it had been the strangest thing that could have been observed in all the Political Constitutioâ—s on this side of Europe if that of England tho descended from the same Gothick Original and founded according to the same model should have had no Representatives for the Commons or Plebians in their great Councils or Parliaments The Dr. here concludes with Scotland and England the former of which since you agree to have had from all times Citizens and Burgesses in their great Councils or Parliaments I need not repeat what is there since it is no more than what you your self have granted and as for England he owns as appears by the Passages I have already cited out of this Chapter that the Clergy Nobility and People were called to a Parliament held under Henry the ad at Clerkâ—nwell M I will not deny but there were Representatives of the Cities and great Towns in the great Councils or Assembly of Estates of all those Kingdoms you have now mention'd out of Dr. Heylins Treatise yet whether they were there from the very first Institution of those Governments is much to be doubted But since I have not now leasure to inquire into the Original of all these Kingdoms nor at what time each State began to come to these great Councils give me leave in the mean time to remark that all these Kingdoms except Sweden came nearer to that Constitution which we suppose to have been anciently in England and Scotland and also other Kingdoms where feudatory Tenures were observed and consequently none but the Chief Lords or Barons by Knights Service and that held of the King so that all those Foreign Councils or Dyeâ—s c. at first were all the same as consisting of Emperours or Kings with their Earls and Barons Bishops and great Officers as is evident from all the old German and French Authors and since Cities sent Deputies in Germany and Italy they were only from Imperial Cities the like I believe would be found in France and those other Kingdoms you have now mentioned but you cannot shew me unless in Sweden any Representatives elected by the Common People or Rusticks distinct from the Nobility and Gentry like our Knights of Shires in England So that I still doubt whether all the Representatives of the great Lords and other Nobility that appeared in the Councils of these Kingdoms were not all Tenants in Capite and no other F. That this is a meer surmise of yours I think I can easily prove for in the first place as for the Bishops Abbots and Clergy who still made the first Estates in all these Kingdoms nothing is more certain than that they never any of them held of the King by Knights Service and therefore could not 〈◊〉 in their great Councils by that Tenure that Institution being for ought as I know peculiar to England and introduced by your Conqueror as you your self acknowledge and as for the Temporal Nobility you will find that in France not onely those Noblemen that held of the King by Military Service but those who held in libero Alodio without any such Service at all had places either by themselves or their Deputies in the Assembly of the Estates so likewise for the Cities and Towns that sent Deputies to it I believe you will not find that any of them held of the King in Capite and to come to Germany you are likewise as much mistaken in fancying that all the Imperial Cities were Subject immediately to the Emperor before they became so for Hamburgh and Lubec were Subject to their own Princes the former to the Duke of Holstein and Sleswic and the latter to Earls of its own till at last they either purchased their Liberties they enioy from their Princes or else cast them off and were after received into the Body of the Diet by the Bulls or Charters of several Emperors and so likewise Brunswick was always a fâ—â—e City till it was united to the Empire by its own Consent I could shew you the like of several other Cities now called Imperial who held anciently not of the Emperour but either of their own Earls or Bishops tho I grant it was the Charters of the Emperor with the Consent of the Dyet that gave them a place in those Assemblies and tho it is true that in all the rest of these Kingdoms the meer Rusticks or Paisants have no Representatives in their great Councils yet this makes no Alteration in the Case if you please to consider it for the Nobility and Gentry are the only true and proper owners of the Lands of those Kingdoms all the Rusticks or Paisants being meer Vassals and in France almost Slaves to their Nobility and Gentry who as I have already said had all alike Votes in their Assembly of Estates as well those who held of the King in Chief by Knights Service as those that did not whereas it was always far otherwise in England where the meanest Freeholder was always as free as to his Person and Estate as the greatest Lord of whom he held and hence it is that we have had from all Times those of the degree of Yeomen so peculiar to England as Fortiscut in his Treatise de Laudibus Legum Angliae takes notice who if they lived on their own Lands had no more dependance on the Noblemen and Gentlemen than they have now and therefore it was but Reason that these should have their Representatives in Parliament as well as the Inhabitants of the Cities and Burroughs who had most of them a far less share in the Riches and real Estates of the Kingdom Secondly Pray take notice that in the rest of the Kingdoms of Europe except
from that 7th Edward the First I think that can by no means do the business for which you design it for in the first place this is only Declaration of the Bishops Lords and Commons of the Land that it belongs to the King to defend i. e. forbid all force of Arms but mark Sir what force sure it is only meant of such Force as belongs to the King's Prerogative to forbid viz. force of Arms against the Publick Peace and such as he might punish according to the Laws and Usages of the Realm and therefore the Statute expresly declares that as Subjects they are hereunto bound Aid him their Soveraign Lord the King at all times when need shall be but does this Act any where say that he hath an Irresistible Power to disturb this Peace by his own private Illegal Commissions or that any men are bound to assist him in it or because for example he hath Authority to punish all men according to Law that shall come to Parliaments with force of Arms that therefore he hath an unlimited power of raising what Forces he would and in prisoning or destroying the whole Parliament if he pleased and that no bodâ— might resist him if he had gone about so to do The like may be said if the 〈◊〉 should notoriously and insupportably by force invade all the Civil Liberâ—â—â—â— and Properties of his Subjects by Levying Taxes and taking away theâ—r Estates by down-right Force contrary to Law now can any body in his senses believe that the Act of 25th of Ed. 3. was made to prevent all Resistance of suâ—h Tyrannical Violence and that the Resistance of those Forces whether forreign or domestick that might be sent by the King 's private Commissioners to murder or enslave us is making War against his Person or that it comes within any of the Cases expressed in that Statute and therefore cannot fall within the compass of Sir Edw. Coke's Comment upon this Staâ—ute all the offences therein specified being Treasâ—ns at Common Law before that Statute was made nor is the Reformation there mentioned to be understood of a just and necessary Defence of our Lives Liberties Religion and Properties as setled and established by the Laws of the Land to be looked upon as making War against a weak or seduced King but is rather in defence of him and the Government by opposing Tyranny which will certainly bring both him and us to Ruine at last so the Reformation he there mentions is only to be be understood of such Insurrections and Rebellions as have been made under the meer pretence of Religion or obtaining greater Liberties for the common sort of People than they had by the Law of the Land such as were the Rebellions of Wat Tyler in King Richard the Second and Mortimers in Hâ—â—ry the 6th Reigns not to mention the other Rebellions raised by the Papists in the times of King Henry the Eighth Edward the Sixth and Queen Elizabeth's Reigns all which being begun by Seditious or Superstitious men were certainly rank Rebellions and so are and ought to be esteem'd by all good Subjects M. I grant these pretences seem very fair and specious yet notwithstanding this your pretended right or a necessity of Resistance of the King or those commissioned by him in case of Tyranny has been still looked upon as Rebellion in all Ages and the Actors dealt with accordingly where ever they were taken F. I do not deny but as long as Arbitrary and Tyrannical Princes could get the better of it and keep the Power in their own hands they still Executed for Traytors whosoever opposed or resisted their wicked and unjust Actions tho' they were never so near Relations to them thus both Edward and Richard the Second put their Uncles the Dukes of Lancaster and Gloucester to death meerly because they joyned with the rest of the Nobility and People to prevent their designs So that it is not the Execution of the Man but the Cause that makes the Traytor since Princes are seldom without a sufficient number of Judges and Jury-men to condemn whomsoever they please to fall upon But that the Clergy Nobility and People of England have always asserted this right of Self-defence in case their Liberties and Properties were uniustly invaded by the Tyrannical or Arbitrary Practices of the King or those about him I think I can prove by giving you the History of it in so many Kings since your Conquest as will render it indisputable if you please to give me now the hearing or else to defer it till the next time we meet M. I confess I was so weary of sitting up so long at our last Conversation that I made a Resolution not to do so any more and therefore since it grows late let us leave off now and I promise to meet you here again within a night or two and then I will hear how well you can vindicate your right of Resistance from Law or History but if you have no better proofs for it than the Rebellion of the Barons in King Iohn and Henry the Third's Reigns you will scarce make me your Convet since Impunity does never sanctifie a wicked action or render it the more lawful and you have already given it me for an Axiom that a facto ad Ius non valet consequentia F. I accept of your Appointment with thanks but pray do not forâ—judge my Arguments till you hear them and as for the Axiom I allow it for good provided I may urge it in my turn but in the mean time I shall wish you good night M. And I the same to you FINIS Bibliotheca Politica OR A DISCOURSE By WAY of DIALOGUE Upon these Questions Whether by the ancient Laws and Constitutions of this Kingdom as well as by the Statutes of the 13th and 14th of King Charles the II. all Resistance of the King or of those commissioned by him are expresly forbid upon any pretence whatsoever And also Whether all those who assisted his present Majesty King William either before or after his coming over are guilty of the breach of this Law Collected out of the most Approved Authors both Antient and Modern Dialogue the Ninth LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford Arms where also may be had the First Second Third Fourth Fifth Sixth Seventh and Eighth Dialogues 1693. Authours chiefly made use of in this Dialogue and how denoted in the Margin Dr. Sherlocks case of Resistance S. C. R. Mr. Iohnsons Reflections upon it I. R. S. Dr. Hick's answer to Iulian Intituled Iovian H. I. I desire the Reader to remember that whenever I make use of the word People in this or the following Discourse I mean thereby the whole diffusive body of the Nation consisting of the Clergy Nobility and Commons The PREFACE TO THE READER I Must beg your pardon if I have exceeded my intended design in the Preface to the first of these Dialogues of reducing what I had to say on the
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
against those that are Commissioned by him in pursuance of such Military Commissions and it is also to be noted that all Mayors of Cities or other Corporations were obliged by a former Statute of the 13th of this King to take the same Oath From both which Statutes and Declaration we may draw these Conclusions First That the Militia i. e. the Command of all Military Forces and War-like Affairs are declared to be wholly in the King Secondly That either or both Houses of Parliament cannot make any War offensive or defensive against him c. Pray mark that Thirdly That the contrary practice hath tended almost to the destruction of this Kingdom and that many evil and Rebellious Principles whereof this without doubt is intended for the chief have been instilled into the minds of the People c. And lastly That in pursuance thereof all persons above-mentioned were not only obliged to renounce taking up Arms against the King upon any pretence whatsoever but also against any that shall be authoriz'd by the King 's Military Commissions without any Exceptions And it is farther Enacted That all Clergy-men should be obliged to take this Oath as well as the Laity and it is likewise there ordained That all Clergy-men who were to enjoy any Livings or Preferments in the Church were likewise for the space of Twenty Years next ensuing obliged to subscribe this Declaration so that it is no wonder if the Loyal Clergy of the Church of England think themselves not only tied by the Express Rules of Scripture but also by the Laws of the Land strictly to observe this great Law of Passive Obedience and Non-Resistance Now pray see here the Doctrine of Non-Resistance in its full amplitude yea this very Doctrine declared to be the Law of this Kingdom and that by two express Acts of Parliament And can you think the Two Houses were not in earnest when they made this Declaration surely had they not been so they had been very ridiculous to jest with all our Laws and Liberties had they not been I say verily perswaded of the truth of this Doctrine by Law as well as by Scripture So that I hope you must now be forced to confess that even our own Representatives have solemnly renounc'd for themselves and the whole Nation all right of Resistance so much as defensive against those Commissioned by the King upon any pretence or occasion whatsoever and we have left us nothing whereby to defend our selves against our Kings or those Commissioned by them no not if they never so much abuse their power but the old Primitive Artillery of Preces and Lachryma F. As for what you have more than once said that this Doctrine of Resistance if carried home always ends in the Deposition and Murder of the King tho' it hath I grant sometimes happened yet that has not been always so but most often to the contrary as appears in those Resistances that were made in the Reigns of King Richard the First Henry the Third Edward the First and divers times in Edward and Richard the Second's Reign before things were driven to that extremity as they afterwards were and as I will not justifie the Deposition of those Princes tho' done by Parliament yet will I not absolutely condemn them since no Act of Parliament hath as I know ever done it And tho' it is true all the proceedings in Parliament against Edward the Second are taken off the Rolls yet was it not done by Order of Parliament but by Richard the 2d alone when he by his exorbitant courses feared to be served after the same manner but that there was in those times some Ancient Law extant which was also destroyed by that King appears by that remarkable Declaration of the Lords and Commons in Parliament sent by way of Message to the King then wilfully absenting himself from the Parliament by the Duke of Gloucester his Uncle and the Bishop of Ely who sure were too great to tell so notorious a Lye The Speech you will find at large in Knyghton beginning thus Domine Râ—x And after many Petitions and good Advices at last thus concludes which I shall give you in Latine Sed unum aeliud de animo nostro superest nobis ex parte Populi vestri vobis intimare habint enim ex antiquo Statuto de facto non longe retroactis temporibus experienter quod dolendum est habito si Rex maligno Consilio quocunque vel inepta conâ—â—macia aut contemptu seu protervae voluntate singulari aut quovis modo irregulari se alienaverit à Populo suo nec voluerit per jura Regni Statuta laudabiles Ordinationes cum salubri Consilio Dominorum Procerum Regni gubernari regulari sed captiosâ— in suis inâ—anis Confiliis propriam voluntatem suam singularem proterve exercere tunc licituâ— est iis cum comâ—uni assensu Populi Regni ipsum Regem de Regali solio abrogare propinquiorem aliquem de stirpe Regis loco ejus in Regni solio sublimare From whence you may observe that the Lords here relate to an Ancient Statute or Law then in being tho' the execution of it on the person of his great Grand-father Edward the Second was but of times not long passed and that King Richard might as well destroy the Record of that Law being not then commonly known or in private mens hands as well as he did divers other Records as appears in the 24th Article against this King wherein it is set forth That the said King had caused the Rolls of the Records touching the State and Government of this Kingdom to be defaced and razed to the great prejudice of his People and the disinherison of the said Realm c. So that nothing is more certain than that the Two Houses of Parliament at that time did look upon it as their undoubted right to Depose the King in case he violated the Fundamental Laws and Constitutions of the Kingdom tho' how this could consist with that Power which the King then exercised of calling and dissolving Parliaments at his pleasure I do not understand since it can never be supposed that a King if in full power would permit a Parliament called in his name to sit to Depose himself for Evil Government As for the Resistance made by the Two Houses against King Charles the First I shall not undertake to justifie for the Reasons already given as also because it it was not a War undertaken by the general consent of the whole Kingdom but carried on chiefly by the Puritan or Presbyterian Party For tho' the City of London and many other great Towns were for the Parliament yet it is also certain that the major part of the Nobility and Gentry of England fought for the King and were so considerable a number as to make an Anti-Parliament at Oxford so that this War could never have happened had not the King parted with the power of
disobeying of the Parliament out of his hands much less will I justifie the Murder of this King or of any others above-mentioned as being no necessary consequences of that Resistance I only allow for lawful viz. that of the whole or major part of the Nation nor were Edw. the Second or Richard the Second put to death by any Act or Order of Parliament but were murdered In Prison and the Murderers of Edward the Second were afterwards attainted by Act of Parliament and Executed as they deserved But as for the Murder of King Charles the First it is not to be taken into this account it being not done by the Authority of the Lords and Commons in Parliament but by a Factious Rump or Fag-End of the House of Commons who fate by the power of the Army after far the major part of the Members who were for the King were shut out of doors and the Lords Voted useless and dangerous M. I confess you have made as good an Apology for these Actions as the matter will bear but that neither of the Two Houses can at this day have any Coercive Power over the King or to call him to an account for any thing he has done appears by the express Declaration of both Houses in the Statute of the 12th of Charles the Second as also in those but now cited in which they utterly disclaim all making War whether offensive or defensive against His Majesty much less can he be subject to any other Coercive or Vindictive Power or ought any ways to be resisted by private persons therefore supposing I should grant as I do not that the Parliaments had formerly a power of Deposing of their Kings or that the Clergy Nobility and People had formerly a right of taking up Arms against the King in case of notorious Tyranny and Misgovernment yet is all such Resistance expresly renounced and declared unlawful by the Oath and Declarations now cited so that tho' in the dark Times of Popery such Resistance might be counted lawful not only by Laity but also by the Bishops and Clergy who ought to have taught the people better Doctrine yet I think it had been much better for the Nation to have endur'd the worst that could have happen'd from the Tyranny of Kings than to have transgrest the Rules of the Gospel and the constant Doctrine of the Primitive Church by Resistance and Rebellion against the Supreme Power of the Nation F. I shall not now maintain that the Two Houses of Parliament have any Authority at this day to Depose the King or maintain a War against him upon any account yet that they have still a power to judge of the King's Actions whether consonant to Law or not and whether he has not broke the Fundamental Constitutions of the Kingdom is no where given up as I know of But that Resistance in some cases is not contrary to the Doctrine of the Gospel I have already proved and that it was not directly contrary to the Laws of the Land before these Statutes you do partly grant But since the main strength of your Cause lies in this Oath appointed by these Acts of Parliament therefore if I can give a satisfactory Account of the true meaning and sense of these Acts to be otherwise than you suppose I hope you will grant that Resistance may still be lawfully made by the whole body of the people in the Cases I have now put against any persons who under colour and pretence of the King's Commission should violently assault their persons in the free exercise of their Religion as it is by Law Established or should go about to Invadeâ— their Just Liberties and Properties which the Fundamental Laws of England have conferr'd upon every Free-born Subject of it And in order to the clearer proof of this I shall make use of this Method I shall first explain the Terms of this Declaration and then I shall proceed to shew you that in a legal sense all Defensive Arms or Resistance of the King's Person in some cases or of those Commissioned by him is not forbidden nor intended to be forbid by these Statutes and Declarations First then By taking Arms against the King is certainly meant no more than making War against the King according to the Statute of the 25th of Edward the Third which declares making War against the King to be Treason and this is unlawful upon any pretence whatsoever Secondly The Clause by his Authority against his Person is only to be understood of the King 's Legal Authority and by his Person is meant his Natural and Politick Person when acting together for the same ends as I shall shew you by and by So that both these Statutes are but declaratory of the Ancient Common Law of England against taking up Arms and making War against the King and do not introduce any new Law concerning this matter so that whatever was Treason by the Statute of the 25th of Edward the Third is Treason by these Statutes and no more viz. all taking up Arms or actual making War against the King in order to kill depose or imprison him c. as Sir Edward Coke shews us in his third Institut in his Notes upon this Statute yet notwithstanding after this Statute of the 25th of Edward the third the Clergy Nobility and People of England assembled in Parliament did suppose it still lawful to take up Arms against those illegally Commissioned by the King in case of notorious Misgovernment and breach of the Fundamental Laws of the Nation as appears by that general Resistance made by reason of the evil Government of the Duke of Ireland and those concerned with him in the 11th of Richard the Second which as I have already proved was allowed for lawful by Act of Parliament and consequently by the King 's own consent without which it could never have been so declared The like I may say for that Resistance which was made in King Henry the Sixth's Reign by Richard Duke of York and the Earls and Barons of his Party agaist the Evil Government of the Queen and the Duke of Sommerset who governed all Affairs in an Arbitrary and yet unsuccessful manner by reason of the easiness and weakness of King Henry But tho' this Resistance was also approved of in the next Parliament of the 33d Year of this King yet I shall not so much insist upon it because I know you will alledge that this was made by the lawful Heir of the Crown against an Usurper since the Crown was not long after adjudged to be his right tho' King Henry was allowed to wear it during his life yet however it shews the Opinion of the Clergy Nobility and People of England at that time concerning the lawfulness of such Resistance before this Declaration of the Estates of the Kingdom concerning the Legality of the Duke of York's Title was made in the Parliament above-mentioned Thirdly That the Parliament by these Statutes of the
13th of Charles the Second for the Militia never intended thereby to enable or leave it in the power of that King or his Successors to make this Kingdom an absolute Despotick Monarchy instead of a limited one as they must have done had they declared that the King and those Commissioned by him might do what they pleased with the Religion Lives Liberties and Estates of the People of this Nation and that it was Treason to resist in any case whatsoever sure they could not but remember that Commission of Sir Phelim Oneals in the year 41. whereby he pretended to be impowered to drive the English Protestants out of Ireland and to set up the Popish Religion in that Kingdom and restore the Irish to their Estates and sure divers of them could not be unmindful that this was to give away all right of Self-defence in case any future King should by his own innate Tyrannical Temper or the evil Counsel of wicked men be perswaded to use Force upon the persons of the Lords and Commons either whilst they were actually sitting or in their passage to the New Houses since by this Act or Oath if understood in your sense they must have barred themselves and the whole Nation of all right of Self-defence in any case whatsoever tho' of the greatest extremity and therefore I doubt not but the intent of this Parliament was to leave things as they found them and as it was absolutely unlawful for the People of this Nation to take up Arms against the King so it is also as unlawful in him or those Commissioned by him to make War upon the People or to disseize them by force of their Religion just Rights Liberties or Estates and if the King hath a right to defend himself and his Crown and Dignity against Rebellion so must the People of this Nation have a right likewise to defend themselves against Arbitrary Power in case of an Invasion of any of the Fundamental Rights above-mentioned or else all bounds between a Limited and Despotick Power will be quite taken away and the King may make himself as absolute as the King of France or great Turk whenever he pleases M. I will not dispute with you about bare matter of fact or that a prevailing Faction might not in turbulent times and during the Reigns of weak and ill advised Princes take upon them by force of Arms to remove Evil Counsellors and to put the Government of the Kingdom in what hands they pleased and then procure Acts of Parliament to indemnifie themselves for so doing yet I cannot allow that even such Acts could make it lawful to take up Arms against the King or those Commissioned by him upon any pretence whatsoever So that tho' I grant that the intent of this Parliament of King Charles the Second was not to make any new Law against Resistance or taking up Arms against the King yet was it their design so to explain the Ancient Statute of the 25th of Edward the Third that none should for the future doubt in the least that all taking up Arms or Resistance of the King or those Commissioned by him upon any pretence whatsoever was unlawful and treasonable and for this we need go no farther than the very words of these Declarations which the Parliaments of the 12th and 13th of Charles the Second have made concerning this matter as first in the Statute of the 12th of Car. 2. Cap. 30. for attainting the Regicides that two Houses of Parliament expresly declared That by the Fundamental Laws of this Kingdom neither the Peers of this Realm nor the Commons nor both together in Parliament nor the People collectively or representatively nor any other persons whatsoever ever had hath or ought to have any Coercive Power over the persons of the Kings of this Realm Whereby not only all the Traiterous Examples of the Depositions and Imprisonments of King Edward and Richard the Second are expresly condemned but also all taking Arms to force the King to redress our grievances whether he will or not And farther that all Arms whether offensive or defensive are expresly forbid Pray mind that Clause in the Preamble to these Acts of the Militia I now mentioned wherein that Parliament expresly renounces all taking up Arms as well defensive as offensive against the King and the words of the Oath it self are yet more strict that it is not lawful upon any pretence whatsoever to take up Arms against the King Now can any thing be plainer than that all defensive Arms tho' for our Religion Lives and Liberties or whatsoever else you please are expresly declared to be against the Fundamental Laws of this Kingdom But as for the dreadful consequences of this Law if never so strictly taken they are not so bad as you are pleased to fancy for as to your instance of Sir Phelim Oneal's pretended Commission from King Charles the First you may be very well satisfied that it was a notorious piece of forgery since besides that good King 's constant denial of any such Commission granted by him Sir Phelim when he came to suffer in Ireland for raising that horrid Rebellion did voluntarily at the Gallows acknowledge that he had forged it himself by putting the Seal of an old Patent which he had by him to that pretended Commission you now mention Nor indeed can it ever enter into my head that any King should grant a Commission to destroy or make War upon his People as long as they continue in their duty to him tho' of a different Religion from himself tho' perhaps he may think fit for some reasons to disarm them or deny them the publick Exercise of their Religion or render them uncapable of bearing any Offices of publick Trust in the Kingdom but if these should be lawful Causes of Resistance why the Papists should not be allowed it as well as the Protestants I can see no reason to the contrary As for your other Instance that the Parliament by renouncing all defensive Arms must be supposed likewise to give up all right of Self-defence in case the King or any Commissioned by him should use any violence to the persons of the Lords and Commons assembled in Parliament or in going thither this is so unlikely and remote a case that it hardly comes under the consideration of a bare possibility But however let the worst that can be happen I am very well satisfied that the Parliament was then so thoroughly convinced of the Mischiefs had befallen this Nation by this Republican Doctrine of Resistance having been the cause of the destruction of the best Constituted Church and Government in the World as also of the murder of one of the best Princes that ever Reigned that they were resolved rather to trust to the Coronation Oaths and innate goodness of our present and future Kings than to suppose any War could be lawfully made against them upon any account whatsoever which would have been expresly contrary not only to
the Doctrine of the Church of England but the known Laws of the Land F. I do not deny but the persons of the Kings and Queens of this Realm are and ought to be sacred and inviolable and yet no man will therefore say that they are irresistible too in all cases whatsoever as if the King for example should attempt to ravish Women or rob or murder men upon the High-way or in the Streets as the Ancient Historians relate of Nero and Commodus the Emperours and as is reported of the last King of Portugal and which was one of the reasons of the Estates of the Kingdom removing him from the Government And as our Henry the Fifth is related by our Historians to have robbed Men upon the High-way before he was King so if he had gone about to continue the same frollick after he came to the Crown I do believe his Person and all those that Robbed by his Commission had not been irresistible nor would it have been Treason within the Statute of the 25th of Edward the Third tho' he was then actually King any more than it would have been Treason had the like happened when he was Prince tho' he was expresly within that Statute and yet this would not have contradicted the Parliament◠Declaration in the 12th of Car. the 2d That neither the Parliament nor the People having Coercive Power over the persons of the Kings of this Realm since by Coercive Power must be here understood his being subject to the penalties of the Law or being called to an account by any ordinary Jurisdiction but there is a vast difference between that and Resistance for Self defence since I may use this against the violence of my Father in the State of Nature as I have already proved tho' I cannot justifie the punishment of my Father or calling him to an account as his Superiour therefore it is only in the King 's Politick Capacity that he can be said to do no wrong since you see he may personally commit the greatest Crimes imaginable tho' his person is unaccountable for want of a Superiour Power to call him to an account yet is it not so with those who act by his Illegal Commissions or Commands since having delegated the Executive part of his Regal Power to his subordinate Ministers and Officers 't is they that are accountable and punishable too by the Law of the Land in case they any way transgress or violate it by his illegal Commissions or Commands as I shall prove more at large by and by And as no War properly so called can be made against a single person but against a Man as he is aided or assisted by many others So this War against the King can only be interpreted of such Wars or Rebellion as are made against him in his politick capacity as he is King and Supream Governour of the Realm and the Commander of all the Militia thereof to Legal intents and for the defence thereof against Forein or Domestick Enemies nor was there any great fear according to the Ancient Legal Constitution of this Kingdom that this could often fall out or indeed he put in practice by the Kings of this Realm if we consider the Ancient Form of ordering the Forces or Militia of this Kingdom For in the first place I desire you to observe that by the Common Law of England before these Acts of the Militia the King himself could not but in case of Invasion or Insurrection Levy or keep on foot any standing Forces in England unless for Forein Succours which was usually by Contract with some great Lord or other Person or by Tenure against the Scotch and Welch and as for the Militia it was never reduced into Troops Companies or Regiments till the Spanish Invasion as will appear by all Acts of Parliament in the Statutes at large where Acts for the Assize of Arms were made only for Men to provide and have in readiness such Horses and Arms to shew them before the King's Commissioners when they should be required to take view of them a Regimented Militia being of no elder date than Queen Elizabeth King Iames the First did by Act of Parliament in the first year of his Reign repeal all former Acts for Assize of Arms and never established any thing in 〈◊〉 thereof So it stood till King Charles the Seconds time that these new Acts for the Militia wer made And to confirm this point beyond all dispute in all the quarrels between the King and the Barons and York and Lancaster the Parliament still refused to meet unless the Forces were disbanded that were raised upon those occasions Nor had any King standing Forces or Guards till King Henry the Seventh◠Time when that of the Yeomen was settled by a special Act of Parliament and what is most remarkable the Commons in the Long Parliament of Charles the Second did by their Votes entered upon their Journals declare and assert that by Law no Armed Force could be kept up in time of Peace except the Militia and as for Foreign Succours they were obliged to be carried immediately to the Port of their discharge and were not to exceed one Month at furthest from the time of their first Muster as for Castles and Forts within the Realm they were all supplied and defended by Tenures but for the Militia of old time it was in the Sheriffs of the Counties to make use thereof for the Execution of the Laws and defence of the Kingdom except in the cases aforesaid and it was Treason for any Subject to Levy Souldiers except by the King's Commission and in the cases aforesaid or so much as to Ride or go Arm'd as may appear by the Statute of Northampton in the 2d of Edward the Third much less was it lawful for them to take up Arms unless in their own defence against Illegal Violence and in such manner as the Law directs and it was one of the Articles that was adjudged to be Treason in Parliament against Mortimer that he Rid Armed to Parliaments and threatned the Prelates and Peers that did any thing against his will and caused the King to make War on his Nobles who advised the King to Levy War upon his Subjects See Coke's 4th Institutes Title Council-board where the 4th Article against the Spencers is that they falsly and maliciously had counselled the King to raise Horse and Arms in destruction of the good People against the Form of Magna Charta and so by their Evil Counsel would have moved War within the Realm to the destruction of Holy Church and of the People for their proper quarrel so that taking Arms by the King against his Subjects and the Subjects against the King was both alike against Law 2ly That taking Arms against the King in construction of Law is Levying War but this by no means extends to defensive Arms in maintenance of the Law which is allowed and enjoyned and that nothing else was here mean is plain
Question pray therefore satisfie me if you can those great Objections I have made First how this Resistance can consist with with that sacredness and inviolableness which you your self suppose to be due to the Kings person for either this Resistance in case of an invasion of our Civil Rights must be made even when the King's Person is actually present to back those Illegal Commissions or it must be forborn out of that due Reverence and Care of his Royal Person which the Law enjoyns If the former the King's Person is in danger to be destroyed whenever a factions Party is strong enough to rise in Arms and oppose the King's Commissions upon pretence of their being against Law But if on the other side this Resistance is not allowable when the King's Person is present then all such Resistance will signifie nothing since as soon as ever the King in Person shall appear in the Field to back his Commissions all your Defensive Arms as you call them must be immediately laid down unless they mean to destroy the Sacred Person of the King So that take it either way all Resistance is either Illegal or else unpracticable Secondly I can as little understand as I told you before how the Two Houses of Parliament should renounce all taking up Arms as well offensive as defensive against the King for themselves and yet should leave a Power in the diffusive Body of the Nation nay in any part thereof strong enough to make a Rebellion which they thought unlawful to exercise themselves Lastly By what Legal Authority the People or any part of it can justifie the taking up even defensive Arms since you your self acknowledge that no Arms can be taken up regularly but by the King's Authority and you have also disclaimed all taking up of Arms by his Authority against his Person or against those Commissioned by vertue of such Authority tho' I confess you except the Cases of Self-defence and in maintenance of the Law yet I cannot find those Exceptions allowed of in any of our Law-Books either ancient or modern F. I hope to give you such Satisfaction to every one of these Objections you have made as may serve any indifferent person therefore as to the first concerning the Sacredness of the King's person which I allow of as well as you we must in the first place distinguish between such Commissions as the King â—ssures by colour of Law when the Judges for example had given their Opinions in the Case of Ship-money for they being the sole Interpreters of the Law in the Intervals of Parliament I do acknowledge that their Determinations are not to be opposed by force but legally reversed when the next Parliament meeâ— and they are then to answer in Parliament for their false Interpretations and Opinions as Tresillian and his Companions did in the 11th of Richard II. and as the Ten Judges did upon the two Houses Declaration against Ship-Money and their Impeachment thereupon Thus tho' Mr. Hammpden refused to pay Ship-Money when demanded of him and rather chose to lye in Prison than pay it yet it had been downright Rebellion in case any resistance had been made by him against the levying of it But had this Tax been laid by the King 's sole Power without such colour of Law I doubt not but resistance might have been made even against those that were Commissioned by Him to levy it and if any one Town or Hundred were not strong enough to seize such Officers as presumed thus to levy it against Law the Sheriffs of every County in England might have raised the Posse Comitatus and seized all such Offenders and carried them to Jayl since the King's Commissions never did nor can indemnifie the persons so Commissioned in case the thing they were about to execute was contrary to Law and for this I need go no farther than the Old Mirror of Iustices which is owned for good Law at this day which speaking of Robbery and the several Kinds thereof has this passage which I shall here render out of the old Law French Into this Offence viz. Robbery all those fall that take other Mens Goods by Commandment of the King or any great Lord without the Owners consent Where you see there is no difference at all made between those that took away other Mens Goods by the Command of the King or any other but it was Robbery in all of them alike and consequently the Actors might be alike seized and punished as Robbers The same is also allowed by the Statute of the 20th of Henry the 6th whereby the King's Purveyors are forbid to take any thing to the value of 40 s. or under without ready Payment in hand of any person 〈◊〉 that it then should be lawful for every one of the King's Liege-People to retain their Goods and Chattels and to resist such Purveyors and Buyers So likewise the last Clause in this Oath viz. In pursuance of such Military Commissions seems to restrain it to such Commissions as were granted by the King's Authority that is according to Law and no other So that you see by the old Law of England the King's Commission did not render any man irresistible unless he executed it according to Law since the Constable of each Town might raise the Inhabitants thereof to seize such Wrong-doers and if they were not strong enough the High-Constable of the Hundred might raise the whole Hundred and in case they were not sufficient the High Constable might crave Aid of the Sheriff and assemble all the several Hundreds of the County till these Malefactors were seized So that as long as there were no standing Forces kept up in the Nation as I have shown you there was not till the Reign of King Charles the Second there could never be my Clashing between the King 's Civil and Military Commissions and this is one great Reason why no King of England since the Act de Tallagio non Concedendâ— was so hardy as to issue any Commissions to levy Money without colour of Law because they knew they were void in themselves and consequently would be resisted by the whole Nation So that this would not have been taking up Arms by the King's Authority against those Commissioned by him but only in order to bring those to Justice who had not any Commissions at all to do what they did the Law taking no Cognizance at all of the King 's Personal Commissions when absolutely against Law Nor if the King had joyned his own Presence to such illegal Commissions would it have mended the matter or rendered these Robbers of other mâ—â—â— Goods any more irresistible than they were before since the King can give no mâ—n Authority to do that which he has not Power to do himself and therefore face his single Person may be resisted in case he go about to Ravish Rob or Murder People then sure his joyning himself with such Men tho' never so numerous can never make
should be perswaded by some very ill men about him to play this or the like trick whenever he had a mind to favour one party more than another and so should hinder the execution of the Law whenever he pleased can you think the Nation would long endure this without any resistance Or suppose to make the Case more general the King should undertake to lay a Tax upon the whole Nation without consent of Parliament and fearing it should not be Levyed should resolve to do it by his Officers and Soldiers of his Standing Army and lest they should be resisted should march with them in person from one County throughout to another to see the Money raised Do you think the whole Nation out of pure deference to the King's Person were bound to permit him to do whatever he pleased and let the Soldiers take this Tax which they were certainly not obliged to Pay had he not been personally there M. Yes I am of that opinion that they ought for it were better to Pay it then that a Civil War should happen about it in which the King's Person as well as the Government may be destroyed F. I see you are of this opinion because you fancy that the whole Government consists in the King's Person alone which it does not but in the Legislative Power which is not in the King alone but in the King together with the Lords and Commons assembled in Parliament Therefore you are mistaken in supposing that this Resistance must needs alter the Frame of the Government since it is undertaken to maintain the fundamental Constitution of it for if the King may take what Money he pleases from the People and make what Laws he will without the Parliament and without supposing it lawful to resist him if he does the Fundamental Constitution of this Kingdom will be but a Jest considering how light some Princes make of their most Solemn Declarations to their People nay their very Coronation Oaths now adays And it is a strange Paradox that one man may defend his Life and Property against the King's single Person in case he go about to Rob or Murder him and yet that a whole Nation should not have the like Right and that a Prince may not Rob or Murder men by himself yet may do it without any resistance in case he can raise an Army to back him M. Let what will happen I am for understanding this Oath and Declaration in the strict literal sense which you by your false glosses go about to destroy therefore to tell you plainly my mind I think neither one single Person nor yet the whole Nation can justifie resistance of the King's Person no tho' he should go about to Rob or Murder me it were better I were killed or lost all I had than that the Sacred Blood of my Prince should be shed by my hands Since the whole Parliament have on behalf of the People actually renounced all defensive Arms against the King by which I suppose they mean all defensive Arms against his Person nor have you as yet answered my two last Objections concerning that Renunciation of the Two Houses and the want of a competent Authority to raise the Arms of the whole Nation in case of that which you call a General Invasion of Mens Religion Liberties and Properties if ever any such thing should happen as it is not likely it ever will F. Your Principles and Mine are so diametrically opposite that it 's no wonder we may draw quite contrary Conclusions for whereas you suppose that Nations were made for Princes to Govern and dispose of at their Pleasure without any resistance on the Peoples side let them do what they will I suppose that Princes are made for the common good of their People and where their Happiness and Preservation do not interfere ought inviolably to be preserved but when through the Folly Negligence or Tyranny of Princes that which was ordained for their Protection proves their Ruin and Destruction I think the Preservation of the Princes Person ought to give place to the Publick Good and better that he than the whole Nation should perish which though it was the opinion of Calaphas in relation to our Saviour yet it is so well approved of that it is said by the Evangelist St. Iohn that he spake not that of himself but being High Priest that year he Prophecyed For there may be a Common Civil Government without a King but there can be no King without a People Of this Opinion our English Ancestors always were who though they often resisted and sometimes deposed their Kings yet they still maintained Kingly Government though with the change of the person And if it fail'd in the last Civil War it was because it was at last managed by a faction of men of quite different Principles both in Religion and Politicks and not by the Nobility and Gentry of the Nation whose interest it was and ever will be to maintain the ancient Government of a limited Monarchy without falling into a Common-wealth or giving up their just Rights and Liberties to an Arbitrary Power But to answer the rest of your objections which if what I have already layd down be Law and reason too may be easily done As to the first Objection The two Houses might very well renounce the power of making any War offensive or defensive against the King and yet leave the right of resistance for self defence and preservation to the whole nation in general since the former was necessary unless they would have asserted a right in themselves of sitting whether the King would or not and waging a War against him whenever they pleased after he had actually dissolved them which would be to set up two equal absolute powers at once in the Kingdom But that they did not renounce it for the whole Kingdom is plain for though by the Statute of the 12th of Charles the II. they disclaim all coercive power over the Kings person for themselves and the People either collectively or representatively yet do they neither there nor in any of these Acts for the Militia renounce all defensive Arms for the defence of their Religion Liberties and Properties There being a great deal of difference between such a defence and a coercive power over the King as I have already sufficiently proved nor indeed was it in the power of the Parliament to have done it if they would since they are but Trustees for the People to preserve their just right and had no power so really to give up their Religion Lives Liberties and Properties to the Kings mercy So that this renunciation of all defensive Arms on the behalf of the whole People had been absolutely void in it self And since it would have rendered the legal constitution of the Government of this Kingdom wholy precarious if notwithstanding the illegality of the Kings Commissions and their being void if granted to illegal purposes the King's presence shall render it
them Life is the only state of Happiness in this World and without which nothing can be enjoyed It is therefore better for you to be made Slaves than to venture a Battel for in the Fight God knows how many of you may be destroyed whereas if you quietly submit we promise to hurt none of you we will only carry you away and sell you for Slaves and sure Slavery is better than Death for even Slaves enjoy a great many Comforts of life tho' with some hardships and you may be redeemed again or make your escape but life once lost can never be recovered The same Argument a Tyrant may use for the exercise of his Arbitrary Power over mens lives that he will not nay cannot destroy the whole Nation but only use them as Butchers 〈◊〉 their Sheep cull out the fattest and let the poor ones live thrive and grow fat till they are likewise ready for the Knife This perhaps may be a proper life for those Beasts that cannot live without Man's protection but what man of any courage or sense would be willing to live under a Government where his Poverty was to be his only Protection who would not venture his life in one brisk Battel rather than live in such a vile and slavish Condition and who would not rather argue thus It is great odds if among so many Thousands I am the person ordained for Death or if I am I may perhaps purchase Victory for my Countrymen and Liberty for my Posterity but let the worst happen I venture my life for the publick good and it is better once to die than always to live in fear But if the Calculation of the number of mens lives that may be lost in the recovery or maintaining any right whatever should be the only rule to render War either reasonable or lawful I doubt whether most of the Wars Princes make for small Territories or Punctilio's of Honour as lowering the Flag for example nay even for the recovery of their Crowns when unjustly detained or taken from them can upon your principle ever justifie either Princes in Conscience to make such Wars or oblige Subjects in prudence according to your Rule of the publick good to fight in such quarrels since none of them but often cost more Lives to defend or regain them if lost than the things are worth that the Princes of the World usually make War about against each other But if you tell me that men are bound by the Law of God and of their Country to assist their Prince in any Wars he shall Command them without inquiring into the Consequences of it and let what will happen as to the loss of mens Lives Estates or Liberties that we are likewise to obey and submit to lawful Princes because let them tyrannize enslave or destroy us never so much yet God has put us into their hands and we are safe in God's hands whilst we are in theirs This is all a meer fallacy for what is this to your main Argument from the destruction of Mankind for if so many men are to lose their lives in the War what difference is it as to them whether the War be made by a lawful or unlawful Power it is still upon this Principle unlawful to be made and consequently unlawful to be fought for and if you once grant that Princes may tyrannize without resistance kill or enslave any of their Subjects what difference is it as to the people that are to suffer it whether he be a lawful Prince or a Tyrant or Usurper that does it for as for being delivered by God into the hands of a lawful Prince to be dealt withal as he shall think good it is all meer Jargon pray prove to me if you can that whil'st a Prince thus tyrannizes oppresses and enslaves his people that God ever thus deliver'd the people into his hand for that design or that whil'st he does so he acts as God's Minister This I have urged you to prove at our 4th meeting but since you could not do it I take the case for desperate But to answer your Comparisons of the Sun and Sea to which you compare lawful Princes that turn Tyrants they are as easily retorted upon you if the rays of the Sun are too hot we may resist them and put on thicker Cloaths or set up shelters to defend our selves from them the like we may say of his malignant Influences or Effects upon mens Bodies could there be any means found out as easily to avoid them So likewise for the Sea suppose the breaking in of it upon any Country to be sent by God for their Sins you will not say it is unlawful for the people to make Banks or Dikes or use any other natural means to keep it out or to drain it away and the case is the same as to Tyranny for if resistance be as natural a means against it as these I have mentioned are against the too violent heat of the Sun or breaking in of the Sea I cannot see why we may not as lawfully exercise it But since we are â—alking of Waters this puts me in mind of the place you have now cited out of Proverbs That the heart of the King is in the hand of the Lord which without doubt is a great truth but then you should have added what immediately follows as the Rivers of Waters he turneth it whithersoever he will now how does God turn Rivers of waters it is not by any super-natural means but either by a strong VVind or else by the hands of Men. So likewise that Solomon's Comparison of God's turning the Hearts of Kings like Waters is but an allusion to the Custom of those Eastern Countries that as a Gardiner draws the streams of water through the trenches he cuts into what part of the Garden he thinks good so doth God turn the Hearts of Princes to act or do quite contrary to their first intentions nay to what they have actually done before but how is this performed it is only as he makes use of the Gardiner to turn the streams of Water it is wholy by Humane means such as Advice of good and wise Counsellors and a prudent Consideration upon it to which also may be added the Resistance of their Subjects when after all Remonstrances and Intreaties to the contrary Princes still go on outragiously to oppress them when they see they will no longer bear it and find themselves engaged in a troublesom War with them they then see their Errour and send to their Subjects and offer them terms of Peace Thus divers of our Kings hearts were turned when they saw the Nation would all as one Man resist their tyrannical Arbitrary Proceedings they came to Terms with them and granted them Magna Charta and other good Laws for the security of their just Rights and Liberties But as for what you say of our being safe in the hands of Tyrants as being in God's hands I grant we are
The King willeth that Right be done according to the Statuteâ— and Customs of the Realm c. Which not satisfying as too doubtful and general the King at last gave this full and clear answer in legal â—orm Soit Droit fait commâ— il est desirè The Second point in relation to our Civil Properties is this That no Tax Taillage or Aid shall be laid or levy'd by the King without the consent of the Arch-Bishops Bishops Earls Barons Knights Burgesses and whole Commonalty of the Realm in Parliament this was first of all granted by the 56th Law of William the First which I have already cited as also more particularly forbid by the Statute de Tallagio non concedendo in the 34th of Edward the First which was but a revival or explanation of the former Law of William the First and also by the 25th of Edward the Third whereby it is Enacted That no person should be compelled to make any Loans to the King against his will because they are against Reason and the Franchise of the Land and it is also provided that none should be charged by any Charge or Imposition called a Benevolence nor by such like Charge which is also more fully set forth in the said Petition of Right to have been lately executed by certain Commissioners as also that divers other Charges have been layed and levyed by Lords-Lieutenants Deputy-Lieutenants c. contrary to the Laws and free Customs of the Realm The Third Point declared against in this Petition of Right is against Quartering of Soldiers tho' they pay for their Quartors contrary to the Will of the Owners and Inhabitants much more when they did take free Quarter in time of Peace as hath been too much practised of late So that by the Common Law of England not only Private-houses but Inns and Ale-houses are not compellable to Quarter Soldiers unless they will so much was this Nation anciently a Stranger to standing Armies and Quartering of Soldiers in time of Peace that there was no Provision made for it either at Common-Law or by any Statute that I know of 4thly That no new Law can be made without an express Act of Parliament or the joynt-consent of the King Lords and Commons and therefore that Parliaments ought to be duely summon'd and held for the good and safety of the Kingdom by Common as well as Statute Law once every year and according to more modern Statutes once in three years at least or whenever there is a just and necessary occasion for it And for proof of this I need go no farther than the old English Saxon Law which ordains that the great Council or Mycel Synod should be held twice in the year as the ancient Mirrour of Justices recites and the constant Custome long after the Conquest in which there never passed a year without a general Council of the whole Kingdom and when this came by degrees to be discontinued then were those Statutes of Edward the Third and Richard the Second made whereby it was enacted that a Parliament should be held every year and oftner if there were occasion 5thly Since the Legislative Power of Parliaments is the very Soul and Essence of the Government the Election of Knights Citizens and Burgesses to sit and serve in Parliament ought to be free and all the Members of Parliament who have places there either by Patents or Writs of Summons as the Lords or else by Election or Writs as the Bishops ought to be present and there to have freedom of Speech and Votes without any Guards to over-awe or terrifie them and none to be forced threatned bribed or tamper'd with to give their Votes contrary to their Consciences either by the King or any of his Ministers This is ordain'd by the Stat. of Westm. 1 Chap. 5. whereby it is expresly provided that all Elections ought to be free which Sir Edward Cook in his Notes upon this Statute extends to Elections of Knights of Shires as well as other Elections since I have sufficiently proved that the Commons elected Members to Parliament when this Statute was made and that this was the ancient Law of England you may see in the Rolls of Parliament 1 Hen. 4. wherein it is alledged as by the Parliament as one of the Articles against Richard the Second in these words Item licet de stato consuttudine Regni sui in Convocatione enjuslibet Parliamenti Populus suus in singulis Comitatibus Regni debeat esse liber ad eligendum deputandum Milites pro hujusmodi Comitatibus ad inter â—ssendum Parliamentis ad exponendum corum gravamina ad prosequendum pro remediis superinde prout videntur expedire Tamen praefatus Rex ut in Parliamentis suis liberius consequi valeat suae temerariae voluntatis effectum direxit mandata sua frequentius Vicecomitibus ejus ut certas Personas per ipsum Regem nominatas ut milites Câ—mitatuum venirâ— saciant ad Parliamenta sua quos quidem Milites eidem Regi faventes inducâ—re poterat prout frequentius fecit quandoque pro minas varias terrores quandoque per munera ad consentiendum illis quâ—a Regno praedicto prâ—ejudicialia fuerant Populo quam plurimum onerosa c. So that you here may see that it was then judged by the whole Parliament to be a brench of one of the Fundamental Liberties of the Nation for the King to make false returns to be made of Parliament-Men as also to corrupt or over-awe their Votes either by Promises or Threatâ—ings But to conclude that we have such things as Fundamental Laws and Priviledges I shall go no farther than King Iames I. his Speech confirmed by an Act of Parliament of the First year of his Reign wherein it is recited That the King hath vouchsafed to express many ways how far it is and ever shall be from his royal and sincere care and affection to the Subjects of England to alter or innovate the Fundamental Laws Priviledges and good Customs of this Kingdom whereby not only his royal Authority but the Peoples Security of Lands Livings and Priviledges both in general and particular are preserved and maintained and by the abolishing or alteration of which it is impossible but that present Confusion will fall upon the whole State and â—rame of this Realm So that if this Judgment of the King and both Houses of Parliament was true sure we may justly suppose that things of such vast concernment deserve our contending for by all means possible and lawful to preserve them for what the Nobles of the Land upon occasion once said with one Voice in full Parliament every Free-born Subject of England may as well say at this day Nolumus Leges Angliae mutari which is a Maxim that ought to be imprinted upon the Hearts of all true Englishmen who as my Lord Bacon very well observes take themselves to have as good Title to their Laws as to the
common Air they breathe in and King Charles the First somewhere says That it was his Maxim that the King's Prerogative is to Defend the Peoples Liberties and that the peoples Liberty strengthens the King's Prerogative For indeed if the Foundations are destroyed the Superstructure cannot stand and if this Rule had been well observed by this King's Sons we had not been reduced to this great Confusion we now lye under For my Lord Bacon calls those Flatterers who put the King upon such Dangerous Courses as great Traitors to him in the Court of Heaven as he that draws his Sword against him And King Iames I. in his Speech in Parliament 1609. Calls all those who perswade Kings not to be confined within the limits of their Laws Vipers and Pests both against them and the Common-wealth M. For my part I shall not go about to defend such ill men whoever they be yet since such Insinuations are done privately and in a Corner it is very hard for Subjects to judge when such Evil Councils are inâ—used into the Ears of Princes and much more unjust for them to make any resistance on pretence to remove them and therefore besides the absurdity of making Subjects both Judges and Parties you have not yet told me what number of men must be at once oppressed in their Fundamental Rights as you call them and who may make this resistance for methinks it is very absurd to give one County for example upon the account of free Quarter a Power of rising in Arms and resisting the King's Officers and Soldiers when perhaps all the rest of the Nation where no Soldiers are feel no such thing F. I am not so unreasonable as to maintain that Subjects ought to take Arms merely because the King gives too much ear to Flatterers and wicked Ministers or is too much led by them let him be so provided the people do not smart for it But if once it comes to that pass that they grow intolerable and set the King upon a General Invasion of the peoples Rights in any of the great Points I have now laid down let them look to themselves if they will not permit a Parliament to sit and redress those Grievances they must expect the Nation will rise at last against them as they did against Gaveston and Spencers and make them undergo that punishment they so well deserve But as for what you say of making the people Judges when their Rights and Liberties are invaded the Consequence is as bad if the King alone shall judge as for example in the Case of Ship-Money the Judges gave their Opinions that the King might raise Money for Ships of War in case of Necessity without any controul but if he be sole Judge of this Necessity he might lay this Tax as often and raise it to what degree he pleased Therefore as I shall not deny that the King may judge it fit to do a great many things against the strict Letter of the Law in cases of urgent necessity but it will be at his peril if he judge amiss as for example Every man's House is his Castle and he may lawfully defend it against all Illegal Commissions Yet I think no man will deny but that in case of a Fire in London the King may by Common Law command his Officers to break open some of the next Houses and blow them up with Gun-powder to stop the Fire but admit he should out of malice or mis-information command some Houses to be blown up that stood a Mile off under pretence of stopping the Fire do you think the Owners were bound to stand still and let them do it But if the People must not judge when their Fundamental Rights and Liberties are invaded because they will be both Judges and Parties then no man whatever by this Argument ought to defend himself against the violence of another for who can be judge but he that feels the blow Nor indeed could Princes make so much as Defensive Wars since whenever they do so they are themselves both Judges and Parties as I told you at our Third Meeting when I answered as I then thought all your Arguments against the peoples ever judging for themselves So that if it be proved that the people in a limited Kingdom remain as to the defence of their Lives Liberties Religion and Properties always in the state of Nature in respect of their Prince as well as all the rest of Mankind they must certainly make use of defensive Arms when necessity requires it or else become Slaves whenever he pleases to make them so may people have no right to judge of his Violence and Oppressions But as for the number that are to make this Judgment and Resistance thereupon I grant in most Cases this is not to be done as long as the Oppression is begun by colour of Law without actual violence Secondly when it concerns only some particular Bodies of Men thus if free Quarter should be taken in one or two Towns or Counties I do not allow it a sufficient cause for all the Neighbouring Towns much less the whole County or the Neighbouring Shires to take an Alarm and rise in Arms upon it since perhaps the King may know nothing of it and if he were once informed of it would redress it but can you affirm the Case would be the same if this Grievance should become general all over the Nation and that the King should be so far from redressing it that he should put out a Declaration setting forth that it was his Prerogative so to do would not the whole Nation then take it for granted that the King's Design was to govern by a standing Army who should live upon the people and devour them as they do in France to the very Bones and might not they make Resistance against these Robberies and Oppressions the same I say for all other breaches made in any other of our Fundamental Rights I do not allow any resistanâ—e to be made till it become a general Oppression upon all or the major part of the Nation and without all hopes of being otherwise remedied and this must be also so evident that there can be no doubt or denial of the Matter of Fact for so long as the Case is disputable or the Grievance is not of a general concern I grant the people ought never to stir but of this they alone must Judge since our Constitution has left us no other Judges of these breaches but the diffusive Body of the whole people in the intervals of Parliament But for your last Question as to the number that may thus rise to make this Resistance I answer thus that when once the Mischief becomes general and without all other remedy any part of the People who think themselves strong enough to defend themselves against such violence may begin to rise if they can till the rest of the Kingdom can come into their assistance as I told you the Town of Brill did
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
out the President and Fellows of Magdalen Colledge by the late Ecclesiastical Commission as also the turning out of the Deputy Lieutenants and Justices of Peace and all other Magistrates out of Cities and Corporations the King has sufficiently redress'd them by restoring the first to their places and by putting all the rest into Commission again and turning out those that came in their rooms and all this before the Prince of Orange came over and I doubt not but his Majesty would have been content to have given the Nation any other reasonable satisfaction they could have desired in the next Parliament Which ought to have been patiently waited for untill his Majesty thought sit to call it without going about to right our selves by Force F. I confess you have made not only the most plausible defence you can of the Kings late actions but have also urg'd the utmost that can be said against those defensive Arms that have been lately taken up by those Lords Gentlemen and others who have associated themselves to stand by the Prince of Orange till our grievances were redrest by a free Parliament but if what you have said be strictly lookt into I doubt it will prove but a mere Subtersuge to hide the nakedness of the Cause you have undertaken In the first place therefore let me tell you that though I confess the King has not yet Dragoon'd us to Mass nor has made an actual War upon the Lives and Properties of the People of this Nation yet that he has not only invaded our Liberties but also endanger'd the Protestant Religion of the Church of England establish'd by Law you your self have not the confidence to deny only you will not suppose it to have been done by any Armed Force and therefore ought not to have been resisted by Force but to have waited for their redress by Parliament which is but an evasion for in the first place it is plain that the things complain'd against in the Prince of Oranges Declaration do most of them strike at the Fundamental Constitution both of the Church and State as I have sufficiently prov'd and shall do it more particularly hereafter when there is occasion all therefore that remaines to be prov'd is this that all these breaches and violations of our Religion and Civil Liberties tho' done under colour of Law yet were acted and maintain'd by Force and Secondly that all other hopes of remedy or redress unless by joyning with the Prince of Orange was wholy taken from us the first of these I prove thus It is notoriously known that for the King to maintain a standing army in time of peace has been always declar'd against in Parliament as contrary to Law and dangerous to the Religion civil rights and Liberties of this Nation now it is also as certain that the King has ever since the Duke of Mâ—nmouths coming over set up and maintain'd a standing Army in this Kingdom in which he has also put in as many Popish Officers and they as many Popish Souldiers contrary to the Laws of the Land as ever they could find besides the many Irish Papists that have been of late sent over for no other purpose than to be listed here whilst Protestant souldiers were turn'd out of several regiments to make room for them not to mention the listing of vast numbers of loose and prâ—â—ligate fellows and some of them pardon'd Highway men who provided they had their pay would not have â—luck to Rob or Murder any body they had been ordered as may be sufficiently prov'd not only by their common taking of free quarter but by their frequent taking it in the houses of Gentlemen and other private Persons in divers places of this Kingdom and that without any amends or redress as I know of tho' frequently complain'd of at Court all which being done by the Kings arbitrary Power without the least colour of Law and in contempt of the Militia the only legal Forces of this Kingdom what was this but plainly to declare that as the King had thought fit to Act so many arbitary things clean contrary to Law so he was likewise resolv'd to maintain 'em by force since it is plain that the King never dur'st undertake to do all these Illegal and arbitrary things we have now mention'd untill such time as his standing Army was raised and tho' it is true mens Lives Liberties or Estates cannot be taken away unless by some Force or other either Legal or Military yet as for those Civil rights and Priviledges which are the main Bulwarks and defences of the former they can only be invaded or taken from us by Illegal Judgments and Declarations which if supported by a visible Force beyond what the Nation in the Circumstances it was in was able to resist this is as much a taking them by Force as if there had been resistance made about them Thus if Souldiers come into my House and say that the King hath given them Orders to quarter there upon free cost I suppose you will not deny but this is a forceable taking of my goods nowithstanding I dare not because I cannot resist them the same I may say for a whole Nation when once opprest in their Civil Liberties and those oppressions are once back'd and defended by a standing Army contrary to Law But that this Army was raised cheifly to this intent I can give you a remarkeable instance from the mouth of the late cheif Justice Wright who sent for Officers and Soldiers to make the Scholars keep silence because they Hum'd at what the President and Fellows of Magdalen's had just before done against the authority of this pretended court so that to conclude from that very time that the King beagn to keep up an Army and to list Popish Officers and Souldiers tho' utterly disabled by Law to take Commissions or to bear Arms by vertue of his Dispensing Power and all this in Order to back and support his Arbitrary proceedings I look upon this Nation under such a force as that they might Lawfully remove it by Force when ever they could And that either by joyning with some Foreign Prince or else by their own Domestick Arms. But to come to the second point to be prov'd viz. That there was no other means but Force lest us to redress these mischiefs and to retrieve us out of that sad condition in which we lately were as also to hinder us from falling into worse I shall only suppose that which I think you will readily grant that there could be no other means to cure these evils but either by some sudden change in the Kings inclinations or else by a Free Parliament the former you must acknowledge was not possible as long as he continued of the Religion he is of and suffer'd himself to be manag'd by the Counsels of the Jesuits and French King and as for a Free Parliament what hopes could there be of that as long as the King had done all he could
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
such Absolute Monarchs as you would make them that by the fundamental Constitution of the Government they cannot be resisted nor can fall from their Regal Power let them carry themselves never so Tyrannically for I do not see you have been yet able to do it by any Arguments you have hitherto made use of M. I have already at our 5th as well as at our last Meeting given you divers Arguments and Authorities whereby I proved the Kings of this Realm to be compleat and absolute Monarchs especially that place from Bracton where he thus speaks of the King that every one is under him and that himself is under none but God that he has no Peer in his Kingdom because so he would lose his Power since an Equal has no command over an Equal much more has he any Superiour because then he would be inferiour to his Subjects and Inferiours cannot be equal with their Superiours which sufficiently destroys that Notion of yours that Subjects can be in any case equal with their Princes so as to judge and resist their actions which is also farther inforced by another passage just aforegoing de Chartis vero Regiis factis Regum non debent nec possunt Iusticiarii nec privatae personae disputare nec etiam si in illis dubitatio ulla oriatur possunt eam interpretari in dubiis obscuris vel si aliqua dictio duos continâ—at intellectus Domini Regis erit expectanda Interpretatio voluptas cum ejus sit interpretari cujus est concedere from which we may conclude that the King's actions were above all censure and dispute much more forcible opposition of his Subjects And I defie you to shew me any passage in Bracton Fleta or even your beloved Author Fortescue that in the least countenances your Doctrine of Resistance much less your Opinion of the King's forfeiture of his Crown and Royal Dignity for Tyranny or the highest Violation of Laws but rather the contrary in all those passages that I have either observed my self or found quoted out of them by others For tho' I grant both Bracton and Fleta call the King if he prove a Tyrant or one that governs contrary to Law not God's but the Devil's Minister yet for all that they no where maintain that then he ought or may be resisted by his Subjects or that they are discharged of their Allegiance towards him For Bracton tells us in the same place that if the King do any man wrong or injury Locus erit supplicationi quod factum suum corrigat emendet quod quidem si non fecerit satis sufficit ei ad paenam quod Dominum expeâ—tet ultorem nemo quidem de factis suis praesumeâ— disputare multo fortius contra factum suum venire The same he says likewise word for word in another place of any other King or Prince who has no superiour Lord against whom there is no Remedy by Assize or Legal Trial as against an Equal but only place left the injured Subject for Petition And Bracton gives us a very good Reason for it in this maxime omnis qúidem sub eo ipse sub nullo nisi tantum sub Deo So that tho' I grant this Moral Obligation which the King hath to observe the Laws is farther increased by his Coronation-Oath as Bracton observes in his third Book de Actionibus But then as in the Oath of Allegiance the People swear nothing to the King but what they are bound to observe unsworn so the King in his Coronation-Oath promises nothing to the People but what in Justice and Equity he is bound to perform whether he swear or not for ad hoc saith the same Author of the King electus creatus est ut Iudicium faciat universis c. and separare debet Rex cum sit Dei vicarius Ius ab Injuria c. But then if he will pervert this great end for which God made him King if he will not act as it becomes God's Vicar if he will obstruct or pervert the Laws and govern never so Tyrannically yet still there is left no Remedy to his Subjects by the Law but Moral Perswasion for the Laws Imperial of this Realm have declared him to be a free unconditioned and independent Sovereign exempted from all coaction and outward force much more from any forfeiture of this Crown or Regal Authority F. I hope I shall be able to return you a satisfactory Answer to the Authorities you have now brought for as for Reasons I see none in the first place as to what you say concerning Barclays and all other Writers agreeing that in these two Cases you mention the People may resist their Prince because he does as good as renounce the Government of them and abdicate the Crown he wore Pray observe that they also allow the People to judge for themselves when the King thus goes about to destroy them to make over his Crown to a Foreign Prince Now I desire you to shew me why the People in a limitted or mixt Kingdom as ours is cannot as well judge when the King has broke the Fundamental Laws of the Government whereby it is distinguished from an Absolute Despotick Monarchy and hath either actually set up or is going about to bring in Tyranny or Arbitrary Power since according to the Rules I have laid down at our last Meeting the matters to be judged of may be as plain and evident not only to a single person but to a whole Nation All that you have to say against this is only an Hypothesis you have laid down without any just grounds that the King is a Sovereign Prince who holds his Crown without any Condition whatever and therefore free from all forfeiture of his Crown or Regal Authority which is the Point to be prov'd Now if I have already made out as I suppose I have that the King of England is not an Absolute Monarch as not having the two main parts of it viz. the power of raising Money and making Laws in his own disposal without the consent of his People and these so reserved by his own Concessions or that of his Predecessors from the very beginning of Kingly Government in this Island and if I have also proved at our last Meeting that if we have such Fundamental Rights we have also some means left us to keep and preserve them inviolable and that this means is only a forcible defensive Resistance in case they are forcibly invaded by any of the King's Officers or Souldiers nay by his own Personal Power in case he shall be so ill advised as to joyn himself with such Instruments of Tyranny it will then also follow that such a Resistance is really a suspension of their Allegiance to the King for the time it lasts and till they can see whether there be any hopes lest of a Reconciliation with Him and that he will amend his Errours and Misgovernment and if so and
soon be encouraged to Invade the Kingdom nor will the People be at all concerned to assist such a King against them since they can be in no worse a condition under a stranger than under him But as for the ancient Superiority of the Law and Court of Barons there mentioned to be over the King that still seems to me to be only a Moral and not a Co-ercive Power since the law alone is but a dead letter and can force no man of it self without the power of Men to support it and there can be no Interpreters of this Law but the King and his Judges out of Parliament and the Parliament sitting that alone that is not the House of Peers or Commons alone or both together but the King Lords and Commons that can interpret Laws but let the power of this Court of Barons have been anciently what it will it seems to relate only to the Peers or Tenants in Capite and not to the Commons at all since none ever heard them called the Kings Companions but suppose it so it is now gone and as for any co-ercive power in the two Houses over the King I have already shewed you that the two first Parliaments of King Charles the second have expresly renounced it from themselves and the whole Nation and therefore I must still stick to my first conclusion that the King is not to be resisted upon any Terms whatsoever neither can forfeit his Royal Dignity by certain general antiquated Laws or by the forced interpretations of some doubtful obscure passages in our ancient Lawyers But I shall now proceed to prove F. I pray give me leave to reply to what you have now said before you go to any new Head First In answer to what you have now objected against the Genuineness of this Law of Edward the Confessors it is certain that it is found in these very words with very little alteration in all the Copies of King Edwards Laws only in Hoveden instead of Rex quia Vicarius summi Regis it is Rex atque Vicarius ejus which is no great difference and may relate to the Kings Lieutenant in his absence beyond the Seas as there was often occasion for our Kings after their Accession to the Crown of England and therefore tho' I grant some Clergy-men they having then all the learning of the Nation among them might draw up this Law into the form it was made and so render it as advantagious for the Church as they could yet that this Clause was not the addition of any ignorant Monk as you suppose will appear from this that it is Recorded by Hoveden who lived and wrote about a hundred years after it was thus confirmed and we cannot suppose all the copies of these Laws to be lost and one single copy to be left and corrupted in so short a Time and tho' it is true this Law is not found among those set forth in the last Edition of Iugulph yet does it not therefore follow that there was no such Law ever made or confirmed by King William since those Laws in Ingulph seem to be more like an Epitome of the criminal and feudal Laws confirmed or added by that King than an exact body of all the Laws of the Confessor those having been writ in Latine and confirmed by K. William in the fourth year of his Reign whereas this Copy was published in French for the use of the Kings Norman and French Subjects and that long after K. Williams coming to the Crown for Ingulph tells us That after Domesday book was made he brought those Laws down from London in the French Tongue in which they were put forth lest he or any of his Monks should through Ignorance happen to offend his Royal Majesty by an unwary breach of them But as for the faults in the Chronology in the Story of Charles and Pipin in all the best Copies of these Laws this Letter is said to be written by them to the Pope and not to K. William at all and then it will be at most but a miss-nomer or errour of the Transcriber putting in Pope Iohn for Zachary but if you will have my opinion of this matter I do freely grant that this passage in the Law concerning Princes writing to the Pope about the deposition of K. Childerick might be an Addition of those Monks who first Transcribed those Laws and made short glosses upon them and yet the law it self might be genuine notwithstanding and if the Law it self be so it must be understood in a larger sense than what you would put upon it for sure by defending of his Kingdom must be meant not only the bare defending it against foreign Enemies but also against the wrongs and oppressions of his own Ministers and Officers which if he suffer by a wilful negligence or on seâ— purposes he will as much offend against this Law as if he had done it himself and so will lye under the same penalty Much less will these passages concerning defending the Clergy and reverencing the Church render this Law either void or impracticable for suppose you take Populus Dei in the strictest sense to signifie the same with Servu Dei which I grant always to signifie the Clergy in our ancient Saxon Laws and Charters yet all this does not make this Law void and impracticable since sure maintaining the Worship of God is one part of the duty of a Christian King nor can this be well performed without some Men set up for that purpose and that these Men cannot attend their Sacred Function without being maintained in their just Rights and Liberties neither is it any consequence that these Clergy must always consist of the very same Orders of Men as when this Law was made so that suppose the Monks were then held as a necessary part of this Clergy it will not follow that it was not lawful for the State to alter or take them away for then no Religious Order that was then in being could have been suppressed afterwards which no Papist will say so that the meaning of this clause in the Oath is no more than that the King should from time to time defend all those Clergy such which the Nation that is the Legislative Power should think useful and necessary for Gods service without being tyed to any certain Orders or Degrees of Men provided those that are particularly ordained by Christ and his Apostles for the service of his Church be inviolably maintained and preserved so likewise for the Church it self granting which may also be questioned that at the time when this Law was made or confirmed Popery was come to its height and so was the established Religion of the Nation and consequently that by the Church here mentioned was then to be understood the Romish Church or Religion as we now call it yet does it not follow that the King by this Law is to forfeit his Crown if he ever alter for the Law only says in
no man will say that their Acclamations and crying yea yea will make our Kings Elective any more than it could do it in the Case of K. William who had a Title by Conquest precedent to this prâ—tended Election tho' I grant this custom may have been in use ever fined this Coronation of the Conqueror But that King William claimed indeed by Conquest and by no other Title let us not mind his specious colourable pretences but his actions which are the best Interpreters of the Thoughts of Princes and we shall find that thorough all his Reign he Governed this Kingdom as a Conqueror and this I shall prove by making good the three Instances I have already given of his great alterations of the Property Laws and Civil Liberties of the People of this Nation to begin with the first of these For the proof of which I shall make use of the Authority of Gervace of Tiâ—bury a considerable Officer in the Exchequer in the time of Henry the Second and who received his information from Henry of Bloâ—s Bishop of Winchester and Grand-child to the Conqâ—eror who is most full to that purpose which he thus delivers in the Manuscript Treatise called the black book of the Exchequer which I shall read to you according to the Learned Dr. B's Translation of it After the Conquest of the Kingdom and the just subversion of the Rebels when the King himself and his great men had viewed and surveyed their new acquests there was a strict enquiry made who they were which had fought against the King and secured themselves by Flight from these and the Heirs of such as were slain in the Field all hopes of possessing either Lands or Rents were cut off for they counted it a great favour to have their Lives given them But such as were called and sollicited to fight against King William and did not if by an humble submission they could gain the Favour of their Lords and Masters they then had the liberty of possessing somewhat in their own persons but without any right of leaving it to their Posterity their Children enjoying it only at the Will of their Lords to whom when they became unacceptable they were every way outed of their Estates neither would any restore what they had taken away And when the miserable Natives represented their Grievances publickly to the King informing him how they were spoiled of their Fortunes and that without redress they must be forced to pass into other Countries At length upon consultation it was ordered that what they could obtain of their Lords by way of Desert or Lawful Bargain they should hold by â—unqestionable Right but should not claim any thing from the time the Nation was Conquered under the Title of Succession or Descent upon what great consideration this was done is manifest says Gervacâ— for they being obliged to compliance and obedience to purchase their Lords â—avour therefore whoever of the Conquered Nation Possessed Lands c. obtained them not as if they were their Right by Succession or Inheritance but as a reward of their service or by some intervening agreement This alone were sufficient coming from an Author of such Credit and living so very near the time but besides his I shall give you the Authority of divers other Authors to the same purpose and particularly Ordericus Vitalis whom you but now cited tells us how William the first circumvented the two great Earls of Moreâ—a and that after Edwin was slain and Morcar imprisoned then King William began to shew himself and gave his Assistants the best and most considerable Counties in England and made Rich Collonels and Captains of very mean Normans and that he thus disposed of whole Counties to divers great men appears by Domesday Book wherein it is seen that the whole County of Chester was given by the Conqueror to â—upus a Norman so likewise the greatest part of Shropshire was given to Monâ—gomery And further he took away from the English their Estates and gave them to his Normans and this he did from his first coming in for Fitz-Osbern was made Earl of Arundel and Hereford at his first coming in and was Lord of Bettivil in Normandy and established the Laws of that Town at Hereford Alan Earl of Bâ—itain had all Earl Edwin's Lands given to him at the Seige of York about three years after his arrival to these I may add the 795 Mannors Robert Earl of Morâ—ton in Normandy and Cornwal in England had given to him by K. William so likewise â—lan Earl of Britain and Richmond 442 Mannors and Ieffery Bishop of Constance had 280 Mannâ—rs given him by the Conqueror besides many other Lands of the Saxon Earls Thains c. were all given to the Normans who took their Title from King William's Conquering Sword So that I think it is very evident that this King had distributed most of the Lands of the Nation to his Norman's long before the survey was begun and by that infallible Record it is clear that he gave near all the Lands of the Nation to his followers and very little or none to the English who held that they had hys new Title and new services from the Conqueror or his great Lords or became Tenants to or Drudges upon their own Lands as we heard before from Bracton and Fleta Here is enough to satisfie any unbyassed person that thâ— Conqueror did not lay by his Sword after the Battle of Hastings F. In answer to what you have now said concerning your Conquerors taking away the Lands of a great many of the English Nobility and Gentry it is so apparent in matter of Fact that it were a high piece of impudence to go about to deny it yet will it not therefore follow that what he thus disposed of were almost all the Lands of England as I shall shew you by and by but in the mean time to let you see that I am a fair adversary I will at present suppose that K. William took away all the Lands from the former owners and gave them to his followers who helpt him in his Conquest but these were not only the Normans his Subjects but French Flemmings Anjovins Britains Poictovins and People of other Natioâ—s who made up a great part of his Army and came in with him under great and considerable men their Leaders and whom your Dr. tells us came not out of staâ—k love and kindness without any consideration of sharing with and under him in the Conquest Now I desire to know by what Law or Act of theirs they thus constituted K. William an Absolute Monarch over them and their Descendants For as for the Normans tho' they were it's true his subjects yet they enjoyed divers considerable Rights and Priviledges at home and surely never intended to come over hither to make themselves as great Slaves as the People they had Conquered much less can it be supposed of these of other Nations who were not subjects to Duke William before
he was made King nor can I see how their taking of Lands from Him could make him become an Absolute and Irresistible Monarch over them and their Descendants so that if upon your supposition all the owners of Lands in England at this day hold their Estates either by descent or purchase from those Antient Normans or French Proprietors they must also succeed to the same Liberties and Priviledges as those under whom they claim did formerly enjoy But before I conclude I cannot but take notice of what you have said against my proofs of the formal election of King William for if the keeping of a guard about the place where the King is Elected and Crowned should void the freedom of the Election I doubt whether the election of any elective Kings or Monarchs no not of the German Emperor himself would hold goods as for the other reason that they could not chuse but â—lect him that is yet mâ—re trivial for there being no more than one thaâ— stood to be chosen they could indeed chuse no other but if not having a Liberty to refuse must void the Right of Election pray consider as I told you before whether there be any Canonical Election of Bishops in the Church of England at this day therefore I doubt not but that King William I. was as lawfully and freely elected as K. Edward the Confessor his Predecessor whom all Authors agree to have had no other Title and Williâ—lmus Gemeticensis in the place I now cited tells us he was Elected King as well of the Norman as English Nobles and if the custom had not â—â—en â—â—cen to Elâ—â—â— the King before he was Crowned it is not likely thaâ— your Conqueror would have introduced a new custom to the prejudice of his pretended right by Conquest but indeed there is not only more cogent argument to prove that the Crown was formerly elective than â—he constant usage as you your self confess ever since your preâ—ended Conquest to this day of asking the People whether they are content to have such a one for their King As for your Doctors quotation out of William of â—oictoâ— pray take notice that he places your Conquerors Hereditary bequest together with the Oaths of the English as his best Title and the right of War last by which this Author did not understand a Conquest of the People of England but his prevailing against Harold M. I do own with the learned Dr. B. that the Descendants of those ancient Norman and Freâ—â—h Earls and Baâ—ons than came in with the Conquerour and their Posterity afterwards seeing the Yoke of feudâ—l Tenures and other prerogatives this King and His Descendants exercised over them to press as hard upon them as the Antient English were those that made such a disturbance for their Right and Liberties in the Reigns of H. Iohn and Henry the third and tho' I grant their Ancestors were never conquered and consequently could not be obliged to him as to a Conqueror 〈◊〉 may for all this maintain that they and their Posterity were as much bound to an Absolute Subiection without any resistance aâ— the English whom they conquer'd for they were either his own Subjects in Aâ—â—mandâ— before his coming oâ—eâ— hither or else were such Volunteers who followed him but of hopes of Estates and Brâ—ferment was for all those of the former 〈◊〉 and 〈◊〉 were his subjects before they were tied not only by their 〈◊〉 Oaths of a Regiance which they had taken in Normandy but were also bound by the same obligation of Non resistance as all other subjects must always be both in that and all other Governments to all which was added another Obligation in respect of those who were not his subjects before his entrance since this whole Kingdom was by Conquest the Conqueâ—ors as appears in that he bestowed the 〈◊〉 part of 〈◊〉 his Followeâ—â— whose blood runs at this day in the Veins of most of our English Genâ—ry and Nobility as a reward for their Service and Assistance tho' he might have some part to the English Natives and their Heirs yet so aâ— that he altered the Tenure and made it descend with such burdens as he pleased to lay upon them so that as well â—his own Countrymen Normans as those of all other Nations who thus became Subjects and Feudataries to him for all the Lands they possessed in England since he was the only Directus Dominus or Lord Paramount of the whole Kingdom were also his Vassals and Subjects for in case of Treason and Rebellion or Death without Heir those Lands were to return to him again and to be aâ— his dispossal so that all subjects as well Normans as other Foreigners who had Lands granted to them by the Conqueror thus became his homines Ligei Liegemen and did owe Faith and true Allegiance to him as their Supream and Liege Lord as the King is called in several Statutes and the definition of Liegeancy is set down to the grand Customary of Normandy Ligeantia est ex quâ domino tementur vasalli sui c that is Liegeancy is an obligation upon all subjects to take part with their Liege Lord against all men living to aid and assist him with their Bodies and Goods and with their advice and power 〈◊〉 to lift up their hands against him nor to support in any wise those who oppose him and tho' I grant that the Supream or Liege Lord is likewise bound to govern and defend his Liege People according to the Rights Customs and Laws of the Countrey yet is he not liable to resistance much less forfeiture if he neglect it For tho' if Subjects break their Covenants and prove disloyal all their Lands and other Rights are forfeited to the King yea if the King or Supream Lord break his Oaâ—â—â— notwithstanding his sailing therein neither his Crown nor any Rights belonging to his Royal Dignity are thereby â—orfeiâ—ed the reason of this inequality is because the King gave Laws to the â—eople but the People did not give Laws to him so that it is plain that however you 〈◊〉 the Conquerors entrance whether by the Sword or to avoid the Envy of the Title of a Conqueror by a voluntary submission of the English Nation to him as to their Sovereign the conclusion cannot vary because the duty of Non-resistance arises from their own Act they taking an Oath of Allegiance to be his True and Loyal Subjects with which Oath Resistance can by no means consist F. I must beg your pardon if I cannot take what you have now said for a satisfactory answer since I doubt it will do you little service whether you make use of it either in respect of the Normans or other Foreigners for as to the soâ—mâ—r it appears from the Antient Constitution of Normandy that the Duke was no absolute Monarch there but Feudaâ—ary to the King of France and farther could make no Laws nor impose Taxes in Normandy without the consent of the Estates of that Dutchy as
appears by the Title to the Latin Customs of Normandy which are at the End of the Old French Edition of the Constumiers de Normandy Printed at Râ—aâ— 1515. The Title of which is thuâ— Iura Consuetudines Ducatus Noâ—maniae The Prologue to which begins thus Quoniam Leges Instituta quae Normanorum Principes non sint magna provisionis Industria Praelatorum Comitum Baronum nec non Caeterorum virorum prudentum consilio Assensu ad salutem humani foederis Statuerunt Whereby it is apparent that the Antient Laws of Normandy were made by the Advice and Consent of the Estates for the Preservation of that humane Covenant they had formerly made with their first Duke Rollo when he had that Dutchy granted him by the King of France and whoever will consult the antient Histories and Laws of that Dutchy will find theâ—â— Dukes of Normandy no more absolute Monarchs there than the Kings of Norway from whence they came so that if their Duke should have gone about to take away their Estates or inslave the Persons of the Norman Nobility and People he might justly have been resisted by them and therefore their taking Lands from K. William after his pretended Conquest here must either have conferred an Estate upon them according to the Laws of England or Normandy not according to the former for you assert that Tenures in Capite and Knight's service were generally introduced by his coming so that if they were by the Normans Law as you suppose they were then no farther subjects to their Duke by that Tenure when made King of England than they were whilst he was Duke of Normandy viz. only according to the Laws and Customs by which they held these Estates so that if their Duke was not irresistible by them in case of Tyranny in his own Country so he was also here by the same reason since whatever he did in respect of the English he could acquire no new right over them And that an Oath of Homage alone doth not make the Person to whom it is taken irresistible if he makes an unjust War upon his Vassals appears by the Dukes of Normandy themselves who tho' they held that Dutchy by Homage to the King of France and took the same Oath to him upon every Kings Accession to the Crown of being his Liegeman and to be True and Faithful to his Lord the King of France for the said Dutchy of Normandy yet might the Dukes of Normandy without any Imputation of Rebellion have resisted the King of France in case he made an unjust War upon them nor were ever the Dukes of Normandy accused of Rebellion for so doing in all the Wars that they had with the Kings of France And therefore the holding of an Estate by Homage doth not suppose that the Lord of whom it is held was irresistible nor doth the word of Allegiance signifie any more than that duty which the Liegemen by the Old Norman Law owed to their Supream Lord of whom they held their Lands and therefore when the King or Supream Lord of the Fee did not perform his part of the Contract but went about to turn them out of their Estates or to invade any of their just rights by force it was usual for the Tenants to defie the Lords and renounce their Homage to them for which they used the Barbarous Latin word diffidare in French to defie that is to renounce that Faith and Allegiance which before they owed them and the supream Lords also oftentimes defied their Tenants thus Mat. Paris tells in Anno 1233. that K. Henry the Third by the Counsel of the Bishop of Winchester defied Richard the Earl Mareschal and the year following we find the Earl justifying himself in this manner being then in Ireland First I answer that I never acted Treasonably against the King for he has unjustly spoil'd me of my Office of Mareschal without the Judgment of my Peers and has Proclaim'd me banisht thorough all England he has burnt my Houses destroyed my Lands c. he has more than once defied me when I was always ready to stand to the Judgment of my Peers from which time said he I ceased to be the Kings Liegeman and was absolved from his Homage not by my self but by him and whereas you say that tho' the King or Supream Lord cannot forfeit his Right tho' he breaks his part of the Compact because of the inequality which there is between a King and a Subject then this Prerogative of Non-resistance doth not belong to the King as he is Supream Lord of the Land but as he is King and giveth Law to the Subjects which may have some colour of Truth in Absolute Monarchies but was of no Force either in the Government of Normandy or England where the Duke or King without the consent of his Estates never could alone make Laws but as I will not deny our Government to be a Monarchy so it is as certain that it is limited in the very constitution either by the Saxons or Normans begin where you please and therefore my conclusion still holds good that if the English have now succeeded to those very Lands and Priviledges which the Normans anciently enjoyed then whatsoever Right or Liberty the English Proprietors of Estates do at this day enjoy they do not only hold them as the Successors and Descendants of those Normans and Frenchmen but are also restored to them Iure postliminii as you Civilians Term it since they never submitted themselves or took an Oath of Allegiance to King William and his heirs but only to himself Personally there being no such clause in any Oath of Allegiance till it was so ordained many ages after in the Reign of K. Henry the fourth nor was this Oath ever taken by our English Ancestors to K. William as to a Conqueror but the lawful Successor of K. Edward the Confessor and K. Williams actual taking away the Estates of a great many of the English Nobility and Gentry contrary to his own Oath and without any just oâ—use could no more give him a right so to do than if Henry the fourth or Henry the seventh both which came to the Crown by the assistance of a Foreign force should upon a pretence of being Conquerors have govern'd by an Army and so have taken away whose Estate they pleased and given them to their followers that came over with them M. I shall not dispute this matter with you any further therefore pray proceed to the other Point you took upon you to prove that King William did not take away so great a share of the Lands of England as the Dr. and those of our Opinion affirm F. I shall observe your commands and therefore in the first place I desire you to take notice that according to the Doctors own shewing your Conqueror never took away the Lands of all the Bishops and Abbots of England much less those that belonged to Deans and Chapters or
Noblemen or Gentlemen who held Lands in divers Counties of England at the time when that Survey was made and for proof of this since so short a conversation as ours will not permit me to run into a long Bed-role of names I refer you to what the learned and ingenious Mr. Atwood in his Ius Anglorum ab antiqua has observed out of Doomesday book upon this subject where tho' he has not only gone thorough but gone over Fifteen Counties of Thirty that are surveyed in that book yet it will thereby sufficiently appear that your Dr. is much mistaken when he so positively affirms that there were few or no Englishmen that held Lands in England but to give you a taste of this I shall run through as many Counties as Mr. Atwood has given us the names of To begin which survey where besides the Earl of Morton above mentioned who tho' he was a Norman born yet he was here before the entrance of the Norman Duke and held Estrehaw in Tenrige Hundred in the time of King Edward there was also Hugo de Port an Englishman who was a very great Proprietor as may be found under this Title in Doomesday book Terra Hugonis de Port many Mannors he had and as thereby appears in Hampshire he had at least two Mannors Cerdeford and Eschetune from his Ancestors before King William's entrance and besides this Gentleman and the Earl above mentioned there are no less than Ten or Eleven who as it appears either by their English Names or else by this note which so frequently occurs Idem tenuâ—t T. R. E. i. e. tempore Edwardi Regis the like I may say for the other Counties there mentioned as Hampshire in the next place where besides Ralph de Mortimer who had several Lands T. R. E. there are no less than above Thirty Free-holders more who by their Saxon names and want of Sir-Names seem to be English divers of whom held the same Thane Lands which themselves or their Fathers did in the time of King Edwards and tho in Buckinghamshire and Barkshire indeed there are but five or six who held the same Lands which they or their Ancestors possessed in the time of their Conqueror but yet in Wiltshire and Dorcetshire there appears between Twenty and Thirty English Proprietors many of whom held whole Townships when this Survey was made in Sommersetshire Devonshire Staffordshire Yorkshire and Glostershire their does appear in most of them a dozen or more English Saxon names who held whole Mannors 't is true that in Nottinghamshire Lincoâ—shire and Herefordshire their appear fewest English names and yet the least of these have three a piece So much may suffice for Doomesday book and I doubt not if any one will take the pains to look over the Titles of the rest of the Counties he may find enough Instances of the like Nature sufficient to prove that the English were not wholly dispossessed of their Estates at the end of K. William's Reign when this Survey was made Not to mention Northumberland Westmorâ—land and the Bishoprick of Durham all which are omitted But that the number of English which held the Lands in the time of King William the first and second was very considerable may appear by William of Malmesburies relating how the Norman Lords then in England would have dethroned William Rufus and haâ—e set up his Brother Robert in his place there also shews the manner how that King prevented it Rex Videns Normannos pend in una Rabie conspiratos Anglos probos fortes viros qui adhuc residui â—rant invitatoriis scriptis arcessit quibus super injuriis suis Querimoniam faciâ—us bonasque Leges Tributorum livamen Liberasque venationes poâ—licens fidelitati suae obligavit where Residui must certainly be meant of the residue of those English Gentry whose Estates were still left and herein Ordericus Vitalis is more express that King William as soon as he saw the contrivance against him Lanfrancum Archiepiscopum cum Suffraganeis praesulibus Comites Anglosque Naturales convocavit Conatus Adversariorum velle suum expugnandi eos indicavit M. As for Mr. Atwood's Catalogue of English names from Doomesday book I have not yet examined them and tho' I grant there are may be divers who held the same Lands that they or their Fathers did yet they are but a few in respect of the rest nor are we certain that all these were Native English and not Normans who held Lands as well then as before the Conquest since the Normans and the English names were often the same and as for the want of Sir-names that is no argument that they must needs be English since in those days very few even of the Normans but persons of Quality and Estates had any as Mr. Cambden shews us in his remains but as for those expressions in the Charters of King William and his Sons wherein the English as well as the French Earls and Barons are mentioned those Charters might be either made during the three or four first years of King William's Reign when I grant the English were not wholly dispossessed of their Estates but that there were some of them that still held Earldoms and Baronies in their own right but when the same expressions occur after that time the word Angli or Angligenae must be understood in another sense tho' it seems to be put in opposition to Francis son as by these last are to be understood such French or Norman Barons who had Estates in England as well as in France so by the former could be only meanâ— such Frenchman or Normans who had their Estates in England only Or else tho' French by Original were Englishmen by Birth are here called Angli and Angligenae to distinguish them from such French Barons as are above mentioned oâ— from such as were born in Francâ—s and for the truth of this I desire you would consult Dr. â—â—'s learned Glossary at the end of the Folio Edition of his answer to Mr. P. and his two seconds Tit. Angli and Angligenae where he tells us that these Angli and Barones Anglae mentioned in these Authors and Ancient Charters were not English but Normans and those men of no mean or ordinary Ranks but Earls or Barons for they could never have met in such numbers as were requisite for them to do to protect and defend King William Rufus had not they been headed by such if they had either Power or Estates lest that depended not upon the Normans and if you or any man can shew me an English Saxon that was then either Eâ—â—l or Baron or had any share in the Government or any that had considerable Estates that did not hold them of the Normans or had at that time any great Woods Forests or Priviledges of Hunting in them then I will confess my self mistaken As for W. Malmesbury saying these were Angli probi qui residui grant these were only the antiqui
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
things being considered it is no wonder if the Judges and Clerks of Parliament who were in those days entrusted with the drawing up all Acts of Parliament being greater Masters of the French than Latin Tongues chose rather to draw them up in the former and thus it continued until the Reign of Henry the seventh when our Statutes began first to be drawn up and enrolled in English M I confess you have given me a greater light in this matter than I had before yet I suppose you cannot deny that the Tenure of Knights Service with those clogs that belong to it of Wardship Marriage and Relief were all derived from the Normans as appears by the grand customer of Normandy which I have already menâ—ioned so that tho' it be true that all these are now taken away by a late Statute of K. Charles the second yet since this Tenure and those services are not found among the Saxon Laws there cannot be a greater proof of the ancient power of the Conqueror or of the servitude imposed upon the Nation by him and therefore I look upon it as a very imprudent part of the late K. Charles to part with so great a tye which his Father and all his Predecessors had over the Persons and Estates of all the Nobility and Gentry of the Kingdom F. I shall not take upon me to decide whether it were Politickly done or not of K. Charles the second to part with the Wardship and Services of his Tenants by Knights Service but this much is certain that considering the abuses and corruptions that had crept into that Tenure by degrees since the first institution both by the unfit Marriages of the Heirs as also by the waste that was often times commited on the Wards Estate during his Minority it was certainly a very great grievance and burthen to the subject and considering how many of those Wardships were begged by hungry Courtiers they were of no considerable profit to the Crown and tho' I grant they were a very great tye or rather clog upon the Estates of the Nobility and Gentry of this Kingdom yet it did not thereby produce any such love or obedience as would retain the Tenents better in their duty before than since they were granted away for the forfeitures for Treason and Felony and also Fines for Alienations and are reserved to the Grown now as they were before and as for any love or respect which was anciently paid by the Heir how could there be any such thing since the King granted away the custody of the Heir and his Lands to persons who for the most part made a meer prey of them so that they were often Married against their consents and their Estates were delivered to them wasted and spoiled besides also what was exacted from them for reliefs and Ouster lismaines we need not wonder if it were rather a cause of secret discontent and hatred of the Kings Prerogative than otherwise and therefore I cannot think it was not so unpolitickly done by the King to render himself gracious and acceptable to his People upon his return to grant their request and pass that Act for taking away Wards and Liveries and to accept of a Revenue by excise of treble the value in stead of it But to come to the Original of Knights Service it self I do not think it was derived from the Normans since we are certain there were Thane Lands in England which were held of the King and that by Knights Service before King William's coming over and there were also middle Thanes who held of those Lords above them by the like Service insomuch that in the Laws of K. Knutâ— there is one concerning the Heriots which an Earl the Kings Thane as well as inferior Thanes were to pay not only to the King but to other inferiour Lords which are almost the same as were afterwards reserved by the Laws of K. Edward the Confessor confirmed by K. William as you will find them in Ingulph only there is no Gold reserved but only Horses and Arms whereas by the Law of K. Knute each E. was to pay two hundred Manenses of Gold each Kings Thane fifty and each inferiour Thane two pounds only note that he who is called E. in K. Knutes Laws is called a Count in these the Thane a Baron and the inferior Thane a Vauasor and that which is there called a 〈◊〉 is here termed a Relief And that this Tenure by Knights Service which is now called Escuage or Servitium Scuti was of ancient time named expeditio hominum cum scutis and was in use before the coming in of the Danes is also as certain for Sir E. Coke in his fourth Inst. tells us that we may in the Charter of K. Kenulph who Anno Domini 821. granted to the Abbot of Abbindon many Mannors and Lands and reserved quod expeditionem duodecim virorum cum tantis scutis exerceant antiqâ—os pontes arces renovent and also he mentions a like Charter of K. Ethelred to a Knight called Athelâ—eâ— Anno Domini 995 so that you see not only Spiritual Persons and great Thanes or Barons but also Knights held Lands by the service of so many men before your Conqueror and your Dr. also himself allows it for in his answer to Mr. P. in all ancient Charters in the Saxon times he translates the word fidelâ—s by Tenants in Capite or Military Service M. I will not deny that Military Fees were in use before the Conquest and also that the feudal Law did obtain here in many things and therefore I am so far of the Doctors opinion who in his Gossary Tit. Feudal Laws tells us The Feudal Law obtained to most Nations of Europe and in Normandy was in its full Vigor at the time of the coming over of the Conqueror but afterwards grew more mild and qualified as also the Tenure it self a perfect description of which with all its incidents of Homage Relief Ward Marriage Escuage Ayds c. are to be found in the Grand Customer Cap. 29.33 34 35. and although there were Military Fiefs or Fees here in the Saxon times yet not in such manner as after the Conquest established here by William the Conqueror and according to the usage in Normandy when as it appears by Doomesday-book in every County he divided most if not all the Land of England amongst his Normans and Followers Now that this custom of Wardships is wholly derived from the Norman Conquest you shall find in Sir E. Cookes fourth Institutes in the same Chapter you last cited as you may here read You have heard before de regali servitio before the Conquest but that regalâ— servicium which was Knights service drew unto it relief but neither Wardship of the Body or of the Land as hath been said it is true that the Conqueror in respect of that Royal service as a badge of the Conquest took the Wardship of the Land and the Marriage of the
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
Tenants by Knights service as also those aids they were to pay the King or any other Lord they held of towards making his eldest Son a Knight and Marrying his eldest Daughter were in use in England before the Conqueror came over But to observe your commands I shall now proceed to shew that by the Conquest the English for a time lost all their ancient Rights and Priviledges till they again obtained them either by their mixing with the Normans so that all distinction between them and the English were taken away or else they were restored by the Charters of K. Henry the first K. Iohn and K. Henry the third I shall therefore divide the priviledges of Englishmen into these three heads first Either such as concerned their Offices or Dignities Or secondly Such as concerned their Estates Or lastly Such as concerned the Tryal for their lives in every one of which if I can prove the English Natives as well of the Clergy and Nobility suffered confideracie lesses and abridgments of their ancient 〈…〉 liberties which they formerly enjoyed I think I shall sufficiently prove the point in hand As to the first head Ingâ—ph telâ—s us that the English were so hated by the Normans in his time that how well soever they deserved they were driven from their Dignities and strangers tho' much less fit of any Nation under Heaven were taken in their places and Malmesbury who lived and writ in the time of Henry the first says that England was then become the habitation of foreigners and the Rule and Government of strangers and that there was at that day no Englishman an Earl Bishop or Abbot but that strangers devoured the Riches and gnawed the Bowels of England neither is there any hope of ending this misery So that it is plain they were now totally deprived of all Offices and Dignities in the Common Weal and consequently could have then no place in the great Council the Parliament of the Nation both for the raising of Taxes and the making of Laws and tho' I grant Mr. Petyt and your self suppose you found a clause in the Conquerors Magna Charta whereby you would prove that all the Freemen of this Kingdom should hold their Lands and Possessions Well and in Peace free from all unjust Exactions and Taillage so as nothing be exacted or taken unless their Free-services which of right they ought and are bound to perform to us and as it was appointed to them and given and granted to them by us as a perpetual right of Inheritance by the Common Council of the whole Kingdom This Common Council will not help you for without doubt here were no Englishmen in it for certainly they would not grant away their own Lands to strangers These were the Saxon Lands which William had given in Fee to his Soldiers to hold them under such services as he had appointed them and that by right of Succession or Inheritance We will now come to the second point viz. the Priviledges the Englishmen lost as to their Estates for whereas before the Conquest you affirm the K. could nor make Laws nor raise Taxes without the Common Coâ—ncil of the Kingdom it is certain K. William and his immediate Successors did by their sole Authority exercise both these Prerogatives as for his Legislative power it appears from the words of his Coronation Oath as you your self have repeated it out of Florence of Worcester and Roger Hoveden the conclusion of which Oath is se velle reâ—â—am legem statuere tenere Rapinas Injustaque Iudicia penitus interdicire Now the Legislative power was then lodged in him why else did he swear to appoint right Laws For if the constitution had been setled as it is at present the Parliament could have hindered him from making any other and that he could do so appears by that yoak of servitude which Matthew Paris as well as other Authors tells us K. William by his own Authority imposed upon the Bishopricks and Abbies in England which held Baronies which they had hitherto enjoyed free from all secular servitude he now says he put under Military service sessing all those Bishopricks and Abbies according to his pleasure how many Knights or Souldiers each of them should find to the King and his Successors and putting the Rolls of this Ecclesiastical Service in his Treasury he caused to fly out of the Kingdom many Ecclesiasticks who opposed this wicked constitution now if he could do this upon so powerful a Body as the Bishops and Abbots were at this time he might certainly as well raise what Taxes he pleased upon all the People of England and therefore Henry of Huntington tells us that K. William upon his return out of Normandy into England Anglis importabile tributum imposuit Lib. 3. p. 278. And that his Son William Rufus imposed what Taxes he would upon the People without consent of the Parliament appears by that passage of William of Malmesbury which he relates in the Reign of this K. as also in his third book de Gestis Pontificâ—m concerning Ranulâ— whom from a very mean Clerk he made Bishop of Duâ—ham and Lord Treasurer the rest I will give you in Latine Isle siquando edictum regium processisset ut nominatum tributum Anglia penderet duplum adjiciâ—bat subinde idente Rege ac dicente solum esse hominem qui sciret sic agitare ingenium nec aliorum curares odium dummodo complaceret dominum So that you may here see that the Kings Edict or Proclamation did not only impose the Tax at his pleasure but his Treasurer could double it when he had a mind to it without consent of the great Council or Parliament as we now call it and this Prerogative was exercised by divers of his Successors till the Statute de Tallagiâ— non concedendo was made But to come to the last head concerning the alteration of Tryals for mens Lives and Estates by the Conqueror from what they were before it is certain that whereas before the Conquest there were no other Tryals for mens lives but by Juries or else by Fire or Water Ordeal which was brought in by the Danes the Conqueror tho' he did not take way these yet also added the law then in use in Normandy of Trying not only Criminal but Civil Causes by Duel or Combat all the difference was that in criminal cases where there was no other Proof the accuser and accused fought with their Swords and the party vanquished was to lose his Eyes and Stones but in civil causes they only fought with Basâ—oons headed with Horn and Bucklers and he or his Champion who was overcome lost the Land that was contended for from whence you may take notice also of a great alteration in the Law not only concerning Tryals but capital Punishments so that whereas before the Conquest all crimes even Man slaughter it self were either â—ineable according to the Quality of the Person and the Rates set upon
each mans pepzylo or price of his head as you will find them set by the Laws of K. Athâ—lstan I shall not insist much upon divers lesser things which K. William as a Conqueror imposed upon the People of England as disarming them of all offensive Weapons forbidding them to Hunt or Kill any Deer in his Chases or Forrests under the penalties of loss of Eyes and Members as also keeping up and reinforcing the Ancient Laws of Decenaries or Tythings whereby every Ten Families were bound with their tenth man or tything man body for body of each others good abearance as also that Law forbidding all sitting up late at Night or Assemblies after eight of the clock but that every one should go to Bed and put out both Fire and Candle at the ringing of the Coverteâ— Bell these things I think are very sufficient to prove that K. William as a Conqueror did very much abridge and in some things wholly take away the Ancient Priviledges and Liberties of the Lâ—giâ—sh Nobility Clergy and Commons and did also make many and great alterations not only in the forms of Pleadings but also in the very 〈◊〉 of our Laws both Criminal and Civil and if he did not make more â—â—â—erations of thâ— kind it was wholly owing to his free Will and Pleasure since aâ— Eâ—dmerus tells us he ordered all Divine and Secular things acccording to his pleasure F. That I may the better answer what you have said I shall partly grant and partly deny the matters of Fact you have alledged and also further prove that if they had been all as you have laid them yet would they not prove your conclusion that K. William by his own Arbitrary and Tyrannical Actions could create any Right by Conquest either to him or to his Successors And therefore to begin with your first head viz. the Priviledges of the English Nobility as to Offices and Dignities tho' I grant it was true as the Authors you have cited relate that sâ—arce any Englishman was when they Writ either a Bishop Earl or Abbot yet this is to be understood only of the latter end and not the beginning of his Reigns for as to the Bishops and Abbots I do not read of any more than Stigand Archbishop of Canterbury and Egelric Bishop of Durham who being deprived of their Bishopricks had Successors put in their rooms in their life times and yet in the place of this last not any Norman but one Walcher an English man was named by the K. to succeed and as for the Earls of all those who had been against him and opposed his coming in there was not one but he received them into savour and continued in his Dignity and Estate as in particular the Earls Eadwin and Morchar Brothers together with Waltheof and Siward and Edgar Aâ—â—eling whom they had named K. of England all who kept their Earldoms and Estates till terrified by the Kings severe and Tyrannical proceedings the three first of these â—led away as you have already shewn tho' I confess Prince Edgar had for two or three years before this fled into Scotland but yet was afterwards restored to the Kings Favour and his Estate nor do I find any considerable alteration in the Kings manner of disposing of his Honours or Preferments either Ecclesiastical or Civil till Earl Waltheo being convicted of being in the Plot with Ralph de Waher Earl of Norfolk and other Lords as well English as Normans to expel K. William and from that time being the eighth year of his Reign I grant he changed his whole course of Government and put no more Englishmen into any places of honour or profit tho' W. Malmesbury endeavours to excuse the Kings severity in these words Inde prâ—positum regis fortassis meritò excusatur siâ—aliquando durior in Anglos â—uâ—rit quod penâ— nullum eorum fidelem invenerit tho' with this Authors good leave the K. had been the cause of this conspiracy by his own Tyranny and breach of Oaths as I shall shew you by and by So that either this K. was moved by just provocations thus to debar all Englishmen from being preferred to Dignities or Offices or he was not if the former and that he had just cause so to do it was no more than what any other Foreign Prince who had no Hereditary Right to the Crown would have done in the like case But if the latter it was not only contrary to Justice but also to his own Coronation Oath one clause of which as Malmesbury shews us in his de Gestis Pontificum was quod se modeste erga subditos ageret aequo jure Anglos Francos tractaret so that this Kings Arbitrary and violent proceedings after he had â—or some time governed as a lawful King tho' they might prove him a Tyrant yet they could by no means make him a Conqueror And as for the latter part of your Argument whereby you would prove that in his Reign there were no Englishmen in the great Councils of the Kingdom that can only be understood in the strictest sense of the times after the great Conspiracy I have now mentioned for before it is very evident that there were many Bishops Earls and Barons still left who must have been members of the great Council Nor can you prove that the Law I have mentioned against the King's taking the Taillage or Taxes without their consent was made after that time but let it be made when it will you shall never pâ—rsuade me it was enacted without any Englishmen's being present till yâ—u can prove to me that there were no English Tenants in Câ—pite towards the end of 〈◊〉 Reign and that there were then no Knights Citizens or Burgesses that represented the Commons in the great Council and can give a better answer to those Arguments I have given you to prove they were there especially that remarkable clause in the conclusion of this Kings Charter to the Abby of Westminster which mentions divers Principal Persons both of the Clergy and Laity to have been summoned to that famous Synod or great Council when this Charter was granted I come now to your next head whereby you would prove this King's Abridgment of English Priviledges as to their Estates and Properties to begin with that of the Legislative Power which as you say was then wholly in the King admit it were so it will not prove that for which you urge it viz. that it is a sign of the Kings Absolute Conquest over the English for if the great Council of the Kingdom had then lost its ancient right it was only his Normans and Frenchmen as well as the English that he bereaved of their Ancient Priviledge of giving their consent to Laws since it is very certain that neither the K. of France nor the D. of Normandy could at that time make any Laws without the consent of their Estates But the truth is that your Conqueror could not do it neither for if the Normans
if the King had seised all the English Estates without any Legal Tryal as for example in Essex in Barnstable hundred In Burâ de istis Hidis est una de hominibus soris sactis erga Regem and this was the way of expression in the Active Voice we find in Noâ—folk Earl Ralf held such Lands Quando se foris fecit But more particularly in Cambridgeshire in Wardune Hardwin holds of Richard's Ancestors but Ralf Waders held it Die quo deliquiâ— contra Regem all which would never have been inserted could this King have taken away mens Lives and Estates without any colour of Law or Justice and therefore you may find in all the Historians of his time that after the great Plot wherein so many Norman as well as English Lords were concerned and for which Roger Earl of Hereford and Ralph Earl of Norfolk and Suffolk both Normans had conspired with Earl Waltheof and other English Lords to call in the Danes and dispossess the King yet they were convicted by a legal Tryal of their Peers and suffered death for it So that in this he distributed equal Justice to the Normans as well as the English who thereupon forfeited all their Estates and yet notwithstanding this there were some Native Englishmen still lest who tho' they had been in Arms against the King at the beginning of his Reign yet were nevertheless reconciled to him and restored to their Estates as for example Ederic Sirnamed the Forester who as Florence of Worcester tells us was reconciled to King William and accompanied him into Scotland soon after as also Herward the Son of Leofric Lord of Brunne who having lost his Estate and being Out-lawed as Ingulph tells us Took Arms against the King William and joyned himself with those in the Isle of Ely and yet after divers great Battels as well against the King as his Commanders yet at length having obtained his Inheritance by the Kings allowance he finished his days in Peace and now here were two considerable English Barons which still enjoyed their Estates notwithstanding all King William's severity and yet I do believe it will puzzle your Dr. to shew me their names in Doomesday-book so that that Book alone is not it seems a certain Rule to discover what Englishmen were then Barons or Tenants in Capite But admit all this to be true as you your self have represented it can this Kings perjury to his Subjects and breach of all Laws after so many solemn Oaths give him a right as a Conqueror over the Lives and Estates of his English Subjects and that after he had solemnly renounced his Right of Conquest by so many solemn transactions with his Subjects with whom you suppose he still made War after he had for so many years laid down his arms at this rate I cannot tell when subjects may be safe for let Kings that come to a Crown by a mixt title partly by force and partly by right take never so many Oaths to maintain the ancient constitution of the Government together with the Rights and Priviledges of the People 't is but his saying afterwards when he hath sufficient power that they were forced upon him and that he never designed to keep them and his business is done and he may then take away his Subjects Lives and Estates by this pretended right of Conquest whenever he pleases nor does this only extend to himself alone but to all his Heirs and Successors who claim under that Title let them take never so many Coronation Oaths or make never so many Declarations to the contrary since they all claim under the same divine Title of the Sword that is as you will have it receive their Crowns immediately from God and then can never forfeit them let them tyrannise to the utmost degree imaginable for you have provided them with two easie and pleasant excuses that all promises are either broken or kept and Stultám Sacramentum est Frangendum and I cannot but smile to see what an excellent excuse you have found out for all the breach of Oaths and Covenants of those engaged in the late Civil Wars since they might very well plead they had so many Royal Presidents for so doing as sufficiently authorised it unless you will have that to be Perjury in Subjects which must be a Divine Prerogative in Kings And therefore let me tell you I am very glad for your own sake that there is no body here but you and I since all the company would have cryed out and said that this way of arguing were to make open War not only upon all the Laws and Priviledges of this Nation but also to put the King and People in a state of War against each other for if he once declares by such Overt Acts as these of King William's that he will not be tyed neither by his Coronation Oath nor by any Laws he has made I doubt their Oaths of Allegiance will not long bind them neither and they will be very ready to reply that whatever power began and is continued by force and violence may also be cast off by the like means and when a King and his People are brought once into this state it is easie to foretell what will be the event either he must turn out or they must be all Slaves and I wish it was not owing to such Jesuitical flattering Councils as this that the King first lost the Affections of his People and then his Crown since Father Peters himself with the rest of the Jesuits and Arbitrary Ministers of the Cabal could never have instilled worse Principles than these therefore I pray for the future either get better reasons or keep those to your self But God be thanked both King Iames and K. Charles the First had much better thoughts of the Laws and Liberties of the Nation since the former hath solemnly declared in a Preamble to the second Act of Parliament in the first year of his Reign That not only the Royal Prerogative but the Peoples security of their Lands Livings and Priviledges were secured and maintained by the antient fundamental Laws Priviledges and Customs of this Realm and that by the abolishing or altering of them it was impossible but that present confusion will fall upon the whole state and frame of this Kingdom And his Son was of the same opinion in his first declaration at the beginning of the late Wars The Law says he is the Inheritance of every Subject and the only security he can have for his Life or Estate and the which being neglected or disesteemed under what specious shew soever a great measure of infelicity if not irreparable confusion must without doubt fall upon them M. If I had no love at all for the Government and Liberties of my Country as I thank God I have a great affection for both yet should I not have the Impudence to contradict the sense of two Kings and a Parliament neither have I so
the Prince had demanded This would have been not to have been parralel'd any where but in a Romance But as for those Officers and Souldiers who you say Deserted the King and went over to the Prince from Salisbury though I grant they make a great noise yet were they not a Thousand Men Soldiers Officers and all as I am Credibly inform'd which was but a small number in comparison with the Kings whole Army and yet these may very well be defended upon the same principles with the former for if the Violations of our Liberties were so great and dangerous as I have now set forth those Gentlemen were certainly oblig'd to prefer the common Good and Preservation of their Religion and Liberties before any private interests or Obligations whatsoever though it were to the King himself therefore it was more his than their fault if they Diserted him and as for their going away whilst they were his Souldiers and with their Commissions in their pockets I suppose you cannot expect that the King should have ever given them leave to have quitted his Service or have accepted of their Commissions if they would have surrender'd them unless at the same time he had clapt them up in prison for offering of it and if then they were perswaded that it was theiâ— Duty so to do it is but a Punctilio of Honour whether they went away with their Commissions in their pockets or had left them behind them since their going off was a Surrender of their Commissions and a sufficient Declaration â—â—at they could not with a safe Conscience serve the King any longer in this quarrel and you see that the going off of these few had such a fatal effect that it cast such a panick Terrour upon the King and the whole Popish Faction about him as to make him run away to London without striking a stroke But that the Prince of D. with the Dukes of Grafton and Ormond Lord Churchill were convinced of the danger this Kingdom was in both in respect of their Religion and Liberties appears by their leaving the King and going over to the Prince where they could never expect to be put into higher places of Honour or Trust than what they enjoyed already under the King and therefore that expression of the Lord Churchill's in his Letter to the King is very remarkable That he could no longer joyn with self-interested men who had framed designs against His Majesties true Interest and the Protestant Religion to give a pretence to Conquest to bring them to Effect And one would be very much inclin'd to believe so considering the great number of Irish Papists which have been brought over and listed here though with the turning out and disbanding of a great many English Officers and Souldiers out of several Companies But to come to the business of the Prince of Wales which you say was a meer calumny and an unjust suspition on the Princess side though I will not affirm any thing positively in so nice a matter since the Convention has not thought fit to meddle with it I shall only say this much that if there have been any jealousies and suspitions raised about it the King may thank those of his own Religion who were intrusted with the management of the Queens Lying-Inn For in the first place it looked very suspicious to us Protestants who do not put much faith in the Miracles of the Romish Church that immediately after the presenting of the Golden Angel to the Lady of Loretto and the Kings Pilgrimage to St. Winifreds Well the Queen after several years intermission should again be with Child and when she was so should have two different Reckonings Which though it may be forgiven Young Women of their first Children yet those who have born so many Children as Her Majesty are commonly more experienced in these matters M. What is all this to the purpose Was it not proved by many credible Witnesses and those of the Protestant Religion before the Privy-Council that they were not only present in the Room when the Queen was Delivered but that they had seen Milk upon Her Linnen before Her Delivery and that they had also felt Her Belly immediately before it and found that Her Majesty was Big with Child and ready to be Delivered And the Midwife Swears that she actually Delivered Her So that since every person is to be presum'd to be the true Son of those Parents that own him for theirs So nothing but a direct proof to the contray and that by undenyable Evividence ought to make any Man believe otherwise much more in the concern of the Heir apparent to the Crown and therefore I know not what you would have to been done which has not been observed in this nice matter F. And Sir let me tell you because it was so nice a matter and concerned no less than the Succession of Three Kingdoms therefore the whole Nation as well as the Prince and Princess of Orange were to be fully satisfied of the reality of the Princes Birth since they were all suffiâ—iently sensible that there wanted nothing but a Male Heir to entail Popery on us and our Posterity And therefore there ought to have been present such Persons as had no dependance upon the Court and who ought to have been deligated by the Prince and Princess of Orange since the Princess of Denmark could not be there in Person but instead of this the only two Ladies who as I am informed were trusted by the Princess to be present at the Queens Labour were never sent for till she was brought to Bed and the Child Drest And as for the rest of the Witnesses they were either Lords or other Persons who only Swear they stood in the Room at a distance and heard the Queen cry out and immmediately after the Child cry sometime before they saw it And as for the Ladies the greatest part of them Swore no further than the Lords So that notwithstanding all that they have Sworn in this matter there might have been a trick put upon them and they never the wiser Since you may Read in Siderfin's Reports of a Woman who pretended to have been delivered of a Child by a Mid-wife within the Bed and yet many years after this was proved to be a suposititious Birth by the Deposition of the Mid-wife and the poor Woman who was the real Mother of the Child and others that had been of the Conspiracy And what has been done once may be done again 'T is true the King himself with one or two Ladies Deposed something further as to Milk and the feeling of the Child immediately before the Birth but his Majesty if it be an Imposture is too deeply concerned in it to be admitted as a competent Witness And as for the rest of the Ladies they are likewise being as the Queens Servants and having an immediate dependance upon her to be excepted against and under too much awe to speak the whole Truth
But it is very strange to me that none of them deposed any thing concerning their seeing any Milk come from Her Majesties Breasts after she was Delivered And perhaps there was good reason for it for I have had it from good hands that she had none afterwards whatever she had before the reason of which deserves to be enquired into since it is very rare But as for the Mid-Wife her deposition is equivocal That she took a Child from the Body of the Queen She is also a Papist and consequently a suspected witness in this cause Whereas all this might have been prevented had the Queen were she really with Child been perswaded to be Delivered not within the Bed but upon a Pallate where all the persons whose business and concern it was to be present might have seen the Child actually born nor needed there to have any men been by though I have heard that the late Queen of France was Delivered of the present King the Dake of Orleans not being only present in the Room but an Eye-witness of the Birth And so sure if somewhat of this nature had been done it might have saved a great deal of dispute and bloodshed which has already or may hereafter happen about it And therefore I do not at all wonder that the Prince of Orange should not take this partial Evidence that has been given for sufficient satisfaction so that whether this Birth of the Queens was real or not I shall not now farther dispute It is sufficient that if His Highness and His Princess had just and reasonable suspitions of an Imposture whilst they remain under them they had also a just cause of procuring a Free Parliament to examine this great affair and also to obtain it by force since it was to be got no other way M. I need not further dispute this business of the Prince of Wales with you since I durst appeal to your own Conscience whether you are not satisfied notwithstanding these supposed indiscretions in the management of the Queens Delivery that he is really Son to the Queen and I think it would puzzle you or I to prove the Legitimacy of our own Children by better evidence than this has been and I think all those of your party may very well despair of producing any thing against it since the Prince of Orange himself has thought it best to let it alone as knowing very well there was nothing material could be brought in evidence against him But I shall defer speaking further to this Head till I come to consider of the Conventions setling the Crown upon the Prince and Princess of Orange But before I come to this I have many things further to observe upon the Princes harsh and unjust proceedings with his Majesty and refusing all terms of Accommodation with him upon his last return to London In the first place therefore I must appeal to your self whether It were done like a Nephew and a Son-in-Law after the King was voluntarily returned to White Hall at the perswasion of those Lords who went down to attend him at Feversham when he had had scarce time to rest him after his journey and the many hardships he had indured since his being seized in that Port and when he had but newly sent my Lord Feversham with a kind Message and Complement to the Prince inviting him to St. Iames's together with some overtures of Reconciliation as I am informed the Prince should make no better a return to all this kindness than to clap up the Messenger contrary to the Law of Nations as his Majesty observes in his Late Paper I now mentioned And should without any notice given to the King of it order his men to march and displacing his Majesties Guards to seize upon all the Posts about White-Hall whereby his Majesties Person became wholly in his Power And not content with this he likewise dispatcht three Lords whose names I need not mention to carry the King a very Rude and Undutiful Message desiring him no less than to depart the next Morning from his Pallace to a private House in the Countrey altogether unfit for the reception of his Majesty and those Guards and attendance that were necessary for his security Nor would these Lords stay till the Morning but disturbing his rest delivered their Message at Twelve a Clock at Night nor did they give him any longer time than till the next Morning to prepare himself to be gone and then the King was carried away to Rochester under the conduct not of his own but of the Princes Dutch Guards in whose custody his Majesty continued for those few days he thought fit to stay there till his departure from thence in order to his passage into France by which means the Prince hath render'd the breach irreconcileable between his Majesty and himself for whereas if he had come to St. Iames's in pursuance of the Kings Invitation and had renewed the Treaty which was unhappily broke off by the Kings first going away there might have been in great probability a happy and lasting reconciliation made between them upon such terms as might have been a sufficient security for the Church of England as also for the Rights and Liberties of the Subject which you so earnestly contend for whereas by the Conventions declaring the Throne vacant and placing the Prince and Princess of Orange therein they have entail'd a lasting War not only upon us but our Posterity as long as his Majesty lives and the Prince of Wales and his Issue if he live to have any are in Being F. I confess you have made a very Tragical relation of this affair and any one that did not understand the grounds of it would believe that King Iames being quietly setled in his Throne and the Prince of Orange refusing all terms of reconciliation had seiz'd upon his Pallace and carried him away Captive into a Prison whereas indeed there was nothing transacted in all this affair which may not be justified by the strictest Rules of Honour and the Law of Nations for the doing of which it is necessary to look back and consider the state of affairs immediately after the Kings leaving Salisbury and coming to White-hall where one of the first things he did after he was arrived was to issue out a Proclamation for the calling a new Parliament which was so received with great satisfaction by the whole Nation and immediately upon this the King sent the Lords Hallifax Nottingham and Godolphin to treat with his Highness upon those Proposals of Peace which he then sent by them and to which the Prince return'd his answer the heads of which are very reasonable without demanding any other security for himself and his Army than the putting of the Tower and Forts about London into the Custody of that City now pray observe the issue of all those fair hopes before ever the terms propos'd by the Prince could be brought to Town the King following the ill advice of the
Popish Faction instead of suffering the Elections for Parliament-Men to proceed as he had promised and as was hoped for by us all on a sudden he order'd the rest of the Writs for Elections that were not sent down to be burnt and a Caveat to be entred against the making use of those that were sent already into the Country and at the same time he sent Order to the Earl of Feversham to disband the Army and dismiss all the Souldiers with their Arms. But I had forgot to put you in mind that just before this the King had sent away the Queen with the Prince into France and that she carried the Great Seal of England along with her whereby it was plain the King intended to put it wholly out of his power to Issue out any Writs or Pass any publick Act wherein the Great Seal should be used and that this Seal was carried away appears by its being not long since drawn up out of the Thames by a Fisherman's Net near Lambeth Bridge where it 's supposed to have been thrown in by the Queen or some of Her Attendance in Her passage over the Water and farther that the King was resolved wholly to quit the Government of this Kingdom at least for the present appears by his so speedy following of the Queen within three days after stealing from his Pallace by Night in a Boat to Gravesend and from thence in a small Vessel to Feversham where how he was seis'd by the Mob of that Town and afterwards return'd to London as you have set forth I need take no further notice Now this being a true and fair Narrative of the whole Matter I shall only offer two or three questions to your consideration and desire you would give me a fair and satisfactory answer to them First pray tell me whether it was not the Kings fault that it was rendered impossible for Parliament-Men to be elected by burning of the Writs and sending away the Great Seal Secondly whether the King by first stealing away did not plainly confess himself conquer'd by the Prince and did thereby Abdicate the Government also by his obstinate refusal to redress the Grievances of the Nation hath forfeited his Crown and all Allegiance from his Subjects and was not after this to be own'd as King of England either by the Prince of Orange or any body else and therefore whatever treatment he after this received from the Prince it was not to be looked upon as done to a Lawful King but a Conquered Prince and his Highness might not only justly refuse to treat with him any more as a Crowned Head but might also have justified not only the taking him Prisoner but sending him into Holland if he had pleas'd but instead of this the Prince only desir'd his removal out of Town from that conflux of Papists that flocked to him and by securing his Person to put it out of their power to play an after-Game and rally the late disbanded Army of whom there was at least twenty thousand of the Scotch Irish and English who would have stood by the King till the last and therefore the English as well as the Dutch Counsel about the Prince did not think it safe for him to come to Town as long as the King had his Guards about him at White-hall since they might have been increased to an Army whenever he pleased And though I grant good breeding and manners especially to Kings as also respect from a Son-in-law to a Father are duties incumbent upon Princes as well as private Men yet when these lesser things stand in competition with their own welfare and safety as also of the whole Nation for which the Prince was now engaged if he might for these ends justly require the removing and securing the Kings Person it was no great matter what time of night he had notice to remove though this was not done neither with any design to affront or surprise him but happen'd indeed through pure accident for when it was resolved that the Princes Guards should March to London and secure White-hall it was also resolved that the King should have notice to remove and since it was not thought fit to let him know it till the Posts were all secur'd the ways being very deep and dirty between Windsor and London the Dutch Guards commanded by Count Solms could not reach the Town till past ten at night and after that it was near twelve before the English Guards about White-hall could be drawn off without fighting and till that was done it was not thought at all proper or safe to deliver to the King the Princes message for his departure so that indeed it was not of any design that either the Prince and his Counsel who ordered it or of these Lords who very well understand good breeding thus to deliver their message to him at that time of Night But tho he was in Bed yet that he was not a sleep is very probable since he had not been above half an hour in Bed and it is not very likely he should be a sleep when he very well knew before of the arrival of the Princes Troops about White-hall and therefore could not be without too much concern about it presently to compose himself to sleep But as for his removal from London it is plain that his Highness was so far from owning or receiving the King in the same capacity he was in before his departure that as soon as ever he heard he was at the Earl of Winchelsea's and about to return to London he sent away Monsieur Zulestein with a Letter to let him know that he desired him not as yet to come to London but to stay at Rochester till he himself should come to Town but Monsieur Zulestein missing of the King by the way he came to White-hall yet could not but know that his being there was not with the Princes consent since the same Gentleman followed him thither and there delivered him the Princes Letters so that this second Message by these Lords could be no new thing or surprise to him yet that his Highness never intended or acted the least violence towards the Kings Person may appear by this that he left it to the Kings choice what place he would go to as also what Guards or other Attendance he would take with him and the King refused to take his English Guards with him though they were offer'd him and indeed these Dutch Guards that attended him might in his Majesties judgment be very well trusted they being as well as their Officers for the most part Papists but that the Prince did not intend either to detain his Majesties Person as a Prisoner may appear in this that whilst he remain'd at Rochester none that would were debarr'd from access to him and that the Officers and Souldiers of the Guards were order'd to be under his command and every Night to take the Word from him and had it not been for the Kings
commanding a Centry to be drawn off from his usual Post he could never have gone away without being discovered and if he would have gone away at Noon Day I know not who unless the Rabble would have hinder'd him so that I think it is evident that this was the civilest and mildest usage that a vanquisht Prince could expect from him that had so much the better of him and in whose power he now was and I doubt more than the King would have allowed the Prince had it been his Fortune to have got him as much in his power nay the King was so far from being confin'd that it is plain he had the liberty given him to go whither he pleased nor were these Guards plac'd so much about him for his confinement as to secure him from the insults of the Rabble who otherwise there as well as they did at Feversham might have expressed too violent a resentment against his Person M. I cannot deny but you have given a very-fair and as far as I know a true account of this transaction and have told me some things which I never heard before but however I cannot depart from my first opinion that it was neither honestly nor wisely done of those who took upon them to advise the Prince to push things to extremities in this conjuncture and therefore I impute it chiefly to those English who supposing they had by taking Arms and joyning themselves to the Princes party provoked the King beyond all possibility of Pardon were resolved to do their utmost to put it out of the Kings Power ever to call him to an account for it and tho' perhaps his first sending away the Queen and Prince and then going away himself in the middle of a Treaty with the Prince and thereby leaving his Affairs in such confusion may seem to deserve blame yet certainly his Majesty is to be excused in a great measure for what he then did for as he tells the Earl of Feversham in his Letter to him to Disband the Army That things being come to that extremity that he was forced to send away the Queen and the Prince his Son that they might not fall into the Enemies hands and was also constrained to do the same thing himself and follow them since the Troops of his Army were not to be relyed on that it was not adviseable for him to Fight the Prince of Orange in the Head of them for it was but reasonable that Princes as well as other men should provide for their own security as well as they can But yet I can never believe that his Majesty's first going away was any Abdication of the Government much less a forfeiture of his Crown or Royal Dignity any more than the second for in the first place it could be no forfeiture according to your own Principles because he had already Dissolved the Ecclesiastical Court and restor'd the Cities and Corporations to their former Charters and Freedom in Elections of Parliament-Men and putting again in Commission all Lords Lieutenants and Justices of the Peace who had been before turned out and if he could not give an intire redress to all our grievances by a free Parliament it was only because he durst not stay to hold it since he thought he could have no security for his Person the whole Nation being in a manner poisoned and prepossessed against him by those malicious Artifices of a French League and a suppositious Prince and that his Majesty had so many unfortunate disappointments and so surprizing and unparallell'd accidents part of his Army deserting him and the rest too apparently unserviceable when there were such terrible disorders in the Kingdom and all places were either flaming or about to take fire So likewise could it not be properly any wilful desertion or Abdication of the Government since he was forced to quit it like the master of a Ship who when the Vessel is like to sink is forced to leave her and escape in a Cock-boat and that his Majesty did not act thus without an intention to return and again to vindicate his right when opportunity served appears likewise in that passage in the above mentioned Letter wherein he desires both the Officers and Souldiers of his Army then to be disbanded To continue their Fidelity to him and to keep themselves from Associations and such pernicious things from whence it plainly appears he went not away without a prospect of returning to his Throne when Time should serve and if he left no orders at all for the Government of the Kingdom in his absence nor named any Commissioners or Lieutenants to represent him it was because he thought it to no purpose since besides that he could find no body who durst undertake so difficult an employment so they that had taken it would have found no body who would obey them the generality of the People and also of the Kings Army being more inclinable to the Prince of Orange than to himself Yet however you see upon his return to Town the King was so well persuaded of the Prince of Oranges kind intentions towards himself and the Nation that I verily believe that his Majesty would have yielded to any thing that could in reason have been desired of him and upon this ground I suppose he writ so kindly to the Prince and invited him to come to St. Iames's with what Troops he should think fit for his security therefore I must needs tell you again I think it was a great oversight of the Prince of Orange thus to let slip this opportunity by refusing all terms of accommodation with the King his Father and by clapping up my Lord Feversham then seizing the Kings Person and sending him out of Town to let all the World see he was resolved to treat no more with him and this being the true state of the case it is not your saying that he had forfeited his Crown by going away and consulting his own safety that will convince any unprejudiced man for as to your notion of a forfeiture that they were not then entred into the Thoughts of the Peers and others of the Privy Council appears by the Order they made for sending the Lords Feversham Alesbury â—armouth and Middleton most humbly to intreat the King to return to White-hall so that he was received very joyfully and with great Acclamations of the Common People as he passed through the City and when he came to White-hall he called a Council where he made an Order to stop the demolishing and plundering of Houses by the Rabble so that he was not only receiv'd but also acted as a King after his return to Town This being the true state of the case I shall not dispute the point whether his Majesty and the Prince were in a state of War or Peace after his return to Town or what the Prince might have done as an Enemy and a stranger to the Kings Person but what might be expected from him as
still here for the King did not leave Rochester until the 23d in the morning so it is plain it was not their design to own or take notice of him any more as King and that which makes it more remarkable is that several of the Bishops viz. the Arch-Bishop of York together with the Bishop of St. Asaph and others joyned with the rest of the Peers in these Addresses which was a plain sign they all looked upon the Kings Power to be now at an end But as for the Acclamations of the people or any great joy the City expressed upon the Kings return to Town I doubt you have had a false account of that matter for I cannot hear that any of the Citizens went out to meet him or set any Lights in their Windows though he came into London after it was dark or that any of the better sort bid him God Speed I grant indeed there was a great many of what you call the Mob but more Boys than Men who followed his Coach making Huzza's whilst the rest of the people silently looked on M. I cannot deny but you may have given a true account of these matters since you may have observ'd them better than I yet as you your self have Related them sure the King had sufficient cause to Consult his own Safety and make his escape as soon as he could for what could he expect when once the Prince had secured his Person under a Guard and had refused to Treat with him as King and that also the Peers and divers of the Bishops had made an Association to stand by the Prince of Orange and had made a fresh Address to him without taking the least notice of him as if there had been no such thing as a King in being I say what could his Majesty now expect but either a more close Confinement or else being taken off privately by poyson or some other ways since he could not be forgetful of the King his Fathers saying that there is no great distance between the Prisons and the Graves of Princes or admit he had lived till this Convention Saâ—e what could he have expected more than the retaining the bare Title of King whilst the Prince of Orange or some others appointed by Him had wholly managed the Government at their pleasure or else they might according to your Doctrine have either declared the Crown forfeited or else that he had Abdicated it by his going away or who can tell but they might have again renewed the Villany of 48. and have made him undergone the same Fate with his Father F. I grant you have urged the utmost that can be to justifie the Kings second Departure and as I would not deny but that he was the best Judge of his own Danger so were the Prince Peers and Common together with the City the best and only Judges we could then have of the true means of our settlement and safety since after so many breaches that the King had made upon his first Declaration and Coronation Oath as also his going from his late Promise of calling a Free Parliament I cannot see what farther security he could have given us that he would not repeat the same things over again or admit the Prince had suffered him to continue at White-hall and to call a third Parliament what assurance could he have given that in the end of another forty days we should not have the same trick play'd us and then in March or April have been left in the same state of Confusion we were in in December to the certain ruine of these three Kingdoms and Holland into the bargain And then by that time the French King might have got ready an Army and a Fleet and under a pretence of redeeming his Majesty from the constraint he lay under and of restoring him to the free exercise of his Regal Power have Invaded this Kingdom and I suppose you cannot deny but the King would then have sound Papists and High Tories enough to have joined with him in this pious design for certainly the scruples of the high Church-men would have been the same they are now the obligations of the Oath of Allegiance the same and the supposed Sin of deposing a Lawful K. the same though he had utterly refused to give the Prince and Nation any satisfaction so that then if we had been forced to take Arms and to declare he had forfeited his Right to the Crown all these things would have given as great or rather greater scandal than for the Nation to take him at his first offer and since he had thus rashly deserted the Throne by a needless departure to resolve he should Ascend it no more But suppose what might also as well have happened that the Prince and his Party had been killed or expelled the Kingdom by the King do you think he would have granted us then what he would not grant us now Would he not think you have disbanded his Protestant Army and have kept only Irish Scotch and French Forces in pay and have every day encreased them What respect can we hope he would ever after this have shewn to our Laws Religion or Liberties when he had now no longer any thing to fear The memory of what happened after the Duke of Monmouth's defeat though effected only by those of the Church of England will certainly never be forgotten by others whatever you Bigots of Loyalty may pretend or say So that for my part I stand amazed to see you and so many others scruple the submitting to the present King for if ever man had a just cause of War he had and that creates a right to the thing gained by it the King by withdrawing and disbanding his Army yielded him the Throne and is he had without any more Ceremony ascended it he had done no more than several Princes formerly have done on the like occasions for the Prince was no longer then bound to consider him as one that was but as one that had been King of England yet in that capacity he treated him with great respect and civility how much soever the King complained of it who did not enough consider what he had done to draw upon himself that usage but as for your insinuation that if he had stayed he might have run the same fate with his Father I think it is fuller of Passion than Truth for besides that the Lords and Commons would never had the Impudence to have committed such a Villany and the Prince himself as a Nephew and a Son-in-Law would never have suffered it M. Well God only knows the event of things and we ought to judge charitably and still to hope that if the King might have been restored upon terms that he would have been the better for his Affliction and have amended all those errours he committed since he had seen that neither the Nation nor yet his Neighbours the Dutch would permit him to make himself an Absolute
Monarch I believe he would have been too much afraid of the King of France ever to have made use of his Forces to have setled Popery and Arbitrary Government and without his assistance I suppose you will grant it never could have been done since he plainly found that a Protestant Army would never have joined with him to act in such pernitious designs but however let the worst have happened that could be I think it had been much better for the Nation to have endured it with Patience than to have done that which was Evil though for the procuring of the greatest seeming Good tho' for the advantage of our Religion and civil Liberties and therefore it had been better for us in this extremity to have trusted God than Men since he always promises to protect those that relye upon him and strictly perform his Will and admit the worst that could have happened God would either have removed those afflictions from us in due time or have given us Patience to have born them since I suppose you will not deny that God oftentimes brings Persecutions and Afflictions upon a Sinful Church and Nation either for a punishment for their Sins or else to give an occasion for those that are truly Pious and Sincere to shew their Courage and Constancy in Suffering for the Truth and by withstanding not by force but Passive Obedience all the Kings Illegal and Arbitrary Commands if he should after his re-establishment in the Throne have again renewed his former courses these are the only remedies which we of the Church of England as obedient Subjects to the King and his Laws must think could have been Lawfully taken in this case F. I do not deny but what you say is in the main very pious and honest were the case as you have put it but the greatest part of your discourse depends wholly upon those old principles and prejudices of the unlawfulness of all resistance of the Supream Powers and that the King is the only Supream Power in this Kingdom both which propositions I have sufficiently confuted at our third fourth and fifth meetings and also at our last save one in which I gave you a true account of the Legal sense of those Oaths and Statutes of King Charles II. concerning Resistance as was also given by the best Lawyers and most considering Men of the then House of Lords and Commons so that if the means we have used are lawful both by the Laws of God and Man I think we are not bound to bring Afflictions upon our selves but to avoid them all we can especially when they come evidently attended with the utter loss and ruine of what ought to be most dear to us our Religion Civil Liberties and Properties and that not only for our selves but our Posterity who perhaps would never have regained them when they were once lost of which the French Nation is an evident example before our Eyes who by not opposing the Arbitrary Power of their Kings in due time have fallen into a Government almost as Despotick as that of Turky for when once the common good of the Subjects ceases to be the main end of the Governours the Government then ceasing to be Gods Ordinance degenerates into Tyranny which I think may be always Lawfully opposed by a free-born People who at first agreed to be Governed not as Slaves but Subjects But as for the first part of your Speech it needs not any long answer it first supposes the King might have been again restored upon terms now since it is plain these Terms must have been imposed upon him against his Will and as necessary Conditions of his Restoration I would be glad to know who it was should undertake to impose them upon him and to see them kept when they had been made whether the Prince of Orange or the Parliament if the former I grant indeed he might have made such Conditions with the King that the Church of England as well as the whole Nation should for the future enjoy their Just Rights and Liberties but then the Prince must either have trusted wholy to the Kings Honour or else he must have had some strong places put into his Hands for a Security that the King would not again make the same Violations upon our Laws Religion and Liberties as he had done before if the former I suppose you will not deny but that the King might if he had pleased have broken them all again as soon as ever the Princes back had been turned and that he had been once engaged in a War with France which could not have been long avoided considering the necessity there is at this juncture of time for the States of Holland and Consequently the Prince as their General to engage with the Emperor and King of Spain to drive the French out of the Empire and to hinder him from making himself Universal Monarch of Europe which it is plain is the thing he now drives at But if the Prince should have kept any strong places here as cautionary Towns for the Kings performance of the Terms agreed upon this must have been done either by English or Forreign Forces if by the former this would have been looked upon as inconsistent with their Duty and Allegiance to the King if he should have commanded them to be delivered up into his Hands since you tell us the King has the sole Command of the Militia and consequently of all Garrisons man'd by his Subjects within his Dominions But if the Forces that should have held these places had been Dutch-men or other Forreigners it would never have been endured either by the King or the Nation that Forreigners should possess the strong Holds and Keys of the Kingdom and the King might soon have wrought by some jealousies and suspitions which he would not have failed to have raised that the Nation it self should have joyned with him to drive them out and then the King might have done what he pleased without Controul but if you will place this power into the whole People or Nation or else their Representatives the Parliament of holding the King to these Terms agreed upon this could not have been done without their constant Siting and a power of Resisting him in case he infring'd them and then either they must have given up all their Liberties to the Kings Will or else farewell to the Darling Doctrines of Passive Obedience and Non-resistance so that take it which way you will all imposing of Terms upon the King either by the Prince of Orange or the Nation would in a short time have become either Unpracticable or Insignificant Nor is your other Supposition any whit truer that the King would never have made use of the Forces of France to subdue and keep under the people of England for fear he should not be able to get the French out again Ti 's true this would be a very good Argument to a Prince who were no Bigot and was not resolved
during his confinement there sent a Lady I could name on a message to two reverend Prelates of our Church together with an Emrauld Ring from his Finger as a Testimony of the Truth of her Commission to this effect That his Majesty being sensible of the sad condition the Church of England as well as he himself was in and that there was no way so likely for him to get out of it as by granting his Subjects and particularly the Church of England such securities for the enjoyment of their just Rights and Liberties as they could in reason demand therefore he wholly left it to the discretion of those Bishops to make to the Peers and Bishops that were then to meet suddenly whatever proposals they should think reasonable on his behalf for the satisfaction of the Church and safety of the Nation and that he would be ready to grant and ratifie them whensoever he should be required F. This is indeed more than ever I heard before and can scarce believe but did the Lady go and deliver her message And pray what answer did those Bishop give to this fair proposal M. Yes the Lady did deliver her message and these Bishops answer'd both to the same effect that they had a real duty and affection for his Majesty and a great desire to serve him but that considering the great Power of the Prince of Orange and his present aversion to any agreement with his Majesty they very much feared that the Peers would not venture to give the Prince any such advice or to interpose with him on his Majesties behalf which in my opinion was very meanly and cowardly done of them who considering their duty to him as King and also those particular obligations they owed him as their Benefactor and who had been the greatest means of their being raised to those dignities in his Brothers Reign now I desire to know if this message had received its intended effect what greater demonstration his Majesty could have given to satisfie the World that he really intended to set all things right again had he been permitted to do it F. I will not farther question the Truth of this Relation though perhaps I might have sufficient reason for it since you say you had it from a person of good credit and who was privy to this transaction nor yet will I be so inquisitive as to know the names either of the Bishops or of the Lady since you make it a secret but yet notwithstanding I do still very much question whether the King did ever really design to do what he then offer'd and did not intend to put a sham upon their Lordships to serve his present occasion and to see if he could divide the Bishops and Peers of the Church of England from the Prince of Oranges Interest and so by making them offer such Proposals as the Prince should not think fit to agree to might make them declare against his proceedings which would have created great divisions and heart-burnings between those of the high Church of England party and the Prince and thereby have involved us again in fresh disturbances of which no doubt the King and the Popish Faction were like to receive the greatest advantage for you know the old saying divide impera But to let you see that I do not speak without just grounds for my opinion let us examine every circumstance of this matter first if the King had meant really is it likely that he would have trusted a business of that high moment to a Woman When he had then the Lords of Alesbury and Arron besides other Protestant Gentlemen then waiting on him and they were much fitter to be trusted than this Lady let her be whom she will Or can any one believe if the King had meant really that he would not have sent his Proposals in Writing since he very well knew from the Princes Declaration as well as the Bishops Petition and Addresses to him what the whole Nation and the Church of England in particular required at his hands But that he must send a loose and uncertain Message which it was in his power to disown whenever he pleased by saying the foolish Woman mistook his meaning and she also might be so much his Creature as to take the fault wholly upon her self whenever it should serve the Kings turn so to do and therefore I think it was very wisely and honestly done of those reverend Prelets to refuse medling in such a ticklish affair since it is plain by his not making any such proposals to the Prince of Orange himself or the Lords about him that he was not to be made privy to it but rather it should be carried on whether he would or no and without giving him any satisfaction in his particular concern as to the Prince of Wales and lastly I desire you farther to consider whether the King might not hereafter when ever he had power have made void whatever agreements or concessions he should have then granted either to the Church of England or to the Nation by pleading afterwards that they were obtained by decrees whilst he was not sui juris but under the Power of the Prince of Orange I have but one thing more to add which I before omitted which is to make some reply to what you said concerning the mischief that the Mob has done upon Houses Forests and Praks since his Majesty's first departure and therefore granting the matter of Fact that much mischief and spoil has been committed yet I deny that it is more than has been done by the most Arbitrary Kings since the Conquest to this day as you are pleased to affirm for I believe you forget the Thirty Parish Churches and Towns which our Historian tell us your William the Conquerour and his Son Ruâ—us destroyed when they inlarged new Forrests and therein acted contrary to their Oaths like true despotick Tyrants you likewise forget the miserable spoil and waste which King Iohn and Henry the III. made upon the Houses Castles and Estates of the Barons and Gentry of England who opposed them in their unjust and illegal violations of Magna Charta besides other Tyrannical actions of the same kind committed by King Edward and Richard the II. too long here to relate but if these mischiefs were done you speak of who have we to thank for it but the King who stealing away on the sudden without leaving any orders for the Government of the Kingdom all persons in Commission either Civil or Military doubted whether their Commissions were noâ— at an end by the Kings deserting the Government as he did besides you very well know that the Common People were so enraged against the Popish Faction for so many insolent actions they had committed in King Iames's Reign and so many apparent breaches and contempts of all the Laws made against them that you cannot wonder if when they were rid of the fear of the Irish and of King Iames's Army they kept
which may oftentimes tend to quite other purposes than what we suppose As for the next Clause by breaking the Original Contract I have heard that divers of the Lords and Bishops who were for the King against this new Invention of an Abdication put the other side very hard to it to make out this Original Contract and desired them to shew in what part either of our Common or Statute Law it was to be found for they knew no such Maxim in the Common Law nor no such Clause in any Statute Aucient or Modern And though I confess you have undertaken to prove to me that there is such a thing yet it has been only by Far-fetch't Consequences and from the Old Form of Government among the Saxons of above 600 years standing which iâ— there were any such thing it is now become so Antiquated and out of Date that neither the King himself nor yet our Lords Bishops or Judges except some few Lawyers of your Kidney ever before now thought of any such thing I pass by the next Clause by the Advice of Jesuits c because I cannot say by whose Advice those things which you call Breaches of the Fundamental Laws were acted but as for the next wherein the Violation of these Fundamental Laws is lay'd to his Charge I confess you have given me a prety large Catalogue of these Fundamentals at our 9th meeting which yet you cannot say are to be found together in any one Law but are to be picked up here and there out of Magna Charta and divers other old Statutes but since the King and Parliament have declar'd in the first year of King Iames I that there are such things as Fundamental Laws and Priviledges I will not deny there are none yet certainly any Breach of them by the King was never intended to Create a Forfeiture of the Crown for if it had I think there would have been but few Kings or Queens of England which would not have forfeited who for some one or more of these Breaches committed in their Reigns by the Advice of their Judges and Councellors as these were lately by the King For I suppose you cannot expect that Princes should see any otherwise in matters of Government than by other Mens Eyes nor hear but by other Peoples Ears And therefore if the wilful Breach of these Fundamentals must cause a Forfeiture or Abdication of Government call it which you please methinks it had been reasonable for the Parliament to have given a list of these Fundamentals in some one Law that the King might have been sure to have avoided the Transgressing of them and fear of losing both his Royal Dignity and his penalty ought also to have been declared But the next Clause deserves more particular consideration viz. and having withdrawn himself out of the Kingdom hath Abdicated the Government now I must confess it is the first time that ever the Kings going away for fear of losing both his Royal Dignity and his Life and that with a declar'd design and intention to return again to the exercise of the Government when ever he might do it with safety should be judged a wilful Dessertion or Abdication I am sure there is nothing in our Common or Statute Laws that can at all warrant this Notion for Common Law is nothing but Ancient usage and immemorial Custom Now Custom supposes presidents and parallel Cases But it 's granted of all Hands that the Crown of England was never judged to be Abdicated by the withdrawing of the Prince before now And therefore it follows by undeniable consequence that this Opinion can have no Foundation in the Common Law because there is not so much as one ruled Case to prove it by But if we come to those presidents we have in our English History I shall give you such of them as I can remember we read in the Reign of Edward the 2d that when he fled from the Forces of his Wife and Son who had seized the Kingdom by Force the King being deserted by his Souldiers and Followers indeavoured to get into the Isle of Lundy for safety but not being able to make it was driven back and taken in Disguise at the Abby of Neath in Wales as the King was lately at Feversham now it is certain that King Edward went away without appointing any Governour of the Realm in his absence and if this Notion of an Abdication had been then taken for Law the Parliament needed not to have been put their to Shifts to find out so many other matters for which to depose him The next is the like case of King Edward the 4th who when the Earl of Warwick had Raised a great Army against him on a suddain and forced him to fly with a few followers to the Duke of Burgundy his Brother in Law though Henry the 6th was again put into the Throne yet was it not objected against King Edward that he had lost his Title to it or that it was become vacant by his Deserting it and if these two are not parallel Cases and do not reach the matter in hand I desire you to shew me wherein they differ from the present Case of the King But I am come now to the last clause of all that the Throne is thereby become vacant which seeming only to refer to the clause of Abdication I think I have said enough already against that Notion Therefore we will admit at present for Discourse sake that the King had really Abdicated the Government by Deserting the Kingdom and thereby wholly lost his Regal Power Now according to the Fundamental Laws and Customs of this Realm which is you know an Hereditary Monarchy the eldest Son or other next Heir either Male or Female immediately Succeeds the King his Father or other Predecessor and that without any inter-regnum at all so that the Reign of the Successor immediately begins from the very moment the Last King or Queen Deceases this being the setled Law I cannot see any one step the Convention has made in their whole proceeding that can be justified by the Fundamental Laws of the Land or the Laws of Equity and Justice for Equity has no quirks in it nor ever lies at a catch Reason is always just and generous it never makes mens misfortunes an accusation nor judges in favour of violence for indeed what can be more unrighteous though in the Case of a private person than that any one should suffer yet worse for being injured and be barred his rights for the injuries of others If a man should forfeit his House to those who set it on Fire only because he quitted it without giving some formal directions to the Servants or be obliged to lose his Estate for endeavouring to preserve his life I believe it would be thought a strange piece of Justice in any Law whatever and if this be proved illegal the Title of your Present King and Queen being wholly founded upon the validity
of this Vote will prove so likewise F. Well you have made a pretty long discourse in Defence of King Iames's Actions as well as his late Desertion and I have heard you patiently because I grant you have collected together a great deal of matter in few words and I think all that can be justly urged in your Kings defence I shall therefore begin with the first false step that you say the Convention made in not inquiring after the Causes of the Kings departure whither he was gone and their not voting of an Address to the Prince to desire his return as for the first of these they were not at all obliged to do it since a great many of the Peers and Bishops who were then in Town very well knew the Causes of the Kings Departure and that he either went a way voluntarily or at least without any other necessity than what he had brought upon himself by his own evil Government or the ill Council of others which may be easily proved by several Circumstances for it is very well known that above a formight before the King went away the Lord D and Mr. Brent did not stick to declare that it was necessary that the King should withdraw himself so that it is plain the Popish Faction knew of it long before it was done and that it proceeded wholly from their advice appears further by a Letter to the King when he was at Salisbury which can be yet produced he was there told that it was the unanimous advice of all the Catholicks at London that he should come back from thence and withdraw himself out of the Kingdom and leave us in confusion assuring him that within two years or less we should be in such confusions that he might return and have his ends of us Now if the King was pleased to take such a desperate Counsellors Advice and thereupon to do all he could to quit the Kingdom the cause of his going is too evident as well as his design of returning to have his ends of us as they phrase it that is in plain English to have both our Religion Liberties and Properties wholly at his disposal nor in the next place needed they inquire where he was for every one knew he was gone into France to the greatest Enemy of our Religion and Nation as well as the Princes and therefore it had been altogether unsafe and indiscreet for them to have joined in any Address to the Prince for his return for whilst he was in such hands what hopes could we have of his returning to us with better but rather worse affections towards the Church of England and this Nation than what he carried with him But you say they refus'd to receive his Letters for my part I do not know that he ever sent any at least to the House of Commons I heard indeed that one of the Kings Ordinary Servants was at the Door of the House with such a Letter but that he was so inconsiderable that no body would receive the Letter or make any mention of it in the House and it was very strange that the King should have never a Friend there who had so much courage and kindness for him as would take the Letter and move for the reading of it though he had run the risque of being committed for his pains so that the House of Commons is not to be blamed for not receiving a Letter which was never offer'd them but as for the House of Lordâ— I have been told it was moved to be read there but it was carried in the Negative because it was not brought by a person of sufficient quality and credit and therefore it was the Kings fault if he would imploy such mean persons in a matter of that great moment and indeed if we may give credit to those Copies of these Letters which I have seen they retain'd rather a Justification of his past actions than an acknowledgement of those violations he had committed upon our Laws for as to his promising to Govern by Law there is nothing in that for he never yet own'd that he Govern'd otherwise 't is true there is in one of those Letters an expression of his amending past Errours but those are general words and may mean such Errours as he had committed in the ill management of his Designs which he would have mended when ever he was to do the like things again this may very well be the true Sence of a Letter it iâ— very likely written with the Equivocation of the Jesuits and French advice of a Cabal But you would have him sent for to return upon certain Terms I wonder you should be so undutiful as to urge it since if he is an absolute King without any Conditions what ever he ought certainly to be restored as King Charles the Second was without any Terms or Conditions at all and rather so than with them since he cannot give us greater assurances for his keeping them than he has already broke unless you can suppose he would give us the Guarranty of the Pope and the King of France for their performance the former of whom believes that there is no Faith to be kept with Hereticks and for the latter supposing the King and him to pass his word for the performance of these Conditions pray consider whether the bond of two Bankrupts can ever pass for a good Security and so much for the Letters and Address I come now in the next place to consider your exceptions against that Fundamental Vote of the House of Commons concerning King Iames's Abdication of the Government and thereupon declaring the Throne Vacant To begin with your first exception I think it is a very small one that because this Vote declares the King to have endeavour'd to Subvert the Constitution of this Kingdom that it was very unjust to declare him to have Abdicated the Government for a bare endeavour because we are ignorant of the true ends of the Actions of Princes to which I answer that in this Case a bare endeavour ought to be sufficient if it be so evident that there can be no dispute about it for if he had once actually subverted it the two Houses could never have met to have made this Vote and if in the case of Kings the very barâ— design or endeavour to destroy them be sufficient though it be never reduced into act I cannot see why by the same rule the endeavours of Kings to destroy the fundamental constitution of a mixt or limited Kingdom should not have the like construction in respect of them since according to the maxime you but now cited and which I have sufficiently justified that in all such Governments the safety and preservation of the People that is of the Government they have established is to be preferr'd before that of the King alone when acting in a direct opposition thereunto or otherwise it would be in the Kings Power to destroy the constitution whenever he pleas'd
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
him not to insist upon the distribution and reading of it because it was against Law tho' admit it were being no way contrary to the Law of God they ought to have obeyed it since their bare distributing of it had not rendered it the more Lawful so that it being a great misdemeanour in these Bishops to deliver this Petition their Commitment and Prosecution at Law for the same was also Legal and what the Privy Council told his Majesty he might well justifie so that if the King was too severe in this matter they were to bear the blame and not he F. I cannot deny but you have given a just account of the main Arguments made use of by the late Lord Chief Justice Merbert in defence of the Kings dispensing Power and of giving his own opinion for it but I think notwithstanding all that Gentleman has Written in defence of it that the Kings Declaration of Indulgence and his Dispensation grounded thereupon to be both of them void and contrary to Law and for proof of this I shall first give you the opinion both of those Divines and Civilians concerning this matter as first Swareâ— in his learned Book de Legibus saith That he hath the Power of Dispensing qui legem tulit quia ab ijus volontate potentia pendat but Vasques another Learned Spanish Casuist holds that no Prince whatever hath a Power to Dispence with his Laws according to his pleasure or because that they are his Laws nay he also denies such an unlawful Dispensation to be valid but to come to those of your own faculty H. Grotiuâ— saith expresly Dispensare hoc est lege solvere le solus potest qui serendae abrogandâ—â—que legis potestatem habet Pusendors affirms That none can Dispence with a Law but such as have the Power of making it and the very reason of the thing sufficiently shews it for to dispense is to take away the Obligation of the Law in respect of them to whom it is granted and whoever takes it away must have the power of laying it on and there is no difference between the dispensation of a Law and the Abrogation of it but that a dispensation is an abrogation of it to particular persons while others are under the force of it and an abrogation is a general dispensation that being no more than a relaxation of the whole Law to those persons who were bound by it before therefore if the King have not the whole legislative power of this Kingdom as I think I have already proved he has not he neither can have the sole power of dispensing with Laws But to answer your main argument that the constant practice hath been otherwise for the space of above 200 years and that confirm'd by the Judgment and Opinions of all the Judges and most considerable Lawyers in England ever since that time to answer this I say it is necessary that I give you a short History of this Dispensing Power and the Original of Dispensations with Non obstantes which are so far from being as old as your Conquest that the first news we hear of them is from Mat. Paris who expresly tells us they were first introduced by the Pope and were afterwards inserted into the Kings Patents and Protections in imitation of them by King Henry III. so they were never made use of by any of our Kings to ellude Acts of Parliament till after the Statute of Mortmain which was made in the seventh of Edward I. which first attempt must needs be Illegal because contrary to Magna Charta ch 36. which is the first Law which prohibits Alienations in Mortmain and was not only sworn to when enacted but is also confirmed by many after Acts of Parliament and ordered to be observed in all points insomuch that when the Clergy petitioned King Edward I. for a relaxation of this Statute of Mortmain his answer was that he could not do it because it was Enacted Communi Consilio Magnatum suorum sine eorum consilio non erat revocandum and I grant that such was the misguided devotion of those times that such Non-obstantes were often obtained as appears by the Patent and Charter Rolls in the Tower from the eighth of Edward the I. downwards abounding with special Licenses to purchase and hold Lands c. Statuto de terris tenementis in manum mortuum non ponendis non Obstante And yet were not these Licenses accounted Legal or the Clergy safe in purchasing such Lands Rents Advowsons c. by vertue of them till it was enacted and Ordained in Parliament in the eighth of Ed. III. to this effect That if Prelats or other Religious People have purchased Lands and the same have put to Mortmain and be Impeached upon the same before our Justices and they shew our Charter of License and Process thereupon by an Inquest of ad quod damnum or of our Grace or by Fine they shall be freely lest in peace without being further Impeached for the same purchase c. But Non-obstantes with the Statute of Mortmain having been introduced as afore-said tho' undeniably Illegal at first and gaining afterwards a countenance from this Act of Parliament have I suppose given occasion to the dispensing with other Acts of Parliament also tho' at first they were very rare and seldom occur in the old Books but are more frequent in the new and that our Judges and Courts of Justice have invented little distinctions betwixt malum in se and malum prohibitum betwixt Laws made pro bono publico and Laws of more private regard betwixt Laws in which the King's Profit and Interest is concerned only and Laws in which the Subjects have an interest and are intituled to an action as the party grieved yet the cases that have hitherto come before them judicially have been questions upon Dispensations granted to particular persons to exempt them pro hic nunc from incurring the penalty of such and such a Law but a Dispensation and Suspension of so many Laws at a lump as the late Declaration of Indulgence did take upon it to do has been so far from receiving any countenance from Courts of Justice hitherto that it has always been a fatal Objection against any particular Dispensation of it it was such as consequently eluded and frustrated the whole Law for that such a Dispensation is in effect a repeal of the Law it self And therefore in that great Case of Thomas and Sorrel in the Lord Vaughan's Reports where Dispensations with Penal Statutes are in some Cases allowed yet it was then agreed by all the Judges that the King had no power to Suspend a Law But to let you see how jealous the Parliament and in particular the House of Commons have ever been of trusting the King with an unlimited power of Dispensing with Penal Statutes with Non-obstantes appears also by several other Laws of great moment and in particular from the
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
I think it had been much better for avoiding all Disputes between the King and Parliament as also for preventing the evil use that has been made of those Presidents to advance the King's Prerogative to what height he pleased rather to have repeal'd all those obsolete Statutes than to have suffered them still to continue But to let you see that the distinction of mala in se and mala prohibita often fails I think I can prove it to you by divers undeniable Instances for there are divers things which are neither mala in se that is neither Natural nor Moral Evils either by Common or Statute Law and yet being declar'd Common Nusances are only mala Politica introducta and are no ways mala in se which the King cannot dispense with at all only because they are prohibited Thus the King cannot dispense with the least Nusance to the High-ways as by laying Dung in them or the like tho men may very well pass through them So likewise by the Statute of the 18 th of King Charles the II. the bringing over of Irish Cattel is declared a publick Nusance and therefore the King cannot dispense with it yet no man will say it was so before that Statute was made and therefore it is very well observ'd by the late Chief-Justice Vaughan in that Case of Thomas and Surrel I now mention'd that publick Nusances are not mala in se but mala Politica introducta and when a thing is said to be prohibited by the Common Law the meaning is no more but that the Ancient Record of such a Prohibition is not to be found M. I grant indeed the Author you have now cited in that Case very well restrains the Kings Prerogative as to things that concern the Right or Property of others and therefore the King cannot pardon the damage done to particular persons where the Suit is only the King 's but for the benefit and safety of a third person the King cannot dispence with the Suit but by consent and agreement of the party concerned And again Penal Laws the breach whereof are to any man's particular damage cannot be dispensed with and the Chief-Justice Herbert himself owns that the King cannot dispense with Laws which vest the least right of property in any of his Subjects F. Very well then we see the Prerogative is bounded where the interest of particular persons is concerned But doth the Law take more care of them than of the publick Interest and the concernment of the whole Nation and this Act against Papists holding of Employments was certainly made pro bono publico to prevent the danger that may happen from Popish Recusants who were before prohibited by divers Statutes to hold any Offices or Employments before they had taken the Oaths of Supremacy and Allegiance Therefore I cannot see how such a Dispensation can be good the breach whereof must tend so much to the danger of the Common-wealth and if according to the Rule you have laid down but now That no Law can be dispensed withal that is for the benefit and safety of a third person or where the breach thereof are to other mens particular damage Now whatsoever is prejudicial to the publick safety of the Common wealth must be also prejudicial to the safety of every private person and the breach thereof does tend to each man's particular damage in the Nation if they are once generally dispensed with M. I grant this is the most natural Objection you have made against the King's power of dispensing in this Case but my Lord Chief-Justice Vaughan in the Case already cited answers this Objection very well No offence says he against a Penal Law could be dispensed with if the reason of not dispensing were because the Offence is contra bonum publicum for all Offences against Penal Laws are such and tho such Laws are pro bono publico they are not Laws pro bono Singulorum populi which are the Laws which the King cannot dispence with but pro bono populi complicati as the King in his discretion shall think fit to order them for the good of the whole In this Nation the Estate of every Pater-â—amilius may be said to be pro bono Communi of his Family which yet is but at his discretion and management of it and they have no interest in it tho they have benefit by it And therefore it is but reasonable that as to the bonum publicum singulorum the King should not dispence because every man hath a particular interest in and they are Judges of it themselves whereas in those Acts that are pro bono populi complicati as these Acts of Sheriffs and for taking the Oaths and Tell are the King is the sole Judge in what cases they concern the publick good of the Common-wealth and where they do not F. I confess this is a subtle piece of learning but pray let us take it a little out of these Latin terms and then the meaning of it is no more than this that the King can do nothing to the prejudice of the People in their private Capacities but he can do what he will with the publick I thought indeed a Prince had been in the first place bound to regard the good of the publick and to take care of the saâ—us populi complicati as you call it that is as they are imbodied together above the private good or interest of particular men which you call bonum singulorum populi which can never be preserved but where the Laws and Statutes ordain'd for the publick benefit and security of the Common Wealth have been generally broken and violated by common and easie Dispensations and have been abused to that degree that we lately saw every Popish Lawyer that was thought any thing fit to be a Judge might sit upon the Bench upon the Lives and Estates of Protestants every Deputy Lieutenant Justice of Peace or other Officers either Civil or Military might be sure of being preferr'd if he either was a Papist or Fanatick every Minister or Parson of a Parish who would renounce the Orders of the Church of England might hold his Living without doing any of the Spiritual Functions and all this by vertue of these dispensations grounded upon the distinction of the publick good of the whole People taken together as different from that of the publick good of each particular person But it seems strange to me that our Ancestors should take such care of the Laws concerning the measures of Bread Drink and Flesh as that the King cannot dispence with them because they respect the common good of the whole People and of every particular person but yet as to the Laws which concern the publick good of the whole Nation in general they were content to leave them to the sole will and pleasure of their Prince No one that reads the History of our Ancestors and the contest they had with their
those Affairs But not to be partial to one Opinion I have faithfully recited all those Authorities and Arguments made use of by the Author of the Treatise Intituled The Hereditary Succession discuss'd as also by the Learned Dr. Brady in his exact History of the Succession of the Crown wherein those Authors endeavour to prove that the Crown of England is and hath always been Hereditary from the very beginning of our Monarchy notwithstanding the many and various Breaches that have been made upon it which Authorities and Arguments whether they prove the Matter in debate I shall leave to your better Iudgment but hope those Gentlemen will not take it ill if I cannot let all they write pass for clear Demonstration and therefore have taken upon me to cite all those Arguments and Authorities that either have been or as far as I know of may be made use of by those of the contrary Opinion in the performance of which if I have not dealt candidly with both Parties in fairly representing the utmost that they had to say I shall be obliged if any Friend to Truth will shew me my failings But tho it is true I have not gone higher in this History than the coming in of K. William I. yet I hope I may be excused looking farther back for these Reasons First because an Examination of the Succession before that time would not only be tedious by swelling this Discourse to an unreasonable Bulk but would also be superfluous since the Gentleman whom I suppose Freeman here Argues against makes K. William I. to have been an absolute Conqueror and to have altered all the former Laws in the Saxon Times and if so sure then those concerning the Succession of the Crown And I desire them to shew me any Reason if he and his Descendants held the Kingdom as Absolute Monarchs by Conquest why they might not bequeath or make it over as is justifiable in Patrimonial Kingdoms to which of their Sons Kindred or Relations they should think fit and if so what will then become of this Fundamental Right of a Lineal Hereditary Succession And besides all this it is needless upon another Account since I have already proved in the Tenth Dialogue from no less Authority than K. Alfred's Will that before the Conquest the Crown was partly Testamentary and partly Elective sometimes wholly Elective as in K. Edward the Confessor and whoever doubts of this I shall only desire them to read impartially Dr. Brady's above-mentioned History of the Succession and then I shall leave it to them to consider whether he does not grant in effect what he takes upon him to Confute viz. That there was no Lineal Descent of the Crown known or setled in those Times but what was Alterable by the Testament of those Kings But since the rest of this Discourse besides the enquiry into bare Matter of Fact is chiefly the applying those Precedents I have here made use of to the Case of their present Majesties I hope neither they nor any that wish well to their Government will resent it if I have not gone in the common Road of former Writers in supposing the Titular Prince of Wales to be an Impostor without any other proof than those bare Suspitions that have been publish'd in the Printed Pamphlets yet since however they may incline a Man to doubt they cannot make a Child Illegitimate whom his Father and Mother have hitherto bred up and owned for theirs and therefore I have rather chosen to suppose him at present to be the Lawful Son of King James and Queen Mary and yet that what the late Convention have done in passing him by without taking any notice of his Title was all that they could or were obliged to do his present Circumstances considered But if it be here made out that King William and Queen Mary are Lawful and Rightful King and Queen of this Realm no Man can doubt whether Allegiance may be sworn too them or not and perhaps there was no need of writing any thing farther yet since I find a great many of the Clergy as well as Laity of this Nation could not go higher than their swearing Allegiance to them as King and Queen de facto and that even this has been violently opposed by the sâ—iff Asserters of K. James's Right I have thought fit to add in the next Discourse which I promise shall be the last on this Subject all that hath been said Pro and 〈◊〉 upon that Question and to make it of the same Bulk with the rest I have for the satisfaction of those of the Church of England as well as Royal Interest endeavour'd to shew the great difference between this late Revolution and that fatal Civil War that ended with the Deposition and Murder of King Charles the First These two Questions together with an Index to all the Dialogues being dispatch'd as I hope they will be shortly shall be the last I shall trouble the World with upon these Subjects since I know nothing more that can be well added to what I shall there set down THE Twelfth Dialogue BETWEEN Mr. MEANWELL a Civilian AND Mr. FREEMAN a Gentleman M. I Am glad Sir you are come for I was wishing for you pray sit down and let us begin where we left off you may remember you promised me when we last parted that the next time I saw you you would make out to me from undeniable proofs and precedents from our Antient Histories and Laws that the present Convention had done nothing in Voting the Throne vacant and then placing the Prince and Princess of Orange therein but what may be justified by the Fundamental Laws and Constitutions of the Kingdom for I must still believe till I am better instructed that there can be no Inter Regnum in England but that it hath been from the first Institution of the Government an Hereditary Monarchy where the next Heir by Right of Blood unless in some manifest Usurpations has always succeeded to the last Predecessor as also our best Lawyers with one consent maintain in their Books of Reports and the Learned Finch in his description of the Common Law lays it down as an undoubted Maxim That the King never dies and therefore it seems altogether new and unheard of before for the Convention thus to declare the Throne vacant for admitting that King Iames had never so justly Forfeited or Abdicated the Kingdom term it which you please yet certainly there could be no Vacancy of the Throne since the next Heir by Blood ought immediately to have been declared King or Queen and so placed therein whereas we heard in the Countrey that there was almost ten days time before the Lords and Commons could agree whether the Crown should be declar'd vacant or not and when it was so declar'd it took up almost a weeks time more before they could agree who should be placed therein whereas it was a difficulty only of their own making for sure the Prince of
without Children should be Heir to the Deceased And so far were they from thinking this Agreement stood in need of Ratification of a great Council that there was but twelve of the Principal Men on each side sworn to see it duly observed But if we come to consider the next putting by of Duke Robert from his Right to the Crown you will find it to have been done with a far less colour of Right than the former for he being then absent in the Holy Land at the time of Rufus's death Henry his Younger Brother laid hold of the opportunity and assembling divers of the great Men of the Kingdom he promised them to make a full Restitution of all their Antient Laws and Liberties and confirm them by his Charter and abrogate such severe ones as his Father had made thereupon they did unanimously consent to Crown him King Now I cannot see how this managed with so much Artifice corruption can properly be call'd an Election since that ought to be a deliberate sedate Action and at which all the persons concern'd ought to be present but this could not possibly be for King William was kill'd on the second of August and buried the next day and the day after that being Sunday this pretended Election was made and the Saxon Chronicle tells us That those great Men who were near at hand chose his Brother Henry King So that this looks more like the Combination of a Faction of Bishops Lords and great Men than the free Election of a King since it was impossible for all that were or ought to be present from all parts of the Kingdom to have notice to assemble and dispatch that great Business in two days time But to let you see that Duke Robert did not fit down contented with this Usurpation upon his Right for as soon as ever he came from the Holy Land he straight made War upon his Brother and many great Men of the Normans took his part and this War was eagerly carried on for some time and Duke Robert Landing in England with an Army K. Henry marcht against him with all his Forces but as the Saxon Chronicle also tells us some principal Men going between them brought them to an Agreement upon conditions that K. Henry should pay Duke Robert 3000 Marks Pension yearly and that he of the Brothers who surviv'd the other should be Heir of all England and Normandy unless the party deceas'd should have Children of his own so that though I grant King Henry recites in his Charter in Matthew Paris that he was Crowned King by the Common Council of the Barons of England yet his saying so could not give him a Right and he must say this or nothing for no other pretence or Title he could have and there never was any other Usurper in his circumstances but must say that or some such thing to make out a Title and therefore to answer your Question why Duke Robert took not upon himself the Title of King neither upon the death of his Father nor after that of his Elder Brother I think this may serve for an Answer that he parting with his Right to both his Brothers successively he then lookt upon it as needless to take the Title of King upon him as not looking upon himself then to be so F. I confess you have from your Dr. together with some assistance of your own made a very cunning gloss upon these two great Instances of Vacancy and Election to evade if it were possible that Right which the Common Council of the Kingdom then challeng'd to themselves and therefore I shall make bold strictly to examine what you have now said In the first place as to the Title of King William Rufus though I grant it was founded upon his Fathers Testament yet you see that this was not good alone without the consent and approbation of the Common Council of the Kingdom I think I have sufficiently prov'd at our last Meeting but one when we discourst of the Force of the like Testament made by King Edward the Confessor to King William the First which according to the English Saxon Law that â—as still observed was never valid until confirm'd by the consent of the Wittena Gemot or Great Council and he that had both these whether next Heir by Blood or not was always esteem'd as lawful King as I have also proved from the Testament of King Alfred and though you will take no notice of it yet was this Testament of King William I. then produced and read in the Common-Council of the Bishops Earls and Barons of the Kingdom as appears by all the Antient Historians who treat of this matter I shall only give you a taste of them Matthew Paris expresly relates the circumstances of it in these words Optimates frequenteâ— â—d Westmonasterium in concilium convenere ubi loci post long am consultationem Gulielmum Rusum Regem fecere and Abbot Brompton tells us that it was done in a full Council Convocatis Terrae magnatibus so that here was nothing wanting to a full Election or Confirmation at least of King William's Title and till this was done it is plain the Throne was Vacant But as for the claim that Duke Robert made to the Crown though I do not deny but he might think himself to have a just Title to it by a received custom among divers Nations by which the eldest Son is looked upon to have a right before the younger yet that this is no Law of Nature or Reason and consequently not Divine I think I have sufficiently prov'd at our second meeting But that this right of Succession of the eldest Son to be no fundamental Law of this Kingdom I think I can sufficiently prove from our English Saxon Histories as well as Laws and as for what you say concerning those Norman Lords and Bishops who joyn'd with Duke Robert after his Brother was Crown'd King it is call'd no better than Treason by all the Writers of those times for Florence of Worcester and Sim of Durham both tell us that the King thereupon call'd together the English and open'd unto them the Treason of the Normans and the Saxon Chronicleâ— who seem'd to have lived about that time compares the Treason of Bishop Odo to that of Iudas Iscariot against our Lord and though I grant King William might make such an agreement with his Brother Duke Robert as you mention yet as for the 3000 Marks Pension which you say he was to pay him I very much doubt it since no Historian but Matthew of Westminster who lived between two and three hundred years after makes mention of it and therefore I think it is to be referr'd to the following agreement betwixt this Duke and his Brother King Henry which the Saxon Chronicle expresly mentions Having now examin'd and clear'd the Title of King William Rufus I come next to justifie that of King Henry I. to the Crown
notwithstanding all you have alledg'd against it which yet is no more than what you said before that Duke Robert had an Hereditary Right and therefore he could not be put by which is to beg the Question for you cannot prove to me that he had this Right either by the Law of Nature the Law of England or the Law of Normandy not by the two former as I have already prov'd for your Conqueror himself being a Bastard had no better Title to the Dutchy of Normandy than his Father's last Will before he went to the Holy Land which was not good without the consents of the Nobility of that Dutchy as appears by the Historians of that time so that the greatest Objection you have to make against King Henry's being elected in a true Common-Council of all England is this that the time was so short between the Death of William Rufus and his Election that it was impossible for all the Parties that had Votes to be there present which is a very bold assertion for how can you or your Doctor tell that at the time when King William was kill'd he might not then have held a great Council at Winchester where he then Lay who might immediately upon his Death chuse his Brother Henry for their King for it is certain the Election was there the Day before his Coronation at London and therefore it is very rashly done to affirm that this Election was not in a Common-Council of the Kingdom when all the Historians and particularly W. Malmesbury tells us the manner of it and the Disputes there were about it viz. that Henry was elected King as soon as King William's Funerals were over Aliquantis tamen ante controversiis inter proceres agitatis c. and H. de Knyghton reciting the cause why Duke Robert was set aside viz. because he had been always contrary and unnatural to the Barons of England therefore quod plenario consensu consilio totius Communitatis Regni ipsum refutaverunt pro Rege omnino recusavâ—â—â—nt Henricum fratrem in Regem erexerunt which plainly shews that it was the opinion of all the Antient Writers out of whom Knyghton took this passage that this election was made by the free consent and in a full Council of all the whole Community of the Kingdom nor does the after claim of Duke Robert to the Crown at all alter the case for the reasons already given as also because the agreement that was made between them that he that surviv'd should succeed the other was never confirm'd or agreed to by the great Council of the Kingdom and therefore those Norman Lords that join'd with Duke Robert here in England are justly taxed by William of Malmesbury and the Saxon Chronicle with Infidelity and Rebellion and though I grant that Mat. Paris or rather Roger of Wendover whom he transcribes seems to condemn King Henry's taking the Crown as unjust and contrary to Right and that he therefore feared the Justice of God eò quod fratri suo primogenito cui jus Regni manifestè competebat temere usurpando injustè nimis abstulcrat yet this author writing about the middle of the Reign of King Henry III. who had succeeded his Father by a pretended right of Inheritance as well as Election it is no wonder if He who writ near a hundred years after this transaction should give his judgment in this matter according to the common opinion and prejudice of that age and must certainly speak by guess for how could he otherwise affirm unless he had been acquainted with that Kings thoughts as he doth in the same place that he felt conscientiam suam in obtentu Regni cauteriatam since no other Writer either of that time or after it does thus blame King Henry for taking the Crown But as for the account you give why Duke Robert never took upon him the Title of King if the Throne had not then been looked upon as vacant because of the agreement which he made with his Brothers by which he parted with his Right for a Pension during his Life is not at all satisfactory for in the first place neither of these agreements were made till above a year after his pretended Title did acrue to him by the Death of his Father and Brother and therefore he ought if he had look'd upon himself as true King to have immediately taken the Title upon him which he never did so likewise the agreement it self makes wholly against your notion of any hereditary succession to the Crown to be then setled since the main clause in both these agreements is that the survivor should be heir to him that died first unless he left Children of his own to succeed him which plainly shews that in the opinion of both those Princes and of the great men that swore on either side to see it observed they knew of no such setled Right of Succession in their Heirs which they themselves could not part with or else this Clause had been wholly in vain since both King William and King Henry's Children were to have succeeded to the Crown of England by vertue of both these agreements before the Sons of Duke Robert had his Son William who was only Earl of Flanders survived him But now if you please you may proceed with your other exceptions against the rest of the Instances I have here given you of the Vacancy of the Throne till such time as the Common Council of the Kingdom had agreed whom to place therein M. As to what you have said in defence of the Vacancy of the Throne after the death of King Henry I. carries less shew of Reason than what you urged in the former Cases since all Writers agree that this was a manifest Usurpation in Stephen who could pretend no sort of Title to the Crown himself as well as Perjury in the Bishops Lords and great Men of England who having sworn Fealty to King Henry's Daughter Maud in his life-time made Stephen Earl of Blois their King therefore William of Malmsbury and all the Writers of those Times do accuse Stephen of down-right Perjury and Usurpation and likewise relate that he was advanced to the Crown through the power of the Londoners and Citizens of Winchester but yet all these Endeavours had been in vain unless he had been assisted by his Brother Henry Bishop of that City and then the Popes Legate in England and favoured by the Arch-Bishop of Canterbury who Crowned him and yet for all this there was but a very small Faction of the Bishops and Lords who were for his Croonation for W. Malmsbury tells us Coronatus est ergo in Regem Angliae Stephanus tribus Episcopis praesentibus nullis Abbatibus paucissimis Optimatibus And many of the Nobility and great Men of England were so sensible of this that being headed by Robert Earl of Gloucester the Empresses base Brother they raised a War against Stephen which after her coming over hither was
carried on with great vigour and though I grant that after divers changes of fortune the Empress was at last forced to quit the Kingdom yet her Son Duke Henry did not fail to continue his claim to the Crown in right of his Mother and coming over into England renewed the War against King Stephen which was at last compos'd by an agreement between them which as Matthew Paris and Mat. Westminster relate it was thus That King Stephen acknowledged in an Assembly of Bishops and other great men of the Kingdom that Duke Henry had an Hereditary right to the Crown and the Duke thereupon as kindly granted that King Stephen should peaceably possess it during his Life so that it is certain till this agreement even by his own acknowledgment he had no right to it and though I grant that the Empress Maud for some reasons we are not able to give a true account of never took upon her the Title of Queen yet it is very certain that she acted as such during all the time she was in England receiving Homage and Fealty from those Lords and others who came over to her side and also granting Charters and conferring Honours by the Title of Anglorum Domina which shews she look'd upon her self to be the Supream Governess of the Kingdom though not under the Title of Queen so that I think you can find nothing in this transaction that can support your Notion of Vacancy F. Pray give me leave to answer what you have now said before you proceed farther first I cannot excuse neither King Stephen for taking the Crown nor the Bishops and Great men that set it on his Head from perjury and injustice since the Emperess Maud had been before in a Common-Council of the whole Kingdom declared the Lawful Successor and that Fealty had been sworn to her as such All that I insist upon in this affair is this that Quod furi non debâ—t factum valet And though this ought not to have been done yet when once done did stand good and therefore if whilst the Throne was vacant King Stephen by the Election and Consent of the Bishops and Great Men of England was placed therein he was there looked upon as true and legal King as long as he lived And this was the reason why the Emperess never took upon her the Title of Queen of England no not when she had taken King Stephen prisoner and one would have thought might have justly done it as a Conqueress But yet she forbore it because that Title was not then to be taken without the consent of the Great Council of the Kingdom which I cannot find she ever held her party being not great enough to make one And though I cannot deny but that she might in some particulars exercise some prerogatives of Royal Power yet this was only upon a pretence of her being Elected and Stiled by this Title of Lady of the English in a Synod of the Clergy at Winchester by the procurement of Henry the then Bishop of that See and the Popes Legat who was now turned against his brother King Stephen For she was never generally received nor own'd as Queen nor did she ever exercise those great prerogatives of Sovereign Power viz. Calling of Great Councils making of Laws raising of Taxes or Coining Mony But whereas you represent King Stephen to have been Elected but by a very small party of the Bishops and Noblemen of England yet it is very much to be doubted whether William of Malmesbury who Dedicated his History to Robert Earl of Gloucester King Stephens greatest Enemy being no friend to his Title is to be altogether credited in this matter For Henry of Huntington who lived not long after tells us expresly that Omnes qui Sacramentum juraverant tam Praesules quam Consules Principes assensum Stephano praebutrunt hominium fecerunt And it is also as certain that the Earls of Gloucester and Chester the two greatest men of England did then likewise swear Allegiance to him and own his Title though they afterwards revolted from him again Yet could they do nothing considerable against him till his own Brother the Bishop of Winchester revolted also from him upon pretence that the King had violated the Rights of the Church And though it is true that after the Empresses departure out of England Duke Henry her Son came over and prosecuted the War against King Stephen yet could it not be in his own but his Mothers Right who was then alive Nor could the agreement you mention be made between the King and the Duke as having then a right to the Crown in his own Person since we read of no concession the Empress his Mother had made to him of it And therefore whatever Title Henry could claim thereunto Upon the death of King Stephen it was wholly due to this Kings adopting him for his Son and declaring him his Successor upon condition that he himself should enjoy the Crown during his life which agreement was solemnly confirmed and ratified and that by Oath in a full Assembly of all the Bishops Lords and great men of the Kingdom For Ordericus Vitalis in his Annals p. 989. Is very express in the manner of this great Transaction in these words Sic tamen in praesentiarum ipse Rex Caeteri Potentes Sacramento â—irmarent quod Dux post mortem Regis si tempore eum superviveret pacifice aâ—â—que contâ—adâ—ctione Regnum haberet therefore as long as the Empress Maud lived who died after her Son King Henry's coming to the Crown ' â—is plain he could have no Hereditary Right to it notwithstanding what Matthew Paris and Matthew Westminster who lived long after these Transactions have said to the contrary and therein are to be looked upon as Authors that speak their own sense rather than that of the Writers of those times M. I confess what you have urged in this matter concerning Duke Henry's being admitted as Heir of the Kingdom during the Life of his Mother the Empress Maud seems to the purpose and there could be nothing said against it but that this was done by the Concession of the Empress her self who surrender'd all her pretentions to her Son tho' we have no particular account of it or else which is more likely in my opinion that the Government of Women being then unknown in England and Normandy and consequently odious to the English and Norman Nobility and for which reason chiefly they had before set this Empress aside they thought they did in effect perform their Oath to her when they acknowledged her Title in her Son Duke Henry who is said by the Historians of those times to have succeeded Stephen Iure Haereditario which could not at all agree with your notion of his receiving his Title from the Consent or Election of the great Council But I shall pass over this and come to your next instance of the Vacancy of the Throne which you pretend
to have been upon the Death of King Henry the II. Now your only argument to prove this is that King Richard tho' his Eldest Son alive was only call'd Duke of Normandy and never King of England till after his Coronation but whoever will but consider the circumstances of this matter will find that he was indeed own'd for King of England before his pretended Election or Coronation for before his coming into England to be Crown'd Rocer Hoveden tells us That every Freeman of the whole Kingdom by the Command of his Mother Queen Elianor swore quod fideni portabit Regi Angliae Richardo Regis Hen. filio which plainly shews that he was then by common intendment looked upon as King before his Coronation and though I confess that this very Author also relates that all the Estates of the Kingdom being assembl'd at London by whose Council and Assent the said Duke was Consecrated and Crown'd King of England and though Ralph de Diceto then Dean of St. Paul's who in the Vacancy of that Church then supplied the Office of the Bishop at King Richard's Coronation hath this passage Comes itaque Pictavorum Richardus hereditario jure praemovendus in Regem post tam cleri quam populi solemnem debitam electionem involutas est triplici Sacramento c. Now what can this solemn and due election here signifie Or what can it mean farther than that Richard being King by Hereditary Right was so owned and recognized by the Clergy and Laity F. I desire I may reply to this before you proceed farther I confess what you say about the Empress Maud's surrender of her Right to her Son Duke Henry would be considerable if you had any Authorities from our Antient Historians to support it but since you have not I look upon it as no better than a meer surmise of those of your opinion that the Crown was then enjoy'd by an Hereditary Right without any consent or election of the people and so likewise is your other fancy that because Women were then looked upon as uncapable to Govern therefore the Bishops and great men of the Kingdom suppos'd they had sufficiently perform'd their Oath of Allegiance to her by acknowledging her Son Duke Henry for the right Heir of the Crown now if this had been so pray tell me to what purpose King Henry I. Father to the Empress should have made all the Estates of England swear fealty to his Daughter if a Woman had been then lookt upon as uncapable to Govern or to what purpose should the Clergy in the Council at Winchester chuse this Empress as the King's Daughter Lady both of England and Normandy as William of Malmesbury tells us expresly that they did and that he was present at it or how could the great Council of the Kingdom believe that they had sufficiently satisfied their Oath to the Daughter in conferring the Allegiance that was due to her upon her Son I am sure no Heiress of the Crown would look upon that as a good performance of their Oath at this day when you can answer me these queries I shall be of your opinion in this point but till then I beg your pardon But as to what you say against the Vacancy of the Throne upon the Death of King Henry the II. till King Richard was Elected and Crown'd I desire no better Authority to the contrary than those very Authors you have now cited for your opinion for first Hoveden in the very place you have quoted him says That the Duke was to be Crown'd King by the Council and Asâ—â—nt of all the Parties there present now if I understand any thing of Grammar or Sence he was not King before and therefore needed their Assent to make him so likewise in the next quotation from Ralph De Diceto the Duke is said Hereditario jure promovendus in Regem which words being in the Future Tense shew he was not then but was to be promoted to that dignity now if his Hereditary Right alone could have done it then to what purpose are all these words aforegoing so that though this Right gave him the fair pretence to succeed to the Crown yet it is plain from both the Authors you have quoted that he was not so till after the due Consent and Election of the Clergy and People so that after all your questions what can this solemn and due Election signifie or what can it mean farther than that Richard being King by an Hereditary Right was so own'd and recognized by the Clergy and Laity will receive a very easie answer from what has been already said till you can shew me out of any Dictionary that Consilium and Assensus which are the words of Hoveden and the words Solemnis debita electio ever signified an owning or recognition of an Hereditary Right I confess the only colour you have for your interpretation of those words in Hoveden which you have now cited of Queen Elianors making every Freeman of the Kingdom swear Fealty to Richard King of England as to their Liege Lord from whence you would infer that by common intendment of Law he was looked upon King of England before he was Crown'd and consequently there could be no Vacancy of the Throne now admit that he was commonly call'd King before he was Crown'd or that the Queen his Mother would make the People swear to him as such yet that could not make him so since the same Historians also tell us that Hubert Archbishop of Canterbury and William Earl Mareschal made the people of England take a like Oath to Earl Iohn as their Lord not King immediately after the death of King Richard his Brother and yet I suppose you will not affirm that their swearing Fealty to him as their Superiour Lord made him King or gave him a just Title to the Crown and I desire you or any indifferent man to tell me which was Hoveden's opinion whether this swearing Fealty was a sufficient Declaration of his â—eing King or else all those other expressions which signifie the contrary when immediately before his Coronation he only calls it ducem Richarâ—m qui Coronandus erat in Regem which I think is as plain a distinction of his being a Duke before he was Crown'd and a King afterwards as words can make M. I see it is in vain to urge this point any longer and therefore I shall proceed to your next instance of the Vacancy of the Throne after the death of King Richard until King Iohn was placed therein now though it is certain that this Prince was an Usurper upon his Nephew Duke Arthur yet whether he was ever Elected in a Common Council of the Bishops Earls and Barons of the Kingdom is very doubtful But suppose he were it was done wrongfully and to the prejudice of Arthur Duke of Britain the right Heir to the Crown who being young and a stranger it is no wonder if he were put by and his Uncle who
was a man and better acquainted with England and having the Interest of the Arch-bishop of Canterbury and most of the great men were of his party and yet for all that Hoveden who was alive at this time speaks not a word of his being Elected but only that upon his coming into England he was received by the Nobility and Crown'd by Hubert Arch-bishop of Canterbury so that there is not one word there of any Election by but only a submission from the Lords Spiritual and Temporal to King Iohn and a recognition that he was their King nor indeed could he need it if it be true what the same Author tells us That when King Richard despar'd of Life he devised to Iohn his Brother the Kingdom of England and all his other Lands and caus'd all those that were present to do him Fealty and this is related by Hoveden in all probability an Eye Witness of these transactions So that the first Author we find to mention any thing of the particulars of this pretended Election is Mâ—tthew Paris who has given us the Speech which the Arch-bishop made at this supposed Election and also reciting the Arch-bishops Bishops Earls and Barons and all others who ought to be at his Coronation the Arch-bishop standing in the middle of them said thus Hear all of you your Discretion shall know that no man hath right to succeed in this Kingdom unless after seeking God he be unanimously chosen by the University of the Kingdom that is those that are here said to meet at London the rest of the Speech needs no repeating only he lays it down for Law which I think was never heard of before That if any of the Progeny of the dead King did excel others they ought more readily to consent to the Election of him and so upon this Speech made in behalf of Earl Iohn and full of a great deal of fulsom slattery he was declar'd King But to let you see what a sort of Man this Arch bishop Hubert was here see what the same Author tells us in the same place that being asked afterward why he said these things answer'd That he guested and was thought ascertained by certain Prophecies that Iohn would bring the Kingdom and Crown into great Confusion and therefore lest he he might have too much liberty in doing he affirmed he ought to come in by Election and not by Hereditary Succession Now though this Learned Doctrine of the Arch bishop asserts a right of Election in the Convention of Bishops Earls Barons c. yet by his own answer when he was asked why he said these things it clearly discovers it to be only a design and artifice in the Archbishop to cause them to set up and make Iohn King and in which also he denies any such right of Election but since Hoveden nor any other of our antient historians make mention of this Election but only of his Coronation and the Bishops Earls and Barons assisting at it not giving their consents to it it may very well be that that story of an Election and this Speech of Arch bishop Hubert might be only an invention of Matthew Paris or rather of Roger of Wendover from whom he took most of his History but that this doctrine of the Arch-bishop concerning the Election of our Kings if meant according to the modern understanding of it was then new Gervase a Monk of Canterbury in the year 1122. who also speaking of the Coronation of Henry the First says it was manifest and known almost to all men that the King 's of England were only obliged and bound to God for the possession of the Kingdom and to the Church of Canterbury for their Coronation manifestum est autem omnibus fire notum Reges Angliae soli Deo obligari teneri ex ipsius regni adeptione Ecclesiae Cantuariensi ex Coronatione But that King Iohn was looked upon as an Usurper is very certain since besides some of the honest English Nobility that took Duke Arthurs part the King of France did also make War upon King Iohn upon his Nephews account because he looked upon him as true Heir to the Crown and therefore when K. Iohn had privately made away his said Nephew in prison the K. of France summon'd him as Duke of Normandy and Peer of France to answer for the Murther in an Assembly of the Peers of France at Paris where for his refusing to appear he was condemn'd to death and his Dukedom of Normandy declar'd forâ—eited to the King of France F. I confess you have said as much as can be to prove that King Iohn had no Hereditary Right to the Crown nor was so solemnly Elected to it as Matthew Paris relates but yet for all this I think I may very justly oppose all that you have now said upon this Head for in the first place it was then very much disputed as it hath been also since that time if an Elder Brother died and left a Son a Mâ—nor whether his Younger Brother or the Son should succeed for though the People of Anjou and those of Guienne own'd Duke Arthur for their Prince yet the States of Normandy were of another mind and as well by vertue of King Richard's Testament he was immediately after his Death invested with that Dukedom nor was he then at all opposed in it by the King of France though Supreaâ— Lord of the Fee and as for England besides his Brothers Testament whereby he left him Heir of all his Territories it was also then generally held in England as most consonant to the Antient English Saxon Law of Succession that the Uncle should succeed to the Crown before the Nephew therefore it is no wonder if Duke Arthur found so small a party here not any Bishop Earl or Baron as I read of owning his Title and as for the King of France it is also as certain that he did at first own King Iohn for lawful King of England and Duke of Normandy and entred into a Treaty of Peace and made a League with him as such though it is true that afterwards when he had a mind to pick a quarrel with that King he then set up Duke Arthur's Title And though this Duke was made away in the beginning of King Iohn's Reign yet did not the King or Peers of France ever take any notice of it till about twelve or thirteen years after when he had now unjustly Conquered all Normandy and almost all that Kings other Territories in France and then wanting a Title to keep them he began this Prosecution you mention against him and upon his non appearance he was condemned unheard but that the King of France himself and all the great men of that Kingdom did look upon him to have been lawful King of England appears by that Speech which Matthew Paris relates to have been made after King Iohn's Deposition by the Barons of England by a Knight whom Prince Lewis
ordered and disposed of all publick Affairs conferr'd Offices and Bishopricks as if they were lawful Kings before your pretended Election or the ceremony of their Coronation and also had Ambassadors sent to them from Foreign Princes as appears from your own Quotation out of Hoveden Of those that were sent by the King of Scots to King Iohn before he was crowned though it is true he there stiles him no more than Duke of Normandy And this also may further appear by that passage I have cited out of the same Author that King Richard had Fealty Sworn to him as King of England by all the Freemen of England before he was Crown'd and you your self acknowledge the same Oath to be taken by the same persons to King Iohn before he came over to take the Crown And Lastly To make it yet plainer that there was no Vacancy or Inter-regnum in all these Successions you have mention'd consult what Chronologer you please or look into the most ancient Tables of the Succession of our Kings of England or into our old Printed Statutes or Law Books and you will still find the Reign of the Suceeding Prince to commence from the Death of his next Predecessor without any Vacancy or Inter-regnum between And these I think to be a great deal surer marks of their succeeding to their Royal Dignity by a pretence at least of a right of Inheritance from their Father or Brother rather thau this fancy of yours that you lay so much stress upon That because of their not being stiled Kings by our Historians till their pretended Election and Coronation was over they were not so indeed And I hope this may serve to satisfie this mighty Objection F. I must beg your pardon if I still declare my self not satisfied with your answers for though I grant that if this Argument of the Historians not stiling them Kings had stood single without any thing else to support it that your answers might have signified something But if you please better to consider it you will find that of these Princes taking in William your Conqueror claimed as your self must acknowledge not by any Hereditary right but by the Testament of the deceased Predecessor and if so where was your setled right of Succession by right of Blood Secondly It is likewise as plain that these four were never admitted or acted in England as lawful Kings till those Testaments were confirmed by the Election of the Great Council before whom they declar'd their Rights And till this was done how the Throne could be otherwise than Vacant I cannot for my Life conceive But as for two of them whom you call downright Usurpers viz. Henry the I and King Stephen it is certain they could have no colour of a Title till their Elections and if not till then and that neither your next Heir of the Crown nor yet they themselves took upon them the Title of Kings Was not this a Vacancy of the Throne in the mean time Suppose that time to have been but for the space of three or four days as it was after the death of King William Rufus In the next place pray consider that upon the death of every one of these Princes we do not find the Great Council of the Kingdom which still assembled to Elect the Successor was ever call'd in their names but met by their own Inherent Authority for how could they be summon'd by the King before he took that Title upon him which as your self are forced to acknowledge he never did till after his Coronation Lastly Pray remember farther that whoever was thus Elected and Confirm'd by the Great Council whether he was next Heir by Blood or not was always looked upon as Lawful King and has always passed for such in all our Chronicles and Laws and not those that claimed as the right Heirs by Blood and if this be not sufficient to prove that these Princes had no true and compleat right to the Crown till this Election was past I desire you would shew me my mistake These things premis'd I think it will be very easie to reply to every one of those answers you pretend to have made to my Query Therefore as to your First That they were really Kings before their Election or Coronation because they order'd and dispos'd of all publick affairs I do not deny but that some of them who Succeeded either as Heirs by Testament or by right of Blood might do many publick Acts by reason that they looked upon themselves as Heirs Apparent to the Kingdom and whom the Great Council I grant could not without high Injustice set aside and upon this account they might also receive Ambassadors from Foreign Princes in Affairs relating to Peace or War that they might know how to deal with them or what to expect from them after they were setled in the Throne yet that they sent not to them by the Title of Kings appears by that passage I cited out of Hoveden but I defie you to shew me any one instance that any of these Princes above mention'd ever took upon them to exercise any of those Prerogatives of Sovereign Power such as making War or Peace Enacting Laws Coining of Money before their Election and Coronation which though in some of them was done both at once yet in others it appears plainly to have been at different times and not upon the same day as it happen'd in the case of Henry I. whose Election was at Winchester upon Saturday and his Coronation was not till the next day as also that of Henry the 3 d. whose Election was upon St. Simon and Iude's Day but his Coronation not till the day after But as for your next reply which I grant to have been the strongest you have made that King Richard I. and King Iohn had both of them Homage and Fealty sworn to them as Kings by all the Freemen of England before they were Crowned this were a material argument if it were made out as I think it cannot for in the first place the bare swearing of Homage and Fealty to a Prince doth not make him immediately King though I grant it might give him in that Age a right to be looked upon as Heir Apparent to the Crown thus Henry the I. made all the Lords and Great Men of England to swear Homage and Fealty to Prince William his Son and so after his being drown'd to the Empress Maud his Daughter which was the true reason why she looked upon her self afterwards as Heiress to the Crown so likewise King Stephen a little before his Death at the great Council I have mention'd caus'd all the great men of the Kingdom to Swear Homage and Fealty to Henry Duke of Anjou as his immediate Successour so that you see this swearing of Fealty was in those days often perform'd â—efore the persons that received it were Kings indeed and so I believe it was done in both those instances you now give me for though I
grant that Hoveden as you cite him relates that Homage to be made and Fealty sworn to Richard the I. by the Title of King yet is it very much to be doubted whether this was not only by a Prolepsis or perhaps a slip of the Pen in this Author since he writ this History long aâ—ter King Richard's Death and therefore without we had the very words of this Oath there is no certain conclusion to be drawn from thence and I think we may as well credit the Chronicle of Abbot Brompton who likewise lived about the same time and recites all this affair almost in the same words with those in Hoveden but there the Oath does not run exactly in the same words as in this Author but thus quod unusquesque liberorum hominum totius regni Iuraret quod sidem portaret Domino Richardo Domino Angliae filio Domini Regis Henrici c. ficut legio Domino suo contra omnes mortales where you see the Oath is not made to King Richard as King but only as Lord of England and that there is a great deal of difference between those two Titles not only in name but in Substance I have already prov'd when I spoke of the Empress Maud's stiling her self Domina and not Regina Anglorum tho' she had Homage rendred and Fealty sworn to her not only in her Fathers Life time but also after her coming over again into England in the Reign of King Stephen by all that own'd her Title and that Hoveden himself meant no more than this appears by that passage I have already taken notice of viz. that Hubert Arch-bishop of Canterbury and William the Earl Marshal being sent over to keep the Peace made all the men of the Kingdom as well of Cities as Burroughs with the Earls Barons and Free-holders Iurare fidelitatem pacem Iohanni Normanorum duci filio Henrici regis filii Matildis Imperatricis contra omnes homines where you see the Oath is taken to him only as Duke of Normandy and not as King at all and therefore you are mistaken to say that Hoveden mentions the like Oath to be taken to Duke Iohn as it was before to King Richard But I come now to answer your last argument whereby you would prove that there was no Vacancy or inter-regnum in this Age which is because that our Chronicles and Tables of Successions do still begin the Reigns of each King from the day of the Decease of his Predecessors without any Vacancy or Inter-regnum between them to which I reply That none of our antient Chronicles or Historians reckon thus as I know of but rather acknowledge a Vacancy of the Throne to have been between each Succession and as for the Tables of the Succession of our Kings when you can shew me one more antient than the time from which I grant the Crown of England began to be looked upon as a Successive and not an Elective Kingdom I shall be of your opinion but admit it were so since the Succession to the Crown has been for the most part mixt partly Elective and partly Hereditary our Kings might to maintain the honour of their Title still reckon their coming to the Crown immediately from the death of the last Predecessor tho' there has been oftentimes some days and weeks between the one and the other as I have now proved and shall prove farther by and by which being but small fractions of time are not taken notice of in the whole account which may be notwithstanding very agreeable to Law for both my Lords Dyer and Anderson in their Reports do agree That the King who is Heir or Successor may Write and begin his Reign the same day that his Progenitor or Predecessor dies M. It will be to no purpose to dispute this point with you any longer since I must confess that there were so many Usurpations in the Succession of most of those first Kings after the Conquest that it is a difficult matter to prove any setled rule of Succession to have been then observed in England and therefore I only desire you to take notice that though it is true King Henry the 3 d was an Usurper for the first Twenty five years of his Reign yet for all the rest of it which was near Thirty more he was a true and lawful Prince for Elianor his Cousin being dead in Prison without issue and there being no more of that Line left her Right wholly devolved upon King Henry and he and his Children are to be from henceforth reckon'd to have a true Hereditary Right to the Crown without any Competitors And that this was so will plainly appear from the Testament of King Henry the 3 d. a Copy of which I have by me where tho' he Bequeaths a great many of his Jewels to the Queen and a great deal of Money to charitable uses yet for this Kingdom and other Territories in France and Ireland he makes no Bequest of them at all either to Prince Edward his Eldest or to Edmund his youngest Son tho' his Father King Iohn had bequeathed the Kingdom to him by his Will as you have already shewed and what could be the reason of this But that there being now no Title left to contest with his Son there was no need of it and therefore tho' Prince Edward was absent in the Holy Land when his Father Died yet a great Council being call'd in his Name at London he was there only recognized and acknowledged to be their natural Leige Lord and Lawful Successor to his Fathers Throne pray read the words as they are in Walsingham's Life of this King Edwardum absentem Dominum suum Leigium recognoverunt paternique successorem honoris ordinaverunt we meet not here with any thing like Election which no doubt we should not fail to do if there had been any such thing practised So likewise upon this King's death his Son King Edward the 2 d. by the like Right succeeded as Heir to his Father and tho' this Prince by suffering himself to be too much guided by his Minions fell at length into such Arbitrary and Irregular courses as procured him the hatred and ill will of his Subjects to that Degree that by the Disloyal and Ambitious practices of his Lascivious Queen he being made Prisoner a Parliament was call'd in his name who took upon them to Depose him for his misgovernment contrary to all Law and Right and though his Son Prince Edward had hitherto join'd with his Mother against his Father yet is he herein so far to be commended that tho' the Crown was offered him by Election of the Great Council yet the same Author tells us he swore that without his Father's consent he would never accept it whereupon divers Messengers or Delegates being dispatched from the Parliament to the King then Prisoner at Kenel-worth Castle who told him what had been done and concluded of at London required him to resign his Crown and
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
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
before his Marriage with that Princess and whilest he was and Usurper upon her Right so that certainly it is no argument that since Parliaments have acted illegally therefore your Convention may do so too for it is a known Maxime in our Civil Law a facto ad Ius non valet consequentia therefore whatever they have done toward creating a good Title to King William in respect of the Queen his Wife and his Issue by her yet this doth no way excuse the wrong done to the Princess of Denmark and her Issue in case they survive your King F. 'T is very wonderful to me to see how ingenious some Men are in finding faults with the present settlement of things though never so much for the best if not done exactly according to suit with their Humour or Hypothesis when indeed there can no fault be justly found with it for you agree that if the Queen hath a Right King William hath so also during his Life and whether the Princess of Denmark and her issue may survive the King is yet uncertain but if either she or they should happen to survive his Majesty yet since she hath made no claim or protestation in the Convention against the Kings holding the Crown after the Decease of the Queen I cannot see why this should not pass for a tacit Resignation oâ—â—er Right as well as in the case of the Princess Elizabeth you but now mentioned But admit his present Majesty according to the late received rules of Succession hath not a Title by Descent yet according to those principles I have already laid down he certainly has not only a Right to the Crown from that inherent power which I suppose doth still remain in the Eslates of the Kingdom as Representatives of the whole Nation to bestow the Crown on every Abdication or Forfeiture thereof on such Prince of the Blood Royal as they shall think best to deserve it and upon this account I conceive there is none of the Blood that can stand in competition with his Present Majesty for Prudence Valour Moderation and all other Royal Vertues and therefore it is not at all to be wonder'd at if the Convention hath in this case exercised that Original Power which the People reserved to it self at the first institution of Kingly Government in this Island especially if we consider his present Majesty not only as a Conquerour over King Iames but as our Deliverer from his Oppression and that Arbitrary Government that we were so lately under and which was like to be much worse had his reign continued a little longer Therefore I cannot but here take occasion to vindicate his Present Majesty from those exceptions you have made against his Country and Civil as well as Religious Principles First As to his Country 't is true he is a Foreigner yet that can he no exception against his admission to the Throne since it was none against his great Grand-father King Iames and I doubt not but his Majesty may understand as much of the English Constitution and Government as his said Grand father did when he first came to the Crown But as for his principles in Religion I cannot see any reason to suspect him more inclinable to the Church Government of Holland then that of England since he was bred up under a Mother who was always firm to the Religion and Discipline of our Church and ever since he was Married to the Princess he hath always shew'd a very great respect to its Liturgy and Ceremonies by his so constant frequenting his Princesses Chappel so that besides his Majesties Interest to maintain Episcopacy as most agreeable to the Monarchy and Antient Constitution of this Kingdom it is likewise if he were able not in his power to destroy the Church of England since the main body of the Clergy Nobility and Gentry of this Nation is to zealous for its preservation that if he had any such inclinations it would not be easie for him to effect it and he is too wise a Prince to let others persuade him so visibly against his own interest and having so late an example before his Eyes that it was King Iames's ruine to attempt it As for what you say of Scotland 't is true Presbitery is for the present set up there but it is uncharitable to impute this to the Kings inclinations for it is notorious that of them which call themselves Episcopal in that Kingdom a very great number did either out of prejudice to the Princes Cause or in contempt of his Power refuse to be chosen Members of the Convention or else after they were chosen did so far adhere to King Iames's interest as to desert it as did my Lord Dundee and many others and by that means gave the Presbyterian Party an advantage to carry all things as they pleas'd and this Party finding the King not well settled here and the Irish in Ireland in Arms against him took hold of that opportunity to put the abolishing of Episcopacy into the very instrument of Government and to press it upon him at a time when an unavoidable necessity and the obstinacy of too many of the Episcopal Party forced him to consent to it wherefore this no way shews his Majesties inclinations to set up Presbytery even in Scotland much less doth it prove he would set it up here where the Circumstances are quite different for here the main body of the People hate that Government and will be so far from desiring it that they will never endure it so that as to this your fears of King William are as vain as your hopes of King Iames. I shall conclude with a few words in answer to your reply against those examples wherein I have shewn you that the Crown hath always been under such a disposition as the two Mouses of Parliament should appoint to which you have nothing else to object but that their admission of Henry the IV th to the Crown was condemned as unlawful by two Acts of Parliament which I have already answer'd by showing you that those Acts were obtain'd by Richard Duke of York and Edward the IV th his Son by actual Rebellion and by as great a force upon King Henry the VI th as ever was used against King Richard the II d by Henry the IV th and as for the Statute of the first of Henry the VII th you have found out a very easie way of answering it by affirming that it was done whilst he was an Usurper and before his Marriage or that he had any right to be King But by this way of arguing no Act he ever passed would be good since It is certain he did never take upon him to Govern in right of his Queen as all those that have writ his Life do acknowledge and therefore if the Parliament would then settle the Crown upon him and his right Heirs without any respect to his Queen or her Issue or Sisters in case she should die
Act that it is Declaratory of the former Laws of England made in King Henry the VII th and VIII ths and other Kings Reigns whereby the Succession of the Crown had been frequently entail'd upon those who were not the next Heirs by Blood and tho' the Queen be only mentioned in it yet it certainly as much concerns her Successors as all future Parliaments as the Oath of Allegiance in which the Queen is only mentioned does all future Kings and Queens And it is not only made Treason during her Life but also there is a loss of Goods and Chattels to be inflicted on all those who shall maintain after her decease that the Queen and Parliament had not Power to Limit the Succession And if the Parliament in her Reign could do this I desire to know whence it is that the present Parliament may not have the like Power As to what you alledge concerning the Judgment against the two Spencers being revers'd in â—1 th of Richard II. because done whilst Edward II. was still alive I desire you would take notice that this Parliament of Richard the Second was wholly made and pact by King Richard after the Banishment of the Dukes of Lancaster and Norfolk and that as well the Lords as Commons were in such fear of the Arbitrary Power he then exercised that they past whatever he would And in this Parliament it was that the Proceedings against the Chief Justice Tresilian and his fellow Judges who had been Condemned and Executed by Judgment in Parliament in the 11 th of this King were reverst And no prove the Illegality of this Parliament you need but consult the Statute-Book in 1 st of Henry the IV th where you will find one of the first Statutes after his coming to the Crown is to repeal all Acts and Proceedings made in that last Parliament of Richard the II d. M. I doubt this will not do the business for we maintain that Henry the IV th also his Son and Grand-Son were Usurpers and consequently all the Acts made in their Reigns were null and void F. I will grant you for once that Henry the IV th was an Usurper and that Edward the III d. was so also during his Fathers Life-time but then it doth not follow that all the Laws and Statutes made during those Times were null and void since you must needs know the contrary for even in that Parliament of the 21 th of Richard the II d. though 't is true that Judgment against the Spencers was revers'd for the Reason you have given yet did that Repeal extend to no other Statutes but that tho' made in the same Parliament of Edward the III d. whilst his Father was yet living But they are all of them held for good at this day as are also all the Statutes of the three Henry's whom you suppose to be Usurpers which have not been repealed by any subsequent Statutes as I can assure you those of the first of Henry the IV th are not and therefore are good Laws at this day So that nothing can be a plainer proof than this that let the King's Title to the Crown have been it would yet Allegiance was due to them as long as they continued in the Throne Therefore to conclude let me tell you I think it behoves you if you mean to keep that Office you hold under the Government to take the Oath of Allegiance to their present Majesties since you owe your Protection to their Government which certainly deserves a Temporary Allegiance as long as you enjoy the benefit of it And indeed the Oath it self is so loosly worded that methinks any Man may take it without any scruple since it doth no ways declare that the present King and Queen have an Hereditary Right to the Crown but only the Person swears to bear true Allegiance to their Majesties King William and Queen Mary which I think even Strangers and Denizens are bound to take as long as they continue in the Kingdom M. I am sorry you should think me after so long an acquaintance capable of doing any thing against my Conscience for any Worldly advantage whatsoever and therefore I must freely tell you that as for the Imployment I hold I will rather part with it if it were never so great than do any thing against my Conscience and that reputation I have hitherto maintained in the World of being an Honest Man And therefore I cannot take the Oath as a meer Denizen that owes Protection to the present Government Not only because this Oath is inconsistent with that I have already taken but also there is much more required of those that owe a Natural Allegiance to their rightful King than can be required of Strangers till they become Naturaliz'd by Act of Parliament And therefore it is that when any War breaks out between Neighbouring Princes all such Denizens who do not become absolute Subjects of this Kingdom by Naturalization if they will act like Honest Men must look upon themselves as oblig'd either to quit the Kingdom in case a War be declar'd against their natural Prince or at least are oblig'd not to act any thing to his prejudice though they may still inhabit and Traffick here which is a quite different Case from those who are not only born the King's Subjects but have also taken the Oath of Allegiance to him And therefore I can by no means think it Lawful to take this New Oath to King William and Queen Mary though it were required in no higher a sense than as King and Queen de facto since it can no ways consist with that Oath which I have already taken to King Iames and his right Heirs as I shall prove to you another time since it is now very late from the true sense and meaning of those words I will be Faithful and bear true Allegiance c. which can only be sworn to such Kings and Queens who besides a bare Possession have also a Legal and Hereditary Right to the Crown F. I shall be very glad to hear you farther upon this Question for if that can be made out I fear too many of the Clergy as well as Laity by mistaking the true Sense of this Oath have been Forsworn But pray tell me when I shall wait on you and hear what you have further to say upon this Important Subject M. Pray let me see you two or three days hence and then I shall be at leisure in the mean time am your humble Servant F. And I am yours FINIS Bibliothera Politica OR A DISCOURSE By WAY of DIALOGUE On these following Questions I. Whether an Oath of Allegiance may be taken to a King or Queen de facto or for the time being II. What is the Obligation of such an Oath whether to an actual defence of their Title against all Persons whatsoever or else to a bare submission to their Power III. Whether the Bishops who refused to take the Oath of Allegiance
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
Act of Parliament and therefore I must still tell you that you go upon a wrong ground when you suppose that there can be now any dispute who is rightful King of England since I have often told you that he can neither abdicate or forfeit his Right to the Crown and that no Parliament whatever much less a Convention could have any power to declare he had abdicated the Government and that thereby the Throne was become vacant for though I grant the judgement of the Estates of the Kingdom when legally assembled ought to be received with great submission and respect yet must it be only in such matters which they have a legal cognizance of and which they are impower'd by the Laws and Constitutions of the Kingdom to determine but since their Voting him whom you your self cannot deny to have been their lawful King to have abdicated the Throne when indeed he had not and then not only to declare the Throne vacant but also to place those therein whom you your self dare not affirm to be the next Heirs by blood are things quite out of their Element and beyond the Sphere of their Authority and though I grant that they may sometimes judge concerning the Succession of the Crown and who is next heir to it yet is this only to be understood as far as they judge according to the Common Laws of the Succession already laid down at our last Meeting and not when they go quite contrary to them and therefore though I own the Parliament might justly declare Henry the VIth to be an Usurper and consequently might be deposed yet doth it not therefore follow that they had a like right to declare Edward the IVth an Usurper and to pass an Act of Attainder against him as I confess they did after that Prince had held the Crown for ten years together since that was beyond their power to enact or declare by the fundamental constitution of the Government F. I am sorry your answer can afford nothing new but only the repetitions of the same false Principles and Arguments that have been already so often answered in our former Conversations for in the first place I have sufficiently proved that neither the Laws of God nor Nature have ordain'd any such thing as a lineal Succession of Kings or any irresistible or unforfeitable power in them which they can never fall from let them act never so tyrannically for I think I have sufficiently prov'd that not only in absolute Monarchies but also in limited Kingdoms where the King has not the sole Supream power a King may not only be resisted but may be also declar'd to have abdicated or forfeited his right to Govern in case of any apparent obstinate violations of the fundamental Constitution in those great points that make that Government to differ from a despotick Monarchy and that if they had not this right all their liberties will signifie nothing and their Lives Liberties and Estates would lie wholly at the Kings mercy to be invaded and taken away when ever he pleas'd I am forced to repeat this to remind you of the Reasons upon which those Principles are founded and therefore you do but fall into your old mistake when you affirm that by the fundamental constitution of the Government the Great Council of the Nation which was but the same with our late Convention had no power to declare the King to have broken the Original Contract between him and his People Therefore what you say concerning the want of Authority in this Great Council to declare the Throne vacant is altogether precarious unless you could also prove that it is against the fundamental constitution so to do whereas I have so far proved the contrary that the Throne has been declared vacant no less than eight times since the Conquest which makes up almost a third part of the Successions of all the Kings and Queens that have Reigned since that time so that if the custom and practice of Great Councils or Conventions and those not condemn'd by any subsequent Statutes can be the only Rule or Guide for the Consciences of all the Subjects of this Nation we have certainly had that as solemnly declar'd now as in any other Great Council or Convention that has been ever held in this Kingdom but as to what you say concerning the want of power in those Councils to declare or recognize who are the right Heirs to the Crown but not to make them so is very pleasant since that were all one as if two Men who contended for an Estate should bring the matter before the House of Peers and when that was done and the Case solemnly heard by Council on both sides that party who had lost the Cause should declare that this Court tho' the highest in the Kingdom had no power to judge in prejudice of himself who had an undoubted right to the Estate which were only to give the Lords power to give judgment only for one side and why the other Party if the judgment had been given against him should not have made the like Plea I cannot understand So that such a Judgement would be altogether in vain Therefore to apply this to our purpose though the Parliament being prevail'd upon by the strength and faction of the Duke of York did as I granted at our last Meeting declare that his Title could in no wise be defeated yet Henry the VIth being then in the Throne they might have certainly given a contrary judgement if they had pleased and then I suppose the Title of the House of York might have been so defeated as that the Nation had never been troubled with it again and so also when by the power of Edward the IVth a Parliament met and declared him to be lawful King from the time of his Fathers death yet when the said King was driven out of the Kingdom by the Earl of Warwick and King Henry the VIth restored to the Throne a Parliament was summon'd in the 49th of this King wherein Edward the IVth was declared an Usurper and himself attainted and to which Parliament the Duke of Clarence Brother to King Edward the IVth is first Summoned as well as the Arch-Bishop of Canterbury with all the other Bishops Temporal Lords and Judges of whom Littleton the Authour of the Book of Tenures was one so likewise upon King Edwards recovery of the Crown the year following King Henry was again deposed and a Parliament called wherein all the Dukes Earls and Barons with the Arch-Bishops of Canterbury and York and most of the rest of the Bishops Swore to Prince Edward after called Edward the Vth as Right Heir of the Crown Now I desire to know what other Law or Rule there was then for the Subjects Allegiance but the solemn judgement or declaration of the Estates of the Kingdom assembled in Parliament since their Acts and Judgements were in this dispute directly contradictory to each other so that it is evident
also to those of justice and right reason for an Usurper not only to seize the Throne by force but if he can once get himself solemnly Crown'd and then recogniz'd by an Act of Parliament of his own calling which your self cannot deny but to have been ever too obsequious to the will and power of Usurpers as appears by those instances you have given me in Henry the IVth Henry the VIth and Richard the IIId the consequence will then be that the whole Nation would not be only bound to swear Allegiance to him but would be also oblig'd by this Act to desend him in his Tyranny and Usurpation to the utmost of their power and it would also indemnifie them for so doing which would be to establish iniquity by a Law and would destroy all the setled foundations of right and wrong which I affirm God himself is not able to alter without departing from those great attributes of immutability and Justice so essential to his Divine Nature F. It will not be very difficult to reply to these Arguments since they are grounded on such false Principles as are already answer'd As first that this Kingdom is by the fundamental constitution of it an Hereditary Monarchy and that consequently none but he who has a right by inheritance can require our Allegiance but pray tell me where you can find this fundamental constitution for I think I have sufficiently prov'd that there never was any such thing known in England till between four and five hundred years since that King Edward the First succeeded to his Father Henry the Third without any Bequest of the Crown by his Testament and before any Election or Coronation since he was then in the Holy-Land But suppose it now to be an Hereditary Monarchy it doth not therefore follow that the Monarchy should continue always in such a Family for that may sail or may be changed by Conquest or Usurpation as has often been and the constitution continue So that the most that can be said is that when any particular Family by the Providence of God and the consent and submission of the People is placed in the Throne of right the Crown ought to descend to the Heir of that Family but suppose it does not must we pay Allegiance to no other person though pâ—ssessed of the Throne Pray Sir shew me that fundamental constiâ—ution for its being an Hereditary Monarchy does not prove it and according to the Judgement of the best Lawyers the Laws of the Land require the contrary viz. that we must pay our Allegiance to him who is actually King not to him who ought to have been King but is not and to think to confute this by pretending this fundamental constitution of an Hereditary Monarchy is to take that for granted which is still to be proved And therefore I am not at all frighted at the dreadful consequences which you suppose must follow if this Statute of Henry the VIIth should be Law viz. that it would be in the power of every Rebell and Usurper who could get himself Crown'd and then own'd to be King by a Parliament of his own calling to have a legal right to our Allegiance and that Cromwell if he could have got himself once Crown'd and recogniz'd might have been defended in his unjust Usurpation against King Charles the Second But admit this to have been so yet it is still to be understood that at this Coronation he had taken the Oath anciently taken by our Kings and that the Parliament he had summon'd to recognize his Title had consisted of the antient Lords and Commons consisting of Knights Citizens and Burgesses which never was observ'd in any of those Mock-Parliaments which Cromwell call'd had all these Conditions been observ'd I believe he would have been as legal a King within this Statute of Henry the VIIth as he himself ever was before he Married with the Princess Elizabeth which was not till near half a year after he had the Crown setled upon him by Act of Parliament So that though upon every translation of the Crown from one Family to another the first Prince of that Family could have no Hereditary Right to it yet we find such Princes to this day taken for Lawful Kings thus your William the Conquerour King Henry the IVth and King Henry the VIIth are each of them looked upon as true and lawful Kings according to our constitution as if they had been right Heirs of the Crown by lineal descent and though you may say that as to William I. he had a good right by Conquest that is only gratis dictum since I have already prov'd that he could be really no Conquerour And if the English Saxon Monarchy was hereditary before the Conquest as the Gentlemen of your opinion suppose he could be no other than an Usurper upon Edgar Athling the right Heir of the Crown by blood and as for Henry the IVth and Henry the VIIth though they both pretended a feigned Title to the Crown as Heirs by blood yet it is plain by the very Acts of Recognition I have cited that they durst not insist upon that Title since I have already prov'd there is no such thing mention'd in that Act of Parliament wherein the Estates of the Kingdom unanimously agreed that Henry Duke of Lancaster should Reign over them nor yet in the subsequent Act whereby the Crown was intail'd upon himself and his four Sons successively so likewise the Statute of the first of Henry the Seventh it is only drawn in general terms declaring that the Inheritance of the Crown of England c. shall rest remain and abide in the Person of King Henry the VIIth and the Heirs of his Body lawfully coming c. Nor is there indeed any breach made upon this Statute as you suppose nor yet upon the Act of Recognition of King Iames which you so much insist upon since the Crown is certainly setled upon two Princes who are not only lineally descended from them but who are also to be looked upon as right Heirs unto them since the Great Council of the Nation who are the Supream Judges have declar'd them to be so But as for the rest of your Speech whereby you would prove that this Act must needs be void because contrary to the Laws of Justice and right Reason this also depends upon your former errour in supposing that Princes have a Divine or Natural Right to their Crowns antecedent to the municipal Laws of their respective Kingdoms which is already sufficiently confuted so that tho' I grant it is not in the power of God himself to alter the natural foundations of right and wrong just and unjust yet it is likewise as certain that the Civil Rights of Princes as well as those of Subjects can no ways be accounted for according to those Natural Laws since all Civil property as well in Crowns as other Possessions must depend upon the particular Laws and Constitutions of each Kingdom and
Land though in words you deny it for every hereditary right is either a continued Usurpation by force which can give no right at all or a right by Law which is by the consent of the People to entail the Crown on such a Family which certainly is to make a King by Law that is by the consent of the People But if you will suppose that it was the Authority of the first King alone who thus intail'd the Crown upon himself and his right Heirs I desire you would shew me how the Crown could be so intail'd without the consent of the People so as that his Successor may not alter it and give it by his last Will or Testament to which of his Sons or Daughters he pleases since Sir Robert Filmer himself acknowledges that a testamentary heir to a Crown in an absolute Monarchy is as much by Divine right as if he had come in by Succession as appears by the instances he gives in Seth who could have no right to succeed his Father Adam in the Government of Mankind while Cain his Elder Brother was alive by the Will of Adam his Father the like I may say of Solomon who by his Fathers Crowning him King in his life time and thereby making him his Successor gave him a right to Rule over Adonâ—jah his Elder Brother so that I may very well ask you if the present Law of the Land did not proceed from the free consent of the People testified by long Custom or express Declaration of the People by their Representatives in Parliament I desire to know why the King of England cannot as well settle the Crown by his last Will upon which of the Blood-Royal he pleases as that it should be Lawful for the English Saxon Kings to exercise this Prerogative as Dr. Brady supposes they did before the Conquest without the consent of the Great Council of the Nation So that I think I may much better ask you what that Law was and who made it which you suppose to make Kings prior to and independent from the consent of the People since if there be any such Law it is either as yet unknown to Mankind or else all those who are once possess'd of Kingdoms have an equal Title to them by Divine Right But indeed it is only some Divines who were more scrupulous than knowing in Politicks who first started this question whereas indeed there is no such great Mystery in it for that Law by which the first King of England for Example was Elected was not in being before the King was made nor yet was the King in being before that but when the first King was made so by the consent and election of the People the King and the Law that made him so began both together that is the People by chusing of him to Govern upon certain Conditions and he by accepting the Crown upon those Conditions was that Law by which he then took the Crown and by which it has been held ever since that time So that if the Crown ought to be enjoy'd according to a legal right and that there must be some Judges appointed of this right when ever any Disputes may happen about it either every pretender to the Crown must judge for himself and then he will be both Judge and Party in his own Cause or else it must be left to the conscience of every individual Subject in England to side part with what Party he pleases that may thus pretend to it and so there may be a dozen Competitors for the Crown at once and all with equal right as for ought that any body knows or lastly this right must be left to the determination of some Civil Judges to judge whose Right it is and who can these Judges be who shall thus judge what are the antient Laws of Succession and Rules of Allegiance but the Great Council of the Nation therefore if they have already declar'd and recogniz'd King William and Queen Mary to be lawful King and Queen of this Realm I think every Subject of the same may very well justifie their Swearing Allegiance to them not only by vertue of this Statute of the 11th of Henry the VIIth which requires Allegiance to be paid to the King in being but also from the equity and reasonableness of the thing it self to hinder the Nation from falling together by the ears and to entail Civil Wars from Generation to Generation if the Subjects were oblig'd by their former Oath of Allegiance to the King de jure to endeavour to restore him by force of Arms and therefore the Preamble to this Statute very well and truly sets forth that it is not reasonable but against all Law Reason and good Conscience that the Subjects going with their Sovereign Lord to the Wars any thing should lose or forfeit for doing this their true duty and service of Allegiance to the King for the time being M. But pray tell me is not this very strange and unjust and that by your own showing that a Prince should have a legal Right and Title to the Crown without a right to exercise the Authority belonging thereunto for they must now pay Allegiance to the King in being let him be never so great an Usurper so that indeed the preamble to this Act is expresly false since I think it is very unreasonable nay against all Law Reason and good Conscience to Swear Allegiance to an Usurper since by that means not only all good Subjects would be put out of a capacity of endeavouring to restore the King de jure to his Throne though never so unjustly depos'd or driven out as in duty they ought but also those who were instrumental in this Rebellion and in depriving the Lawful Prince of his just Rights may not themselves endeavour to restore him which would put them out of all possibility of making amends for the wrong they have done him and of making restitution by again restoring him to his Throne F. If this be all the difficulty that is left upon your mind I doubt not but to prove to you not only from the Law of the Land that Allegiance may be lawfully Sworn in this Case but also that it is for the common happiness and peace of the Nation which is the main end of all Government that it should be so and therefore I shall first freely grant that though it is Rebellion unjustly to deprive a King and his right Heirs of the Crown and that those who had a hand in it are bound in conscience to endeavour to restore him or them to their just rights again yet this must be done by no other methods but what are consistent with the publick peace and safety of the Common wealth for if a King de facto has once got possession of the Throne and has been Crown'd and Recogniz'd by Parliament from what has been already proved I think it is very plain that they ought to obey him not only from the
and is by the law of Nature oblig'd to Honour Obey Assist and Support So also is he born a Member of the body Politick and by consequence a Subject to the Sovereign of it and accordingly by the same eternal Law is bound to pay all faithful Service and Obedience to him when he in a capacity to perform them But your next Mistake is yet worse when you confound that common Obligation of a Foreigner or meer Denison to be true and faithful to the Common Wealth wherein he lives with this Natural Allegiance of every English Subject for though I grant the taking the Oath of Allegiance does not inforce any new Obligation upon him that takes it more than he was subject to before yet for all that I think you will not deny but that there is a great deal of difference between that common Obedience or Submission which such a Foreigner pays to the King and his Laws in a Country where he Sojourns and that more perfect Allegiance arising either by Birth or from such a strangers being naturalized and by taking the Oath of Allegiance becoming as true and perfect a Subject as a natural English Man and hence it is that in all Wars declar'd between Neighbouring Princes whatever Subjects of theirs shall presume to stay and reside in each others Dominions after once they are recall'd home may be justly Executed as Traytors when ever they shall be taken and therefore though I grant that every Person now living in England and of ripe Age is oblig'd to obey your King and Queen de facto in all ordinary and lawful things which tend to the publick Benefit and Defence of the Civil Society or Common-weal and which being for the benefit of the King de jure and his leige People it is to be morally suppos'd they have his Tacit consent for what they do as long as it tends only to this end yet does it not therefore follow that the bare protection of this usurpt Government and the enjoyment of the common priviledges of a Subject should give such a King de facto or Government a right of exacting an Oath of Allegiance to them since I have already prov'd from the true signification of being true and faithful as also from the legal signification of the word Allegiance that no true Subject can lawfully take it without renouncing his Allegiance to his natural Prince since not only a bare Neutrality or Obedience in not transgressing the Laws is thereby required of them but also an Active Obedience and Duty in performing the King de Facto's commands and the deâ—ending him when ever there is occasion in his ill-gotten power But since the only difficulty is how a strict observation of this Oath can consist with the quiet and happiness of the Subjects when ever a new Oath of Allegiance comes to be impos'd by the King de facto since the Subjects may be all ruin'd that do not take it if it be once offer'd to them This difficulty might be easily remov'd if the whole Nation would â—lick firmly to the Duty required by their former Oath of Allegiance and resolve never to take a new one for then the numbers of the refusers would be so great as that they would be more than could be made to suffer for their refusing it I speak of such Subjects as are in our case and who are not forced by a Prince who either has the Right or Power of a Conqueror to compel them by force and therefore your instances of the Subjects of the King of Spain or of the Duke of Holstein who were conquer'd or else as good as conquer'd by the power of France and Denmark whereas we are only over-aw'd by an inconsiderable number of Dutch and Germans and might set our selves free if we would give but a vigorous Effort towards it For that King William is a Conqueror over the whole Nation I think you dare not affirm And without he were so he could challenge no right to our Allegiance as such and therefore I must still believe that the Oath of Allegiance I have taken to King Iames and his Heirs is perpetual unless you could show me that their Right is determin'd which you have not done by any thing you have yet said and therefore I cannot be of your Opinion that the bare protection of an usurpt Power can justifie our Swearing Allegiance to it either in Law or Conscience for then all Men had been oblig'd to pay as firm an Allegiance to the Rump Parliament and also to Oliver Cromwell as to King William and Queen Mary since both the former protected the People as much in their Religion Civil Liberties and Properties as the latter I fear will ever do And that the bare protection of a Government does not give it no absolute right to the Allegiance of all those that enjoy their protection I think may be sufficiently prov'd from the instance of a Frenchman or any other Foreigner who though by his living here and enjoying the common protection of the Government I grant he is oblig'd to be obedient to its Laws and is not to Act or Conspire against it yet this does not discharge him from his natural Allegiance which he still owes to his former Prince so as to do any thing which may prejudice that Allegience he owes to him either by Conspiring or Fighting against him And this was solemnly declard to be Law by the Judges of the Kings-Bench in the case of Dr. Story in the 13 th Year of Queen Elizabeth He being a violent Papist fled over into Flanders to the Duke of Alva and there conspiring with him to invade this Kingdom and being afterwards taken and brought over Prisoner was Tryed as a Subject of England though he refused to plead as such because he said he had Sworn Allegiance to the King of Spain notwithstanding which Plea he was Executed as a Traytor as you will find at large in my Lord Chief Justice Dyers's Reports which Judgment is also confirm'd by the Lord Chief Justice Coke in Calvins's Case where he expresly Asserts That a Person born under the Dominion of the King of England owes him perpetual Faith and Allegiance and this by vertue of the Law of Nature because Iura naturalia sunt immutabilia from whence will also appear the falsity of your Conclusion that Oaths of Allegience extend no further then to the King in Possession or to that Government to which we do at present owe our common Protection and therefore that our Law has a much higher consideration of this inherent Allegiâ—nce that belongs to a King de Iure as to his particular Person and his Heirs so that it cannot be indifferently paid to any body else who can by seizing of the Government force us to owe our Protection to them Which appears by what my Lord Coke hath also laid down to have been agreed by all the Judges upon this Oath of Allegiance in Calvins's Case as I
cited it to you at the beginning of this Evenings Conversation so that I confess I much wonder considering what he has there said how he can so positively maintain as he doth in the place you have also quoted that Allegiance is due to the King de Facto and not to Him de Iure whilst the former is possest of the Crown since it seems a flat contradiction to me how a Subject is to pay Allegiance as long as he lives to the King and his Heirs of life and member that is until the letting out of the last drop of our dearest Hearts-blood and that in all places whatsoever And yet that this Obligation should last no longer then whilst the King de Iure is in actual Possession of the Throne and therefore I think I have still very good reason to maintain that we are still oblig'd by our former Oath of Allegiance to King Iames so as not to take a new one to any other King unless we had been constrain'd to it by an absolute Conquest which you your self will not maintain to be our present Case F. I confess you have now argued this point very stifly and I confess what you have said carries with it the greatest appearance both of Law and Reason of any thing you have yet urged upon this Subject and therefore if I can fairly answer it I hope you will come over to my Opinion and take the Oath which is now required of you In the first place therefore I cannot deny that all you have said concerning a natural Allegiance due by Birth to the King is true according to our Laws and I do my self allow the thing viz. That Allegiance is due to him though not for the Reasons upon which our Lawyers have founded it but upon those I have already given and therefore though granting it was held to be Law in the Case of Dr. Story that his Plea of his becoming a Subject to the King of Spain was over-rul'd by the Judges and he refusing make any other Plea was condemned upon a Nihil Dicit Yet this being only a Penal Law I think obliges the Subject to the penalty if he be taken but does not oblige him in Conscience never to change his Prince or the Government he was born under without their consent let his Circumstances become never so uneasie under it and that this is so I need go no further then the late Case of the French Refugees who thought they are strictly commanded by their King not to stir out of France whatsoever persecution they may suffer yet I think no Man of Sense can blame them if being persecuted there they remove themselves into other Countries and become perfectly Naturaliz'd Subjects or Denisons at least in that Government whereunto they remove and this is so known a thing that no Casuist as I know of thinks it a sin in such Subjects of England as finding it for their advantage go over into another Country to settle and make their Fortunes or are there Naturaliz'd or made free Denisom in those Kingdoms or Common-wealths whereunto they remove nor are such Persons oblig'd in Conscience to return Home upon the Command or Summons of that Prince to whom you suppose them to be Subjects by Birth nor is your Argument at all convincing that because a Mans owes a duty to his Parents by the law of Nature and by being Born their Child that therefore the subjection to the Prince under whose Government he is Born must be alike perpetual since the ground upon which you found this Consequence is altogether false since I have already prov'd at the first meeting we had to discourse of these matters that a Man's being Begotten and bred up by his Parents does not make him become their Subject or Servant in the state of Nature as long as he lives so that he may never withdraw himself from their subjection without their leave But in the next place I think I am as little mistaken in my Notion of Allegiance which I suppose every Person who is a true and perfect Subject of the Government owes to the King or Sovereign Power thereof for tho' I grant there is a great deal of difference between that imperfect Allegiance or bare Submission which every Foreigner owes the King or Government under which he resides and that more perfect Allegiance which every Subject owes the King who enjoys all the Rights and Previledges of a true English Man yet to let you see that this distinction proceeds not from the bare protection of his Person and Goods by the Government under which he lives but by his being Naturaliz'd and becoming thereby a perfect Member of this Civil Society is plain from your own showing and therefore whosoever not only enjoys the common protection of an Inhabitant but also all the Rights and Priviledges of a true English Subject is bound to swear Allegiance if requir'd to the King or Queen de facto without enquiring into their Right or Title for if they are strangers or have never taken any Oath of Allegiance before they cannot be under any former Oath and as for natural Allegiance I have already prov'd it to be a meer legal Notion and this Allegiance I have also prov'd to to be due to the King and Queen de facto not only from the Opinion of the Judges in Bagots's Case but also from my Lord Cokes interpretation of the Statute of Treason which though you suppose to be contradictory to what he had before laid down in Calvins's Case yet if you please better to consider of it you will find it not to be so for though it is true the Judges do there assert That the Obligation of the Oath of Allegiance is indefinite and without Limitation as being made to the King and his right Heirs and also that it extends to the venturing of life and members and to the letting out of the last drop of our Blood yet is this still to be understood only of such a one and his Heirs who still continues to be King in a legal Sense which can be only he who is King for the time being as he is stil'd in this Statute of the 11 th of Henry the 7 th and only during the time that he continues in actual Possession of the Throne And therefore the word King or Majesty being indefinite and without having any respect to his Title whether by descent of Blood or else by his being Crown'd and Recogniz'd by Parliament it is no contradiction to suppose this Allegiance is only due to the King in this limited Sence according to this Statute of Henry the 7 th where pray take Notice that I have made this Allegiance to be only due to Kings and Queens de facto because they only are within intent and letter of this Statute as also of that of Treason according to the legal Government of this Nation by the Fundamental Laws thereof and can no ways be extended to any other
the Government in the unsetled state it is in to follow Cromwell's Example and to impose no Oaths of Allegiance at all since the Government may be as secure without it as for all that I can see they can be with it and as it is now managed I see little it can serve for but to distinguish and divide us one from another and besides its being a snare to the Consciences of so many that take it it is like also to prove the ruine of divers of our Bishops and other honest Men both of the Clergy and Laity who will certainly rather lose their Dignities and Imployments than ever take it which will also cause a great Schism in the Church as I doubt you will find when it is too late whereas if these men might have held their Bishopricks and all other Preferments and Offices without having this Oath impos'd upon them I doubt not but they would serve both the Church and State in their several stations according to their duties and as far as lawfully they could F. I cannot deny but you have spoken very honestly and like a good English Man in many things you have now said in case your intentions towards the present Government were real as your words are fair and therefore I cannot wonder that you have been formerly a stiff asserter of the lawfulness and necessity of the Oath of Allegiance should now be for taking it quite away now it grows too hard for you self and those of your Opinion to digest As if to oblige Subjects to defend their Governours were a necessary security for your rightful Princes but were unnecessary for those whom you shall think fit to suppose to be Usurpers And though I confess I must very much pity the over-nice Principles of those of your way who are truly peaceable and consciencious and are like to be ruin'd by their refusal of it yet for all that I very much doubt whether it would be for the best to take this Oath quite away since it would make a strange alteration in the Government to admit all persons into ordinary Charges much less into Imployments of Trust and Profit without taking any Oath at all Your only Objections against it are these First that you doubt that it is unlawful to impose promissary Oaths and the next is that it will not perform the end for which it is intended viz. to distinguish those who will serve the Government faithfully and those that will not since you confess that a great many who are not at all satisfied in their Consciences will for interest not only hold their old Imployments but will also take new ones under it which I grant is not to be avoided if men will venture to be damned So likewise on the other side I must tell you that the quite taking away the Oath of Allegiance will not at all mend the matter but make it much worse since then not only those whose Consoiences will give them leave to take the Oaths but also those who think they ought not to take them will be alike capable of Imployments and when they are in them though I grant they may be both alike free to act as they please against the present Government and for restoring of King Iames yet I must needs tell you for all that that I am much more fearful of the ill will or malice of those who think themselues oblig'd in Conscience to overthrow the present settlement and who continue stiff to their first Principles than of those who will so far comply with this present Government and their own interest as to take the new Oath of Allegiance in whatever sence they please for I am very well satisfied that such men though they are not so right for the Government as I could wish them yet either fear of punishment or else the consideration of their own self-interest will always make them desire to retain those Imployments they have already got since they can never be assured of bettering their Condition under King Iames and a Popish Government should he ever return whereas those that are bigotted to Principles will always think it their duty by vertue of this notion of a Natural Allegiance as well as their former Oath to endeavour to restore him by all the ways and means that can ever lie in their power But as for the unlawfulness of a promissory Oath since you your self speak doubtfully of it and few Casuists except Grotius have been of that Opinion I think it is not safe to quit our antient Laws which particularly prescribe that not only all Magistrates and Officers but also all other of the Kings Subjects should take the old Oath of Fidelity or Allegiance as we now stile it in the Court Leet or Sheriffs Torne when they come to the Age of fourteen years which Oath as appears by what we can find of it in Edward the Confessors and King William's Laws which we have already recited as also you may find it in Sir H. Spelman's Glossary Tit. Fidelitas was made to the King as their Leige Lord of Life and Limb and which implies an active Obedience to defend him against all his Enemies without any exception of such as may claim by Inheritance or right of Blood Now this being so I cannot be perswaded that the Government ought to quit any lawful means whereby it may preserve it self and distinguish those who would really serve it from those who will not and though perhaps the Government may find it self mistaken in its account in some Men whose Consciences are large enough to swallow any Oath whatsoever yet I think I may still safely maintain that it is still in less danger from a few such Libertines than from those of your Opinion who would not only keep their Places under this Government but will also continue in a perfect state of War against it let them be treated never so kindly and therefore as to those dreadful Consequences of Schisms in the Church and the lessening and dividing our Party as to the former we must run the hazard of it since it was never heard of that the Bishops who are in some respects Temporal Barons held their Bishopricks under any King since the Conquest without owning his Authority And I can also shew you that the King and Parliament have either actually deprived or else declared such Bishops Traytors to the Government So that if any such a Schism be made it will proceed from a scandal unjustly taken by some scrupulous Men and not by the Government And as for the other inconvenience I think it is much safer for the Government to imploy fewer Men then by not knowing who are Friends or Foes to trust all promiscuously though perhaps notwithstanding their utmost care some Men of little or no Consciences will places in this as well as they have done formerly which can by no other means be prevented as I know off but by chusâ—ing Men of honest Principles
ever they think they may now certainly it were very well to be rid of such false Friends if it were possible to discover them by such an Oath then to keep them where they are only to take an opportunity not only of doing a Mischief but of serving this Government very carelessly and lukewarmly whilst they are in those places they enjoy as also of favouring and assisting those that are the declare Asserters of King Iames's Right as far as they dare so that then all the dispute remains about those who having Consciences large enough to swallow any Oath whatever provided it will suit with their present advantage no Oath can tye them or serve to discover their private Sentiments as I cannot deny but that there too many Men of such large Consciences as you describe and could heartily wish they were fewer yet though I grant an Oath alone will not keep them out yet it might be in great part prevented if the King would take a true Character of the Men fit for publick Imployment from those about him of whose Worth and former Intergity he is already fully satisfied but admitting some such Men shall get into Places and consequently when they are in manage things for their own Advantage that is Vilely and Corruptly yet even these will not prove half so fatal to the Government as those Men of half Consciences who think they may take this Oath in their Own Sense and for their own present Advantage and also believe it no Breach of it to assist King Iames whenever safely they may because they hold their present Oath to be only Temporary but their former to have a perpetual Obligation upon them Whereas those of no Principles at all never Espouse any Interest longer then it serves their own turns so that as long as they can make their Fortunes under this Government they will never desire to change it for another in which they cannot but expect a much less free enjoyment of their Liberties and Properties which are things that all Men as well those who have no Principles as well as those that have desire to to enjoy And lastly some even of these Men that have been formerly notorious Asserters of and advanced in the Arbitrary Government of King Iames out of shame and as well as fear of the loss of their Credits with those of their own Party which they are not assur'd but may again prevail will stick to take this stricter Oath though they do not this that is now enjoyned since they can find an Evasion for the one but will scarce be able to do it for the other M. But pray tell me will not this new Oath declaring King William and Queen Mary to be Lawfull and Rightfull King and Queen of this Realm and that all Men that take it shall assist them against all their Enemies prove an implyed Oath of Abjuration of King Iames though not in express Words and you have not yet shewed me that such an Oath hath ever been Administred during all the various Contests that have been for the Crown since the Conquest F. I grant that such an Oath would be a Vertual and implied Abjuration of King Iames's present claim to the Crown and would also oblige all Persons to fight against him and hinder his regaining itâ— which though I grant to be the design of it Yet would not such an Oath oblige us at all to abjure the obeying King Iames should he ever by an irrestible Providence be again set over us since it is not abjuring of a Future but a present right which I now contend for and that all the Antient Oath of Fidelity or Allegiance as it is now called were of the like Nature and taken in the same Sence with this I propose I shall shew you from the form of the Oath of Fidelity which all Freemen were to take at Fourteen Years of Age as appears by King William the Firsts Law which I have so often cited Whereby all Freemen were to affirm upon Oath that within the Realm and without they will be True and Faithfull to King William their Lord and preserve his Lands and Honour with all Fidelity together with his Person and defend them against all his Enemies So likewise in the ancient Oath of Homage which was taken by all the Earls Barons and Tenants in Capite in England at the Coronation of our Kings It was in these words I N. N. become your Leigeman of Life and Limb and earthly Honour and Faith and Troth to you shall bear to live and die so help me God and in the latter Oath of Fidelity or Allegiance which Sir H. Spelman gives us out of the Customary of Normandy the words were much the same only the person is there sworn to be True and Faithful in the King and his Heirs which they were not before Edward the Firsts time And also what they would hear of no Evil or Damage against them which they would not hinder to their Power now pray tell me were not all these Oaths taken to the King for the time being as Lawfull and Rightfull King and since they were thereby to yield him Life and Limb that is were to defend him with their Lives against all his Enemies then certainly all others who might pretend to or claim the Crown were included within this number and though it is true in these ancient Oaths there is no Swearing to the present King as Lawfull and Rightfull King yet these words were needless in that Age when as I have proved at our last meeting there was no difference between a King de Iure and one de facto and whoever was crowned King and Elected or Recognized by the great Council of the Kingdom was looked upon as Lawfull and Rightfull King and as such was to be defended against all his Enemies so that it was till that distinction was broacht that there might be a King de de facto different from the King de jure which I have proved was not elder then Edward the IV ths Reign There was no need of any mention of such words in the Oath of Allegiance as lawfull King and lawfull Heirs which are first found in the Oaths of Allegiance and Supremacy prescribed by the Statutes of Queen Elizabeth and King Iames in the latter of which it is needless to recite it Verbatim it is first sworn That the King's Majesty is Lawfull and Rightfull King secondly There is an express abjuration of the pretended Authority of the Bishop of Rome which shews that the Abjuration of the Temporal as well as Spiritual Right of a Foreign Prince who claims it ever since King Iohns Resignation is no new invention and lastly there is an express abjuration or Engagement to defend the King's Person to the utmost of the Swearers Power against all Conspiracies at Attempts whatsoever and why the same words may not be inserted into this new Oath as well as it was in those I can see
no Reason since they are only Declarative and Persuant to the late Act of the Convention whereby after the Declaration of the Rights and Liberties of the Subjects King William and Queen Mary are Declared That they were and of Right ought to be by the Laws of this Realm our Soveraign Leige Lord and Lady and King and Queen of England c. M. Well it is late and besides to no purpose to argue this Point any longer since it concerns not me nor any of my Principles what new Oaths you make and impose upon those whose Consciences will never permit us to take them What I have said was only to shew you the Folly and Weakness of such Oaths and Consequently that they can be subservient to no other end then a renewal and aggravation of the Sin of Perjury among us which God forgive this sinful Nation among the many crying Sins it now growns under Yet give me leave still to mind you that you have not given any answer to the Objection I have made concerning the Schism that is like to follow from the depriving of all such Bishops and Clergy that shall refuse to take the new Oath by such a time which Deprivation being uncanonically ordain'd by the meer lay power of the Convention without the authority of a Convocation or Synod such proceedings are sufficient cause for all of our way to break off all Church Communion with you as soon as the Arch Bishop of Canterbury and those other Bishops shall happen to be deprived and new ones put in their Places since all Church Communion wholly depends upon the lawfullness of the Bishops who are the supreme Pastors of our Church F. I forgot to say any thing of this because I said so much to answer concerning the new Oath I proposed as sit to taken by those in places of Trust but since you desire it I shall say somewhat though not so large as I could speak upon this Subject First I must tell you it is altogether a new Notion and contrary to the Doctrine of the Church of England whereby it is declared that the Kings of this Realm have the same Power with Persons in the Church as the Kings of Iudah and Israel had among the Jews therefore you must either depart from the Doctrine of this Canon or else the King and Parliament who are certainly as much the supreme Power of the Nation as the Kings of Iudah were to that of the Jews may as well deprive the Arch Bishop of Canterbury for Example for Treason or Disobedience to the Government as Solomon did Abiathar for Anointing his Brother Adonijah King and besides this I can shew you many Examples of the like power exercised by the Roman and Greek Emperours in depriving and banishing not only Bishops but Patriarchs for the matters of State without any Sentence or Judgment of a Synod or general Council of other Bishops if your Doctrine were true the poor Greek Church would be in a sad Condition and all her Members in a perpetual Schism for some Ages past that there hath been scarce any Canonical Elections or Deprivations of the Patriarchs of any of the great Seats viz. Constantinople Antioch and Alexandria but they are all nominated and put in and out at the Grand Seigniors nay Visiers Will and Pleasure as any Man who will but peâ—uâ—e Sr. Paul Rycauts account of the Greek Church may easily see But indeed you fall into this Errour for want of considering the original of Bishop-pricks in England and the true meaning of this intended Deprivation for pray take Notice that though Episcopacy was setled in England in the time of the Britains yet all the Seas and Jurisdictions of the Bishops of this Realm in respect of such and such Diocesses have been wholly oweing to the bounty of our Kings and the Authority of our Great Councils which were also confirmed by the Popes Bulls and since the Reformation to the Authority of the King and Parliament as were all the Bishop-pricks erected in Henry the VIII ths Reign so that let the Bishops meer Spiritual Power of Ordaining Excommunicating c. be derived immediately from Christ if you please yet the Exercise thereof as limited and appointed to this or that Precint or See is as meer a temporal Institution as that of Parishes which was not introduced till long after Christianity was settled in this Island So that the Exercise of this Ecclesiastical Jurisdiction within the See of Canterbury for Example being a Civil Institution it hath anciently belonged to Supream Powers not only to confer this Power as appears by their ancient Investitures of our Bishops per Baculum Annulum but also to take it away for Treason or Disobedience against the State since the King and Parliament do not pretend to deprive them of their Spiritual Character or Episcopal Orders but only of their right to exercise it within such Sees or Diocesses thus although the Arch-Bishop of York and the Bishops of London and Wichester with the rest of the Popish Bishops were deprived by Act of Parliament in 1 o th of Elizabeth for not taking the Oath of Supremacy the Queen and Parliament never took upon them to degrade those Bishops of their Episcopal Orders but only to forbid their acting as Bishops in their former respective Diocesses and therefore I doubt not but that notwithstanding this Depriviation those Bishops might if they had pleased have ordained Priests and confirmed Children and that such Ordinations and Confirmations would been good even in our Protestant Church if such Priests or Children had afterwards turned Protestants since 't is very well known that the Church of England ownes the orders of the Church of Rome to be valid which is more then we do for the ordinations of meer Presbyters coming from those Protestant Countrys where there are no Bishops at all the like I may say for their Confirmations too But pray Sir consider how upon your Principles this Schism can be so Universal as to influence and involve all England in it for if the Arch Bishop of Yorke for example will rather take this Oath then suffer Deprivation and that the rest of the Bishops of his Province should be of the mind as I am credibly informed they will pray tell me how the People of that Province being a distinct Church or body Ecclesiastical from that of Canterbury as to all Spiritual matters as having a distinct Convocation of their own can ever be involved in this Schism by the deprivation of the Arch Bishop and Bishops of the Province of Canterbury And pray also tell me in the next place how all the Members of the two Universities can ever be involv'd in this intended Schism since they owe no Canonical Obedience to the Arch-Bishops of Canterbury or York nor to any other Bishop but only to their Chancellour and the Vice-Chancellour as his Deputy who exercise all Ecclesiastical Jurisdiction within the said Universities and therefore their Church
that administred it is alter'd so that it would conduce nothing to King Iames's Affairs if all the Gentry and Lawyers of the Kingdom should go about to refuse this Oath which as I have already proved they are also obliged to take by the Law of the Land and also that greater Law of prosecuting the publick good of the Nation to the utmost of their power M. Well since I cannot expect so great firmness of mind and courage from your Country Gentlemen and especially the Lawyers who have been always but too forward to comply with all Governments how unlawful soever and since you who think that you may lawfully take this Oath not only by the Law of the Land which you have interpreted to countenance your Opinion but also from a higher and nobler Law viz. that of the common good of the Nation or Civil Society which I grant must be maintain'd during the Kings absence since you say there is a necessity for it though I am not fully satisfied of the lawfulness of it so far as to take it my self yet will I not absolutely condemn you or any other sincerely and honest men who do only take it out of a good intent to maintain some Civil Government amongst us and also to keeping out the Phanaticks from having any share in it so I hope the Government will excuse me if my Conscience will not give me leave to take it my self since there are enough of you who are free to do it without us so that if I cannot keep that small Imployment I have without taking this new Oath I will freely give it up since as long as I am not satisfied in my Conscience of the lawfulness of it and whatsoever is not of Faith is Sin as the Apostle has truly defin'd it F. I confess you speak very honestly and charitably in this matter and I could wish all those of your Opinion had the like moderation and that they would not condemn of wilful Perjury so many good Bishops Noble-Men Gentlemen and others both of the Clergy and Laity who have been perswaded that they might take this Oath with a safe Conscience and therefore pray however we differ in Opinion about these matters let us maintain the same Friendship for each other as we had before M. Sir I readily embrace so fair and kind an offer and as I hope you will do me what kind offices you can whilst you continue to act under this Government so I will promise to do the same for you when ever the King shall come to be restor'd to his Throne again F. I willingly and thankfully accept the proposal of the continuance of your Friendship since I look upon your dissenting from me not to proceed from any wilfulness or obstinacy but out of a tender Conscience and too great and high a sence of your duty which I must still confess are errours on the right hand and therefore now taking my leave of you shall only desire you to believe me your real Friend and humble Servant M. I hope you think I have the same esteem for you and therefore must always own my self yours FINIS A General Alphabetical INDEX OF THE MATTERS and QUESTIONS Debated in the Thirteen Dialogues OF Bibliotheca Politica LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford-Arms where also many be had the First Second Third Fourth Fifth Sixth Seventh Eighth Ninth Tenth Eleventh Twelvth and Thirteenth Dialogues 1694. A General Alphabetical INDEX of the Matters and Questions debated in the Thirteen Dialogues of Bibliotheca Politica The Reader is desired to take notice that these Dialogues being written discursively and not determinatively this W. signifies the Question by the word Whether Note D. signifies Dialogue P. Page A ABEL W. Subject to his Brother Cain by Divine Institution D. 2. p. 67. to 70. Abesses often present in Saxon and French Great Councils D. 6. p. 393. Abbots W. all that were anciently summoned to Parliament held in Capite D. 8. p. 556. and how many came to be by degrees omitted Ibid. Abbots and Abbesses sometimes granted aids by themselves D. 7. p. 447. Abdication of the Government W. a King can do it any other way than by some express Act D. 11. p. 813 815 832 to the end Abuses of Governours their several kinds D. 3. p. 161. to 164. Kings Acts Illegal W. also Inauthoritative D. 9. p. 644. to 649. Acts of Parliament W. they to hold good tho' not called by the King D 12. p. 894. to 896. Adam W. he had conferred on him by God the Dominion of the whole Eaath and of all Creatures therein D. 1. p. 37. to 39. W. By being a Husband and Father he was also absolute Lord over Eve and all her Posterity Ib. p. 12. to 25. Adel and Adelman their signification among the Saxons and Danes D. 6. p. 374. Alderman its signification among the same Ib. p. 375. Aldermen of Countries who D. 5. p. 370. King Alfred his Testament D. 10. p. 721. St. Albans Burrough Pâ—tition to King Edw. the Second D. 8. p. 576 to 578. Allegiance W. due by Law to a King de facto D. 13. p. 905. to the end The word Alij in antient Statutes and Records W. it signifies only the lesser Tenants in Capite D. 7. p. 491 493 518. 523. Arch-Bishop of Canterbury hath been sometimes Elected in the Great Council of the Kingdom D. 8. p. 570 571. Standing Army in time of Peace against Law D. 9. p. 638 639. Great Assembly at Runne-Mead W. it was a Great Council of the whole Kingdom p. 453 454. Attainders of Treason against Kings de facto have always held good till repeal'd D. 13. p. 910. Authority of Parliament the Phrase how antient in our Statute-Books D. 5 p. 334. to 340. B Babel when Built D. 2. p. 76 77. Banneret its ancient signification D. 7. p. 540. Baro. the Title W. it antiently signified no other Person than a Baron of Parliament D. p. 402. to 407. Barones Angliae W. Tenants in Capite only Ib. p. 394 p. 406. to 411. Barones Comitatus who they were antiently D. 10. p. 743 744. Barnstaple Burrough its â—lea to send Burgesses to Parliament by grant from King Athelstan D. 8. p. 605. Bishops W. they derive their right of sitting in Parliament from the Saxon Kings D. 5. p. 366. to 368. They sometimes granted Aids by themselves D. 7. p. 447. Seven Bishops W. their Petition to King James against his Declaration and his Commitment of them were justifiable by our Laws D. 12. p. 823. to 830. Bishopricks and Abbeys anciently conâ—erred by the King per Annulum Baculum D. 5. p. 36. 38. Eldest Brother W. Lord of all Brethren by the Law of God or Nature D. 2. p. 65. to 89. Bracton that passage in his Book interpreted viz. Rex habet Superiorem Deum Legem D. 10 p. 701. Burroughs W. any of them send Members to Parliament by prescription D. 6. p. 382 383. D.
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.
forfeited to the Conquerour who had a Right either to retain them for himself or else to distribute them as Rewards amongst his 〈◊〉 and Soldiers And that this is the Right of all Conquerors whether Common-Wealth or Monarchs by the Law of Nations and was exercised amongst the Antient Greeks and Romans as well as other Nations I referr you to your own Authors Grotius and Pufendors And therefore since it appears from History that most of the Kingdoms now in Europe and particularly this of England began from Conquest under the Conduct of their first Kings if then whatsoever was so Conquered was acquired for them and they alone had a Property in it it will necessarily follow that all Estates which the Subjects of all sorts now enjoy must have proceeded from their Grants or Concessions And hence it is that not only in England but also in Scotland and France they are all held either mediately or immediately of the King as being at first all derived from him and we read in the antient Laws of Scotland that the King had the whole Property of the Country till the Reign of Malcolm Conmor who as we read in the Ancient Histories of that Country granted all the Lands in Scotland to his Nobility and Gentry according to that old Maxim in their Law Rex distribuit totam Toram Scotiae hominibus juis And therefore if Hereditary Property in Estates were only from the Gift and Bounty of our Kings without any Fundamental Contract between them and their Subjects as you suppose I cannot see any reason granting the worst that can happen which is highly improbable if the Kings of this or of our Neighbouring Nations should go about by force to destroy and take away this Hereditary Property they now enjoy That the People should have any Right to resist them But that it would be not only Ingratitude but Rebellion so to do For tho' I own that Kings were guilty of Perjury in the sight of God if they did it yet that being an â—ffence only against God the Subjects could have no more right to resist than Sons in the State of Nature had to resist their Father if he should go about to take away those Estates which he had before bestowed upon them And as for what you say concerning the Roman Common-Wealth I grant indeed that the Government of the People did there precede that of the Emperour yet if you please to Remember Monarchy was the first and most Antient Government of that People And I doubt not but all the Property the Romans had in their Estates tho' they preceeded from Conquest of their Arms yet it was wholly owing to the Grace and Bounty of their first Kings and when upon the Exâ—ulsion of Iarquin the Supream Power became divided between the Senate and People the Property of all the Lands that were Conquered devolved upon them who often divided them to particular Private Men as they thought fit tho' I confess the Not dividing of these Lands amongst the Common People was afterwards the Cause of great Tumults and Commotions amongst them Yet notwithstanding the Senate and Nobility still maintained their Power and to the last refused to make a Division of those Lands they had formerly Conquered So that the Roman Emperors succeeding in the Power of the Senate and People they were likewise restored as it were ex posâ—liminio to the Prerogatives of the first Kings and consequently as Seneca himself confesses in the place you have quoted tho' the particular Propriety of Estates was in Private Men yet you see he grants the Vniversal Possession or Dominion of them was in the King or Emperor from whom they were Originally derived I would not be thought to speak thus as if I were an Enemy to Mens Liberties and Properties or that I either Fear or desire any Change in them from what we now enjoy but since I think it a thing Morally Impossible to alter them and that therefore no King will be so ill advised as to go about to Seize them into his own hands but only by way of discourse supposing the worst that can happen I think we are not only Obliged in Conscience but also that it were much better for the Common Peace that the Ring should take all we have than that we should involve the Nation in Civill War and confusion and our Consciences under the Guilt of a Mortal Sin by such Resistance and Rebellion F. I am very sorry to see that by your Principles all the Free Nations of Europe lye at the Mercy of any Prince to be made as arrand slaves as any are in Turkey when ever their Monarch please or that they think that they can make more of their People by taking away their Estates and Liberties than by letâ—ing them enjoy them which would render Civil Property in all Kingdoms like private Estates which every Man may let to his Tenants aâ— VVill upon a Rack Rent or for Years or Lives as they shall think fit But I think I may very well differ from you in both your Propositions For omitting any farther discourse of thâ—se Eastern Monarchies where I grant the People are little better than Slaves Yet I think I can easily prove out of the Ancient Histories of those Kingdoms that are now in Europe that tho' most of them began by Conquest yet was it not under the Conduct of Absolute Monarchs but under such Princes or Leaders whose followers as I said before at our last meeting were not properly Subjects nor Mercenaries but Volunteers under those that Commanded them And therefore would never have gone out of their own Countries but to advantage themselves and to enjoy those Priviledges which their Country-men had at home of which Liberty in their Persons and Property in their Estates were the Chief and this is apparent in the French Nation who whatever their Condition may be now yet Anciently called themselves Francs in opposition to that Servitude which they supposed their Neighbouring Nations amongst the Germans were in to the Romans at that time And tho' I grant that these Nations of the Goths Vandals Francs and Saxons from whom most of the Kingdoms in Europe are now derived might Vest or intrust the Lands of the Countreys they had Conquered in him whom they had made their King yet still it was with this Trust that retaining a sufficient part to sustain the Royal Dignity they should distribute the rest to all their Officers and Soldiers according to each man's Valour or Merit And if they had refused to have done this can any Man believe that so free a People as the Antient Histories relate them to have been would ever have suffered it without pulling down those Kings they had set up which was then very common among them for much slighter occasions And to go no higher than William whom you call the Conquerour can any Man believe that if he had retained all the Lands of England to himself not only his
own Norman Lords and Souldiers but those of other Forreign Nations who assisted him in this Expedition would ever have suffered him to have reigned in quiet over them if instead of a Limited King he had set himself up for an absolute Monarch and have granted them no Estates but at his Will and Pleasure which would have reduced the Conquerour and the Conquered to the same condition But as for your Example of Malcolm Canmor I cannot believe that the Kings of Scotland were so lately as his Reign possessed of the whole Hereditary Property of all the Lands in that Kingdom so as that no Man had any setled Interest in them before that time and therefore I must beg your pardon if I think this Passage in their Historians to be very suspicious if not false But I speak this only by the by and I reserve what I have more to say on this Head for another time wherein I doubt not but to be able to shew you as evidently as can be done after so many Ages that all the Kingdoms in Europe which are descended from the Gothick or German Nations commenced at first from Compact with their first Kings and have thereby an unalterable Right in their Lives Liberties and Estates And if so have likewise Right to defend them if generally and Vniversally invaded by their Princes But granting for the present what you have asserted to be true that all this Property which is now in Europe proceeded wholly from the Grants and Concessions of Princes yet will it not follow that by the Law of Nature or Nations if any King should go about generally or at once to invade the Liberties and Properties of their People they might not Lawfully be reâ—isted for as I said before even a slâ—ve when Manumitted by his Patron may Lawfully dâ—fend his Liberty against him if he goeth about to take it away and reduce him again into slavery So likewise in the same State of Nature if a Prince freely grant his Subjects a setled and Hereditary Property in their Estates they have likewise a Right to defend them against him or any other that would endeavour by force to take them away For he that in this State grants any thing to another grants him likewise a Right to Keep it whether the Donor will or not or else it were indeed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 For he that in the State of Nature grants another Man any thing to be possessed or enjoyed only as long as he himself or his Heirs shall think fit doth in effect grant him as good as nothing since he may alter his mind to morrow and demand it again and take it away the very next day So that if you will grant that Subjects have such a Right to their Estates as that the Prince cannot without manifest violence or injustice take them away you must likewise grant that they have also a Right to defend them But I suppose you will not deny that Right that all Men have to their Civil Properties in all our European Kingdoms and Common-Wealths tho' never so absolute But your Objection against the subjects defending it by force if it be invaded is that it may cause Rebellion and Confusion I grant indeed it may sometimes occasion Civil Wars or Intestine Commotions if the People finding their Liberties and Properties notoriously invaded shall oppose the unjust violence of those who contrary to the trust reposed in them do thus violently invade them therefore forsooth if this Doctrine be allowed it may prove destructive to the Peace of Kingdoms and Common Wealths and Consequently to the good and happiness of Mankind But methinks you might as well have argued that honest Men might not resist Robbers or Pirates because it may occasion Disorder and Bloodshed If any mischief come in such cases sure it is not to be charged upon him who defends his own Right but on him that invades anothers If the Innocent honest Man must quit all he hath for quietness sake to him who will lay Violent Hands upon it I desire it may be considered what a kind of Peace there will be in the World which would consist only in Violence and Rapiâ—â— and which would be maintained only for the benefit of Publick Robbers and Oppressors M. But pray do you make no difference between a knot of Thieves and Robbers and the Civil Government of a Monarch or Common-VVealth which I suppose may very well be maintain'd without any Hereditary Property in Lands as you have granted And it were much better in my mind to forego these outward things than resist the Civil Government which is the Ordinance of God as you your self acknowledge F. I think the best way to end this controversy will be to desire you to give a Definition of Civil Government that we may know what we mean by it therefore pray will you give me an easy and plain Definition of it M. VVell Sir I shall comply with your desires I then take Civil Government to be an Authority conferred by God on one or more Persons to make Laws for the benefit and Protection of the Subjects and to inflict such Punishments for their Transgression as they shall think fit and by the Subjects Obedience and Assistance to protect them against Forreign Enemies and also to appoint what share of Civil Property each Person in that Common-Wealth shall enjoy F. Sir Tho' your Definition be somewhat lame yet I am pretty well contented with it only I will shew you by and by wherein it is deficient The first and therefore chiefest Branch or Office of Civil Magistrate◠〈◊〉 to make Laws for the Benefit and Protection of the Subjects Is it then a Branch of this Power to send Souldiers or Dragoons to take away their Liberties Lives or Estates This sure is directly contrary to their Duty and that Trust which God hath conferred upon them Let us go on to the next Branch The inflection of Punishments for the transgrâ—ssion of such Laws Is this a part of Civil Government not only to send their Souldiers and other Officers to take away their Subjects Lives and Estates but also to let the most Capital Offenders or Robbers pass unpunish'd when they have done if you maintain these to be the Prerogatives of Civil Government or that to be Civil Government where these things are commonly practised you may even with Mr. Hobbs set the great Leviathan Free from all obligation to his Subjects any further than he shall think fit for his own interest and make them always in a State of Nature that is as he supposes of War with them and then pray tell me whether such a State can be the Ordinance of God or not But to come to the last Branch of your Definition and in which alone I think it deficient the appointing what share of Property each person in that Common-Wealth shall enjoy Tho' I grant it may be the Prerogative of Civil Governments to appoint this at first Yet
called Catalogus Gloriae Mundi written on this subject where in his 8 th part consid 18. he hath this amongst other Comments on the word Nobilitas Nobilitas etiam causatur ex loco quoniam civis ex urbe splendida oriundus Nobilis est for which he there gives many Authorities And this Title he looks upon as due also to Countrey Gentlemen living upon the Husbandry of their own Estates or Annual Rents And that by the word Magnates are often understood the Knights of Shires commonly called in old French Grantz des Countees I can give you sufficient Authorities Now this word Magnates is always rendred in our old French by Grantz For the proof of this I desire you in the first place to take notice that Rot. Claus. 3 E. 2. in 16. dorso you will find this Title Inhibitio ne qui Magnates viz. Comes Baro Miles 〈◊〉 abqua alia Notabilis persona transeat ad partes transmarinas Where you see the word Magnates is applied to Knights at least as well as Earls and Barons And amongst the Common Writs of Michaelmas Term Anno 34 Edw. I. in the keeping of the Remembrancer of the Treasury of the Exchequer the Knights of Shires and Barons of Cinque-Ports are called Magnates So also in the Statute 25 E. 3. de servientibus it is there Enacted per Assent de les ditz Prelatz Countes 〈◊〉 autres Grandes de la dite Communalte illonques Assemblez Also in the Statute-Book printed in French in the Statute of the Staple 27 E. 3. the Knights of the Shires are expresly called Grantz des Counties And lastly as for the word Optimates which is derived from the superlative Optimus it signifies no more than the best sort of men in any Commonwealth or City And in this sense William of Malmesbury in his History speaking of the rich Citizens of London hath this Remarkable Passage Londinenses qui pro magnitudine Civitatis optimates sunt And that not only Knights but also such Citizens as were remarkable and eminent for their Estates or Offices in Cities had the appellation of Magnates appears from an Ancient Manuscript Book kept in the Archives of the City of London where in Anno Dom. 1229. being the 13 th of Hen. 3. an Act of Common Council was made per omnes Aldermanâ—aes Magnates Civitatis per assensum univer-sorum Civium quod nullo tempore â—ermitterent aliquem vicecomitem admitti in vicecomitem per duos annos continuos sicut 〈◊〉 extiterant So likewise in the same Book Anno Dom. 1244. 29. H. 3. mention is there made of a Dissention that then arose about the Choice of a Sheriff and the Book says that quidam de vulgo Elegerunt Nichol. Bat. per assensum Majoris Magnates elegerunt Adam de â—ently I could give you more of a like nature but I will not tire you but no doubt but the Eminent Citizens of York and other Cities were called Magnates in those times From all which we may safely conclude That not only Knights of Shirâ— were stiled Magnates but also the Representatives for the Cities were often stiled Proceres Magnates and Nobiles in our Ancient Rolls and Acts of Parliament and other publick Writings I beg your Pardon for being thus long but I could not make an end sooner and prove the true Sense of these Words in question from Ancient Historians Acts of Parliaments and Records by which I hope you will be satisfied how unsafe it is to depend upon the general and various expressions of our English Historians especially as understood by those of yoâ—â— opinion since if we should depend upon them alone the Commons would not oftentimes be found to have been present in Parliament even when the Records themselves expresly prove they were there M. I must confess you have made me think more on this Subject than perhaps otherwise I should have done yet I must observe That most of the Quotations you have made use of concerning the meaning of the words Proceres Magnates and Nobiles c. are from Authors who writ after the time that I 〈◊〉 the Commons as now Represented to have been constantly Summoned to Parliament so that they might very well through haste or inadvertency confound them with the Earls and Lords and so stile them by the same Titles For I will prove to you before the conclusion of this Discourse by undeniable Records That by the words Magnates and Proceres are understood the Bishops Earls and Barons as distinguished from the Commons But I think I can sufficiently prove from Mat. Paris and the Ancient Laws of our first Norman Kings as also from the Magna Charta of King Iohn That by the words Bartneâ— iâ— meant the Tenents in capite who are there only mentioned to haâ— constantly appeared in Parliament till the 18 th E. 1. the Greater and Less â—â—â—ons or Tenents in capite together with those of higher degree viz. the Earls Bishops and Abbots being the only persons who represented the whoâ—e Body of the Nation in our great Councils or Parliaments And I take this to be 〈◊〉 evident and clear that I cannot quit this Opinion without you can shew 〈◊〉 better Reasons to the contrary than hitherto you have done F. I see nothing will satisfie those who have once received a Prejudice 〈◊〉 otherwise I think it may be proved sufficiently from that Clause in Magna Chartâ— I have mentioned That other persons were there before the 49 th of Henry 〈◊〉 besides your great Barons and Tenents in capite And as for the use of 〈◊〉 words you mention in Historians after the Reign of Hen. III. nothing can be a plainer proof for me For if those Historians did comprehend the Common under those general Words or Phrases we have been now disputing about I deâ—sire to know why they might not have been likewise comprehended under thâ— same terms by Mat. Paris and those other Historians who writ other Historieâ— from the Norman Conquest to his time and why thy might not have then conâ—founded the Commons with the Lords as well as they did afterwards But since I see you insist so much upon your Barones and Tenentes in capite whom you wiâ— have alone to constitute the Baronagium or the Communitas or Universitas Barâ—â—gii Angliae pray give me leave to ask you a plain Question Were your lessâ— Tenents in capite or Barones minores Lords or Peers of Parliament or were they Commoners only M. To give you Mr. Selden's Opinion in his Titles of Honour cap. 5. He supposes that from the time of the Conquest to about the middle of King Iohn every Tenant by reason of his Tenure of Lands he held in capite was indifferently an Honorary or Parliamentary Baron but that about the end of King Iohn's time some only that were most eminent of those Tenants sometimes stiled Barones Majores Regni were summoned by several Writs directed to them as
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
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
in pleyn Parliament that is in full Parliament where both Lords and Commons were present that the Proceedings of the Lords against those that were no Peers should not be drawn into Example c. Now pray see the Commentaries of the most Learned and Reverend Author of the Grand Question upon these words in this Record This hath all the formality of an Act of Parliament and therefore all the Estates were present so likewise in the same year in the next Roll but one Accorde est per nostre Seigneur le Roy son Counsell in Plein Parliament which was an Act of Parliament concerning those that had followed the Earl of Lancaster So in the 5 th of this King we have the particular mention of the Bishops as some of those who make a full Parliament Accorde est per nostre Seigneur le Roy Prelates Counts Barons autres Grands de Roiaâ—me in pleyn Parliament So in the 6 th of Edward the Ill d the Arch-Bishop of Canterbury made his Oration in pleyn Parliament which is thus explained en le presence nostre Seigneur le Roy tous les Prelats autres Grantz And in another Roll si est accorde assentu per tous in pleyn Parliament and who these were we are told in the same Roll viz. les Prelats Counts Barons tous les autres Summons à misme Parliament Now this is the clearest explication of these words in full Parliament viz. in the presence of all those who were Summon'd so that if the Commons were then Summon'd to this Parliament as certainly they were they must have given their Assents under the Title of Grantz since the Prelats Earls and Barons were particularly mention'd before To Dialogue the 10 th p. 706. after these words be Reformed by them or not read thus And that King Iames the First himself was satisfied of this Original Contract may appear by his own words in a Speech to both Houses of Parliament 1609. where he expresly tells them that the King binds himself by a double Oath to the observation of the fundamental Laws of his Kingdom Tacitly as being a King and so bound to Protect as well the People as the Laws of his Kingdom and expresly by his Oath at his Coronation so as every King in a setled Kingdom is bound to observe that paction made to his People by his Laws in framing the Government as agreeable thereunto according to that paction which God made with Noah after the Deluge c. To Dialogue 12. p. 874. after their Successors add this So that all the Modern Acts of Parliament for intailing the Crown being made and ordained by the Counsel and Assent of the Lords and Commons are so many plain declarations and evident Recognitions what the Fundamental Constitution of the English Government was in that grand Point To Dialogue the 12 th p. 898. after the words of the said Parish read thus and that not only all the Private Acts of that Parliament but some Publick ones also tho' never confirmed in the following Parliament of the 13th of Charles the Second are yet held good in Law appears by these that follow viz. 1. An Act for Continuance of Process and Iudicial Proceedings Continu'd By which all Writs Pleas Indictments c. then depending were ordered to stand and proceeded on notwithstanding want of Authority in the late Usurpers and therein it was farther ordained that Process and Proceedings in Courts of Justice should be in the English Tongue and the generall Issue be Pleaded till August 1. 1660. as if the Acts made during the Usurpation for that purpose had been good and effectual Laws And upon this foot only stand many Fines Recoveries Judgments and other Proceedings at Law had and passed between April 25 1660 and August 1. 1660. 2. An Act for Conforming and Restoring of Ministers This Act is usually to this day set forth and pleaded in Quare impedits tho' it was said to be refused upon debate to be confirmed in the House of Commons 13th of Car. II. when divers other Acts of the same time were confirmed yet both these Acts having no other Authority but from that Convention as you call it have been Judged and Constantly allowed to be good Laws for above these 30 years To Dialogue the 13 th p. 966. after these words were still alive read this And to shew you that the King and Parliament have deprived even Bishops of their own Communion and that such deprivations have been held good and that the King hath nominated new Bishops upon the vacancy you may see in Dr. Burnets History of the Reformation and in the Appendix to it where you will find a memorable Act of Parliament of the 25 th of Henry the VIII before his departure from his obedience to the See of Rome whereby Cardinal Campegio and Hieronimo de Ghinicci were deprived of the Bishopricks of Salisbury and Worcester which they had held for near 20 years and Campegio had without doubt been installed in it when he was in England The Act it self being so remarkable I shall give you some passages out of it verbatim first the Preamble sets forth that whereas before this time the Church of England by the Kings most Noble Progenitors and the Nobles of the same hath been founded ordained and establish'd in the Estate and degree of Prelacy Dignities and other Promotions Spiritual c. which sufficiently confirms what I but now asserted that all the Bishopricks were founded by our Kings with the consent of their Grand Councils or Parliaments and then it proceeds to recite that whereas all Persons promoted to Ecclesiastical Benefices ought to reside within the Realm for Preaching the Laws of Almighty God and keeping hospitality and since these Prelates had not observed these things but lived at Rome and carried the Revenues of their Bishopricks out of the Kingdom contrary to the intention of the Founders and to the great prejudice of the Realm c. in consideration whereof it is Enacted by the Authority of this present Parliament that the said two Sees and Bishopricks of Salisbury and Worcester and either of them henceforth shall be taken reputed and accounted in the Law to be void vacant and utterly destitute of any Incumbent or Prelate and then follows a Clause enabling the King his Heirs and Successors to nominate and appoint Successors being the Natives of this Realm to the said Sees and the King did nominate Successors according to the said Act. A Table of ERRATA THE Authors Occasions not permitting 〈…〉 Town whilst most of these Dialogue were in the Press begs pardon for the many Erratas in some of them and desires you to Correct such gross ones that alter or disturb the sense viz. Dial. 1. p. â—0 l 24. for Author r. Authority p. 52. l. 37. for 4th r. 5th p. 36. l. 38. for Rights r. Rites Dial. 2. p. 80. l. 25. del hundred r thousand p. 80 l. 22. d. Greek p. 84.