and in all the Statutes of Praemunire made by Edward the Third the King's Soveraignty independent from the See of Rome is expresly Asserted and the Statute of the 16th of Richard the Second expresly declares That the Crown of England hath ever bin so free that it is under no Earthly Subjection but immediately subject to God in all things touching the Regality of the Crown and to no other And the Statutes of the 24th and 25th of Henry the Eighth expresly declare That this Realm of England is an Empire Governed by one Supream Head and King and the Crown or Royal Authority is also thereby declared Imperial and the Kings of England are therein Stiâ—ed Kings or Emperors of this Realm So that I think no Man needs to doubt where the Supream or Soveraign Power of this Kingdom resides F. I will not deny any of those Authorities you have now made use of Since Titles alone are no proofs of Power for it is very well known that the Germane Emperor yet notwithstanding that great Title is not therefore Vnaccountable or Irresistible Since the Colledge of the Princes Electors may Depose him for Male-administration or for Violating any of the Fundamental Constitutions of the Empire And Mr. Selden hath very well observed in his Titles of Honour that this Supremacy or Freedom from all Subjection is not only challenged by our English Soveraigns but also by the Kings of Denmark Sweden and Poland The former of which yet was so far from being an absolute Monarch that before the Reign of this King's Father he might have bin Deposed for Tyranny for Misgovernment by the Estates of the Kingdom as the King of Poland may at this Day And therefore these Titles may indeed prove a Freedom from all Foreign Jurisdiction but doth not prove that the King is Endued with an Absolute Soveraign Power within the Kingdom as you may see in these Examples I have now given you M. If you are not Satisfied with these Proofs I doubt not but to give you other Authorities both out of Antient and Modern Lawyers as also Acts of Parliament which sufficiently declare where the Supream or Soveraign Power Resides In the first place I suppose you will not deny but that it hath bin the Prerogative of the Kings of England time out of mind to Coâ—â— Money Dispose of all Offices and Create new Dignities as he should think fit as also to make War and Peace to make Laws and in short to do all things whatsoever that are Essential to a Monarch and that he alone is the Sole Soveraign Power in this Kingdom Exclusive of all others Our Ancient Lawyers Glaâ—vil and Fortescue plainly declare The former of which says thus Rex nullum â—abâ—re potest parem multò minùs Superiorem The same thing is also repeated by Bracton and a very good Reason given for it in these words Omnis quidem sub eo ipse sub nullo nisi tantum Sub Deo parem non habet in Regno Suo quia Sic amitteret praeceptum cum par in parem non â—abeâ— Imperium Item nâ—c multò fortius Superiorem nec Potentiorem habere debeâ— quia sic esset inferior sibi Subjectis inferiores pares esse non possunt potentioribus F. But pray read what immediately follows Ipse autem Rex non debet esse Sub bomine Sed Sub Deo Sub Lâ—ge quia Lex facit Regem attribuat igitur Rex Legi quod Lex attribuit ei viz. Dominatiorem Potestatem non est enim Rex ubi dominatur Voluntas â—on Lex And though I grant the King is Subject or Inferior to no particular private Man Yet that he hath a Superior or Master within the Kingdom besides God and the Law and so is not the Sole Supream Power appears by a Passage out of the same Author in the Second Book Rex habet Superiorem Deum item legem per quam factus est Rex item Curiam Suam viz. Comites Barones quia Comites dicuntur quasi Sociè Regis qui habet Socium habet Magistrum ideo si Rex fuerit sinâ— froena i. e. Lego debent ei froenum ponere From which words it seems apparent to me that this Author thought the King was not only Inferior to the Law but was also to his Court of Parliament called here Curia Baronâ—â— who might Bridle or Restrain him if he Transgres't the Laws which are here called the King's Briale Nor can I conceive how this could be done without some kind of Force or Constraint if he refuse to receive this Bridle they would lay upon him M. I do not desire at this time to enter upon this Question concerning that Power which I know some Parliaments have pretended too of Câ—â—bing and Resisting the King by force if they supposed He Invaded the Fundamental Rights and Lâ—bâ—râ—ies as they call them of the Nation and that foâ— two Reasons First because it is not pertinent to our present purpose of proving that the King is not the Sole Supream Power as also because you very well know that both Houses did in 13 Car. 2. by an Act of Parliament concerning the Militia Solemnly Renounce all Coercive Power over the King or any Right in either or both of the Two Houses of making Offensive or Defensive War against him But if you have a mind hereafter to course further on this Subject I doubt not but to prove to you from divers other Passages out of Bracton and that old Treatise called Fleta that it was no Political Superiority in the Curia Baronum but only a Directive Power or moral Superiority which they had of Advertizing the King of any Arbitrary Proceeding or Injustice he should happen to do and by Complaint Admonition and Entreating to impose upon him to amend the same according to his Oath but not by Coaction or Constraint And in this Sense they may be said in a Moral way to put the Bridle of the Law upon him which may be called Civil Resistance but as for Military Resistance against an Unjust King it is as Inconsistent with our English Government as with any other Monarchy in the World But you very much mistake if you suppose that the King of England is not Supream because he is Limited by Laws which realy is no Objection Because a Soveraign without any Diminution to his Soveraignty may be limited in the Exercise of his Soveraign Power either by his own Acts or Condescensions or else by those of his Predecessors under whom he claims This is so certain that there is no Supream Power in Heaven or in Earth which is not limited and confined in the exercise thereof Thus the Omnipotent Power of God himself is limited by his own Wisdom Goodness and Justice which are himself So likewise the Powers of all Absolute unlimited Monarchs are only so comparatively with respect to positive Laws but as for the Laws of God and Nature which
England and Scotland there was no difference in Point of Priviledges as to being taxed or having Voices in the great Council of the Kingdom between the higher Nobility such as had the Titles of Dukes Marquesses and Counts and simple Gentlemen whereas in England it has been always otherwise at least since the Conquest and the Earls and Barons had by 〈◊〉 Tenures Places as Lords or Peers in the great Council of the Kingdom and so made a distinct Body from the rest of the People whereas in other Countreys the higher Nobility and Gentry are reckon'd as all one Estate and therefore it was but Reason that the rest of the Inferior Nobility or Gentry should have their Representatives in this great Council or Parliament or otherwise they would have been as very Vassals as to their Estates to the great Barons and Tenants in Capite as the Boors in Germany or the Paisants in France were to their Lords by whom they were taxed aâ— their Pleasures which they never were in England as we can find either from History or Records So that tho I grant that it is the municipal Laws of each Kingdom or Nation that must determine what are the governing part of the People in those Countreys yet tho that was not absolutely the same in all of them as it is in England yet we find it so in the main and the Representatives of the Cities and Towns do sufficiently assert the Right of the Plebians or Common People who make the 3d Estate in those great Councils But I must here except Sweden in which it is certain that the meer Rusticks or Boors had always their own Deputies in their Dyets as well as the Cities and Towns and if Sweden had this priviledge I cannot see why the English Gentry and Yeomanry who make but one body of Commons might not have had the like till you can shew me more sufficient proofs to the contrary M Well Siâ— I shall consider of what you say but since it grows late that we may wind up this Conversation as fast as we can give me leave to tell you that tho' I should admit all that you have hitherto averred for truth and that we should grant the Commons of England to have been as ancient a part of the great Council or Parliaments as any of the other two what is that to the main Point in question between us viz that of Non-resisâ—ance of the King upon any account whatsoever or how can you justsfie those of the Clergy Nobility and Gentry of the Church of England for taking up Arms against the King and contributing so much as they have done to the driving him away and in bringing things to this confusion they are now in since let your Constitution of great Councils and Parliaments be never so ancient let us also for once suppose them as you do to have a share in the Legislative Power of the Nation yet how can this authorize them much less any private persons out of Parliament to take up Arms against the King or those commissioned by him since the whole current both of Common as well as Statute-Law runs directly against you and all with one consent assert that the disposal of the Militia or Military Force of the Kingdom has been even so absolutely in the King's power and at his disposal that no man can without being guilty of Treason take up Arms whether offensive or defensive without his Commission to authorize him to do it so that no Government in the World is more averse to all forcible Resistance than our own the King having been even from your time beyond memory so fully possest of the whole Militia or power of raising offensive or defensive Arms in this Kingdom that it is expresly forbid by the Statute of the 7th Ed. I. against coming to Parliaments and Treatises with force of Arms in which the King sets forth That in the last Parliament the Prelates Earls Barons and the Commonalry in Latine Communitas or Body of the Realm have said that to us i e. to the King it belongeth and our part it is through our Royal Seignâ—ury to defend that is in old French to forbid force of Armour and all other force against our Peace at all times when it shall please us and to punish them according to our Laws and Vsages of our Realm and hereunto they are bound to Aid us as their Soveraign Lord as oft as need shall be From whence you may observe that it is the King's Prerogative to forbid all manner of Arms or Armed force within the Realm so that no man can lawfully Arm himself without his Authority And this is further confirm'd by the Statute of 25 Ed. the Third concerning Treasons wherein it is declared without any excepted Cases to the contrary That to Levy War against our Lord the King in this Realm or to be adherent to the King's Enemies in his Realm giving them Aid or Comfort in the Realm or elsewhere is Treason And Sir Edward Coke upon this Statute saith thus That this was High Treason before by the Common Law for no Subject can Levy War within the Realm without Authority from the King and if any man Levy War to expulse Strangers to deliver men out of Prisons to remove wicked Councellors or against any Statute or to any other End pretending Reformation on their own heads without Warrant this is Levying of War against the King because they take upon them Royal Authority From which Statute as also from your own Oracles Sir Ed. Coke 's Interpretation of it you may observe that it is not only Treasâ—n to make War against the King's Person but to take Arms to make any Reformation or Alteration in Church or State without the King's Authority nor can any Subject of England justifie the taking Arms upon any account whatsoever unless it be by the King's Commission and therefore all the Judges of England in the Case of Dr. Story who was Executed for Treason in the Reign of Queen Elizabeth did with one consent agree that the very Consultation concerning making War against the Queen shall be interpreted a making War against her Person and supposes a design against her Life So that nothing seems plainer to me than that by the Ancient as well as Modern Laws of England all defensive as well as offensive Arms are expresly forbidden and condemned F. I think I shall be able to make out notwithstanding what you have now said that all Resistance of the King or those commissioned by â—im is so far from being Treason as you suppose that it is every mans duty to oppose him in case he goes about to set up instead of a Legal Monarchy a Tyrannical Arbitrary Power in this Nation since this is but to preserve the Original Constitution of Parliaments which in some cases cannot be maintained without such a Resistance be allowed But to proceed to the Authorities you bring from our Statutes as for the first you urge
from that 7th Edward the First I think that can by no means do the business for which you design it for in the first place this is only Declaration of the Bishops Lords and Commons of the Land that it belongs to the King to defend i. e. forbid all force of Arms but mark Sir what force sure it is only meant of such Force as belongs to the King's Prerogative to forbid viz. force of Arms against the Publick Peace and such as he might punish according to the Laws and Usages of the Realm and therefore the Statute expresly declares that as Subjects they are hereunto bound Aid him their Soveraign Lord the King at all times when need shall be but does this Act any where say that he hath an Irresistible Power to disturb this Peace by his own private Illegal Commissions or that any men are bound to assist him in it or because for example he hath Authority to punish all men according to Law that shall come to Parliaments with force of Arms that therefore he hath an unlimited power of raising what Forces he would and in prisoning or destroying the whole Parliament if he pleased and that no bodâ— might resist him if he had gone about so to do The like may be said if the 〈◊〉 should notoriously and insupportably by force invade all the Civil Liberâ—â—â—â— and Properties of his Subjects by Levying Taxes and taking away theâ—r Estates by down-right Force contrary to Law now can any body in his senses believe that the Act of 25th of Ed. 3. was made to prevent all Resistance of suâ—h Tyrannical Violence and that the Resistance of those Forces whether forreign or domestick that might be sent by the King 's private Commissioners to murder or enslave us is making War against his Person or that it comes within any of the Cases expressed in that Statute and therefore cannot fall within the compass of Sir Edw. Coke's Comment upon this Staâ—ute all the offences therein specified being Treasâ—ns at Common Law before that Statute was made nor is the Reformation there mentioned to be understood of a just and necessary Defence of our Lives Liberties Religion and Properties as setled and established by the Laws of the Land to be looked upon as making War against a weak or seduced King but is rather in defence of him and the Government by opposing Tyranny which will certainly bring both him and us to Ruine at last so the Reformation he there mentions is only to be be understood of such Insurrections and Rebellions as have been made under the meer pretence of Religion or obtaining greater Liberties for the common sort of People than they had by the Law of the Land such as were the Rebellions of Wat Tyler in King Richard the Second and Mortimers in Hâ—â—ry the 6th Reigns not to mention the other Rebellions raised by the Papists in the times of King Henry the Eighth Edward the Sixth and Queen Elizabeth's Reigns all which being begun by Seditious or Superstitious men were certainly rank Rebellions and so are and ought to be esteem'd by all good Subjects M. I grant these pretences seem very fair and specious yet notwithstanding this your pretended right or a necessity of Resistance of the King or those commissioned by him in case of Tyranny has been still looked upon as Rebellion in all Ages and the Actors dealt with accordingly where ever they were taken F. I do not deny but as long as Arbitrary and Tyrannical Princes could get the better of it and keep the Power in their own hands they still Executed for Traytors whosoever opposed or resisted their wicked and unjust Actions tho' they were never so near Relations to them thus both Edward and Richard the Second put their Uncles the Dukes of Lancaster and Gloucester to death meerly because they joyned with the rest of the Nobility and People to prevent their designs So that it is not the Execution of the Man but the Cause that makes the Traytor since Princes are seldom without a sufficient number of Judges and Jury-men to condemn whomsoever they please to fall upon But that the Clergy Nobility and People of England have always asserted this right of Self-defence in case their Liberties and Properties were uniustly invaded by the Tyrannical or Arbitrary Practices of the King or those about him I think I can prove by giving you the History of it in so many Kings since your Conquest as will render it indisputable if you please to give me now the hearing or else to defer it till the next time we meet M. I confess I was so weary of sitting up so long at our last Conversation that I made a Resolution not to do so any more and therefore since it grows late let us leave off now and I promise to meet you here again within a night or two and then I will hear how well you can vindicate your right of Resistance from Law or History but if you have no better proofs for it than the Rebellion of the Barons in King Iohn and Henry the Third's Reigns you will scarce make me your Convet since Impunity does never sanctifie a wicked action or render it the more lawful and you have already given it me for an Axiom that a facto ad Ius non valet consequentia F. I accept of your Appointment with thanks but pray do not forâ—judge my Arguments till you hear them and as for the Axiom I allow it for good provided I may urge it in my turn but in the mean time I shall wish you good night M. And I the same to you FINIS Bibliotheca Politica OR A DISCOURSE By WAY of DIALOGUE Upon these Questions Whether by the ancient Laws and Constitutions of this Kingdom as well as by the Statutes of the 13th and 14th of King Charles the II. all Resistance of the King or of those commissioned by him are expresly forbid upon any pretence whatsoever And also Whether all those who assisted his present Majesty King William either before or after his coming over are guilty of the breach of this Law Collected out of the most Approved Authors both Antient and Modern Dialogue the Ninth LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford Arms where also may be had the First Second Third Fourth Fifth Sixth Seventh and Eighth Dialogues 1693. Authours chiefly made use of in this Dialogue and how denoted in the Margin Dr. Sherlocks case of Resistance S. C. R. Mr. Iohnsons Reflections upon it I. R. S. Dr. Hick's answer to Iulian Intituled Iovian H. I. I desire the Reader to remember that whenever I make use of the word People in this or the following Discourse I mean thereby the whole diffusive body of the Nation consisting of the Clergy Nobility and Commons The PREFACE TO THE READER I Must beg your pardon if I have exceeded my intended design in the Preface to the first of these Dialogues of reducing what I had to say on the
in French hauz Homes Comun de la Terre shall rise against them to grieve them to the utmost of their power and shall be obedient to them in nothing and in doing all things as if they were bound to them in nothing until these things shall be amended and maintained according to the Ordinance of the Peace aforesaid and to this our Lord the King and Monsieur Edward and the great Men of the Kingdom have sworn upon the holy Gospels to keep and maintain the things aforesaid And with this Record agrees this King's Latine Charter much to the same purpose recited in the Annals of Waverly An. 1264. only the words there are more general that if the King or Prince should break the said Peace by hurting or falling upon any of the said Earls of Leicester or Gloucester or any of the Persons above-mentioned Liceat omnibus de Regno nostra contra nos insurgere ad gravamen nostrum opem operam dare juxta posse ad quod ex praesenti praecepto nostro omnes singulos volumus obligaâ—i fideliter homagis nobis facto non obstante So that you see here that by the Judgment of the King himself and the whole Parliament this Resistance might be exercised notwithstanding the Homage they had done him And this is that Form of the Peace which I have before cited to you to have been made as appears by a Writ to the Sheriff of Yorkshire to be seen upon the same Roll and in the same Membrane unanimi consensu voluntate nostra Edwardi filii nostri Primogeniti Praelatorum Comitum Baronum Communitatis Regni nostri c. which Doctor Brady thought fit to conceal and not publish with the former Record because the word Communitas did not at all suit with his Notions in this place M. I must confess this so solemn an Agreement upon the Record would have been very considerable had it been made whilst the King and Prince had been free and in their own power whereas the Dr. has made it plainly appear that the King and Prince were at this time in the power of Simon Montfort and his Adherents who called that famous Parliament of the 49th to which we suppose the Commons were first summoned and therefore the Prince was not delivered at this time any more than the King his Father out of their power and was only taken out of Dover Castle and made a Prisoner at large under a Guard as his Father was until he made his escape from his Keepers at Hereford Castle So that I do not at all value this Agreement because made by duress tho' I confess the words of the Records are express that it was de unanimi coâ—sensu voluntate nostra c. Edwardi Filii nostri But it appears plainly that by this Agreement the King had discharged himself of all Royal Power and confirmed this Agreement whereby the whole Government of the Kingdoms and Nomination of all the great Officers of the Crown was put into the hands of Nine Earls and Barons F. At this rate no Act that a King can do when he hath the worst of it tho' confirm'd by a Solemn Oath as this was upon the holy Gospels can ever be binding for it is but alledging that it was done by duress and it is sufficient to render it null and void But be it as it will this was certainly the general Consent Act and Declaration of the whole Nation assembled in Parliament and that owned by the King himself and his Son the Prince and all his Party And farther that this Resistance of the Earl of Gloucester who was one of these Barons was not after counted for Treason or Rebellion appears by that Pardon of the said Earl which we have before cited to have been made by this King with Assent of the King of Almaine his Brother and the Counts and Barons and Commons of the Land in which he pardoned the said Earl and all his Company and also all the Londoners all rancour and ill-will and in the same manner as the King quits and discharges the Earl and his Company so does the said Earl hereby for himself and all his Company remit to all those that were of the Party of the King any thing done since that moment that is that Civil War in which the Earl of Gloucester had so great a share so that you see this Resistance of the Earl of Gloucester was within two years after the Battle of Evesham so far from being looked upon as Rebellion that the Pardon is made mutual not only for the Earl and those that followed him but also for those that had taken the King's part But I shall come now to his Son and Successor King Edward the First where we shall find this Doctrine of Resistance asserted more than once not only by private men but by the whole Parliament as appears by those Letters that were written by the King's command or permission at least in the 29th of his Reign in the name of all the Earls Barons tota Communitas Angliae to Pope Boniface the Eighth in vindication of the King's Superiority over Scotland to which you will find this remarkable passage Nec etiam permittimus nec permittemus sicut non possumus nec debemus praemissa tam insolita indebita praejudicialia alias inaudita praelibatum Dominum nostrum Regem etiam si vellet facere modo quolibit attemptare Which restraint of the King's Will must certainly mean some what more than a bare Remonstrance or Declaration against it since we have seen in our own Times Kings make nothing of meer verbal Declarations of the Two Houses of Parliament if they had a mind to do a thing they thought belonged to their Prerogative tho' the Parliament declared against it And to let you farther see that this Doctrine was at this time generally believed and practised all over Europe you will find almost the same Clause in the Letters which were written in the Reign of Philip the fair King of France Anno 1203. which falls about the 30th of our King Edward the First and were sent to the same Pope Boniface upon the occasion of his manifold Usurpations upon the Church of France in the name of the whole Clergy of that Kingdom whereby it not only appears that this was done in a general Assembly of Estates viz. of the Clergy Barons c. Communitates Villarum but they also there declared expressius viva voce Quod si praesatus Dominus Rex quod absit toleraâ—â— vâ—l dissimulaâ—e veilet Ipsi scil Episcopi Barones c. nullotâ—nus sustinerent So that here you see not only the Temporal Estates but the very Clergy declare that they would by no means suffer the King to act thus no not if he would But the Barons and People of England did actually put this Doctrine in Execution some few years before
together with the Bishops of Winchester and Ely with divers other Earls Bishops and Lords then in Town had sent an Address to the Prince immediately upon the Kings departure and sent three Lords and one Bishop with it desiring his Highness to come speedily to London and to take the Government upon him and having before declar'd that they would with their utmost endeavours Assist his Highness for the obtaining of a Free Parliament so that the Prince had no reason upon the Kings return to Surrender that Power which the Nation as far as it was able to do without a Parliament had put into his Hands and that to a King whom he had very little reason to believe would use it any better than he had done before But I see you wilfully decline entring into the Merits of the Cause and arguing the main point in the Controversy viz. whether the King was in a State of War or Peace with the Prince upon his return for if he were still in a State of War the Prince might certainly very well justifie his clapping up the Earl of Feversham his Late Majesties General for offering to come within the Limits of the Princes Quarters without his leave especially since he was still answerable for doing his endeavour to Disband an Army a great part of which consisted of Papists and Forreigners with their Arms in their hands whereby they might have robb'd and spoyl'd the Countries or at least have kept those Arms to renew the War again with the first Opportunity so that certainly it could not be so slight a thing as a bare Invitation to St. Iames's whither the Prince could have gone without his leave being now Master of the City which could so far efâ—ace all the Princes just Resentments and make him so far confide in the Kings Word as to come to London whilst he remained there with his Guards and all those Papists and Tories in and about London ready to take his part and Rallie again into a new Army upon the first Signal But as for any Proposals of Peace or Accommodation which you say the Lord Feversham brought with him I neither know nor have heard of any such thing 't is true the King says in the said Paper he left behind him that he had writ to the Prince of Orange by the Lord Feversham and also mentions some Instructions he had given him but what they were he does not tell us but sure they were not Propositions of Peace since it is to be supposed that the King would not have sent any thing of that Consequence without first acquainting the Privy Council with it before it was sent But since we hear of nothing concerning them we may very well suppose there was no such thing or if there were his Highness was the fittest judge whether they were reasonable or not and if the King had any desire to propose any Just or Reasonable Terms whereupon he might have hoped to have been restored again to his Royal Dignity he had a very â—air Opportunity for it when a great Council of the Nobility were met at St. Iames's in Order to Sign an Association to stand by the Prince in the Calling of a Free Parliament for the King might then if he had pleased have made his Proposals by such of the Lords and Bishops as he could most confide in and have Conjured all the Peers there Assembled to have interceeded with the Prince of Orange to renew their Treaty with the King which had been before unhappily broken off and then if either the Peers had refused to do this or the Prince had refused to hear them the King might then I grant have had sufficient reason to declare to all the World that he was not fairly dealt with but for him again to go away only upon pretence that his Person was under restraint when really it was not plainly shew'd that he had no real design of making an amicable end of those differences or really desir'd to be restored to his Throne by the general consent of the Nation but either hoped for it from those Civil Dissentions he expected we should fall into upon his departure or else to the Arms of France and this being the Case I think nothing is plainer than that the King both by his first and second departure hath obstinately refused all those means whereby the Nation might have been setled with a due consideration of his Person and Authority whilst he lived and of the Prince when his Legitimacy shall be sufficiently proved and made out before a Free Parliament So that since I have already proved that the King had before the Princes Arrival committed so many Violations upon the whole Constitution of the Government and that these Violations if wilfully and obstinately persisted in do at last produce an absolute loss and forfeiture of the Crown it self I think the late King has done all that could be required to make it so But I have forgot to answer one Objection you made viz. that the Peers and Bishops when they invited the King to return to White-Hall had no Notion of this forfeiture nor the people of London who you say received him with great Joy and Acclamations and that therefore it is wholly a new invention To this I Answer that if the Lords you mention did send this message to the King it might be because they were surprised with his unexpected return and had not well considered all the Circumstances of the Case and thereby did more then they could well justifie having before declaed they would stand by his Highness in procuring a Free Parliament which must certainly be without the King since he was then gone away and they had also invited him to come to London as well as the City and how that could consist with their inviting the King thither without the Princes consent I do not well understand but it seems they quickly altered their Sentiments as appears by their presently after Subscribing a paper in the nature of an Association to stand by the Prince without taking any notice at all of the King and the very day of the Kings departure they met to consider upon the Princes Speech he had a day or two before made to them desiring them to advise on the best means how to pursue the ends of his Declaration in Calling a Free Parliament and within two days after they presented the Prince with their Advice to call a Convention on the 22th of Ianuary which was also the next day agreed to by one hundred and sixty Persons who had served as Knights Citizens and Burgesses in any of the last Parliaments in the time of King Charles the Second without taking any notice at all of the King for though it is true he was then gone away when the Commons and City two or three days after made their Addresses to the Prince Yet when the Peers met both the first and second time on the 21st and 22d of December he was
with the Power of all such Masters of Families or Freemen taken together may for the sâ—me end viz. the good Government and Peace of â—heir Families and Commonwealths make Laws under no less a Penalty than Death it self against such offences as by the Law of Nature do not deserve it since without such a Power the wickedness of Man being come to this height it is no Family or Commonwealth could be long preserved in Peace or safety And therefore I suppose you will not affirm but that such a Master of a Family may very well inflict any punishment less than Death for such offences which if they find too gentle to amend those crimes they may likewise for the same reason encrease the punishments ordained for it And therefore I yield that tho Theft doth not in its own Nature deserve Death yet if the Master of such a separate Family shall find his Children or Servants to be so addicted to this vice as not to be amended by any less punishments than Death he may for the quiet of his Family make a general Law that whosoever for the future shall commit Theft shall suffer Death and I doubt not but such a Law when promulged may be Lawfully Executed since this Master of a Family is intrusted by God with the sole Power of judging not only what are crimes but also what are fit punishments for them since both are alike necessary for the happiness and preservation of the Family And I so far agree with you that such Masters of Families have as much Power over the Lives of their Children and Servants as the most absolute Monarchs have over their Subjects that is for their common good and no farther And upon the same Principles do all Kings and Common wealths inflict capital punishments for the Transgression of all such Laws as do any way entrench upon the common interest and safety of their People and upon this ground they may justly inflict no-less punishments than Death for Coyning of false Money which is but a sort of Theft from the publick Treasure of the Commonwealth And the same may be said for all capital punishments ordained against other offences of the same Nature M. If Fathers or Masters of Families are endued by God as you your self now own not only with this Power of Life and Death for enormous crimes against the Laws of Nature but also to make new Laws or ordain what punishments they please for such offences as they shall judg destructive to the quiet and happiness of their Families I see no difference notwithstanding what you have hitherto said to the contrary between Oeconomical and Civil Power For if we compare the Natural Rights of a Father or Master with those of a King or Monarch we shall find them all one without any difference at all but only in the latitude or extent of them For as the Father or Master over one Family So a King as a Father or Master over many Families extends his care to Preserve Feed Cloath instruct and Defend the whole Common-wealth his War his Peace his Courts of justice and all his Acts of Soveraignty tend only to preserve and distribute to every Subordinate and inferior Father and his Children their Rights and Priviledges Hath a Monarch Power to make new Laws and appoint what punishments he will to enforce their Observation So also hath a Father of a Family Hath an absolute Prince Power to command or dispose of the Goods and Estates of his Subjects for their common quiet and security So also hath a Father or Master of a Family So that all the Duties of a King are summed up in this Universal Fatherly care of his People and if the Soveraignty be the same I cannot see and Reason why the Rights and Prerogatives of it should not be so too And therefore if non resistance against their Authority be an unseparable Prerogative of Soveraign Power then if a Father or Master of a Family be endued with it he ought no more to be resisted than the most absolute Monarch F. I perceive your Head is very full of this Notion of the idintity of Natural and Civil Power or else you would never insist so long upon it as you do after what I have proved to the contrary And therefore since I see you look upon this as your topping Argument I shall do my endeavour to shew you more plainly the difference between them For tho I grant that such Fathers or Masters of Families as we here treat of are indued by God with divers Powers which are Analogous or perhaps the same with those of a King or Monarch that is of defending their Families as far as they are able from Forreign force and Domestick injuries and of revenging and punishing all offences that may prove prejudicial or destructive to the Peace and Happiness of their Families yet doth it not therefore follow that the Government of private Families and Kingdoms are all one since they differ very much not only in their Institution but also in their End For first the Fatherly Power by the Law of Nature is ordained only for the Generation and Education of the Children till they come to be grown up and his Authority as a Father is ordained by God only for those Ends and therefore this Relation of a Father is so inherent in him that it can never be parted with or assigned over to any other so as to make the Child or Son so Assigned to owe the same duty to him as he did to his Father There is also besides the Power of a Father that of a Master or Head of a Family over his Children and Servants whilst they continue Members or Subjects of it which Power I grant may be assigned or made over to one or more Persons when ever such Master shall think fit to institute a Kingdom or Commonwealth Yet as Dr. Sanderson very well observes this Power of a Master differs very much from that of the Civil Powers of a Kingdom or Commonwealth as well in the object as end of this Power For first the Power of a Father is only over one single Family whereas that of a Commonwealth is over divers Families united under one Civil Head Secondly in respect of the end the Power of the Master is chiefly ordained for his own interest and advantage but that of the Civil Power chiefly respects the good of the whole People or Community Lastly the Power of the Master of the Family is only for the maintaining his own Natural Property in those things which he hath acquired in the State of Nature whereas one great end of Civil Government is to introduce and establish Civil Property in things according to the Laws of the Commonwealth and also to maintain it when so constituted To conclude Fathers beget their Children and Masters acquire to themselves Slaves and Servants but it is from the consent of Fathers or Masters of seperate Families that any sort of Civil
or not M. I thank you for the pains you have taken to inform my understanding in this matter And therefore since 't is now very late I desire we may Adjourn our conversation to another time And then I desire that you would prepare your self to discourse with me of the second important Question we agreed on viz. the irresistibility if all Supreme Powers by their Subjects not only because Resistance in any case whatsoever 〈◊〉 inconsistent with Supreme Power and destructive to the Peace of Civil Society but chiefly as they derive their Authority immediately from God and are only to render an Account to him of their Actions F. I will not deny but what you have said is true in some sense That all Soveraign Power is derived from God and is also as such irresistible by Subjects But to affirm generally and absolutely as most of your Opinion do that all Commands and Acts of Men endâ—â—d with this Supreme Authority whether good or bad lawful or unlawful are part of that Authority derived from God and therefore irresistible in any casâ— or upon any necessity whatsoever is so dangerous a Proposition that I know none that hath contributed more to the encouragement of the Râ—ng and the Popish Faction we favoured to make all those Breaches upon our Laws Religion and Liberties which we have suffered since the beginning of his Reign M. I am so well pleased with the Freeness and Ingenuity of your Conversation that I desire nothing more than to discuss this important Question with you at our next meeting But I beg your pardon if being taken up by Come Business to morrow I adjourn our next meeting to the Day after when if you please to come at the same hour at you did to night you shall here find me ready to wait on you In the mean time I must bid you good night F. Your Servant Sir I wish you heartily good night I will not fail to meet you at the time appointed FINIS Bibliotheca Politica Or a DISCOURSE By way of DIALOGUE WHETHER Resistances of the SVPREAM POWER by a whole Nation Or People in cases of the last Extremity can be Justified by the Law of Nature or Rules of the Gospel Collected out of the most Approved Authors both Antient and Modern Dialogue the Third LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford-Arms where also may be had the First and Second Dialogues 1692. The Subject of the Third Dialogue AUthors whose Words or Sense are made use of in this Discourse and how denoted in the Margin 1. Dr. Hicks's Iovian or Answer to Iulian H. I. 2. Mr. Bohuns defence of Sr. R. Filmer B. D. F. 3. Two Treatises of Government T. T. G. 4. A Pamphlet Entituled Vindiciae Iuris Regii V. I. R. 5. Dr. Sherlocks Case of Resistance S. C. R. 6. Plato Redivivus P.R. 7. Mr. L'Estrange's Observator L. O. Advertisement to the READER THE Author in relation to this as well as the subsequent Dialogue desires you to be so Candid as to believe that tho' under the Name of Free-man he hath argued against an Opinion now or lately much in vogue viz. That an absolute Irresistibility is an insepable Prerogative of all Soveraign Powers as well Monarchies as Common-Wealths Yet no man more abhors all unnecessary Resistance or Rebellion against Supream Civil Magistrates and is more for an Absolute Submission by all particular Persons whether Private or Publick in case of the highest Injuries and Oppressions done to themselves alone and where the Common Good of the Community is not immediately concerned than himself And this he owns to be their duty not only out of a generous regard to the Peace Tranquillity of the Common-Wealth whereof they are Members which ought not to be disturbed to revenge or redress a few Private Injuries but also from the express Command of Gods Will Reveal'd in the Holy SS expresly forbidding not only all Revenge but self-defence too whilst the Supream Powers act legally tho' perhaps contrary to the Strict Rules of Justice and Equity in such Particular cases Yet for all this the Author must still declare he doubts whether those Precepts do extend to all Resistance whatever viz of any whole Nation or great Body of Men whose Preservation or Freedom from an intolerable slavery and Oppression may render it necessary for the good of the Common Wealth and is no other way to be procured but by a Vigorous Resistance or else joyning with some powerful Neighbour Prince or State who shall interpose for their deliverance So that if such a Resistance be ever Lawful it can be upon no less momentous anâ— account than that of a General Invasion either of the Lives Liberties Religion or Properties of a whole or major part of a Nation as they are established by the Law of Nature or the Fundamental Constitutions and municpial Laws of those particular Kingdoms and Common-Wealths where such an Insupportable Tyranny and Oppressions are then exercised And if this be not Lawful in such extraordinary cases it would seem as if God had preferred the unjust Power or Force and the outward Grandeur of the Governours before the good and Happiness of the Governed which is contrary to the main ends of all Civil Government viz. the common good Happiness of Mankind even as those who are most against all Resistance whatever must allow But whether such Resistance be not in these Cases a Lawful nay only means for the safeguard and deliverance of such assaulted or Oppressed Nations the Author leaves it to the Iudgment of the Impartial Reader to determine upon the perusal of this and the subsequent Discourse since all that could be urged on both sides in this important Question could not be comprised within the limits of one Eveninâ—â— conversation which the Author had prescribed to himself yet will he not be much concerned on which side you give your sentence Since however Criminal some Men have endeavoured to render the Doctrine of Resistance even in the cases proposed yet the Author must believe till he is better convinced to the contrary that the Question being only Moral or Political and not about any point of Faith or Law may be safely maintained by either party without any guilt either of Heresie or Treason The Author farther desires you to take notice that tho' he hath in both these subsequent Dialogues made one of his Disputants to make use not only of the Arguments but the very expressions of two Learned and Reverend Divines in some late Treatises on this Subject yet that he hath not acted thus out of any design of Writing against them or those Opinions there laid down as they are theirs since it is well known the same Arguments and Texts of Scripture have been made use of by other Writers on this Subject long before But as it must be confessed that none have managed this controversie with better Reason and greater Eloquence so he hopes that neither
forfeited to the Conquerour who had a Right either to retain them for himself or else to distribute them as Rewards amongst his 〈◊〉 and Soldiers And that this is the Right of all Conquerors whether Common-Wealth or Monarchs by the Law of Nations and was exercised amongst the Antient Greeks and Romans as well as other Nations I referr you to your own Authors Grotius and Pufendors And therefore since it appears from History that most of the Kingdoms now in Europe and particularly this of England began from Conquest under the Conduct of their first Kings if then whatsoever was so Conquered was acquired for them and they alone had a Property in it it will necessarily follow that all Estates which the Subjects of all sorts now enjoy must have proceeded from their Grants or Concessions And hence it is that not only in England but also in Scotland and France they are all held either mediately or immediately of the King as being at first all derived from him and we read in the antient Laws of Scotland that the King had the whole Property of the Country till the Reign of Malcolm Conmor who as we read in the Ancient Histories of that Country granted all the Lands in Scotland to his Nobility and Gentry according to that old Maxim in their Law Rex distribuit totam Toram Scotiae hominibus juis And therefore if Hereditary Property in Estates were only from the Gift and Bounty of our Kings without any Fundamental Contract between them and their Subjects as you suppose I cannot see any reason granting the worst that can happen which is highly improbable if the Kings of this or of our Neighbouring Nations should go about by force to destroy and take away this Hereditary Property they now enjoy That the People should have any Right to resist them But that it would be not only Ingratitude but Rebellion so to do For tho' I own that Kings were guilty of Perjury in the sight of God if they did it yet that being an â—ffence only against God the Subjects could have no more right to resist than Sons in the State of Nature had to resist their Father if he should go about to take away those Estates which he had before bestowed upon them And as for what you say concerning the Roman Common-Wealth I grant indeed that the Government of the People did there precede that of the Emperour yet if you please to Remember Monarchy was the first and most Antient Government of that People And I doubt not but all the Property the Romans had in their Estates tho' they preceeded from Conquest of their Arms yet it was wholly owing to the Grace and Bounty of their first Kings and when upon the Exâ—ulsion of Iarquin the Supream Power became divided between the Senate and People the Property of all the Lands that were Conquered devolved upon them who often divided them to particular Private Men as they thought fit tho' I confess the Not dividing of these Lands amongst the Common People was afterwards the Cause of great Tumults and Commotions amongst them Yet notwithstanding the Senate and Nobility still maintained their Power and to the last refused to make a Division of those Lands they had formerly Conquered So that the Roman Emperors succeeding in the Power of the Senate and People they were likewise restored as it were ex posâ—liminio to the Prerogatives of the first Kings and consequently as Seneca himself confesses in the place you have quoted tho' the particular Propriety of Estates was in Private Men yet you see he grants the Vniversal Possession or Dominion of them was in the King or Emperor from whom they were Originally derived I would not be thought to speak thus as if I were an Enemy to Mens Liberties and Properties or that I either Fear or desire any Change in them from what we now enjoy but since I think it a thing Morally Impossible to alter them and that therefore no King will be so ill advised as to go about to Seize them into his own hands but only by way of discourse supposing the worst that can happen I think we are not only Obliged in Conscience but also that it were much better for the Common Peace that the Ring should take all we have than that we should involve the Nation in Civill War and confusion and our Consciences under the Guilt of a Mortal Sin by such Resistance and Rebellion F. I am very sorry to see that by your Principles all the Free Nations of Europe lye at the Mercy of any Prince to be made as arrand slaves as any are in Turkey when ever their Monarch please or that they think that they can make more of their People by taking away their Estates and Liberties than by letâ—ing them enjoy them which would render Civil Property in all Kingdoms like private Estates which every Man may let to his Tenants aâ— VVill upon a Rack Rent or for Years or Lives as they shall think fit But I think I may very well differ from you in both your Propositions For omitting any farther discourse of thâ—se Eastern Monarchies where I grant the People are little better than Slaves Yet I think I can easily prove out of the Ancient Histories of those Kingdoms that are now in Europe that tho' most of them began by Conquest yet was it not under the Conduct of Absolute Monarchs but under such Princes or Leaders whose followers as I said before at our last meeting were not properly Subjects nor Mercenaries but Volunteers under those that Commanded them And therefore would never have gone out of their own Countries but to advantage themselves and to enjoy those Priviledges which their Country-men had at home of which Liberty in their Persons and Property in their Estates were the Chief and this is apparent in the French Nation who whatever their Condition may be now yet Anciently called themselves Francs in opposition to that Servitude which they supposed their Neighbouring Nations amongst the Germans were in to the Romans at that time And tho' I grant that these Nations of the Goths Vandals Francs and Saxons from whom most of the Kingdoms in Europe are now derived might Vest or intrust the Lands of the Countreys they had Conquered in him whom they had made their King yet still it was with this Trust that retaining a sufficient part to sustain the Royal Dignity they should distribute the rest to all their Officers and Soldiers according to each man's Valour or Merit And if they had refused to have done this can any Man believe that so free a People as the Antient Histories relate them to have been would ever have suffered it without pulling down those Kings they had set up which was then very common among them for much slighter occasions And to go no higher than William whom you call the Conquerour can any Man believe that if he had retained all the Lands of England to himself not only his
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
made against King Vzziah when he would have burnt Incense in the Temple pray turn with me to the Place and read what is there said And they viz. the Priests withstood Uzziah the King and said unto him It appertaineth not unto thee Uzziah to burn incense unto the Lord but to the Priests the Sons of Aaron that are consecrated to burn Incense go out of the Sanctuary for thou hast trespassed neither shall it be for thine Honour c. And when he persisted therein and took the Censer in his hand to Burn Incense and that thereupon the Leprosy arose in his Forehead the Priests thrust him out of the Temple The LXX render it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. they resisted him Iosephus says they drove him out in haste so that you see they went somewhat farther than Solomons Question Who may say to a King what doest thou And which is more remarkable they withstood him before the Leprosy rose upon his Forehead and no doubt but they would have done the same to him whether that Judgment had happened or not since he went about to Vsurp the Priests Office it not being so much as Lawful for him that was no Priest to set his foot within the Temple But if you look into the History of the Kings of Israel after their Division from Iudah they are so far from teaching us these Lessons of Passive Obedience and Non-resistance that you will scarce find any other manner of Succession amongst them but the Killing of one King and the setting up another and Iehu for Rebelling against and destroying the house of Ahab had the Crown entailed by Gods Promise to his Posterity unto the fourth Generation And tho' I do not produce any of these Examples as fit for our Imitation at this day since what Iehu did was done by Gods express Warrant and Command yet I think they are sufficient Evidences that neither the Person or Power of the Kings of Iudah or Israel were always look'd upon as so Sacred and Irresistible by their Subjects as you suppose M. I am glad you are so ingenuous to confess that most of these Examples you have brought of the Resistance and Murders committed by the Iews and Israelites upon their Kings were not Lawful or can be proposed for the Imitation of Christian Subjects and if so pray make what other use of them you please since à facto ad Ius non valet Consequentia I cannnot deny but that the Succession of the Kings of Israel after Nadab the Son of Ieroboam was very confused God stirring up some or other to Rebel against them and make them away as a Punishment for their former Rebellion and Idolatry Thus Baasha killed Nadab the Son of Ieroboam and Reigned in his stead and for this and his other Sins God threatned Evil against Baasha and against his House Zimri slew Elah the Son of Baasha but he did not long enjoy the Kingdom which he had Vsurped by Treason and Murder for he Reigning but seven days in Tirza which being Besieged and taken by Omri he went to the Palace and burned the Kings House over him with fire and died This Example Iezebel threatned Iehu with Had Zimri Peace who slew his Master And yet Nadab and Elah were both of them very wicked Princes And if that would Justifie Treason and Murder both Baasha and Zimri had been very Innocent but as for the example of Iehu's killing his Master King Ioram you say it was by the particular Command of God and is no more to be produced as an Example for Rebellion and the murder of Princes by the General of their Armies than that because the Children of Israel had a Power given them by God to extirpate and destroy those seven Nations whose Countreys God had given them to Inherit therefore they had a like Right to destroy all other Nations whatsoever that lay near them And therefore those Actions in Scripture which are sometimes Commanded by God for the bringing about the great Designs of his Providence by those Human means that may seem unjust to us are not to be produced for Authorities nor alledged as Examples F. I so far agree with you and I do by no means allow that particular Private Men of what condition soever they are should disturb the Common Wealth and Murder their Lawful Princes tho' wicked or Idolatrous only to satisfy their own private Zeal or Ambition and to set up themselves who perhaps are altogether as oâ—d or worse than him they depose or make away But yet I think I might very well produce these to convince you that there were no better Examples for Loyalty or Passive Obedience among the Iews than other Nations And therefore that your Examples out of the Scripture do hitherto prove insignificant Yet I cannot but take notice of one passage wherein by following the ordinary English translation you fall into a great mistake where you make Baasha to be slain by Zimri because he killed Nadab which as it is there rendered in the English is false for the Words in 〈◊〉 Translation are because he killed him viz. Ieroboam to whom it there immediatelâ— relates which is false for Baasha did not kill Ieroboam but Nadab his Son Neither was it suitable to Gods Justice to destroy Baasha for that which he himself had ordained him to do For God by Iehu the Prophet said to Baasha for as much as I exalted thee out of the Dust and made thee Prince over my People Israel and thou hast walked in the way of Jeroboam and hast made my People Israel to Sin to provoke me to anger by their Sins And therefore the Text concludes this Narration with there words that the Word of the Lord came against Baasha and against his House even for all the Evil which he did in the sight of the Lord in provoking him to anger with the work of his Hands in being like the Housâ— of Jeroboam but the words which immediately follow and because he killed him i. e. Ieroboam cannot be truly rendred in our English Translation for the Reason already given and therefore the best Criticks upon this place Translate it thus leaving out and therefore He viz. the Lord smote him i. e. Nadab by the hand of Baasha Whereas our Translation makes the Scripture to contradict it self I have no more to observe from this History of the Kings and Chron. and therefore I pray proceed to what other Testimonies you have to produce M. Well I think I can make it much more plain from other Examples and Precepts out of Scripture that the Iews were not only under high Obligations to be Subject to the Higher Powers after they were carried Captives to Babylon but also not to resist them tho' they went about to exercise their Power never so cruelly and Tyrannically even to the Destruction of the whole Nation Now the Prophet Ieremiah had given them an express Command Seek the Peace
Mr. Lambard I Ina by or with Gods Gift King of the West-Saxons with the Advice or Council of Cenred my Father and Heddes my Bishop and Ercenwold my Bishop and with my Aldermen and Eldest Wites or Wisemen of my Kingdom do command c. Then in the first Chapter the King speaks in the first person plural We Bid or Command that all our People shall after hold fast or observe these Laws and Dooms From this Preface you may observe I. That Kings are the Gift of God and that Gods Gift signified the same with Dei Gratia they are not the Creature of the People 2. That Princes or the better Government of their People in the Setling of Laws in Church and State did then Consult Deliberate and Advise with their Bishops Noblemen and eminently Wise Men of their Kingdoms whom for their Wisdom they Honour'd with publick Imployments in their Dominions 3. That after such Consultation Deliberation and Advice to the Soveraign Establisheth and makes the Laws The next Instance I shall make use of is out of the same Author in the Laws of King Alfred where in the Conclusion of his Laws about Religion and Prefatory to the Secular Laws He saith I Alfred King have gathered these Sanctions together and caused them to be written and then Recites that those that he liked not with the Council of his Wits he had Rejected and those he liked he had or commanded to be holden And we may observe that the King here speaks in the Single Person that He himself Collected or Chose aad also Rejected what Laws he pleased The next material illustration where the Legislative Power then Resided may be found in the Laws of King Edward the Elder where after the Charge given to the Judges the first Law begins I will and so in others in the fourth it is thus expressed Edward the King with his Wits that were at Exeter strictly enquiâ—ing by what means it might be better provided for Peace and Tranquility c. In the 2d and 3d. Chap. it is We also Declare Pronounce or Sentence And in the 7th and I will In which Laws we have none mentioned with the King but his Wits and his Commanding Willing or Pronouncing in the Imperative Mood is observable The next Laws I find are those of King Athelstan which begin thus I Athelstan King with the Advice of Walfelm my High Bishop and other my Bishops Commanded or bid all my Rieves i. e. Praefects of what degrees soever to pay Tythes c. And this He commanded his Bishops his Aldermen and Praepositi who were the Judges in the Country Courts to do the same In these Laws We cwaedon is used which I suppose is something more than Somner understands by his â—uide a Saying Speech or Sentence and properly is we will But the absoluteness of the King appears most in the 26th Chap. wherein it is expressed Tâ—at if any of the Graeves i. e. Iudges do not perform these Commands or be more Remiss in the Execution of those he hath enjoyned He shall be punished for his Excess of Contumacy according to the Fines there set down King Edmund is the next of our Kings whose Laws are Transferr'd to us and the Proem tells us that King Edmund Assembled a Great Synod or Council to London on the Holy Easter-Tide and the Persons Summoned are Stiled Godskind and Worldskind i. e. Clergy and Laicks After the first six Chapters of Laws in the Proem to the 2d part of them the King Signifies to all Men Old and Young That he had asks Advice in the Assembly of his Wites both Ecclesiasticks and Laicks and in the Laws it is often said Thonne cwaedon These we pronounce or appoint and sometimes the single person is used and in other places us betweonan Heolâ—an it is holden betwixt us Here we find the Great Council Summoned by the King and the Constituent Parts of it to be the Clergy and Laiâ—y yet still we find the Legislative Power in the King alone So likewise in the Title to King Edgars Ecclesiastical Laws it is thus The Laws which King Edgar in a frequent Assembly or Council of the Servants of God hath ordained whereby you may see that the Enacting Part Relates wholy to himself The same King Edgar in his Charter to Glastonbury Abby concludes it thus â—aâ—e privilegij paginam Rex Edgarus XII Regni sui sacro scripto apud Londoâ—iam communi Concilio optimatum suorum confirmavit So that though it appears this was in the Presence of a Great Council Yet the Granting and Enacting part proceeded wholy from himself The Preface to the Laws of King Canutus by Sir Henry Spelman runs thus These are the Worldly Constitutions that I will with my Wites advice that Men hold all over England In most of the Chapters it is said We Teach We Bid or Command We forbid and in the Conclusion it is in the single Person of the King Now I command all and bid every Man in God's Name And the Preface to the Latin Version of them saith Haec sunt Instituta Cnude Regis Anglorum Dacorum Norwegarum vene rando Saplentum Concilio ejus ad Laudem Gloriam Dei suam Regalitatem c. Of this Canutus William of Malmsbury saith that He commanded to be observed for ever all the Laws of Ancient Kings especially those made by King Ethelred his Predecessor under the Penalty of the Kings Fine to the observing of which He saith in his time it was Sworn under the Name of King Edwards Laws not that He had appointed them but had observed them So that I think upon the whole matter nothing is more plain than that our English Saxons and Danish Kings did not only call Councils and preside in them but that the Legislative Power was lodged solely in themselves F. I perceive the Authority of our Ancient Lawyers is a little too hard for you to answer with your usual Distinctions and therefore you seemingly deny their Authority though in effect you grant it as I shall shew you by and by But as for your Quotation out of the Year-Book which you think sufficient to Counterballance all the Authorities I have brought I think I may much better question the Judgment of those that gave that Opinion since I can shew you that you your self cannot allow it in all points for Law For in the first place it is not there said that it was so judged by all the Lords and Judges who were appointed to hear the Cause there mentioned but only Fuit dit que le Roy c. By which it seems to have bin the private opinion only of some one or more of the Lords and Judges there present For it is not said fuit adjuge And if you will have it to have bin the Opinion of them all pray read what follows after Fuit dit quen temps le Roy Henry devant le Roy fuit implede comme Seroit
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
made by him as indeed it is true he compiled them out of divers other Laws formerly in force in the other Kingdoms of the Heptarchy Yet that they were also shewn and assented to by the Wittenae Gemots pray see the Conclusion of these Laws in Sir H. Spelman The words are Remarkable Ego Aelfredus West Saxonum Rex ostendi haec omnibus Sapientibus meis dixerunt places ea custodiri So that the calling them the Laws of King Alfred or King Edward doth no more prove that they alone made them then our now Citing such or such a Statute of K. Henry 8th or King Charles the 1st do therefore suppose that those Kings made Laws by their own Sole Authority such Phrases among Ancient Historians as well as our selves at this Day being used only for Brevity sake and signifie no more then their Confirmation of them M. I shall not deny but that our Ancient English Kings did for the most part make no Laws without the Consent of their Great Council Yet I think I can give you an unanswerable Argument to prove that the very Being and Constitution of Parliaments or Great Councils did in the beginning wholy proceed from the Grace and Favour of some of our Ancient Kings thâ— to which of them to ascribe it is not easie to Determine But if we may believe your own Author the Mirrour he tells us almost at the very beginning That King Alfred for the Good State of the Realm caused to Assemble the Counts or Peers and then ordained for a perpetual Custom that twice in the Year or oftner for Business in time of Peace they should Assemble at London to treat of the Government of the People of God and how folks should keep themselves from offences and live in quiet and should receive Right by certain vsages and Iudgments And According to this Establishment were made divers Ordinances by divers Kings until the present King viz. Edw. 1st But to come to the proof of what I affirm it is certain that in those first times the Saxon Kings conferred all the Bishopricks and principal Abbeys in England per Annulum Baculum as Ingulf and Malmsbury expresly tell us And as for the Earls or Aldermen of Counties as also the Great Thanes Judges or Noblemen of the Kingdom they were only Offices held for life in those times which the King might Discharge them of at his Pleasure And hence we find the Titles of Aldermanus Regis and Thanus Regis so frequently to occur in our Ancient Histories and Charters These comprehended under the general Name of Wites were the only Constituent parts of the Great Council in those times for as concerning those we now call the Commons of England we do not so much as find the least mention of them or any Representatives for them till the latter end of the Reign of King Hen. 3d. or the middle of Edw. 1sts Reign as I think Dr. Brady hath Learnedly and fully proved in his last Edition of his Answer to Mr. Petyt's Treatise of the Rights of the Commons of England Asserted Now if it plainly appears that every part or Member of the Parliament did Anciently receive their very Being from the meer Grace and Concession of our Ancient Monarchs can you or any Reasonable Man assert with any Colour of Truth that our Great Councils or Parliaments could be a part of the Fundamental Constitution and as Ancient as the Government it self And if Parliaments did thus receive all that Authority they now Exercise from the Kings Bounty can any Man doubt whether all the Rights and Priviledges we now enjoy are to be Ascribed to any other Original For if the very Keepers as you will have it of these Liberties did all proceed from the King then certainly the things to be Kept must do so too and when you can answer this Argument I have now brought I think I may safely promise you to be your Proselite and to come over to your Opinion M. I confess this is the most plausible Argument you have hitherto urged and if I can't answer it I do likewise promise you to become your Convert But tho granting that Parliaments might have received their Being from the Favours of our Kings I might deny your Consequence that therefore it will follow that all the Rights and Liberties of the Subjects of England must do so too since they might very well have reserved to themselves both Hereditary Properties as also a Right to their Lives Liberties and Estates which the King should not take from them without just Cause and Legal Tryal which when they found invaded by succeeding Princes they might then and not till then find constant Great Councils and Parliaments to be necessary for that End and as the firmest Bullwark against the Tyranny of Succeeding Princes But the Author of the Mirrour in the Section before the place from whence you took your last Quotation expresly tells us that upon the first Election of a King to Reign over the rest of the Saxon Princes they first of all madâ— him to Sweâ—r that He would maintain the Holy Christian Faith with all his Power and would govern his People according to Right without regard to any Person and should be liable to suffer Right i. e. Iudgment as well as others of his People And tho I do not give any Credit to all the Story he there relates of 40 Soveraign Princes in this Island at once Yet the Substance of it may be true that this Election was made of King Egbert by the 40 Earls or Counts of Provinces which were afterward by King Alfred called Shires But that this Author ascribes the Beginning of Great Councils to the first Institution of the Government pray see what he there fâ—rther says And tho the King can have no Peer in the Land nevertheless if by his own wrong he offends against any of his People none of those that Iudge for him can be both Iudge and Party It is therefore agreeable to Right that the King should have Companions to Hear and Determine in Parliament all Writs and Complaints concerning the Wrongs of the King Queen and their Children of which Wrongs they could not otherwise have Common Right These Companions are therefore called Counts after the Latin Câ—mitâ—e Whereby you may see that this Author and Bracton who were Contempâ—â—aries were of the same Opinion in this important Point And I cannot imagine how any Prince who had Power sufficient in his hands to do what he pleased as you suppose our English Saxon Monarchs to have had at the first would ever if they could have helpt it have instituted a Court one of whose chief Businessâ—s it was to examine and redress the Wrongs and Oppressions of themselves their Wives and Children But besides all this what you say might be somewhat likely that our Parliaments or Great Councils did owe their Original only to the Kings good Will and Pleasure did we not find the like
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
you quote it yet I much doubt whether it was of any validity being no doubt drawn up by the Barons then in Arms and which the King durst not at that time refuse and so he was indeed under a kind of duresâ— when he did it And besides pray mark the conclusion of this Clause this Resistance was to be Salva Persona nostra Reginae nostrae Liberorum nostrorum cum fuerit emendatum intendent nos sicut prius fecerunt Now how this Security here reserved for the King's Person could consist with that open War the Barons made afterwards against his very Person and casting off all their Allegiance to their Natural Prince and calling in Prince Lewis Son to the King of France I cannot understand F. I think all this may very easily be solved For in the first place K. Iohn was no more compelled to agree to this Clause than he was to the Charters themselves and if those were lawful and reasonable so was this Resistance too since there was no other way or means lest to preserve them in case the King should go from his own Acts and break through all he had done so that if the ends were lawful the means to preserve it must be so too or else those Charters would have signified nothing any longer than the King pleased As for the other part of the Objection that this Resistance was still to be saving the Person of the King and Queen c. and that this did not consist with the Barons after making War against his Person and casting off all Allegiance to him It was not their faults but the King 's if they could not perform this Agreement since the King by making War upon the Clergy Nobility and People by his open and notorious breach and recalling of these Charters calling in Strangers to his assistance and declaring he would no longer govern according to Law had made it absolutely unpracticable to preserve their Allegiance to him any longer so that they never cast off their duty as Subjects till he had cast off his duty as a King and then what was there else left to be done but to provide for their own safety by calling in a Forein Prince to their Assistance as soon as they could since there was no other way left them to defend themselves against those Troops of Strangers the King had invited over and though many of them with their Captain Hugh de Boves had been cast away and drowned in a Tempest at Sea yet more were daily expected So that if Tyrants should suffer nothing for the breach of their own Charters and Oaths they would be in a better condition by their violation than the observing of them â—or by the making them they for the present quiet the Minds of their discontented Subjects and when they please may break them all again when they have got power if no body must presume to resist them or not think them as much Kings when they destroy and oppress their People as when they protect and preserve them by governing according to the Laws of the Kingdom But pray what have you to say against that general Resistance that was made by almost all the Bishops Barons and great Men of England against his Son Henry the Third about the frequent and notorious violations of the great Charters which his Father and himself had so often sworn to and confirmed and for which he had received such great Benevolences and Subsidies from the Nation M. Before I answer this Question pray take notice that I am not at all satisfied with your Arguments that when ever Subjects shall think themselves injured and oppressed by their Soveraigns that then they may cast off their Allegiance to them if they cannot have the Remedy they desire since this were to make them both Judges and Parties too in their own Cause which is altogether unjust and unreasonable between private Men much more between Kings and Subjects But passing by this at present I shall tell you my Opinion of this Resistance of Simon Montfort and the Earls and Barons his Adherents that it was down-right Rebellion and tended only to dethrone the King and make him a meer Cypher and to devolve the whole Government upon themselves as appears by the Oxford Provisions recited by so many Authors of that Age and which were afterwards condemned and consequently those violent means by which they were obtained by Lewis the Ninth King of France who in an Assembly of his Estates upon a solemn hearing of the whole difference between King Henry the Third and his Barons declared these Oxford Provisions null and void So far was this good and pious King from countenancing any Rebellion or Resistance as you term it of Subjects against their lawful Soveraign F. For all this I cannot find that the King of France did then at all condemn this defence the Earls and Barons had before made of the Liberties granted them by the great Charters for tho' he restored the King to his former Power by avoiding the Oxford Provisions yet at the same time when this was done as the Continuator of Mat. Paris tells us he expresly excepted the Ancient Charters of King Iohn Vniversâ—li seil Angliae concessae and from which per illam sententiam in nullo intendibat penâ—tus derogare and if he did not in the least intend to derogate from them he could not with any Justice condemn the only means the Barons had to maintain them after so many Trials and fresh Promises and Oaths of this fickle inconstant King all broken and laid aside so that you may as well or better alledge the Pope's shameful Absolution of this King from this Oath he had made to observe the great Charters as an Argument why they should not be any longer bound by them nor the Barons obliged to defend them as this Sentence of the King of France to render the Resistance the Barons had made in defence of the great Charters to be unlawful And that King Henry himself did afterwards allow this Resistance for good and lawful Pray see the Agreement which was not long after made in full Parliament in the 49th between the King the Prince and all the Prelates Earls and Barons of England whereby he obliged himself to observe all the Articles and Ordinances which had been before agreed upon at London in the 48th Year of his Reign And then follows this Clause in the Record which the Doctor himself has printed in his Appendix at the end of the first Volume of his Introduction to English History which I shall here translate out of French because it is very old and obscure it is thus And if our Lord the King or Monsieur Edward viz. the Prince shall go against the Peace and Ordinance aforesaid or shall grieve the Earls of Leicester or Gloucester or any of their Party by reason of any of the things aforesaid that then the great Men and Commons of the Land
still followed it even when the Barons proved most fortunate as in that of Henry the Third to the Earl of Gloucester and those of his Party and that of Edward the First to the Constable and Mareschal and their followers nay after the former Kings had been unjustly deposed we still find the Actors and Complices of such wicked Actions did not think themselves safe till they had an Act of Indemnity passed to them of all the Robberies and Murders they had committed in the War as your self have recited in the two Acts of Parliament in the Reigns of Edward the Third and Henry the Fourth Now if these Resistances had not been downright Rebellions in the Eye of the Law to what purpose were these Acts of Indemnity passed since no man needs a Pardon but rather merits a Reward for defending the Government Establisht according to Law F. In answer to this Objection for which I am already prepared since I foresaw you might make it pray give me leave to ask you whether you can find the words Treason Rebellion Robbery or Murder in any of these Acts of Pardon and if you cannot whether you think Treason or Murder could be pardon'd by general words or not and the reason why I ask this Question is because if they could not then the consequence will be that none of these Parliaments supposed that the Resistance that had been made or all the other Acts performed in pursuance of such Resistance were looked upon by those that had done them no nor by the Parliament it self to be Treason Rebellion or Murder since certainly those that were Actors in such Resistances and taking up of Arms having the power in their hands would not have fail'd to have had those words inserted into those Acts of Indemnity if they had supposed themselves guilty of those Crimes M. I cannot say that the words Treason and Rebellion or Murder are expresly mentioned in these Statutes since even the Actors in them did not think it for their Credits to own themselves to have been guilty of any such Crimes yet all the particular words and expressions in these Acts amount to the very same thing for the taking up Arms with one that is not King against him that is the actually seizing upon his Person and keeping him in hold was Treason at Common Law before the Statute of the 25th of Edward the Third and is not taking mens Goods by force and destroying their Persons in time of Peace Rebellion and Murder at Common Law So that if these were the Facts they had been guilty of and if these Acts were Treason Rebellion Robbery and Murder then certainly all Treasons Rebellions Robberies and Murders are likewise pardoned by those Statutes And tho' 't is true the Law is now that no pardon of Treason or Murder shall be good unless those Offences are particularly named yet this was so ordained by the Statute of the 13th of Richard the Second by which it is particularly provided that no pardon shall be allowed before any Justice for the death of a Man c. Treason c. unless the same Murder Treason c. be specified in the said Charter before which Statute Sir Edward Coke in his second Instit. tells us that by the pardon of all Felonies Treason was pardoned and so was Murder c. F. I cannot deny but that these Facts you mention were Treason in strictness of Law before the making that Statute yet does it not follow that even these may be in some cases justifiable as well as binding a King when he is out of his Wits if the publick Peace of the Kingdom and preservation of the Government according to the Fundamental Laws of the Kingdom require it Thus for example suppose King Iohn after he had made actual War upon his Barons and People had happened to have his Forces routed in the Field can any one believe that it had been unlawful for them to have secured his Person to prevent his making a new War upon them and yet this by the Letter of the Law had been Treason Now there are many actions which in strictness of Law are Treason yet being for the publick defence and security of the Nation deserve a pardon of course Thus if Forein Enemies should Land in England and a Neighbouring Nobleman or Gentleman who has no Command over the Militia of the Countrey should raise on the sudden such a Force of his Tenants and Neighbours as were sufficient to make ahead against them till the Militia of the Countrey could come in to their Assistance tho' this taking up of Arms without an Express Commission for it be a high Misdemeanour â—ay Treason according to your Principles yet I suppose you will not deny but that the persons engaged in it do not only deserve pardon but thanks for their Courage and so speedy Assistance of the Government And I remember I have read a famous Instance of this kind that when the Traytors concerned in the Powder-Plot found themselves discovered they fled into Warwickshire and thence into Worcestershire and were pursued and taken by the High Sheriff of that County in Staffordshire which tho' a great Misdemeanour since no Sheriff can justifie carrying the Posse Comitatus out of the County yet this was so well taken that King Iames the First rewarded him and as I take it Knighted him for his pains But to apply this to the matter in dispute tho' it is true taking and imprisoning the King's Person is Treason in the Eye of the Law yet as in the case of Edward the Second if the Government could not be restored to its pristine State without that extremity it must and will ever deserve a pardon and therefore you see the Parliament in the first of Edward the Third not only pardons but justifies the doing of it because done for that end So likewise the Statute of the 11th of Richard the Second Chap. 1. not only indemnifies but justifies the Duke of Gloucester the Earls Lords and all others of his Party for taking up Arms against the persons above-mentioned tho' maintain'd and back'd by the King himself as being done for the weal and safeguard of the Kingâ— the maintenance of the Crown and Salvation of the Realm So much for the Point of making War against the King and imprisoning his Person so that if taking up Arms for the safeguard of the King and Salvation of the Kingdom were just and necessary to be done the consequences of it viz. the taking of mens Goods and killing of these that resist them cannot be Robbery or Murder because done in a State of War which can never be carried on without such Acts of Hostility And therefore you see in the Act of Pardon to the Earl of Gloucester and to the Londoners granted in Parliament of the 51th of Henry the Third which I have now cited those that took part with thâ— King are as expresly pardoned as those that were with the
any Legal Power all which could never have happened had not that War been not only begun but continued to the very last by a Standing Army which could give what Laws they pleased even to those that pretended to command them So that why the Abuse of this Right once in a Thousand years should be made any just Argument against the ever using it at all I can see no reason in the World for it As to the rest of your Discourse against making any War about Religion that is also as fallacious for tho' I grant that true Religion is not to be propagated yet I think it may lawfully be defended by the Sword especially where it is the received Establish'd Religion of a Nation or else the defence of Religion against Infidels would be no Argument at all to fight against a Turkish or Popish Prince that unjustly invaded us For tho' it is true that Religion cannot be taken away from any Man without his consent yet a Man may be taken from his Religion and when the Professors are destroyed either by Martyrdom or violent Persecution as bad or worse than death what will become of the Church and Religion Establisht by Law when all the Persons that constitute that Church are driven away destroyed or made to renounce it And for this we need go no farther than over the Water to our next Neighbour It is likewise as fallacious what 〈◊〉 urge of the great Corruption of Manners by Civil Wars which if it be any Argument at all is so against all Standing Armies whatever whether raised by lawful or unlawful Powers And I think there was much more debauchery in the King 's late Camp at Hounslow-heath as also in all places where they quartered than was lately at York or Nottingham among those that took up Arms in defence of their Religion or Civil Liberties unjustly invaded by the King and his Ministers nor does it always happen that Armies raised for defence of Religion and Civil Liberty must prove debaucht since we may remember that the Parliament Army to its praise be it spoken was infinitely more sober and outwardly religious than the King 's but if you will say that this proceeded from their Principles as well as good Discipline I know no reason why Men who fight in defence of their Religion and Civil Liberties may not upon Church of England Principles as to Church-Government and Common-Prayer and also by a strict Discipline be as little debaucht as any Standing Armies the most lawful Monarch can maintain who if they lye idle as ours have done all this King's Reign till now of late are more likely to fall into all the wickedness that attend a loose Discipline and want of Imployment and consequently may also corrupt the Places where they Quarter by their ill example M. I shall not longer argue this point since I see it is to no purpose But you have not yet told me what these fundamental Rights and Liberties are that you suppose the People may take up Arms to defend nor yet what number of the Nation may thus judge for themselves and take up Arms when they please for it may so happen that the whole Nation may be divided as to their opinions concerning these things And the South part of England for example may think their Religion and Liberties in great danger and that it is very necessary to take up Arms for it when the North parts are not under those apprehensions but lye still as was lately seen in the riseings for the Prince of Orange F. As to the first of these queries I think I can easily give you satisfaction and such as you can have nothing material to reply to And as for the other though I do not say I can give you such an answer as will bear no exception or reply yet I doubt not but it will be that which may very well be defended and may serve to satisfie any indifferent and unprejudiced person And which if not allowed will draw much worse consequences along with it And therefore as for the just Rights and Liberties we contend for they are only such as are contained in Magna Charta and the Petition of Right and are no more than the immemorial Rights and Liberties of this Kingdom and that first In respect of the safety of mens lives and the liberties of their persons aly The security of their Estates and Civil Properties And 3ly The enjoyment of their Religion as it is established by the common consent of the whole Nation All which I will reduce to these plain Propositions 1. That no Freeman of England ought to be imprisoned or arrested contrary to Law without specifying the cause of his commitment in the warrant or mittimus whereby he is sent to prison And he ought not to be sent out of the body of the Country or Jurisdiction where the crime was supposed to be committed unless he be removed by due course of Law neither ought he by the Law of England to be detained in Prison without Trial only for a punishment but ought to be Tried the next Assizes or Goal-delivery or within some reasonable time to be allowed of by the Court. And this was Common-Law many Ages before the Act of Habeas Corpus made in the 31st of King Charles the Second which does but ascertain that Law concerning bailing men for all manner of Crimes in case no Prosecution come in against them much less can the King or any Court below the whole Parliament banish any man the Kingdom in any case unless by some known Law already made whereby he is bound to abjure it upon a lawful Trial by his Peers and conviction by his own Confession 2. Nor can the King nor any Courts of Justice condemn a man to loss of Life or Members without due Trial by his Peers and Legal Judgment given thereupon And for proof of this I need go no farther than Magna Charta and the Petition of Right which are both but declaratory of the Common-Law of England◠see therefore Magna Charta cap. 29. Whereby it is declared and enacted that no freeman may be taken and imprisoned or be disseised of his freehold or Liberties or his free customs or be Outlawed or exiled or in any manner destroyed but by the lawful Judgment of his Peers or by the Law of the land which is also farther confirmed and explained by these Statutes viz. the 37 38 42. of Edward III. and 17. of Richard the II. all which are summed up and more particularly declared against contrary to the fundamental Laws of the land in the Petition of Right exhibited to King Charles the I. in Parliament in the thirtieth of his Reign wherein the late imprisonment of the Kings Subjects without any cause shewed and the denial of Habeas Corpus are expresly resented as also putting Souldiers and Mariners to death by Martial Law in time of peace And the King's answer to this Petition is remarkable
Court took upon it to Judge of Matrimonial Causes about Alimony and concerning â—lmoniacal contracts and all other misdemeanours both of Clergy and Layety against Religion and good Manners which were the same things the late high Commission Court took upon them to determine and if they did not meddle with Popish or Non-conformist Meetings it was because their hands were so tied up by the Late Declaration of Indulgence that they had no power to meddle either with Papists or Dissenters M. I shall make no farther reply appresent to what you now say till I come to answer once for all therefore I shall go on to the next things excepted against in the Princes Declaration viz. the erecting of publick Chappels for Mass the protecting of Priests and the making a Jesuit a Privy Councellor all which tho' I confess they are against the express Letter of divers Statutes yet since all these things depend upon the Kings dispensing power set forth in His Majesties late Declaration which as I will not assert so I will not positively deny since the said Declaration of Indulgence and all proceedings thereupon have issued out and executed under colour of Law viz. of the Kings Ecclesiastical Jurisdiction without any force or violence upon the Conscience Religion or Properties of the Kings Protestant Subjects whom the King in his said Declaration solemnly promises to protect in the free possession and enjoyment of their Religion establisht by Law and I cannot see how a liberty granted to Popish Priests to say Mass or the putting in a Jesuite into the Privy Council or making Popish Judges or putting a Papist into the Ecclesiastical Commission can be lookt upon as any Invasion of the Protestant Religion the free and publick profession of which we have God be thanked as quietly injoyed as we did in the Reign of this King or in that of his Brother F. Since you cannot directly justifie the Kings setting up publick Mass Houses in London and in most other parts of the Kingdom and his so publick protecting and countenancing Papists and Jesuits even to the making a Jesuit a Privy-Councellor tho' they are all in judgment of Law alike publick Enemies and Traytors to the King and Kingdom and that all these as you cannot deny are contrary to the express words and intent of all Statutes against Priests and Popish Assemblies so you endeavour to palliate it under the Kings dispensing power which you suppose to have had a colour of Law at least to support it but tho' the giving Liberty to Popish Assemblies and the Conventicles of the Dissenters was no direct hindrance of the free exeâ—ercise of the Protestant Religion establisht by Law yet I must utterly deny that the King has any such prerogative as to dispense with those Laws and by his sole Authority to declare those that the Law calls Enemies and Traytors to be good Subjects and you may as well tell me that the King has not only a prerogative power to pardon High-way-men but may also protect them and put them into his Guards with a Commission to rob whom they pleased as to give Papists Power to bear Arms or to protect and imploy declared Traytors as Popish Priests and Jesuites are by Law as the King had done not the like I may say for putting in Popish Judges and Justices of Peace viz. that it was all done by force of the Kings Personal Orders without his Legal Authority which is that alone we can take cognizance of or render any Obedience to and tho' 't is true I do not deny the King a Power of making whom he pleases Judges yet this prerogative is still to be exercised according to Law and therefore if the King should make an illiterate man a Judge who could neither Write nor Read the Writ or Patent would be void in its self the same I may say of a Popish Judge the Law making no difference as I know of between a natural and a legal disability but however the turning out honest and able Judges because they would not give up our Religion and Liberties to the Kings Arbitrary Will is certainly a much greater breach of the Trust committed to him by his Coronation Oath wherein he swore he would maintain the Laws of the Land and mix Equity with Mercy in all his Judgements now where is the Equity or Justice of this that whereas the Judges anciently held their places quam diu se bene gesserint they should now by a notorious encroachment of the prerogative not only be made durante beneplacito but that the King should stretch this prerogative so unreasonably as to examine the Judges before hand whether they would agree to the dispensing power and to turn out those that refused to comply meerly because they would not serve his Arbitrary designs and then to put in the meanest and most mercenary Lawyers at the Bar nay some who never come thither at all into their places for no other merit or good qualities but because they would serve a turn is so notorious a breach of his Oath that it could not fail in a little time to destroy all our Common as well as our Statute Laws since these were all lately lodged in their Breasts and resolved into their Arbitrary determinations which yet as all the World knows were wholy managed by the influence and commands of the Court and this I say again was as notorious an abuse of the Kings prerogative as if he had put in High-way-men into his Guards with Commissions in their Pockets to rob whom they pleased since these Gentlemen in Scarlet have taken the same Liberty under colour of Law to raise Taxes upon the Subjects against the express letter of an act of Parliament as may be seen in their late determination concerning Chimney Money making Cottages built for the use of the poor and houses of persons exempted from payment liable to Chymney Money contrary to the express words of that Statute M. I cannot deny but the things you now mention have been great abuses of Prerogative but whether so great as to require resistance I must still disagree with you therefore I shall now proceed to the next particular complain'd of viz. the examining of the Lords Lieutenants Deputy Lieutenants Sheriffs and Justices of Peace to know whether they would concur with the King in the repeal of the Test and Penal Laws and turning all such out of Commission as refused to comply with the Kings desires in this matter now tho' I will not say it was well or prudently done yet it was no more than what I think the King by his Prerogative might Justifie the doing of since he may by Law give a quietus est to what Judges he pleases and put in or out of Commissions whether Civil or Military what persons he thinks fit and as for the persons so examined they might have chosen whether they would have given any positive answers to the questions put to them by the Lord Chancellor
out the President and Fellows of Magdalen Colledge by the late Ecclesiastical Commission as also the turning out of the Deputy Lieutenants and Justices of Peace and all other Magistrates out of Cities and Corporations the King has sufficiently redress'd them by restoring the first to their places and by putting all the rest into Commission again and turning out those that came in their rooms and all this before the Prince of Orange came over and I doubt not but his Majesty would have been content to have given the Nation any other reasonable satisfaction they could have desired in the next Parliament Which ought to have been patiently waited for untill his Majesty thought sit to call it without going about to right our selves by Force F. I confess you have made not only the most plausible defence you can of the Kings late actions but have also urg'd the utmost that can be said against those defensive Arms that have been lately taken up by those Lords Gentlemen and others who have associated themselves to stand by the Prince of Orange till our grievances were redrest by a free Parliament but if what you have said be strictly lookt into I doubt it will prove but a mere Subtersuge to hide the nakedness of the Cause you have undertaken In the first place therefore let me tell you that though I confess the King has not yet Dragoon'd us to Mass nor has made an actual War upon the Lives and Properties of the People of this Nation yet that he has not only invaded our Liberties but also endanger'd the Protestant Religion of the Church of England establish'd by Law you your self have not the confidence to deny only you will not suppose it to have been done by any Armed Force and therefore ought not to have been resisted by Force but to have waited for their redress by Parliament which is but an evasion for in the first place it is plain that the things complain'd against in the Prince of Oranges Declaration do most of them strike at the Fundamental Constitution both of the Church and State as I have sufficiently prov'd and shall do it more particularly hereafter when there is occasion all therefore that remaines to be prov'd is this that all these breaches and violations of our Religion and Civil Liberties tho' done under colour of Law yet were acted and maintain'd by Force and Secondly that all other hopes of remedy or redress unless by joyning with the Prince of Orange was wholy taken from us the first of these I prove thus It is notoriously known that for the King to maintain a standing army in time of peace has been always declar'd against in Parliament as contrary to Law and dangerous to the Religion civil rights and Liberties of this Nation now it is also as certain that the King has ever since the Duke of Mâ—nmouths coming over set up and maintain'd a standing Army in this Kingdom in which he has also put in as many Popish Officers and they as many Popish Souldiers contrary to the Laws of the Land as ever they could find besides the many Irish Papists that have been of late sent over for no other purpose than to be listed here whilst Protestant souldiers were turn'd out of several regiments to make room for them not to mention the listing of vast numbers of loose and prâ—â—ligate fellows and some of them pardon'd Highway men who provided they had their pay would not have â—luck to Rob or Murder any body they had been ordered as may be sufficiently prov'd not only by their common taking of free quarter but by their frequent taking it in the houses of Gentlemen and other private Persons in divers places of this Kingdom and that without any amends or redress as I know of tho' frequently complain'd of at Court all which being done by the Kings arbitrary Power without the least colour of Law and in contempt of the Militia the only legal Forces of this Kingdom what was this but plainly to declare that as the King had thought fit to Act so many arbitary things clean contrary to Law so he was likewise resolv'd to maintain 'em by force since it is plain that the King never dur'st undertake to do all these Illegal and arbitrary things we have now mention'd untill such time as his standing Army was raised and tho' it is true mens Lives Liberties or Estates cannot be taken away unless by some Force or other either Legal or Military yet as for those Civil rights and Priviledges which are the main Bulwarks and defences of the former they can only be invaded or taken from us by Illegal Judgments and Declarations which if supported by a visible Force beyond what the Nation in the Circumstances it was in was able to resist this is as much a taking them by Force as if there had been resistance made about them Thus if Souldiers come into my House and say that the King hath given them Orders to quarter there upon free cost I suppose you will not deny but this is a forceable taking of my goods nowithstanding I dare not because I cannot resist them the same I may say for a whole Nation when once opprest in their Civil Liberties and those oppressions are once back'd and defended by a standing Army contrary to Law But that this Army was raised cheifly to this intent I can give you a remarkeable instance from the mouth of the late cheif Justice Wright who sent for Officers and Soldiers to make the Scholars keep silence because they Hum'd at what the President and Fellows of Magdalen's had just before done against the authority of this pretended court so that to conclude from that very time that the King beagn to keep up an Army and to list Popish Officers and Souldiers tho' utterly disabled by Law to take Commissions or to bear Arms by vertue of his Dispensing Power and all this in Order to back and support his Arbitrary proceedings I look upon this Nation under such a force as that they might Lawfully remove it by Force when ever they could And that either by joyning with some Foreign Prince or else by their own Domestick Arms. But to come to the second point to be prov'd viz. That there was no other means but Force lest us to redress these mischiefs and to retrieve us out of that sad condition in which we lately were as also to hinder us from falling into worse I shall only suppose that which I think you will readily grant that there could be no other means to cure these evils but either by some sudden change in the Kings inclinations or else by a Free Parliament the former you must acknowledge was not possible as long as he continued of the Religion he is of and suffer'd himself to be manag'd by the Counsels of the Jesuits and French King and as for a Free Parliament what hopes could there be of that as long as the King had done all he could
also the ancient year Books or Reports of cases all written in Norman French even in our own age so that since this proceeded from that great alteration which the Conqueror made in our Laws it is also a badge of that yoak which he imposed upon the Nation by his Conquest and to make this yet more plain that very Copy of K. Edward the Confessors Laws is in old Norman French which together with K. William's Additions to them Ingulph tells us he brought down with him to his Monastery and which he has inserted into his History as you may find them in the last Edition Printed at Oxford and were before published by Mr. Seldâ—n in his Notes upon Eadmerus F. I cannot deny but that some part of the matter of fact to be as you have here laid down yet it will not follow that this common use of the French Tongue in our Reports and Laws did proceed from the Norman Conquest or is any badge of Conquest for first the most Ancient Laws of K. William which we find in Spelman and Lambert's Collections are in Latine as they were before the pretended Conquest I grant indeed those you mention in Ingulph are in French but they being most of them criminal or penal laws or else concerning Tenures it is no wonder that they were publisht in the Language of his Country that the Normans and other Frenchmen he brought over with him might understand them and tho' they were written in French yet they were proclaimed in the English Tongue that the English as well as Normans might take notice of them but after these Laws you will not find any ancient Charter or Statute in French till the Statute of West I. which was above 200 years after your pretended Conquest for all the Charters of this K. William are in Latine or Saxon as that particularly granted by him to the City of London so likewise were all the Ancient Charters and Laws of the other succeeding Kings as those of K. William Rufus Henry I. Henry II. King Stephen Richard I. are all in Latine or Saxon and none of them in French as appears by several of them still to be seen in the Arch-bishops Library at Lambeth and in Sir Robert Cotton's and also Magna Charta and all other Statutes and Charters of K. Iohn and Henry the third till the Statute of West I. above mentioned and therefore it is not likely that this custom should have taken its original from Normandy for if it had it would have been begun immediately after your Conquest and as for our Law Books tho' I grant those you mentioned to be written in French yet is it not the Norman French since it differs very much from the Language in which K. Edward's Laws are written which are in Ingulph the French of which is so obsolete and obscure that he that understands our Law French very well can scarcely make any sense of them but our first Writers concerning the Laws of England writ in Latine and not in French as you may see by Glanvil Bracton and Fletâ— who writ before Horn's Mirrour of Justices or Britton's Treatise of the Laws of England As for your Books and Reports I grant they are in French but that this custom was not derived from Normandy is also as certain since the first Reports we have begin with the first year of Edward the second except some few Memorandums of cases aâ—judged in the Exchequer in the Reign of his Father above 200 years after K Wâ—lliam's coming in as I but now noted nor could they be writ in the Norman dialect since we had then nothing to do in that Dutchy which had been Conquered by the French in the beginning of K. Iohn's Reign above eighty years before any Report or Law book was writ in French at all and therefore we must ascribe the original of this custom to some other cause than the meer will and pleasure of your Conqueror and for this we must go as high as the Reign of K. Edward the Confessor who as Ingulph tells us having lived long in Normandy and bringing over divers Normans with him the whole Nation began under this K. to forsake the English customs and to imitate the French manners in many things so that all great men looked upon it as a piece of good breeding to speak French in their Houses and to make their Deeds and Charters after the French manner so that it was very easie for K. William after his coming in who as Ingulph also tells us abhorred the English Tongue to make the Laws of the Land to be pleaded in the French Tongue and to make the Boys to learn at School the first rudiments of their Grammer in French and also the Saxon or English hand to be altered and the French hand to come in use in all Books and Writings and tho' I confess most of the chief Justices and Judges were Frenchmen or Normans during the three or four first Kings of that Race yet that alone could not have caused this Tongue to be so generally used not only in the Kings Court but also in all the Courts at Westminster after Englishmen began again to sit there had it not been for the Tacite consent not only of the King and People of Quality but also of the Lawyers themselves for the Law Terms being for the most part French they did not only thereby make the Law the greater mystery to the Vulgar but they also supposed that these Terms being French could not be rendered into any other Language but for all that it had been impossible for this Tongue which was spoke by so small a number of Persons in respect of the whole Nation to have prevailed so long among the better sort of People had not our Kings for many Ages enjoyed large Territories in France which occasioning their frequent going over thither about affairs of War or Peace as also the French Gentry and Nobilities frequent coming over hither it is no wonder if that Tongue being the Language of the Court was generally understood and spoken by all Noblemen Gentlemen and Lawyers so that I have heard it from a very good hand a person who is very well versed in Antiquity that a Gentleman being returned on a Jâ—ry in the Reign of Edward II. was excepted against because he did not understand French and hence it is that not only the Terms of our Law but also those of Heraldry Hawking and Hunting are almost all French to this day and tho' by the Statute of Edward the third which you but now mentioned all Pleas should be in English and not in French yet I desire you to take notice that this did no way extend to any matters of Process upon which suits are founded but that the Writs Declarations and all other matters of Record were always entered and enrolled in Latine from before the Conquest to this very day so that there was never any alteration as to that point these
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
if the King had seised all the English Estates without any Legal Tryal as for example in Essex in Barnstable hundred In Burâ de istis Hidis est una de hominibus soris sactis erga Regem and this was the way of expression in the Active Voice we find in Noâ—folk Earl Ralf held such Lands Quando se foris fecit But more particularly in Cambridgeshire in Wardune Hardwin holds of Richard's Ancestors but Ralf Waders held it Die quo deliquiâ— contra Regem all which would never have been inserted could this King have taken away mens Lives and Estates without any colour of Law or Justice and therefore you may find in all the Historians of his time that after the great Plot wherein so many Norman as well as English Lords were concerned and for which Roger Earl of Hereford and Ralph Earl of Norfolk and Suffolk both Normans had conspired with Earl Waltheof and other English Lords to call in the Danes and dispossess the King yet they were convicted by a legal Tryal of their Peers and suffered death for it So that in this he distributed equal Justice to the Normans as well as the English who thereupon forfeited all their Estates and yet notwithstanding this there were some Native Englishmen still lest who tho' they had been in Arms against the King at the beginning of his Reign yet were nevertheless reconciled to him and restored to their Estates as for example Ederic Sirnamed the Forester who as Florence of Worcester tells us was reconciled to King William and accompanied him into Scotland soon after as also Herward the Son of Leofric Lord of Brunne who having lost his Estate and being Out-lawed as Ingulph tells us Took Arms against the King William and joyned himself with those in the Isle of Ely and yet after divers great Battels as well against the King as his Commanders yet at length having obtained his Inheritance by the Kings allowance he finished his days in Peace and now here were two considerable English Barons which still enjoyed their Estates notwithstanding all King William's severity and yet I do believe it will puzzle your Dr. to shew me their names in Doomesday-book so that that Book alone is not it seems a certain Rule to discover what Englishmen were then Barons or Tenants in Capite But admit all this to be true as you your self have represented it can this Kings perjury to his Subjects and breach of all Laws after so many solemn Oaths give him a right as a Conqueror over the Lives and Estates of his English Subjects and that after he had solemnly renounced his Right of Conquest by so many solemn transactions with his Subjects with whom you suppose he still made War after he had for so many years laid down his arms at this rate I cannot tell when subjects may be safe for let Kings that come to a Crown by a mixt title partly by force and partly by right take never so many Oaths to maintain the ancient constitution of the Government together with the Rights and Priviledges of the People 't is but his saying afterwards when he hath sufficient power that they were forced upon him and that he never designed to keep them and his business is done and he may then take away his Subjects Lives and Estates by this pretended right of Conquest whenever he pleases nor does this only extend to himself alone but to all his Heirs and Successors who claim under that Title let them take never so many Coronation Oaths or make never so many Declarations to the contrary since they all claim under the same divine Title of the Sword that is as you will have it receive their Crowns immediately from God and then can never forfeit them let them tyrannise to the utmost degree imaginable for you have provided them with two easie and pleasant excuses that all promises are either broken or kept and Stultám Sacramentum est Frangendum and I cannot but smile to see what an excellent excuse you have found out for all the breach of Oaths and Covenants of those engaged in the late Civil Wars since they might very well plead they had so many Royal Presidents for so doing as sufficiently authorised it unless you will have that to be Perjury in Subjects which must be a Divine Prerogative in Kings And therefore let me tell you I am very glad for your own sake that there is no body here but you and I since all the company would have cryed out and said that this way of arguing were to make open War not only upon all the Laws and Priviledges of this Nation but also to put the King and People in a state of War against each other for if he once declares by such Overt Acts as these of King William's that he will not be tyed neither by his Coronation Oath nor by any Laws he has made I doubt their Oaths of Allegiance will not long bind them neither and they will be very ready to reply that whatever power began and is continued by force and violence may also be cast off by the like means and when a King and his People are brought once into this state it is easie to foretell what will be the event either he must turn out or they must be all Slaves and I wish it was not owing to such Jesuitical flattering Councils as this that the King first lost the Affections of his People and then his Crown since Father Peters himself with the rest of the Jesuits and Arbitrary Ministers of the Cabal could never have instilled worse Principles than these therefore I pray for the future either get better reasons or keep those to your self But God be thanked both King Iames and K. Charles the First had much better thoughts of the Laws and Liberties of the Nation since the former hath solemnly declared in a Preamble to the second Act of Parliament in the first year of his Reign That not only the Royal Prerogative but the Peoples security of their Lands Livings and Priviledges were secured and maintained by the antient fundamental Laws Priviledges and Customs of this Realm and that by the abolishing or altering of them it was impossible but that present confusion will fall upon the whole state and frame of this Kingdom And his Son was of the same opinion in his first declaration at the beginning of the late Wars The Law says he is the Inheritance of every Subject and the only security he can have for his Life or Estate and the which being neglected or disesteemed under what specious shew soever a great measure of infelicity if not irreparable confusion must without doubt fall upon them M. If I had no love at all for the Government and Liberties of my Country as I thank God I have a great affection for both yet should I not have the Impudence to contradict the sense of two Kings and a Parliament neither have I so
same right by which they took upon them to make this Declaration by the same right not only every Curate of a Parish but also every Layman in England was free to Judge of the Kings breach of this Law and consequently of denying obedience thereunto which disobedience if it once prove general will quickly make the Kings personal commands wholly insignificant So that it seems it is not the Peopleâ— Judging of the Illegality of the Kingâ— Actions and Commands which is the thing you 〈◊〉 fault with since when these Bishops acted thus all the high men of the Church of England praised it to the Skie So that it seems it is now the bare Censuring and Disobedience that makes it a crime but it is the iâ—sisting such Violent and Illegal orders and commands and at last Declaring that Power void and forfeited by which they were made That sticks in your stomach which is as much as to say that this Judging and Disobedience in its self is no Crime but the pushing it home and doing it in such a way as that it may be mended for the future though this is never lawful to be done but when things come to that extremity that all milder remedies are become ineffectual But to answer your Objections a little more closely the consequences of my Opinion are not so dangerous as you suppose them if you will please to consider what I have already laid down at our last Meeting As first That this Resistance is never to be made but when this violent breach of the Laws becomes evident and undeniable not to the Rabble alone but to the whole Nation that is all sorts and degrees or men and as long as there is any question about it I acknowledge it is by no means to be used And lastly As to declare the Regal Power forfeited this likewise is never to be done but when the King becomes so obstinately resolved to pursue those evil and illegal coâ—â—es as that he is utterly irreclaimable and refuses all propositions and terms of amending or redressing them And as to what you say that the King is hereby depriv'd of all means of justifying himself or vindicating his Actions that is not so since if a War be once begun he may do this either by Declaration or Treaties as King Charles the First did in his War with the Parliament by which means he gain'd a great many both of the Nobility Gentry and Commonalty to his Party who were before absolutely set against him But if you will needs have a Parliament to Judge and examine the reality of this forfeiture I so far joyn with you that though every private man may first judge thereof yet is it not become absolute and an Act of the whole People till the Estates of the Kingdom have by some solemn Vote or Declaration made it so M. Well I see you do all you can to make the best of a bad Cause but though I think nothing of what you have said can give Subjectâ— any right to resist much less to cast off all Allegiance to their Natural Prince yet I shall not now dispute this point any longer with you but will proceed to the merits of the Cause and shall lâ—â— you see that even upon your own principles the King has not been dealt 〈◊〉 in all this whole transaction either like an Ally by the States General of the United Provinces or like a near Relation or a Son in-law by the Prince of Orange or like a King by his own Subjects To begin with the Estates in the first place it is apparent that they have acted treacherously with the King and contrary to the last Treaty of Peace and Alliance in furnishing the Prince 〈…〉 their Captain General and 〈◊〉 holder both with Ships Men and Money and make this late Expedition against England without so much as ever declaring the cause of their Quarrel or demanding any satisfaction if any occasion of difference had been given But the Prince of Orange his dealing with the King his Father-in law has been much less justifiable for in the first place he is not only guilty of the same fault with his Masters the Dutch in beginning a War without ever declaring the causes of it or demanding any satisfaction or â—eparation if he had been injur'd till it was too late to go back and that his Fleet was ready and the Army shipt for the Expedition but which was more unkind from a Nephew and a Son-in-law who had reason to expect all the satisfaction which a King an Uncle and a Father-in-law could give though indeed to speak the truth the whole War was in my Opinion altogether unjust on the Pâ—â—nces side since his chief pretences were to redress Grievances and to re-establish the Bishops and Church of England with the Colledges in their just Rights and also restore the whole Nation to the just Execution of the Laws by a Free Parliament and Priviledges Now I desire to know what the Prince of Orange had to do either as a Neighbour or a Son-in-law to concern himself with the Mis-government of the Affairs of England much less to countenance and take the part of those many Male contents and Traitours who have ever since the Duke of Manmouth's Rebellion gone over into Holland So that upon the whole matter I can find but one thing which he had so much as a pretence of making War about if it had been real viz. the pretended suppoâ—â—â—tioâ—s Birth of the Prince of Wales and yet even for this he ought not to have made War till such time as all reasonable satisfaction in this matter had been demanded and denied him and that the next Parliament which the King had before declared should meet in November last had been either hindered from medling in it or that they had faâ—â—'d to make a due enquiry into it But if we look home F. Pray Sir before you come to consider what has been done here give me leave to iustifie the late proceedings of the States General and the Prince of Orange in this matter First as to the Estates it is a very great mistake for you affirm that they made this War upon the King in their own names or furnish'd the Prince of Orange with Ships or Men as their Sâ—adt-holder or General but only as a free Independent Prince whom they looked upon to have a good Cause of making War against the King of England as one they had great cause to believe was so far engag'd in the France interesâ— as instead of standing 〈◊〉 in this War with the Empire which they every day expected when he would joyn with France and declare War against them as they had reason to â—ear by several angry Memorials which the French King's Eâ—voy in Holland had not long before given them so that indeed it was but according to the Rules of Self-preservation to begin first especially when it might be done without their appearing in it at allâ— but granting
their Judgments And as for what you say that the Prince ought first to have tryed whether the King and Parliament would give him that satisfaction he demanded This was very dangerous for him to hazard for supppose the King would never have permitted this affair to have been impartially inquired into by them or that the Parliament had been as it was very likely to be packt and made up of Papists Fanaticks and Time-servers who either would not or else durst not have examined this matter as they ought His Highness had been then to play an after-game the next year and what might have happened in the mean time God knows And therefore he had all the reason in the World whilst the French Kings Arms were imployed in Germany to demand satisfaction with the Sword in his hand This is what I have to say in justification of His Highnesses Arms which if they are just on his side I think I can as easily prove what has been done for his Assistance by the Nobility Gentry and Commons of this Nation to have been so too M. I shall not any longer dispute whether the Dutch and the Prince of Orange may not make some fair pretences for what they have done since making War for security by way of Prevention is no new thing in the World though I confess what you say in respect of the Prince of Wales had been a sufficient cause of War had there been any true grounds for that suspition but since there was no just cause given why his Highness should suspect his Birth not to be Genuine and that even in the present Convention it self there could be no proof made to the contrary I think it is now evident that it was a wicked and unjust Calumny upon his Majesty and the Queen since he himself in the last Paper he left behind him at his going away Appeals to all that know him nay even to the Prince of Orange himself that in their Consciences neither he nor they can believe him in the least capable of so unnatural a Villany nor of so little common Sence to be impos'd on in a thing of such a nature as that But as for those noble Men and Gentlemen who have declar'd for the Prince of Orange since his expedition I think that they are no way to be justified since granting them to have been satisfied that the Princes demands were lawful and reasonable yet sure they ought not to have taken up Arms on behalf of a Forreign Prince against their Natural Sovereign but if in their Consciences they had believed his quarrel to have been just the utmost they could have done had been to have stood Neuters without concerning themselves either with the one or the other party and then if the Prince had gain'd his point either by Arms or Treaty they might have enjoy'd the good effects of it without breaking in upon the Church of Englands Principles of Passive Obedience and Non-resistance and so many Acts of Parliament made but as for those Officers and Souldiers who so basely and perfidiously Deserted the King at Salisbury and ran over to the Princes Army with their Commissions in their pockets they cannot possibly be justified either by the Law of the Land or that of Nations since certainly they acted contrary to both F. Before I speak any thing concerning the business of the Prince of Wales give me leave to say something in Justification of those Noblemen and Gentlemen you so highly accuse and though we Discoursed something of this matter at our last meeting yet since you have again renewed the charge against them I cannot but again vindicate them in what they have done in the first place pray call to mind that it has sufficiently appear'd by the small Forces his Highness brought over with him that he never intended to Conquer this Kingdom or impose any thing upon it contrary to the known Laws and Customs thereof and therefore as appears by his Declaration his chief hopes of Success against so Numerous an Army made up of the flower of three Nations depended on that assurance he had of some Considerable Assistance from the Nobility and Gentry of Eng. and perhaps from some of the Officers of the Kings own Army and that this was lawful in both of them I thus prove you may remember I made out at our last meeting but one that when the Nation lay under any great intollerable Oppression by reason of the violation of their Just Rights and Liberties the Clergy Nobility and Gentry thereof did always look upon it as their Right and Duty to vindicate the same by a vigorous Resistance when no gentler means could suffice Secondly I have proved that it neither was nor could be the intent of those Oaths and Declarations made in the two first Parliamenâ—s of King Charles the Second to deliver up their Lives Liberties and Estates wholly to the Kings Mercy let him use them as he pleased and if they did not it must necessarily follow that upon the Kings Violation of their Religion Liberties and Properties they had still a Right left them to defend themselves from such Oppression and Tyranny Lastly I have also proved as the Convention also lately declared that the King by his exercising his Dispensing Power by Committing and Prosecuting the Six Bishops by setting up an Ecclesiastical Commission contrary to Law by Levying Mony by his Prerogative without or contrary to express Acts of Parliament and by Raising and keeping up a standing Army in time of Peace Commanded by Officers who had never taken the Test appointed by the Statutes for that purpose and consisting of so many Popish Souldiers who having never taken the Oathâ— of Supremacy and Allegiance were altogether uncapable of serving in his Majesties Army and by doing divers other things contrary to the known Laws Statutes and Freedom of this Realm too long now to particularize had broken the Fundamental Constitution of the Kingdom This being the Case I desire to know of you how it was possible for the Nation to have a firm and setled Redress of these Grievances without a Free Parliament Or how it was possible to obtain this Parliament the late taking away of Charters and Regulation of Corporations considered unless those Obstacles had been first removed And how could they be removed without some force proportionable to what the King had raised to hinder it I cannot tell And therefore it is a very vain Project of yours to suppose that those Noblemen and Gentlemen should have stood Neuters and not have declar'd themselves some way or other in this quarrel which is all one as to say they ought to sit still and see a Generous Prince ruin'd who had come in for their Redemption and to have then expected a remedy for all these illegal Violations and Oppressions when the King had kill'd or destroy'd the Prince of Orange and his Army or that the King would then have yielded to all the same Conditions that
But it is very strange to me that none of them deposed any thing concerning their seeing any Milk come from Her Majesties Breasts after she was Delivered And perhaps there was good reason for it for I have had it from good hands that she had none afterwards whatever she had before the reason of which deserves to be enquired into since it is very rare But as for the Mid-Wife her deposition is equivocal That she took a Child from the Body of the Queen She is also a Papist and consequently a suspected witness in this cause Whereas all this might have been prevented had the Queen were she really with Child been perswaded to be Delivered not within the Bed but upon a Pallate where all the persons whose business and concern it was to be present might have seen the Child actually born nor needed there to have any men been by though I have heard that the late Queen of France was Delivered of the present King the Dake of Orleans not being only present in the Room but an Eye-witness of the Birth And so sure if somewhat of this nature had been done it might have saved a great deal of dispute and bloodshed which has already or may hereafter happen about it And therefore I do not at all wonder that the Prince of Orange should not take this partial Evidence that has been given for sufficient satisfaction so that whether this Birth of the Queens was real or not I shall not now farther dispute It is sufficient that if His Highness and His Princess had just and reasonable suspitions of an Imposture whilst they remain under them they had also a just cause of procuring a Free Parliament to examine this great affair and also to obtain it by force since it was to be got no other way M. I need not further dispute this business of the Prince of Wales with you since I durst appeal to your own Conscience whether you are not satisfied notwithstanding these supposed indiscretions in the management of the Queens Delivery that he is really Son to the Queen and I think it would puzzle you or I to prove the Legitimacy of our own Children by better evidence than this has been and I think all those of your party may very well despair of producing any thing against it since the Prince of Orange himself has thought it best to let it alone as knowing very well there was nothing material could be brought in evidence against him But I shall defer speaking further to this Head till I come to consider of the Conventions setling the Crown upon the Prince and Princess of Orange But before I come to this I have many things further to observe upon the Princes harsh and unjust proceedings with his Majesty and refusing all terms of Accommodation with him upon his last return to London In the first place therefore I must appeal to your self whether It were done like a Nephew and a Son-in-Law after the King was voluntarily returned to White Hall at the perswasion of those Lords who went down to attend him at Feversham when he had had scarce time to rest him after his journey and the many hardships he had indured since his being seized in that Port and when he had but newly sent my Lord Feversham with a kind Message and Complement to the Prince inviting him to St. Iames's together with some overtures of Reconciliation as I am informed the Prince should make no better a return to all this kindness than to clap up the Messenger contrary to the Law of Nations as his Majesty observes in his Late Paper I now mentioned And should without any notice given to the King of it order his men to march and displacing his Majesties Guards to seize upon all the Posts about White-Hall whereby his Majesties Person became wholly in his Power And not content with this he likewise dispatcht three Lords whose names I need not mention to carry the King a very Rude and Undutiful Message desiring him no less than to depart the next Morning from his Pallace to a private House in the Countrey altogether unfit for the reception of his Majesty and those Guards and attendance that were necessary for his security Nor would these Lords stay till the Morning but disturbing his rest delivered their Message at Twelve a Clock at Night nor did they give him any longer time than till the next Morning to prepare himself to be gone and then the King was carried away to Rochester under the conduct not of his own but of the Princes Dutch Guards in whose custody his Majesty continued for those few days he thought fit to stay there till his departure from thence in order to his passage into France by which means the Prince hath render'd the breach irreconcileable between his Majesty and himself for whereas if he had come to St. Iames's in pursuance of the Kings Invitation and had renewed the Treaty which was unhappily broke off by the Kings first going away there might have been in great probability a happy and lasting reconciliation made between them upon such terms as might have been a sufficient security for the Church of England as also for the Rights and Liberties of the Subject which you so earnestly contend for whereas by the Conventions declaring the Throne vacant and placing the Prince and Princess of Orange therein they have entail'd a lasting War not only upon us but our Posterity as long as his Majesty lives and the Prince of Wales and his Issue if he live to have any are in Being F. I confess you have made a very Tragical relation of this affair and any one that did not understand the grounds of it would believe that King Iames being quietly setled in his Throne and the Prince of Orange refusing all terms of reconciliation had seiz'd upon his Pallace and carried him away Captive into a Prison whereas indeed there was nothing transacted in all this affair which may not be justified by the strictest Rules of Honour and the Law of Nations for the doing of which it is necessary to look back and consider the state of affairs immediately after the Kings leaving Salisbury and coming to White-hall where one of the first things he did after he was arrived was to issue out a Proclamation for the calling a new Parliament which was so received with great satisfaction by the whole Nation and immediately upon this the King sent the Lords Hallifax Nottingham and Godolphin to treat with his Highness upon those Proposals of Peace which he then sent by them and to which the Prince return'd his answer the heads of which are very reasonable without demanding any other security for himself and his Army than the putting of the Tower and Forts about London into the Custody of that City now pray observe the issue of all those fair hopes before ever the terms propos'd by the Prince could be brought to Town the King following the ill advice of the
commanding a Centry to be drawn off from his usual Post he could never have gone away without being discovered and if he would have gone away at Noon Day I know not who unless the Rabble would have hinder'd him so that I think it is evident that this was the civilest and mildest usage that a vanquisht Prince could expect from him that had so much the better of him and in whose power he now was and I doubt more than the King would have allowed the Prince had it been his Fortune to have got him as much in his power nay the King was so far from being confin'd that it is plain he had the liberty given him to go whither he pleased nor were these Guards plac'd so much about him for his confinement as to secure him from the insults of the Rabble who otherwise there as well as they did at Feversham might have expressed too violent a resentment against his Person M. I cannot deny but you have given a very-fair and as far as I know a true account of this transaction and have told me some things which I never heard before but however I cannot depart from my first opinion that it was neither honestly nor wisely done of those who took upon them to advise the Prince to push things to extremities in this conjuncture and therefore I impute it chiefly to those English who supposing they had by taking Arms and joyning themselves to the Princes party provoked the King beyond all possibility of Pardon were resolved to do their utmost to put it out of the Kings Power ever to call him to an account for it and tho' perhaps his first sending away the Queen and Prince and then going away himself in the middle of a Treaty with the Prince and thereby leaving his Affairs in such confusion may seem to deserve blame yet certainly his Majesty is to be excused in a great measure for what he then did for as he tells the Earl of Feversham in his Letter to him to Disband the Army That things being come to that extremity that he was forced to send away the Queen and the Prince his Son that they might not fall into the Enemies hands and was also constrained to do the same thing himself and follow them since the Troops of his Army were not to be relyed on that it was not adviseable for him to Fight the Prince of Orange in the Head of them for it was but reasonable that Princes as well as other men should provide for their own security as well as they can But yet I can never believe that his Majesty's first going away was any Abdication of the Government much less a forfeiture of his Crown or Royal Dignity any more than the second for in the first place it could be no forfeiture according to your own Principles because he had already Dissolved the Ecclesiastical Court and restor'd the Cities and Corporations to their former Charters and Freedom in Elections of Parliament-Men and putting again in Commission all Lords Lieutenants and Justices of the Peace who had been before turned out and if he could not give an intire redress to all our grievances by a free Parliament it was only because he durst not stay to hold it since he thought he could have no security for his Person the whole Nation being in a manner poisoned and prepossessed against him by those malicious Artifices of a French League and a suppositious Prince and that his Majesty had so many unfortunate disappointments and so surprizing and unparallell'd accidents part of his Army deserting him and the rest too apparently unserviceable when there were such terrible disorders in the Kingdom and all places were either flaming or about to take fire So likewise could it not be properly any wilful desertion or Abdication of the Government since he was forced to quit it like the master of a Ship who when the Vessel is like to sink is forced to leave her and escape in a Cock-boat and that his Majesty did not act thus without an intention to return and again to vindicate his right when opportunity served appears likewise in that passage in the above mentioned Letter wherein he desires both the Officers and Souldiers of his Army then to be disbanded To continue their Fidelity to him and to keep themselves from Associations and such pernicious things from whence it plainly appears he went not away without a prospect of returning to his Throne when Time should serve and if he left no orders at all for the Government of the Kingdom in his absence nor named any Commissioners or Lieutenants to represent him it was because he thought it to no purpose since besides that he could find no body who durst undertake so difficult an employment so they that had taken it would have found no body who would obey them the generality of the People and also of the Kings Army being more inclinable to the Prince of Orange than to himself Yet however you see upon his return to Town the King was so well persuaded of the Prince of Oranges kind intentions towards himself and the Nation that I verily believe that his Majesty would have yielded to any thing that could in reason have been desired of him and upon this ground I suppose he writ so kindly to the Prince and invited him to come to St. Iames's with what Troops he should think fit for his security therefore I must needs tell you again I think it was a great oversight of the Prince of Orange thus to let slip this opportunity by refusing all terms of accommodation with the King his Father and by clapping up my Lord Feversham then seizing the Kings Person and sending him out of Town to let all the World see he was resolved to treat no more with him and this being the true state of the case it is not your saying that he had forfeited his Crown by going away and consulting his own safety that will convince any unprejudiced man for as to your notion of a forfeiture that they were not then entred into the Thoughts of the Peers and others of the Privy Council appears by the Order they made for sending the Lords Feversham Alesbury â—armouth and Middleton most humbly to intreat the King to return to White-hall so that he was received very joyfully and with great Acclamations of the Common People as he passed through the City and when he came to White-hall he called a Council where he made an Order to stop the demolishing and plundering of Houses by the Rabble so that he was not only receiv'd but also acted as a King after his return to Town This being the true state of the case I shall not dispute the point whether his Majesty and the Prince were in a state of War or Peace after his return to Town or what the Prince might have done as an Enemy and a stranger to the Kings Person but what might be expected from him as
was a man and better acquainted with England and having the Interest of the Arch-bishop of Canterbury and most of the great men were of his party and yet for all that Hoveden who was alive at this time speaks not a word of his being Elected but only that upon his coming into England he was received by the Nobility and Crown'd by Hubert Arch-bishop of Canterbury so that there is not one word there of any Election by but only a submission from the Lords Spiritual and Temporal to King Iohn and a recognition that he was their King nor indeed could he need it if it be true what the same Author tells us That when King Richard despar'd of Life he devised to Iohn his Brother the Kingdom of England and all his other Lands and caus'd all those that were present to do him Fealty and this is related by Hoveden in all probability an Eye Witness of these transactions So that the first Author we find to mention any thing of the particulars of this pretended Election is Mâ—tthew Paris who has given us the Speech which the Arch-bishop made at this supposed Election and also reciting the Arch-bishops Bishops Earls and Barons and all others who ought to be at his Coronation the Arch-bishop standing in the middle of them said thus Hear all of you your Discretion shall know that no man hath right to succeed in this Kingdom unless after seeking God he be unanimously chosen by the University of the Kingdom that is those that are here said to meet at London the rest of the Speech needs no repeating only he lays it down for Law which I think was never heard of before That if any of the Progeny of the dead King did excel others they ought more readily to consent to the Election of him and so upon this Speech made in behalf of Earl Iohn and full of a great deal of fulsom slattery he was declar'd King But to let you see what a sort of Man this Arch bishop Hubert was here see what the same Author tells us in the same place that being asked afterward why he said these things answer'd That he guested and was thought ascertained by certain Prophecies that Iohn would bring the Kingdom and Crown into great Confusion and therefore lest he he might have too much liberty in doing he affirmed he ought to come in by Election and not by Hereditary Succession Now though this Learned Doctrine of the Arch bishop asserts a right of Election in the Convention of Bishops Earls Barons c. yet by his own answer when he was asked why he said these things it clearly discovers it to be only a design and artifice in the Archbishop to cause them to set up and make Iohn King and in which also he denies any such right of Election but since Hoveden nor any other of our antient historians make mention of this Election but only of his Coronation and the Bishops Earls and Barons assisting at it not giving their consents to it it may very well be that that story of an Election and this Speech of Arch bishop Hubert might be only an invention of Matthew Paris or rather of Roger of Wendover from whom he took most of his History but that this doctrine of the Arch-bishop concerning the Election of our Kings if meant according to the modern understanding of it was then new Gervase a Monk of Canterbury in the year 1122. who also speaking of the Coronation of Henry the First says it was manifest and known almost to all men that the King 's of England were only obliged and bound to God for the possession of the Kingdom and to the Church of Canterbury for their Coronation manifestum est autem omnibus fire notum Reges Angliae soli Deo obligari teneri ex ipsius regni adeptione Ecclesiae Cantuariensi ex Coronatione But that King Iohn was looked upon as an Usurper is very certain since besides some of the honest English Nobility that took Duke Arthurs part the King of France did also make War upon King Iohn upon his Nephews account because he looked upon him as true Heir to the Crown and therefore when K. Iohn had privately made away his said Nephew in prison the K. of France summon'd him as Duke of Normandy and Peer of France to answer for the Murther in an Assembly of the Peers of France at Paris where for his refusing to appear he was condemn'd to death and his Dukedom of Normandy declar'd forâ—eited to the King of France F. I confess you have said as much as can be to prove that King Iohn had no Hereditary Right to the Crown nor was so solemnly Elected to it as Matthew Paris relates but yet for all this I think I may very justly oppose all that you have now said upon this Head for in the first place it was then very much disputed as it hath been also since that time if an Elder Brother died and left a Son a Mâ—nor whether his Younger Brother or the Son should succeed for though the People of Anjou and those of Guienne own'd Duke Arthur for their Prince yet the States of Normandy were of another mind and as well by vertue of King Richard's Testament he was immediately after his Death invested with that Dukedom nor was he then at all opposed in it by the King of France though Supreaâ— Lord of the Fee and as for England besides his Brothers Testament whereby he left him Heir of all his Territories it was also then generally held in England as most consonant to the Antient English Saxon Law of Succession that the Uncle should succeed to the Crown before the Nephew therefore it is no wonder if Duke Arthur found so small a party here not any Bishop Earl or Baron as I read of owning his Title and as for the King of France it is also as certain that he did at first own King Iohn for lawful King of England and Duke of Normandy and entred into a Treaty of Peace and made a League with him as such though it is true that afterwards when he had a mind to pick a quarrel with that King he then set up Duke Arthur's Title And though this Duke was made away in the beginning of King Iohn's Reign yet did not the King or Peers of France ever take any notice of it till about twelve or thirteen years after when he had now unjustly Conquered all Normandy and almost all that Kings other Territories in France and then wanting a Title to keep them he began this Prosecution you mention against him and upon his non appearance he was condemned unheard but that the King of France himself and all the great men of that Kingdom did look upon him to have been lawful King of England appears by that Speech which Matthew Paris relates to have been made after King Iohn's Deposition by the Barons of England by a Knight whom Prince Lewis
ordered and disposed of all publick Affairs conferr'd Offices and Bishopricks as if they were lawful Kings before your pretended Election or the ceremony of their Coronation and also had Ambassadors sent to them from Foreign Princes as appears from your own Quotation out of Hoveden Of those that were sent by the King of Scots to King Iohn before he was crowned though it is true he there stiles him no more than Duke of Normandy And this also may further appear by that passage I have cited out of the same Author that King Richard had Fealty Sworn to him as King of England by all the Freemen of England before he was Crown'd and you your self acknowledge the same Oath to be taken by the same persons to King Iohn before he came over to take the Crown And Lastly To make it yet plainer that there was no Vacancy or Inter-regnum in all these Successions you have mention'd consult what Chronologer you please or look into the most ancient Tables of the Succession of our Kings of England or into our old Printed Statutes or Law Books and you will still find the Reign of the Suceeding Prince to commence from the Death of his next Predecessor without any Vacancy or Inter-regnum between And these I think to be a great deal surer marks of their succeeding to their Royal Dignity by a pretence at least of a right of Inheritance from their Father or Brother rather thau this fancy of yours that you lay so much stress upon That because of their not being stiled Kings by our Historians till their pretended Election and Coronation was over they were not so indeed And I hope this may serve to satisfie this mighty Objection F. I must beg your pardon if I still declare my self not satisfied with your answers for though I grant that if this Argument of the Historians not stiling them Kings had stood single without any thing else to support it that your answers might have signified something But if you please better to consider it you will find that of these Princes taking in William your Conqueror claimed as your self must acknowledge not by any Hereditary right but by the Testament of the deceased Predecessor and if so where was your setled right of Succession by right of Blood Secondly It is likewise as plain that these four were never admitted or acted in England as lawful Kings till those Testaments were confirmed by the Election of the Great Council before whom they declar'd their Rights And till this was done how the Throne could be otherwise than Vacant I cannot for my Life conceive But as for two of them whom you call downright Usurpers viz. Henry the I and King Stephen it is certain they could have no colour of a Title till their Elections and if not till then and that neither your next Heir of the Crown nor yet they themselves took upon them the Title of Kings Was not this a Vacancy of the Throne in the mean time Suppose that time to have been but for the space of three or four days as it was after the death of King William Rufus In the next place pray consider that upon the death of every one of these Princes we do not find the Great Council of the Kingdom which still assembled to Elect the Successor was ever call'd in their names but met by their own Inherent Authority for how could they be summon'd by the King before he took that Title upon him which as your self are forced to acknowledge he never did till after his Coronation Lastly Pray remember farther that whoever was thus Elected and Confirm'd by the Great Council whether he was next Heir by Blood or not was always looked upon as Lawful King and has always passed for such in all our Chronicles and Laws and not those that claimed as the right Heirs by Blood and if this be not sufficient to prove that these Princes had no true and compleat right to the Crown till this Election was past I desire you would shew me my mistake These things premis'd I think it will be very easie to reply to every one of those answers you pretend to have made to my Query Therefore as to your First That they were really Kings before their Election or Coronation because they order'd and dispos'd of all publick affairs I do not deny but that some of them who Succeeded either as Heirs by Testament or by right of Blood might do many publick Acts by reason that they looked upon themselves as Heirs Apparent to the Kingdom and whom the Great Council I grant could not without high Injustice set aside and upon this account they might also receive Ambassadors from Foreign Princes in Affairs relating to Peace or War that they might know how to deal with them or what to expect from them after they were setled in the Throne yet that they sent not to them by the Title of Kings appears by that passage I cited out of Hoveden but I defie you to shew me any one instance that any of these Princes above mention'd ever took upon them to exercise any of those Prerogatives of Sovereign Power such as making War or Peace Enacting Laws Coining of Money before their Election and Coronation which though in some of them was done both at once yet in others it appears plainly to have been at different times and not upon the same day as it happen'd in the case of Henry I. whose Election was at Winchester upon Saturday and his Coronation was not till the next day as also that of Henry the 3 d. whose Election was upon St. Simon and Iude's Day but his Coronation not till the day after But as for your next reply which I grant to have been the strongest you have made that King Richard I. and King Iohn had both of them Homage and Fealty sworn to them as Kings by all the Freemen of England before they were Crowned this were a material argument if it were made out as I think it cannot for in the first place the bare swearing of Homage and Fealty to a Prince doth not make him immediately King though I grant it might give him in that Age a right to be looked upon as Heir Apparent to the Crown thus Henry the I. made all the Lords and Great Men of England to swear Homage and Fealty to Prince William his Son and so after his being drown'd to the Empress Maud his Daughter which was the true reason why she looked upon her self afterwards as Heiress to the Crown so likewise King Stephen a little before his Death at the great Council I have mention'd caus'd all the great men of the Kingdom to Swear Homage and Fealty to Henry Duke of Anjou as his immediate Successour so that you see this swearing of Fealty was in those days often perform'd â—efore the persons that received it were Kings indeed and so I believe it was done in both those instances you now give me for though I
grant that Hoveden as you cite him relates that Homage to be made and Fealty sworn to Richard the I. by the Title of King yet is it very much to be doubted whether this was not only by a Prolepsis or perhaps a slip of the Pen in this Author since he writ this History long aâ—ter King Richard's Death and therefore without we had the very words of this Oath there is no certain conclusion to be drawn from thence and I think we may as well credit the Chronicle of Abbot Brompton who likewise lived about the same time and recites all this affair almost in the same words with those in Hoveden but there the Oath does not run exactly in the same words as in this Author but thus quod unusquesque liberorum hominum totius regni Iuraret quod sidem portaret Domino Richardo Domino Angliae filio Domini Regis Henrici c. ficut legio Domino suo contra omnes mortales where you see the Oath is not made to King Richard as King but only as Lord of England and that there is a great deal of difference between those two Titles not only in name but in Substance I have already prov'd when I spoke of the Empress Maud's stiling her self Domina and not Regina Anglorum tho' she had Homage rendred and Fealty sworn to her not only in her Fathers Life time but also after her coming over again into England in the Reign of King Stephen by all that own'd her Title and that Hoveden himself meant no more than this appears by that passage I have already taken notice of viz. that Hubert Arch-bishop of Canterbury and William the Earl Marshal being sent over to keep the Peace made all the men of the Kingdom as well of Cities as Burroughs with the Earls Barons and Free-holders Iurare fidelitatem pacem Iohanni Normanorum duci filio Henrici regis filii Matildis Imperatricis contra omnes homines where you see the Oath is taken to him only as Duke of Normandy and not as King at all and therefore you are mistaken to say that Hoveden mentions the like Oath to be taken to Duke Iohn as it was before to King Richard But I come now to answer your last argument whereby you would prove that there was no Vacancy or inter-regnum in this Age which is because that our Chronicles and Tables of Successions do still begin the Reigns of each King from the day of the Decease of his Predecessors without any Vacancy or Inter-regnum between them to which I reply That none of our antient Chronicles or Historians reckon thus as I know of but rather acknowledge a Vacancy of the Throne to have been between each Succession and as for the Tables of the Succession of our Kings when you can shew me one more antient than the time from which I grant the Crown of England began to be looked upon as a Successive and not an Elective Kingdom I shall be of your opinion but admit it were so since the Succession to the Crown has been for the most part mixt partly Elective and partly Hereditary our Kings might to maintain the honour of their Title still reckon their coming to the Crown immediately from the death of the last Predecessor tho' there has been oftentimes some days and weeks between the one and the other as I have now proved and shall prove farther by and by which being but small fractions of time are not taken notice of in the whole account which may be notwithstanding very agreeable to Law for both my Lords Dyer and Anderson in their Reports do agree That the King who is Heir or Successor may Write and begin his Reign the same day that his Progenitor or Predecessor dies M. It will be to no purpose to dispute this point with you any longer since I must confess that there were so many Usurpations in the Succession of most of those first Kings after the Conquest that it is a difficult matter to prove any setled rule of Succession to have been then observed in England and therefore I only desire you to take notice that though it is true King Henry the 3 d was an Usurper for the first Twenty five years of his Reign yet for all the rest of it which was near Thirty more he was a true and lawful Prince for Elianor his Cousin being dead in Prison without issue and there being no more of that Line left her Right wholly devolved upon King Henry and he and his Children are to be from henceforth reckon'd to have a true Hereditary Right to the Crown without any Competitors And that this was so will plainly appear from the Testament of King Henry the 3 d. a Copy of which I have by me where tho' he Bequeaths a great many of his Jewels to the Queen and a great deal of Money to charitable uses yet for this Kingdom and other Territories in France and Ireland he makes no Bequest of them at all either to Prince Edward his Eldest or to Edmund his youngest Son tho' his Father King Iohn had bequeathed the Kingdom to him by his Will as you have already shewed and what could be the reason of this But that there being now no Title left to contest with his Son there was no need of it and therefore tho' Prince Edward was absent in the Holy Land when his Father Died yet a great Council being call'd in his Name at London he was there only recognized and acknowledged to be their natural Leige Lord and Lawful Successor to his Fathers Throne pray read the words as they are in Walsingham's Life of this King Edwardum absentem Dominum suum Leigium recognoverunt paternique successorem honoris ordinaverunt we meet not here with any thing like Election which no doubt we should not fail to do if there had been any such thing practised So likewise upon this King's death his Son King Edward the 2 d. by the like Right succeeded as Heir to his Father and tho' this Prince by suffering himself to be too much guided by his Minions fell at length into such Arbitrary and Irregular courses as procured him the hatred and ill will of his Subjects to that Degree that by the Disloyal and Ambitious practices of his Lascivious Queen he being made Prisoner a Parliament was call'd in his name who took upon them to Depose him for his misgovernment contrary to all Law and Right and though his Son Prince Edward had hitherto join'd with his Mother against his Father yet is he herein so far to be commended that tho' the Crown was offered him by Election of the Great Council yet the same Author tells us he swore that without his Father's consent he would never accept it whereupon divers Messengers or Delegates being dispatched from the Parliament to the King then Prisoner at Kenel-worth Castle who told him what had been done and concluded of at London required him to resign his Crown and
one thing more to add in relation to somewhat I promised at the end of the Preface to the last Dialogue concerning the late Revolutions being different from the last Civil War and Murther of King Charles the First which though I have finish'd and thought to have inserted into this Discouese yet since it proves rather too long without it and that the Bookseller urges for its speedy Publication I have thought fit to omit it since also the greatest part of it relates to matter of fact which is variously stated by those who write the History of those times yet I shall make bold to give you the heads of those inquiries I have made and shall leave you to satisfie your self in these Points following first if after King Charles the first had not only passed all Bills for redressing those Grievances the Nation lay under at the beginning of the Parliament in 1640. but had also passed the Bill to make it not to be Prorogued or Dissolved without their own consents I say whether there were then any such violations of our Religion and fundamental Laws which should require the Parliament and Nations puting themselves in a posture of defence against the King's Arbitrary Power Secondly whether the fears and jealousies of Popery and Arbitrary Government which notwithstanding all that the King had done still troubled many Mens minds were a sufficient ground for the two Houses to demand the putâ—ing the whole Militia of the Kingdom out of his own Power into such hands as they should nominate and appoint Thirdly whether upon his refusal of their Adresses for the Militia their going about to take it out of his hands by force and particularly their shutting him out of Hull was not an actual making War upon the King when he was as yet unâ—armed and had given out no Commissions to raise Men or Arms. Fourthly when the War was begun whether the King did not in all his Messages to and Treaties with the Parliament propose and seem to desire Peace upon equal and reasonable terms Fifthly Whether the two Houses did not instead of complying with those reasonable Proposals still insist upon higher Terms as their Victories and Successes over the King increased Sixthly when the King was deliver'd up by the Scots whether the Parliament and Army did not keep him as good as a close Prisoner and vote no more Addresses to be made to him meerly because he refused to pass whatever Bills they brought to him Seventhly When at last he was forced by necessity to grant them at the Isle of Wight almost whatever they demanded whether he was not hurried away from thence by Cromwell's Army and for the major part of the House of Commons who had Voted the King's Concessions satisfactory excluded the House by force till the far less Party had reversed all that the rest had done and then Voted the King should he called to an account for making War upon the Parliament and for Treason against the Kingdom Eighthly Whether in pursuance of this they did not appoint Iudges to Trie the King who upon his refusal to own their Authority Condemned him to death and cut off his head before the Gates of his own Palace Ninthly Whether this fag end of a Parliament did not alter the whole frame of the Government both in Church and State destroying both Monarchy and Episcopacy and Voting the House of Peers useless and dangerous and setting up a Democratical Commonwealth or rather an Oligarcy in their stead consisting of about fifty or sixty Men wholly governed and awed by Cromwell and the Officers of the Army Now let any Man but impartially consider all these Transactions with the late Revolution and read what hath been said in the three last Dialogues and then let him tell meingenuously whether he thinks this Revolution hath been begun upon the like grounds and carried on by the same violent Courses or has ended with the same direful effects as the late Civil War and Murther of King Charles the First I have no more to propose on this Subject but only to wish that these Discourses written with a real design for the publick good and peace of my Countrey may be read with the like affection with which they were written and may really promote that end for which they were designed but if not that they may at least serve as an Impartial History to Posterity of those Principles and Opinions on which this late great Revolution hath been brought about in England and also those on which it hath been so violently opposed by the dissenting Party THE Thirteenth Dialogue BETWEEN Mr. MEANWELL a Civilian AND Mr. FREEMAN a Gentleman F. SIR I hope I do not interrupt you by coming too soon for the truth is since I intend that this shall be the last Dispute I shall ever have with you upon this Subject I was very desirous to have it dispatched as soon as I could that when I have once discharged the duty of an old Friend and Acquaintance my mind may be at rest which side soever you take M. Dear Sir I thank you and though I intended to go abroad this Evening upon an Appointment yet I will not put it off that I may enjoy your better Conversation therefore pray begin where you left off and prove to me that I may lawfully take this new Oath of Allegiance to King William and Queen Mary F. I cannot see any reason why you may not safely do it since our best Common Lawyers are of this Opinion for my Lord Coke in his Third institutes in his Notes upon the Statute of Treason the 25 th of Edward the III d gives it for Law that this Act is to be understood of a King in possession of the Crown and Kingdom for if there be a King Regnant in possession although he be Rex de Facto non de Iure yet is he Seignior Le Roy within the purview of that Statute and the other that hath Right and is out of possession is not within this Act c. And if it be Treason to Levy War against him or to Conspire his Death as long as he continues King it can only be so because the Subjects Allegiance is then due to him for that all Men have either taken the Oath of Allegiance or else are supposed to have done it M. I must beg your pardon if I cannot come over to your Opinion neither in point of Law or Reason for as long as I am perswaded in my Conscience that King Iames is King de Iure so long must the obligation of my former Oath last and I suppose that you will grant that it is as impossible to owe Allegiance to two Kings at once as it is to serve two Masters and therefore you must pardon me if I suppose that my Lord Coke depending too much upon the commonly received sence of the Statute of the Eleventh of Henry the VII th which he quotes in the Margin may be
should be so for it is not meerly a legal Title by descent but a legal investitute and recognition by Parliament that makes a legal King or a King in Law as it makes a legal Magistrate and then all Kings de facto who are placed in the Throne by a Legal Authority and with all Legal and acustomed Ceremonies are legal Kings and as such may require a legal Allegiance so that all those hard words in the Statute of the first of Edward the IVth that call those Kings of the House of Lancaster Kings in Deed and not of Right or pretended Kings mean no more than this that they were Kings for the time being and according to the Laws which had made them so though not according to that hereditary Right of Succession which those Statutes require If you have any thing to reply to this tell me or else I will proceed to answer your two other Arguments M. I will not at present say more to this than I have done and therefore you may proceed if you please F. Your two next Arguments are from the attainders of Richard the IIId and his principle Assistants which were by Act of Parliament as to that Prince himself as also his adherents the attainders of Kings de facto and their Assistants in after Parliaments do not prove that Subjects cannot be guilty of Treason against a King in possession nor does the Statute of Treason relate to a King de jure only for that Statute was not made to secure Princes Titles but the quiet of their Government whilst they sate upon the Throne for though a King if he be an Usurper when ever the Rightful King regains the Possession of his Throne if he were a Subject before may be attainted of Treason for his Usurpation as was Richard the IIId for Treason against his own Nephew King Edward the Vth yet this does no way prove that Richard the IIId was no true King during his Usurpation but only shews the Parliaments abhorrence of his Treason and to deterr others from falling into the like attainted him and several of his Accomplices who had assisted him in his said Usurpation for that they were not barely attainted for defending King Richard's Title appears from this that the Earl of Surrey Son to the Duke of Norfolk and divers other Noblemen and Gentlemen who fought for King Richard at Bosworth-Field were never attainted at all But as for the Pardon that you say passed in that Parliament of the 1 st of Henry the VIIth you are very much mistaken in the purport of it for if you please to look upon it again you will find that it was not a General Pardon for the Common People who had fought on the behalf of Richard the Third but of all those who had come over with Henry the VIIth himself or who were with him in the Field against Richard the Third for all manner of Murthers Spoils and Trespasses committed by them in taking part with King Henry against his Enemies so that you see the assisting of a King de facto was not only justifiable but those that had fought against him thought themselves not safe till they had their Pardons Nay farther that Attainders passed in Parliament are no proof that the Princes against whom they were passed were not lawful Kings appears from hence that when Edward the Fourth was driven out of the Kingdom and dispossessed of the Throne the next Parliament under Henry the Sixth passed an Act of Attainder against him and his Adherents But as for the Attainder of Henry the Sixth you are very much mistaken to suppose that it was for any Treason committed against Edward the Fourth but it was for breach of the agreement made with his Father the Duke of York and in making War again upon him for had he not done this he had continued lawful King during his life by the Duke of Yorks own consent for in the Parliament Roll you your self have already cited it is thus expressed That considering the possession of the said King Henry the Sixth and that he had before this time been named taken and reputed King of England and France and Lord of Ireland the said Duke is content agreeth and consenteth that he be had reputed and taken for King of England and of France with the Royal Estate Dignity and Preheminence belonging thereto and Lord of Ireland during his life natural and for that time the said Duke without hurt or prejudice of his said Right and Title shall take worship and honour him for his Sovereign Lord So that you see that by the Judgement of the Parliament and by the express consent of the Right Heir of the Crown a King de facto was to be own'd by this Right Heir for his true and lawful Sovereign and therefore could not be attainted for detaining the Crown from him or his Son M. I will not dispute this point any further but yet methinks though Treason might be comitted against the King de facto whilst he continues King yet this is not for any Allegiance due to him but because such Treason being against the due order of Government and the common peace of the Nation such actions are therefore Treason from the presumed or tacit consent of the King de jure F. I grant indeed that such Acts are against the Order of Government and very destructive to it which is the only reason why they are made Treason by Law and this is as good a reason why the Law should make them Treason against a King de facto as against a King de jure for they ere equally against the order of Government and destructive to it whoever is King and that is the only reason why they made it Treason at all Now this presumed or tacit consent of the King de jure is a very pretty notion and serves you for a great many good turns it makes Laws and it makes Treason and gives Authority to the unauthoritative Acts of a King de facto that is to say or you say nothing that the presumed consent of a King de jure invests the King de facto at the time with his Authority for if he have no Authority of his own unless what the presumed consent of the King de jure give him that cannot make any Treasonable Act done against him to be Treason for it cannot alter the nature of things nor make a Man guilty of Treason against any person to whom he ows no duty of Allegiance And if the presumed consent of the King de jure can invest the King de facto with his Authority it must transfer the Allegiance of the Subjects too and then Subjects are as safe in Conscience as if the King de jure were on the Throne for it seems there is his Authority and tacit consent though not his person But indeed this is all meer trifling the King de facto has Authority or else none of his Acts
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
secure in what he enjoys but by it nor can he have a right in a Countrey that is already possess'd to property but by owning the Government of that Countrey and when by enjoying the Rights and Priviledges of the Subjects of that Common-wealth he has own'd himself a member of it and a Subject to its Government he is then bound to maintain this Government and also the King that administers it from a double obligation the one particular in respect of himself and that protection he receives from him the other more universal proceeding from that duty which is incumbent upon every particular Subject to maintain the peace and happiness of the Common-wealth as long as he continues a Member thereof So that he is bound never to disturb it as long as the main ends of Government can be had and enjoy'd therein and this is the only means that I know of by which any man except by express Oaths and Promises can consent to become Subject to any single person or Government Now this tacit consent of particular persons being separately and singly given unthinking people take no notice of it and suppose they are as naturally Subjects as men and consequently that they have no more right to free themselves from their Subjection than from their Humane Nature nay must suffer themselves to be destroyed rather than endeavour it let the Government oppress them never so unmercifully which is indeed to reduce men to the condition of brute Beasts who belong to this or that Owner because he either bought them with his Money or else because they happen'd to drop from their Damâ— upon his ground From what has been here spoken I think we may deduce this general Conclusion that every ordinary Subject who enjoys the common benefits and protection of any Government iâ— bound in gratitude not only to obey it but also to be true and faithful to it during the time he lives under it and is bound likewise not to conspire against it and therefore that Oaths do not alter the nature of Allegiance or make it due where it was not before or any ways extend it but only add a new tye to pay that Allegiance which is due upon the account of protection He that lives under a Government though he has not sworn to it owâ— it the same Allegiance as he that has and if he should deny his Allegiance to it would be equally guilty of Treason though not of Perâ—ury It is evident by the universal practice of Mankind that no Subjects ever thought themselves obliged by those Oaths of Fidelity which all Governments have constantly imposed on them when they could not be protected by them and that this failure of Protection did not proceed from any fault in the whole Nation or People themselves And this may be prov'd by the common and constant practice of all the Subjects of Europe for who does not know that the Subjects of the King of France's last Conquests in Flanders have been forced to swear Allegiance to him though they were satisfied that his Title was unjust and that their Natural Sovereign the King of Spain to whom they had formerly sworn Allegiance is still living We have had also a late Example of the Subjects of the Duke of Hâ—lsâ—ein Goâ—torp who having both his person taken Prisoner and his Territories unjustly seiz'd upon by the King of Denmark in time of Peace the Subjects of the said Duke were forced to swear Allegiance to the King notwithstanding their former Oath to their Master nor do our Modern Casuists as I know of blame them for so doing And why the People of England should be tied to harder terms than all the rest of Europe I wish you could give me a sufficient reason since the Legislative Power of England wherein it is certain the People have a share are presum'd to recede as little as possible from natural equity and therefore design by imposing such Oaths only the good and preservation of the Civil Society whose interest it is that they who have the publick Administration of Affairs should not be disturbed but it is not at all material to that end whether this or that Man hath this power provided they are well managed nor can it without the greatest absurdity be suppos'd that such numbers of Men as Societies are compos'd of who are by nature equal should oblige themselves by the most solemn ties to become most miserable by living without protection nay to lose even their lives rather than own the Government that can and does protect them for no other reason but such an extraordinary fondness to this or that Person or Family as to fancy to be inseparable from him not to the necessaries or real conveniencies of life but only an Office for Government is no other which is but an imaginary happiness I grant therefore that People should be true to those that have the present administration of Civil Affairs is all that all Oaths of Fidelity require and it is evident from the intent of it that the late Oath of Allegiance required no more and to extend it farther than the King in Being is not reconcilable with the reason end and design of paying obedience which is the peace and happiness of the Civil Society which can never be maintain'd if people may for the sake of a single person disturb him that has the administration of their common Affairs and it would require impossibilities because private persons are incapable of paying Allegiance to a King when out of possession of the Government M. Notwithstanding what you have said I think I am able to convince you of divers great mistakes you have now committed in this Discourse of Natural Allegiance as also in the obligation we are under by the Oath of Allegiance to King Iames. For first as to Natural Allegiance you are very â—old to suppose there is no such thing when all your Law-Books hold so expresly that there is I am sure this is to be guilty of the fault for which you have already reprov'd me of being wiser than the Laws you are also much mistaken to suppose that this Natural Allegiance meerly springs from hence that the persons oblig'd by it are only such as are born within the Kings Dominions for persons born without the Realm may be also his natural Subjects as are the Children of Embassadors born beyond Sea and the Children of Aliens born within the Kingdom are not therefore Natural Subjects of the King so that the meer circumstance of Birth does not alone entitle any one to the priviledges of a Natural Subject nor consequently bind him to all the duties of Natural Allegiance But it is therefore called natural in our Laws because as the best Lawyers have affirm'd it is â—ounded upon the Law of Nature which gives the Sovereign power a right to the Allegiance of every one who is Born under the Jurisdiction of it As every Son is born a Subject to his Parents
open to him was too timorous then to have put in any Magistrates into Corporations but such as were for the Protestant Religion as it stands by Law establisht and such however angry they might be with those they call'd Whigs in respect of their opposing the Dukes succession to the Crown yet I believe most of them would never have given up the freedom of Elections of Parliament men or have done any thing to bring in Popery among us so that as long as things remained in this State there were some hopes still lest of a redress of our grievances whenever a Parliament had met and that the Nation was grown more cool and had come to it self again after those heats which had risen in the late Parliaments about the succession and other things whereas now the case was far otherwise in this Kings Reign wherein we found not only our Religion but the fundamental Rights and Priviledges of the Nation struck at by the Kings dispensing power and the Arbitrary proceedings of the Judges and not only the freedom of Elections of Knights of Shires but of Cittizens and Burgesses endeavour'd to be taken from us either by threatning the Electors or else by open force as I shall prove by and by when I shall have occasion to speak farther upon that head so that unless a great part of the Nation had declared for the Prince of Orange he had been repuls'd with shame and ruine and our Chains tyed faster upon us than ever they were before M. I shall forbear replying further to what you have now said till I come to conclude but in the mean time I cannot omit another material grievance set down in the Princes Declaration viz. the turning out and disarming the English Protestant Magistrates Officers and Souldiers in Ireland and putting of Irish Papists in their Rooms as also the late Declaration of Indulgence in Scotland but as I will not defend the Justice or Prudence of those Councils so I think none of them could give any sufficient cause for the people of this Kingdom to rise in Arms for sure it is enough if not too much for them to concern themselves with the grievances and miscarriages of their own Country without taking upon them to take up Arms to reform those of their Neighbours since they are not only ignorant of the Laws and Constitutions of those Kingdoms but may also mistake the true reasons and grounds on which those alterations were made F. I see you can as little defend what has been illegally acted in Scotland as in Ireland only you would sain put me off by telling me that the people of this Nation have nothing to do to take notice of what is done in other Kingdoms and you may as well tell me that a man ought not to take any warning as to defend himself against Thieves though he see 's another man robb'd by them before his Eyes or that the Protestants of England should not take warning by the sad example of those in France from ever suffering a Popish King from having the same power here as the French King has in France for fear of the like fatal effects since I never found Papists give Protestants the least forbearance or shew them any mercy longer than whilst it was not in their Power to hurt them But to come to the matter in hand we cannot but concern our selves with what has been so lately done in Scotland and Ireland for the introducing of Popery and Arbitrary Government in those Kingdoms since the latter is notoriously known to be govern'd by the same Laws as England and it is as much against the Laws of that Kingdom as it is of ours for the Irish Papists to be put in Arms and the Protestant Militia disarmed and for Popish Judges and Justices of Peace to be put in Commission as hath been practised under the Government of the Lord Tyrconnel and if English Protestants in Ireland cannot enjoy their Estates and Liberties without being turned out of them by the Papists how could we in England expect better treatment whenever they shall think themselves strong enough and as for Scotland tho' it be not wholy governed by the same Laws as England yet the fundamental constitution of the Government is the same in both Kingdoms and the King can no more make abrogate or dispense with Laws in Scotland without the Parliament than he can here and therefore for the King not only to issue out such a Declaration of Indulgence and suspension of all the Penal Laws in Scotland against Papists but also therein to declare that he expected an obedience to all his commands without reserve whether legal or not was so bold a stroke that we could not but expect the like in England tho' his Majesty thought it not fit at present to discover his Mind so plainly to us M. I shall not any longer dispute these points with you but own that the abuses you mention were indeed of great concern both to the Protestant Religion and our Civil Liberties yet however besides the Laws of the Land which I still suppose do expresly forbid all resistance of the King upon any account whatsoever I think there ought to have been no such thing done by any Subject of this Nation even upon your own principles which seem not to allow of such resistance but in case of an actual and violent assault upon mens Religion Lives and Properties and that by open force of Armes now I desire you to shew me whom it is that the King has ever yet Dragoon'd or persecuted till they would become of his Religion or whose Life his Majesty hath taken away even of the most notorious Traytors but by due Trial and course of Law nay he has pardon'd divers several after they were condemn'd meerly because he was inform'd they were not really guilty of the Crimes whereof they stood Condemn'd and as for mens civil properties I defie you to shew me any persons Estate that has been taken from him without due course of Law or any Taxes that have been Assessed upon the Nation but what have been granted by Parliament or else raised by the opinion of the Judges by whom if his Majesty hath been misinform'd they only ought to answer for it in the next Parliament who are the only proper Judges of their Miscarriages without having any course to Force which the Laws of this Kingdom so much abhor and therefore make the worst of it you can all these Greivances already mentioned were no more than some breaches upon the outward Splendour of our Church Religion or some of our civil liberties whilst the main Essential parts of both continu'd untouch'd since God be thanked we have hitherto enjoy'd the Free publick profession of our Religion together with our lives Liberties and Estates in perfect peace and undisturb'd by any outward Force or Violence from the King or any Commission'd by him and as for those Grievances you mention viz. The turning
a generous Prince a Nephew and a Son-in-law and one who was bound in Conscience and Honour to consult the lasting Peace and Happiness of the Nation more than his own private interest or the ambition of wearing a Crown F. You have made the utmost defence that I suppose can be brought for the King 's first going away yet if it be better consider'd I doubt it will not serve the turn I see you are forc'd to lay the whole fault of the Kings departure in the midst of the Treaty with the Prince and his refusing to call a Parliament according to his own Promise and Proclamation upon his want of security for himself the Queen and Prince if he had stay'd by reason of the want of fidelity in his Army the general prejudice of the Nation against him and the great firmness and resolution there was in the Princes Army to adhere to him Now I shall shew you that every one of these were but pretences and that the real cause of his departure was because he fear'd to leave the inquiry into the Birth of the Prince of Wales and the free examination and redress of our grievances and those violations he had committed upon the fundamental constitution of the Government to the impartial judgment of a free Parliament For in the first place as to want of fidelity in his Army that can be no just excuse for his deserting and disbanding them as he did without any pay since he himself in his said Letter to the Earl of Feversham expresly owns that there were a great many brave men both Officers and Souldiers among them and therefore if he was satisfied of this he ought to have first sent for all his Officers both Collonels and Captains and have examin'd them how far they would stand by him in the Defence of his Person and Cause against the Prince of Orange and he might have also order'd those Officers to have examin'd every Regiment Troop and Company in his whole Army how far they would engage in his defence and if he had proceeded thus at Salisbury before he fled away in that confusion to London I have been credibly inform'd by divers Officers of that Army that the King might have found above Twenty Thousand men that would have stood by him to the last man in his Quarrel against the Prince and therefore I impute his going away as he did from Salisbury to some strange pannick fear that God had cast upon him and all the Popish Faction about him since he has been known not to want sufficient courage upon other occasions but though he had omitted it there yet he certainly ought to have tryed this last experiment after he came to London rather than have quitted the Kingdom so dishonourably as he then did and thereby giving the P. of Orange's Friends an opportunity of seizing or getting delivered into their power all the Garisons and strong places in England besides Portsmouth in those three or four days time that he was not heard of besides great part of the Army that was not disbanded had in that time gone in to the Prince in hopes of their pay and future preferment now that the King might with safety have resided with his Army somewhere about London he himself grants in his Proposals to the Prince to this effect That in the mean time till all matters were adjusted concerning the freedom of Elections and a security of their sitting the respective Armies may be retained within such Limits and at such distance from London as may prevent all apprehensions that the Parliament may be in any kind disturbed which Proposals being made not long after the Kings arrival at London we may reasonably suppose that he was then well enough satisfied with the fidelity of the greatest part at least of his own Army to him and if he were not he might have been better satisfied if he pleased but as for the next difficulty the Nations being poisoned and prepossessed against him admit it were so as long as he had a sufficient Army about him as I suppose he might have had he need not have feared any thing the People could do but indeed this was a needless fear for before the Parliament could sit it was not the Peoples Interest to hinder it or to fall upon the King or his Army when matters were in a fair way of accommodation so after the Parliament sate there would have been less cause of fear since the reverence of that Court would have kept them in awe but as to the firmness and resolution of the Princes Army the fear of that was also as needless as long as the Kings Army continued as firm to him and if the Princes Army had been the first Agressors I doubt not but the People would have taken part with the King against them but after all it was certainly and you must grant it so much more safe and honourable for the King to have treated with the Prince and held a Parliament with an Army about him than to have yielded the same things as you suppose him willing to have done after his return to Town when his Army was disbanded and London had received the Prince and had joined with him and when almost all the strong places of England were in the Princes power so that upon the whole matter it evidently appears that the King chose to trust his own Person together with that of the Queen and Prince to a Foreign Monarch rather than he would relye upon the justice or fidelity of his own Nation You say in the next place that nothing the King has done in all these exorbitances he committed that can in any wise amount to a Forfeiture or Abdication of the Government not to the former because the King redress'd all our Grievances before he went away 't is true I grant he redressed some of them by putting divers things in the same State they were before yet for all this the greatest still remained unredressed viz. the Raising of Mony contrary to Law and the Dispensing Power both which as I have already shewed you at our last meeting he never Disclaimed neither took any sufficient course by Calling a Parliament to prevent its being exercised for the future besides his going away without giving the Prince and Nation any further Satisfaction about the Birth of the Prince of Wales all which not being done I must still affirm that this wrought a forfeiture of the Crown or an Abdication of it at least by his refusal to Hold and Govern it according to the Fundamental Laws thereof for he that destroys the Law or Conditions by which he holds an Estate does Tacitly Renounce his Title to it As I shewed you in the Case of Tenant for Life altering in Fee So that this being considered as also that the City of London and the whole Nation had Surrendred themselves to the Prince of Orange and that even the Arch-Bishops of Canterbury and York