of those who hold Resistance in some Cases necessary of those that maintain our Monarchy to have been limitted by the very constitution it self of those that suppose all our rights and Liberties 〈◊〉 the very Being of Parliaments themselves to owe their Original wholly to the gracious Concession and Favour of our former Kings Having made some impartial Collections of this Nature I showed them to some Friends who told me they thought they might prove of great use for the satisfying of some mens doubts and scruples concerning Lawful Obedience to the Government of their present Majesties as looking upon it as the best and most ingenious way of Conviction to propose the Arguments fairly on both sides without interposing my own Iudgment but to leave it to the intelligent and impartial Reader to embrace that side on which he found the most rational and convincing Arguments This task tho' troublesome enough I was prevail'd with to undertake not for Fame's sake since I do not desire to be known but meerly for the puplick good and happiness of my Country but being also satisfied that a Subject of this great important deserved more pains than what I had yet bestowed upon it and to be handled in a more Artificial Method than the old dry Schâ—lastick way of Objection and Solution I therefore thought that it would prove more pleasant as well as profitable for the Readers especially those of our young Nobility and Gentry for whom I principally design this undertaking to digest all that I had written on these Subjects into so many distinct Dialogues or Conversations supposed to be held between two intimate Friends who notwithstanding their different Principles and Opinions in Politicks had always maintained a strict and generous correspondency but I was the more inclined to this way of writing not only because I have observed that Controversial matters written by way of Dialogue according to the true Rules thereof have very well obtained among all intelligent Readers but also since the Subjects I treat of are of a nice nature and that the Collections I had made contained strict Inquiries into the Principles and Tenâ—â—s in the Writings of diverse persons of Reputation for Learning and Ingenuity I was sensible how invidicus a Tâ—â—k it must be to write on purpose against so many great men as also how troublesom and â—edious is would prove to my self as well as the Readers to pursue and confute the Opinions of any Author page by page since it must be chiefly imputed to that mannar of managing of Controversies that answers to Books prove so unacceptable to the World And though I grant that this way of writing hath also its difficulties and objections as being more diffuâ—ive and so taking up more time both to write and read Discourses Dialogue-wise where either one or other of the Disputants 〈◊〉 often apt to rove from the Subject yeâ— I must also affirm that this may be in great part prevented by the Writer who may if he pleaâ—â—â— take care to keep close to the Question and not start afresh Har◠〈◊〉 the old one is run down and aâ— for the diffusiveness of Dialogues above Polemical Discourses that is no considerable Objection since a man may either make or answer Objections in almost as few words this way as the other And thô it be granted that matter of â—een form in Dialogues the more tedious yet the Reader as well as Traveller will find that the 〈◊〉 of the Road often 〈…〉 for its 〈◊〉 somewhat 〈◊〉 But whether I have truly put 〈◊〉 the Rules of Dialogue in that 〈◊〉 the â—â—suing Discourses I intend to publish on these Subjects Tiâ—â—st 〈◊〉 to the Readers Iudgment but this much I think I may safely affirm that I have carefuly avoided all bitter reflecting language on either side since I designe these Discourses for common places of Arâ—giâ—â—â—â—ntâ—â— noâ— forms of 〈◊〉 And I have also declined showing my self a Party or giving my own opinion in any Question proposed and therefore I have 〈…〉 either 〈◊〉 my Disputants converting each other to his own Opinion since I know nothing is more easie in writing of Dialogues well as Romances than to make the Knight Efrane always beat the Gyant But it is fit I give you some account of this present Discourse as also of the rest that may follow it This first Dialogue then 〈◊〉 chiefly on this 〈◊〉 Whether any particular Specâ—es of Government is of Divine Right or Institution â— The next shall be Whether there can be made out from the natural or revealed Law of God any Succession to Crowns by Divine Right The third and fourth Whether Passive Obedience as it is called or an absolute Nonresistance of the Supream Powers in any case whatsoever be enjoyed by the Law of Nature and the holy Scriptures As also Whether this hath always been the Doctrine of our Reformed Church of England The fifth concerns the Original of Civil Authority in what sense it is derived from God and in what form the People and whether their Consent be always necessary to make any Government to be obeyed for Conscience sake The sixth shall treat of the Original and Fundamental Constitution of our English Government whether it was an absolute or limited Monarchy in its first Institution and whether the King is and hath been the sole Legislative Power of the Nation The seventh Whether the Parliament or great Counsel owe its Orignal to the meer Grace and Favour of our Kings or whether it is not as Antient as the Constitution it self The eighth and last Whether our late Revolution and the Conventions and present Parliament's Declaration and Recognition of their present Majesties K. William and Q. Mary be not Legal and according to the Antient Constitution and Fundamental Govâ—rnment of this Kingdom and consequently Whether the Oath of Allegiance may not be taken to them not only as King and Q. de facto but de Iure In all which Discourses I have considered and contracted the best Arguments that I could find made use of by the most considerable both Antient and Modern Authors either in Latine or English especially the Pamphlets that have been writ on either side since the late Revolution But as for those in our own Language when-ever any Author speaks so well and argues so closely that to put it into other words would make it worse I have still put the Arguments of either one or other of the Disputants in his own word thô because I would not be thought guilty of Plagiary I have truly quoted the book and page from whence I took it and I hope no Author will take it ill if I have made bold sometimes to contract their Arguments without altering their sense or words farther than by putting in or out a word or expression to make the style run the more smoothly and I desire they would not think I write on purpose to confute them since I freely declare my design is not to
Charta for example for the Statute de Tallagio non concedendo or any Liberty we enjoy are not necessary or contrary to the common good he is not tied to observe them And upon this Principle it was that the Judges in the Reign of King Charles the First founded the King's Prerogative for Ship money For they supposed that the King in case of necessity that is for the publick good of the Subjects might lay a Tax upon the Kingdom tho' without Consent of Parliament So that upon this pretence the King being the sole Iudge of the Necessity he might quickly have raised what Taxes and as often as he had pleased But lest our Kings should think themselves too strictly bound by their Coronation Oaths to observe the Laws pray see in the next Paragraph how this Author endeavours to help the King to creep out of that Obligation too Therefore pray read on Others there be that affirm that altho' Laws of themselves do not bind Kings yet the Oaths of Kings at their Coronations tye them to keep all the Laws of their Kingdoms How far this is true let us but examine the Oaths of the Kings of England at their Coronation the words whereof are these Art thou pleased to cause to be administred in all thy Judgments indifferent and upright Justice and to use Discretion with Mercy and Verity Art thou pleased that our upright Laws and Customs be observed and doest thou promise that those shall be protected and maintained by thee These two are the â—rticles of the King's Oath which concern the Laity or Subjects in general to which the King answers affirmatively being first demanded by the Arch-bishop of Canterbury Pleaseth it you to confirm and observe the Laws and Customs of Antient Times granted from God by just and devout Kings unto the English Nation by Oath unto the said People especially the Laws Liberties and Customs granted unto the Clergy and Laity by the Famous King Edward We may observe in these words of the Articles of the Oath that the King is required to observe not all the Laws but only the upright and that with Discretion and Mercy The word upright cannot mean all Laws because in the Oath of Richard the Second I find Evil and Unjust Laws mentioned which the King swears to abolish and in the Old Abridgment of Statutes set forth in King Henry the Eighths days the King is to swear wholy to put out Evil Laws which he cannot do if he be bound to all Laws Now what Laws are Upright and what Evil who shall judge but the King since he swears to administer Upright Iustice with Discretion and Mercy or as Bracton hath it aequitatem praecipiat Misericordiam So that in effect the King doth swear to keep no Laws but such as in his Iudgment are Upright and those not literally always but according to the Equity of his Conscience joyned with Mercy which is properly the Office of a Chancellor rather than of a Iudge And if a King did strictly swear to observe all the Laws he could not without Perjury give his Consent to the Repealing or Abrogating of any Statute by Act of Parliament which would be very mischievous to the State But let it be supposed for truth that Kings do swear to observe all the Laws of their Kingdoms yet no man can think it reason that Kings should be more bound by their voluntary Oaths than common persons are by theirs Now if a private person make a Contract either with Oath or without Oath he is no farther bound than the Equity and Iustice of the Contract tyes him for a Man may have Relief against an unreasonable and unjust Promise if either Deceit or Error Force or Fear induced him thereunto or if it be hurtfuls or grievous in the performance since the Laws in many Cases give the King a Prerogative above common persons I see no reason why he should be denied the Priviledge which the meanest of his Subjects doth enjoy I need not make any long Paraphrase upon these words it is sufficient that the King is here left sole Iudge of what Laws are Upright and what Unjust and consequently what Laws he pleases shall be observed and what not So that no Laws tho' thought never so just and necessary by the Parliament at the time of making of them shall signifie any thing if he thinks sit afterwards to judge otherwise And lest this should not be sufficient he hath found out another way whereby Princes may absolve themselves of this troublesom Obligation of Oaths and therefore he would have them no more bound up than common persons who because they may have Relief in Publick Courts of Justice against an unjust Promise if either Errour Deceit Force or Fear induced them thereunto nay more if it be hurtful or grievous in the performance Kings who have a Prerogative above common persons and who acknowledge no Tribunal above themselves may absolve themselves of their Oaths whenever they think good by saying it was extorted from them by Deceit Force or Fear or if they cannot satisfie themselves without it they might have had formerly the Pope's Dispensation for Money which we read King Iohn and Henry the Third obtained to be absolved of the Oaths they had taken to observe Magna Charta but this Author hath found out a shorter cut and hath made Kings both Judges and Parties and to absolve themselves by a Fundamental Right of Government And what hath proved the Conclusion of such Princes who have taken this Authors Liberty of breaking their Coronation Oath at their pleasure it hath only taught their Subjects to imitate their Example and to make as light of their Oath of Allegiance M. I will not deny but perhaps Sir R F. may have carried the Prerogative in this point a little too far yet that he meant honestly towards the Common weal in all this I pray see the 8th Section of this Chapter where you 'll find these words Many will be ready to say It is a slavish and dangerous Condition to be subject to the Will of any one Mâ—n who is not subject to the Laws But such Men consider not 1. That the Prerogative of a King is to be above all Laws for the good only of them who are under the Laws and to defend the Peoples Liberties as His Majesty graciously affirmed in his Speech after his last Answer to the Petition of Right howsoever some are afraid of the name of Prerogative yet they may assure themselves the Case of Subjects would be desperately miserable without it So that you see here he asserts no Prerogative in the King to be above all Laws but only for the good of the people and to defend their Liberties which I think is a sufficient restraint of Prerogative F. But read a little lower and the People will have no such great cause to thank him as you may see by these words In all Aristocracies the Nobles are above the Laws and
never Governed by Absolute Monarchs but by Kings or Princes limited by the Laws and Common-Councils of their own Nations as were all those that descended from this Gothick Original In the first place therefore see what Tacitus says in his Book de Moribus Germanorum who sufficiently proves that it was a Fundamental Constitution of all the German Nations to order all public Affairs in General Councils or Assemblies of the whole People Wherefore the same Author there tells us De Minoribus rebus Principes consultant de Majoribus omnes it a tamen ut eaqubque quorum penes Plebem Arbitrium est apud Principes praetractentur As also that in this Council they Tryed Great Offenders for Caplâ—aâ— Crimes Licet apud Consilium accusare quoque discrimen capitis intendere Nor was the Power and Right of their Kings Absolute or Arbitrary but limited and Elective as appears by these Passages in the same Author Reges ex Nobilitate Duces ex virtute sumunt Nec Regibus infinita aut libera Potestas c. And speaking of the manner of their holding these publick Councils after silence commanded by the Priests Mox Rex saith he vel Princeps prout aetat cuique prout Nobilitas prout decus Bellorum prout facundia est audiuntur authoritate suaedendi magis quà m jubendi potestate Si displicuit Sententia fremitu aspernantur Sin placuit frameas concutiunt Honoratissimum assensus genus est armis laudari So that you may here see their Kings had no Negative Votes in their Councils whatever they might have afterwards among the English Saxons and that they did not so much as preside in them but the Priests you may see in the same place Silentium per Sacerdotes quibus tum coercendi jus est Imperatum And therefore it is altogether unlikely that they should have had that Absolute Power you fancy over the Lives and Fortunes of the People Since you plainly see that they could neither make Peace nor War Accuse or Condemn any Man nor raise Taxes without the Approbation or Consent of those Councils Now since all the English Saxon Nations were from Germany I leave it to the Judgment of your self or any indifferent Person to consider whether a People so free as this who come over hither not as Subjects but only as Volunteers under so many Captains or Generals who went out meerly to seek new Habitations should be so fond of a Government they never knew at home as to give these Captains whom they made their Kings an Absolute Despotick Power over their Lives and Estates which they never could endure in their own Country but that they were not then Kings I thus prove First of all no Ancient Writer that I know of ever mentioned any such thing but rather the Contrary for who will believe that before it could be known what the Success would be they should make meer Soldiers of Fortune or Leaders of some Bands of Adventurers Kings before the Country they were to Govern was Conquered or that they knew whether ever they should Arrive there or not And as for the two first of these Princes that came over viz. Heugist and Horsa our Histories make them Brothers in joynt Command over those Saxons who were sent hither as Auxiliaries to the Britains against the Picts nor is Hengist ever called King or the time of his Reign reckoned till near Eight years after his coming over hither viz. after the Death of Vortimer and the driving of Vortiger into Wales And therefore I can give no account how these Princes should become Kings but by the Consent or Election of their Souldiers or Followers for as for themselves to Create themselves Kings without the Consent of their Army or People is altogether improbable and absurd and not at all to be relyed on upon your bare word for other Authority you yet give me none But for the main part of your Assertion that the first Saxon Kings were Absolute Monarchs because all the Land was Conquered for them and to their use and that all Land was held of them is altogether as precarious our Histories being herein wholy Silent But though we do not certainly know which way they divided their Conquest to their Followers since Authors mention nothing of it Yet this I think I may positively Assert that whatever was done in this Kind by the first Saxon Kings was not as Absolute Proprietors of the whole Country but as publick Trustees for those over whom they were sent for since as I have already observed these People were utterly Strangers to a Despotick Government at home it is altogether unlikely that their Followers would confer upon them an Absolute and Vnlimited Power abroad which they were never used to before And therefore they could not be Kings by Right of Conquest over the Estates or Persons of those who were fellow Conquerors with them and set them up for what they were nor yet over the Britains Since they were either totally driven out into Wales or Cornwall or else those few that were left being reduced to a State of Servitude were by Degrees Incorporated with the Saxons And though for want of Ancient Histories as well as Letters among so Rude and Barbarous a People as these were at first we have no Records upon what express Conditions these Captains were by them Elected to be their Kings Yet thus much we may find out by those few Remains we have left us in Bede and other Ancient Historians that they had all of them the same Kind of Government and Laws with very little difference from each other Since we find in all the Several Kingdoms of the Heptarchy there were the same kind of Wittena Gemots or Great Councils by whom they were Elected and without whose Advice and Consent their Kings could do nothing of Moment either in Peace or War as any one that will but read those Laws that are left us Collected by Mr. Lambard and Sir H. Spellman in his Saxon Councils may easily observe M. I own indeed that our Saxon Ancestors when they had Conquored this Kingdom brought in their Saxon Laws along with them but it doth not from thence follow that they brought their Popular Government in with them too And those Assemblies Tacitus mentions might be Councils of the German People in General no not of the Saxons which Name is not to be found in all that Author But what if it be granted that those People which were afterwards called Saxons were governed by such Councils was not this Government a Democracy And the People so far from not having their Votes and Shares in these Councils as they only had Voices in them And if any had any more Power here than others they were the Priests who were a sort of Chair-men in them commanding Silence and who had a Coercive Power as Tacitus says In these Governments no Man can doubt of the Suffrages of the People but
dispute the matter farther with you concerning the Word Populus since I shall refer speaking more about it till I come to the times after the Conquest And therefore to return to the Matter in hand Had you but read a little farther in the same Leaf in the Author you have cited you might have found who they were whom King Edward the Elder called to this Council The Words are these Edwardus Rex Synodum Praedictam Nobilium Anglorum congregavit cui presidebat Plegmundus Here your own Author tells us in few words the meaning of a long Title of this Synod now mentioned viz. that the Bishops Abbots Fideles Proceres Populus were all Nobiles Noblemen that is the Ecclesiasticks and Laies or the Bishops and Lay-Nobility as I shall make more evident hereafter and not the Vulgus Commons or ordinary sort of People And to this effect Malmsbury and the Manuscript in the Bodleian Library cited by Sir William Dugdale and Mr. Somner from the Treasury of the Records and Evidences of the Church of Canterbury cited by Sir H. Spelman do all report of this very Council That Edwardus Rex congregavit Synodum Senatorum Gentis Angloâ—â—â— cui prasidebat Plegmundus c. That King Edward convened a Synod of the Senators in the Saxon Aldermen of the English Nation that is such as were usually called to such Councils which were only the Nobles and Great men for ought yet appears from this Instance But what if after all there was never any such Synod called and consequently no such Title to it For it was said to have been assembled by reason of a chiding Letter from Pope Formosus Now this Formosus died Anno 895. that is ten years before this Council was supposed to be called F. I see this Authority galls you therefore I do not blame you to do what you can to be rid of it but I shall not give it up for all that For that this Word Populorum then signified all the Lay-persons who were actually Noblemen that is of the Greater Nobility I think is a great mistake for to what purpose are all these different Words here heapt together since the Word Proceres had donâ— as well alone in your sense and at once comprehended all those Lordâ— or Noblemen that you would only have to be there But the Word Nobiles did not in those times neither doth at this day in any other Countrey but England signifie none but Great Lords Barons or Peers since in Germany and France and other Countries every private Gentleman is Nobilis And I think the Middle or Less Thanes might then as well be called Nobiles as the Great ones And the Aldermen or other Magistrates of Great Cities and Towns might also very well be stiled Nobiles ratione officii for the time they acted in that Employment and might also deserve the Name of Senators as well as the Greater Aldermen or Earls And if there were no other Lay-Men but your greater sort of Aldermen then what becomes of your chief or Kings Thanes which you your self grant were constant Members of those Councils Nor indeed doth the Word Senator only signifie such who were Noblemen by Birth since among the Romans there were Senators of the Plebeian as well as Patrician Order as any man who hath but read Lucius Florus may quickly see But as for your Exception That there was no such Council because Pope Formosus is said to have died ten years before this Council was called it is a bold Assertion to annihilate a whole Council because of the mistake of the Date or time of its meeting or perhaps in the Name of the Pope or King then reigning especially when it was assembled upon so remarkable an occasion as the erecting of these new Bishopricks which all our Historians ascribe to this Council But I shall now proceed to another Authority and that is to the Great or Common Council held at Winchester Anno 853. where you will find in Sir H. Spelman's Councils as also in Ingulphus's History that after the Bishops Earls and other Great Men or Thanes who subscribed to the Law of Tythes granted by way of Charter there mentioned wherein these following Parties are mentioned Aliorumque Fidelium infinita multitudo qui omnes Regium Chirographum laudaverunt Dignitates verò sua nomina Subscripserunt and the Learned Commentator upon King Alfred's Life published in Latin at Oxford is so well satisfied that the Commons were meant by this Expression that he hath this remarkable Observation upon this King 's granting of these Tythes Bis videtur Rex Decimas Ecclesiae concessisse Primum Anno 844 2 vero 855. vel ut alii 854 è tota Regione cum Assensu omnium Nobilium totius Populi where this Author rightly supposes that the Words at the conclusion of this Council did comprehend the consent of the People or Commons as well as of the Lords or Noblemen Or else this reciting of this Word Populus as distinct from the Nobiles had been altogether in vain So that tho I do not affirm that the meer Vulgar or Plebeian sort of People did appear personally in the Great Council of those times any more than they do now yet they were there by their Representatives viz. either by Knights of Shires as now or else the chief Thanes or Freeholders of the Kingdom as also by the Aldermen or chief Burgesses of great Cities and Towns who I suppose did then represent those Politick Bodies since all men could not appear there in person But I shall give you another Authority out of the same Author viz. Arch-Bishop Parker's British Antiquities where when he relates the calling of the Council of Calne for the turning of Married Priests out of Monasteries and Cathedral Churches and putting Monks into their places He tells us a remarkable Accident that then happened viz. The falling down of the Room where the Council was assembled So that there fell together all of a sudden pray take the words themselves out of the Authors there cited Praesules Proceres Equites Nobiles pariter Ignobiles Corruerunt So that you see here were other sorts of men present in this Council beside the Prasules i. e. Bishops and Abbots and the Proceres i. e. the Earls and chief Thanes viz. the Knights or Inferior Thanes Noblemen or Gentlemen as also Ignobiles those that were not Noble by Birth such as were the Representatives of Cities and Burroughs and of this opinion the Arch-Bishop himself seems to be for at the end of this Relation he makes this Remark Sed nec hujus domus in qu◠〈◊〉 Ordinum tam Conspicui Clarique viri Consulto Convenerunt tam repentina ruiâ—â—â—pe Diabolica carere potuit Where by Omnium Ordinum he must certainly mean the three Estates of the Kingdom in the same sense as the word Ordines is used by Camden and other Latin Writers who call our Parliament Conventus Ordinum that
the Kingdom of the West Saxons I have now instanced in but in almost all the other Kingdoms of the Heptarchy in which there are to be found many more Instances of the Deposition of their Kings thaâ— what were in the West Saxon Kingdom this waâ— then very just and necessary since these Kingdoms were all Elective and none of them Hereditary and that the general Meeting of the great Council of the Nation was always at set and constant Times and did not depend upon the Will and Pleasure of the King either to call or dissolve them as I have already proved and that this Power was no unusual thing I appeal to all the Antient Kingdoms of Europe founded after the same Model as ours and which I mentioned at our last Meeting so that nothing is more frequent in their Histories and Annals than the Deposing of their Kings for the above-mentioned Crimes of Tyranny or Misgovernments But that some of these Gothick Kingdoms as Denmark and Sweden whilst they continued Elective have exercised this Power even till of late is so notorious in matter of fact that it needs no proof since the Kings of those Kingdoms held their Crowns at this day by that Title and on those Conditions which the Nobility and People gave them after the Deposition of their Predecessors But tho this were so anciently also in England it does not therefore follow that it must be so now for since the Crown of this Kingdom became Hereditary and that the Calling and Dissolving of great Councils or Parliaments came to depend wholly upon the King's Will I must allow that the Case is quite altered and that the Two Houses of Parliament have now no power to depose the King for any Tyranny or Misgovernment whatsoever The first Parliament of King Charles the Second in the Act for attainting the Regicides have actually disclaimed all Coercive Power over the King and yet for all that the Nobility and People of England may still have a good and sufficient Right left them of defending their Lives Religion and Liberties against the King or those commissioned by him in case of a general and universal Breach and Invasion of the Fundamental Laws of the Kingdom or Original Contract if you will call it so and not to lay down those Defensive Arms till their said just Rights and Liberties are again restored and sufficiently secured to them So that tho' I will not bring the Custom of the English Saxons as a precedent for the Parliament's Deposing of the King yet I think I may make use of it thus far that this Nation has ever exercised this necessary Right of defending their Liberties and Properties when invaded by the King or his Ministers either by colour of Law or open Force And that this hath been the constant practice from almost the Time of the Conquest down to later Ages I think I can make out from sufficient Authorities both from Histories and Records M. Tho' your Doctrine is not so bad as I expected yet it is still bad enough and I never knew this Right of Resistance carried home but that it always ended in Deposing and Murdering of the King at the last as we have seen in our own Times But let the constant practice have been as it will I am sure such Resistance hath been always condemned by our Ancient Common Law as well as Modern Statutes as I shall prove farther to you by and by and therefore pray give me leave to tell you that the never so constant practice of an unlawful thing can no more justifie the doing of it than that constant usage time out of mind for Thieves to Rob between London and St. Albans not that I fore-judge you or refuse to hear any Instances and Authorities from Histories or Records to make good your Assertion F. I thank you for your patience what therefore if I prove that such Resistance has been not only actually exercised by the Clergy Nobility and People in former Ages but that it hath been also allowed by our Kings and approved of by great Councils or Parliaments in those Times for lawful and the Actors in it wholly indemnified and saved harmless nay a power given them and that by the King himself to resist him and defend themselves in case he broke his Charters and Agreements made to and with his Nobility and People or else with some Forein Prince may appear from this remarkable Instance of King Henry II at the end of whose Reign Hoveden in his Annals gives us the Conditions of the Peace made in the last Year of this King between him and Philip King of France with the Consent of their Bishops Earls and Barons where among other Articles you will find this for one particularly relating to the Barons of England who were also to swear to the Peace in these Terms Et omnes Barones Angliae jurabunt quod si Rex Angliae noluerit has Conditiones tenere quod ipsi tenebunt cum Rege Franciae Comite Richardo cos adjâ—vabunt pro posse contra Regeâ— Angliae c. Whence we may without doubt conclude that the Resistance of Subjects in some cases against their Kings was then allowed of even by the King himself and thought not inconsistent with the Allegiance they bore him tho' it might suspend it for a time M. I confess this Instance would be of some weight were it not for the Critical Time when this Peace was made viz. when Richard Earl of 〈◊〉 the King 's Eldest Son had Rebelled against his Father and taken part with the King of France and had drawn over a great many of the Norman and Pictavian and English Barons to his Party which when King Henry perceived this very Author you have quoted here tells you Quod Rex Angliae in arcto positus Pacem fecit cum Rege Philippo that is was constrained to make Peace with him so that King Henry being in this streight the King of France and Earl Richard with the Barons of his Party forced King Henry to sign what Conditions they pleased for there it no such Clause so much as mentioned for the French Barons But make the most of it it is but a Temporary Relaxation of Allegiance from King Henry to his Barons and the King might surely thus release them if he pleased But it is plain they could not have acted thus without this Condition had been expresly inferred F. Well supposing King Henry to have been never so much constrained to the making of these Conditions and that it was his own Act that rendred it lawful it still proves as much as I urge it for viz. that neither the Kings of France or England then thought this Resistance absolutely unlawful for then the King 's own Act could never have dispensed with it But to shew you farther that the People of this Nation have ever maintained this Right of Resistance even with the allowance of our Kings themselves and for the doing
King ought to yield the like Dominion and Power to the Law as the Law had given him before or else how could Bracton call the Law in the place I have already cited the Kings Superiour And if the Kings Title to the Crown were not by Law How came it to pass that the Stewards for Example had a better Tittle to the Crown of Scotland than the Bayliols but only that the Laws of Scotland that is the Consent of the States of that Kingdom made them so for otherwise any man that looks upon the Pedegree of both those Families will see that Bayliol according to our rules of Descent was the nearer of Blood to the last King David than Bruce and was so ajudged upon a solemn hearing by our King Edward 1. ih Parliament And as for William whom you call the Conquerour under whom all our present King 's do claim at this day he could have no just Right or Title to the Crown of England by Conquest but by the Election or Submission of the People declared by them at his Coronation And therefore that Law by which he was made King must be precedent or at least concurrent with his being so and upon whatever terms or Conditions he then accepted it his Successours are bound both by the Laws of God and Man to observe them And therefore whatever you have built upon or would infer from these Principles is of no force And If the King be the Sole Soveraign Power that makes the Laws repeals them and dispenses with them when he pleases I would be glad to know upon what grounds so many of the Bishops and Clergy refused to read the King's Declaration of Indulgence Since certainly if he alone made the Laws he also could dispense with them But I shall say no more of these Points now because they are not directly to the matter in hand M. As for what you say concerning the King 's not being the sole Supreme Legislative Power I confess you and I have discoursed long upon that point and if I were thoroughly satisfied of it I could much easier assent to what you have said as also if you could prove to me that the King received his Power from the People and not from God the matter would be yet plainer for then it would evidently appear that the People might have reserved to themselves such a Right of Resistance as you now maintain but that they never could have such a power in England from the Constitution of this Monarchy I need go no farther than your own Instance of William the Conqueror who owed all his Right to this Kingdom to the power of the Sword and not to any Hereditary Right much less Election or Confirmation of the People as I think Doctor Brady has proved beyond dispute in his Learned Answer to Argumentum Antinor manleum so that since we owe all the Rights and Liberties we enjoy to the gracious Concessions of our Kings of this Norman Race we ought not in reason or gratitude to resist them if they should sometimes encroach upon what we take to be part of those Liberties so granted no not if the King who derives an Indefeasible Right to the Crown from the Title of the first Conqueror should go about to take away all those Liberties nay our very Religion and Property too from us But I have not time to pursue this Argument further now and therefore shall leave it to another opportunity F. As for what you have now said concerning William the First 's having no Right to the Crown of this Kingdom but what he owed to his Sword is false in matter of fact it being more than that Prince himself ever asserted or pretended to and in the next place as for your Dr's proving him an Absolute Conqueror over the English Nations supposing he had done it which yet I positively deny yet will not this serve to do the business for which the Doctor urges it viz. to set up an Arbitrary Irresistible Power in that King and all his Successours but may be urged against him to a quite contrary purpose as I shall shew you more at large whenever you please to discourse farther upon that Subject And as for all those things we call Legal our Rights and Priviledges which you say were wholly granted us by the Charters of his Successours I have already proved that to be false in matter of fact at our fifth Meeting where I shewed you that the English Nation had the same Liberties as to their Persons and Properties in their Estates before your pretended Conquest as they enjoyed afterwards and that Magna Charta was but the recital and confirmation of our Ancient English Laws as Mat. Paris affirms in the place I here formerly cited but admitting these Liberties and Priviledges you mention had been owing to the favour and bounty of former Kings yet can I see no Rebellion or ingratitude the People of this Nation are guilty of if they keep and defend them now they have them but would rather betray a servile base spirit if we part with them For since it is a Maxim in Law concerning all Grants as well from the Crown as private persons that they ought so to enure ut Res magis valeat quem pereat i. e. that the Parties to whom the Grant is is made may not lose the benefit of it when ever the Grantor pleases Therefore it is also a rule in such Grants that they are still to be interpreted in favour of the Grantee against the Grantor and also that the Grantee shall not be left without some means or remedy of keeping and defending his right against the Grantor whenever he goes about to take it away nor do I know any exception there is for the Kings Grants more than those of private Subjects since both Bracton and Flita tell us non debet esse Rege major in Exhibitione Iuris minimus autem esse debet in judicio suscipiendo si pecatur which I take to be the true reading of that place and not peccat parcat or petat as divers copies have it That is as the King is the greatest in distributing of right or Law to his Subjects so ought he to be no more than the least of them in submiting to right judgment if he be Petitioned to and that it be required of him either of which senses this word will well bear but if he absolutely refuses to do this but will take away their Rights and Liberties by force and will deny them the benefit of the Laws what other remedy is there left them but a general resistance since otherwise the King may alter the Government and take away all our Legal Rights and Liberties whenever he pleases M. I confess this dispute concerning the Resistance of those commissioned by the King and the Kings being the Sole Legislator and Original of all the Civil Liberties and Priviledges we now enjoy hath carryed us from the main points in this
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
English and if it were so in this cause it will follow for the same reason in all other Counties all over England Lastly That these Gentlemen were well skilled in the Antient Laws and Customs of England which had been in vain if they had been altered as you suppose M. I will not deny but that in the beginning of the Conquerors Reign many Englishmen might have Estates left them which might not be taken away till some years after and Mr. Selden in his Titles of honour places this Tryal between Earl Odo and Arch-bishop Lanfranc about the first year of K. William and I suppose that it happened before the fifth year of his Reign when Matthew Paris tells us that the Earls Eadwin Morcar and Siward together with Egelwin Bishop of Durham as also many thousands of Clerks and Laicks not being able to bear the severity of K. William fled into Woody and Desart places and from thence got into the Isle of Ely where they fortified themselves and whither K. William followed them and taking the Island made them submit to mercy and then this Author tells us that the K. put the Bishop of Durham in Prison and as for the rest some of them he killed some he put to ransom and others he commited to perpetual imprisonment so that I reckon from this time the King took away most of the Englishmens Estates as not trusting them any more F. If this had all happened as you have put it yet would it not prove what you have maintained for if those Englishmem who had not been engaged with Harold or else had been pardoned for it still held their Estates and as you say they forfeited them afterwards for Rebellion then it is certain K. William did not proceed against the English as a Conqueror since if he had he would have taken away their Estates Iure belli which since as you your self confess he did not whatever Estates he took away afterwards was either for Treason committed by the English or else wrongfully if the former he did it as a lawful King if wrongfully then as a Tyrant and as such could obtain no just right against the English Nation by his unjust proceedings But indeed after all you are quite out in your account concerning this matter for as to the great Tryal you now mentioned it could not be in the first or second year of King William's Reign nor could happen sooner than the sixth or seventh of his Reign for Arch-bishop Stigand was not deposed till the year 1070. which was the Fourth year of K. William and in the next year being 1071. the Annals of Mailros as also the Chronicle of Thomas Wiks place Archbishop Lanfranc's Coâ—secration and fetching of his Pall from Rome so that it could not be until the year after this Rebellion at the soonest when Lanfranc was setled in his Bishoprick that this suit was commenced by him against Earl Odo and therefore a great many of the English Nobility and Gentry had still Estates let them after this Rebellion And that they continued to have so some years after this time appears by those Writs of K. William which Mr. Atwood hath given us in his Ianus Aâ—glorum c. concerning the restitution of the Lands belonging to the Church of Ely which are also transcribed and allowed by your Dr. in his answer to it and I desire you particularly to consider that writ of K. William's directed to Arch-bishop Lanfranc Roger E. of Morton and Ieoffery Bishop of Constance commanding them to cause to be assembled all those shires who were present at the Plea had concerning the Lands of the Church of Ely before the Queen went last into Normandy the rest being most material to the cause in hand I shall give you in Latin Cum quibus â—tiam sinc de Baronibus mâ—is qui competenter adesse potâ—â—unt praedicto placito intersuerunt qui terâ—â—s ejusdem Ecclesiae tenent Quibus in â—num congragatis eligantur plures de illis Angliâ— quisciunt quo modo terrae jacebant praefatae Ecclesiae die qua Rex Edwardus obiit quod inde dixerint ibidem jurando testentur From whence we may also gather that this Tryal concerning the Lands which is here ordered was to be in like maâ—ner and by a Jury of the same sort of Englishmen who tryed the cause between Earl Odâ— and Arch bishop Lanfranc that is they were English Gentlemen of sufficient Estates or Tenants in Capite if you please Now. let us look into the time when this happened since the Writ doth not tell us when it was only that it refers to a Plea held concerning the Church of ELy before the Queens last going into Normandy so that this tryal here mentioned could not happen till after the fourteenth year of K. William's Reign which I prove thus this Queen did not come over into England till the year 1068. when the King returned with his Queen out of Normandy after his Coronation at which she was not present after which K. William went not into Normandy till the seventh year of his Reign when he went over and took Mans and then whether he carried the Queen with him is uncertain but the Annals of Waverly tells us he went over again the next year and then he might carry the Queen with him which might be the first time she returned into Normandy but it appears by the same Annals that the King went over the year after and staying but a little while returned into Normandy to fight against his Rebellious Son Prince Robert where staying not long he returned as soon as he had driven his Son out of Normandy nor do we find he went over again till the 14 year of his Reign being the year 1080. and then I suppose since he stayed there for some time he carried the Queen with him and to this last going over I suppose this Writ we have cited refers for tho' the Queen went over again after this yet she returned no more because she died in Normandy in the year 1083. as Iogulph who was then alive relates the use I make of these particulars is this that long after the time you suppose the English to have lost all their Estates we here find a great Jury of Englishmen summoned out of several shires in England to try this great Cause concerning the Lands which the Church of Ely had been unjustly Disseised of so that here you see after the fourteenth year of this King the English still continued to keep their Estates and to serve upon Juries and consequently the Pleadings before them as well as their Verdict must have been in English M. I shall not insist upon this point any farther yet this much you cannot deny but that all the Pleadings and Proceedings at Wâ—stminster as also the old Law books were all in French as appears by the Mirror of Justices Britton not to mention those of latter days as Littleton's Tenures and others and so were
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
very letter of this Law but also because I have now said all private Persons ought to submit their Judgements in this matter to that of their Representatives who if they have judged falsely are 〈◊〉 bear the blame but yet their Judgement for all that is to be held for good 'till it be reversed in the same way in which it was given since if after such a recognition every private person should still be free to pay his Allegiance to him whom he suppos'd King de jure it would certainly follow that the Civil Society or Common-wealth must of necessity fall into Civil Wars which is against the nature of Civil Societies and inconsistent with the duty of self-preservation which obligeth men not to expose their Lives and Fortunes but to obtain a greater good than both those which can only be the publick good of the Community and not the single interest of any one person or Family and though I grant it is a great sin in those who are instrumental in raising Rebellion and who are thereby guilty of a very enormous Crime yet that which made it so was not barely the injury they committed against the Prince to whom if alone consider'd the breach of an Oath in withdrawing their Allegiance could be no greater a Sin than the breach of an Oath to another person but indeed the fatal mischief and irreparable dammage they did the Common-wealth is that which aggravates the Sin and if a new commotion to restore the King de jure would in all probability prove yet more destructive and a Nation by being so much weakned by a former Civil War be less able to bear a new Civil War which may happen so far to the weakning of it as to expose it to the Invasion and Conquest of a foreign Nation who may be Enemies both to our Religion and Civil Constitution in such a case I cannot think it our duty to restore a Prince by force though never so unjustly driven from his Throne And therefore if I had been then a man tho' I should have been as much for bringing home King Charles as any body ought to be yet I should have been only for it in the way in which it was brought about and should never have desir'd it if it could not have been done but by an Army of French or Irish Papists and the like I say now as to King Iames as long as he is joyn'd with the Interest of France and is already gone into Ireland on purpose to renew the War by the Arms and Assistance of those whose Fathers as well as several of themselves did all they could to destroy not only the Royal Power but also the English Religion and Government in that Nation And therefore I must freely tell you that if even Rebels have put it out of their power to make reparation for all the wrongs they may have done by Rebelling against their Lawful Prince because he in possession is too powerful to be driven out again without a violent Civil War and a general concussion of the whole Common-Wealth This reparation to the injur'd Prince being not to be made without a greater evil than that they endeavour'd avoid it ought to be omitted till it may be done with more safety to the Nation or else not at all I say if there be no other way to make reparation to their injur'd King but by engaging the Nation in fresh Civil Wars they ought not to attempt it by such unlawful and destructive means M. I confess the Discourse you have now made carries the greatest appearance of truth of any thing you have yet said since it is drawn from the publick Good of the Nation which I grant to be comprehended under the common good of Mankind and you have done well to own it to be Rebelion to deprive a lawful Prince and his Heirs of the Crown yet that it is unlawful to restore them again to it if we think it cannot be brought about without a general Subversion of our Religion and Civil Liberties may be a question I grant indeed if we could be absolutely certain of this there would be some colour for this Argument but since future things are not capable of Demonstration if the restoring our lawfull Prince be a Duty incumbent upon every good Subject we ought to endeavour it though with some Danger and Hazard of what ever is dear to us for God will either protect us both in our Religion and Civil Liberties for thus honestly performing our Duties according as we are bound by our Allegiance or if he has call'd us to suffer for the Truth he will either find us Patience to bear it or else provide us a way to escape this I speak in Relation to the French and Irish whose Conquest and Malice you are so much afraid of in case the King should happen to be restor'd by their assistance but indeed I think this a needless fear since I suppose the King will be too wise to bring over so many of either Nation as shall be able to make an entire Conquest of this Kingdom least thereby both he and his Crown may lie wholly at their Mercy when the Business is done nor do I think it either in the power of the French or Irish to perform these dangerous things not of the former because as I now said I suppose the King will never bring over more of them along with him than what may serve to make a stand against the Prince of Orange's Forces till his Good and Loyal Subjects can come in and join with them to his Assistance and as for the Irish they are also the King's Subjects and though Ignorant they are very inveterate against the Protestant Religion and the English Nation and Interest yet they may be so govern'd and over-rul'd by the King as not to be able to do us any considerable Damage But as to the King of France I do really believe he is far from intending to make an entire Conquest of this Kingdom for himself much less desiring to make the King as Absolute a Monarch here as himself is in France for us to the form◠he has too much consideration of his own Glory and Reputation in the World to seize upon the Kingdom of a near Kinsman and Allie of his own Religion and who had been driven from his Throne chiefly for being too much in his Interest and besides all this he may very well fear that if he went about any such thing as an entire Conquest of this Nation all Parties may join against him as a common Enemy and drive him out again as the English Barons did Prince Lewis in the time of King Henry the III d. nor can it be the French King's Interest to make our King Absolute here for then having the Persons and Purses of his Subjects wholly in his own Power King Lewis might justly fear that either this King or his Successors may prove as dangerous Enemies to the
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-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
them that by shooting they would also call in the Neighbouring Town who might be too strong for all their Fellow Thieves Now if you will but take these honest People of the next Town for such Neighbouring Princes or States who may Joyn in the Assistance of such an Opprest People this Simile will fully answer your Argument of those Neighbouring Princes that may take Part with an Oppressing Tyrant And as for the Consequence of such Assistance on the one side or the other that it may happen to bring them into a worse Condition than they were before viz. a Subjection to Foreigners as I have put the Case it can be no cause to detâ—r the People from Resisting for if they were as I suppose reduc'd to a Condition of slavery before and had lost all their Liberties and Properties how can we Imagine them in a worse Case than they are already And it is all one to such a People whether their own or a strange Prince did Tyrannize over and oppress them Nay were I to take my Choice I had much rather be Tyrannized over and opprest by a Foreigner than from my own Natural Prince since the former conâ—ing in by force and without any precedent Promise or Compact I lye wholly at his Mercy who hath no Obligation upon him I had much rather if I were to be â— slave be so to a Stranger than to my own Father if I were assured that both the one and the other would use me with like severity And to answer your Instance of your Irish King I think that Nation hath been so far from losing any thing by their Subjection to the English Government that they have gained far greater Priviledges and Liberties both for their Persons and Estates than ever they enjoyed under their own Princes So that they are rather the better than the worse by the Change And as for your other Example of Prince Lewis it is uncertain whether the Condition of the English Nation would have been either better or worse under a French King but thus much I am sure of that had King Iohn Proceeded in that Tyrannical Course against his Barons and the rest of his Subjects they could scarce have been in a worse Condition under the French nay the Moors themselves haâ— King Iohn actually surrendered his Crown to the Sarracâ—n Emperour as the Historians of those times relate he offered to do Nor can I be of your Opinion that iâ— had been much better for the Barons and Nobility of this Kingdom never to have stirred or resisted the King at all since if they had not they had never obtained the GREAT CHARTER of our Liberties from him and if they had not as Vigorously defended it when they had once got it I doubt not but the People of England had been long before this time in the same Condition at to their Liberties and Properties as some of our Neighbouring Nations all which is sufficient I think to prove that Resistance in desperate and unavoidable Cases is not attended with those mischiefs and Inconveniencies you suppose M. I shall not say much more in answer to your lost discourse since it would be to little purpose but only take Notice that Similes are not Arguments and therefore your Comparison between Thieves and Honest Men doth not hold as to Princes and Subjects since sure there is a great deal of difference between those that are to be Obeyed as the Ordinance of God and those who are Obliged in Conscience to be subject to them and Thieves who act directly contrary to Gods Will and Honest Men who having no obligation to them may justly resist them So that if that be false the rest of the Comparison will signifie nothing And as for what you say concerning MAGNA CHARTA I think it is not much for its credit to have been extorted by Force and afterwards defended by Rebellion tho' I will not go about to Impeach the Validity of it since so many of our Succeeding Kings have so solemnly and voluntarily confirmed it only pray take notice that it is wholly derived from the Grace and Bounty of our Monarchs and therefore we are not to resist tho' it may happen to be sometimes and in some Particular Cases broken and infringed by the King for some great Occasions or Necessities of which we are not competâ—â—t Iudges But to come to the rest of those evil Consequences that may attend your Doctrine of Resistance I think the Benefits would be much greater to the People by strictly adhering to those Doctrines of Absolute Subjection and Non-resistance than by propagating yours of Rebellion For if the former were constantly taught and inculcated as most beneficial for them and if they were once really persuaded of the Truth of it and would both constantly profess and practise it it would make all Princes much more Gentle and mild to their Subjects than otherwise at some times they are For now they are still fearful that they will take the first opportunity they can to take up Arms against them And upon the least Grievance or Mis-Government to resist their Authority for then Princes not needing to keep any such constant Guards and standing Armies might afford to lay much easier Taxes and impositions upon them for the maintenance and support of the Government than now they do and in short would have much fewer Temptations to Tyranny and Oppression could they be once assured of their Subjects absolute Obedience and Subjection Whereas when they are under those constant fears and suspitions of Insurrections and Rebellions against them upon the least occasion it is no wonder if they are tempted sometimes to abuse this Power for their own Security And therefore we read in our Histories that William the Conquerour never thought himself secure from the English whom he had newly Conquered till such time as he had turned most of the Nobility and Gentry out of their Offices and Estates lest they should have any Power left either in his Life time or after his Death to turn him or his Posterity out of the Throne as they did the Heir of the Danish King Cnute who with his Danes had before Conquered England as King William did afterwards with his Normans So that upon the whole matter it seems to me much more to conduce to the main design of Civil Government viz. The Happiness and Peace of Mankind in General that Princes and other Supream Magistrates should be suffered I will not say authorized by God sometimes to abuse their Power to the general oppression and enslaving of the People without any Resistanâ—e on their side expecting their dâ—liverance WHOLY from him who can bring it about in his good time and by such means as shall seem most meet to him than that Subjects should take upon them to be both Iudges and Executioners too in their own Case and thereby introduce not only all the Mischiefs of Civil War and all those cruel Revenges which the Wrath
of an Incensed Prince may justly inflict upon such Rebels in this Life but also the Wrath of God and those Punishments that he hath denounced in the Holy Scriptures in the Life to come against such Rebellious Subjects as dare resist the Supream Powers ordained by God F. Before I answer the main part of your last discourse give me leave first to justifie my Simile for tho' I grant Similes are no Arguments yet they often serve to expose the absurdity of several things which either the â—alse colours of Eloquence or the too great Authority of learned men might otherwise have hid from our Eyes and therefore if the Supream Powers have no Authority from the Revealed Will of God or the Law of Nature nor by the Municipal Laws of any Countrey to invade their Subjects Lives Liberties or Estates they may be so far compared to Thieves and Robbers when they do nor are such violent Actions of theirs to be submitted to as the Ordinance of God And I suppose you will not deny but that a Prince or State that does thus Acts as directly contrary to Gods Will as Thieves themselves and consequently all honest men or Subjects having so far no obligation to suffer or obey may justly Resist them So that if this be true all the rest of the Comparison currit quatuor pedibus But as for your reflections upon MAGNA CHARTA it is you your self not I that asserted it to have been extorted by force and dâ—fended by Rebellion for it is very well known to those who are at all Conveâ—sant in our English Histories and Laws that there was nothing granted in that CHARTER which was not the Birth-right of the Clergy Nobility and People long before the Conquest and were comprised under the Title of King Edwards Laws and which were after confirmed by William the first as also more expresly by the Grants of his Son Henry the first and King Stephen as appears by their Charters still to be seen And therefore these fundamental Rights and Priviledges were not extorted by force from King Iohn as you suppose The War commencing between him and his Barons was not because he would not grant them fresh Priviledges which they had not before but because he had not kept nor observed the Fundamental Laws of the Land and those Rights and Priviledges which before belonged to the Clergy Nobility and People as well by the Common Law of the Land as the Grants of former Kings And therefore if King Iohn by his apparent breach of them forced the Nobility and People to defend them it was no Rebellion for so doing nor was it ever declared to be so by any Law now extant But to come to the main force of your Argument I confess it were an admirable expedient not only against Rebellion but also the Tyranny of Princes to PREACH that they should not oppress their People nor yet that the People should rebel against them but the preaching of these Doctrines or getting as many as you can to believe them will no more make Princes leave keeping standing Armies or laying great Taxes upon their People than Constant Preaching against Robbery or Murder will take away the necessary use of Gallows out of the Nation Since we know very well that as long as the Corruption of humane Nature continues so long must likewise all Powerful Remedies against it And therefore your Instance of William the Conqueror will signifie very little for I believe had all those learned Divines who have of late so much Written and Preached for Passive Obedience and Non-resistance been then alive and had exerted the utmost of their Reason and Eloquence to prove them necessary nay farther I do not believe tho' all the People of England should have given it under their hands that they would not have Resisted or Rebelled against King William that yet he would have trusted them the more for all that or have kept one Soldier the less for it nor have remitted one Denier of those great Taxes he imposed for he was too cunning and Politick a Prince not to understand humane Nature which cannot willingly endure great and intolerable Slavery and Oppression without Resistance if men are able and therefore he very well knew that after the forcible taking away of so many of the English Nobilities Estates there was no way but force to keep them in Obedience And as Princes can never be satisfied that their Subjects have been throughly paced in these difficult Doctrines so they can never be secure that they will not play the Iades and Kick and fling their Riders when they spur them too severely and press too hard upon them And therefore I doubt such Princes whose Government is severe will always find it necessary to Ride this Beast as you call it the People with strong Curbs and Cavessons But besides all this there is likewise another infirmity in the Nature of Mankind and of which Princes may as well be Guilty as other men that they are more apt to oppress and insult over those whose Principles or Natural Tempers may be against all Resistance and for this I appeal to your Example of the Primitive Christians who were not one jot the better used by the Roman Emperours tho' they expresly disclaimed all Resistance of those Emperours for Persecution in matters of Religion and tho' some neighbouring Princes are thought to have their Subjects in more perfect Subjection and that either their Religion or Natural Tempers makes them less apt to resist the Violence and Oppression of their Monarchs than the English or other Nations Yet I desire you to enquire whether Taxes and all other oppressions do not Reign as much under those Governments however sensible the Princes may be of their Subjects Loyalty and Obedience Therefore to conclude I shall freely leave it to your Judgment or that of any indifferent Person which is most agreeable to the main Ends of Civil Government viz the Common good of Mankind and the Happiness and Safety of each particular Kingdom or Commonwealth that the Violence and Tyranny of Princes should be sometimes Resisted than that the People under the Pretence of this irresistible Power should be liable to be made beggars and Slaves whenever any Prince or State had a Mind to it And I appeal to your own Conscience if the supposed belief of the Passive Obedience of some of our Church was not one of the greatest encouragements which the King and the Iesuited Fâ—ction had to bring in the Popish Religion under the Colour of the dispensing Power Ecclesiastical Commissioners and force of a standing Army from which Unavoidable mischiefs nothing under God but this wonderful Revolution could have rescued us And therefore I think it becomes any honest man to thank God for it and join with his Highness the Prince of Oriâ—â—ge as the only means now miracles are ceased which God hath been plâ—ased to ordain by the course of his Providence for our Deliverance M. I
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
under such as you mention you would I think scarce be contented to live where the Priests bare so much sway where there were no Cities or Great Towns but only scattered Houses and Habitations by Rivers Fields and Woods made of Dirt or Clay Arms of Trees and Stubble where there was no literature especially among the common People nor scarce Civility where there was no Cloathing but with Garments made of Beasts Skins No Food but Milk Pulse and Flesh without Art or Cookery where there was no Propriety in Lands no Money no Work for Lawyers as you will find if you read on in Tacitus and the 6th Book of Cesar's Commentaries And as for what you say concerning the beginning of the Saxon Kingdoms in this Island To this I Reply that Hengest and Horsa and those other Leaders who brought the Saxons into England were all of them of the Royal Line of the Saxons as appears by all our Historians and so if not Kings yet well able to Subsist And it was not the manner of those Countries to thrust out their Supernumeraries by force but to draw them out Regularly by Lot at such a Rate and Proportion and to give them Generals and Officers of Great Birth and Degree Nor is it probable if they had made Articles with their Followers that these Princes should have had such Absolute Authority as they had over the Lives and Fortunes of their Subjects in the more early times almost all the Priviledges of the English Nation being granted long since that time nay most of them since the Conquest Yea since the Barons Wars But as for what you say concerning the Gothick or Vandal Kingdoms since they relate nothing to our Government I need not say any thing to them nor doth it follow that if their Kings were limited or but upon Condition that ours must be so too F. I see you would fain evade the Authority of Tacitus concerning the People's having any share of the Government amongst the Saxons because forsooth that Nation is not particularly nam'd in his History But tho the Saxons are not particularly named by Tacitus Yet the Angli are there mentioned among those German Nations who Worship't their Common Goddess Hertha which that Author interprets to be Terra the Earth And you very well know that from these Angli or Angles the English Nation as well as name is derived But tho Tacitus who lived about the beginning of the Emperour Trajans Reign names not the Saxons yet Pâ—olomy who writ within 40 years after expresly mentions them placing their Country not far North of the River Albis and near the Place where all agree the Angli were Seated so that they were either all one and the same Nation or very little different But Etheliverd Quâ—sâ—or one of our Ancientest English Saxon Historians in his first Book makes this Nation of the Saxons of a far wider extent and that it reacht from the River Rhine all along the Sea-Coast up to Donia now called Denmark But since I see you cannot well tell how to evade this Testimony of Tacitus but by affirming that the Government in Germany was a Democracy and that the People had the only Sway in it is a great mistake since he expresly mentions their Kings and Princes and there only speaks of the manner of Transacting all publick Affairs in which it is true the People as it is very well known by our Ancient Histories had formerly a greater Share than now Yet doth he not thereby exclude the Prince and Nobility from having also their Shares in it And as for what follows in Tacitus of the Royal Power auctoritate suaâ—endi magis quam jubendi Potestate I suppose you cannot deny but that Priviledge yet remains to us since the King cannot command the Parliament to make what Laws or give him what Money he pleaseth and therefore that doth not make it a Democracy much less the Priests presiding in their Assemblies which is no more to be wondred at than that the Bishops have still Votes and their share of Legislature in the House of Peers Or that a Bishop when Chancellor or Keeper should be Speaker in the House of Peers Or supposing that their Priests had more Power among them than the Christian Clergy had after they were Converted doth it therefore follow that it was not the same Government or that it must therefore be so intolerable that I would not have bin willing to have lived under it Since I must tell you I am not against Civil Offices though exercised by Clergy-men as far as the Business of their Function and the Canons of the Church will permit As for the rest which you object concerning the Barbarous living of the Ancient Germans it either makes nothing to the matter in hand or else against you since it proves plainly that Absolute Monarchy was not the first Government among all Nations as you suppose Nor doth it therefore follow that because these People were Rude and Barbarous therefore they had not the Wit to prefer Absolute Monarchy before all other Governments since their Conquerors the Romans who sure were a Civiliz'd People did likewise as much abhor it But as for what you say against Hengist and those other Leaders who brought the Saxons into Britain being Elected Kings by their Followers is nothing but meer Guess and Conjecture For that they were not Kings at home you your self grant and whether they were able well to Subsist at home or not is nothing to the Purpose It is plain they thought they could mend their Condition or else would never have left their Country And tho it be granted that Hengist with his Followers came not over as Enemies but Auxiliaries to the Britains Yet it is not therefore more likely that they were chosen by the King of their own Nation than that their own Followers should afterwards Elect them especially when the one is agreeable to our own Historians and the other not For Mattheus Florilegus tells us that Horsus being slain the Saxons Fratrem suum Hengislum in Regnum Cantiae sublimaverunt that is they Elected or Advanced him to be King if I understand any thing by that word and this agrees with the Polichronicon of Ranulph Higden who places the begining of Hengists Reign immediately after the Death of his Brother Horsus viz. An. Dom. 465. Eight years after the coming of the Saxons into Britain and that the rest of the Saxons who came hither after had no better Title then Election I could farther prove if the time would give me leave For they that will read the Ancient Accounts of the Saxon Nation and what Government they had among them long after the time of Cesar and Tacitus will find that it was impossible that they should be thus Created Kings before they came over since at that time they had no such things as constant Kings amongst them for in those times it was rather an Aristocracy then a Monarchy
of this necessity as certainly he is in the intervals of Parliament it can never be supposed that the first Prince or his Successors that first parted with these Priviledges to the People ever intended to be so straitly tied to them as that in no case whatever tho' never so pressing they should not depart from them much less that he should forfeit his Crown if he should wholly break them nay should persist so to do and resolve to turn this limited into an absolute despotick Monarchy since the observation of these Laws being but concessions of his own or his Predecessors can never be looked upon as conditions of his holding the Crown nor of the Subjects Allegiance to it there being as you your self confess no such clause exprest in either part neither in the Kings Coronation Oath nor yet in their Allegiance to him as you your self cannot but acknowledge and tho' it is true the King swears at his Coronation to keep and maintain the Laws yet Grotius tells us Lib. 1. cap. 3. that an Empire does not cease to be Absolute altho' he who is to rule promise some things to God or to his Subjects even such which may appertain to the manner of the Empire and that not only concerning the observation of the natural or divine Law but of certain Rules to which without a promise he were not obliged So that in all Promises of this kind the manner of the obligation is not reciprocal or of the same sort on both sides as for example it is only moral in respect of the King and it is lefâ— wholly to God to judge between the King and his Subjects and to punish him when he breaks his part but to the King as God's Lieutenant on Earth it belongs not only to judge of his Subjects breach of their Oath and Contract but also to punish them for so doing and compel them to the performance of it and of this Judgment are all the Modern Civilians as for Bodin I have given you his opinion in the chapter I last cited concerning this matter and he as well as Grotius is clearly of opinion that Absolute Monarchs such as he reckons the King of England to be are not to be called in question or destroyed let their breach of Laws and Tyranny be never so notorious much less can they forfeit their Royal Dignity for such male-administration and tho' Grotius is of opinion that in cases of great and evident danger of Life Subjects may have a right of resistance against absolute Princes and those commissioned by them what is this to the case in hand viz. a resistance against an Absolute Monarch for violation of those Priviledges and Liberties that were granted by himself or his Ancestors and without which Subjects may very well live and subsist as we see they do under the most Absolute Despotick Monarchies where they enjoy no such thing tho' perhaps they do not live so well and freely as we do nay Pufendorf the Author you so much make use of in his seventh Book will not allow Subjects to take up Arms or resist Absolute Princes nor for too great cruelty in punishment nor for imposing too immoderate Taxes since the presumption of Justice and necessity for the doing of these things is always on the Princes side nay if his Promises are not kept or priviledges formerly granted are taken away if the Prince be Absolute and will pretend any fault necessity or remarkable benefit thereby to the common-wealth he shall be deemed to have acted by a right of which the faculty of judging is wholly wanting to the Subjects since all Priviledges have this exception unless the welfare or necessity of the Common weal forbid them to be observed F. Since your last Discourse consists of two parts matter of Fact and matter of right deducible from that fact I shall speak to each of them in order first as to the matter of Fact it is a great mistake in you and Dr. Brady to maintain that K. William I. was really a Conqueror and by his Sword without any other Title obtain'd such an entire Victory over K. Harold and the whole English Nation as gave him an Hereditary Right for himself and his Heirs to the Absolute Allegiance of the whole English Nation without any reserve or conditions whatever so that all our Ancient Liberties and Priviledges being thereby lost and forfeited this Nation can claim nothing of that kind but from the grants and concessions of that King or his Successors every one of which Propositions contain so many notorious mistakes in matter of Fact for in the first place King William never claim'd the Crown by Conquest but by the adoption and Testament of King Edward the Confessor and I desie you to shew me any Ancient Law or Charter either of his own or any of his immediate descendants wherein he is stiled Conqueror 't is true in his Charter to the Abby of Westminster he says in one that by the Edge of the Sword he obtain'd the Kingdom by the Conquest of Harold and his accomplices yet does not found his Right in that Victory alone but on the donation of King Edward his Cozen the words are remarkable in ore gladii adeptus sum Regnum Anglorum devicto Haraldo Rege cum suis complicibus qui mihi Regnum divinâ providentiâ destinatum beneficio concessionis Domini Cognati mei gloriosi Regis Edwardi concessum conati sunt auferre And this donation he calls an Hereditary Right in divers other Charters as particularly in one also recorded by inspeximinus beginning thus In nomine Patris Filii spiritus sancti Amâ—n Ego Willielâ—us Rex Anglorum haereditatio Iure factus So likewise his Son K. Henry I. in his Charter to the Abbot of Ely creating him a Bishop calls himself the Son of William the Great not the Conqueror Qui Edwardo Regi Haereditario jure successit in Regnum And in vertue of this Donation he was after his Victory against Harold by publick and full consent of the whole Nation or People of England as also of the Normans he brought with him Elected and Crowned King and at his Coronation took the same Oath at the High-Altar at Westminster which his Predecessors the Saxon Kings had taken before him with this one Clause farther which was very necessary to be done at that time viz. quod aquo Iure Anglos Francos tractaâ—t so that let his Title by Conquest have been what it would it was either by a just right of War to recover his due or by none at all if the former he could only succeed to such Rights as K. Edward the Confessor before exercised and enjoyed since he came hither only to take the Crown that was so bequeathed to him and to hold it under that Title but if he had no Title at all but his Sword he then could obtain no just right to the Crown of England either for himself or
not because he kept a Kingdom bequeathed to him by K. Edward since some Writers relate this King named not him but Harold for his Successor tho' others say that he recommended Edgar to the good will of the English Nobility So that the only true and just cause D. William had of making War upon Harold was his breaking the Promises and Oath he had not long before made him of securing the Kingdom of England for him upon the Death of K. Edward instead of doing which he had seized it for himself and which is worse refused to restore it or so much as to hold it of Duke William as his Homager So that tho' for the strengthning of his own Tide he pretended to the Will or Donation of King Edward and to avoid the envy of the name might out of modesty or to put a better colour upon this matter refuse to take the Title of Conqueror and to insist upon the Donation of K. Edward yet nothing is plainer than that he could claim by no other Title but the Sword and that he looked upon himself as no other than an Absolute Conqueror may appear by these great and evident instances 1. His change of the English Laws and introducing the Norman Customs in their stead and also changing the Tenures of Lands not only of the Layety but also of the Bishops and greater Abbeys 2. By his debarring all those of the English Nation from enjoying any Honour Office or Preferment either in Church or State and also in taking away the Estates of all the Nobility and Gentry not only from those of their Heirs that had been slain in the Battle of Hastings but also of the rest so that they had left them but what they could purchase of those Norman or French Noblemen to whom King Wiiliam had given their Lands as a reward of their good service for the proof of both which Assertions I have so very good authority on my side and that of Writers of or near those times in which these things were done that I think no indifferent man can have any cause to doubt the matter of Fact to have been as I relate it nor did he by any after act ever renounce this right of Conquest as you suppose much less refer it to the Election of the English or Normans since the former were not in a condition to make any farther resistance against him the Clergy and great men of the Kingdom having been forced to submit themselves to him without any other precedent conditions or stipulations than for the saving of their lives and as for the Normans they were his Subjects and they Conquered the Kingdom only for his use and benefit as his Souldiers and Vassalâ— and it is not likely he would owe the Kingdom which he had thus acquired by the Sword to their Votes or Election neither does any Author that I know of mention any Election before his Coronation when tho' it is true he took such an Oath as you mention yet it was in too general terms to bind him to any observation of the ancient English Laws much less to preserve their Rights and Priviledges farther than he thought fit and therefore could never take the Crown upon your Conditions of Resistance or Forfeiture in case of any alteration in that which you call the Fundamental Constitution This being the true matter of Fact without any disguise it is easie to answer all that you have said against K. William's requiring an Absolute Hereditary Right to the Crown of England for himself and all his descendants by the Sword first then as to the Justice of the War and Conquest it self I suppose you will not deny but that Duke William had a good cause of War against Harold for the breach of his Oath and if so against all that took his part at the Battle of Hastings so that upon the Conquest of Harold and those that were in that Fight he also acquired a Right by Conquest to all that they enjoyed and consequently had a right to Harold's Crown as well as his other Estate as also to the Estates of all those that were either slain or escaped alive from that Battle and not only to these but also to all the Lands of the whole Kingdom since the War was made not only against Harolds Person but against the Kingdom of England the People of which according to their Allegiance assisted him in that War either with Men or Money but admitting the War to have been in it self never so unjust yet all Writers on this Subject even Grotius and Pufendorf agree that Conquest even in an unjust War with a thorough settlement in the Conqueror and his Successors by the non claim dereliction submission or exstinction of the next Heirs of the former Kings together with a long uninterrupted possession beyond all time of memory will confer as good a Title especially when all these confirmed by a constant submission and recognition of the People testified not only at the first Conquest but in all succeeding times by as absolute and unconditioned Oaths of Allegiance as can be invented or that were ever taken to the most Absolute Monarch and such Oaths are always to be interpreted in favour of the Prince to whom they are sworn and as strictly against the People that take them as all Writers also agree now granting this to be the case of K. William the Conqueror that by all or some of these means he acquired a right to the Crown not only for himself but his Heirs this Power was Absolute without any conditions to be observed on their part for the Oath of Allegiance is positive without any condition or restriction so that I can see no manner of pretence that the People of this Nation can have of forcing their K's to the maintenance or observation of those rights and priviledges which they or their Predecessors have so freely granted to them or their Ancestors As Pusendorf whom you now cited very rightly observes and consequently can have no right to repel force by force since our Kings do not now hold their Crown by force or right of Conquest alone but by all things required by the Law of Nations to create a full and absolute right viz. a long uninterrupted Possession and the Absolute submission of the People for themselves and all their descendants so that tho' I grant bare conquest considered as a Force can give no right alone yet it may often be the Mother of Right and may at last grow to a Right by the means I have already mentioned F. Before I reply any thing farther to what you have now said to the matter of Right acquired by your Conqueror and his Heirs pray in the first place prove the matter of Fact to have been as you lay it and therefore produce your quotations from the Authors you mention but first give me leave to tell you that Dr B. and you are the first I have heard to
Heirs within age of such Tenants but this extended not to the Tenures of the Subjects by Knights Service as it appeareth by Bracton Dicitur Regale seâ—vitium quia spectat ad dominum Regem non alium secundum quod in Conquestis fuit adinventum c. Whereupon Sir E. C. notes in the Margent the Tenure as before it appeareth was not then invented but the fruits of this Tenure of the K. viz. Wardship and Marriage which was Bracton's meaning so as the Conqueror provided for himself but other Lords at the first by special reservation since the Conquest provided upon gifts of Lands for themselves Regis ad exemplum totuâ— componitur orbis wherein that which we had from the Conqueror we freely confess F. I shall not dispute his matter since it is doubtful whether this custom of Wardship was Norman or whether it was derived from the Saxons who possibly might have some respect to Orphans in such cases to train them up for the publick Service in point of War especially being possessors of a known right of Relief as well as Alfred the Saxon King did undertake the work for the training of some particular persons in learning for the service of the publick in time of Peace and Civil Government and tho' Sir H. Spelman is of opinion in his Title de Wardiâ— that Wardship of the Heir came in with the Conqueror yet Sir Iohn his son who was also a learned Antiquary in his Epilogue to his second book of K. Alfred's Life Printed at Oxford speaking of Military Fees granted to the Kings Thanes has this passage Haec etiam Fioda baeredibus sub Hereoti siâ—e relevaminis cujus piam quod haeres in terrae redemptionem Regi solvere tenebatur conditione plerumque transibat si haeres minor natu à Patre moriente relinquebatur Regi educatio â—jus utpoâ—â— Regis Hominis committebatur in utilitatem etiam commodum ipsius Regis But whether the Wardship of the Body of the Heir was in use in K. William's time or before is uncertain for the land is in the Charter of Henry the first in Mat. Paris granted either to the Widdow or next heir But let these customs be derived from whence you please it is a plain case it could be no badge of Conquest upon the People of this Nation and that by the Doctors own shewing for were it a Norman custom never so much if your Conqueror first of all imposed it upon those he brought over along with him it could never be a badge of Slavery upon the English Nation but rather upon the Normans upon whom it was chiefly imposed and if they afterwards granted Lands to the English upon the same terms they held them themselves they were no more Slaves to whom they were granted than they were under whom they held them but indeed this was so far from being looked upon as my badge of servitude that if the Dr. himself is to be believed these were the only Freemen and their services Bracton says were so notoriously free that in Writs of Right it was never mentioned because so well known Notandum in servitio Militari non dicitur per Liberum servitium ideo quod Constat Quia tale Servitium Liberum est And hower Rigorous the Feudal Law might be at the beginning it was when your Conqueror came in so far mitigated as to the rigour of it that the Tenants by Knight Service were not only free by K. William's Law from all Arbitrary Taxes and Tallies but also obtained a setled Inheritance to them and their Heirs as appears by that clause in K. William's Charter and therefore in the Reign of Henry the Third when William of Warren Earl of Surrey was questioned after the Statute of Quo Warranto by the Kings Justices by what Warrant he held his Lands pulling out an old Sword he answered to this Effect behold my Lords here is my warranty my Ancestors came into this Land with William the Bastard and obtained those Lands by the Sword and I am resolved with this Sword to defend them against any whosoever shall go about to dispossess me for the K. did not himself alone Conquer the Land but our Progenitors were sharers with him and assistants therein As for what you say That the Laws in the Customary of Normandy are the same with the Laws of England It is no more than what divers French Writers have taken notice of but do not attribute their agreement to their being borrowed from the Normans but quite contrary for in the first place most of the Learned Men say That the first establishing of the Customary of Normandy was in Henry the first 's time and afterwards again about the beginning of Edward the seconds time when Normandy was not under the King of England and Sâ—querius a French Author relates that K. Henry I established the English Laws in Normandy and with him do also agree Gulielmus Brito Rutilarius and other French Writers who mention also that the Laws in the Customary of Normandy are the same with the Laws collected by our English K. Edward the Confessor who was before the Conqueror an additional Testimony hereof is out of William de Reville de Alenson who in his Latin Comment upon the Customary proves and demonstrates that the Laws and Customs of Normandy came from the English Laws and Nation either not long before or after Edward the Confessor's time In the Customary there is a Chapter of Nampes or Distresses and it is there decreed that one should not bring his action upon any seisure but from the time of the Coronation of K. Richard and this must be our K. Richard the first because no K. of France was ever of that name and the words Nampes and Withernams were Saxon words taken out of the English Laws signifying a Pawn or Distress and in the same sense are used in the Customary But if you have nothing more to object against what I have now said pray proceed to your last head and let me see how you will prove that the English lost all their antient Liberties and Priviledges which they enjoyed under the English Saxon Kings M. I never heard so much before concerning the Original use of the French Tongue in our Reports and Law Books but yet this much I think you will not deny first that the Norman French was never used in our Courts of Justice till after the Conquerors entrance Secondly That he did his endeavour totally to root out the English Tongue by ordering of Children to learn the first rudiments of their Grammer in French and as for what you have said concerning the Customary of Normandy being especially as to Tenures derived from the English Laws and Customs I do not deny but that it may be the opinion of some French Writers that it was so but I shall believe it when they can prove that the Wardships and Marriage of the Heir of the
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
insurrections made him use all the means he could to prevent it for the future so that at the most they were but temporary constitutions and did not last long nor could this Law of the Converâ—eâ— Bell be any badge of slavery on the English since we find the same custom to have been used in Scotland whom you will not say are a Conquered Nation nor do I find the Normans after they came over were any more exempted from this Law than the English Natives but I much wonder you should reckon the Laws of Decenaries or Tythings among the badges of Norman slavery since if you have read any thing in our Saxon Laws you will find as Ingulph tells us that K. Alfred first appointed ut omnis indigena lâ—galis in aliqua centuria decima existerit si quis suspectus de aliquo latrocinio per suam centuriam vel decariam condimnatus paenam demeriâ—am incurreret So that whatever other Laws you find either of our Saxon or Danish Kings or else among those of K. William concerning Triburghs and Tythingâ— It was only to confirm or re-inforce this Ancient constitution but that not only the meanest sort of Fâ—â—emen but the greatest and best Nobility and Gentry were subject to this Law of Tythings may appear by that Law I have already quoted of King Knutes whereby every Free-holder was to have his Family in his Pledge that is was bound to answer for him to the K. and if he were accused to have let him run away by his consent he was to purge himself by his own Oath and also the Oaths of five other Thanes that he was innocent so likewise the Laws of K. Edward confirmed by K. William are very particular on this Subject that all Arch-bishops Bishops Earls and Barons should keep their Knights and Servants there mentioned in their Frithborg that is in their Franâ— Pledg whereof the Lords themselves were to be the sureties aâ— appears by what follows viz. that if any of them offended their Lords should be obliged to do right in their Courts and to the same purpose is the 49th Law in Ingulph's Copy of these Laws the words are these Echascun Seniour ait sun seriaâ—â—u sun plege que si nile rete que ait a dreit el Hundred that is that every Lord keep his Servant in his Pledge that if he offend right may be done in the Hundred So that upon the whole matter I can see nothing considerable imposed by your Conqueror upon the free born English Subjects which they were not tyed to before the Conquest or which did not reach all the Normans he brought over with him as well as they M. I do confess I did not believe there was so much to be said to prove that William the Conqueror never altered the Laws of England in any of its material parts but since you have gone thus far pray proceed to shew me that he any ways confirmed all the Laws of the Saxon Kings his Predecessors since I conceive as a Conqueror he might justly have vacated what of them he would and I do not see any thing in his Coronation Oath that could have obliged him from it F. I doubt not but to give you very good satisfaction in this point for not only your Conquerors Will was never declared that the former Laâ—s should be Abrogated and till such declaration all Laws ought to remain in force even in the Conquest of Christians against Christians according to Sir Ed. Coke's opinion in Calvin's case but indeed the Antient and Former Laws of the Kingdom were so far from being abrogated that they were all confirmed by him for in his fourth year by the advice of his Baronage he summoned to London as the words are in the book of Litch field Omnes Nebiles sapientes lege sud eruditos sut eorum leges Consuetudines audiret Or as Hoveden relates it out of a Collection of Laws written by Glanvil Fecit summoniri per universos Consulatus Angliae Anglos Nobiles sapientes c. and twelve were returned out of every County who shewed what the Customs of the Kingdom were which as Mr. Selden tells us in his History of Tithes being written by the hands of Aldred Archbishop of York and Hugo Bishop of London were with the request of the same Barons confirmed in that Assembly which was a Parliament of that time and then in Hoveden follow the Laws of Edward the Confessor so confirmed by K. William among which is that Law concerning the Office of a King which I have now given you and before this at the very beginning of his Reign he also confirmed the Priviledges of the City of London as appears by his Charter in Saxon which is to be seen at this day which is also confirmed by Ordoricus Vitalis Guliâ—lmus Rex multa Lundoniae postquam Coronatus est prudentâ—r justè clemenâ—â—que disposuit quaedam odipsius Civitatis commoda vel dienitatem alia 〈◊〉 genti proficerent Vniversae Nonnulla quibus consuleretâ—r Ecclesâ—is terrae â—ura quaecumquedictavit optimis rationibus sanxit Iuâ—icium Rectum nulla persona nequicquam ab eo postulavit So that nothing is plainer than that at the beginning of â—worâ—â—eign he strove to oblige all sorts of People as well of the Clergy as Laity to a good 〈◊〉 of his Government M. But yet for all 〈…〉 self have granted that after the time of his Confirmation of these 〈…〉 you cannot deny whether provoked by the frequent 〈…〉 or else resolving to make use of his Right by Conqâ—est 〈…〉 upon the English Nobility and Gentry and outed most of 〈…〉 and forced them to flee into Foreign Countries so 〈…〉 Sword as soon as ever he came to the 〈…〉 whatsoever English he thought might be dangeâ—ou◠〈…〉 notwithstanding his Confirmation of K. Edward's Law he 〈…〉 by Conquest And as for your 〈…〉 Câ—â—querors confirming these Laws the 〈…〉 whether he admitted any of the 〈…〉 consult of the weighty Affairs of the 〈…〉 throughly setled himself on the English Throne especially if it be considered that K. William kept not all the promises which he made at all times Now as your self allow this grant was made in the fourth year of his Reign but he had not then setled himself so well as he would nor had he then made an entire Conquest of the Nation that was not done until after the great appearance of the Natural English in Armes and the great meeting which Frederick Abbot of St. Albans with others headed at Berkhamslead which was not until above four or five years after this confirmation so that your Testimony from the Litchfield Chronicle and Roger Hoveden being before he setled himself as he could and intended to do signifies nothing and that it was from sometime after this transaction that Mat. Paris reckons the thorough Conquest and subduing the Nation as appears by this note in the beginning of the Life of Abbot
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
Wales though it is true he is carried out of England ought to have been immediately declar'd King as was done in the Case of Edward the 3 d. who was so declar'd upon the Deposition or Resignation of King Edward the 2 d. F. Though I grant ever since the Crown has been claim'd by Descent the Law has gone as you have cited it and that Finches Law lays it down for a Maxim I shall not deny but that from the beginning or original of Kingly Government whether we look before or after you Conquest it will appear that the Throne was often vacant till such time as the Common Council of the Kingdom had agreed who should fill it and to shew you I do not speak without good Authority pray tell me if this Maxim had then obtain'd why after the Death of William the First his Eldest Son Robert Duke of Normandy did not immediately take upon him the Title of King of England or at least had done it after the Death of William Rufus who you know was placed on the Throne â—not by Right of Inheritance but by his Fathers Testament confirm'd and approv'd of according to the Antient English-Saxon Custom of Succession by the common Consent of the great Council of the whole Kingdom and yet notwithstanding after the Death of this William Henry his younger Brother succeeded him by the free Election and Consent of the same Common Council and yet that Duke Robert should never in all his Life-time take upon him the Title of King Pray tell me likewise if this Maxim had been then known why Maud the Empress immediately upon the Death of her Father King Henry the First did not take nor yet her Husband the Duke of Anjou in her Right the Title of King and Queen of England though she had had Homage paid her and Fealty sworn to her in the Life-time of her Father as the immediate Successor to the Crown and yet notwithstanding the utmost Title she could assume was that of Domina Anglorum Lady or Mistress not Queen of the English whilst Stephen who had no other Title but the Election of the great Council of the Nation held both the Crown and Title of King as long as he lived As also why Arthur Duke of Britain who according to the now received Rules of Succession was the next Heir to the Crown upon the Death of King Richard the First never took upon him the Title of King unless it were that he very well knew that his Uncle King Iohn had been placed in the Throne by the Common Consent and Election of the great Council of the Kingdom So likewise after the Death of King Iohn why Henry his Son was not immediately proclaim'd King till such time as the great Council of the Clergy Nobility and People had met and agreed to send back Prince Lewis whom they had chosen for their King though not being Crowned he never took upon himself that Title and so chose Henry the Third then an Infant for their King Lastly Why all these Princes viz. Henry the Second Richard the First and Henry the Third who according to your notions were undoubted Heirs of the Crown never took upon them the Title of Kings of England nor are so stiled by any of our Historians till after their Elections and Coronations if it had not been then received for Law that it was the Election of the People and Coronation subsequent thereunto that made them Kings and till this was performed though they might look upon themselves as never so lawful Successors the Throne was notwithstanding esteem'd in Law vacant Therefore as for your Iâ—stance of King Edward the Third 's immediately succeeding upon the Resignation of his Father if you please better to consider of it that makes against you for it is plain from Th. Walsingham and H. de Knyghton that Prince Edward succeeded not to the Crown by Succession but the Election of the great Council or Parliament the words are express Huic Electioni universus Populus consensit and this was also owned by Edward the Second himself who when the Commissioners of all the Estates of Parliament came in all their Names to renounce their Homage to him yet in the midst of all his sorrow he gave them thanks quod Filium suum Edwardum post se Regnaturum eligissent which plainly shews that the Parliament had then such a Notion of a Forfeiture proceeding from his Deposition for violating the Fundamental Laws of the Kingdom that the Eldest Son and Successor could pretend no other Right to it even in the Judgment of the late King himself but what proceeded from their Election M. I cannot deny but what you have now urged from matter of fact may appear very plausible to your self and those of your Notions yet if it be looked closer into I doubt not but the known Laws then receiv'd and the Notions the people had then of a Lineal Succession by Right Inheriâ—ance will prove directly contrary to the matter of fact For you know very well à facto ad Ius non valte consequentia but that all the Princes you mention'd except the three last were really Usurpers and not Lawful Kings I shall let you see by evident Authorities from the Historians of those Times For in the first place though I grant William Rufus succeeded to the Crown by his Fathers last Will which was certainly unlawful as being contrary to the receiv'd Laws of Succession in Normandy as well as England yet was it not by Election of the people as you suppose but by the kindness of Arch-Bishop Lanfranc his God-father and the favour of the greater part of the Norman Barons who came over with his Father as well as out of hatred to Duke Robert his Elder Brother that he was thus made King so that William Rufus claimed as a Testamentary Heir and by reason of that Claim was advanced to the Throne by the Assistance of Lanfranc's and the Bishop's Faction who then swayed the people but yet never owned any Election from them so that if you rightly consider this Story you cannot call it an Election but a Designation or Nomination by his Father William the Conqueror and consented to by the major part of the Bishops and Lords of the Kingdom but not by their Election or Decree as a Common Council as you suppose But that for all this Duke Robert his Brother being assisted by Odo Bishop of Bayenx and Earl of Kent his Uncle as also divers other Norman Lords who being satisfied of his Right raised a War in England against William and great mischief was done on both sides till at last a Peace was made between them upon these conditions among others as Matthew Westminster relates it that because of the manifest Right Duke Robert had to the Crown he should have a Yearly Pension of three thousand Marks out of the Revenue of England and he of the two Brothers that surviv'd the other if he died
nuncios ad Iohannem Ducem Normandiae c. Where you see he calls him no more than Duke of Normandy But to come to the Election of his Son Prince Henry if this be all you have to prove a Divine right of Succession in Henry the IIId I doub it will do you but little service for according to your own principles it must have been lodged some where else than in this Prince For when King Iohn his Father died Eleanor the Sister of Duke Arthur was then alive and died not till the 25 th year of King Henrys Reign a close Prisoner in Bristol Castle as Matthew Paris relates So that it is apparent he could have no such Divine Hereditary Right as you suppose and therefore perhaps his Father to strengthen his Title and to recommend him the more to the Peoples savour appointed him his Successor by his last Testament And Matthew Paris and Matthew Westminster tell us that when King Iohn died Henricum Primegenitum suum Regni constituit haeredem So that it seems there was then no such Hereditary Right for if it had what need had there been of this Testament But for all this Divine Right I do not find that this poor Princess Eleanor had any of the Bishops or great Lords to take her part but all the dispute then was at this great Convention at Gloucester whether they should abjure Prince Lewis whom most of them had before chosen for their Lord and adhere to Prince Henry there present before them as Matthew Paris tells us Erat autem tâ tempestate inter Optimates Angliae fluctuatio maxima cui se Regi committeâ—ent Iuvenine Henrico An Domino Ludovico So that it seems by the relation our Historians give us of this matter it was not from any great sense that the Clergy and Nobility had of the justness of Prince Henry's Title that made them agree to chuse him King but the hatred they then bore to Prince Lewis when they found he had broken his contract with them and put all the strong places of the Kingdom in the hands of French men and treated the English Nobility with scorn and contempt And therefore no wonder if they preferr'd an innocent young Prince of their own Nation who had never been guilty of his Fathers faults before a Stranger whose fraudulent dealing with them they had found not to answer their expectations and therefore Mat. Westminster tells us That Omnes nobiles Terrae in brevi ipsi Iuveni Regi Hemico qui nihil culpae versus tos merueras fideliter adhaeserunt But to prove farther that this King came in by Election and not by Succession appears by what our Historians relate concerning the manner of it Henry de Knyghton in his Chronicle tells us that on the Feast of St. Simon and Iude Henry Son of King Iohn in Regem erigitur viribus industria Gualonis Papâ—e Legati which plainly shews that he was not King before and I desire no better an authority than your own Author Matthew Westminster who says that he was in Regem inunctus anointed to be King which shews that he thought him not so before his Coronation and though I grant Mat. Paris makes the Earl Marshal to begin his Speech with those words Ecce Rex vester as you relate them yet this was no more than an allusion to that place in St. Iohn ch 19. Behold your King it being usual in those days to begin their Speeches with a Text of Scripture So that the Earl did not intend to be understood literally for then he should have in this Speech contradicted what he had said bâ—fore for though to prepossess their minds he says of the young Prince there present Behold your King Yet it is plain that how much soever he thought the Kingdom his right yet that it could not be conferred upon him without their choice as appears by these words which you your self have made use of viz. You ought to chuse him to whom the Kingdom is due And it is evident by the assent which the whole Assembly gave to the reasons declared by him in this Speech that it was their choice alone that made him King their Votes being given in these words Fiat Rex which had been altogether needless had they looked upon him as King already And therefore the Speech of Hubert de Burgh which you mention may very well be reconciled to this Hypothesis of supposing a necessity of an Election and Coronation to confer a full and legal right in those times For when he said That the King if dead had yet left behind him Children who ought to succeed him This if strictly taken is altogether false for Eleanor the true Heiress of the Crown according to your rule of Succession was then alive But if taken in a limitted sense is true that is the Children ought to succeed if the great Counsel of the Nation thought fit without whose consent though they might have Ius ad rem yet had they not Ius in re This Election and Coronation being then looked upon as Livery and Seisen at this day is to an Estate in Fee without which though the writings are sealed and delivered the Land will not pass To conclude I pray answer me that question I have so long put though without any reply viz. why before this Election and Coronation was perform'd none of those Princes that came to the Crown by your supposed Right of Succession are call'd by any higher Title than Dukes of Normandy or Earls of Poictou So that from what has been here said I think it plainly appears that no less than seven of the eight Princes from your William the Conqueror reckoning him for one to King Henry the III. have owed their Title to the Crown not to any right of Succession but either to the Election of the People alone or else to the will or designation of the last King confirm'd by the general consent of the People given thereunto and without which it would not have been good according to the ancient custom of the English Saxons before your Conquest where besides the Testament of the King deceased there was also required the consent or Election of the great Council So that you see here was no alteration made in the form of our chusing our Kings after your Conquest from what it was before for no less than seven or eighâ— descents and when you can answer this I shall then come over to your opinion M. In answer to your Question I shall not deny but that all our Historians give all the Kings you mention no higher Titles than Dukes of Normandy or Earls of Poictou before their Coronations which though I suppose they might do from a foolish superstition of that Age which made them fancy that none were properly to be called Kings until they had been Anointed and solemnly Crown'd by a Bishop yet that they looked upon them as Kings indeed appears in that they
it But as for King Iames himself I desire to know of you what trust there can be put in him or what assurance he can give us for the maintenance of our Religion and Civil Liberty more than the renewing of those Promises and that Oath which he has already broken this being most likely to be the consequence of things if King Iames prevail I shall leave it to your self or any indifferent person to judge if what I have undertaken to prove be not as clearly made out as future things are capable of and are sufficient to deter any Man that loves his Religion or Country from joyning in such pernicious Designs M. I confess you have made a long and tragical Narration of the dreadful consequences that may follow both upon our Religion and Civil Liberties if the King prevail by the present assistance of the French or Irish Arms and were I sure of all this I should so far agree with you as to this point as never so joyn with them for the Kings return and yet for all that I can never look upon my self as freed from that Allegiance I owe the King as well by being born his Subject as from the Oath I have already taken to him and his Heirs as long as they are in being for I think I have already prov'd as well from Law as Reason That first the Bond of Allegiance whether sworn or not sworn is in the nature of it perpetual and indispensable Secondly that it is so inseparable from the relation of a Subject that although the exercise of it may be suspended by reason of a prevailing force whilst the Subject is under such force viz. where it cannot be imagined how the endeavour of exercising it can be effectually serviceable to restore the Sovereign power to the right owner for the establishment of that publick Justice and Peace wherein the happiness of Common-wealths consists yet no outward force can so absolutely take it away or remove it but that still it remaineth vertually in the Subject and obligeth to a vigorous endeavour whenever the force that hindereth it is over to the actual exercise of it for the advantage of the party to whom of right it is due and the advancement of the common good thereby upon all fit occasions Thirdly That no Subject of England that either hath by taking the Oaths of Supremacy or Allegiance acknowledged or that not having taken either Oath yet otherwise knoweth or believeth that the true Sovereign power in England to whom natural Allegiance is due is the King his Heirs and Lawful Successors can without sinning against his Conscience take any new Oath or do any other act whereby to transfer his Allegiance from the King or his Heirs to any other party who have no right to it and thereby put himself into an incapacity of performing the Duties of his bounden Allegiance to his Lawful Sovereign when it may appear to be useful and serviceable to him This is the express Opinion of the Learned Bishop Sanderson in his case of Conscience concerning the lawfulness of taking the Engagement which though he did not think absolutely unlawful because it might be interpreted in a dubious and qualified sence without abjuring the Kings lawful right to the Crown yet cannot this new Oath be taken in the like doubtful sence because as I have already prov'd the words in the Oath being to bear true Allegiance to King William and Queen Mary would be indeed a transferring of our Allegiance from our lawful Prince to others which is absolutely unlawful F. I am somewhat pleas'd to see you are so far come off from your bigotry as not to think your self bound to assist for the restoring King Iames as long as it is no otherwise to be done but by the evident destruction of our Religion and Civil Liberties but yet you say you cannot take the Oath because it is Bishop Sandersons Opinion as well as that of our best Lawyers that Allegiance is perpetual and untransferrable to another whilst the King or his Heirs are in being Which let me tell you speaking as a Lawyer since it may well be proved from this Statute as from the constant practice before that time that Allegiance was due to the King de facto and that by the judgement of all the Judges in the Reign of Edward the IVth but to speak of this matter either as a Civilian or a Divine I think we are freed from the former Oath both by the Law of Nations as well as the Law of God For as for natural Allegiance by which you suppose a man is indispensably Subject to the King in whose Territories he is born and that as long as he lives I can by â—o means understand that being born in a Country makes one a Subject for all his life to the Government of that Country or why being when born in a Country it should make one become a Subject more than being in the same Countrey at another time Besides common experience shews this to be false because whoever is born in a Country where his Parents are Foreigners may as it is allow'd by all leave that Country when he pleaseth but perhaps iâ— may be said he is a Subject to that Prince where his Parents were born but what if they were born under the same Circumstances or suppose his Parents are of different Countries as if a Dutch Woman and an English Man have a Child in France since France does not pretend to him which of the Nations can claim him for their Subject or must he be divided So that I can see nothing at all in this notion of natural Allegiance that can oblige any body in Conscience to observe it M. If then Natural Allegiance signifies nothing pâ—â—y tell me is no body oblig'd to obey the King or not to plot against him until he has taken an Oath of Allegiance to the contrary this would make mad work indeed and upon these Principles no man were bound to obey the King or his Laws and not to conspire against his Person or Government untill he had taken the Oath of Allegiance so that three parts of four of the Kingdom would be absolutely free from this great duty F. No Sir you are very much mistaken since I think I can found Allegiance to the King and Government upon a much firmer foundation than that of being born his Subject that I am so far from supposing that our obligation commences from our taking the Oath of Allegiance that though I think it may serve to inforce our former obligation to our King and Country yet does it not super-induce any new obligation thereunto for indeed our obligation to any particular Government may be made out from much surer Principles viz. That every person though he be born free yet is he for the sake of his own safety obliged to part with his liberty and put himself under the protection of some Government nor can he be
Powers under other Titles such as the Rump Parliament under the Title of a Common-wealth or Oliver Cromwell under that of a Protector who though they took upon them to Protect the People after a sort in their Lives and Estates yet since it was not according to the true Rights and Priviledges of the Subjects of this Nation which they highly violated and in some points quite destroyed and that they also took upon them this protection without the free consent of the lawful Representatives of the Nation Assembled in a full and lawful Parliament I can by no means allow them to have given the People such a true and legal Protection as the Law requires to constitute a true and perfect Allegiance or can make them to be the Supream Power of the Nation and within the Statute of the 25th of Edward the Third so that this Statute and that of the 11th Henry the Seventh must be our Rules in this Case But I cannot but smile at the expedient you have found out to hinder the People of this Nation from being ruin'd if they do not take the Oath of Allegiance to their Majesties which is by a general and absolute refusal of it and this you suppose if unanimously agreed on would hinder them from suffering any thing by this their refusal and you think they are also strong enough to oppose it because the King has only a small Army of Foreigners which he still maintains here and this you think may lawfully be done because their Majesties do not claim by Conquest but by the Election of the Convention and therefore that this Case does not come up to that of the Subjects of Flanders and Holstein in which Argument I doubt not but to shew that every one of your suppositions are false for though the Nation is not Conquer'd yet it is certain that all privaâ—â— Subjects are under as great a restraint by this legal change of the Government as if they were in the power of a Conquerour for to resist would be equally fatal to them in both cases and there is no visible Power nor Authority that can defend them against the present Power in case they should go about to refuse this Oath when it is offer'd to them and therefore though I grant the King 's standing Army of Foreigners is but small in Comparison of the whole Nation since he does not intend to keep us in Subjection by force but only to hinder any sudden Insurrection of those of your Party yet besides all this God be thanked their Majesties have the main body of the Common People of the Nation on their side who are sufficiently able to destroy all those that shall go about to make those vigorous efforts you so much desire so that you have nothing else to plead but that which I hope never to see that we are not under a force because we still entirely enjoy our Religion Liberties and Properties and though the King out of his great goodness and modesty did not think fit to insist upon his Title by Conquest over King Iames and his Adherents yet I think I have already prov'd at our last Meeting that he may as justly claim by Conquest as his Name-sake William the First since he came not over to Conquer the Nation but to vindicate his former right and after his Conquest of King Harold could have no just Title to the Crown till he had been solemnly elected and recogniz'd for King according to the Laws and Customs us'd at that time and why the Nation might not do the same thing now for their Deliverer from King Iame's Arbitrary Power I should be glad if you could shew me a sufficient reason but if the whole Nation should have been as pevish and discontented as those of your Principles and should not look upon the King as their Lawful Sovereign because he does not claim by Conquest it would be altogether as grateful and reasonable as if a Woman having by the assistance of an honest Gentleman been rescu'd from being ravish'd and he afterwards falling in love with her himself should Court her to Marry her she should refuse him because he had not ravish'd her when he might or at least have forced her to Marry him whither she would or no apply this Comparison to the Case in dispute and see if it does not hold and therefore I must still maintain that the parallel Cases of the Subjects of Flanders and Holstein are still good as to those of your Opinion who have no notion how Allegiance can be transfer'd unless by perfect force and Conquest since if you please to desire it I 'll undertake the Government shall seize upon your Estates and Imprison your Persons till you do take the Oaths as the Kings of France and Denmark did those that refus'd to swear Allegiance to them M. I have heard you a great while upon this Subject and I wish I could say I were fully satisfied with your Reasons however since it grows late I will not dispute this Point any farther but will take time to consider what you have now urg'd but only I must needs tell you thus much I could wish that Princes could find some other way of securing themselves of their Subjects Fidelity besides this test of an Oath of Allegiance which serves as a snare to many pious and conscientious Men whereas those of none or at least of very loose Principles will swallow any Oath that can be imposed upon them and I am sorry to see so many of those who I know are in their hearts of my Principles prevail'd upon to take it not out of Conscience but meer Worldly interest and advantage and whom I am satisfied will never serve this Government the more heartily or sincerely for having taken it and therefore to tell you the truth I begin very much to incline to Grotius's Opinion that promissary Oaths are absolutely unlawful yet considering the several changes and turns of Government which we have seen in England for above forty years last past I am so far for the good and happiness of my Country as to think every true English Man oblig'd so far to obey the Powers in being as may tend to the common good and defence of the Nation by the administration of Justice between Man and Man and in the punishment of Offenders and for defence of the Nation against Foreign Enemies But sure methinks this might very-well be done without the imposing any Oath at all either upon Magistrates or Officers and much less upon ordinary Subjects since if they are perswaded in their Consciences that it is Lawful to act under this present Government let them do it if they will but a for the Common People I confess they are so stupid that they have seldom any other measures of the justice or lawfulness of any Government or Princes Title than the ease or advantage they find by it and therefore upon the whole matter I think it were much better for